Election Limbo Part II, Day 11: Know your Roll/Role

It is important to know your roll* as a council member.

Ever since the Cherokee Nation won its lawsuit against the freedmen (last week), there has been some discussion about the OTHER lawsuit with the freedmen, known by some as the Nash case.  Nash is the name of the one of the freedmen who sued the Cherokee Nation in Tribal court (and lost) over citizenship.  The Cherokee Nation sued him (and a bunch of others) back in federal court.

Baker and his lawyer, Chuck Hoskin Jr., are referring to this when they said that Smith “secretly cut a deal secretly cutting a deal with Congressmen in DC to allow the Freedmen to remain on the roles (sic)* as long as he was chief in exchange for HUD money.  Smith illegally cut this deal with a group of Congressmen without the knowledge or consent of the elected Cherokee Council.”

He also said that the  "Tulsa World further verified that Smith waived the Tribes (sic) sovereignty and we demand the details. The tribe's suit, which waived the Cherokee Nation's sovereign immunity only, in that case, was originally filed in Tulsa,’ the Tulsa World wrote.”

They asked Attorney General Diane “Hammonds”   to investigate this “secret deal.”

Well she did, and she released the results of her investigation today.  The Smith campaign liked it so much, they posted it online.

 

It’s just a couple of pages long, and it’s pretty straight forward.  She notes that the request for the investigation was filed 3 days before the election and immediately publicized by Baker’s campaign.  She also points out that Baker was well informed about the Nash case, despite his claims otherwise.

We did a little research of our own, based on Hammon’s analysis, and the more we looked the more Cherokee Truth came out. Here’s what we discovered:

On February 3, 2009, the Cherokee Nation issued a news release, which is still publicly available on the Cherokee Nation’s web site for all to see. It begins:

“TULSA, Okla.—The Cherokee Nation filed today a lawsuit asking a federal court in Oklahoma to resolve the long-standing dispute of whether non-Indian Freedmen descendants have a federal right to citizenship in the Cherokee Nation.  The Cherokee Nation is asking the court to confirm that Congress unilaterally modified the Treaty of 1866, and, as a result, the non-Indian descendants of those Freedmen have no federal rights to citizenship in the Cherokee Nation.”

It later has a quote from Smith:

“Last year, I assured members of Congress, including Barney Frank (D-MA), that if they would let the federal courts decide we would push to have the controversy heard on the merits,” Smith said.  “This filing today is the Cherokee Nation keeping its word, and letting the federal courts have a clear path to reaching a decision on the merits without compromising the Nation’s sovereign immunity, and without the risk of setting procedural precedents that may affect other tribes.  Members of Congress have said they will respect a federal court decision on this issue, and this is the quickest way to an impartial, apolitical, judicial solution."

Nothing secret going on here: There was and is a news release about it on the Cherokee Nation’s web

site.

There are also later media references to the case, including an Associated Press story. 

Just two days after the case was filed, Hammons told a council committee meeting about it (see the rules committee meeting minutes from February 5, 2009).  Smith talked to the full tribal council about it at the February Council meeting (see the council meeting minutes from February 17, 2009).  The full council voted on, and unanimously approved of the lawsuit in the March council meeting (see minutes of the March 16, 2009 council meeting).  

Unanimously, of course, means everyone on the council agreed.  Bill John Baker and Chuck Hoskin Jr. were both on the council during these meetings, and both men were in attendance.  Hammons was kind enough to pass along a PDF showing Baker and Hoskin had indeed approved it.

So not only is the "deal" not secret, Baker and the full tribal council were explicitly informed about the case--so much so that they agreed it was a good idea for it to move forward!

So, that said, let’s walk back through Baker’s quotes again after having done some cursory research that any Cherokee citizen could do for themselves.

Baker claims: “Smith illegally cut this deal with a group of Congressmen without the knowledge or consent of the elected Cherokee Council.”  WRONG. Council minutes referenced above show that the council, and any Cherokee who checked the Cherokee Nation web site, were proactively informed about the lawsuit.

Baker claims: “Tulsa World further verified that Smith waived the Tribes (sic) sovereignty and we demand the details.”  WRONG AGAIN.  And while we’re handing out demands, how about this: the Cherokee people demand you pay attention in the council meetings we pay you to attend!  The details you need are in the minutes from the meeting in 2009 when you voted IN FAVOR of the lawsuit you are now criticizing.

