This move by the BIA could void a controversial March vote on another tribal constitutional amendment that essentially removed Freedmen descendants from the Cherokee Nation's tribal rolls. Since that March vote, a tribal injunction has been approved while Freedmen descendants battle against the vote in court.
The Cherokee Nation announced Tuesday that they received notification from BIA officials denying approval of the 2003 constitutional amendment, which was implemented by a tribal court order nearly a year ago. In 2003, tribal citizens voted to amend the 1976 version of the constitution to remove federal oversight. Also in 2003, Cherokees voted in their general election to adopt the tribe's 1999 constitution.
In the BIA letter to the tribe, Carl J. Artman, BIA chief, wrote that the secretary must still approve constitutional amendments before they become effective, according to a Wednesday Tulsa World article.
In the letter, Artman writes that he was concerned that approval by the BIA of the 2003 amendment would be used as a validation of the tribe's removal of it Freedmen members from the tribe, which is in violation of the 1866 treaty, the Tulsa World reported.
The tribe's 1866 treaty with the federal government required the tribe to recognize the rights of Freedmen in exchange for amnesty and the continued relationship between the tribe and the federal government.
But according to the tribe, the Cherokee Nation was not seeking approval from the BIA, adding that tribal courts have ruled that Cherokee Nation could take away the approval authority it had granted the federal government.
"The Cherokee Nation Supreme Court spoke clearly that the BIA had no authority to approve the Cherokee Nation constitution," Cherokee Nation Principal Chief Chad Smith said in a statement. "If the BIA has its way, the Cherokee Nation cannot even amend our own constitution.
"This is contrary to federal policy and court decisions handed down time after time over the last 30 years. It is insulting and wrong, and we will take all appropriate steps to defend our nationhood and right to self-determination."
According to the tribe, the BIA letter has little practical effect since the 2003 amendment has been effective for nearly a year.
"What is at stake here is the sovereignty and self-determination of all Indian tribes," Smith said. "The BIA is calling into question the right of Indians to be able to decide, through the exercise of their cherished democratic freedoms, the content of their own constitutions.
"This lies at the core of our fundamental right to self-governance, a principle which has been upheld and respected by the U.S. government for decades. As Cherokee people, we must stand behind the order of our own Supreme Court."
The amendment approved by voters in March limits citizenship in the tribe to descendants of people who are listed on the final rolls of the Cherokee Nation as Cherokee, Delaware, or Shawnee by blood and excludes descendants of those listed on Intermarried White and Freedmen rolls taken at the same time.
The division among the black Freedmen and the tribe about citizenship has been ongoing for years.
Last year, the tribes' own Judicial Appeals Tribunal ruled that the Freedmen should be given citizenship, which prompted the March election.
The court ruled that the tribe's 1992 law requiring citizens to trace their ancestry to a person with either Cherokee, Shawnee or Delaware blood was unconstitutional because it went against the tribe's 1975 constitution. The 1975 constitution did not limit membership to people who possess Cherokee blood, but extended membership to all the people who were "citizens" of the Cherokee Nation as listed on the Dawes Commission Rolls. Black Freedmen were among those listed on the Dawes Rolls.
Black Freedmen included free blacks and former slaves who settled in the lands of the Five Civilized Tribes following the Trail of Tears, according to the tribunal. Those same Freedmen were listed with the Cherokees in the 1866 treaty with the U.S. government.
Freedmen descendants have argued that they were put on the Freedmen rolls of the tribe even though they claim that many had a parent who was Cherokee by blood.
A situation similar to that of the Cherokees occurred in 2000 in the Seminole Nation when the Seminoles voted to oust Freedmen descendants from its tribe, according to tribal documents. As a result, the United States would not recognize the Seminole election and ultimately cut off federal funds to the tribe.
Seminole Freedmen were ultimately allowed back into the tribe, and the tribe's relationship with the federal government was restored.
