Cherokee Nation

The Cherokee Nation (Cherokee: ᏣᎳᎩᎯ ᎠᏰᎵ ''Tsalagihi Ayeli'' or ᏣᎳᎩᏰᎵ ''Tsalagiyehli''), also known as the Cherokee Nation of Oklahoma, is the largest of three Cherokee federally recognized tribes in the United States. It was established in the 20th century and includes people descended from members of the Old Cherokee Nation who relocated, due to increasing pressure, from the Southeast to Indian Territory and Cherokee who were forced to relocate on the Trail of Tears. The tribe also includes descendants of Cherokee Freedmen, Absentee Shawnee, and Natchez Nation. As of 2021, over 400,000 people were enrolled in the Cherokee Nation.

Headquartered in Tahlequah, Oklahoma, the Cherokee Nation has a reservation spanning 14 counties in the northeastern corner of Oklahoma. These are Adair, Cherokee, Craig, Delaware, Mayes, McIntosh, Muskogee, Nowata, Ottawa, Rogers, Sequoyah, Tulsa, Wagoner, and Washington counties.

History

Late 18th century through 1907

20th century

Federal dissolution and restoration

During 1898–1906, beginning with the Curtis Act of 1898, the United States federal government all but dissolved the former Cherokee Nation's governmental and civic institutions, to make way for the incorporation of Indian Territory into the new state of Oklahoma. From 1906 to 1938, the structure and function of the tribal government was not clearly defined. After the dissolution of the tribal government of the Cherokee Nation in the 1900s and the death of William Charles Rogers in 1917, the Federal government began to appoint chiefs to the Cherokee Nation in 1919. The service time for each appointed chief was so brief that it became known as "Chief for a Day". Six men fell under this category, the first being A. B. Cunningham who served from November 8 to November 25. The short service times were often just long enough to have one sign a treaty, usually to cede more land.

In the 1930s, the Franklin D. Roosevelt administration worked to improve conditions by supporting the Indian Reorganization Act of 1934, which encouraged tribes to reconstitute their governments and write constitutions. On August 8, 1938, the tribe convened a general convention in Fairfield, Oklahoma to elect a Chief. They choose J. B. Milam as principal chief. President Franklin D. Roosevelt confirmed the election in 1941. W. W. Keeler was appointed chief in 1949. After the U.S. government under President Richard Nixon had adopted a self-determination policy, the nation was able to rebuild its government. The people elected W. W. Keeler as chief. Keeler, who was also the president of Phillips Petroleum, was succeeded by Ross Swimmer. In 1975, the tribe drafted a constitution, under the name Cherokee Nation of Oklahoma, which was ratified on June 26, 1976. The tribe has also conducted litigation using this name. In 1985 Wilma Mankiller was elected as the first female chief of the Cherokee Nation.Women of the Hall ''National Women's Hall of Fame''. (retrieved June 21, 2009)
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Constitutional crisis

The Cherokee Nation was seriously destabilized in May 1997 in what was variously described as either a nationalist "uprising" or an "anti-constitutional coup" instigated by Joe Byrd, the Principal Chief. Elected in 1995, Byrd became locked in a battle of strength with the judicial branch of the Cherokee tribe. The crisis came to a head on March 22, 1997, when Byrd said in a press conference that he would decide which orders of the Cherokee Nation's Supreme Court were lawful and which were not.

A simmering crisis continued over Byrd's creation of a private, armed paramilitary force. On June 20, 1997, his private militia illegally seized custody of the Cherokee Nation Courthouse from its legal caretakers and occupants, the Cherokee Nation Marshals, the Judicial Appeals Tribunal, and its court clerks. They ousted the lawful occupants at gunpoint. Immediately the court demanded that the courthouse be returned to the judicial branch of the Cherokee Nation, but these requests were ignored by Byrd. The Federal authorities of the United States initially refused to intervene because of potential breach of tribal sovereignty.

The State of Oklahoma recognized that Byrd's activities were breaches in state law. By August 1997, it sent in state troopers and specialist anti-terrorist teams. Byrd was required to attend a meeting in Washington, DC with the Bureau of Indian Affairs, at which he was compelled to reopen the courts. He served the remainder of his elected term. In 1999, Byrd lost the election for Principal Chief to Chad Smith but was elected to the Tribal Council in 2013.