Smith had some choice words on the subject and he, rightfully, lets Baker have it with both barrels.  You can visit his facebook page if you want to find out more.  

Baker and Hoskin may have presented more evidence to Hammons, but the evidence that any Cherokee can find is clear:  the discussion of the Nash case was made in a very public way and approved by the very people who now claim not to know anything about it.  It doesn’t seem like they take their rolls** as council members very seriously if they don’t even know what they voted on.

  

*Probably a typo.  He probably meant tribal rolls, the list of Cherokee Nation citizens, not ‘tribal roles’

** We meant to use the wrong word here.  Because it is funny.  We know our role, as citizens on the Cherokee Nation’s rolls.  See?  It isn’t that hard really. But don't get us started on the difference between polls and poles.

Election Limbo Part II, Day 9: "Diane Hammonds" Edition

This pops up on a google image
search for "Diane Hammonds." 
This is not, as some would suggest,
the Cherokee Nation's Attorney General.

Who is this "Diane Hammonds?"  Twice in the last two weeks, Baker has sent out statements demanding this woman take some action.  The problem is, Diane Hammonds probably isn’t who Baker thinks she is.

A couple of days before the election, Baker, in a press release, “demanded Attorney General Diane Hammonds open an investigation of Chad Smith for secretly cutting a deal with Congressmen in DC.”

He also said that “Council members are concerned that the fact that Hammonds was hand appointed by Smith she may put loyalty ahead of duty.”

 

Then this past Saturday, Baker issued another statement, ostensibly about the Cherokee Nation winning the DC lawsuit, but most of his comments were directed at Smith and this “Hammonds” person.  He wrote:   “Smith's handpicked Attorney General Diane Hammonds must immediately open an investigation of Smith's actions as demanded by Tribal Councilors or resign. She is paid by the Cherokee people, not Chad Smith.”

This is where we respectfully point out that the Cherokee Nation’s  Attorney General is named Diane Hammons.  There is no ‘D’ in her last name.  We all make the occasional typo, but in this case, Baker has used her name incorrectly three times in the past week and used it wrong every time. 

Baker has voted to approve Hammons twice, once as general counsel in January of 2006 (Resolution 03-06) and again in July of that year in the new Constitutional position of Attorney General (69-06). He even called her on the phone in this July’s Rules committee to make her promise to resign if he got elected and he didn’t like what she was doing.  Check out the video for yourself, about 90 minutes into the July Rules committee meeting.  

Again, the spelling of her name is clearly not a typo. This is three times in a little more than a week that Baker has incorrectly spelled the name of a Cherokee Nation Cabinet Member, whose name he (should) see in print at least once a month on Rules Committee agendas.  He talks in the Rules Committee about calling Hammons, but apparently her number is programmed into his cell phone as “Diane Hammonds.”

Considering Hammons reports monthly to the Rules Committee, and her name is on the agenda every  month, and that Baker has been on the council for 8 straight years, it’s a little disconcerting that he doesn’t know the name of the Cherokee Nation’s Attorney General.  Of course, there is another explanation:  Baker doesn’t read his own news releases before they go out, and they are being written by someone who doesn’t know the name of the Cherokee Nation’s Attorney General.  And, frankly, neither possibility is all that inspiring.

This pops up on a google
image search for "Diane Hammons." 
This is the Cherokee Nation
Attorney General.

Election Limbo Part II, Day 8: Faulty Reasoning

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. 
 

Election Limbo Part II, Day 7: Kennedy’s Curve Ball

Judge Henry Kennedy

For the second time in 10 days, Judge Henry Kennedy out of Washington, DC has weighed in.  Late on Friday, he dismissed the 8 year old case the freedmen brought against Cherokee Nation.  So the Freedmen lost.  Does that mean the Cherokee Nation won?  Well, according to the Cherokee Nation’s Attorney General, absolutely.

Diane Hammons said that the order from the judge was “exactly what the Cherokee Nation had asked for.” News reports also quoted Smith as saying “Today’s ruling proves that when the Cherokee Nation stands up and fights for its rights, it can win.”

According to media reports, freedmen retain citizenship rights as part of the deal Crittenden, the freedmen and the BIA cut in Washington DC-- and Smith has some choice words to say about that on his Facebook page.

