Cherokee Nation Constitutional Convention of 1999

Todd Hembree: A Key Constitutional Issue: Separations of Powers

Producer
Native Nations Institute
Year

Cherokee Nation Attorney General Todd Hembree discusses the critical role of separations of powers in effective Native nation governance, and provides an overview of how the Cherokee Nation instituted an array of separations of powers in the development of their new constitution, which was ratified in 1999.

People
Native Nations
Resource Type
Citation

Hembree, Todd. "A Key Constitutional Issue: Separations of Powers." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

"First, let me introduce myself. My name is Todd Hembree. I am a Cherokee citizen. I live in Tahlequah, Oklahoma, which is the capital of the Cherokee Nation. Originally from Greasy, Oklahoma, which is a very poor rural, highly Native population in southern Adair County in Oklahoma. I grew up on a cattle ranch there and we kind of ran a general store. I went to college at Northeastern State University, went to law school at Notre Dame, and then began a law career. This is my 20th year in my career. My passion has been Native American law. I have had the pleasure to consult and represent tribes across the nation. My crowning achievement I would say in my legal profession has to again have the pleasure to represent the Cherokee Nation tribal council for the last 12 years. I recently changed roles, which I'll talk about later on in my talk, to that of the Attorney General. So my position now is, I've moved from the legislative branch to the executive branch, which is a new and sometimes difficult role for me.

But here we are to talk about separation of powers. Listening to the very good speakers that we've had so far today, I've kind of thought about, well, you know, I need to incorporate something about that in my talk, and one thing that reached out to me was when Steve [Cornell] said that someone had told him that we need to either decide whether we're going to be traditional or constitutional. And in that context of separation of powers I thought, "˜Well, what is it about the Cherokee Nation or the Cherokee traditions that had separations of powers?' Well, maybe it is part of our culture and that got me to thinking in that, yes, in the historic ancient Cherokee villages we had a peace chief and we had a war chief. The peace chief was what was often called the "˜white' chief and usually came from the Long Hair Clan. The war chief was the "˜red' chief that usually came from the Wolf Clan. And they had distinct, separate duties and responsibilities, and they did not mix and you knew who was in power in the council house because you either had a white painted pole or you had a red painted pole. So yeah, there are instances where our separation of powers are engrained in us. We just have to look for them. They're not necessarily a western constitutional mode.

But you look at the concept of separation of powers, and again in our history I would consider myself an amateur historian, but I wanted to read two provisions of separation of powers that came from constitutions. First is Article 2: "˜The powers of this government shall be divided with three distinct departments, the legislative, executive and judicial. Second, no person or persons belonging to one of these departments shall exercise any of the powers properly belonging of either one except in here after expressly directed or permitted.'" And here's another, this is Article 5, Distribution of Powers: "˜The powers of the government of the Cherokee Nation shall be divided into three separate branches, legislative, executive and judicial, and except as provided in this constitution, the legislative, executive and judicial branches of the government shall be separate and distinct and no branch shall exercise the powers properly belonging to either of the others.' Now the first one, Article 2, was drafted and written in 1827. That was the first constitution of the Cherokee Nation. The second was drafted in 1999 in Tahlequah, Oklahoma. We talk about generations and how they are connected, my great-great grandfather John Ross helped draft the 1827 Article 2 in New Echota, Georgia, and me, his great-great grandson, helped draft Article 5 Distribution of Powers in Tahlequah, Oklahoma, in 1999. So it is part of our culture, it is part of our heritage, it's part of our history. So they are not necessarily just pure western concepts.

Now, separation of powers. My idea of separation of powers, and if I misspell something, please forgive me. I'm a lawyer. My idea of separation of powers is separate the power from the powerful. We need to have a concept of separation of powers...and also checks and balances, and they're not necessarily the same thing. We always have that check, but the separation of powers and checks and balances is to avoid or at least limit the concentration of power into a limited few or even a one. So that is why in my concept we want to separate the power from the powerful. We want to decentralize that concept. Now the one thing that...also to limit power to a limited few is also to avoid conflicts of interest, and most importantly in my opinion to avoid the perception of a conflict of interest. Now when a person wears many hats, and they are a member of a tribal council that will perform sometimes executive, legislative and even judicial functions, we may have the perfect person there that is able to delineate each one of those powers. They will say, "˜Well, I can make this decision in a vacuum and this one and this one.' I know there are people out there that can do that. But it's the perception that your people have, and perception is reality. And so when you have an individual who is wearing three different hats and calling all the shots, what are the people going to think? Well, they're going to think, "˜Well, they're all in total control'. So separation of powers in avoiding even the perception of a conflict of interest is very important.

Now, how do we get there based on a system that is sometimes even foreign to us? Historically tribal governments have been largely spiritual, holistic, oral, clan-based, family-based, and consensus-oriented. The leaders were often felt to be facilitators or even respected guides, but sometimes they weren't considered "˜decision makers.' Tribal citizens often had a direct say in the runnings of their governments. So how do we deal with the system as it is, when it may be foreign to our concepts? And we have heard several times today about the IRA, Indian Reorganization Act and the Oklahoma Indian Welfare Act, and there's a lot of bad things or the history of the IRA, but I'm not here to completely decry it, because it was better than the alternative. The alternative was extermination. So at least in 1934, there was a concept that Indian tribes should reorganize and should exist. That has not always been the policy of the United States both before the IRA and after the IRA. But there is a legacy of the IRA that we have to deal with, and that is as has been mentioned earlier today the concept of the cookie-cutter constitution. IRA constitutions you could pick, there were hundreds of them, but you could pick any ten and they're going to look pretty substantially similar. They're going to have a clause about territory, they're going to have a clause about membership, they're going to have a clause about a governing body and that governing body is going to either range from three, five or seven members, and that governing body is going to both have legislative and executive functions and sometimes even judicial functions. They'll have a referendum and recall provision. They'll have a provision in there about elections. And then sometimes later, they had a judicial function almost put in as an afterthought and most IRA tribes did not have a constitutional judicial function.

So this hybrid that was created and this bleeding of the powers of the three branches did not suit us well. It might have been good in the 1930s for a limited amount of tribes, but it definitely is not good for us in the long run, and often, well, in almost all cases, there was very little if any consultation with tribal members and tribal citizens about the creation of this. These constitutions were insensitive to the tribes' culture, history, heritage, size of the tribe, the resources that it had. Basically it was, "˜Here's your constitution and good luck,' and some people and has been mentioned earlier think that that was by design, that the United States government did not want a decentralized form of government that had been part of our history. They wanted someone to talk to. They wanted someone to make deals with. They wanted businesses as said, timber companies, railroad companies, someone, a structure to have a government entity that they were familiar with to make their deals with. They had a square peg and they wanted to have a square hole to put that peg in....And also in these IRA constitutions, and you can look through them, is federal approval for this, federal approval for that, and that you can do this, mindful that the president or his representatives will give approval for it. It was almost full of "˜Mother, may I's...?' It's the mother of "˜Mother, may I's...?' And so we have dealt with that, and even if you're not an IRA tribe or an OIWA [Oklahoma Indian Welfare Act] tribe, that has been kind of the model that we've kind of adopted. Well, [due] in no small part to the people in this room and your predecessors, Native American tribes are going through a constitutional resurgence. We have begun in many instances to throw off the paternalistic yoke of the Bureau of Indian Affairs and if there are members of the BIA in here or you formerly worked for the BIA, I apologize in advance for offending you because I may do so at certain times during this presentation. But we have started that process.

Now, how many tribes here have a constitution? I know not all of them, but raise your hand if you've got a constitution. How many of you are currently going through a constitutional reform? How many people in here perceive that their constitution is perfect? No one raises their hand. You wouldn't be here listening to the good speakers today if you thought that your constitution was perfect. There's not a document made by man that cannot be improved, but as we go through -- and many of you raised your hands that you're going through a constitutional reform and may in some instances even rewrite your constitution -- the concept of separation of powers will be at your forefront. And let me tell you folks that this topic, separation of powers and checks and balances, it's the most important topic of this conference, so feel free to leave after you're done here today. I say that in jest, but obviously it is of extreme importance. Okay, Todd Hembree, why? Why is separation of powers and checks and balances so important? Well, I will tell you with every bit of conviction that I have and every fiber of my being that there are tribal leaders in this room who are caring, who are dedicated, who are selfless and want to help their people. I can guarantee you that. I can also say, with the same amount of conviction and every fiber of being in my body, that there are tribal leaders in here who are selfish and irresponsible. Now how do we protect ourselves from the latter? You do that through a system of checks and balances, of separation of powers.

