The real question becomes, then, will the vote tally seeming to favor Bill John Baker be sufficient to make irrelevant the votes of the descendants of the Cherokee Freedmen, hopefully mooting this inter-judicial showdown.
I have advocated that tribal courts, in narrow circumstances, should resist federal court orders where the federal court appears to have no other source of jurisdiction but for pure federal common law, such as National Farmers Union. I was thinking, and continue to think, that certain questions of tribal court authority should not concern federal interests — subject areas like tort claims by tribal members against nonmembers who have burned down the entire reservation or tortiously damaged tribal government property and vital materials. But I’d hate to see tribal sovereignty go to the wall to defend the decision of one tribe to clumsily racialize its membership criteria. [I say clumsy because the Dawes rolls are so obviously flawed as to make membership decisions involving the Freedmen with them is negligent at best, and racist at worst.]
The Cherokee Nation Supreme Court could have done what the U.S. Supreme Court has done in circumstances involving international law — defer to the policymaking branches and invoke a form of the political question doctrine. The Court could have simply sat on the case until the dust settled. In fact, it appears both the Nation and the Freedmen descendants asked them to do so. Cherokee already lost millions in HUD money. The tribal court isn’t doing much to alleviate this dispute, and appears to be inflaming it even more.