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Council delays decision on alternate constitution referendum

A billboard along U.S. 441 heading into Cherokee encourages voters to support the proposed constitution. Holly Kays photo A billboard along U.S. 441 heading into Cherokee encourages voters to support the proposed constitution. Holly Kays photo

In a narrowly divided vote Thursday, June 1, the Cherokee Tribal Council delayed deciding on a resolution seeking to upend a planned referendum  to approve the tribe’s first constitution in more than 150 years.

Just two months ago, on April 6, the body unanimously approved the referendum resolution put forth by the Cherokee Community Club Council. During the Sept. 7 General Election, the resolution stated, tribal members would have the chance to vote for or against a proposed constitution that a dedicated group of community members have spent the past six years drafting, publishing and revising.

But in the weeks after the resolution’s passage, Attorney General Michael McConnell told the group that aspects of the document would have harmful unintended consequences if allowed to go into effect as written. He recommended withdrawing the resolution and instead pursuing incremental changes to the Charter and Governing Document that currently stands as the tribe’s supreme law.

The Community Club Council publicly rejected that proposal, but the June 1 agenda included a resolution submitted by McConnell’s office that aims to do just that. If enacted, the resolution would rescind the April 6 referendum resolution — along with a 2022 resolution approving referendum questions regarding term limits and staggered terms for Tribal Council — and replace them with four questions. These questions would ask voters to change the charter’s name to “Constitution of the Eastern Band of Cherokee Indians,” enshrine the Judicial Branch as “a separate and co-equal branch of government,” apply provisions of the Indian Civil Rights Act to judicial proceedings, and limit elected officials in the executive and legislative branches to two consecutive four-year terms.

Conflicting visions

When the session opened June 1, McConnell asked that the resolution be read, given a number and tabled for a work session. Tribal Council agreed to the request, but after the resolution was a read Wolfetown Rep. Mike Parker said he wanted to hear from both McConnell and the Community Club Council, kicking off a 50-minute discussion that at times became heated.

“The fundamental question is what [is] our vision of the best approach,” McConnell said. “Our vision of the best approach, and the more likely successful approach, is to amend the charter in pieces, giving the public relatively short questions that they can have in front of them on the ballot as they’re there deciding whether to check yes or no. Now, the approach of the Constitution Committee is to do a repeal and replace of the charter with the constitution.”

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The proposed constitution also contains “substantive provisions” that would represent an “abrupt, dramatic change” to tribal government, McConnell said. He doesn’t believe that the public is aware of the extent of those changes and thinks that “we should be more direct about some of the changes that are being made in that constitution.”

“To get into those weeds, we could take several hours to do it,” he said.

Beloved Woman Carmaleta Monteith — who is a member of both the Constitution Committee and the Community Club Council — pointed to a sentence in McConnell’s resolution stating that the proposed constitution “contains several positive concepts that could strengthen tribal sovereignty and governance if properly expressed and executed … so as not to trigger unintended or unwanted consequences.” She was disappointed, she said, to see McConnell submit a resolution that, rather than seeking to ensure ideas in the constitution are “properly expressed and executed,” instead aims to tack a small subset of those ideas onto the existing charter.

The Constitution Committee had already — explicitly and publicly — rejected that strategy, she said.

“We rejected this because the charter is not the voice of the people,” she said. “It’s the voice of the government.”

Changing the title and adding a handful of new sections, she said, won’t change that.

McConnell questioned whether the Community Club Council could rightly call itself “the voice of the people.”

“They have presented themselves as the voice of the people,” he said. “They are the voice of a committee.”

That’s not so, the Community Club Council representatives told Council. The constitution language has been discussed in Community Council and Constitution Committee meetings for years, with public participation welcomed, Monteith said. The Cherokee One Feather ran a series offering a side-by-side comparison of the charter and the proposed constitution, and after gathering feedback the paper ran the series again. Every tribal member received a personal copy of the document in the mail, and during a two-day Constitution Convention in March, broadcast via Facebook Live, the Community Club Council discussed and voted on “every single recommendation” submitted by community members.

“This is a document from the people and what the people want — not what Mike McConnell wants,” said Community Club Council member Ernest Tiger. “I don’t understand what a non-tribal member is doing telling us what we’re supposed to be doing with our lives and our laws.”

The Community Club Council met with McConnell to discuss potential revisions to the constitution, Tiger said, but he “flat-out refused to work with us.” The comment triggered a round of verbal sparring between Tiger and McConnell.

“At no time have I refused to work with the Constitution Committee,” McConnell said. “Ernie [Tiger], I take great offense at what you said.”

