Manataka American Indian Council
Cherokee Nation Defined...
An Opinion by David Cornsilk
This article was recently taken from a discussion board and sent to us by TN Indian Affairs mailing list (firstname.lastname@example.org) www.tnind.net/list/ .
This Person said CNO is the Cherokee Nation and they should be left alone"
And David Cornsilk responded:
I do not think He intentionally distorts the truth about the CNO, he, like so many Cherokees, has been mislead. He and all of us, have been fed a gruel masquerading as historical fact about the CNO. The leadership of the CNO have depended upon the passage of time, the lack of information and the draw of the dominant culture upon our lives to give them free reign to control the
affairs of the Cherokee people from an illegal perch.
Now for some facts:
1. The United States Congress passed the Dawes Act in the 1890s to dissolve the governments of the Five Civilized Tribes.
Some tribes resisted, particularly the Cherokee Nation. The Dawes Act stated specifically that its purpose was to divide up the
tribal assets and terminate the existence of the governments
of the Five Civilized Tribes.
2. The United States Congress passed the Curtis Act in 1898 to force the resistant tribes to agree to the allotment of their lands
and dissolution of their governments. The Cherokee Nation agreed in 1901 and the end result was the allotment of tribal lands
and assets through the creation of the Dawes Roll.
Analysis: In the latter part of the 19th Century, it was the intention of Congress to destroy the governments of the Five Civilized Tribes. All lands and moneys of the Nations were to be divided among the numerous citizens and the tribes would be no more. Everyone thought the Final Roll and the division of the assets was the end. It wasn't.
3. In 1906, Congress was informed by the Dawes Commission that despite their best efforts, parcels of land remained to be allotted or sold and they could not finish their work if the governments of the Five Civilized Tribes terminated in 1906.
4. The United States Congress passed the Five Civilized Tribes Act of 1906 which provided for the continuation of the governments of the Five Tribes in accordance with law and providing that the President of the United States or his designee could appoint a "chief" to carry out the unfinished business of their respective nations.
Analysis: The lands of the tribe yet to sold or allotted were valuable assets that could not just be "taken" from the Indian people. The 1906 Five Tribes Act provided for only three things:
a. The continued existence of the governments of the Five Tribes until Congress deemed otherwise.
b. Those governments would be controlled in their actions in accordance with existing law. Since Oklahoma was not a state yet
and state law doesn't apply anyway, the only laws existing at that time were federal laws, ie the Dawes Act and the Curtis Act
and Cherokee law, ie the 1839 Constitution.
c. The U.S. President would have the authority to appoint the principal officer of the Five Tribes. The governments of the Five
Civilized Tribes were saved from oblivion by the 1906 FTA. Without it, there would be no Cherokee Nation today. Yes, there
is a Cherokee Nation today, more on that later.
5. The U.S. Congress passed the Indian Reorganization Act (IRA) in 1934
to restore Indian governments and provide for self-governance. However, the act
specifically excluded the tribes in Oklahoma.
6. The U.S. Congress passed the Oklahoma Indian Welfare Act (OIWA) in 1936 to restore self-governance to Indian tribes in Oklahoma. This Act provided for the reorganization of tribal governments and repealed any disability Congress had imposed from past legislation, but only for tribes who reorganized under the authority of the OIWA.
Analysis: It was the intent of Congress to right an historic wrong it had committed against the natives of the this country. In so doing, it provided a mechanism by which tribes might be restored to their sovereignty and self-governance. Any tribe could reorganize and four of the Five Civilized Tribes have done so. The only tribe not taking advantage of the provisions of the OIWA is the Cherokee Nation.
7. Thophlocco, Kialagee and Alabama/Quarsarte Tribal Towns are federally recognized local governments governing under charters obtained through the Oklahoma Indian Welfare Act.
8. The United Keetoowah Band is a federally recognized local government
governing under a charter obtained through the Oklahoma Indian Welfare Act.
