Tale of Tears

When the Bureau of Indian Affairs occupied the Cherokee Nation of Oklahoma, it was an old story with a modern twist.

An embattled chief executive, elected with less than half the vote, who refuses to turn over legal documents to official investigators. Capricious firings of public employees on spurious charges. Accusations of misused funds, dubious dealings with the Democratic National Committee, and subverting state power for personal ends. Surreptitiously taped phone calls. Allegations of abuse of power. Indictments for obstruction of justice. Fears that the standing of the highest office in the land--and faith in government--have been irrevocably damaged.

Though the above is unfolding within the borders of the United States, this is not a story about Bill Clinton. It is about recent events in the Cherokee Nation of Oklahoma, the quasi-sovereign entity that covers more than 7,000 square miles in northeastern Oklahoma. In 1997, at the behest of Principal Chief Joe Byrd, who occupies a position analogous to Clinton's, federal Bureau of Indian Affairs agents occupied the CNO's courthouse and disrupted an ongoing investigation into the chief's alleged squandering of tribal monies and trampling of the Cherokee constitution. Two years later, the armed BIA agents are gone, but the controversy continues, playing out in CNO courts and legislative chambers.

Though sharing few specific details with Clinton's scandal, the four-month occupation and the events surrounding it illuminate what might be considered the deeper, structural issues of the Clinton impeachment by providing an object lesson in the necessity of the rule of law and separation of powers. The CNO controversy underscores that real damage is done to the political process when one branch of government refuses to recognize the constitutionally mandated authority of its counterparts.

The occupation also casts a harsh light on the Bureau of Indian Affairs, a bureaucracy that has been called "the worst federal agency" by U.S. News & World Report and characterized as "a multifaceted nightmare" by the inspector general of the Department of the Interior. Indeed, since its birth as part of the War Department in 1824, the BIA has evolved from an ill-conceived and brutal weapon used to eradicate and subjugate native Americans to one of the most widely and consistently criticized units of the federal government.

The Cherokees are the second largest tribe in the United States, and about 70,000 members live within the borders of the CNO. With the city of Tahlequah as its capital, the nation is a democracy with three branches of government--the Chiefdom, the Tribal Council, and the Judicial Appeals Tribunal--that perform roughly the same functions as the U.S. executive, legislative, and judicial branches. Like the U.S. federal government, the Cherokee government is designed to maintain a system of checks and balances among branches.

Joe Byrd was elected chief in 1995, in a race overshadowed by the news that popular incumbent Wilma Mankiller had developed lymphoma and would not run for office. In an election in which only 12 percent of eligible voters turned out, Byrd managed to get just 29 percent of the total. The genesis of the BIA occupation dates to 1996, when Byrd ignored requests by the Tribal Council to provide contracts and other financial records regarding public business. Even when the Cherokee Nation Judicial Appeals Tribunal ruled in late 1996 that Byrd had to surrender the papers for the public record, he refused to comply. After giving Byrd several months to obey the law, Tribal Prosecutor A. Diane Blalock asked Chief Justice Ralph Keen to issue a search warrant for Byrd's office on February 24, 1997.

Cherokee marshals served the warrant the next day and copied the financial records in question. Mere hours later, a furious Byrd publicly announced that he had done nothing wrong. He also fired Cherokee Marshal Service Director Pat Ragsdale and a lieutenant marshal, both of whom had helped execute the search. The battle of executive and judicial wills escalated: Cherokee Justice Dwight Birdwell immediately reinstated the two marshals and ordered that anyone interfering with the orders and investigation of the Judicial Appeals Tribunal would be in contempt of court.

Although Article X of the Cherokee constitution required that he turn over the documents, Byrd said there was "no need" for public scrutiny of the papers because, he promised at a press conference, "absolutely no money had been misused." Ignoring the inconvenient fact that the Cherokee courts had given him six months to comply with its request for financial documents, Byrd said, "I think Ralph Keen should have given me the opportunity to handle that situation myself...all he had to do was call me."

As those events were playing out, Cherokee Marshal Service Director Pat Ragsdale was investigating irregularities in the documents gathered from the chief's office. It seemed clear to Ragsdale that Byrd had illegally diverted Cherokee Nation funds, including some from the Bureau of Indian Affairs, beyond the CNO without proper authorization. Ragsdale informed the FBI, since federal money was involved. After reviewing Ragsdale's information, the FBI launched an investigation on March 6, 1997.

After the FBI probe began, however, Bob Powell, a former Oklahoma Bureau of Investigation agent who had been given the nebulous title "tribal inspector" by Byrd, called the marshals' office. According to a tape of that conversation later filed with the Cherokee courts, Powell suggested to five deputies that allegiance to Byrd would allow them to retain their jobs. Powell explained that Byrd had come into the possession of a wiretap tape supposedly exposing a conspiracy to overthrow him. Powell told the marshals that Byrd was planning to give the tape to federal investigators. Such a ploy, said Powell, would simultaneously win the FBI's support and discredit Byrd's opponents in the Cherokee Nation.

It didn't work out that way. The tape, which included conversations among outspoken Cherokee leaders such as Marvin Summerfield, an editor of the Cherokee Observer newspaper, Justice Dwight Birdwell, and Tribal Councilwoman Barbara Starr-Scott, revealed criticism of the Byrd administration but no "conspiracy" against him. The FBI's questions ultimately centered not on the content of the tape but on the illegal nature of the wiretap that produced it. Far from winning over the FBI to Byrd's cause, the tape implicated the chief in yet more wrongdoing.

Byrd also drew heat for his use of Bob Powell to intimidate members of the Marshal Service. Members of the Tribal Council questioned Powell's appointment by Byrd, especially since the position of "tribal inspector" was not mentioned in the constitution and had never existed before. Tribal Prosecutor Blalock filed contempt and obstruction of justice charges against Powell for interfering with the marshals' investigation of Byrd. Powell responded with the ingenious though disingenuous argument that he did not have to recognize Cherokee national law--despite the fact that he worked for the chief of the nation--because he was not born an ethnic American Indian.

With his power apparently slipping away, Byrd scrambled for footing. On March 20, 1997, he stated that he would not follow orders from the Cherokee Judicial Appeals Tribunal that he considered to be illegal or unconstitutional. In effect, he had given his warning that he would pick and choose the laws he wished to obey. Such a posture would be disturbing in any elected official. But it struck a particularly harsh note among the Cherokees, who were forcibly relocated to Oklahoma after President Andrew Jackson refused to abide by an 1832 U.S. Supreme Court ruling guaranteeing the Cherokees' right to remain in the southeastern United States. An outraged Chief Justice Ralph Keen warned that Byrd had "set himself up as being above the law."

Byrd responded by firing more marshals involved in investigating him. When the court ordered the marshals reinstated, Byrd placed the officials responsible for restoring the marshals' paychecks on administrative leave. In the meantime, Byrd amassed his own private stock of tribal marshals, sworn in and armed by Byrd to protect him and his interests. With each step, the chief moved closer to making the CNO his own personal police state.

But he could not do it alone; he needed outside help. Indeed, a majority of Cherokee legislative and judicial officials opposed him, and the wheels of the Cherokee justice system continued to turn against him with every new discovery in the ongoing investigation into his tenure as chief. Both Chief Byrd and Deputy Chief Garland Eagle were scheduled to appear before the Judicial Appeals Tribunal to show why they shouldn't be held in contempt for ignoring multiple court orders. Had they failed to attend, the marshals were prepared to arrest Byrd, and an impeachment inquiry would have followed. That legal process was aborted by the BIA's intervention.

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