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Cherokee constitution effort faces hurdle

The Community Club Council smiles after a resolution authorizing a referendum vote on the proposed constitution passed Tribal Council April 6. However, the measure faces additional hurdles before finding a place on the ballot. Holly Kays photo The Community Club Council smiles after a resolution authorizing a referendum vote on the proposed constitution passed Tribal Council April 6. However, the measure faces additional hurdles before finding a place on the ballot. Holly Kays photo

AA proposed constitution for the Eastern Band of Cherokee Indians is facing opposition from the EBCI Attorney General’s Office following Tribal Council’s unanimous vote April 6 to place it on the ballot for referendum this September.

The Constitution Committee — a volunteer group that has been working since 2017 to draft the document with community input — first learned of these objections during an April 20 meeting, as reported in The Cherokee One Feather. One Feather Editor Robert Jumper is a member of the Constitution Committee and attended the meeting.

According to Jumper, Attorney General Mike McConnell told the group that attorneys in his office believe that, as written, the proposed constitution presents “issues and [big] problems that may be unanticipated. We see some things in there that are very troublesome that could create uncertainty in tribal government and could diminish some protections that tribal members currently enjoy.”

During that meeting, McConnell did not provide the committee with a list of specific concerns, and during an interview Thursday, April 27, Constitution Committee Chairman Lloyd Arneach expressed dismay that McConnell still had not listed his concerns for the group. On April 28, less than a week before the next Tribal Council session on May 4, The One Feather published an opinion piece from McConnell outlining apparent issues with the constitution document and his office’s suggested path forward.

“The draft constitution presents some good ideas that the AG’s Office supports — such as establishing the judicial branch and incorporating civil rights protections into the tribe’s primary governing document,” McConnell wrote. “It also, however, presents many unintended consequences that will be harmful to the tribe and will deprive tribal members of established rights protected by the Charter and Governing Document.”

In a bulleted list, McConnell presented “just a few” of the problems he says the proposed constitution will create. The document is not clear as to which elected official may bind the tribe in contracts or which elected official can represent the tribe in government-to-government relations with federal and state agencies, he said, and it removes the authority of the principal chief to manage the tribe’s daily operations. It contains conflicting language as to the roles of the principal chief and vice chief regarding the power to veto legislation.

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McConnell also takes issue with the ballot question itself, which asks voters whether they approve or disapprove of the draft constitution but does not describe what is in the draft constitution or stipulate that passage would mean repealing the Charter and Governing Document. Additionally, McConnell alleges, the document makes Tribal Council, the Cherokee Court and the Cherokee Supreme Court “subservient” to federal court decisions and the U.S. Constitution, limiting tribal sovereignty.

Unlike the proposed constitution, the charter does not contain a section granting civil rights to tribal members. However, it does contain a provision guaranteeing that tribal members will receive equal distributions of per capita payments. That language is not in the proposed constitution, meaning that a future Tribal Council could do away with per capita payments by changing tribal code — a much easier process than amending the charter or constitution.

“The better approach for improving tribal government and serving tribal members is to amend the charter, step-by-step,” McConnell concluded. “An incremental approach is more careful, less disruptive to tribal members, and will produce better results.”

Arneach pointed out that adopting the constitution would not negate anything in tribal code that doesn’t directly conflict with the constitution. A constitution is just a framework, not a blanket covering every possibility.

“Let the code fill in all the blanks, let the code fill in those cracks, those details that the constitution doesn’t cover,” he said. “We did that on purpose because it’s easier to change code as times change than it would be to change the constitution.”

Members of the Constitution Committee and of the Community Club Council, which submitted the referendum resolution to Tribal Council, have bristled at the suggestion that they should scrap the constitution document they’ve been working on for six years and simply rename the charter and amend it piecemeal.

“I believe that over the years if they wanted to amend the charter, that would have already been done,” said Beloved Woman Carmaleta Monteith, who sits on both the Constitution Committee and the Community Club Council. “So substituting the charter for the constitution is not what we’re about.”

