Just as a federal judge was about to get involved, the Cherokee Nation reached an agreement Tuesday to allow descendants of slaves once owned by the Oklahoma tribe's members to vote for its principal chief.
Attorneys for the slave descendants, called freedmen, said the agreement calls for extending balloting for this Saturday's special election until Oct. 8 so that those qualified to vote can be notified and participate.
The agreement came during a hearing in federal court in Washington, where U.S. District Judge Henry Kennedy was poised to deliver his ruling on whether Saturday's election could continue without the freedman participation. Freedmen attorney Jon Velie asked the judge for a 15-minute recess to negotiate over a proposal made by the tribe. After more than an hour huddling in the hallway with his clients and discussing the proposal with other attorneys, Velie returned to court to announce the deal.
Kennedy gave the parties until 10 a.m. Wednesday to submit a written agreement.
The agreement is a temporary reprieve in the long-running debate over whether the freedmen should be given full membership rights in the one of the country's largest tribes. But the lawsuit brought by the slave descendants _ to keep their right to vote and other tribal benefits after tribe members voted to cut them off _ will continue in federal court.
"The main thing is to have an election that doesn't violate tribal or federal law," Cherokee Nation Acting Principal Chief S. Joe Crittenden late Tuesday. "This order should re-establish the status quo as it existed during the June and July elections."
The freedmen also are suing the U.S. government, citing an 1866 federal treaty with the Cherokee Nation they say guarantees their tribal rights. An attorney for the United States, Amber Blaha, told Kennedy at the hearing that the Interior Department believes they have the right to full citizenship rights under the treaty and an election without their participation would be illegal.
Saturday's special election was ordered by the tribe's Supreme 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 freedmen could swing the vote to new leadership of one of the country's largest tribes.
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 and is believed to have the support of many freedmen who voted.
Baker and Smith issued statements late Tuesday blaming each other for the election mess.
Baker said Smith and others had "bungled" the freedmen issue and told supporters it was "time to end this sad chapter in our history of Smith and his Supreme Court tarnishing the Cherokee name."
Smith countered that the agreement was "in direct violation" of the tribe's highest court ruling that freedmen are not citizens of the Cherokee Nation. He accused Baker's attorney of pressuring the tribe's election commission to give the freedmen "special treatment in this election."
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.
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.
Tribal Attorney General Diane Hammons told Kennedy the agreement would basically return the freedmen to the "status quo" before the Supreme Court ruling by allowing those who were qualified then to participate now.
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."
Amid mounting pressure from the federal government, which included the freezing of $33 million in Cherokee funds by the Housing and Urban Development Department, 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.
Tuesday's agreement would count those votes and stipulate that a letter go out to other freedman by Thursday notifying them of their right to participate. Blaha said that it would also require the tribe to submit its election procedures immediately to the U.S. government for review and that no ballots be counted until the end of the extended election period.
Associated Press writer Justin Juozapavicius in Tulsa, Okla., contributed to this report.