Now, we're not going to go through just your normal civics lesson, but I'm going to give you examples of how my nation dealt with it, the Cherokee Nation, and we have a tribal councilor, Ms. Julia Coates, who will be talking about what we did and why tomorrow, but for now I'll just briefly go over it. Now we wanted to insure that there was copious checks and balances in our government and a true and complete delineation of the separation of powers. We had, some may say, the [misfortune], but I say it was fortunate that we had our constitutional convention during a time of great trial and tribulations in our government. So there was an era of mistrust, so therefore that concept was truly on my mind and I was a delegate to the Constitutional Convention in April of 1999, and I had the fortune of serving on the Constitutional Commission also. So how did we build in that separation of powers? Well, obviously we had the executive, legislative and judicial branches and eighth-grade civics, the executive branch enforces the law, the legislative branch passes the law or makes the law, and the judicial branch interprets the law. Now what we did is we -- as I earlier read Article 5 -- we made sure that no person can exercise the powers of the other unless specifically allowed in this constitution. But how do we go about making sure that that's done? Well, we put in there an attorney general and marshal, constitutionally created offices that have a term of five years. Now the principal chief and deputy principal chief have a term of four years. The legislative branch, the councilors have a term of four years. We wanted to build in an extra layer of independence that the chief is going to appoint an attorney general for five years, so insuring that that attorney general will serve at least one more year into the next chief's tenure. The same with the marshal -- that these are not going to be concurrent with the other officials. And that's important, because that again leads to the aura of independence. Also, which I think is very important, is that the attorney general can't be fired by the chief. The marshal can't be fired by the chief. They can only be impeached through a process that is set up in the constitution and in our legislature. Again, the aura of independence and the actual safeguards that we won't have, oh, with President Nixon's Archibald Cox, the Saturday Night Massacre. "˜I don't like you, you're fired.' You can't do that in our system. If I make a decision that the executive branch doesn't like or the legislative branch doesn't like, that's tough. The only way to get rid of me is by a two-thirds vote in the council after a complete due process of charges being brought against me. I think that's very important, and that's when you go and you're in your constitutional reform, the independence of a legal representative not just for the tribe, or not just for the chief or the legislature, but for the entire tribe. That independence is important. And the same it is for [the] marshal to actually commence the criminal process. Now what other things are indicative of checks and balances? These are separations of powers. These are checks and balances.

Also in our constitution we have a constitutionally created election commission, "˜cause where are you going to have your most fights, folks, in Indian Country? Normally, elections. So if we have an independent election commission that we have -- through our codification or ordinances or laws that we've passed have -- insured that they are independent, that cannot be, no influence by either the executive or legislative branch can influence this election commission, that's important. We heard about just very recently the tribal conflict with Bush v. Gore. We just went through that with a Cherokee Nation election. We had an instance where the principal chief was elected by a mere seven votes in the first election. Well, there was a challenge to that. We went to our courts and the courts determined that there was no mathematical certainty, no, that the election could not be determined by a mathematical certainty, so you know what, we had another election. And in that other election, a new chief was elected. But we didn't break out the guns, tanks weren't rolling in Tahlequah, the system worked and there was a peaceful transition to power in a very contentious and hotly contested election. Regardless of who won, you had to be proud of the fact that the system worked, that people actually...that violence did not break out. And again, that's because, as said earlier, the constitution is embedded in the culture of our people, that our people respected the rule of law.

In this room here we have, I've read through the list of them, we have tribal council members, we have election commissioners, we have people representing business entities, we have the most honored title, citizens, of Native American tribes, and you're here for a reason, and that reason is that you're to go about the task of reforming your constitutions, which is in many cases hard, long, thankless. You've probably made more enemies than friends by volunteering for this process and you're to be commended. So it's gatherings like this where people and the other good speakers can give you nuggets of wisdom as you go about your task. I will attempt to give my perspective and I will say it's a unique perspective. I've been a drafter of a constitution. I've been a delegate to a constitutional convention. I've been a tribal council or a tribal judge. I've represented the tribal council legislative branch for 12 years, and you could not find a more strong advocate for the legislative branch than I have been. And here recently I've been made attorney general, so I've changed roles. I've gone over to the executive branch. This was interesting. Early on in my tenure, in the first couple weeks, we were dealing with what is called a FOIA request, a Freedom of Information Act, that there's a process where citizens can get information from our tribal government. And there was a FOIA request from a tribal councilor, and I'm sitting there and wondering, "˜Well, is this information that can or should be put forthcoming?' And one of my attorneys that works in my office came to me and we were all sitting around the desk and he was spouting this proposition that would tend to lend itself to the disclosure or the releasing of this information. I said, "˜Well, that's ridiculous. That's a bad train of thought.' And he said, "˜Well, sir, it's from a 2002 memo that you wrote when you were representing the legislative branch.' And that was an awakening to me, that was an epiphany. More appropriately it was a slap in the face that yes, you're right that it's not just the perspective, it's not that the perspective changes of where you sit, it's just doing what is right and following the rule of law. I'm so glad -- things happen for a reason and that epiphany that I had early on in my career I'm thankful for, because it instilled to me it doesn't matter where you're at today. It matters where you and your predecessors are going to be tomorrow, "˜cause I can guarantee you one thing, ladies and gentleman, in 50 years I will not be the Attorney General of the Cherokee Nation. I still want to be alive, but at 96 I don't want to be practicing law and I don't want to be the Attorney General of the Cherokee Nation. I can also guarantee you this folks, in 50 years you will not be holding the positions that you have today. We're merely occupying these seats. We're occupying these seats that our ancestors held before us and that our future generations will have from here on out. So when you're going about the task of reforming your constitution or rewriting your constitution and you're putting in these safeguards, it's important to understand where you are today and where your tribe will be tomorrow, because we won't be here, but I guarantee you your tribes will, I guarantee you the Cherokee Nation will be here in 50 years. The Cherokee Nation will be here 500 years from now. So it is these little steps that we take when we're drafting these constitutions and trying to create a system of government that is going to last generationally.

Also, before I forget, we're talking about checks and balances here. Now there's more to it than that, and I'll go back here briefly. We have a constitutional office of treasurer, which handles the money. There's a song by Warren Zevon that says, "˜Send lawyers, guns and money.' Well, we don't have guns to send, but we do have lawyers and money and we are protected in the constitution as to that. Now also we have a recall provision in our constitution and those are important, that you have the power of the people to provide yet another checks and balances. You have the power of referendum and initiative, that if the legislative branch is not doing their job or they're not doing it correctly, the people can come in and provide a system of checks and balances on this. We have impeachment. That if there's not enough people for recall, we have a system of impeachment that can go about the task of removing an elected officer or appointed officer if they've done wrong. Now notice on impeachment, I only have executive and legislative on here. We have something that's unique in our constitution, and I've read hundreds of them and I haven't seen it in any others. It's called the Court on the Judiciary, and obviously I didn't spell any of this right. That's the benefit of having messy handwriting, people can't tell when you misspell something. But we have the Court on the Judiciary, which is a constitutionally set-up, independent body that can only remove the judges. Again, an attempt to de-politicize the impeachment process and adding another layer of independence to the judicial branch. And again, as we've just heard, in many constitutions we have a general council of membership or citizenship that can watch over everything. It may be an elders council, it may be a general council, but is, as I would say, the all-seeing eye over all of this process, the watcher of the watchers. So in my opinion, you cannot have too many checks and balances to insure the well running of your government.

