Cherokee Nation’s Constitutional Crisis

by James McGirk


Cherokee Nation has what seems to be an unusual fixation with lawyers and writing—at least for an outsider looking in. Cherokee museums are dense with detail about treaties, newspapers, and literacy. Sequoyah, a silversmith who invented the Cherokee syllabary in the 19th century, is arguably their greatest hero. And, most telling of all, their judicial branch occupies the most prominent landmark in their capital city: the Cherokee National Capitol, a handsome red-brick building set in the center of Tahlequah’s town square; while the rest of the tribe’s administrative offices are socked away in a complex just south of the city.

There’s a reason for this. Twice, the United States government has annihilated Cherokee governments; once when the tribe was uprooted and forced to move to Indian Territory during the 1830s, and a second time when the Cherokee government was dismantled between 1898-1906 after the Curtis Act was signed. So the idea of keeping a written record is more than history to the Cherokee; it is evidence of crimes committed against them and raw material should they ever have to rebuild again. They might have to. In 1995, a rift between political rivals during the election for Principal Chief (the highest executive office in Cherokee Nation) triggered a constitutional crisis that seems more suited to a Soviet satellite dictatorship than a domestic dependency of the world’s most powerful country.


For a tribe whose members are scattered all over the country—and beyond—Cherokee Nation’s politics are intensely personal. Mention a link to the tribe and a Cherokee can probably find a connection or two in common, not to mention figure out your approximate socio-economic status. Much of the tribal government grew up around Tahlequah, going to the same schools and working for the same family businesses. Rivalries have festered for decades. But as a quasi-sovereign country, Cherokee Nation is also directly engaged with the federal government, and has been for centuries, in a way that’s more akin to a nation state than a chunk of northeastern Oklahoma.

Before European colonization, according to Ahnawake Carroll, a law student writing about the 1995 Cherokee election in the Tribal Law Journal, the Cherokee tribe settled disputes by custom, within clans. But as the Cherokee began to intermingle with the settlers—and Americans sniped at their borders—the Cherokee adopted a Western legal system to deal with outsiders. By 1827, after about 40 years of internal struggle, Cherokee Nation was united under its first constitution.

“It was a strategy to defend ourselves politically and legally in the Southeast when it was apparent to us that our military options were not there any longer, that we could not prevail,” said Julia Coates, a Cherokee Nation Tribal Councilor, in a 2012 address to Arizona State University’s Native Nations Institute.

Though their first constitution wasn’t enough to keep the Cherokees from being forcibly relocated to Oklahoma in 1838-1839, it did ensure that the tribe was compensated for the land taken from them. Technically, the Cherokee swapped their land in present-day Georgia and Tennessee for land in Oklahoma. This is an important distinction. It means the Cherokee did not live on a federal reservation and has limited the Bureau of Indian Affairs’ authority over them.

“By the late 1800s,” says Coates, “we had three or four generations who had lived under constitutional government by that time and who were deeply, deeply invested in the idea that they were a nation of treaty, of constitution and of statute that they lived by. All of that was smashed in 1907, when Oklahoma became a state and the Cherokee Nation government was pretty much driven underground.”

After statehood the tribe was led by quislings, the Appointed Chiefs, who were given the nod by a U.S. president “as needed,” often serving just long enough to sign treaties before being dismissed. Meanwhile, the situation in Oklahoma grew increasingly dire. “U.S. Highway 66 [became] a second Trail of Tears,” says former Principal Chief Chad “Corntassel” Smith, referring to the way many Cherokees migrated west during the Great Depression and Dust Bowl.

By the 1970s, Cherokee Nation was a husk of its former self. But this was the era of self-determination, when, in response to native activism, the United States began letting tribes manage more of their affairs. In 1971 the Cherokees elected their first Principal Chief since 1903, W.W. Keeler (actually his second stint at Chief, since he’d been appointed chief in 1949), and in 1975, after consulting with the community, they presented a new constitution to the U.S. government. It was ratified the following year. The new government was loosely modeled on the United States: there were separate judicial, legislative, and executive branches. Unfortunately, like most new constitutions, the division of powers wasn’t entirely clear and that would have profound consequences.