A new constitution was drafted in 1999 that included mechanisms for voters to remove officials from offices, changed the structure of the tribal council, and removed the need to ask the Bureau of Indian Affairs' permission to amend the constitution. The tribe and Bureau of Indian Affairs negotiated changes to the new constitution and it was ratified in 2003. Confusion resulted when the US Secretary of the Interior would not approve it. To overcome the impasse, the Cherokee Nation voted by referendum to amend its 1975/1976 Constitution "to remove Presidential approval authority," allowing the tribe to independently ratify and amend its own constitution. As of August 9, 2007, the BIA gave the Cherokee Nation consent to amend its Constitution without approval from the Department of the Interior. Certain non-Cherokee groups contest the viability of this constitution.

Freedmen rights revoked

The Cherokee freedmen, descendants of African American slaves owned by citizens of the Cherokee Nation during the Antebellum Period, were first guaranteed Cherokee citizenship under a new treaty made in 1866 with the United States. This was in the wake of the American Civil War, when the US emancipated slaves passed a constitutional amendment granting freedmen citizenship in the United States. In reaching peace with the Cherokee, who had sided with the Confederates, the US government required that they end slavery and grant full citizenship to freedmen living within their nation. Those who left could become United States citizens. However, despite "the promises of the 1866 treaty, the freedmen were never fully accepted as citizens of the Cherokee Nation" during the 19th and 20th centuries. A sizable number of Freedmen "were ignorant of the treaty clause which provided for their right of incorporation into the tribe."

In practice, enrollment in the Cherokee Nation rolls was often strongly influenced by race. During creation of the Dawes Rolls prior to allotment of tribal communal lands to households, many freedmen and Afro-Cherokee were listed separately from Cherokee by blood, regardless of their ancestry or culture. As a result, they did not receive land allotments and later were for a time excluded from tribal membership.

In the 20th century, the Cherokee passed a law to limit membership to descendants of those listed as "Cherokee by blood" on the Dawes Rolls, excluding numerous African Americans and Afro-Cherokee who had been members of the tribe. In a recognition of Cherokee sovereignty, in 1988 the federal court in the Freedmen case of ''Nero v. Cherokee Nation'' held that the Cherokee Nation could legally determine its own citizenship requirements, even if that meant excluding descendants of freedmen who had formerly been considered citizens.

21st Century

Freedmen rights restored

But on March 7, 2006, the Cherokee Nation Judicial Appeal Tribunal ruled that the Cherokee Freedmen were eligible for Cherokee citizenship. The Cherokee Freedman had historically been recorded as "citizens" of the Cherokee Nation since 1866, and their ancestors were recorded on the Dawes Commission Land Rolls (although generally in the category of Cherokee Freedmen, even if they qualified as "Cherokee by blood", as many did.) The ruling "did not limit membership to people possessing Cherokee blood," as some freedmen and their descendants had never intermarried with Cherokee. This ruling was consistent with the 1975 Constitution of the Cherokee Nation, in its acceptance of the Cherokee Freedmen on the basis of historical citizenship based on the Dawes Rolls, rather than documented blood relation. Well-known genealogist, historian, and Freedmen advocate David Cornsilk notes that other historical citizenship bases are still excluded to this day (such as an ancestor tied to an older roll). The Constitution had always restricted elected governmental positions to persons of Cherokee blood.