Now a lot of you can say, "˜Well, Todd Hembree's a Pollyanna. He has 12 lawyers in his office, he has a support staff of 18, the Cherokee Nation has an annual budget of over half a billion dollars, their businesses have another half billion dollars in their budgets. You have the resources, Todd, you have the luxury of talking in these high-minded ideas. You don't know where we're at. We're in the middle of the Utah desert where we have to drive an hour and a half to get to a gas station to fill our tanks up. We don't have adequate housing, we don't have the ability of adequate education. We have two or three people who are really interested in actually forming the government. We can't have all these separations.' And I hear you, I get it. I've done consulting with tribes across the nation. I've been down there where the rubber meets the road, but to me I tell you, you don't have the luxury to not think about these ideas and to not incorporate these separation of powers and checks and balances, because as was said earlier, you're looking at an investment in your future and the way you're going to have that investment pay off is by having a good system of government. I've always liked this saying is that, "˜Well, what if we're doing good? What if we don't have that system, but we're still doing good?' A benevolent dictator is still a dictator. That's why you have to have these systems of checks and balances in there, and how you go about doing that is through, as I said, the diffusion of power on multiple levels, the decentralization of power in your constitution. Use your history and your heritage, use your traditional communities, your clans, to incorporate into your constitution. One of my favorite sayings from my grandfather is, "˜If there's a stone in your shoe the foot is the first to feel it.' Your communities, where you're down in the trenches, if you incorporate them in your government structure in a diversification of your power, it's going to serve you well. And I know I'm short on time and I'm going to open it up for questions, but in the next couple days take advantage of this opportunity. Everyone in this room and their tribes, they have made mistakes and they have had successes. Talk to each other, learn from those mistakes and those successes, because again, I always like to quote my grandfather, he said, "˜Son, you don't have to touch the stove to know that it's hot. If someone's already touched it and been burned, you don't have to go up and do it yourself.' So learn from the people around you. We've all been through this process, sometimes several times. And with that I thank you. I'll open it up to questions and appreciate your invite here."

Julia Coates: The Process of Constitutional Reform: What the Cherokee Nation Did and Why

Producer
Native Nations Institute
Year

Cherokee Nation Councilor Julia Coates presents an overview of the constitutional history of the Cherokee Nation, and chronicles the process the Cherokee Nation followed to reform its constitution in 1999.

People
Native Nations
Resource Type
Citation

Coates, Julia. "The Process of Constitutional Reform: What the Cherokee Nation Did and Why." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 2, 2012. Presentation.

"I will begin, it looks like. This is the second time I've presented at this conference, and I want to thank the Native Nations Institute for inviting me back. I really leapt at the opportunity this year, because we've had some interesting developments related to our constitution that occurred last year and as part of our recent elections.

Just a few points about the Cherokee Nation first of all. The Cherokee Nation is not an IRA [Indian Reorganization Act] government and it is not an OIWA government, the latter being Oklahoma Indian Welfare Act, which is the IRA equivalent for tribes in Oklahoma who were exempted initially from the original IRA. So it's important to state that we're not organized in that fashion. We never have been, and that it's not required that a tribe be organized under either of those statutes. The second thing about the Cherokee Nation is that we actually don't have a reservation. We have never had a reservation. As many of you may know, in 1838 the Cherokee Nation was removed from the Southeast [United States] to the area that is now Oklahoma that was previously known as the Indian Territory, and as part of that removal we received a fee-simple patent from the United States, so essentially as a government we owned our land as private property. It was not land that was held in trust by the United States for the Cherokee Nation. It was land that we owned privately, so we've never had what is called a reservation, but at the time when allotments were made for us it was between the years of 1898 and 1906. The privatization to the government of our land base was smashed, and all of that land went into private individual ownership and unlike the allotments on reservations, that meant that it could be lost. Reservations have tribes with fractionation, or reservation tribes have problems with fractionation of their allotments right now, but for us, 90 percent of those allotments passed out of individual Cherokee ownership within 20 years after the allotment ended. So we only hold in trust or in restriction today about one third of one percent of our original land base to the government. So we don't have a land base per se. We have probably less than 100,000 acres that are in trust or restricted status. At this time, it's not contiguous. It's scattered out all over an area of 14 counties in northeastern Oklahoma. So what we have instead is called a jurisdictional service area, which is the boundaries of the old fee-simple land holding and we exercise jurisdiction for law enforcement purposes, for taxation purposes and things like that within that service area. There are about approximately 300,000 citizens of the Cherokee Nation right now. About 35 percent, 35 to 40 percent of those -- approximately 120,000 -- live within the boundaries. They are still a minority within the boundaries, albeit the largest minority. There are more non-Indians living in our jurisdictional service area right now, however, than there are Cherokees. And about 65 percent of the Cherokee citizenry lives outside of that jurisdictional service area. We are scattered all over the country and as a tribal councilor, I represent the approximately 170,000 people who live outside of the boundaries. There are only two of us out of 17 tribal councilors who represent that large at-large population.

The third thing, just introductory fact I want to give you right now, is that the Cherokee Nation has been a constitutional government ever since 1827, so we're coming up on almost 200 years of constitutional government. Someone made a remark yesterday that many tribes choose to do this, and we were one that did. It was a strategy that we employed to try to defend ourselves politically and legally in the Southeast when it was apparent to us that military options were not there for us any longer, that we could not prevail in that fashion, and so we were looking for other ways to do it in ways that the United States itself would understand and sort of on their terms that we could defend ourselves. So our first constitution was developed in 1827, but it was a long process. I would say it was probably 40 years of struggle internally, even within the Cherokee people, to try to get to that point. There were ups and downs along the way, there were several fairly nonviolent revolts nevertheless that took place against that process, as people did not understand what the movement was for and it took awhile for it to catch on. I would say however by the late 1800s, 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 I would say. It was a government in name only for much of the 20th century. And it's not until the early 1970s that it began to emerge again, that the social climate, the political climate kind of opened up enough to be able to do that. And so one of the first efforts was to develop a superseding constitution to the one that had existed in the 1800s and which had become outdated by that time. So that effort occurred in the early 1970s and it involved the [Cherokee Nation] principal chief at that time, W.W. Keeler, going to a number of grassroots community organizations that were all together known as the Original Cherokee Community Organizations, the OCCO groups, and asking them as community groups to provide input as to what they would like a superseding constitution to look like. Those groups did so. Keeler, his attorney Earl Boyd Pierce, [and]some others were involved in putting together a superseding document. That constitution was taken to Washington in 1975 by the principal chief at that time, Ross Swimmer, for Bureau [of Indian Affairs] approval. We were told in 1975 that Bureau approval would be required of us, even though we had not organized under the Oklahoma Indian Welfare Act. We were nevertheless told that, and so that Bureau approval was required. In that 1975 document, we have an article in it that states that the Bureau also will approve any amendments to this constitution or any superseding constitutions that the Cherokee Nation might develop. The following year in 1976, the Muskogee Creek Nation, a councilor of that Nation, brought a suit against the United States, against the Department of the Interior and the Bureau of Indian Affairs, and one of the outcomes of that lawsuit was that the federal judge said that the five tribes -- the Cherokees, the Choctaws, the Muskogee Creeks, the Chickasaws and the Seminoles -- didn't need to have that Bureau approval, that they could develop new constitutions as exercises of their inherent sovereignty. And so we knew at that point that that article didn't need to be in our constitution as the Bureau had told us, but by that time it was in our constitution and so that was something that we were living with as a result. That '75 constitution also said that we had to have a constitutional convention every 20 years. We had to revisit our constitution every 20 years to keep it current, to keep it updated, to see what kinds of revisions we wanted to make. And so in 1995, that convention took place. I'm sorry, the convention didn't take place, the vote took place to hold the convention. But at the same time in 1995, there was a very strange sort of non-election that happened in the Cherokee Nation, where we had two candidates that were involved in a runoff, and one of the candidates it was discovered had been convicted of felony offenses. The conviction had been expunged and so he had run on that, but the question had gone to our court and our highest court had said an expungement did not mean that he had not been convicted and so they disqualified him from running. At that point, the third-place finisher in the primary, a man named Chad Smith, who later did become our principal chief, questioned the tribal court as to whether he could now enter the election against the other person in the runoff. The court said, no, he could not. And so effectively in 1995, what happened was that a man named Joe Byrd was, just catapulted into the seat of principal chief without any election, any real election actually taking place. So this had happened in that year, and during the term of Chief Byrd, between 1995 and 1999, the Cherokees entered into what has been referred to in our history now as a constitutional crisis. By our constitution, the chief, the administration, is required to provide budgets to the tribal council, which has budgetary authority. The chief did not do that, and so for three years we went without any kind of budget, the council not knowing where the money was, how much money there was, and so they went to the court to try to ask for, to retrieve records from the chief's office. The court issued that order for those records to be achieved and our marshal service, our law enforcement, enacted that court order in what the chief styled as a raid on his office but which was actually a court-ordered search. And with that the chief fired every single member of the marshal service, and he impeached the justices of the Supreme Court, something which under our constitution he didn't have the authority to do. So the Bureau of Indian Affairs police was now brought in to the situation because all of our tribal law enforcement had been fired by the chief, and the justices were barred by BIA police, by federal authorities, from entering their own offices at this point under this mock sort of impeachment that had taken place. This led to a situation where eight of the 15 tribal councilors now began to boycott the tribal council meetings in order that a quorum could never be established and no business could take place. So everything had ground to a halt by 1997 in the Cherokee Nation in terms of any business being done, anything like that.