Principal Chief Wilma Mankiller describes running for tribal office in Cherokee Nation (in her 1993 book Mankiller: A Chief and Her People) as running for a national office: “It is a very mainstream process, complete with print and broadcast advertising, campaign billboards, rallies and all that sort of thing.” It was loud and expensive and because of the local nature of Cherokee politics often quite contentious. All but one of the Cherokee Nation’s elections for Principal Chief after the 1975 Constitution was “subject to litigation,” according to Ahnawake Carroll.

Ross Swimmer won in 1975, was re-elected in 1983, and then resigned in 1985 after he was appointed head of the Bureau of Indian Affairs by President Ronald Reagan. His Deputy Principal Chief, Wilma Mankiller, served out his remaining term and then was elected Principal Chief in 1987. She was re- elected in 1991 by such a large margin—82.7 percent—that she didn’t require a run-off election and her victory was unambiguous, which was the sole non-litigious election. Mankiller did not run for re-election a second time (neither did her deputy) leaving the 1995 field completely open.

Carroll quotes the Muskogee Phoenix to describe the atmosphere: “[1995 was] one of the most bitter and controversial election cycles in modern times, producing a general atmosphere of chaos, with no one appearing too sure about who was responsible for what.” Mankiller endorsed her former Director of Tribal Services, George Bearpaw, for Principal Chief. At the end of the primary election Bearpaw was the favorite with 39 percent of the vote. Council member Joe Byrd—a full-blooded Cherokee who speaks the language—came in second with 29 percent of the vote, representing a grassroots ticket that promised a “fresh beginning” and a “change of focus.”Third runner-up was Chad Smith, then a little-known attorney and former public defender.

Three lawsuits were filed in the Judicial Appeals Tribunal before the run-off election. The first two addressed residency requirements. Carroll notes that of the 80,000 Cherokees of voting age, only 30,004 actually voted—suggesting many Cherokees who lived outside of the area had little voice in Cherokee politics.

Leach v. Tribal Election Commission of the Cherokee Nation, ended the 182-day residency requirement for candidates running for office, declaring it unconstitutional. The second suit, Pritchett v. Cherokee Nation, was filed after the primary election, and challenged whether it was constitutional to require a Cherokee voter to be registered in the district he or she cast a vote in. This time the existing law was upheld, the court deciding that the legislative branch was within its rights to require voters to be registered. Despite the importance of the decision, which disenfranchised voters outside of Oklahoma, it went unnoticed because, as Carroll put it, “Another judicial opinion issued on the same day ‘would prove to be the most publicized litigation in the Tribunal’s existence.’ ”

The third suit, Mayes v. Cherokee Nation, aimed to strike the frontrunner George Bearpaw from the primary election. The 1976 Constitution required that a candidate for office be a member-by-blood of Cherokee Nation, be over the age of twenty-five, and to have committed no felonies. Bearpaw shot a man in the stomach in1975,andwaschargedwithassaultwith a deadly weapon, but his record had been expunged after he’d plead guilty and served a two-year deferred sentence.

The court was asked to retroactively strike him from the ballot because he had lied under oath (when he swore that he had committed no felonies) and committed a felony (thus violating the conditions for being a candidate for office). The defendants cited a Supreme Court case, Kercheval v. United States, which held that “once a defendant is allowed to withdraw a guilty plea in a criminal action, the guilty plea can never again be used against him in a subsequent criminal trial.”

The court ruled Bearpaw was ineligible for office, saying, despite the Supreme Court case, “Cherokee Nation as a quasi-sovereign has the authority to determine the qualifications of those who could hold office in the Nation.” They considered two options for resolving the case: they could either strike Bearpaw’s from the ballot, or ignore all the votes that he received in the run-off. They ordered the run- off election to continue as scheduled.

Then Principal Chief Mankiller pardoned Bearpaw. Under the Cherokee Constitution, a pardon was the only exception to the rule excluding felons from office.

