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African-Native American Genealogy Forum

Re: Some Cherokee historical facts!

You said:
I claim that IF the 1976 Constitution was approved by a popular vote (more yeas than nays, or 60-40 yeas to nays, or some such), then it must be regarded as "legal" irrespective of the amendment or replacement provisions in the 1839 Constitution. People can change or replace their method of government, including their Constitution, any time they want.

My reply:
We are a people of laws. A people with no government have the inherent authority to create a government for themselves. However, a people with an existing government must follow the laws of the government that governs them or throw off tyranny by force. Neither option was followed by Ross Swimmer in the creation of the Cherokee Nation of Oklahoma (CNO). Most of the laws that govern the Five Civilized Tribes (FCT), including the Cherokees, are passed by Congress.

In 1906, in its infinite wisdom, Congress passed the Five Civilized Tribes Act (FCT) which in part states: The governments of the Five Civilized Tribes shall continue in full force and effect until such time as CONGRESS deems otherwise. While it is true that Congress has not chosen to terminate the FCT (Cherokees are gett'n close), Congress has also chosen not to pass any legislation that would change the status of the FCT except for the Oklahoma Indian Welfare Act of 1936 (OIWA) and the Principal Chiefs Act of 1970 (PCA).

Remember, the governments, which were created by their respective tribal constitutions (1839 for the Cherokees), continued in full force and effect UNTIL CONGRESS deems otherwise. And let me point out that while the Constitution of 1839 did not create the Cherokees (actually vice-versa), that Constitution did in fact create the Cherokee Nation government. That means that while sovereignty is a cornerstone of the indigenous governments of the U.S., so too is the plenary authority of Congress to extinguish it.

The Cherokee Nation and its evil twin, the Cherokee Nation of Oklahoma cannot hide behind the general provisions of tribal sovereignty because each tribe's legal history is different. The Cherokee Nation markedly so.

Congress has extinguished the authority of the Cherokee Nation to reconfigure itself at will. It must remain the same according to law until Congress deems otherwise. In other words the FCT were frozen by the 1906 Act. Well, Congress has, in fact, deemed otherwise for those tribes who choose to take advantage of it. Yet the Cherokee Nation and the Seminole Nation remain disabled. WHY? Because neither of those governments, created by their pre-OKLA-statehood constitutions and existing at the pleasure of Congress per the 1906 Act, have taken advantage of the "new day" offered by Congress through the OIWA. So the short answer Mr. Boudinot is that NO, the Cherokees may not reorganize their governments except by the will of Congress. I don't like, you probably don't like it, but its a fact.

So we must ask ourselves, following the path set out by law, just what are the socalled constitutions of the CNO? We must look to law to discern this, because we cannot depend upon those who are now benefiting from it to give us a clear and honest answer.

The 1970 PCA states that the Principal Chief (PC) (an office created by the 1839 Constitution) shall call an election for his/her office. Democracy, albeit in limited form, is restored to the Cherokees after a 70 year forced hiatus. The PC is further authorized to "promulgate rules to carry out the election." Keeping in mind that the Cherokee Nation survives at the pleasure of Congress in accordance with LAW as proscribed by the 1906 FCT Act, then the PC had only Cherokee law, which consisted of unenforceable acts of the National Council predating statehood, the 1839 Constitution, which the 1906 FCT Act continued in full force and effect and the 1970 PCA to rely upon for guidance. The 1906 FCT Act provides no guidance, except for the fact that it says emphatically that the GOVERNMENT (created by the 1839 Constitution) shall continue in full force and effect according to law (the 1839 Constitution and Curtis Act were the only laws governing the operation of the Cherokee Nation).

What then is the government of the Cherokee Nation? It consisted of three co-equal branches provided for in the 1839 Constitution. The Curtis Act disbanded the legislature and prohibited the courts. The only branch that was left undisturbed was the office of Principal Chief (except for how he/she got into office). The democratic process by which the Cherokee people popularly elected their PC, as set out in the 1839 Constitution, was ignored by the 1906 Act and the selection of the PC was taken from the people and given to the U.S. President or his designee (The Secretary of Interior).

