TAHLEQUAH, Okla. - In 1998 a civil lawsuit was filed by the Cherokee Nation against Bruce Babbitt, Kevin Gover and the Delaware Tribe of Indians.
In Cherokee Nation vs. Bruce Babbitt, Kevin Gover, and the Delaware Tribe of Indians 1:96CV02284 (TFH), the Cherokee Nation maintained the 1996 federal recognition of the Delaware Tribe was done illegally. The nation held that the Delaware were nothing more than a splinter group absorbed in 1867 by the larger Cherokee Nation and demanded that the federal government reverse a decision regarding the tribe's federal recognition.
It appeared that the suit brought by former Cherokee Principal Chief Joe Byrd on behalf of the nation might be dismissed when Chad Smith was elected to head the nation. Smith did in fact offer to drop the suit, "without prejudice," meaning that if the tribal council saw fit, it could re-file the case.
The Delaware wanted the case dropped "with prejudice," meaning it could never again be brought to court. The single letters "out" are keeping the tribes from reaching an amicable agreement.
Since there was no agreement on how the suit could be dropped, the tribes attempted to agree on jurisdictional boundaries. Those also appear to be at a standstill, although both Smith and Delaware Chief Dee Ketchum say they want to come to some sort of agreement. A joint committee is deadlocked on several issues and no new meetings between the parties are scheduled.
At the center of the dispute is jurisdiction of Washington County in Oklahoma. The Delaware maintain that in the early part of the last century, the Delaware were given a 10- by 30-mile area with "D" allotments specifically given to members of the Delaware Tribe.
Ketchum emphatically denies the Delaware Nation ever consented to become a part of the Cherokee Nation after its removal to Indian Territory. He said the fact that land in question was specifically designated "D" allotments proves the Delaware do indeed have a land base in Oklahoma which should be under Delaware control, not the control of the Cherokee Nation.
"The Delaware people never chose to be citizens of the Cherokee Tribe. We bought the same rights and privileges as other Cherokee members," Ketchum said. "The Delaware Treaty of 1866 promised the Delaware a new reservation of its own in Indian Territory.
"When the Delawares were moved to Oklahoma, two payments were made (by the Delaware) to the Cherokee Nation. The first payment of $279,000 was made into the Cherokee National Fund, providing the Delawares with full privileges and rights in the Cherokee Nation. This payment was much like buying stock in a corporation.
"The second payment of $157,000 was to pay for a land base so the Delaware Tribe could continue to function as a tribe, with our own tribal government, which we have done since the beginning of time without interruption."
Smith maintains the Delaware became citizens of the Cherokee Nation via an 1867 treaty and although the Cherokee Nation hasn't and won't make any effort to terminate the Delaware language, culture and identity, the Delaware are nonetheless members of the larger Cherokee Nation. The Cherokee have taken the stand that they will not give up any more land within their 14-county jurisdictional area which includes Washington County.
Smith points to the recent efforts by the Cherokee to assist the Loyal Shawnee to obtain federal recognition as proof that the Cherokee Nation is willing to come to some sort of settlement with the Delaware instead of seeking its termination.
"We have demonstrated our desire to work with tribes through the recent Shawnee effort," Smith said. "We were a champion of the Shawnee separation bill. We have offered the same deal to the Delaware tribe and they have refused it."
One of the conditions for the recent Loyal Shawnee recognition was that the Shawnee would not seek jurisdiction over land within the 14-counties of the Cherokee Nation.
In a December 2000 editorial written for the Cherokee Phoenix and Indian Advocate in answer to a Delaware Tribe press release, Smith denied he was seeking termination of the Delaware or that he reneged on his campaign promise to drop the lawsuit. He also said the Cherokee Nation would not give up land to the Delawares within its jurisdiction.
"... the vocal leadership of the Delawares insists on carving out a separate Delaware territory from inside the Cherokee Nation's jurisdictional boundaries. They want to take land that has been within the Cherokee Nation jurisdiction since our removal from our eastern homeland in 1839 and claim it as theirs. This is what we find difficult, and is the source of the disagreement between the Cherokee Nation and the Delawares" Smith wrote.
"Over the years, many bogus 'Indian' groups, and another Indian tribe, have attacked the sovereignty of the Cherokee Nation and sought to assert governmental authority within our jurisdictional area. Each time, that group or tribe has failed."
Ketchum bristled about the "bogus 'Indian' groups" statement and wrote a letter to the editor. "If (Smith) is inferring that the Delaware Tribe, the Grandfather Tribe is bogus, I as well as the Delaware people find this offensive and should be offered an apology," Ketchum wrote. "Neither the U.S. government nor Chief Smith has the ability to take our language, culture and identity. So Smith's offer to allow the Delawares to keep our language and culture is insulting at best."
Smith said he still hopes some out-of-court resolution can be found. "I would like to see the Cherokees and Delawares sit down and come to a reasonable resolution," Smith said in a recent interview. "We would like to assist them in their autonomy, but we must also preserve our treaty rights and sovereignty."
Ketchum also said he wants to see some sort of settlement reached, but is as adamant as Smith when it comes to his beliefs about the Delaware land base he claims within Washington County. "Here we have Smith saying 'We don't have a problem with your being a tribe, just be one some place else.' That doesn't set too well with me."
A federal court decision has been on hold pending mediation between the parties, but since the breakdown of discussions it is unclear at this time if the case will be continued or if the parties will be ordered to enter into yet another session of negotiations.