The September ballot could include a special election for vice chief of the Eastern Band of Cherokee Indians, pending a decision by the Cherokee Supreme Court.
Cherokee has been without a vice chief since May 25, when Vice Chief Richard Sneed was sworn in as principal chief following Tribal Council’s vote to remove Principal Chief Patrick Lambert from office. Council discussed the vacancy during a special-called meeting Thursday, June 15, spending 50 minutes in closed session before opening the chamber doors.
Many tribal members have been adamant that the new vice chief should be determined through a special election and should not be appointed by the Tribal Council. They’ve pressed the issue in person at the council chambers, as well as on social media.
During the June 15 meeting, councilmembers expressed support for a special election but said they couldn’t make a decision just yet.
“At this point in time, I think everyone around the table doesn’t have a problem with having a special election, but at the same time there’s a question of whether or not it’s against the charter,” said Chairman Bill Taylor, of Wolfetown, as he opened the public portion of the meeting. “So we’ve decided to ask one question to the Supreme Court up here: Does the Tribal Council have the authority to have a special election?”
If the Supreme Court decides that a special election is legal in this case, Taylor said, that’s what will happen. The special election would likely be held in conjunction with the Sept. 7 General Election.
The uncertainty stems from the fact that tribal law doesn’t specifically say how vacancies should be filled if a chief is removed from office. The tribe’s Charter and Governing Document states that, “in the case of death, resignation or disability of the Principal Chief, the Vice-Chief shall become the Principal Chief and shall serve the balance of the elected term of office until removal or disability or his successor is elected.” It continues to say that, in case of the vice chief’s death, resignation or disability, “the Council may elect a successor who shall serve until removal or disability or his successor is elected.”
The statements follow a similar cadence, except for one word: if the principal chief can’t serve, the vice chief “shall” become the principal chief, but if the vice chief can’t serve, Council “may” elect a successor.
In Lambert’s case, no death, resignation or disability occurred, so it could be argued that the passage isn’t directly applicable. However, tribal code discusses the issue in somewhat broader terms — it outlines what should happen in case of a “vacancy,” rather than speaking specifically of “death, resignation or disability” — though the distinction between “shall” and “may” is still there. If the principal chief’s office is vacated, the law reads, the vice chief “shall” become the principal chief, but if the vice chief’s office is vacated, the Tribal Council “may” elect a successor from among its members.
Taylor said that, after hearing from the attorney general’s office and Legislative Attorney Carolyn West during closed session, councilmembers were uncertain as to what restrictions the word “may” places on Tribal Council’s freedom to hold a special election.
“It says Tribal Council ‘may’ elect a successor from within Tribal Council, and that opens up the question whether or not ‘may’ is — may we elect from inside or does that leave it open to have a special election?” Taylor said. “So that’s the question we’re trying to get answered. After everything we’ve been through in the past several months, we don’t want to go back down that road.”
A cruise through a few legal dictionaries shows that there is a distinction between the words “may” and “shall.” According to the dictionary at law.com, may is “a choice to act or not, as distinguished from ‘shall,’ which makes it imperative.” However, the distinction can blur depending on context. “In statutes, and sometimes in contracts, the word ‘may’ must be read in context to determine if it means an act is optional or mandatory, for it may be an imperative,” the definition continues. “The same careful analysis must be made of the word ‘shall.’”
While the consensus was that the question should be sent to the courts, nobody seated around the horseshoe expressed opposition to holding a special election, should the courts deem the action legal.
“Regarding the special election, that would be a very good policy because the time we’re talking about before the next election for chief and vice chief is so far,” said Councilmember Anita Lossiah, of Yellowhill. “It’s over two years. It definitely would be good policy to do that, but we have to make sure it’s in alignment with the charter.”
“We recognize that the public needs to have a say in it if we can do it. If we can do it legally and make it happen that’s what we need to do,” agreed Councilmember Alan “B” Ensley, of Yellowhill. “Hopefully we can pull this tribe back together again.”
Lambert’s impeachment was a divisive issue, causing anger and mistrust between tribal members during the months leading up to Tribal Council’s ultimate decision. Lambert had faced 12 different charges during his impeachment hearing, allegations ranging from contracts executed without proper approval to unauthorized human resources decisions. However, Lambert remained popular throughout the process, with many tribal members repeating Lambert’s own storyline, which held that he had done nothing worthy of impeachment and that the efforts to remove him were simply retaliation for his efforts to expose corruption in tribal government. Early in his administration, Lambert had ordered a forensic audit of tribal government whose results he turned over to the FBI, which is now investigating as a result.
“At the end of the day, we all agree that we want to do what’s best for the tribe,” said Vice Chairman Brandon Jones, of Snowbird. “We want to promote healing, we want to move forward, and I believe that is the best way.”