Carroll notes that “not only was the granting of a pardon by a Principal Chief a ‘very rare occurrence’in the modern Cherokee Nation; it was also the first of Mankiller’s administration and ‘indeed the first since statehood that anyone could remember.’ ” Bearpaw filed for a rehearing of the case. The court upheld their original opinion, saying this time that a pardon only refers to the district where the crime occurred. Since Mankiller had no jurisdiction her pardon was “a nullity.” Chad Smith, who placed third in the primary election, filed suit to find out whether he could join the ballot in the run-off election. The court told him no. Byrd ran unopposed. Victory defaulted to him, and he won the election with 29 percent of the vote.

* * *

In a column discussing Chad Smith, who would later serve three terms as Principal Chief, Indian Country Today columnist Steve Russell says he was impressed when Smith “refused to disregard Cherokee sovereignty and fight on when he lost in tribal court. He understood that the process was more important than his fate.” Chief Smith’s supporters had told him “not to fold his cards, but to complain to the BIA or carry on litigation in federal court.” When he declined, Byrd became chief. Incidentally, when Principal Chief Joe Byrd was confronted with a problem of similar historic proportions he took the exact opposite tack—and then some.

According to a “Chronology of Events in the Cherokee Nation Crisis” compiled by Dan Agent, (then director of public affairs for Cherokee Nation, later editor of the Cherokee Phoenix) the trouble began in 1996 when Cherokee Nation’s council members demanded Chief Byrd release financial records for the tribe’s businesses.

Cherokee Nation had grown considerably since 1975, and now controlled a budget of approximately one hundred million dollars. After many requests went unanswered, in August 1996, the Judicial Appeals Tribunal declared all financial records public and demanded Byrd turn them over. Yet he continued to hold onto them.

For months, according to Agent’s excellent chronology, Byrd continued refusing to give up the records until finally, in February 1997, a warrant was issued. Two marshals, Pat Ragsdale and Sharon Wright, served it at the CherokeeNationTribalComplex.Byrdfired the marshals on the spot. One of the three Judicial Appeals Tribunal judges reinstated them, and threatened to file contempt charges against anyone “interfering with JAT business.”

Bob Powell, a tribal inspector, attempted to broker peace, and during a conference call he described a mysterious wiretap tape that had turned up on Chief Byrd’s desk containing evidence of what Powell described as “a conspiracy to overthrow Byrd’s administration.” The FBI launched an investigation into the conspiracy only to declare the tape illegal a few days later—it apparently contained only the tape-recorded grousings of a few prominent Cherokees.

In March, the 1997 Budget passed muster with the Tribal Council without the missing financial documents. (They said they’d amend if necessary.) A few days later Chief Byrd called a press conference, announcing he would defy any illegal or unconstitutional court orders and “issue an executive order disbanding the Marshal Service.”In their place he hired a team of armed security guards. He demanded his marshals swear in to the new security force by 5 p.m. or face termination. “None reported,” says Agent. The following day Byrd canceled the marshals’ gas cards, cut their cell-phone service, and cancelled their cross-deputization cards, and had his district attorney tell neighboring sheriffs that the “service no longer has jurisdiction on non- Indian land,” which Agent said gave Byrd pretext to bring in the BIA police (namely to prevent the jurisdictional difficulties on tribal lands discussed during the extension of the Violence Against Women Act).

 In 1995, a rift between political rivals during the election for Principal Chief triggered a constitutional crisis that seem more suited to a Latin American Dictatorship than a domestic dependency of the world’s most powerful country. 

Relations between the judicial branch and Byrd’s administration continued to deteriorate. Byrd’s opponents in the Tribal Council began boycotting meetings to prevent any work getting done. In response, on April 15, Byrd hired an outside attorney—Thomas Seymour—to reinterpret the Cherokee Constitution, which he did, in Agent’s words, “Providing one of the most ludicrous interpretations of a document in the history of Indian-white relations…[and] ensur[ing] Byrd’s place as the most sinister destroyer of Native American sovereignty since Andrew Jackson.”