So, it was under these conditions that we were now going to hold a constitutional convention, and it was a very tough time period in which to do that because the animosities between the two sides in this conflict were becoming extremely entrenched at this point. Nevertheless the process -- which is what I'm really here to talk about today I guess -- was to take testimony, to try just as had been done in the early 1970s, to get input from the Cherokee citizens themselves as to what they would like to see in a very fundamental governing document. And we -- there were a series of essentially town hall-type meetings that took place in all of the communities of the Cherokee Nation, the larger communities at least, and very interestingly for the very first time the Cherokee Nation also sort of extended a hand to the majority of its citizens who were living outside of the boundary, so there were even several of these kinds of convocations that took place in other cities. I know there was one in Houston, there was one in Los Angeles, there was one in Sacramento, there was one that was scheduled to be in Albuquerque as well, but which got cancelled for funding reasons. But the reasons these areas were chosen is because they were areas where Cherokee citizens who lived there had sort of self organized into community organizations, so we had some kind of structure with which to interact in that process. Out of the people who provided testimony, the constitutional commission -- which had been formed by the legislation in 1995 -- selected about 75 delegates. Actually, there was a process where the judicial branch selected eight delegates I believe it was, the executive selected the same number, the legislative selected the same number, the rest were selected by the constitutional commission out of the people who had provided testimony. And I was one person who had provided testimony, and so I was one that was selected by the commission to participate. In total we had about 75 delegates that then attended a constitutional convention, which was held in 1999 just literally four months before there was to be a new election for principal chief. Now the constitutional commission had also drafted a document, a draft constitution out of the testimony that they had received from the people at these hearings, and clearly their intent was that these 75 delegates would come in over a weekend, that they would look at this draft document, they would kind of fine tune it and they would stamp it and we would have a new constitution. The delegates had a different thing in mind, however, as we might suspect, and they immediately hijacked the proceedings as the convention got underway. The commission had established a man named Charles Gourd to be the chairman of the convention. Now the problem for the delegates was that Gourd was also the chief of staff for the principal chief, for Joe Byrd, and so he was perceived as being very, sitting very heavily on one side of this conflict that was going on. So immediately the delegates replaced him with another man named Jay Hannah, who was perceived as a more neutral sort of individual, and from there it went on. They didn't just look at the document and fine tune it. They went line by line through every bit of that document, and what was intended to be a two-day process ended up being a nine-day process, 14-hour days oftentimes as the delegates worked very, very thoroughly through this document. We had a very mixed group. We had nine attorneys, all of them Cherokee Nation citizens, as part of the delegation. We had a number of community people who were part of it. We had people from the legislative branch, we had people who were from the administration, and we had about 20 delegates out of the 75 who were from what we refer to as the at-large citizens, those who lived outside of the boundaries. So it was a very good representation, I think, of real cross sections of the overall citizenry.

Some of the things that we did -- and this was not part of process -- but we strengthened the matters of referenda and recall, because the crisis was proving that we did not have good enough mechanisms to handle a situation such as the one we were finding ourselves in. We expanded the judiciary as well from a system of three tribal Supreme Court justices to five. They were given longer terms. The council terms were staggered. We had term limits placed on the legislative and judicial branches. We established two councilors for the at-large people specifically. They did not have separate specific representation up to that time. And we tried to address some of the outside threats from other tribes and the Bureau of Indian Affairs that were coming at us. So these were some of the things that were taking place.

Probably one of the most interesting things out of this document was the question of the little article requiring BIA approval, and the delegates at the convention removed that. There was just no discussion about it. It took about 20 seconds for everybody to say, 'No, we don't need to have the Bureau of Indian Affairs in our approval process.' So that came out of the 1999 document. But as we finalized this, the convention finalized this document, the next step was to send it to solicitors from the Bureau of Indian Affairs at the various agency offices throughout the United States, and as we did that, these solicitors began to sort of nickel and dime the thing. They looked at it said, 'We don't like this, we don't like that, we don't like...' And our chief at that time, who by then was Chad Smith, who had been elected to replace Joe Byrd, he essentially said to everybody, 'We didn't ask you if you liked it. We asked you if it would pass legal muster. That's all we asked.' And so with them sort of trying to nickel and dime everything, we quickly pulled it back from the solicitors, and what we did instead was that in 2003 we decided that we would put two questions on our ballot. We were having a regular election for principal chief again in that year and we added these two questions for the people to vote on. The first was to vote on one question, one amendment only, which would take the Bureau of Indian Affairs out of our approval process. And then the second question was to approve the overall 1999 document that the convention had put forth. And the people voted on both of those and both of those measures passed. The surprise to me is that in the Bureau of Indian Affairs only about, only two-thirds of our people voted to take them out. There was fully a one-third of our people who said, 'No, let's keep the Bureau in our approval process,' and it mystifies me to this day as to why. I think there was misunderstanding. People thought we were cutting all ties with the Bureau, that we were rejecting any relationship with the Bureau and what would that do to our federal recognition? But two-thirds said, 'Yes, get them out of there,' and so we sent one amendment to the Bureau and that was, take yourselves [the BIA] out of the process. The [BIA] director at that time was Kevin Gover, or the assistant secretary. He assured us that he would, but it never happened. Some people in the interim, Neal McCaleb was the one who got closest to it, sent us a letter stating that yes, that was their intent and then they would do it, but then he resigned before it was actually achieved. So we stayed again in this state of limbo of just sort of having promises from the Bureau that they would take themselves out, but they didn't. So by 2006 our tribal court just said, 'Go ahead and do it. We've got this letter of intent from Neal McCaleb,' and on the basis of that, they said just go ahead and enact this new constitution, implement it within the Cherokee Nation. Our tribal court said that. We had three justices on the court. At that time it was a two to one decision. The dissenting person who said, 'No, we can't move forward until the feds sign off here,' was a woman named Stacy Leeds, and again the following year she ran for principal chief against Chad Smith. So you can do with what you will with that piece of information. I know what I do with it, anyway. But anyway, it was implemented by the court in 2006. The Bureau never said -- we got a couple of things that said, 'You shouldn't do that,' but they did nothing. They took no action whatsoever and this went on for a process of five years until last year, and last year we had another very, very contentious election that took place. We had the incumbent Chad Smith, who in the first election appeared to have won by seven votes out of over 15,000 votes that had been cast. And so this sent everything to a recount. The court got involved, they looked at the votes and noticed that there were 24 ballots that had been improperly notarized and because the vote was so close they said that the winner could not be determined by a mathematical certainty, so it went to a revote basically of the whole situation. In the middle of that process, between the time when the first vote was cast out and the second one was to be taken, our questions over the [Cherokee] Freedman and their citizenship within the Cherokee Nation -- these are descendants of former slaves that had been held by Cherokees -- came up. And we had very quickly a process of the Supreme Court saying, 'No, they were not citizens,' the Bureau of Indian Affairs coming back with a very threatening and intimidating letter saying that we've never actually approved that amendment and we've never approved your election processes for this time. They had never demanded to approve the election procedures for 40 years previously, so we got a very threatening letter from them, we got funds cut off by HUD [U.S. Housing and Urban Development], and we were in this situation now, a situation that I firmly believe was intimidation of our voters, scaring them to death that federal recognition was going to be revoked, because that's what the letter from the BIA essentially states. We made a deal -- many of us did not agree with it -- but our interim chief made a deal at that time with the federal courts to go ahead and allow the freedmen to vote. They did vote, they were given an additional two weeks of voting time beyond that that most Cherokee Nation citizens received -- Cherokee by blood citizens received -- and as a result of that, the challenger won in the election. So this is where we sit at this time, and I know that my time is up at this point, so I'll stop there. But I know that some people have indicated to me privately that this is a question that is coming up for many right now about the Bureau of Indian Affairs and their involvement in the process of our constitutions and our elections. And I would say if you get them out of there, get them out of there, because they in my estimation essentially engineered our last election with these threats of intimidation and so forth. Thank you."

