Tribal government, any government, should be more than a crapshoot. If the structure makes sense, and we have enough honest people to blow the whistle when something goes wrong, we should stumble along without regard to personalities. When tribal governments go wrong, it is usually for the same reason that state or national governments go wrong: checks and balances have failed.
My tribe's constitutional crisis was a case study in the value of checks and balances I wrote about in a previous column. I fear that its current government will be an object lesson in what happens when they are absent.
I first supported the current chief, Chad Smith, when he was a forward-looking, dynamic and well-spoken young lawyer. He was running against one George Bearpaw, the chosen successor of Wilma Mankiller. I was not opposed to Mankiller, but her endorsement was not enough to convince me when I looked at the candidates. Then a shocking thing happened that cemented my support for Smith.
After Smith came in third behind Bearpaw and council member Joe Byrd, Mankiller's chosen candidate was disqualified for reasons not relevant here. Smith filed a lawsuit in tribal court arguing that there should be a runoff between the two highest vote-getters who were not disqualified. The case could have gone either way, but he lost. The effect of this was to elect Joe Byrd with less than 50 percent of the total vote, not completely unlike the U.S. Supreme Court case of Bush v. Gore. Smith was urged not to fold his cards, but to complain to the BIA or carry on litigation in federal court. He declined, and Byrd became chief.
Byrd was a disaster and he led the Cherokee government into a constitutional crisis that was completely unnecessary by firing the entire Cherokee Marshal Service and engineering the impeachment of all the tribal judges with less that a quorum of the tribal council.
My point is not that Byrd was a poor choice. We had no way of knowing that. As far as I knew at the time, he was an all right choice who had beaten a candidate I liked better - but he was my chief.
My point is that Smith refused to disregard Cherokee sovereignty and fight on when he lost in tribal court. He understood that the process was more important than his fate. That understanding was the reason I supported him until the last election.
Which leads me to wonder what the rump session of the tribal council was thinking when they impeached the judges Joe Byrd wanted gone? The judges had done nothing that was even arguable misconduct. The only answer I can discover is the politics of personality. They were on Byrd's side and so Byrd had to be right.
In Smith's last term, the council became split, again on personality lines. A council member was Smith or anti-Smith. As I wrote in the Cherokee Phoenix, this is no way to do any government, tribal or state. Issues have merit or they do not. As I write this, I am still personally cordial with Smith. In grownup politics, you understand that somebody is running for a political office, not to be your brother-in-law. They are not family and you are not stuck with them.
Last election, Cherokees escaped the Smith v. anti-Smith division and fell into a worse problem. Not only was Smith re-elected, the anti-Smiths were swept from the council. This gave Smith the opportunity to stack the courts with sycophants, something I did not think the Chad Smith who started in tribal politics would have done. But it appears to be the case.
The constitutional amendment ousting the Cherokee freedmen, which was the issue on which I split with Smith, could not possibly stand before an independent court because it can't be Cherokee law that a treaty can be abrogated by implication when Cherokees claim the United States cannot abrogate treaties by implication. Unfortunately for the Cherokee Nation, lawyers whose chief qualification was personal loyalty to Smith people the only court that could resolve our problems with Congress without damage to our sovereignty. Now that they are on the bench for 10-year terms and Smith is term-limited, they could prove me wrong but I am not holding my breath to see serious jurisprudence. More likely, we will see Cherokee law bent to look like Oklahoma law, the law in which the current court is comfortable.
So now the Cherokee constitutional republic stands without checks and balances, with all power flowing one direction. For the first time this election, I did not support Smith, but that was over the freedmen issue, not because I had any clue that he had bought into the politics of personality. In his defense, what did we expect when that style of politics had been practiced against him without quarter or common sense from the day he took office?
The United States has just spent seven years without checks and balances. Unless Cherokees are better than ordinary Americans, being without checks and balances will bring corruption and further erosions of sovereignty if not another constitutional crisis. This is not about Chad Smith. Next election, we should not look for a strong man or woman on a white horse to clean up the mess. A sweep by the anti-Smiths would have been just as bad.
I have made two predictions in this column and I invite future scrutiny of those predictions. First, the Cherokee Supreme Court has been stacked with very ordinary minds and they will likely dance with who brung 'em. Second, the lack of checks and balances will lead Chad Smith's last term to be marked with scandal, which may or may not come to light while he is in office. We Cherokees have placed our bets and now we have to take our chances.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and an associate professor of criminal justice at Indiana University - Bloomington. He is a columnist for Indian Country Today.