June 21, 2007

Cherokee Nation of Oklahoma is trying to break a treaty signed in 1866


Federally-recognized tribal governments are in a better position with the United States than ever before. And because of that, I am concerned that the Cherokee Nation of Oklahoma is trying to break a treaty signed in 1866 with the original Cherokees. It is dangerous to try and break a treaty. It opens doors for Congress to abolish their government-to-government relationship with the tribes.


A treaty is a document as powerful as the U.S. Constitution.

In Article VI of the U.S. Constitution, it says:

“This constitution, and Laws of the United States which shall be made Pursuant thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution for Laws of any State to the Contrary notwithstanding.”

Even the entry-level student of Indian Law understands that the only way a treaty can be changed is through another treaty, or an act of Congress. Since the United States no longer makes treaties with Native Americans, congressional action is the only method left.

One of the government functions that was taken away from the Cherokee Nation by the Curtis Act was the right for the tribal citizens to vote for their own leadership.

This right was restored, however, in 1970 with the Principal Chief’s Act, made by Congress.

The Department of the Interior stated in 1971 that there were conditions fundamental to the regulations for the democratic selection of a principal tribal official, “and will be considered to be essential to the approval of any proposed selection regulations.” One of the main conditions cited was “Voter qualifications for the Choctaw, Seminole, Cherokee and Creek people must be broad enough to include the enrolled Freedmen citizens of the respective nations, together with the descendants of such enrollees.”

The language used in the Treaty of Dancing Rabbit Creek, makes the treaties binding. As with other legal documents, decisions and agreements, this becomes binding to all treaties. The Dancing Rabbit Creek treaty states: “all laws except such as from time to time may be enacted in their own National Councils, not inconsistent with the Constitution Treaties, and Laws of the United States; and except such as may, and which have been enacted by Congress, to the extent that Congress, under the Constitution are required to exercise a legislation over Indian Affairs.”

Tribes have worked hard to hold the United States to the promises made in treaties.

One thing that we Indians have always been able to stand proud and say is, “The United States has broken some treaties with us, but we have broken none.” Unfortunately, if the Smith administration succeeds in their illegal attempt to disenfranchise a class of citizens, we will never be able to say this again. All tribes in the United States will be affected, and will be put into the same category of “treaty breakers.” I fear this for all our Native Americans.

Cherokees could set dangerous precedent

The Smith administration evidently believes itself to have more power than Congress by deciding to change the terms of a treaty on their own, and eliminating citizenship and the right to vote for freedman descendants. All Cherokees should stand together and protect their good names for the benefit of all Native Americans.

To break a treaty will affect every federally recognized tribe in the United States. Let’s leave the language that binds treaties as written because a treaty (all treaties) are binding for as long as “the sun comes up in the east, sets in the west, the grass grows, and the waters flow” and because of this language, the U.S. government is much less likely to break another treaty.

But let the Cherokee Nation of Oklahoma break the 1866 Treaty and it could open the door for other treaties to be broken. Let’s keep our tribal governments’ government-to-government relationships with the U.S. government as written, and keep all our treaties intact. This is the way we honor and protect our tribal sovereignty.


George Wickliffe is chief of the United Keetoowah Band of Cherokee Indians in Oklahoma.

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