On May 15, 2007, the Cherokee Nation Tribal Courts reinstated the Cherokee Freedmen as citizens while appeals were pending in the Cherokee Nation Courts and Federal Court. On May 22, 2007, the Cherokee Nation received notice from the United States Bureau of Indian Affairs that the BIA and Federal Government had denied the amendment to the 1975 Cherokee Nation Constitution because it required BIA approval, which had not been obtained. The BIA also noted that the Cherokee Nation had excluded the Cherokee Freedmen from voting on the amendment. On this issue, the Cherokee Nation Supreme Court ruled that the Cherokee Nation could take away the approval authority which it had previously granted the federal government. Pending the resolution of litigation, the Cherokee Freedman had all rights as full Cherokee Nation citizens, including voting rights and access to tribal services. In early 2011, the tribal district court ruled that the special election in 2007 on the constitutional amendment was unconstitutional, as it excluded Freedmen from voting. The Nation appealed. On August 22, 2011, the Cherokee Supreme Court upheld the results of the 2007 special election. Chuck Trimble, a former executive director of the National Congress of American Indians, characterized the decision as the "Cherokee Dred Scott Decision", for depriving a group of citizenship.Chuck Trimble, "The Cherokee Dred Scott Decision"
, ''Indian Country Today'', 18 September 2011, accessed 20 September 2011

At the same time, the Cherokee Supreme Court ordered a special run-off election to be held September 24, 2011 to settle the office of Principal Chief. Earlier voting in this year's election had been so close that the incumbent Chad Smith and challenger Bill John Baker, longtime Cherokee National Council member, had each twice been declared the winner. On September 11, the Nation sent letters to Freedmen, notifying them of their loss of citizenship and voting rights. The US Department of Housing and Urban Development froze $33 million in funds to the Cherokee Nation while studying the case, pursuant to a stipulation in the 2008 congressional renewal of Self-Determination Act. On September 13, 2011, the Department of the Interior strongly urged the Cherokee Nation to restore voting rights and benefits to descendants of Cherokee Freedmen, including the right to vote in the special election for principal chief, at the risk of violating its constitution and the US Constitution. On September 14, the Cherokee AG recommended reinstatement of the Freedmen, pending a hearing for oral arguments.Steve Olafson, "Cherokee tribe retreats from effort to oust some members"
, Reuters, 15 September 2011, accessed 20 September 2011 On September 20, Judge Henry Kennedy of the US District Court announced the Cherokee Nation, Freedmen plaintiffs and US government had come to an agreement in a preliminary hearing to allow the Freedmen to vote, with voting to continue through October 5 if necessary. On August 30, 2017, the United States District Court for the District of Columbia ruled in favor of the Freedmen descendants and the U.S. Department of the Interior, granting the Freedmen descendants full rights to citizenship in the Cherokee Nation. The Cherokee Nation has accepted this decision, effectively ending the dispute.

In 2021, the Cherokee Nation's Supreme Court ruled to remove the words "by blood" from its constitution and other legal doctrines because " e words, added to the constitution in 2007, have been used to exclude Black people whose ancestors were enslaved by the tribe from obtaining full Cherokee Nation citizenship rights." However, all citizenship is still based on finding an ancestor tied to the Dawes Rolls, which is not without its own controversy apart from blood quantum. Some people of descent are still excluded, like the author Shonda Buchanan who states in her memoir ''Black Indian'' that she has ancestors on Cherokee Rolls that were not the Dawes, so would thus still not be recognized. The changes to the Cherokee Nation constitution are still being challenged after the change, most recently by Robin Mayes who appealed for a new election.

On September 13, 2021, Marilyn Vann became the first Cherokee Freedmen descendant to be confirmed to a Cherokee government commission when she was appointed to the Environmental Protection Commission by Principal Chief Chuck Hoskin Jr..

Same-sex marriage

On June 14, 2004, the Cherokee Nation Tribal Council voted to officially define marriage as a union between a woman and man, thereby excluding same-sex marriage. This decision came in response to an application by a lesbian couple submitted on May 13. The decision kept Cherokee law in line with Oklahoma state law, which in 2004 passed a referendum on a constitutional amendment excluding gay marriage as legal. On December 9, 2016, same-sex marriage was legalized through an opinion by Todd Hembree, the Cherokee Nation's attorney general. In the opinion, Hembree stated that the 2004 law violated the Cherokee Constitution, which requires equal treatment of tribal citizens. He issued the opinion because the director of the tribe's tax commission sought a decision as to whether the tribe could issue a vehicle tag to a same-sex couple married outside the tribe's jurisdiction.

Reservation reconstituted

On July 9, 2020, the United States Supreme Court ruled in a 5–4 decision that the original treaties, and promise of a reservation, with the Five Civilized Tribes (specifically the Muscogee