The Cherokee Nation has received notification that the Bureau of Indian Affairs is denying approval for a constitutional amendment Cherokee voters approved four years ago to strip away federal authority.

The amendment removed the federal government from the constitutional approval process, and tribal courts subsequently ruled the Cherokee Nation could rescind the approval authority it had granted the federal government.

In a letter dated Monday to Principal Chief Chad Smith, Assistant Interior Secretary Carl J. Artmann wrote that after a thorough analysis, Interior Department officials have decided to reject a 2003 amendment to the Cherokee constitution nullifying the requirement that the Interior Secretary approve all amendments.

“I do not make the decision to disapprove the 2003 amendment lightly,’’ Artmann wrote in the letter. “I recognize the Cherokee Nation as a sovereign nation capable of managing its government without oversight of the federal government. I also recognize that the United States 1866 treatment with the Cherokee Nation was somewhat unusual in its requirement that the Cherokee Nation recognize the rights of the individual freedmen in exchange for amnesty and the continuation of the government-to-government relationship between the United States and the [Cherokee] Nation.”

Artmann expressed concern that approving the 2003 amendment now “would be used by some as a validation or evidence of legitimacy of the Cherokee Nation’s removal of its Freedmen members from the tribe in apparent violation of the 1866 treaty.”

Despite information being released Monday to media outlets regarding the decision, tribal councilors and Todd Hembree, council attorney, had yet to see documentation from the BIA.

“This was released to the media before any of us received a copy,” said Councilor Linda Hughes-O’Leary. “Our tribal attorney didn’t even know about it until the Attorney General Diane Hammons told him. I learned about it on Channel 8’s Web site!”

According to the tribe’s press release, the administration feels the BIA letter has “little practical effect, as tribal courts have ordered the Cherokee Nation to implement the amendment, and it has been effective for nearly a year.”

Considering 70 percent of the tribe’s $380 million budget is comprised of federal funding, O’Leary believes the legislative branch charged with allocating funding should have been informed long before the media, as the fed’s decision could affect the overall budget.

“You have to ask yourself, at what point does the administration’s actions constitute willful neglect?” said O’Leary. “I’m trying to reach Todd [Hembree] right now to ask him that very question.”

James Cason, associate deputy secretary of the interior, wrote Smith on Aug. 30, 2006, indicating “the Cherokee Nation’s constitution requires secretarial approval of amendments, and neither the secretary nor any authorized representative of the secretary has approved the amendment.”

According to Cason’s letter, Smith wrote the U.S. Department of Interior June 9, 2006, and advised Cason the Cherokee Nation was withdrawing its request for approval of the amendment removing the federal government from oversight on the Cherokee Constitution and its amendments.

“Your letter indicated that you consider the approval of the amendment moot in light of the June 7, 2006, decision by the Cherokee Nation’s Judicial Appeals Tribunal in the matter styled ‘In Re: The Status and Implementation of the 1999 Constitution of the Cherokee Nation,’ JAT 05-04,” wrote Cason to Smith.

The JAT decision was based on a letter from Neal A. McCaleb, assistant secretary to the BIA. The letter states McCaleb intended the letter to “serve as full and final approval of the question” to let Cherokee voters have final approval or rejection of the amendment.

Cason took issue with the aim of McCaleb’s letter: “While we can appreciate Mr. McCaleb clarifying what he intended, his stated intention is not an adequate substitution for the necessary action of actual approval. As an elected tribal official, I am sure that you can appreciate the difficulties created when a former official attempts to bind his successor by stating what he had intended to do when he was in office. The Cherokee Nation’s constitution requires secretarial approval of amendments and neither the secretary nor any authorized representative of the secretary has approved the amendment.”

Smith believes the tribe’s Supreme Court ruling trumps any BIA authority.

“The Cherokee Nation Supreme Court spoke clearly that the BIA has no authority to approve the Cherokee Nation Constitution,” said Smith in a press release. “If the BIA has its way, the Cherokee Nation cannot even amend our own constitution. This is contrary to federal policy and court decisions handed down time after time over the last 30 years. It is insulting and wrong, and we will take all the appropriate steps to defend our nationhood and right to self-determination ... As Cherokee people, we must stand behind the order of our own Supreme Court.”

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