“Because Crittenden and his running mate Bill John Baker counted on the votes of non-Indian freedmen descendants, they willingly gave them citizenship rights just moments before a federal judge was going to rule that the Cherokee Nation didn't have to.  Bill John Baker won't stand up to the BIA and the freedmen:  when they could've won the case, they compromised instead.”

Baker, of course, says the Cherokee Nation won in spite of Smith, not because of him, and takes a less than optimistic view:   "We should fully expect and prepare for the Federal Government to sue our Nation and Chad Smith has proven over seven years he's not up to the task of defending us. Indeed his actions have prolonged this process."

Then he starts talking about Cherforce One again and secret, unknown deals made by Smith.  Well, S. John Crittenbaker’s deal was done in open court, and just because you give up sovereignty in full public view doesn’t make it the right thing to do.

So, in some ways this doesn’t effect our election.  Even though the freedmen lost their case, they still get to vote. 

In other ways, it really does effect the election! Remember the last two things that happened in the case, right before it got dismissed? 1) Grant voting rights to Baker supporters (who aren't Indians) and 2) extend voting after the election at Baker’s request (but only in Tahlequah).

If there hadn’t been a compromise by S. John Crittenbaker to give the freedmen citizenship and the right to vote along with extended voting privileges, it looks like Judge Kennedy would never have interfered, because afterall-- he was about to throw the whole case out! Oh, and we wouldn't be writing this blog BECAUSE THE ELECTION WOULD ALREADY BE OVER.

All we know for sure now is that Judge Henry Kennedy finally did what he intended to do on September 20th-- so at least now he can't be used by Crittenbaker, the Freedmen and the BIA to throw any more curve balls into this election.  

Click here to read Judge Kennedy's opinion.

9 Days until the New Election: The Beastie Boys Edition

We don’t necessarily want to be all freedmen all the time, but seeing as how some of them are trying to stop the election from even happening at all, and they’ve got the election commission, APCSJC, the Cherokee Nation Attorney General,  HUD and New York Times all fired up, we thought we’d look into it further.

The interesting thing to us is closer to home:  some freedmen are unhappy with their tribal court attorney Ralph Keen trying  to get their citizenship rights in tribal court.

According to the Tahlequah Daily Press, some of them “don’t believe Mr. Keen has our best interests in mind,” because the BIA “was willing to step in to help us and we believe Keen was hired to avoid this happening.”

Considering Keen has been on the case since at least January of 2008, and won the case in district court three years later, it sure seems like he has done okay representing their interests. Certainly none of his clients seemed to mind while he was keeping their citizenship active despite a constitutional amendment saying otherwise.   And the BIA certainly wasn’t stepping to the defense of the freedmen in 2008, so it is really hard to believe that he was hired to avoid the BIA protecting the freedmen’s rights.  The BIA wasn’t protecting their rights in 2008, but a tribal court was-- because Keen was in court fighting for them.

So, we asked ourselves, how would we act if our lawyer gave us what we wanted for four years, won a court case, lost on appeal and thenasked the court for a do-over trying for a win again?   

Well, if we really wanted to win the case, we’d say go for it!  Especially if the other side beat us, but then said the do-over was okay.  We’d be pretty happy that our lawyer seemed to be working the system.  

It’d be like Texas losing to OU, and OU agreeing to play 5th quarter (even though they didn’t have to) just to give Texas  a chance to catch back up.  In this situation, the Freedmen are Texas.  They lost.  The Cherokee Nation is giving them another chance, and they are mad at the guy who asked for-- and received-- this gift from the judicial heavens.  Keen should go in the lawyer’s hall of fame for this, but instead, some of his clients say they’d rather have the federal court case go forward.

If they want citizenship, the shortest path is through tribal courts, because that’s where their rights have been won before.  The federal court case is eight years old.  If the freedmen want to be part of the Cherokee Nation, is it too much to ask they want to be part of our court system too?   

So Whatcha, Whatcha, Whatcha WANT??!

What’s different about the federal court case?  Oh yeah! The termination of the Cherokee Nation. And no election. Is that what the freedmen really want?

10 Days Until the New Election: Britney Spears Edition

Yesterday, the freedmen filed something called a “motion to reconsider” with the Cherokee Nation Supreme Court.  Basically, asking for a do-over in the court case, because, hey why not? We’re having a do-over election, right?  Certainly worth a shot.