“You flat out lied,” Tiger returned.

Chairman Richard French resorted to banging his gavel in order to get the conversation back on track.

“We’re not enemies nor wanting to put them in a corner and blame them,” Monteith said of members of McConnell’s office. “That’s not the purpose of this. The purpose is to produce a document that is properly expressed, and to me that’s what needs to be done now — not that they [the Attorney General’s Office] are going to write it for us. We’ll do it like we did at the convention, vote yay or nay.”

Vote to table

Community Club Council member Stephanie Saunooke then asked Council to kill McConnell’s resolution. Such an action would leave no doubt to the community that the constitution referendum would go on as planned.

“Give our people the right to vote,” she said. “Give our people their voices back. Put it on referendum. If they vote yay or nay, at least you gave them a chance to speak.”

None of the constitution’s proponents claimed that the document was perfect — rather, they said, it was the best effort by a broad coalition of tribal members over many years to give the tribe a governing document that represents the will of the people.

“This constitution is by the people, and that’s what a constitution is,” said Yellowhill resident Peggy Hill. “It’s from the bottom up, not from the top down like a charter is.”

While there is still time to make changes to the document before the election process begins, that time is quickly ticking away — and Council’s willingness to consider walking back its April 6 decision may have hurt the chances of seeing such changes through.

“[McConnell] brought to our attention the fact that if we made any changes anywhere, any word whatsoever, to the current document that was approved by Tribal Council, that we would have to rescind and go through this whole process again,” said Shannon Swimmer, a former clerk of court for the tribe. “The Constitution Committee’s concern was that it would not be passed by Council, so we would be taking several steps back.”

Tribal Council has “probably three weeks” to make adjustments, but doing so would require the Community Club Council to request rescinding the approved resolution and present an amended version for adoption, said Yellowhill Rep. David Wolfe.

“If they’re not willing to do that, they’re stuck with what they presented,” he said.

As of now, Swimmer said, a quality document exists, ready to be voted on, and the Community Club Council is ready to launch a robust education campaign ahead of the election.

“Up until now we have never had something this thorough come through before,” said Big Cove Rep. Teresa McCoy.

Birdtown Rep. Boyd Owle disagreed with that assessment. He should have read the proposed constitution more closely before voting to pass it in April, he said, because there’s “some stuff in there I certainly don’t like.”

“I’ve been out campaigning. I’m from the biggest community here and a lot of my people said, ‘No, it’s not ready. It’s a bad product,’” he said. “There’s some stuff in there that’s really going to be very difficult to operate under.”

The final vote was deeply divided but ultimately dismissed Stephanie Saunooke’s request that Tribal Council kill the resolution. Snowbird/Cherokee County Rep. Adam Wachacha moved to table McConnell’s resolution, with a second from Painttown Rep. Dike Sneed. Of the 12 members, seven voted to table, forestalling any potential move to kill — Chairman Richard French, Vice Chairman Albert Rose, Painttown Reps. Michael Stamper and Dike Sneed, Snowbird/Cherokee County Reps. Bucky Brown and Adam Wachacha and Owle.

The road ahead

While it remains to be seen whether tribal members will have the chance to vote on the document Tribal Council approved in April, there is disagreement as to what, if any, negative impacts could follow its adoption.

According to McConnell, the proposed constitution sets the Community Club Council up as an unelected body in Tribal Council with a role in deciding whether the constitution can be changed; prevents Tribal Council from granting rights of way, ensuring that anyone residing on a landlocked parcel of property will remain landlocked; and prevents the tribe from granting limited waivers of sovereign immunity for the purpose of contracting, therefore restricting its ability to carry out economic development projects. He listed additional concerns in an April 28 commentary published in The Cherokee One Feather.

Monteith, meanwhile, said that the constitution’s silence on various points of tribal law is purposeful, and that the language was developed with input from various judges and attorneys within the tribe. McConnell’s interpretation is just that, she said — his interpretation.

“Whatever is missing is covered by the code, which you operate under all the time,” she said.

Swimmer offered a directly hopeful view of what the constitution could do for the Cherokee people, should they choose to adopt it.

“You are not going to lose your per capita. That’s the number one thing. You are going to have rights that are going to be protected and guaranteed by the constitution,” she said. “That was the whole point of working on this, was to guarantee people’s rights.”

Tribal Council’s decision to table McConnell’s resolution leaves the fate of the proposed constitution up in the air. The June 1 meeting was the last regular Council meeting ahead of the July 1 deadline that, according to the Community Club Council, the EBCI Board of Elections has for finalizing ballot language. However, the body could hold a special-called meeting to discuss and vote on the measure.

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