Four years ago, Chief Michell Hicks narrowly won election thanks to out-of-town votes sent in by mail. Of the 13,500 enrolled members, roughly one-third live off the Reservation. Some simply live in neighboring counties. But a few thousand are scattered across the country. In recent elections, they’ve been allowed to vote by mail.
But when it became clear these out-of-town votes could tip the scales — becoming the deciding factor in the last election for chief and one tribal council office — some traditional Cherokee began fighting to curtail the mail-in ballots.
“This is our future, the people that live here, not the people that live away from here, that made their life away from here,” said George Martin during a public hearing before tribal council in 2003 on the issue.
Some felt interests of far-flung tribal members differed from those living on the Reservation. For example, should more gambling revenue be handed out in the per capita checks to each tribal member or invested in the schools and hospital? Should the Reservation make alcohol legal, no doubt increasing revenue at Harrah’s and everyone’s per capita check, but also exacerbating diabetes and domestic violence for those who live there?
Onita Bush, another speaker at the hearing, said tribal members who live elsewhere should come to the Reservation and vote in person if they really cared about the tribe.
“If they want to be Indian, let them come home to vote or stay where they’re at and not vote,” Bush said.
But others felt there should be no restrictions on mail-in ballots. Being a member of the tribe isn’t like being a resident of a state. Just because you move away from the Reservation, you’re still Cherokee.
In spring 2003, tribal council voted 5 to 4 to limit mail-in ballots only to those with extenuating circumstances, like the infirm or those serving overseas in the military who can’t travel to vote in person.
But the chief at the time, Leon Jones, vetoed the bill. Tribal council didn’t have the super-majority it needed to overturn the veto.
“I took an oath to represent all members of this tribe. It didn’t say all members that live here, it said all members,” Jones said of his veto.
To settle the issue, tribal council decided to hold a referendum and let the people decide. The traditionalists won. The referendum in December 2003 came back 1,529 to 1,149 in favor of curtailing mail-in ballots from afar, and was made law in 2004.
Landing in court
But it wasn’t over yet.
Diane Jacobson, an enrolled member of the tribe who lives in Georgia, filed a legal challenge claiming the “vote by mail” restrictions were unconstitutional. Jacobson argued that she had an autistic son and could not easily travel to vote in person.
“Returning to the Reservation to vote requires an extremely difficult almost impossible logistical undertaking,” she argued.
Jacobson claimed she had an equal stake and interest in Cherokee affairs as those who live on the Reservation.
“What the tribal council of the Eastern Band of Cherokee Indians does affects its members all over the United States, not just those who reside on the Reservation,” her case stated. Tribal leaders manage gambling revenues shared by every tribal member, the case stated.
Jacobson’s sister currently serves on tribal council, as did her mom before that, who benefited from mail-in votes in the 2003 election.
The tribe’s legal department defended the restrictions on absentee voting.
“There was no desire to squelch the non-residents right to vote so long as they returned to the Reservation to do so in a traditional way,” the tribe’s legal team argued. Those who supported restrictions on absentee voting felt it was necessary to “preserve the tribe, the tribal community and the tribal culture.”
Jacobson countered that the tribe was trying to “fence out a whole class of its citizens from decision making in critical affairs.” Just because someone can’t vote in person doesn’t mean they are less interested in tribal affairs, she argued.
Court weighs in
The lawsuit spent two years making its way through the Cherokee court system. In Cherokee Tribal Court, Judge Matthew Martin overruled Jacobson’s challenge. Restricting absentee ballots is not tantamount to discrimination, he ruled.
“While there is an undercurrent in the records and arguments before the court that the residents of the Reservation may have been dissatisfied with the increased political power wielded by non-residents by way of open absentee balloting, it remains at most a mere suggestion unsupported by evidence or any material fact and the court cannot say that these rumblings represent basis for the court’s decision,” Martin wrote in his ruling.
“Another rumbling in this record involves the tension between members who leave the Reservation to pursue a better life and those who stay. Who could argue with the plaintiff that enrolled members who leave the Reservation to pursue careers ... are not serving the ultimate interests of the Cherokee people and rising up the Nation?” Martin wrote.
But Martin ruled that it was not his job to hash out the merits of mail-in ballots. His job was to decided whether restrictions on mail-in ballots amounted to discrimination.
The case was appealed to the Supreme Court, which also upheld Martin’s ruling and kept the restrictions on absentee ballots in tact.
“There is no fundamental right to vote by absentee ballot. The absentee ballot is a privilege, not an absolute right,” the ruling stated.