I read the recent article titled ”Cherokees double down with Chad Smith” [Vol. 27, Iss. 28] by columnist Steve Russell on www.indiancountry.com with great interest. There are, however, some clarifications I would like to make.
Russell refers to my alleged firing of the entire Marshal Service. This is false. I directed the termination of only one position, that of the director of the Marshal Service. It was through the director’s propaganda that half of the service left. The action of firing the director was entirely within the laws of the Cherokee Nation of Oklahoma Constitution of 1975, under which we were operating at that time.
In regard to how I was seated into the office of principal chief, regardless of either Smith’s or Russell’s opinion on what ”should have” happened, correct constitutional procedure was followed. According to the 1975 Constitution, Article VI, Executive, Section 1: ”Council, and before proceeding to other business, open and publish the same in the presence of a majority of the Council. The person having the highest number of votes, shall be the Principal Chief; but if two (2) or more shall be equal and highest in votes, one of them shall be chosen by a vote of the Council. The manner of determining contested elections shall be as directed by Cherokee law.”
In other words, Cherokee law mandated the determination of the election outcome, regardless of Smith’s appeal.
On a final note, I would like to point out that in the two elections in which Smith won, he did not win in the 14-county area, particularly Cherokee County, which is the capitol of the Cherokee Nation. Although he managed to get into office by the vote of the absentees, I have won within our own territory on both occasions.
The above references are just a sampling of why the term ”constitutional crisis” used to describe my administration is a misnomer. In fact, if the term ”constitutional crisis” should ever be applied in history, it is now. The Cherokee Nation of Oklahoma is operating on a constitution that has not been approved by the BIA or the president of the United States. Because it would not be approved, Smith lobbied for voters to eliminate the need for such approval. In doing so, Smith has gone against the Cherokee Agreement which states in Section 75, ”No act, ordinance, or resolution of the Cherokee national council in any manner affecting the lands of the tribe, or of individuals after allotment, or the moneys or other property of the tribe, or of the citizens thereof, except appropriations for the necessary incidental and salaried expense of the Cherokee government as herein limited, shall be of any validity until approved by the President of the United States.” Neither Smith, nor the voters, can alter this agreement made with the U.S. Congress.
The entire operation of the tribal government, from the addition of at-large councilors to the establishment of a Cherokee Supreme Court, is illegal and putting the tribal government at risk. If there ever was a ”constitutional crisis,” it is now.
Reading the Treaty of 1866, subsequent changes to the Cherokee Nation Constitution of 1839 due to the treaty, several lawsuits in the late 1800s and early 1900s, as well as historical articles on the freedmen, makes one wonder how Chad Smith can lack the knowledge and understanding of the Cherokee history and the Treaty of 1866 to make such a statement of this magnitude? Reading the above mentioned clause from the Cherokee Amendment makes one also wonder how Smith’s unapproved amendment to the unapproved constitution holds any water?
Russell is correct when he admires those who fight for sovereignty, but we must all be realistic and know our legal limits. The sovereignty of the Cherokee Nation is limited by the Cherokee Agreement, and to disregard the limitations Congress has imposed and we have agreed to, is not fighting for sovereignty, but risking what is left of it.
Russell is also correct when he predicts ”we will see Cherokee law bent to look like Oklahoma law,” as these are the laws Cherokee Nation’s justice system is based upon and was modeled after. Chad Smith saw to this, as the tribal planner.
As Cherokees existing in a true ”constitutional crisis,” it is important for all of us to be educated on the issues and not allow ourselves to be taken in by propaganda and half-truths. I appreciate the opportunity to clarify these popular misperceptions.
– Joe Byrd
Tahlequah, Okla.