TULSA, Okla. (AP) -- In a rare move by the government, a federal judge will delve in to the interworking of an American Indian tribe this week by deciding whether to allow the descendants of slaves once owned by members of the Cherokee Nation to vote in the tribe's embattled election for chief.
A special election being held Saturday was ordered by the tribe's highest court after recounts from a flawed election in June were reversed several times, with the longtime chief and his challenger each being declared the winner twice. Tribal experts believe the slave descendants - known as freedmen - could swing the vote to new leadership of one of the country's largest tribes.
U.S. District Judge Henry H. Kennedy will hear arguments Tuesday in Washington, D.C., from attorneys for the freedmen, who are suing to keep their right to vote and other tribal benefits after tribe members voted to cut them off. They're asking for a preliminary injunction, which would allow freedmen to vote like other members of the tribe Saturday.
The election challenges had been playing out in the tribe's court system until the freedmen sued, citing an 1866 treaty with the federal government that they argue guarantees their tribal rights. That pushed the case into the federal courts. The federal government warned the Cherokees this month to reinstate the freedmen, saying Saturday's election would be illegal if they weren't allowed to vote.
Chad Smith, who was chief until a temporary replacement was named after the June election, has actively campaigned for the last decade to remove non-Cherokee freedmen from the tribe's voter rolls. His challenger, longtime tribal councilman Bill John Baker, also backed their removal but not as vocally.
Although no official breakdown exists, attorneys for the freedmen estimate that between 330 and 500 freedmen voted during that election. The tribe initially announced Smith had won by 11 votes, but subsequent tallies had the margins at seven, 266 and five votes.
"My impression is that an overwhelming majority of the freedmen would be supporting Bill John Baker," said attorney Ralph Keen Jr., who is representing the freedmen in tribal court. "They feel like the past administration was so staunchly opposed to their rights that any change would be a change for the better."
After ballots were counted a fifth time from the June election, the tribe's Supreme Court said it couldn't be sure the tally was correct and ordered a new election.
But in the meantime, it upheld a 2007 vote by tribe members to revoke the freedmen's suffrage rights after three-fourths of voters favored doing so.
The Cherokee Nation has about 300,000 members, making it Oklahoma's largest tribe and one of the largest tribes in the U.S. About 2,800 freedmen held tribal rights after fighting for years to regain citizenship privileges that they believe were granted to them under the 1866 treaty, which gave the freedmen and their descendants "all the rights of native Cherokees."
Smith and Baker both backed the tribal court's decision to kick the freedmen out of the tribe. But Baker has appeared less vocal about it while on the campaign trail, inviting the idea by his opponents that he is courting the freedmen vote. Smith, however, has repeatedly invoked the freedmen issue and tells voters he is the only candidate who has consistently defended the results of the 2007 vote.
"The non-Cherokee freedmen are vocal in their support of Baker because they know he will support them instead of the constitutional amendment passed overwhelmingly by the Cherokee people," Smith said. "I have chosen, instead, to be vocal in my support of the Cherokee people."
Jon Velie, a tribal law attorney who also represents freedmen descendants, said it would amount to "political suicide" if Baker came out as strongly as Smith has on the freedmen.
Chuck Hoskin, Jr., a senior adviser to the Baker campaign, dismissed any theory that the freedmen vote would automatically tilt in his candidate's favor.
"No matter what the courts end up deciding, we are confident that Bill John Baker will be elected as the next chief of the Cherokee Nation by a wide margin," Hoskin said.
Amid mounting pressure from the federal government, which included the freezing of $33 million in Cherokee funds by the U.S. Department of Housing and Urban Development, the tribe's election commission decided to allow freedmen to cast provisional ballots for chief - but said those votes would only count in the event of a court order.
The principal chief controls business and gaming enterprises that provide jobs for thousands of Cherokees amid high unemployment, and he or she oversees rural health care facilities and other services. The chief administers a $600 million annual tribal budget, has veto power and sets the tribe's national agenda.
Baker and Smith waged bare-knuckle campaigns in the weeks leading up to the June election, with each accusing the other of negative campaigning and resorting to questionable campaign tactics. At odds on almost every issue, they fought over how many jobs the nation was creating for the Cherokee people, spending on health care and even Smith's use of a twin-engine airplane the tribe has owned for 38 years.