Wilma Mankiller: Governance, Leadership and the Cherokee Nation

Producer
Native Nations Institute
Year

As part of its ongoing interview series "Leading Native Nations," the Native Nations Institute (NNI) interviewed Wilma Mankiller, the late and former Chief of the Cherokee Nation, in September 2008. In the interview, she discussed her compelling personal story as well as the challenges the Cherokee Nation have overcome, the lessons that can be learned from this experience, and her thoughts on nation building, governance, and leadership.

Native Nations
Resource Type
Citation

Mankiller, Wilma. "Governance, Leadership, and the Cherokee Nation." Leading Native Nations interview series. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. September 29, 2008. Interview.

Ian Record:  "Welcome to Leading Native Nations, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. I am your host, Ian Record. Today I am honored to welcome to the program the world-renowned Indigenous leader, Wilma Mankiller. As many of you know, Wilma was the first ever female chief of the Cherokee Nation of Oklahoma, serving as her nation’s highest leader from 1985 to 1995. She also is author of the national best-seller Mankiller: A Chief and Her People. Perhaps the most notable of her many accolades came in 1998 when then-President Bill Clinton awarded Wilma the Presidential Medal of Freedom, the nation’s highest civilian honor. Currently, she serves on numerous organization boards and works with several non-profits to promote community development efforts throughout Indigenous country. Welcome Wilma and thank you for joining us today."

Wilma Mankiller: "You’re welcome. Thank you, I’m happy to be here."

Question: "I’d like to start with a question I ask all of the guests on this program and that is how do you define sovereignty? What does it really mean for Native Nations?"

Mankiller: "I think that the sovereign rights of tribes are inherent. And I think that when thinking about that sovereign it’s important to remind everyday Americans that tribal governments existed before there was a United States government and that many tribes, including the Cherokee Nation, had treaties with other governments before they had a treaty with the first U.S. colony. So the definition of sovereignty is to have control over your own lands and resources and assets, and to have control over your own vision for the future, and to be able to have absolute, to absolutely determine your own destiny."

Q: "As a follow up, in that realm of sovereignty, how to you define a healthy Native community, what does it look like to you?"

Mankiller:  "For me, a healthy community would mean that people would have access to good health care, to education, to all the amenities that are available to a lot of Americans that are not now available to all Native people. But first and foremost I think that in a whole, healthy Native community is a community that still has a sense of interdependence, a community where people trust their own thinking, where people believe in themselves, when people are able to define for themselves what they want for their community, and then have within the community the skills and the ability to make that a reality."

Q: "The Cherokee Nation is the second-largest Native Nation in the United States as you well know, with at last count more than 240,000 citizens, probably more than that now. What challenges does the sheer size of that nation, of your nation, pose to its nation-building efforts, and how does the nation meet those challenges?"

Mankiller:  "I think that probably the biggest challenge is just the increasing cultural, social and economic stratification of the population. And so that in a population that size, for example, just culturally, we have in our communities people that are full Cherokee, that speak Cherokee, that have remained close to their culture. On the other end of the spectrum, we have some Cherokee-enrolled tribal members that have never even been to the Cherokee Nation and don’t have the same connection to the land and to the community, but are enrolled members and certainly have a right to membership, but are different in the way they think. Economically, we have tribal members that are struggling. I live in a very low-income community, in a county with a very low per capita income. So we have some tribal members that have a very low income and on the other end of the spectrum, we have some tribal members who are extremely wealthy. The fellow who owns the Tennessee Titans is an enrolled member of the Cherokee Nation, for example, and there are many other examples of people like that. So I think the challenges is, one of the challenges with a population that size and that stratified – socially, economically, and culturally – is to try to make sure that you find some common ground for all the people who live very different lives, often."

Q:  "You once referred to the Cherokee Nation as a revitalized tribe, stating that, 'After every major upheaval, we have been able to gather together as a people and rebuild a community and a government. Individually and collectively, Cherokee people possess an extraordinary ability to face down adversity and continue moving forward.' Can you dwell on that statement, particularly with respect to the Cherokee Nation’s present and recent past?"

Mankiller:  "I can, and I believe very firmly that the Cherokee Nation is symbolic of other nations as well because I’ve seen the same sort of just heroic ability and to hold onto a sense of who we are as a people and rebuild our families and communities and governments again. What I meant by that is if you look back at Cherokee history, even before removal, and all the things that happened to the Cherokee people and the continuous shrinking of the land base and then the tragedy of the forced removal by the United States military from the southeast to Indian Territory. If you look at how our people reacted to that it’s pretty amazing. When Cherokee people arrived, the last contingent of Cherokee people arrived in 1838 in Indian Territory, what is now Oklahoma, there had been a bitter political division within the tribe over whether Cherokee people should fight to the death to remain in the southeast or participate in that removal. So there was a bitter political division within the tribe. About one-fourth of our entire tribe was dead, that either died on the removal or died while being held in stockades. People had left behind everything they’d ever known in the southeast – places where there were cultural practices, places where their people were buried, places where they had a strong connection with – and watched their homes being raffled off to non-Native settlers. So they arrive with all of that after the removal and yet it’s really remarkable to see what they did. What they did almost immediately is they began rebuilding their families, rebuilding their communities, and rebuilding a government in Indian Territory despite everything that had happened. And it’s amazing. They built some of the first government buildings anywhere in Indian Territory, which are now the oldest buildings in what is now Oklahoma. They built a Supreme Court building. They printed newspapers in Cherokee and English. They started a school system, one of the first school systems west of the Mississippi, Indian or non-Indian, and they built a school for the education of women which is pretty remarkable for that period of time in that part of the world. And so that spirit that allowed them to go through that kind of tragedy and pain and division and yet, keep their vision fixed firmly on the future I think is what I meant when I said that we’re a revitalized tribe. And then after the Civil War, the Cherokee Nation was attacked by the United States Government, and various laws – the Curtis Act, the Dawes Act, our land was allotted – and we again faced another major upheaval. And so, between the early 1900s and the early ‘70s, we were not electing our own tribal leaders. And what’s remarkable is that in my grandfather’s time – and my grandfather’s name was John Yone (sp?), 'Yone' means 'bear' (Mankiller) – in my grandfather’s time, nobody ever, no Cherokees ever gave up the dream of having their own tribal government again. In my grandfather’s era, they would ride horses to each other’s houses and the Cherokee people, they would collect money in a mason jar to send representatives to Washington to tell them that we had treaty rights and we had rights to our own self-governance. So that’s what I mean, I think, when I talk about the spirit of survival and the tenacity of Cherokee people and their just abiding commitment to maintaining a sense of community and a sense of tribal government."

Q: "Let’s turn now to your personal story. Reflecting on your experience, first of all living in an impoverished neighborhood in San Francisco in the 1960s, you once said and I quote, 'That poor people have more tenacity for solving their own problems than most people give them credit for.' Can you elaborate on that statement, particularly with respect to Native peoples efforts to rebuild their nations?"

