Echo Hawk opinion may have ‘drastic consequences’
Assistant Secretary for Indian Affairs Larry Echo Hawk addresses the audience at the inauguration ceremony of Principal Chief Bill John Baker Nov. 6 at Sequoyah Schools' The Place Where They Play. WILL CHAVEZ/CHEROKEE PHOENIX
TAHLEQUAH, Okla. – A Sept. 9 letter from Assistant Secretary for Indian Affairs Larry Echo Hawk to Cherokee Nation officials states the Bureau of Indian Affairs has not approved the tribe’s 1999 Constitution or an amendment that led to its implementation.
The letter, sent to then-Acting Principal Chief Joe Crittenden, emphasizes that the BIA hasn’t signed off on the constitution the tribe is operating under nor the amendment of the 1975 Constitution.
“The department has never approved these amendments to the Cherokee Constitution as required by the Cherokee Constitution itself,” Echo Hawk’s letter states.
In May 2003, Cherokee voters approved a question that removed federal requirement for amendments to the 1975 Constitution. Two months later, they adopted the 1999 Constitution as the tribe’s supreme law. It was created during a 1999 constitutional convention in Tahlequah, in which tribal officials and citizens revised the 1975 Constitution.
Proponents of the new constitution filed a lawsuit with the tribe’s Judicial Appeals Tribunal (now Supreme Court) in 2005, asking it to rule whether the 1999 law was valid. On June 7, 2006, the JAT ruled the law became the tribe’s “organic document” when the Cherokee people approved it. The CN officially began using the 1999 Constitution in July 2006.
In an Oct. 17 letter, Tribal Council attorney Todd Hembree states: “With the approval of our citizens and the approval of our courts, the Cherokee Nation government began implementation of the ‘1999 Constitution’ immediately thereafter. The ‘1999 Constitution’ is in full force and effect.”
Hembree points to documentation stating that the tribe is functioning under the proper law. In a letter dated April 23, 2002, then-BIA Director Neil McCaleb approved the 1975 constitutional amendment and further emphasized his approval in an April 4, 2006, affidavit.
He also states the CN has a strong argument that the U.S. government has recognized the 1999 Constitution because the government has approved numerous government-to-government actions between itself and the CN in the past five years.
“It would be disingenuous for the United States to take the position that it does not recognize the authority of the ‘1999 Constitution,’” Hembree writes.
Hembree’s letter also outlines “drastic consequences” for the CN if the BIA attempts to force the tribe to use the 1975 Constitution. He states that “any and all actions taken under or in accordance with the ‘1999 Constitution’ could be considered invalid.” He also writes the positions of the attorney general, marshal, two Supreme Court justices and two At-Large Tribal Councilors that were implemented under the 1999 law would not exist and that every action these offices have taken since July 2006 would be legally suspect.
“The ramifications of this are too numerous to list. Every law passed since June of 2006 could be voidable, every appointment made to boards and commissions would be suspect. Hence, every action taken by those board members and/or commissions would be suspect,” he wrote. “Further, since 2006, the Tribal Council has passed seven fiscal year budget appropriations involving well over a billion dollars. If the Tribal Council was not constitutionally seated, then it had no legal authority to approve those appropriations. Ramifications of this would be staggering to say the least.”
The Cherokee Phoenix attempted to ask Echo Hawk what he believes the CN must do to have the 2003 Constitution and amendment approved but was unsuccessful.
Echo Hawk’s letter was in response to the CN Supreme Court’s Aug. 22 ruling that reversed a lower court’s decision to allow Cherokee Freedmen tribal citizenship.
With the Supreme Court’s ruling, Freedmen temporarily lost the right to vote in the Sept. 24 election for principal chief. However, an agreement between Freedmen leaders and CN officials later re-instated Freedmen citizenship and voting rights.
Echo Hawk wrote that the BIA’s position is the 1866 Treaty between the CN and United States “vested” Freedmen with CN citizenship rights, including the right to vote, and he cautioned Crittenden about proceeding with an election “that does not comply with federal law.”
Echo Hawk’s letter also states the election procedures adopted by the CN in 2010 that governed the 2011 principal chief’s election were not valid because the “procedures were never submitted to, nor approved by” Echo Hawk or any designated DOI official as required by the Principal Chief’s Act of 1970.
Principal Chief Bill John Baker said he would defend the 1999 Constitution, but realizes it’s a balancing act between what the CN citizens and Supreme Court have approved and the fact the federal government says it doesn’t recognize the governing document.
“What I won’t do is risk $500 million dollars in federal funding for our 300-plus thousand Cherokee citizens,” he said. “It’s a balancing act of deciding our citizenship and deciding we don’t need the presidential signature, but the reality is that the federal government has not signed off on our constitution.”
Baker said he is building a legal team to weigh the pros and cons of the BIA’s stance on the tribe’s constitution and work to get the eight-year old constitution approved.
“They’re (federal government) take on it is that they don’t recognize the ’99 Constitution. However, they have been funding us for eight years even though they haven’t recognized it,” he said.
He added that the DOI has not informed the CN about what it has to do to rectify the impasse.
Echo Hawk delivered a speech during Baker’s Nov. 6 inauguration, saying he looks forward to working with Baker on a “nation-to-nation basis” to strengthen the CN’s relationship with the U.S. government.
“It is my hope the United States and the Cherokee Nation can forge ahead and work together to continue to build and secure a strong future for the Cherokee people. As we do, I pledge to hold the Cherokee Nation’s sovereignty in high regard,” Echo Hawk said. firstname.lastname@example.org