Seymour found a loophole that allowed a simple majority of council members (instead of the 2/3 quorum required by the constitution) to hold a “special meeting.” Using this rationale, Byrd and his supporters on the council (his eight “Byrdettes”) voted to “bring impeachment proceedings against the Judicial Appeals Tribunal” and “ask[ed] the BIA to takeover the tribe’s law for a period of two months.”

Forty-four Cherokees filed suit in response, saying the special meeting was illegal. The JAT agreed with their decision. Meanwhile, charges of financial misconduct piled up against Byrd. On May 3, the Tribal Council “conduct[ed] a court of removal” and officially impeached the three JAT justices. The justices refused to leave the Cherokee National Capitol (also known as the courthouse). After weeks of standoff, Byrd ordered the utilities cut off in the building and stopped their pay.

A month later, June 20, Byrd’s armed forces (aided by “local law enforcement”) seized the courthouse. Chad Smith crossed a police line and was “tackled from the rear, taken to the ground, restrained by five officers, handcuffed and arrested.” Rallies and hog fries are held to raise funds for the fired marshals and impeached justices. On August 10, the JAT order the “fired marshals to take back the Cherokee Courthouse.”

An assault on the courthouse is planned for August 13. Byrd hires reinforcements. The day before the showdown, the Department of Justice and Department of Interior recognize the “JAT as legal court of Cherokee Nation, saying only the BIA police have the authority to enforce tribal law.” The Tribal Council votes on whether to reinstate the justices. Deputy Chief Eagle casts the tie-breaking vote: he says no.

The next morning Marshal Ragsdale “tries to force his way in” to the courthouse. Violence erupts. Six people are injured as “officers from five counties, Oklahoma State Troopers and BIA police help Byrd’s security force maintain control of the Courthouse.” Lawsuits are filed in federal court. Oklahoma’s senators threaten to ask President Bill Clinton to remove Byrd from office. An independent commission investigates and finds the impeachments invalid, and disregards any other decisions made as a result of the “special meeting” format. Gradually the conflict dissipates.


It is not clear why Byrd held onto the documents in the first place or why he refused to give them up. Byrd was later charged with misappropriation of funds by the Tribal Prosecutor and investigated by the FBI. But he was found not guilty of “illegally using contents of intercepted phone conversations,” according to the Tulsa World, and never convicted of any wrongdoing. He lost his re-election campaign to Chad Smith in 1999. But in 2011, he took over the seat on the Tribal Council vacated by current Principal Chief Bill John Baker (one of his supporters during the crisis)—which he couldn’t have done with a felony beef.

There are several ways of interpreting the crisis. Byrd may have been provoked by the disgruntled supporters of Mankiller, Bearpaw, and Chad Smith (who were likely looking for any excuse to oust him). Byrd may also have felt threatened by his weak position, and cynically attempted to consolidate executive power by appealing to outside authorities and removing political opponents. One could even draw a parallel to the early years of the United States of America, when the Articles of Confederation was too weak to hold the Union together, and say that a constitutional crisis is a necessary step toward a better constitution.

That said, allowing the conflict to escalate beyond the borders of Cherokee Nation and into the United States has seriously undermined their national sovereignty going forward. The heavily rewritten 1999 Cherokee Constitution has not yet been officially approved by the Bureau of Indian Affairs. The Cherokees have argued that they don’t need BIA approval for it, but the constitutional crisis has set a precedent for federal intervention in the Nation’s politics. When the 2011 re-count between Bill John Baker and Chad Smith fell apart, the federal government withheld housing funds to force Cherokee Nation to allow Cherokee Freedmen to vote in the recount (an amendment to the constitu- tion in 2007 had taken away their citizen- ship), potentially tipping the scales in Bill John Baker’s favor. Regardless of whether it was fair of them to do so, by allowing the U.S. government to intrude, Cherokee Nation has invited outside intervention and snuffed out some of its nascent indepen- dence. Perhaps it is fitting that today the Cherokee National Capitol is covered with scaffolding and in the midst of a serious renovation. When the changes are unveiled in July, perhaps we’ll get a look at what they make of the crisis and get a clue as to what the future holds for Cherokee Nation as a quasi-sovereign state.

Originally published in This Land, Vol. 4 Issue 10. May 15, 2013.