Saturday, December 24, 2011

The UKB and the "Punch Line

Hello, everyone –

I apologize for the delay in getting this next installment to you, but Christmas has overtaken me. I’m sure you can all relate to that! As we have seen in previous installments, by the 1970s, we had a Cherokee Nation that was beginning to stand up again for the first time since Oklahoma statehood, and we had the United Keetoowah Band that operated in conjunction with the Cherokee Nation, always stating that they were, in fact, an incorporated entity within the Cherokee Nation, rather than separate from it. By the early 1970s, the Cherokee Nation had established both a financial basis once again, by interest earned on a settlement from Indian Claims Commission concerning the 1893 sale of the Cherokee Outlet, and there had been an election for Principal Chief in 1971 – the first since statehood. W.W. Keeler, who had already served by Presidential appointment for twenty-two years, won that election by a landslide. One of Keeler’s initiatives was to develop a new Constitution, and for this he turned to a network of grassroots organizations that had emerged called the Original Cherokee Community Organizations (OCCO). Many members of the United Keetoowah Band were involved in these groups as well, and the OCCO groups acted as the entities that in large part drafted a new Constitution for the Cherokee Nation.

In 1975, that Constitution went into effect. Article XVI was contained within, which reads, “The provisions of this Constitution overrule and supersede the provisions of the Cherokee Nation Constitution enacted the 6th day of September 1839.” This sort of clause is seen in every Constitution and/or treaty that the Cherokee Nation adopted throughout its existence and is critical in creating a continuum of legal government from one document to the next. In short, the Cherokee Nation that ratified this 1975 Constitution is the same Cherokee Nation that ratified the preceding Constitution in 1839. There has been no break, no termination of this government, in the intervening years. The 1975 Constitution was accepted by the Bureau of Indian Affairs, making it clear that the Bureau accepted at that time that the contemporary Cherokee Nation was the same Nation that had existed in the 1800s, not a different entity.

But even more significantly, in the following year of 1976, the federal courts also acknowledged the continuous, unbroken existence of the Cherokee Nation. In a case called Harjo v. Kleppe, filed in the US District Court in DC by a councilor of the Muscogee Creek Nation, Allen Harjo, , Federal District Judge Bryant issued a ruling that addressed many of the major issues the Cherokee Nation currently has today with the Bureau of Indian Affairs. Although the case specifically concerned issues brought by a Creek councilor, the ruling applies to all the Five Tribes, since the legal precedents involved all five, including the Cherokee Nation. Follow closely, for this case is the punch line!

In Harjo v. Kleppe, Judge Bryant said that although the intent of Congress from about 1890 to 1906 had been to terminate its relationships with the Five Tribes, that termination had never been statutorily achieved, and instead its relationships with the governments of the Five Tribes had been expressly and deliberately continued in the 1906 Five Tribes Act. There is no “old” Cherokee Nation and “new” Cherokee Nation (as the UKB and its supporters, now also including Assistant Secretary EchoHawk, assert), but only one continuous Cherokee Nation, just as the Bureau itself had acknowledged only a year earlier by its acceptance of the superseding 1975 Cherokee Nation Constitution.

The Judge also stated that the passage of the Oklahoma Indian Welfare Act (OIWA) in 1936 did not have any bearing on the existence of the Five Tribes. It was intended to offer tribes a way to re-organize essentially as corporate entities for the purpose of small business and cultural development. The existence of tribes as governments, especially of the Five Tribes which had strong legacies as republics in the Indian Territory, was not affected. The United States was already “recognizing” them, so there was no requirement that they re-organize in this fashion. Thus the argument on the part of the UKB and its supporters that it is the “older brother” of the Cherokee Nation “of Oklahoma,” as they insist on misnaming the Cherokee Nation, is entirely false. The UKB was established as a corporate entity in 1946. The Cherokee Nation has existed as a recognized sovereign government through its treaties with Great Britain and the United States since 1721. And the Cherokee Nation is the government that the territorial land base and all jurisdictions and governmental interests in the Indian Territory were ceded to in 1828. The United Keetoowah Band did not exist at that time; the Cherokee Nation has never not existed since that time.

And finally, the judge in this case also stated that if it wanted to, the Cherokee Nation was legally entitled to develop a new Constitution either under the terms of the OIWA (if it wanted to reorganize under that Act) or as an inherent sovereign, since it continued to hold that status. The Cherokee Nation, through several administrations, has continued to maintain and defend its status as an “inherent” sovereign. To re-organize under the federal statute would greatly reduce our level of sovereignty, since it would give the Bureau greater oversight of our government, such as approval authority over our election processes, elections, and constitutional process.

So thirty-five years ago, a federal court had already addressed the three major conflicts that we are having with the BIA today: (1) it said that we are not a “successor” to the old Cherokee Nation, but in fact, are still the same Cherokee Nation; (2) it said we are not required to organize under the OIWA; and (3) it said that we have the right to adopt Constitutions without necessitating BIA approval over the document the citizens of the Cherokee Nation choose to ratify. Today, the BIA is directly contradicting the first point by granting the UKB the same level of jurisdiction within the Cherokee Nation’s boundaries, and it is strongly trying to intimidate us in contradiction to the second two points. (These are the talking points for your action letters to Principal Chief Baker, the Council and the BIA. I will delineate them more concisely in the very near future. We are almost up to date on this story.)

And the punch line to the punch line: the attorney for the BIA who lost the Harjo v. Kleppe case in 1976 was named Scott Keep. The attorney who is advising Assistant Secretary EchoHawk today on these matters is (wait for it)…Scott Keep.

Once again, law and history are very subject to interpretation. This specific installment is particularly contested by the UKB and its supporters, but as I consistently state, it doesn’t matter what anyone’s interpretation is. The only one that matters is that of the federal courts. And this is very directly the federal court’s interpretation. No appeal was heard, subsequent cases have relied on this one as a precedent, and so this stands to this day.

In the next installment, we will at last uncover the reasons for the rising tensions between the UKB and the Cherokee Nation in the past thirty years.


(Dr. Julia Coates is an At-Large councilor on the Cherokee Nation Council)