Analysis: Nothing in the recognition of either the tribal towns or the United Keetowah Band of Cherokee (UKB) affects or hinders the rights of individuals as citizens of their respective larger nations. In other words, UKB is an inseparable parts of the Cherokee Nation (notice I did not say CNO). And the Creek Tribal Towns are inseparable parts of the Creek Nation. This is so, even if they prohibit their members from 'enrolling' in the greater part of the whole nation. It is the policy of the BIA and infettered by Congress, that the United States, through the BIA, may develop government to government relationships with local governments within a greater tribe. The Creek Nation has provided in law that the government to government relationship between the Creek Nation and the Tribal Towns is approved. The adversarial relationship developed between the Cherokee Nation of Oklahoma and the UKB does not change the relationship of the individual citizens to each other. The Earl Boyd Pierce letter and the actual participation of the UKB in Cherokee Nation affairs prior to 1976, all point to the fact that the UKB and the Cherokee Nation are connected.
Since the creation of the CNO in 1976, the Cherokee Nation itself has remained
silent regarding it relationship with the UKB or through its sole embodiment in
the office of the Principal Chief has furthered the antagony.
9. The Creek Nation is a federally recognized government governing under a charter obtained thorough the Oklahoma Indian Welfare Act.
10. The Cherokee Nation is not a federally recognized government because
it has not reorganized under the authority of the Oklahoma Indian Welfare Act.
The CNO is recognized by the BIA for the purpose of social services delivery.
Any further recognition of the CNO as a sovereign entity is at risk of being
overturned in the federal courts.
A group of Cherokees, headed by then Principal Chief Ross O. Swimmer, developed
what they called a "constitution" in 1976. Without authorization in the 1970
Five Tribes Act and definitely not under the authority of the 1839 Constitution,
Swimmer did one of two things:
a. He created an illegal institution known as the Cherokee Nation of Oklahoma (CNO) or,
b. The CNO is nothing more than promulgated 'rules' to carry out the popular selection of the principal officer of the Cherokee Nation as provided for in the Act and its actions as a sovereign polity are an illegitimate usurping of the authority of the silent Cherokee Nation.
Either way, the 1976 Constitution, in spite of its language to the contrary, could not superseded the 1839 Constitution, as there was no law which provided for it. This means that the Cherokee Nation, as it existed in law between 1906 and 1976, continued unfettered except by limitation imposed by the Curtis Act and the 1970 FTA. After 1976, the Cherokee Nation became the silent twin of the CNO (man in the iron mask). While the sole embodiment of the Cherokee Nation reposes in the office of the Principal Chief, he is aided in his work by a corporation he created which goes by the name Cherokee Nation of Oklahoma. We know this is so because of the Court case of Harjo v. Kleppe in which the Creek citizens demanded reorganization of their government. The Harjo Court found that because of the limitation of the Curtis Act, 1906 and 1970 Five Tribes Act, the sole embodiment of the
Creek Nation rested in the office of the Principal Chief. The so-called constitution created by then Creek Chief Claude Cox did not and could not replace the original Creek Constitution of 1867 and was, therefore a nullity. The situation of the Cherokee Nation is the same. Nothing has occurred in the law which removes the disabilities imposed upon the Cherokee Nation by the Curtis Act.
The rights of the Creek Nation were restored in 1979 when that tribe reorganized
under the authority of the OIWA and all disabilities imposed upon it by
the Curtis Act of 1898 were superseded. This fact is spelled out in detail in
the federal court case of Creek Nation vs. Hodel in which the Court ruled that
the Oklahoma Indian Welfare Act had repealed the destructive effect of the
Curtis Act for those tribe organized under it. The Creek Nation is organized
under the OIWA, the Cherokee Nation is not. The Cherokee Nation, as yet
unorganized, remains under the disabling cloud of the Curtis Act which
dismantled its legislature, took away the authority of its tribal courts and
made Cherokee law unenforceable.
11. The Five Tribes Act of 1970 provided for the "popular selection" of the principal officers of the Five Civilized Tribes. Previous to that time, the principal officers were appointed by the president. Four of the Five tribes, Cherokees, Creeks, Chickasaws and Choctaws moved quickly to hold elections.
