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Why the Cherokee Election Matters

After multiple recounts and one court-ordered do-over, Bill John Baker has defeated incumbent Chad Smith to become the new Principal Chief of the Cherokee Nation. No doubt citizens of other Indian nations are weary of the Cherokee follies, but a successful Cherokee government is in everybody’s best interests.

The most obvious reason is the ongoing demand of tribal nations for self-determination based on our aboriginal sovereignty. Most of the tribes that have engaged in disenrollment shenanigans are so small they are literally a few extended families who can’t manage to display any loyalty to each other. When they act the fool, they get a pass because of the transparent fiction of their nationhood in the first place.

The Cherokee Nation has been a constitutional republic since 1827. At the time we were removed from our homelands for the benefit of the state of Georgia, we had a much higher literacy rate than Georgia, as close to universal literacy as a nation gets. With all that time to practice, if Cherokees can’t govern themselves, what Indian nation can?

Bill John Baker inherits legal troubles on a level with the economic troubles Barack Obama inherited from George W. Bush. Chad Smith, while a Republican, is no George W. Bush, and the shortcomings of his stewardship were not entirely avoidable.

Tribes with Indian Reorganization Act constitutions and many tribes without find themselves with a provision giving the Bureau of Indian Affairs veto power over constitutional amendments.

The BIA has to its credit shown some flexibility in meddling with tribal constitutions, as when the Traditional Kickapoos found themselves saddled with a crooked government and a non-responsive tribal court. In a non-violent uprising, they effectively reconstituted their tribal government in an act of such unanimity and force of purpose that the BIA fell into line behind the vast majority of tribal citizens. Those schooled in Anglo-American law could understand this as an impromptu constitutional convention.

The Cherokee Nation has also had a constitutional convention that re-designed and modernized tribal government and deleted the BIA’s veto power. The document was written by a broad cross-section of Cherokee citizens and ratified by the Cherokee people. The BIA has yet to relinquish its grip on the throat of Cherokee government by approving the Constitution, which has been our governing document since 1999.

Complicating the BIA decision on the Constitution is a subsequent amendment for which Chad Smith must take blame that disenrolled the Cherokee freedmen. The United States believes that this disenrollment abrogates a treaty with the Cherokee Nation ending hostilities after the Civil War. The Cherokee Nation was not the only Indian nation to practice chattel slavery nor was it the only one to take the wrong side in the Civil War, but not all Indian nations agreed to absorb freedmen.

It is worth noting that the Cherokee Nation did not just agree to absorb “their” freemen, but rather all freedmen residing in the Cherokee Nation or who “returned” to the Cherokee Nation within six months of the treaty. There was no requirement that these people be former Cherokee slaves.

The Cherokee Supreme Court has stated, without analysis of the issues, that we have not abrogated the treaty. The Smith Administration took the position in court filings that even if we did abrogate the treaty, the US did so first and so the treaty was a dead letter.

On one hand, Chad Smith caused this contretemps by attempting to disenroll citizens of the republic he was elected to lead on account of his perceptions of how they might vote.

On the other hand, I must suspect the BIA has not brought the hammer down on the Cherokee Nation partially because, under Smith’s leadership, our tribal enterprises have become the largest single employer in Northeastern Oklahoma and an employer that pays a minimum wage greater than the Oklahoma state minimum wage. The other reason is that the matter is in federal court at this time.

Smith also deserves credit for signing the Independent Press Act of 2000, which assured that the Cherokee Phoenix would become much more than a mere mouthpiece for tribal government.

The primary difference between Smith and Baker has been about the role of Cherokee government. Smith is opposed to per capita payments, as any sane leader of an Indian nation of over 300,000 citizens must be. And he’s right to call casino profits our “seed corn.”

However, his use of the seed corn has at times been less than judicious and his characterization of those who wish to ameliorate the worst poverty in the homelands, at least for the elderly, as “ATM Cherokees” was over the top, and it hurt him politically.

The voters have spoken, twice now, and Bill John Baker is my chief. The Cherokee Nation has a history of leading federal Indian policy, starting with John Marshall’s Cherokee Trilogy. It’s not a role we sought out except in the sense that we took up litigation and lobbying more quickly than some other tribes. Here’s hoping that Chief Baker can move us forward with law written in Tahlequah, not Washington.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He is a columnist for Indian Country Today. He lives in Georgetown, Texas, and can be reached at