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.

Election Limbo Part II, Day 3: Pleased to Meet You, Mr. S. John Crittenbaker

Three days after election day 2, our election rules are changing thanks to Jon Velie, APCSJC, Baker, Smith, the BIA, Judge Kennedy in Washington DC and our own beloved Cherokee Nation Election Commission. But the two biggest players seem to be the guys sharing a brain that wants to do whatever the BIA and the freedmen tell them to.  

And henceforth we shall call it... S. John Crittenbaker!

Picture Credit & Caption: www.joecrittenden.com

This morning, S. John Crittenbaker worked out a deal with the freedmen and the BIA saying not only should freedmen be given more days to vote because APCSJC didn’t comply with last week’s court order, but also that Cherokees would now get to walk in and vote.  Hooray for Cherokees, right?  Not so fast. 

1) APCSJC's deal didn’t extend the mail-in voting for Cherokees, so if you forgot to mail your absentee ballot, or mailed it late, too dang bad for you. 

2) Freedmen who haven’t voted by mail already, but did request an absentee ballot, will all be sent a SECOND ballot via overnight mail. 

3) If Cherokees by blood still want to vote, they better know somebody who knows somebody (or just read Cherokee Truth, but we’re sure all our readers already voted, right?), because APCSJC’s custom-made court order does NOT require any notification about extra voting days be sent to Cherokees by blood. But EVERY Freedman must be notified. And lucky for them, that’s already happened.

So while that was sinking in, the election commission met today and Smith told them he didn’t think it was fair that only Freedmen got two extra weeks to turn in their absentee ballots and that only local Cherokees who could drive to Tahlequah (and Freedmen) got to vote, not people who live far away or voted by mail. And the Election Commission agreed with Smith and changed things some more, allowing all Cherokees to turn their absentee ballots in by October 8th.

Smith and Baker both put up comments online, as did the election commission and APCSJC.

Smith pointed out that he was the guy who fought for Cherokee absentee ballots to be counted and equal notification of the extra voting days, while Baker (again) accused Smith of stealing the election the first time saying the AG and the Supreme Court were just doing Chad’s bidding. Keep in mind, the Cherokee Nation Supreme Court hasn’t done anything in a month or so, and declined to make Smith Chief even after they found he had the most votes.

So the votes haven’t been counted yet and it looks like Baker is already lining up his excuses.

The Election Commission got their digs in saying, "It appears that people who know little about the mechanics and physical requirements of conducting an election have decided to try and insert themselves into the Election Commission's day-to-day operations."

On that same page, APCSJC's statement seems to be just a repetition of what the order says. Towards the bottom, he does say: "As of today, the required notice to the Cherokee Freedmen has been mailed. There were never any negotiations that non-citizen Cherokee Freedmen, Cherokee Freedmen unregistered to vote, non-citizen Cherokees or Cherokees unregistered to vote were going to be allowed to vote during the Friday hearing. The Nation will continue to work through this important matter."

So, now we know what "never" happened in the negotiations. But we wonder if we'll ever know what actually DID happen when S. John Crittenbaker was making another deal with the freedmen and the BIA to change our election laws.

0 Days Until the New Election: Voting, Watching and Waiting

A lot of watching and waiting left to
do in this election.

Polls are open for just a little while longer, but, as one of our readers has pointed out, even though the polls close at 7, they won’t start counting votes until October 8, or maybe later.  Why?  Because of the agreement reached by our APCSJC and then signed off on by the federal court.

FYI: This is a picture
of Bill Clinton.

Looking closely at the federal court order, it actually says that we have to “refrain from counting all ballots in the September 24, 2011 Special Election until after October 8, 2011.” Not to go all Bill Clinton on you with legal definitions (he’s the guy who said “It depends on what the meaning of the words 'is' is."), but it looks like to us that maybe we can’t even start counting votes until the stroke of midnight and October 9 starts.

And then it’s a couple of days at least to certify, and then maybe a recount (those are always fun) and an election challenge in court.  So maybe, just maybe, we’ll have a new chief by Halloween. 

Regardless, vote if you haven’t already, and if you have, keep watching and waiting.