A Cherokee Nation Tribal Council member and a well-known Cherokee genealogist clarified their stance Monday on a recent CN Supreme Court ruling that struck “by blood” language from the tribe’s constitution as a condition for citizenship.
Meanwhile, Attorney General Sara Hill said the issue is being mischaracterized and that the tribe is bound by a treaty provision to adhere to a U.S. federal court’s ruling.
The CN Supreme Court issued its decision Feb. 22, in response to a 2017 federal court case, Cherokee Nation v. Nash, in which the court determined Freedmen – descendants of Black slaves of Cherokees – have full rights as citizens, based on the Treaty of 1866. However, District 3 Tribal Councilor Wes Nofire and David Cornsilk, a former tribal employee, argue the tribe’s Supreme Court justices, attorney general, and administration usurped the process of amending the constitution.
Nofire said the administration used an outside nation’s court to undermine Cherokee citizens.
“I think my statements throughout the week have been pretty consistent in that this is a constitutional crisis issue, in which the leader doesn’t understand who has the supreme authority to change the constitution,” said Nofire. “That belongs to the people. Whenever you have that mindset of a leader who believes he has the supreme control, that’s a very dark path our government can go down.”
While the federal court ruled descendants of Freedmen have the same rights as Cherokee citizens per the Treaty of 1866, Nofire said the issue has more to do with the process by which the law was changed, rather than whether Freedmen should be allowed citizenship.
“There is no denying that they’re having citizenship right now. That’s not what this is about. It’s about the whole constitutional issue being struck down – that ‘by blood’ now has no reference in our constitution,” he said.
Cornsilk said he believes Freedmen are, indeed, entitled to citizenship and equal rights, and supports amending the constitution to remove the “by blood” language. But he says he "can’t support it being done illegally."
“Our court, chief and council can only act according to language in the constitution,” said Cornsilk. “They can’t just pull things out of thin air. Certainly the federal court can tell the Cherokees we must enroll and give equality to the Freedmen, but what the federal court can’t do is tell how to do that; we must consult the constitution.”
Cornsilk said per the CN constitution, the court has no avenue to amend the CN constitution, but the Tribal Council can put amendments on a ballot to be voted on by citizens, who can accept or reject amendments.
“The justices of our Supreme Court swore an oath to obey and defend the constitution. Our AG swears the same oath and so does our chief and council. By amending the constitution without a proper vote of the Cherokee people, including Freedmen, all of these officials have committed impeachable offenses," Cornsilk said.
Hill said she thinks such claims – like committing acts of misconduct – are political accusations made for political purposes, and that the problem is being misrepresented to give citizens a misleading account of the facts.
“I think it is fundamentally dishonest to tell our citizens, ‘Well, you can vote again on this and decide that the Freedmen can’t be citizens again,’” she said. “We’ve already been down this road and we’ve already been through litigation.”
The tribe began enrolling Cherokee Freedmen as citizens in 2004, after the Judicial Appeals Tribunal ruled they should be afforded citizenship. In 2007, an amendment to the CN Constitution stated Freedmen could no loner be citizens. That would become the Nash case, in which the Tribal Council voted 17-0 to waive its immunity from suit and ask the federal court to interpret the Treaty of 1866 and whether Freedmen have rights under it.
Hill said many arguments being made by Nofire and Cornsilk were already argued by the tribe in the Nash case – that the tribe could strip Freedmen from citizenship through an amendment – and those arguments failed. She said that because the tribe waived immunity and was a party to the federal court case, the Cherokee Nation government is bound by that court’s interpretation, and the rights of Native Cherokees and Freedmen Cherokees are tied forever.
“So it isn’t that the court went in and amended the constitution,” said Hill. “It said this language could never be in a constitution, because it violated the Treaty of 1866 and we are bound by that treaty. And any language in the constitution – including the 2007 amendment, which would pretend to do that – was void ab initio.” That legal phrase means "to be treated as invalid from the outset."