Mankiller:  "Sure, let me preface my remarks by saying that my family participated in the Bureau of Indian Affairs relocation program, which was really a poorly disguised attempt to remove Native people from their homelands and that’s how we ended up in San Francisco for twenty years. And the better life the Bureau of Indian Affairs promised us was actually a very rough housing project. What I learned living in a housing project in San Francisco which was predominantly African American is that people took care of each other in that community which was very isolated, and is still isolated, the housing project is called Hunter’s Point, the people helped one another and that’s how they got by in life. And what I saw in my own community before we left home, I was ten when we left Oklahoma and went to San Francisco, and what I’ve seen since I’ve returned home is a strong sense of interdependence in our community, and then in other communities that I’ve become aware of as well. People from Mexico, Central and South America, people that live in many of those communities have that same sense of responsibility for one another and interdependence. In our communities, there are always people who have formal leadership positions and titles and then there are the go-to people that folks gravitate toward when there is a crisis. And there are many people in our communities and in all low income communities that have great capacity for leadership, and I believe that community revitalization efforts can never be successful unless they begin at the grassroots level with families who know their community better than anything, outsiders who want to help a community with whatever project – whether its getting a water system or housing or health care or whatever, may have ideas about how to do that, but its never going to be successful if its conceptualized in a vacuum outside the community. For projects to be successful, they have to come from the people and because, you know you can be an expert in anything, there are a lot of smart people at this University, but people who live in low income communities are experts in their community. So the idea is to get a partnership between people who may have external resources and people in the community and then with that partnership they can move forward."

Q:  "Really what you’re talking about is solutions from within, solutions from the ground up, solutions from not just -- as you said, people in elected positions -- but local community leadership. How important is that? When you look across Indian Country and you work in Indian Country and you see some Indian communities very much dependent on the federal government to change things or they expect their tribal governments to do it all. And you’re essentially saying that the spirit of interdependence, the spirit of local solutions in the community, is really what change needs to happen."

Mankiller: "I think that all of that is part of a process of trusting your own thinking. I think if you trust your own thinking and you truly believe that within the cultural context of your tribal community that you can rebuild your nation then you can. Part of what’s happened over centuries of oppression is that our people came to rely on the federal government or the Bureau of Indian Affairs or well-meaning social workers to try to tell us how we should be and to provide things for us. And what’s happened I think in the last few decades is that people are saying, 'No! We can articulate our own needs and we actually have the skills to be able to make, to solve those problems, and make our dreams a reality.' So at the very outset of trying to do something – and I think you have to have a sense of self-efficacy – all these people are always going around to tribal communities with these hot shot business ideas and these other kinds of things, well you know what, you’re not going to get there until you do the basic work first. And the basic work first I think is working with people and making sure that people trust their own thinking first and have a strong sense of self-efficacy and believe in themselves. And once they believe in themselves and have that strong sense then they can do anything; they can move forward with that. It’s pretty easy to do that. People often ask my husband and I how we got people in rural communities to volunteer to build their own houses and water systems and that sort of thing. All we did was trust people; it’s that simple. I mean, not trust idly; it was an absolute trust. Can’t read and write, it doesn’t matter. If you have other skills; maybe the guy who can’t read and write in the community is the best repairman of heavy equipment and can keep the waterline going. There’s a role for everybody. Maybe someone in the community is a good writer, who can help write grants. There’s a role for everybody. So trust in your own thinking I think is key to that."

Q: "Really what you’re getting at is that rebuilding Native Nations, moving those nations forward, forging a common vision is really dependent on broad ownership in that process, it cant just be a top-down solution."

Mankiller: "Absolutely. Before I returned home, I did some work to prepare people for the 1977 treaty conference in Geneva, we were sending lots of Native people to Geneva. And it was interesting, but for me working on sovereignty in an international legal concept is one piece of work that’s important. But, for me, if you’re going to talk about sovereignty, you have to bring the people with you; you can’t be just tribal leaders talking to each other, and academics talking to each other about sovereignty. It has to be with families too, it has to begin with families. And so what we’re describing here is a part of that process."

Q: "Getting back to your personal story, I’m going to move now to 1969. It’s well known that you took part in the Indians of All Tribes takeover of Alcatraz Island. And you credited that experience with giving you more self-respect and a sense of pride. How did that change your life, that experience?"

Mankiller: "Well, it profoundly changed my life. I was a young house wife married to an Ecuadorian kind of living a middle class life in San Francisco. And when I took the boat over to Alcatraz – my brothers and sisters had gone over to join the occupation – and when I took the boat over to Alcatraz it was like an act of revolution almost to do that, to say, 'You know, I’m an adult.' And when I got there and I met leaders like Richard Oakes and John Trudell and many other people there and they articulated things that I had felt, but didn’t know how to express. And they talked about the fundamental rights of tribal governments and the conditions in tribal communities around the country, in a way that was very strong. It was the first time I had ever seen Native people stand up and stare down the United States government. Of course that had a profound impact on me. And because I had all these feelings running around, but didn’t know quite how to express them, so they expressed for me a lot of the things that I felt. And of course at the San Francisco Indian Center I had heard people talking about the relocation program and a lot of other issues, but not in the way these young people spoke about them. Richard Oakes who was Mohawk, and the first leader, was very articulate and very clear about the fundamental rights of tribal government."

Q: "Delving more deeply into this issue of community ownership and rebuilding communities, in the 1970s you returned to Oklahoma and the Cherokee Nation. Can you tell us about your early work with the Cherokee community of Bell and specifically the lessons that community can teach other Native Nations about the importance of tribal citizens taking ownership in rebuilding their communities?"

Mankiller:  "Okay, the Bell community in the early ‘70s and late ‘70s was a predominantly Cherokee community, a bilingual community. About 95 percent of the population was Cherokee, there were a few non-Native families there. About 25 percent had no indoor plumbing. Very dilapidated housing. There was a local school there that was getting ready to close because young families were all moving out. And it’s one of dozens of small Cherokee communities within the Cherokee Nation that are more traditional communities. And they had been trying to get housing and they couldn’t get housing without a decent water system. So we decided that we could do a self-help project there. The idea was conceptualized not by me, it was conceptualized by Ross Swimmer. And I was a staff person at that time, the idea of a self-help project. So because I had this idea about community people being able to lead and had been very vocal about that and about the tribe putting more resources into ideas like that, I was tapped to lead the project. So what we basically said to the community is, 'If you want this to happen, this is your community, this is your houses, this is your kids. And if you want this to happen, you’re going to have to work on it.' And so we will, myself and my husband – my husband was my partner on this project, Charlie Soap – what we said to the people in the Bell community is that, 'We’ll provide the technical assistance and the resources if you will physically build a waterline, I mean put the pipe in the ground, cover it up, build it. And we will get the materials for some new homes and solar panels and we’ll rehab some homes in this community, get the resources to do that if you’ll do the work.' And this was a radical idea at that time, so they were saying: 'Why do we have to do that? The people down the road, the Indian Health Service builds their waterline and the Housing Authority builds their houses. Why should we do that?' And so we went through a process for about a year of meetings and talking and working with people to see that, so that they saw, not just us, but that they saw that it was in their best interest to do that. And that by rebuilding, physically rebuilding their community they would also rebuild a sense of control over their lives. The sense that we had when we went to the first meeting in Bell where almost nobody showed up by the way, the sense we had was that people thought: 'Aw things have always been like this, they’re always going to be like that. A lot of people have promised to help us. It’s not going to happen.' So we had to go from that point to a point where people believed that they actually could learn how to build their own waterline, they could rebuild their community, that things could be better, that the future could be better. So over a period of meetings, it was a long process of meetings, and that tapped into the values of the community. We got people to the point where they believed they could build the water system. Outsiders often focus on what the problems the community had when we started there, but we saw assets too. When we went into the community, the people who fished would share their fish with people in the community, people who hunted would share what they got with people who needed it, and during winter, if older people needed wood for their stoves, people would still get it for them. And so what we did was pretty simple. We just tapped into what we saw already existing there. Outside people said to us at that time, 'Well a lot of people in that community are on welfare. They won’t even work for a living. How do you expect them to volunteer to do these things?' Well, there’s no place to work. If there was a place to work, I’m sure they would, but there’s no place to work there. And so, we felt confident that people would rise to the occasion and build their own water systems and rehab and build their own houses because of what we saw in the community there, despite the problem. And so for me, the first day when we started building the water line, we had organized for a year and divided the water line project into sections so that each family had responsibility for a certain section. Driving down into the Bell community the first day, it was a pretty big deal because for me, it affirmed everything I believed about poor people. I always believed that poor people would rise to the occasion if you partnered with them. And so when I turned the corner and I saw all the people standing there getting ready to start the waterline, it affirmed for me my fundamental belief that we can rebuild our communities and we can rebuild our nations. To me Bell, a little tiny community within the Cherokee Nation, is symbolic of our nations, our people themselves stood on a porch and decided that they could rebuild their community themselves and they did it. And I believe that our leaders can get together and decide that they can rebuild their nations and they can do it."