The Seminoles had continued to popularly elect their principal officers after 1906 despite the language of the 1906 Five Tribes Act delegating the appointment to the U.S. president. While the BIA refused to recognize their elections, they worked with the elected chief so long as he did what they wanted. When he refused, they simply appointed someone to do their bidding.
12. The Five Tribes Act of 1970 provided for the promulgation of rules to carry out the "selection."
Analysis: The 1970 Five Tribes Act repealed that portion of the 1906 Five Tribes Act relative only to the appointment of the principal officers of the Five Civilized Tribes by the president. Nothing in the Act did or could be construed to repeal any of the disabilities imposed by the Curtis Act of 1898. In order for a federal law (relative to Indians) to do something, it must be specific and emphatic. The Courts of the United States have ruled that Congress must have its INTENT apparent in the wording of the law, to take away or restore the rights of an Indian tribe. OIWA is emphatic that its liberal provisions apply only to tribes organized under it. All others are excluded. The reason this language is there is to protect the rights of Indians in Oklahoma who did not want to retribalize, particularly mixed blooded Cherokees and some Creeks who had expressed their opposition to any bill which would provide for a restoration of the governments of the Five Civilized Tribes. The full bloods, however, wanted to reorganize and did so through the tribal towns and the UKB.
So in closing, what do we have here? We have four of the Five Civilized Tribes organized under a law which removes all disabilities previously imposed by Congress. We have three Creek Tribal Towns organized under that same act as local governments who are working with the larger Creek Nation to assist their members. We have a group of Cherokees (UKB) organized under that same act, but who have been placed in an adversarial relationship with the corporate entity known as CNO and the sole embodiment of the Cherokee Nation, the Principal Chief, refuses to work with them. We have the Cherokee
Nation catapulted forward in time by the 1906 FTA. We have the OIWA passed to restore tribal sovereignty for those tribe organized under it. We have the 1970 FTA providing for the popular selection of the principal officers of the Five Tribes as they existed under the law and repealing the appointment of the chief by the president and allowing the promulgation of rules to carry out the selection. We have the chief of the Creek Nation creating a constitution later found to be bogus and the courts restored the old Creek Constitution and allowed the Creeks to reorganize under OIWA. We have a Cherokee chief, Swimmer, operating under a bogus constitution that by his own admission created nothing more than a corporation that would assist him in governing. We have a federal court case (Harjo) which states emphatically that the sole embodiment of the Creek Nation was the office of the Principal Chief. All things being equal, and they are, the same is true for the office of the Cherokee Principal Chief as well. We have a court (Hodel) case which says the Creeks, by reorganizing under OIWA have had all disabilities removed. And we have the CNO officials laying claim to that same court case trying to give legitimacy to their court systems when there is not a shred of evidence that it was the intent of Congress to remove the Curtis Act disabilities unless a tribe took steps to reorganize under OIWA and the Harjo court gave no indication that it meant by its ruling that a tribe not organized under OIWA could claim the benefit of its provisions.
Therefore, what we have in our tribe, the Cherokees, are two entities, one, what is left of the Cherokee Nation and represented solely by the office of the Principal Chief as popularly selected by the Cherokee people every four years. The second entity is the Cherokee Nation of Oklahoma, a corporation created by Swimmer to first carry out the popular selection of the principal chief and then to assist him in governing. The Cherokee Nation is the office of the Principal Chief in accordance with law. The CNO is the chief's corporate partner. Wrap your mind around the fact that there are two entities, Cherokee Nation and the CNO.
So why such an adversarial relationship between the UKB and the CNO?
First, the UKB knows the CNO is not the legitimate government of the Cherokee Nation. Second, the Principal Chief (Chad), acting as the sole embodiment of the Cherokee Nation, refuses to allow the UKB to interact in a positive manner and has refused to permit the Cherokee Nation to reogranize under the OIWA.
I hope this bit of disorganized information helps everyone to understand the situation among the Cherokees and why it is so important for the Cherokee people to recognize the unlawful governance practiced by the CNO over the Cherokee people and against the UKB, the Delawares and the Freedmen.
By David Cornsilk
Submitted by Gray Beard Vinson
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