Tale of tears - involvement of the Bureau of Indian Affairs in the Cherokee Nation of Oklahoma

Reason, March, 1999 by Amy H. Sturgis

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 chiefs 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 chiefs 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.