Charters govern organizations and corporations, while constitutions define the relationship between a government and its people. Over the course of decades, tribal members have made multiple efforts to replace their charter with a constitution, but so far, those efforts have all failed. The currently proposed document contains 16 articles, vastly expanding on — and in some cases shifting — the framework found in the charter. Notably, the constitution adds a judicial branch as a third and equal branch of government and expressly grants civil rights to tribal members.

Both Monteith and Arneach said they’re willing to work on changes to address McConnell’s concerns, but only within the timeline demanded by the referendum. The ballot language must be signed off on and ready to go by July 1 to meet the Board of Elections’ deadline, and because Tribal Council has already passed a resolution stating the ballot question and the version of the constitution to be voted on, any changes would require a new vote from Tribal Council.

However, it is possible that Tribal Council will vote on the matter again regardless of whether the Community Club Council seeks to amend the proposed constitution. As of press time, Principal Chief Richard Sneed had not taken action on the resolution, or on any legislation Tribal Council passed April 6. He has 30 days to do so, meaning that by May 6 he must sign the legislation, veto it or allow it to pass into effect unsigned. The next Tribal Council date is May 4. Overriding a veto requires a two-thirds vote of Council.

The constitution referendum has been a long time in the making. The Sgadugi Constitution Group began working to draft the document in 2017 and tried to get a referendum on the ballot in the 2019 election, but Council members said they didn’t think the document was “ready,” and requested the resolution be withdrawn. Later that year, the body allocated $70,000 to help with mailings, publications, posters and expenses for forums and other events to engage tribal members in the process. The group hoped to secure a 2021 referendum vote through a petition process but was unsuccessful.

Since then, they’ve worked to refine the document through community engagement and partnership with the Community Club Council. Over the past two years, the entire document has appeared in The Cherokee One Feather installments side-by-side with comparable sections in the Charter, giving readers a look at how the documents differ. In March, the Community Club Council spent two consecutive evenings reviewing recommendations from meetings or community members and voting them up and down before presenting the proposed document to Tribal Council April 6. The body approved the referendum unanimously, with no discussion.

Constitution meetings have been open for any who wish to attend, with public officials welcome provided they attend as private citizens and not representing the power or authority of their office. Arneach and Monteith both expressed dismay that McConnell waited until now to share his reservations.

“Of course, I'm disappointed that that happened at this time, ‘that’ meaning the AG stepped in after we had submitted our final draft for the Council,” Monteith said. “And, of course, the timing for us to work with the AG is limited given our scheduled referendum in September, so I’m highly disappointed this happened at this time.”

McConnell wrote that the timing was a product of the process and of his duty as attorney general. Tribal Council wanted the Constitution Committee to work without interference from the tribal government, he wrote, and so the Office of the Attorney General made a “conscious decision” not to “insert itself” into the committee’s work.

“It was important to avoid the perception that the Attorney General’s Office, in its official capacity, was attempting to dictate the committee’s direction,” McConnell wrote. “Now that Tribal Council has taken official action to move the draft constitution to the next stage, the Office of the Attorney General has a duty to analyze its effect on tribal members and tribal governance, to identify harmful unintended consequences that have gone unnoticed by the committee and that may harm the tribe’s legal position and sovereignty, and to inform tribal leaders and the public of these effects if the draft constitution is approved at the General Election.”

The resolution was passed “very quickly” McConnell wrote. According to Jumper’s reporting, during the April 20 Constitution Committee meeting he said that he’d hoped the resolution would instead be read and tabled to allow time for a work session prior to passage.

“Because they passed it with no questions, he was taken off guard and now is scrambling,” Arneach said of McConnell. “My feeling is, you’re aware of this, you’ve known about this. I’m sorry you didn’t feel like you had the resources to assist with crafting this document, but we have a document, and the communities have approved it. Tribal Council has approved it. And at this point, it’s no longer my document. It’s the community’s document now.”

It will be up to the Community Club Council to decide how to proceed with the effort, but Arneach still hopes to see it succeed.

“Now like a parent, you’ve nourished them, you’ve protected them, you’ve done everything to watch it grow and mature,” he said. “Now it’s time to turn it loose and see what the rest of the world makes of it.”

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