Although Cherokee Principal Chad Smith has declared the 1999 Cherokee Nation Constitution “in full force and effect,” U.S. Department of Interior officials beg to differ.

James Cason, associate deputy secretary of the interior, wrote Smith on Aug. 30, prior to the Cherokee National Holiday, 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, and advised Cason that the Cherokee Nation was withdrawing its request for approval of the amendment removing the federal government from having oversight over 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 “serve as full and final approval of the question” to let Cherokee voters have final approval or rejection of the amendment removing the requirement for federal approval.

Cason took issue with 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 wants to Cherokee citizens to understand they have sovereign rights as a nation, and responded to Cason’s letter in a statement released by tribe.

“We should keep in mind that Cherokee Nation has the sovereign right to decide our Constitution,” said Smith. “Our highest court and a vote of the Cherokee people made that decision, and it is no one else’s decision to make.”

Smith indicated the letter from Cason does not indicate or cite any federal authority for the BIA to approve the constitution.

“It seems to be a courtesy letter, outlining what we should do if we seek the secretary’s approval,” said Smith. “Since we do not need it, we will not request it, but we are thankful for his courtesy.”

Smith said at no point does the letter question the validity of the new Constitution as the governing document of the Cherokee Nation.

“The Cherokee people have expressed their will, and the nation’s highest court has ruled that the Constitution is valid and effective.”

Cason told Smith it would “helpful to our consideration of such a request [for approval of amendment], if the Nation would address the effect of the Lucy Allen v. Cherokee Nation Tribal Council, JAT 04-09, decision of March 7, 2006, which concluded that ... governing the Nation’s membership, was more restrictive than the Nation’s constitution and therefore unconstitutional. The Allen decision suggests that not all persons who were entitled to membership in the Nation were considered eligible to vote in the 2003 elections, which purported to adopt the constitutional amendments.”

The Allen case set aside a previous JAT opinion against Freedmen, black descendants of former slaves of Cherokee citizens who were enrolled with the Dawes Commission, who were denied citizenship as they were not considered “Cherokee by blood.” The Allen decision held that the registration statute was unconstitutional, and Freedmen were to be included in the wording “by reference to the Dawes Commission Rolls.”

Smith took issue with Cason’s reference to the Allen case.

“Mr. Cason also clearly misses some very clear language in the Supreme Court’s ruling on the constitution, which says the 2003 elections were valid, even considering the Allen case,” said Smith. “The decision in the Constitution case addresses that directly: ‘The elections of May 24, 2003, and July 26, 2003, were had under the law of the Cherokee Nation ...’, ‘The proposed 1999 Constitution of the Cherokee Nation was properly (emphasis added) put to the Cherokee people on July 26, 2003...’, results of the elections have been properly certified by the Cherokee Nation Election Commission ...’ The ruling on the Constitution came after the ruling on the Allen case, but the ruling also said the election that approved the Constitution was proper, even in light of the Allen case.”

Smith does not intend to resubmit the request, saying it’s unnecessary.

“The letter does not reflect a demand, or even request that we resubmit the amendment,” said Smith. “It only advises us what we need to do ‘if’ the Cherokee Nation would like the secretary’s approval.”

David Cornsilk, a Cherokee lay advocate who represented the Freedmen in the case, believes Smith is misleading the citizens.

“Chad and the tribal court are being arrogant in attempting to exercise sovereignty the Curis Act of 1898 and the Five Civilized Tribes Act of 1906 stripped away,” said Cornsilk. “Cherokee sovereignty exists only at the pleasure of Congress.”

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