Monday, June 25, 2007

Smith reelected Cherokee Principal Chief; BIA refuses to accept constitutional amendment resulting in disenfranchisement of Cherokees has the following useful posts reporting the results in the Cherokee election for Principal Chief and including links to BIA correspondence and judicial documents relating to recent constitutional amendments. Chief Chad Smith was reelected with about 59% of the vote over 41% for incumbent (and Cherokee Justice and University of Kansas law professor) Stacy Leeds. The 2007 constitutional amendment requiring Cherokee blood for membership was apparently an important issue in the race; although both candidates supported the Cherokee voters right to define their membership, Justice Leeds authored the decision declaring disenfranchisement illegal under an earlier version of the Cherokee constitution. Under a temporary restraining order issued by the federal district court, Cherokee freedmen were to be allowed to vote in the election.

Equally interesting are the recent decisions of the BIA regarding whether to approve the constitutional amendments. After the Cherokee people voted to remove the secretarial approval requirement from its constitution, the BIA originally refused to accept the amendments because the freedmen citizens had not been permitted to vote. According to the district court in Vann v. Kempthorne, however, then Assistant Secretary for Indian Affairs Neal McCaleb wrote to Chief Smith that, "I did not sign the March 15 letter and did not authorize the use of the autopen to engross my signature on the letter. The letter is of no validity or effect and should be disregarded." Id. The letter went on to say that the BIA had "no objection to the referendum as proposed" and that McCaleb was "prepared to approve the amendment deleting the requirement for Federal approval of future amendments." Id. at 2. The district court took this correspondence as evidence of final agency action approving the amendment, authorizing the Nation to amend its constitutional citizenship requirements without BIA approval.

In a May 2007 letter, however, the BIA rejected that finding, holding that the constitutional amendment was not approved, and refusing to approve the amendment because the Cherokee Freedmen were not permitted to vote in the referendum. On June 22, the BIA clarified that despite this decision, it would not withhold funding from the Nation until directed to do so by legislation or court order. Representative Maxine Waters has proposed legislation to do just that. The fact that Representative Eni Faleomavaega of American Samoa, and a consistent supporter of tribal sovereignty, has joined her in the legislation shows how this issue is dividing supporters of tribal sovereignty.

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