Q: "In 1985, you became the first female chief of the Cherokee Nation after your predecessor Ross Swimmer stepped down to become the head of the Bureau of Indian Affairs. You subsequently won two elections for principal chief, the second with 82 percent of the vote before leaving office in 1985. Among other accomplishments during your tenure, you oversaw the Cherokee Nation’s historic Self-Determination Agreement with the federal government whereby the Cherokee Nation took over control of Nation programs and services from the Bureau of Indian Affairs. How important was that step in advancing the Cherokee Nation’s efforts to rebuild their Nation and achieve self-sufficiency?"

Mankiller: "Let me start by talking about my election. I was actually elected in 1983 to Deputy Chief position; Ross Swimmer didn’t appoint me. I don’t think he would have appointed me, given that his entire tribal council opposed me. And so I ran for Deputy Chief in 1983 and was elected to that position so when he left in 1985, I automatically assumed his position. But, with regard to self-determination, it was critical. I began my first work in tribal government as a volunteer for the Pit River Tribe in northern California which didn’t take any federal funding. So I was a strong believer that tribe’s should be able to allocate their own resources and make their own decisions about the needs of their people. So during the self-determination era, we took advantage of that every step of the way. And I was in the planning department when we first started contracting tribal programs. So there was a sea change from the time I began working for the tribal government in 1977 to the time that we signed our first self-governance agreement. And I had had a kidney transplant and I was in a hospital in Boston when our first self-governance agreement needed to be signed, and I insisted that they Fedex it to me; I got out of my bed and set out and signed that self-governance agreement because I considered it so critical and so important for our people."

Q: "Following up on that, how did accountability change when you took over your own programs? Often in Indian Country, you see when the outsiders are calling the shots, when they screw up their not around to pay the consequences, it’s the local people. How did the feeling of accountability change when the Cherokee Nation took over?"

Mankiller: "For us, I don’t think it changed that much. We always felt very accountable and we always just dealt with whatever we had to deal with. We were very accustomed to having federal audits and that sort of thing. And so I don’t think that it fundamentally changed the way we did business. We understood that we couldn’t make the Bureau of Indian Affairs a scapegoat anymore. So I’m not sure that it changed that much; I found that most tribal governments are very accountable and set up their own systems for making sure that the funds get appropriated and allocated for the things that they were destined to be appropriated for. And so I’m not sure that made a fundamental change."

Q: "Okay. In 1976, the Cherokee Nation’s Constitution was ratified and just two decades later however, the Nation initiated a major overhaul of that constitution which culminated in the ratification of significant reforms just a few years ago. What compelled the Cherokee Nation to undertake constitutional reform and what were the major outcomes?"

Mankiller: "I think there was a period of time after I left office, and I didn’t run for office again, there was a four-year period when there was a great deal of debate and controversy within the Cherokee Nation. And I think the idea of reforming the constitution came out of that whole controversial era. I’m not sure that our model is the best model for anyone to follow; there’s some lessons people can learn from what we did. My feeling is that the constitution reform efforts, recent constitutional reform efforts, did not come from the people, they came from outside the communities. And my sense – I live in a Cherokee community and my husband works in Cherokee communities – and so we’re in that part of the Cherokee Nation, I’m not sure all the constitutional amendments were properly vetted or necessarily understood and completely supported by people. If you look at the hearings that they conducted around the Cherokee Nation, there wasn’t wide attendance at those hearings. So I guess if there’s a lesson for other tribal governments, if you’re going to do constitutional change, and make sure that the people that will be directly affected by the constitutional changes fully and completely…Take your time. Take your time. Changing a constitution is a major thing. Don’t rush into it. And look at each amendment separately and make sure that people completely and thoroughly understand it before putting it out there."

Q:  "And part of the constitutional reform process that the Cherokee Nation employed involved the Cherokee Constitutional Convention. And that’s essentially a permanent body that periodically reviews the Constitution. How important is that, I mean you talked about 'take your time,' and is that part of that focus on taking your time?"

Mankiller: "It is, but I think again it depends on whose involved in the Constitutional Convention. If you’re going to have a constitutional convention of opinion leaders and political leaders and that sort of thing, that’s one thing. But, if you want a broad citizen participation, then you need a different kind of convention. So, in a tribe as large as ours, a single constitutional convention is not going to get it. There would have to be constitutional conventions in lots of different places with lots of different populations. So again, the lesson I think from our experiences is to have broad participation and take it very slowly and have a great deal of discussion before putting it up for a vote."

Q:  "Because essentially what you need to do by taking it slowly is get that community behind it, which doesn’t happen overnight. [Mankiller: 'Absolutely, absolutely.'] Since you became principal chief of the Cherokee Nation in 1985, Indigenous Country has witnessed a surge in the number of females assuming elected leadership positions in their nations. What, from your perspective, do you feel is driving that trend?"

Mankiller: "I think that there are more pipeline opportunities for women. As tribal governments grow and expand and contract their own hospitals and run their own school systems and run their own businesses, that there are more opportunities for women to administer programs. And they’re in highly visible places. They get to work within tribal government and know tribal government and become known in the community. And so, there are more opportunities for women to lead within the tribe and then some go from an administrative position to running for council and then running for top leadership positions. And I think that education is a factor; I think that more Native women are getting an education, and more Native women are taking advantage of administrative and leadership opportunities within tribal government."

Q: "We’ve already talked about this issue, but I want to ask you a question directly on point. You once said that, 'I want to be remembered as the person who helped us restore faith in ourselves.' Why is this restoration of faith and self so important to securing a vibrant self-determining future for the Cherokee Nation?"

Mankiller: "Well, when I hear that quote I cringe because it sounds very self-important, so I actually hate that quote. But I do believe that an essential part of leadership is, besides all the things like making sure you’re working on legislative issues and legal issues and health and education and jobs and all that sort of thing, is to try to help people understand their own history and understand where we are within the context of that history and to believe in ourselves; to look at our past and see what we’ve done as a people and to remind people that if they want to see our future they just simply need to look at our past to believe in ourselves, to believe in our intellectual ability, to believe in our skills, to believe in our ability to think up solutions to our own problems. I think that is critical to our survival."

Q:  "Following up on that, what you’re really talking about is leaders not just as decision-makers, leaders engaging their citizens, teaching their citizens about what’s possible as you talked about, but also learning from citizens and really engaging them in this rebuilding process."

Mankiller: "Well, I think good leaders make decisions based on information they’ve received from their people. And leadership should be about listening to people, especially listening to people who differ from you and have very different ideas than you do, and then taking the ideas of the people and synthesizing them and then figuring out how to move forward. Leaders who make unilateral decisions and charge ahead I don’t think are good leadership. Good leadership is consultative and good leadership simply means listening to people. And what I tried to do very diligently when I was in office is to set up regular community meetings and I learned a lot more about what was going on in our tribal government in those community meetings then I did by listening to the staff. And so I think that for me the idea of listening is key to good leadership."

Q:  "Moving on, the Cherokee Nation has received multiple awards from the Honoring Nations Program of the Harvard Project on American Indian Economic Development including one for its Cherokee Nation history course, which is mandatory for all new Nation employees, and one for its Cherokee language revitalization project, which seeks to revitalize the Cherokee language by focusing on Cherokee youth. Why did the Cherokee Nation develop these two programs and what role do they play in the Nation’s rebuilding efforts?"

