Tale of Tears

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

Amy Sturgis from the March 1999 issue

(Page 2 of 3)

In April, 1997, after a quick trip to Washington, D.C., to meet with federal officials, Byrd engineered the occupation of his own nation by BIA agents. He did this by employing an unprecedented interpretation of the Cherokee constitution. Although Article V, Section 4 of the document unequivocally states that "no business shall be conducted by the Council unless at least two-thirds...of members thereof regularly elected and qualified shall be in attendance," Byrd asserted that this quorum rule did not apply to "special meetings." On April 15, Byrd assembled the eight (out of a total of 15) council members who still supported him. Though short of a quorum--and in flagrant violation of a requirement that 10 days' notice be given prior to special sessions of the council--Byrd's allies voted unanimously to transfer the Cherokees' law enforcement responsibilities to the BIA.

By nightfall, about two dozen Cherokees, including former Principal Chief Wilma Mankiller, had filed a lawsuit in the Cherokee Nation's Court over the dubious council vote. On April 28, when Chad Smith, a Cherokee constitutional attorney and political opponent of Byrd's, explained the chief's legislative machinations to a fully reconvened Tribal Council, Byrd's armed security guards dragged him from the meeting. (Ironically, that scene prompted The Tulsa World to editorialize that "federal authorities obviously will have to intervene if the tribe is to be saved from its leaders.")

Still without a quorum, Byrd's supporters on the Tribal Council voted to impeach Chief Justice Keen and Justices Philip Viles and Dwight Birdwell. On June 20, with between four and 16 armed BIA agents assisting (sources vary), Byrd's men took control of the Cherokee Supreme Courthouse. The BIA claimed it "had to ensure the safety of the community and its property."

Byrd refused to let Marshal Service Director Pat Ragsdale remove personal belongings for the justices, including the Silver Stars and Purple Heart Justice Birdwell had earned during the Vietnam War. A few days later, when Justice Philip Viles and Court Clerk Gina Waits went to the courthouse to continue their duties for the Judicial Appeals Tribunal investigation of Byrd, they were told that they would be arrested if they did not leave the premises at once. As bewildered Cherokees watched, the BIA removed files on the Byrd investigation from the courthouse and kept anti-Byrd tribe members from entering the building. The BIA had effectively halted a legal inquiry, enabling an embattled leader to ascend to the level of despot. As Muskogee Daily Phoenix editorial writer Derek Melot later commented, "The BIA...stepped beyond [a] `neutral' position and...actively support[ed] Byrd's administration."

With their official investigation hampered by the BIA, the occupied Cherokees fought back in surreptitious ways. On June 22, under the guise of a hog fry, more than 700 Cherokees gathered at Whitaker Park in Pryor, Oklahoma, to raise money for the CNO marshals fired by Byrd. (Though reinstated by the court, they had been unpaid for several months.) The Cherokee Elders Council, a nonpartisan group of elder Cherokee activists that carries great advisory weight within the CNO, lodged a protest when it learned that Byrd's employees had damaged and defaced Justice Birdwell's war medals. Cherokees contacted members of the Oklahoma congressional delegation. Republican Sens. Jim Inhofe and Don Nickles both pledged to work against Byrd, whom Nickles labeled "a dictator."

Oblivious to or uninterested in the dubious legal maneuvers behind its authorization, the BIA continued to occupy the courthouse. The unpaid marshals filed a federal lawsuit against the agency, charging it with interfering in Cherokee national affairs. But even as BIA agents were keeping Cherokees from entering their own courthouse, a federal district court judge dismissed the suit, ruling that "any disposition by this court...would adversely impact and interfere with the internal governance of the Cherokee Nation of Oklahoma and its right to exercise sovereign authority."

In August, 1997, the displaced Judicial Appeals Tribunal ordered the fired marshals to reopen the Cherokee Courthouse so that the investigation of Byrd could continue. But when the marshals approached the building, BIA officers and Byrd's new marshals, now joined by members of the Oklahoma Highway Patrol, reacted violently, injuring six people. A week later, 25 Cherokees filed suits in federal court against members of the BIA and the Oklahoma Highway Patrol, charging them with illegally barring tribal members from the courthouse.

