Denying Voting Rights to the Cherokee Freedmen?
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ShouldShould thethe UnitedUnited StatesStates bebe FightingFighting forfor JimJim Crow’sCrow’s SurvivalSurvival byby ItsIts ComplicityComplicity inin DenyingDenying VotingVoting RightsRights toto thethe CherokeeCherokee Freedmen?Freedmen? When an Indian tribe decides to deny its citizens voting rights that have been guaranteed by a treaty with the United States and are protected by the U.S. Constitution, can tribal sovereignty allow Indian nations to extinguish voting rights and the citizenship of its citizens where the basis for their exclusion is race? By Jon Velie Imagine today if Mississippi—or some other former That hope would turn to dismay, however, if—instead slave-holding state with a history of disenfranchising its cit- of overturning the new discriminatory state government’s izens—should decide to hold an election to change the action—the citizens saw the federal government issue a state’s constitution to deny the state’s African-American cit- statement that the Department of Justice will not intervene izens the right to vote. Because § 5 of the Voting Rights Act, because the state of Mississippi is sovereign and the 42 U.S.C. § 1971 (1965) (as amended), mandates that for state’s exclusion of African-American voters is clearly a Mississippi, which is covered by the act’s special provi- matter of states’ rights. The United States, of course, sions, changes in qualifications or practices that have an would sincerely regret the negative impact on the voting impact on voting rights must pass the scrutiny of the U.S. rights of Mississippi’s African-Americans. Not only would attorney general (through the Civil Rights Division of the the federal approval of Mississippi’s new constitution en- U.S. Department of Justice), Mississippi’s African-American able the local effort to disenfranchise some citizens to citizens would take comfort in the confidence that the U.S. succeed, but the thrust of federal action would also re- Constitution protects their right to vote. These citizens verse one of the dominant themes of the federal victory in would also expect that the United States would step in to the Civil War—equal citizenship rights for former slaves stop the state’s illegal practice under the act to protect their and their descendants. Thus, it may come as a surprise to rights under the Thirteenth and Fifteenth Amendments.1 most that, since about 1980,2 the U.S. government has ac- February 2007 | The Federal Lawyer | 43 tively supported just such a denial of voting rights to the quickly forgot its same duty to the Cherokee Freedmen, Cherokee Freedmen—black citizens of the Cherokee Na- when the Cherokee Nation decided to test its own capac- tion of Oklahoma. ity to exclude its citizens and transform its prior practice of discrimination against the Freedmen into a complete dis- Relations Between the Cherokee Nation and the enfranchisement codified into the Cherokee Nation’s laws. Federal Government The Cherokee Nation requested permission from the The U.S. Treaty of 1866 with the Cherokee Nation Bureau of Indian Affairs to amend the Cherokee constitu- included a provision whereby the federal government tion by removing the requirement that the secretary of the guarantees rights to the Cherokee Freedmen, including interior approve its election procedures. The Cherokee voting rights, equal to those held by all other citizens in Nation’s proposal also sought to remove the clause that the Cherokee Nation. Article VII of the treaty granted orig- stated that the U.S. Constitution is the “supreme law” of the inal federal jurisdiction over all causes involving the 1866 land and that the tribe would not enact any law in oppo- treaty. This original jurisdiction should, of course, include sition to federal law. This action would clearly allow for disputes between the Freedmen and the Cherokee Nation the exclusion of the Cherokee Freedmen from political without the need for the Freedmen to go to the tribal court participation without any federal oversight regarding the first. The federal government had previously enforced the Cherokee Nation’s power. Freedmen’s citizenship rights as early as 1870.3 In the ini- Recognizing the impact of the Cherokee Nation’s pro- tial aftermath of the Civil War, the United States vigorous- posal, on March 15, 2002, Neal McCaleb, the assistant sec- ly imposed the demand that the Freedmen receive the retary of the interior, responded to a letter submitted by rights that were some of the hard-fought objectives of the Chad Smith, the chief of the Cherokee Nation, in which he Civil War. However, this is no longer the case. In each requested permission for a referendum vote with specific present-day election of the Cherokee Nation that the requirements for the vote. According to McCaleb’s Department of the Interior’s Bureau of Indian Affairs response, the bureau would not object to the referendum approves—most recently the May 24, 2003, Cherokee trib- itself—regarding the decision about eliminating the inclu- al election4—the U.S. government directly