Mankiller: "Well, I think that the history course is just critical. And again I think that for all of us we live busy lives and everyone goes to school and receives a good education, but not that many people have the opportunity to learn about the legal and the political and the cultural history of their own people. And so, the history course provides a historical and cultural context for the current work of staff and members of the Cherokee Nation. It’s a very popular course. I think it’s important to understand our context and where we’ve been in order to figure out how to move forward. And then with the language revitalization program that was started because less than ten thousand people of our tribal membership is still fluent in the Cherokee language. And I think that our current chief felt that there needed to be some radical intervention at all levels and so they’re teaching Cherokee language in the preschool programs, in the public schools, there’s a Cherokee language course at the local university, and encouraging community leaders to speak Cherokee as well. So I think they’re both critical to our survival. If we get you know down the road five hundred years from now, and nobody remembers our history and nobody speaks our language, it’s not going to be very healthy for our people. So this is a tip to make sure that five hundred years from now we’ll still have a viable language and still have a sense of who we are as a people."

Q: "Pretend for a moment that I am a newly elected tribal leader who has been chosen to serve his nation for the first time. Drawing on your extensive experience as a tribal leader, what advice can you share to help empower me to rebuild my nation?"

Mankiller: "I think the best advice I would give is to develop teams of interdisciplinary teams of people to help you in problem-solving; don’t try to do it by yourself. And to rely on people, not just on staff, but people in the community to help you solve big problems. I think that that’s very very important. The other thing is that I think it’s important for leaders to remain focused. The mistake I see not just in tribal leaders, but in leaders in general whether they’re leading a country or leading a parent committee, is that they try to do too many things. And so it’s very important to say, 'What is it I want to accomplish during my term? What are the two or three major things that I want to accomplish during my term?' And then stay focused on them. We have such a daunting set of problems to face each day in tribal government that sometimes you can get sidetracked and the little things take up as much time as the big things and so it’s important to remain focused; that’s another thing I think is very very important. The other thing is I think there needs to be kind of a seamlessness between – this is just a personal thing – between your personal life and your professional life. Indian Country is a very small place and within a tribe it’s even smaller, so that you can't mistreat women, for example, and then be in a leadership position of leading women. So I think that people expect their leaders to conduct themselves in a certain way and it’s important to do that. I had the privilege of working with Peterson Zah, President of the Navajo Nation, and he is just a great example of a family man, a grandfather, someone who always conducted himself with just great dignity and great respect and I think that that’s important too to remember when you’re in leadership its not about you, you represent people and always keep the faces of those people in your head when you go someplace, you’re representing them and when you speak, you’re speaking for them. I think that’s important as well."

Q: "You talked about the importance of leaders focusing on the big picture and not getting sidetracked with the little things. How important are rules and specifically, rules that clearly define the boundaries of your position, how important is that to empowering leaders to be able to focus on the big picture? Because oftentimes, among some Native Nations where the rules aren’t clearly defined, the council feels particular, the council or chief executives feel like they have to do everything because there’s no rules or boundaries set to keep them focused on the big picture."

Mankiller:  "Right, I think that the single most important aspect of that is for there to be a clear role for the executive officer, whether it’s a principal chief or chairman of a business committee, and a clear role for the tribal council. One thing that helped me was that those roles weren’t fuzzy. We had three branches of government, the tribal council had a very clear legislative role and they also had a role for fiscal oversight and budgetary issues, and then my role was to manage, and the courts had their role. And so I think that having a clearly defined role is critical, very critical. And if people don’t have that now, I would encourage them to work very hard to make that happen. I can’t imagine having to make decisions by committee you know, consult people, work with them, but not having fifteen or twenty different people trying to make a decision."

Q:  "These days you’re dedicating a lot of your time and energy to raising awareness about the importance of Native Nations, providing the mainstream media and the general public a clear balanced picture of contemporary Native America. In particular, the amazing stories of success, innovation and renaissance that are taking place across Indigenous Country. Why is this educational effort so critical to Native Nations ability to achieve their nation-building goals?"

Mankiller: "It’s critical because even after hundreds of years of living in our former towns and villages, most Americans don’t know anything about us and there’s not accurate information about Native people in the popular culture, there’s not accurate information about Native people in literature, there’s not accurate information in secondary schools and universities. And because there’s so little accurate information about Native people, a lot of nonsensical stereotypes get developed. And because of those stereotypes, every time a tribal leader goes to the United States Congress and particularly for new members of Congress, they have to educate them about the history of Native people in this country. And so there’s still a number of people who want us to be like we were three hundred years ago or something. And so I think that it’s critical; I actually see shaping public perception as a sovereignty protection issue because I believe very strongly that public perception shapes public policy and that unless we take control of our own image and help frame our own issues and change the image of our people, that it will ultimately affect public policy."

Conclusion: "Well Wilma, I’d like to thank you very much for joining us today. I’ve learned a great deal and I’m sure our audience has as well. That’s all for today’s program of Leading Native Nations, produced by the Native Nations Institute and Arizona Public Media at the University of Arizona. To learn more about this program and Wilma Mankiller and her inspirational story, please visit the Native Nations Institute’s website at www.nni.arizona.edu. Thank you for joining us. Copyright 2008 Arizona Board of Regents."

Overcoming the Politics of Reform: The Story of the 1999 Cherokee Nation of Oklahoma Constitutional Convention

Author
Year

A pressing international challenge is developing processes of constitution-making that manage the politics of reform and produce legitimate and effective constitutions. This challenge is of special concern for numerous American Indian nations that have been embroiled in dual governments and constitutional crises over the past several decades. This article traces the recent constitutional reform process of the second largest Indian nation in the United States, the Cherokee Nation of Oklahoma. During the middle of its own constitutional crisis in 1999, the Nation formed an independent constitution commission and held a nine-day constitutional convention. The inclusiveness and independence of these two institutions —- combined with innovative strategies for achieving maximum citizen education and participation in the reform process —- provide a model for other nations interested in pursuing constitutional reform. In addition, convention debates over the boundaries of citizenship, patterns of political representation, and methods for achieving separation of powers reflect the substantive challenges faced by Indian nations as they have diversified and assumed greater governmental responsibilities over the past several decades.

Native Nations
Resource Type
Citation

Lemont, Eric. Overcoming the Politics of Reform: The Story of the 1999 Cherokee Nation of Oklahoma Constitutional Convention. Harvard Project on American Indian Economic Development. John F. Kennedy School of Government. July, 2001. Paper. (https://fngovernance.org/wp-content/uploads/2020/06/Constitutions_Chero…, accessed January 26, 2022)

iPhone App: The Cherokee Nation Constitution

Year

In 2011, the Cherokee Nation created an iPhone app that provides app users the opportunity to peruse the Nation's current constitution, which was drafted in 1999 and ratified in 2006. Below is some background about the constitution:

The 1999 [Cherokee Nation] constitution convention created this new constitution which was voted and approved by the people during the 2003 tribal elections and enacted by Cherokee Nation in 2006.

At least 300 years prior to the passage of the United States Constitution, North American democracy began with the Iroquois Confederacy's Law of the Great Peace. The Cherokee belong to the Iroquois language family of eastern North America.

The representative democracy of the Iroquois was extensively studied and praised by Benjamin Franklin and Thomas Jefferson, who proposed it as the basis for the United States Constitution. In a backhanded compliment at the Albany Congress in 1754, Franklin said he found it hard to believe that the 13 colonies could not agree to a political union when "Six Nations of ignorant savages" had formed one.

Today, the Cherokee Nation Constitution established a blueprint for our tribal government and allowed us to construct a set of laws to effectively govern the second largest Indian tribe in the United States.

Native Nations
Citation

Cherokee Nation. "The Cherokee Nation Constitution." Cherokee Nation. May 16, 2011. iPhone app. (https://itunes.apple.com/app/1999-cherokee-const/id332097005?mt=8, accessed September 4, 2013)