LITTLE ROCK — Cherokees believe splashing a river's water on the face as the sun rises is how a day should start.
Cherokee Nation Principal Chief Chad Smith described the ritual known as "going to water" as a way to illustrate the Cherokee's connection to the land and water, and it explains why the tribe wants to be a part of Oklahoma's pollution lawsuit against Arkansas poultry companies.
"It's one example of a bigger picture that most Indian people embrace," Smith said. "The essence of life is water. Without clean water, your life is basically polluted also."
The Cherokees - so far - have been stopped from being a plaintiff in the federal lawsuit filed in 2005 by Oklahoma Attorney General Drew Edmondson against Springdale-based Tyson Foods and other poultry companies.
U.S. District Judge Greg Frizzell on Tuesday denied the tribe's entry into the lawsuit, saying the Cherokee's request to intervene Sept. 2 came too late.
The trial is scheduled to start Thursday in Tulsa, and it'll go on without the Cherokee Nation.
Tribal lawyers said they plan to file an appeal of Frizzell's decision within days to the 10th U.S. Circuit Courts of Appeals in Denver. Cherokee spokesman Mike Miller said he didn't know if the tribe will ask the appellate court for a "stay" - a judicial order to stop the district court in Tulsa from proceeding with the entire trial until the Cherokee Nation's appeal can be resolved.
The judge's decision to bar the tribe surprised Sarah Krakoff, a University of Colorado law professor and expert on American Indian law.
"It sounds like a mistake to move forward without the tribe, but I can understand the court's impatience," Krakoff said. "Timeliness is one of the issues for intervention."
Smith said the Cherokee Nation believes Edmondson is correct in his assertion that the companies have polluted the Illinois River watershed with poultry litter used to fertilize crops.
SACRED PLACES
Other American Indian tribes have similar spiritual connections to land and water, and there's a strong desire in tribes to protect both, Krakoff said. For example, the Hopi in Arizona recognize sacred places along the Little Colorado River.
"From my experience in Indian country and understanding of the relationship to land, it is a common feature of American Indian religions that their connections are place based," Krakoff said.
Cheyenne Indians in west Oklahoma take part in three annual "sun dances" held simultaneously during the summer at lodges in the towns of Seiling, Hammon and Concho. The participants dance for hours and water is kept away to make the dancers "suffer," but then waterfilled buckets are brought in and blessed near the end of the weekend, said Lawrence Hart, one of 44 tribal chiefs and director of the Cheyenne Cultural Center in Clinton, Okla.
"It's a source of life," Hart said. "That's the way we think of the Washita River, and we would claim it where it goes through our land."
The Cherokees make a similar claim of connection to the Illinois. In court papers, Cherokee Nation Attorney General Diane Hammons explains how the Tribal Council enacted statutes to define the tribe's waters as all streams,lakes and other water bodies in the tribe's 7,000-square mile jurisdictional service area.
TIMELINESS
In court papers filed in Tulsa, attorneys for Oklahoma and the poultry companies acknowledged the Cherokee Nation has known for years about the lawsuit involving the Illinois River.
The poultry companies' attorneys brought up a letter written by Smith, the Cherokee chief, to Edmondson as part of the reason that the tribe shouldn't be allowed to intervene.
The letter, written on March 14, 2005, shows Smith knew about the dispute between Edmondson and the companies even before the lawsuit was filed in June 2005.
"The Cherokee Nation has long been a supporter of protecting the environment," Smith wrote. He mentioned that he'd met with poultry farmers in Oklahoma's Delaware County, saying 25 percent of them are Cherokee.
"They are concerned that the proposed lawsuit would, in effect, put them out of business," Smith wrote.
Thomas C. Green, an attorney representing Springdale-based defendant Tyson Foods, told Frizzell the tribe should have informed the court far sooner that it wanted into the poultry lawsuit.
"It's nonsensical to say that they didn't understand the risks attached to that strategy (of staying out of the lawsuit)," Green told Frizzell last week.
The state and Cherokee Nation argued unsuccessfully that the intervention was timely. The Cherokees and Edmondson struck a deal that was filed with the court May 19, telling the judge that Oklahoma's attorneys had agreed to represent the tribe's interests in the federal lawsuit.
Frizzell, however, declared that deal invalid July 22, and said the tribe needed to be part of the lawsuit for some of the state's claims to be considered by the court. Sept. 2, when the tribe asked to intervene, was six weeks after the July 22 ruling.
"Once we tried to become involved, we did it at a high rate of speed," Miller said.
If kept out, Smith said the tribe will surely bring its own lawsuit against the companies.
"If we don't get in on appeal, we'll have to bring our own action," Smith said. "We certainly would learn from all we observe in this case."
Northwest Arkansas, Pages 7, 14 on 09/21/2009