violates not sion of U.S. government approval procedures in the only the Thirteenth Amendment of the Constitution by per- Cherokee constitution—but, the bureau wrote, the petuating “badges” of slavery but also the Fifteenth Cherokee Freedmen must be permitted to vote in the elec- Amendment, which prohibits the United States from deny- tion, and, regardless of the result, the Cherokee Freedmen ing the right to vote “on account of race, color, or previ- could not be removed from the tribe. Assistant Secretary ous condition of servitude” by its express action in approv- McCaleb wrote that the 1970 Principal Chiefs Act, Pub. L. ing the discriminatory laws and practices of the Cherokee 91-495, 84 Stat. 1091 (requiring submission of voting pro- Nation that have intentionally excluded its Freedmen citi- cedures to the Bureau of Indian Affairs) still applied.5 zens from the voting process. Contrary to the express instructions of the Department of Ironically, immediately prior to the Cherokee Nation’s the Interior, the Cherokee Nation did not submit its 2003 May 2003 election, the Bureau of Indian Affairs upheld the election procedures to the bureau for review. If allowed by voting rights of the Seminole Freedmen. In two cases— the United States, those election procedures would result Seminole Nation of Oklahoma v. Norton, 206 F.R.D. 1 in the elimination of the Freedmen’s voting rights as a mat- (D.D.C. 2001) (Seminole I), and Seminole Nation of ter of Cherokee law and, as anticipated, the Cherokee Oklahoma v. Norton, 223 F. Supp. 2d 122 (D.D.C. 2002) Nation did not permit its Freedmen citizens to vote in the (Seminole II)—the bureau refused to recognize an election election that was held on May 24, 2003. that had voted to oust the black Seminoles from the tribe In the face of defiance from the Cherokee Nation, at as well as a subsequent election that had denied the first the Bureau of Indian Affairs determined that it would Seminole Freedmen the right to vote. In 2000 and 2002, the not recognize the election of Chad Smith as chief. In a let- U.S. District Court for the District of Columbia ruled that ter dated July 25, 2003, the bureau took the initial position the Seminole Treaty of 1866 was still in force, that the that the situation appeared identical to the case involving Freedmen could not be voted out of the tribe, and that the Seminole Freedmen and that the Cherokee Nation had they were entitled to vote in the tribe’s elections. A vital not complied with the 1970 Principal Chiefs Act. The component of the case was the U.S. government’s respon- bureau determined that the 1970 act mandated U.S. sibility to enforce the 1970 Principal Chiefs Act mandating involvement with the Cherokee Nation’s election, citing that the Seminoles submit voting procedures to the Bureau Wheeler v. Department of the Interior, 811 F. 2d 549 (10th of Indian Affairs for approval, which the Seminole Nation Cir. 1987).6 had not done. The Bureau of Indian Affairs was duty- On Aug. 6, 2003, however, the Bureau of Indian Affairs bound to protect the rights of the Freedmen citizens as reversed its position of disapproval to one that recognized well as their voting rights within the tribe, because the dis- an election even though it met none of the bureau’s clear- criminatory voting procedures would have violated the ly expressed criteria. Taking a curiously bifurcated posi- tribe’s constitution and another 1866 treaty—one between tion, the bureau stated it would recognize the election for the Seminole Nation and the United States. chief but withhold its approval of the proposed amend- In spite of the Bureau of Indian Affairs’ fulfillment of its ment to the constitution, again citing Wheeler v. legal duty to the Seminole Freedmen, in 2003, the bureau Department of the Interior without mentioning or clarifying 44 | The Federal Lawyer | February 2007 why it no longer viewed the 1970 Principal Chiefs Act to Supremacy Clause, U.S. Const. Art. VI, Cl. 2, treaties super- be a specific mandate for Congress to be involved in sede any conflicting state laws and have the same force Cherokee elections.7 and effect as federal statutes do. See, e.g., Antoine v. What could possibly have led the Bureau of Indian Washington, 420 U.S. 194, 203–204 (1975); see also Felix S. Affairs to such a reversal—a decision that would betray the Cohen, Handbook of Federal Indian Law 127 (1982). Also, Cherokee Freedmen? What could have led the bureau to unlike the state of Mississippi, the federal government has contradict its March 15, 2002, position in support of the allowed Indian nations to determine the criteria for tribal Cherokee Freedmen’s right to vote in Cherokee elections? citizenship even to the point of permitting the Cherokee The answer may be found in documents related to the hir- Nation to deny citizenship to documented full-blooded ing of embattled lobbyist Jack Abramoff, who was retained Cherokee.10 In the case of Freedmen, the United States by Cherokee Nation Enterprises to lobby for “sovereignty has, at least temporarily, allowed the Cherokee Nation to issues” in the months prior to the May 2003 election.