Our readers are having a spirited debate over whose ‘fault’ it is we are in the situation we are in, after Kennedy’s court ruling on Friday.
Using the facts at hand, let’s figure out if Smith is at fault, if Baker is at fault, or, quite frankly, if there is anything to be at fault for, when, as the Attorney General says, we got everything we asked for. And if there is credit, to whom is that due?
Let’s start, say, in the disco era. Back in the 70s, when Ross Swimmer was representing our Nation while wearing leisure suits (we’re guessing), there was some debate over whether freedmen could be citizens if they weren’t also Indians. There was a federal court case, called Nero v. Cherokee Nation, which the Cherokee Nation won. In that case, the federal government basically said the Cherokee Nation can determine its own citizenship.
So… freedmen were not citizens prior to 1995 (when Baker got on the council), nor were they citizens prior to 1999 (when Smith was elected). So we have to look at what happened when they (Baker & Smith) were in office.
In 1999, Smith was elected without freedmen votes. He beat Joe Byrd, and Smith’s running mate, the late Hastings Shade, beat Bill John Baker for Deputy Chief. Again, no freedmen votes. Why? Because they weren't citizens.
In 2003, Smith was elected again, and Baker won a council seat after John Ketcher retired. No freedmen voted. But, losing candidates in that election complained that freedmen weren’t able to vote, and that eventually turned into the case Vann v. Salazar, that was dismissed Friday night. So let’s focus on that case.
In 2003, the freedmen tried keep Smith from being recognized as Chief with their lawsuit. He was recognized. In 2007, they tried to stop the election from happening, but it went forward anyway. By 2011, the freedmen hadn’t won anything in the Vann v. Salazar case, and there was no federal law or treaty saying the freedmen had citizenship rights in the Cherokee Nation, even though they’d been arguing that for 8 years. So until last week’s settlement between S. John Crittenbaker, the Freedmen and the BIA, freedmen didn’t have any citizenship rights because of the federal government.
So, the fact that there is now a federal court order granting freedmen citizenship rights (which APCSJC has said he thinks is the right thing, no matter what the Cherokee Nation Constitution says--- or as the court order he agreed to said “notwithstanding any provision of tribal law to the contrary.”), is entirely due to the fact that Crittenden AGREED to it.
So how did freedmen get citizenship before last week? Well, in 2006 the Cherokee Nation JAT (soon to be renamed the Supreme Court) ruled in Allen v. Cherokee Nation Tribal Council that anyone with an ancestor listed on the Dawes Rolls was now eligible for citizenship, whether the person on the Dawes Rolls was Indian or not. So that’s when freedmen (and don’t forget the inter-married whites) got to be citizens. And it wasn’t because of what a treaty said. It was because of what the Cherokee Nation Constitution and our Supreme Court said. The Justices who decided that were: Stacy Leeds (appointed by Smith), Darrell Dowty (appointed by Byrd originally, reappointed by Smith) and Darell Matlock (appointed by Smith).
So if you believe the judicial branch is an independent branch of government, this isn’t Baker’s fault or Smith’s fault. If you don’t believe the judicial branch is an independent branch of government, then brush up on your Cherokee Nation Constitution and do something about that.
In 2007, the Cherokee people passed a Constitutional amendment, going back to the old way. Both Baker and Smith supported the people’s right to vote on the issue, but neither took a public stance, as far as we can tell, telling people which way they should vote.
In the meantime, Stacy Leeds quit the Supreme Court and decided she’d run for Chief instead. So maybe some of the ‘blame’ for all this should go to her!
Since then, we’ve been in both tribal and federal court.
Smith has defended the Constitution, because, well, that’s what we elect a chief to do and that’s the oath he takes as Chief. He stood up in both tribal and federal court for the Cherokee people’s right to amend their Constitution. Until the last couple of weeks, we could say the same thing for Baker, but not Crittenden.
Crittenden voted against even letting the Cherokee people vote on this (see June 2006 Council Meeting Minutes) after the Freedmen were made citizens and has been one of the biggest freedmen supporters on the tribal council. Again, that’s his right as an elected official, but when the Constitution was amended, he still took an oath to defend it, not sabotage it in federal court. Baker is complicit, because he has pushed so hard to get freedmen votes into this election.
The fact that there is still a federal court case going (Cherokee Nation v. Nash) could be viewed as both Smith and Baker’s fault (again, if there really is a 'fault'). Remember, the tribal council has to approve any lawsuits, and that case was filed back in 2009 and no one has made a stink about it being a bad thing until now. And to us, it seems like winning a lawsuit doesn’t weaken your case in a similar lawsuit, it only strengthens it, so we’re not sure how winning the DC case is bad news for the Cherokee Nation.
The only time the Cherokee Nation lost anything in the DC case was when Crittenden willingly signed an order-- in full knowledge it violated Cherokee law--and made freedmen citizens anyway. And that, friends, is why we are still in Election mode, a week after the special election was supposed to end.