Today, a surprise so weird we’re not sure what to compare it to:  the Cherokee Nation agreed to the do-over, and oh-by the way asked the court to put the injunction back in place that allowed the freedmen to have citizenship.   

What?  Since March 2007, the Cherokee Nation has been fighting for its Constitutional amendment in court.  Last month, the Cherokee Nation won.  But today, they told the court we can do this over.  So… what’s changed?  If you say the Echo Hawk letter or the HUD funding hold, that might mean you think money is more important than our people’s constitutional amendment.   And APCSJC might agree with you according to his statement on the Cherokee Nation web site today, which said in part: "I believe the Nation should do what is best for its people especially sinceFederal HUD funding is currently frozen."

  

Or you could go with what APCSJC said to Channel 2 tonight:  

"They may have helped put me in office. I believe they're entitled to vote again."

Surely he didn’t mean it the way it sounded, because some people might interpret that to mean he’s in favor of doing something for the people who voted him in, even if the Supreme Court disagrees.

Meanwhile, the Cherokee Nation Election Commission met tonight and decided freedmen could vote in this election after all, despite the Supreme Court ruling.  The Commission is going to send ballots to freedmen absentee voters and is going to allow freedmen to walk in and vote as well.  They are going to cast challenge/provisional ballots, which means… well, we’ll let Election Commission Chair Susan Plumb explain it: "If a court decides the freedmen descendants can vote we will have the ability to certify the election," Plumb said. "If the court decides they cannot vote we will still be able to preserve the election."

Anyway, to paraphrase Britney Spears: it looks like everybody involved wants our Supreme Court to say Oops!

16 Days Until the New Election: Barney Frank Edition

News on Wednesday is that the smart folks at HUD can’t figure out what the law is, so they are holding up $33 million of housing funding that was set to hit the Cherokee Nation’s bank account.  HUD told the Tulsa World they had “suspended disbursements to the Cherokee Nation of Oklahoma while we seek additional guidance on an unclear statute involving the Freedmen. The funding can be restored once this issue is resolved.”

Cherokee Nation Attorney General weighed in with a strongly worded letter, telling HUD that if they don’t understand the law, it doesn’t mean the Cherokees don’t get their money.  It might just mean that the folks at HUD are dumb.  Channel 6 posted Hammons’ letter, and for us was the part where she said: “If Congress wanted to deny funding to the Cherokee Nation, it would have done so…. Congress made a choice that did not side with a particular party, but instead maintained the status quo until the tribal courts decided the matter.”

So just to be clear to the folks at HUD:  Congress could’ve denied funding to the Cherokee people, but they didn’t.  So go ahead and make that check payable to Cherokee Nation, Acting Principal Chief S. Joe Crittenden (APCSJC), and don’t even think about back dating it.

Speaking of APCSJC, we heard from him on this issue, and both candidates as well, in a Smoot article in the Muskogee Phoenix.  Crittenden told us everything’s going to be all right, he’s got it under control, which is good to know.

Baker said it’s all Smith’s fault, saying he could’ve kept congress from choosing sides.  Of course, Hammons says that’s what the law says already, and Crittenden apparently thinks so too, because he says the Nation is complying with the law and he’ll get our funding.

Smith challenges Baker to fight for Cherokees-- and that the Freedmen, who publicly support Baker, are the only people actively seeking to cut services to the Cherokee Nation if they can’t win their legal arguments (or the constitutional votes of the Cherokee people). 

Congressman Barney Frank, (D) Mass.

And of course, this wouldn’t be the Barney Frank edition of the Cherokee Truth if the Massachusetts congressman didn’t weigh in, because, after all, this is a big issue up in Boston.   Frank, according to Indian Country Today, told HUD not to part with a penny for the Cherokee Nation.

Of course, Frank is an expert on the legal intricacies of this case because…?  If you are not familiar with Frank’s track record, google him up.  For instance, last year a tribal leader in California said one of Frank’s proposals was ‘the biggest threat to Indian gaming in 20 years.'

We’ve had a little fun with this, but it’s not really a laughing matter.  There’s $33 million that’s supposed to be heading to Tahlequah to pay employees and help Cherokees.  As much faith as we have in APCSJC, that’s a whole lot of rental assistance, so we hope that gets worked out soon.