Just when the situation seemed bleakest--and most likely to erupt into serious factional violence--a nonpartisan report on Byrd ordered by the Tribal Council back in 1996 appeared. Released in late August 1997, the Massad Report (named after its principal author, Anthony M. Massad), was the work of three non-Indian attorneys who had no ties to the CNO but were nonetheless conversant with native American political structures in Oklahoma.

In a thorough, generally evenhanded analysis of the situation, the report condemned Byrd's behavior, focusing especially on "the shocking revelations" regarding obstruction of justice and lack of disclosure of financial records. "The principal chief should ensure his assistants are sensitive to his constitutional duty and personal commitment to perform his duties in strict compliance with applicable laws, and that they understand this requires change in their patterns of work," the report said. "The principal chief should expect and encourage criticism as well as support from persons in the other two branches [of government]." The report also called for reinstatement of the "fired" marshals, a reopening of the "closed" courthouse, and a return of the "impeached" justices.

The highly visible--and highly credible--report shamed both Byrd's tribal allies and the BIA, which finally withdrew from the CNO. At last, the law and will of the Cherokee people was reasserted.

But the effect of the BIA's intervention on Byrd's behalf has lingered long after the last armed agents left the area and the immediate crisis passed. As one Cherokee has commented, "[It] looks like we will not enter the 21st century with our self-governance, self-sufficiency and sovereignty intact....In fact, we...have reverted back to the turn of the century."

Indeed, it will be some time before the CNO fully resolves the issues raised by recent events. Byrd continues to serve out his four-year term as principal chief, despite a late 1998 poll that put his approval rating in the single digits. If the BIA occupation he engineered failed to consolidate his power, it did effectively keep him from being impeached. With the next election for principal chief this May, Byrd's critics have decided to wait out his tenure in office rather than begin impeachment proceedings against him.

Key tribal records and files, including those removed by the BIA, are still missing, even as new leads appear in the ongoing investigation of Byrd's alleged misuse of power. Auditors from the U.S. Department of Interior uncovered, in The Tulsa World's phrase, concerted efforts "to woo... federal officials using federal funds," with the goal of creating a personal political empire. Allegations against Byrd now include charges that he made illegal political contributions by "lending" a full-time, paid Cherokee tribal employee to the Democratic National Committee for months at a time, and that he diverted CNO funds to D.C.-based attorneys to secure favors for himself, family members, and supporters. At one point in late 1998, Byrd faced 11 active cases and four pending arrest warrants. In U.S. federal courts, he faces two criminal charges of diversion of federal funds.

However those cases ultimately play out, the experience of having a national leader refuse to comply with legitimate requests from other branches of government has seriously damaged the CNO's political process. The occupation effectively postponed a constitutional convention required by a 1995 law (the Cherokees periodically review their constitution). The convention, tentatively scheduled for 1998, did not take place due to the uproar. Even interest in the upcoming elections seems muted by the affair. As Robert A. Fairbanks, president of the Oklahoma-based native American College Preparatory Center, has observed, "The Cherokees are now wondering how to insure that elected officials henceforth conduct tribal affairs in accordance with the Cherokee National Constitution."

The partisan intervention of federal agents and an alleged relationship between the chief and the Democratic Party have also reinforced fears among the Cherokees that the BIA, far from helping to impartially adjudicate tribal problems, is either avaricious, incompetent, or some combination of the two. Accusations that the BIA is a "mercenary agency" are regularly voiced in public forums. Judicial Appeals Tribunal Justice Philip Viles has said that the agency's intervention was based on a nearly complete "lack of knowledge of facts." According to an Octo-ber 1998 poll of the CNO conducted by Ohio State University researchers, the BIA has a 5 percent approval rating and 90 percent disapproval rating among tribe members.