The filing period for council elections began on Monday and candidates began submitting their paperwork. One candidate doing so was Robin Mayes, who is running for the at-large seat being vacated by Mary Baker Shaw. Also running for the seat is Marilyn Vann, a Freedmen descendant who has been a prominent voice for the rights of Freedmen descendants. While Freedmen were guaranteed citizenship and all rights afforded to citizens by the 1866 treaty, the status of their descendants has been controversial among some non-Black Cherokees. Despite the language of the treaty, which has long been understood to still be in effect, the Cherokee Nation has on several occasions attempted to disenfranchise the descendants of the Black enslaved laborers once held by Cherokees and freed following the US civil war.
Despite being guaranteed all the rights of native Cherokees for them and their descendants, the issue has been relitigated over and over. The most major case on the issue was decided in US District Court on August 30, 2017, where the court ruled that Freedmen descendants were entitled to citizenship and all rights equal to native Cherokees under the 1866 treaty. More recently, the Cherokee Nation election commission ruled on the question of the candidacy of Rhonda Brown-Fleming for Principal Chief that she was ineligible to run, but because she did not meet the residency requirement, but that she was not a "by blood" citizen did not disqualify her.
This suit brought by Mayes essentially alleges that the court has no authority to rewrite the constitution, which is true, but they do have the role of interpreting the law. While it is true the constitution restricts citizenship to "by blood," the 1866 treaty, which remains in effect, gives Freedmen descendants equal rights as those by blood, including citizenship and the right to run for and hold office. The treaty being worded the way it is, Freedmen descendants must be entitled to any rights afforded to by blood citizens and the only way to override that provision is to annul the 1866 treaty. It is a frequent argument that courts are acting as legislators when they interpret the law in ways someone doesn’t like, but saying that doesn’t make it so.
There is no question in my mind that, no matter how much it is masked behind procedure, this is a direct attack on the rights of Freedmen descendants with no legal merit and it reignites an old racist debate. While I’m sure there was no conscious racial animosity, the impact is still prejudicial and harmful. We all have racial biases that we have learned living in a society that is rooted in colonialism and anti-Blackness, and this lawsuit is rooted solely in those prejudices and is not based on any legitimate legal interpretation. Marilyn Vann and all other Freedmen descendants are eligible to run for office. That question has been asked and answered, and answered, and answered again. As Cherokees, we must learn to do better and rid our nation of this anti-Freedman culture that has persisted all these years.
Cherokee Nation Election Commission: https://election.cherokee.org/media/umbfebkn/02-21-2019-special-meeting-minutes.pdf
US District Court: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv1313-248
1866 Treaty: https://d3gqux9sl0z33u.cloudfront.net/AA/AT/gambillingonjustice-com/downloads/233893/Cherokee_Treaty_of_1866.pdf
See below for court filing from Robin Mayes on the candidacy of Freedmen descendants, courtesy of David Cornsilk
A nomination was made for editorial board of the Cherokee Phoenix, which was approved 17Y-2N. Afterward, heated debate ensued between Speaker Byrd and another councilor because only one nomination was heard. The councilor commented that such practice was improper as there was another candidate to be considered, and that it was contrary to Robert’s Rules of Order. Speaker Byrd noted that the process was the same as he had always remembered it being done, that the first candidate to get a majority would be selected. The debate expanded to whether nominations should be considered by private ballot. Both acknowledged that was not how it has historically been handled, but the councilor stated that it was not “best practices.” Private ballots are not frequently used for nominations in elected bodies to provide accountability of the elected officials to the electorate.
Councilor Wes Nofire brought forth a motion in the rules committee to amend the agenda to debate his resolution prohibiting councilors from voting on the confirmation of nominees who have contributed to that councilor’s campaign. The motion was defeated in a roll call vote, 7Y-10N, and the resolution was not discussed. As it was a motion to amend the agenda, the resolution may be brought up again at a later date. Nofire brought the resolution to prevent the appearance of impropriety and conflict of interest.
The issue of money in politics came up again, also from councilor Nofire. He noted that multiple councilors had received the same very specific donation, down to the penny, of $1688.33. He called it "pay for play" and noted the statute that apparent conflicts of interest would be voted on by the council, but that if a majority of the council have received the same donation, the council itself is compromised. AG Hill responded that the alleged act is a crime and any evidence needs to be brought to her office for prosecution. She noted that many people make political donations for many reasons. Nofire responded with a heated reply that "our employees are scared to speak up," then noting that she was there on behalf of the Attorney General's office, but "this is the council chambers." She began to reply, but Nofire interrupted saying, "No. No. That's it, there's no reason for you to speak any more, this is the council chambers."
Shannon Buhl, director of the Cherokee Marshal Service addressed the Cherokee Nation tribal council rules committee on Thursday afternoon. He was asked specifically if he knew about how many new marshals he would need to hire to accommodate the increased responsibility following McGirt. He responded that he did not know as there are still questions and concerns that Congress could pass legislation affecting the responsibilities of the Cherokee Nation. He stated that what would be worse than not having enough marshals is hiring a bunch of new marshals and having to lay them off.
Attorney General Sarah Hill followed Director Buhl with an update several cases affecting the Cherokee Nation. One such case involved the UKB in which they argued that the Curtis Act prohibited Cherokee Nation having courts, but that case was dismissed stating that the Cherokee Nation does have that authority. The UKB is expected to appeal. Several cases in lower courts have ruled that the Cherokee reservation was established and never disestablished, strengthening the Cherokee Nation’s position.
Attorney General Hill further reported that her office is working on a set of recommendations on updates to the criminal code following the McGirt decision. She also spoke of the sentencing limitations of the tribe and that for more serious crimes, the tribe would depend on the United States to prosecute such crimes. She has hired several new attorneys following McGirt and expects to hire at least four more. She also cited uncertainty about what Congress may do, “helpful or hurtful.” One such reaction Congress may take is that it could allow greater sentencing power in tribal courts.
Questions were raised about statute of limitations. Hill responded that it was a concern that some people may not be held accountable for their crimes due to statute of limitations, which is a feature of due process to prevent stale evidence being used against a defendant. Statute of limitations vary based on crimes and for non-capital offenses is typically five years in federal courts. There may be some cases that may be able to be brought in tribal courts, but the statute of limitations may still not allow.
A common theme throughout the hearing was the concern of increased costs to expanding the Cherokee criminal justice system. Director Buhl raised the concern of millions of dollars being needed to expand law enforcement. AG Hill raised the concern of the increased costs of incarceration, especially if longer sentencing becomes permissible. Speaker Byrd noted that this decision came down from the US and that the state has brought on these issues.