Tribal Government, Elections, and the Siren Song of Equality
Elections are coming in the Cherokee Nation. I can tell because invitations to hog fries are hitting my email, and silly season in the Nation is the only time anybody thinks I’ll drive 430 miles to bust my diet.
In an election year, they say, no pig is safe in the Cherokee Nation. I used to credit that bon mot to Cherokee storyteller Gayle Ross, because that’s where I got it. I used it once when she was in the audience and she came up afterwards and told me she got it from a cartoon in the Cherokee Phoenix. The hog fry is, regardless of who coined the wisecrack, a customary way to run a political campaign in the Cherokee Nation.
I was having a Facebook conversation with one of the candidates for an At Large tribal council seat, a person running to represent me because I live in Texas rather than northeastern Oklahoma. Parts of the conversation bear repeating because they apply to tribal governments generally, or so I think.
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He began:
All Cherokee Citizens are equal; right? We assume that ALL of us are equal in importance and have the same civil rights and benefits, but let's not forget there are in fact several categories of Cherokee citizenship. I say these categories serve to divide us rather than unite us.
He’s right about the categories. He may be right about the categories tending to divide us, but that does not have to be the case.
The division that is flaming obvious to anyone is among three federally-recognized bands: the Eastern Band, the United Keetoowah Band, and the Cherokee Nation of Oklahoma. Whether that last one is a “band” is a matter of political dispute, but no serious person would question that the first two are Cherokee, so the third (where I hold citizenship) is a band in the sense that it is less than the entire Cherokee Nation.
He goes on to point out that we divide ourselves by blood quantum, residents of our stolen reservation v. outlanders, traditional v. contemporary, and more or less comfortable in the dominant culture.
He adds, correctly, some Delawares and Shawnees hold Cherokee Nation citizenship by entitlement, as do the Freedmen, descendants of Cherokee slaves. The Cherokee Supreme Court recently held that the citizenship of the Delawares and Shawnees is weak tea, because they may be excluded from running for tribal offices. The efforts of Cherokees in high tribal government places to oppress the Freedmen are legendary, but this particular legend is true.
He points out that the fundamental difference between those living on our former reservation and Cherokee outlanders is not very persuasive when one Cherokee might live on one side of the street in a suburb of Tulsa that is part of the homelands and a fellow citizen who lives across the street might be defined as an outlander. Geographical lines on a map are always arbitrary but the arbitrariness does not do away with the need for lines.
The candidate accuses tribal higher ups of taking political advantage of the Freedman controversy by telling the Freedmen supporters one thing and the opponents something different.
My turn came to answer.
The divisions pointed out are real. Many of them are not accidental, starting with the fact that the idea of splitting the Cherokee Nation into three bands was not a Cherokee idea.
However, it's up to the tribal government what to make of the divisions.
One possible response is to just paper them over and avert our eyes. We are predisposed to that as Cherokees because we were traditionally egalitarian, allocating social roles by competence more than by status. We are predisposed to that as Americans because the values embodied in the equal protection clause of the Fourteenth Amendment have seeped into the mainstream ever since Brown v. Board of Education.
Government, by definition, makes collective decisions regarding individual behavior. When somebody says, "There oughta be a law!" most knees jerk criminal law. But there are other ways government can influence individual behavior.
The U.S. government is limited by the Fourteenth Amendment, which guarantees equal protection of the law. The colonial government can provide for a civil cause of action or it can use the Tax Code rather than the Penal Code. That is, tax behavior it wishes to discourage and offer tax exemptions or credits to behavior it wishes to encourage.
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Tribal governments, not being bound by the Fourteenth Amendment, are limited only by the creativity of the tribal council and the collective sense of fairness among tribal citizens. The Indian Civil Rights Act is no effective limitation because nobody is going to be locked up and the only remedy for an ICRA violation is habeas corpus.
I take everything above to be fact. What follows is opinion, and only my opinion. I am an outlier and I know it. This is why I will not run to represent At Large Cherokees. My opinions are not typical of voter opinions and making up more pleasing opinions is off the table because I am not Donald Trump.
I think Indian tribal governments should act to encourage:
- Living in an Indian community. (Not necessarily within traditional territories, but surrounded by other tribal citizens. For Cherokees, Oklahoma or North Carolina would not be the only places, but it's easier to think of Cherokees living in an Indian community in terms of Oklahoma or North Carolina.)
- Using the indigenous language.
- Thinking of and representing tribal citizenship to be political rather than racial.
- Making political equal cultural to the degree it's possible.
- Economic independence, meaning everybody old enough but not too old pays taxes or performs community service. No paper Indians and no lip service Indians allowed.
The way I arrive at the above list of things I think our governments should value and encourage is to ask questions:
- Why should tribal governments, understood as separate from federal and state governments, exist?
- How long should tribal governments exist?
- Does the U.S. government owe some kind of support to the Indian nations in perpetuity? If so, why? Remember, you need to answer why to non-Indians allocating their tax dollars. Guilt has a limited shelf life.
I answer that the purpose of tribal sovereignty is to protect unique cultures which ought not go out of existence for the same reason we should not allow a species to go extinct. That is, human cultural diversity is an independent value just like biological diversity is. It is bad timing to make this argument when the newly elected U.S. government is hostile to the Endangered Species Act, but the bad timing does not make the diversity argument less true.
Sovereignty cannot be exercised from a condition of dependency. So not only do we have to justify every dime we get from the U.S. government, we have to have a plan B in case the money dries up. The current administration is as hostile to tribal sovereignty as it is to environmental laws, and we whistle past the graveyard if we rely on being subsidized by a government that wants us to disappear.
It should be up to the tribal council to craft tribal laws that create advantages for tribal citizens who pursue the above values and disadvantages for tribal citizens who do not. This should go without saying but in light of the disenrollment plague it’s better to be explicit that any disadvantage written into tribal laws had better stop well short of disenrollment.
In recent times, we’ve seen tribal governments disenroll dead people for the purpose of disenrolling their descendants. Their duty ought to be obstructing efforts by the U.S. to make us disappear rather than aiding and abetting those efforts.
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All of the behaviors on the list I made above have the purpose of obstructing efforts to make us disappear. To encourage those behaviors, tribal governments might limit voting to those who live in Indian communities or limit the kinds of questions on which outlanders can vote.
Office holding might be limited to those who can conduct business in the indigenous language. Tribal taxes could be crafted to hit outlanders harder than residents of the homelands.
All of these nudges by tribal government would mean that we enjoy equality before the law only ab initio. That is, we are all born equal.
We sort ourselves into categories defined by our behavior. Once we sort ourselves by how we behave, to say we are all still equal for purposes of voting or holding office or how much we pay in taxes is to recognize no values other than equality.
It is those values other than equality that will maintain our survival in the face of the colonial expectation so eloquently expressed by President Andrew Jackson:
Established in the midst of another and a superior race, and without appreciating the causes of their inferiority or seeking to control them, they must necessarily yield to the force of circumstances and ere long disappear.
We avoid disappearance, if at all, by maintaining our differences from the colonists. Those differences reside in Indian communities rather than in blood and are best expressed in Indian languages. If we do not treasure those things that distinguish Indian nations from their colonial would-be masters, then why should anybody else?
Steve Russell, Cherokee Nation of Oklahoma, is a retired Texas trial court judge and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.