In conclusion, the 1839 Constitution has never been legally supplanted by any other governing document. The 1976 Constitution and its progeny the 1999/2003 Constitution are nothing more than the rules provided for by the 1970 PCA. It makes no difference how those rules came to exist. Swimmer could have simply made up rules, which he did in 1974, but he chose to permit the Cherokees to vote on those rules to give them the appearance of a legitimate constitution. I would direct your attention to the landmark Muscogee Creek case styled Harjo v. Kleppe in which the federal courts opined that the 1867 Creek Nation Constitution remained valid despite a replacement constitution created by then Creek PC Claude Cox. The Creeks were ordered by the Court to reconfigure their government in accordance with the 1867 Constitution, incorporating whatever parts of the illegal constitution as the Creek people might choose to include. Thus the whole Creek people (possibly excluding the freedmen) voted on which provisions of each constitution they wanted and whether the tribe would organize in accordance with the OIWA. A new constitution was brought forth in accordance with the provision of the 1867 constitution and the Creek Nation broke free of the shackles imposed by the 1906 FCT Act, the Curtis Act and the 1970 PCA. Again, the Cherokees and Seminoles have not taken advantage of that act.

You asked:
What is the significance of the CN new Constitution being "not legal" in your view? Is the CN government then a criminal enterprise? A fraud? Or simply not legally sanctioned, but otherwise legitimate?

My reply:
The Cherokee Nation does not have a new government, nor does it have a new constitution. The 1839 Constitution and its amendments of 1866 remain unchanged. The socalled 1976 Constitution and its progeny the 1999/2003 constitution are the governing documents of the organization/corporation created by Ross Swimmer to provide the Cherokee people with the ability to vote for the office of PC in accordance with the provisions of the 1970 PCA. The fact that both documents claim to supercede the 1839 Constitution is irrelavent. Those documents serve one purpose and one purpose only, to carry out the popular selection of the PC in accordance with the 1970 PCA. Any other function assigned or attributed to them violates the 1839 Constitution and the sovereign authority of the Cherokee people to live under our own laws.

In conclusion, the CNO is both legitimate and a fraud. It is the legitimate vehicle by which the Cherokee people vote for the office of PC. It is a fraud when it or its officers and the PC claim that it is the official constitution of the Cherokee Nation. It is not. It is the official constitution of the corporation known as the Cherokee Nation of Oklahoma.

You asked:
Also, the U.S. apparently still deals with the CN only in historical issues concerning all Cherokees/Keetoowahs. So it seems to me that all the money recovered from the U.S., or supplied by the U.S., was and is controlled by the CN, and none by the Keetoowahs. Is this true?

My reply:
Wilma Mankiller was able to use the services of the late Mike Synar, while he served in Congress, to get all of the funds to be expended on behalf of the Cherokee people to be directed solely to the Cherokee Nation of Oklahoma. Since that time Congress has come to its senses and the United Keetoowah Band (UKB) is now eligible for some federal funds, ie housing, roads etc.

The United States, at this time, recognizes the Cherokee Nation of Oklahoma as a 3rd class Indian descendancy organization having some of the attributes of tribal sovereignty, but limited by acts of Congress, ie the Curtis Act, 1906 FCT Act and the 1970 PCA. It is clear that the U.S. gives great deference to the situation of the Creeks and Choctaws who both have organized under the provisions of the OIWA and have, for now, successfully excluded their freedmen citizens. It is also clear that the U.S. treats the Cherokee Nation and Seminole Nation differently. WHY? Because both tribes are FROZEN in time. It may not appear so because of all of the activity going on with both tribes. However, like someone in a coma who sometimes laughs, has eye movement and unexplained tremors, the authentic governments of the Seminoles and Cherokees, created by their pre-statehood constitutions, remain in a state of suspended animation while the "rules" created by their chiefs masquerades as the authentic government. Its a lot like the movie "The Man in the Iron Mask." Watch it and you will understand.

18 Dec 2002 :: 14 Nov 2008
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