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Cherokee constitution debate continues: Ballot deadline approaching

Constitution Committee Chairman Lloyd Arneach addresses Tribal Council June 21. EBCI Livestream photo Constitution Committee Chairman Lloyd Arneach addresses Tribal Council June 21. EBCI Livestream photo

Over nearly three hours Wednesday, June 21, Tribal Council heard from attorneys offering dire warnings about the unintended consequences that could befall the Eastern Band of Cherokee Indians should it adopt a proposed constitution  — and from tribal members imploring the body to trust voters to decide whether the document should become the tribe’s first constitution in more than 150 years.

 Tribal Council is expected to make a final decision on the referendum question determining the fate of the constitutional effort during its next meeting Thursday, July 13. Though most Tribal Council members listed at least one or two things they did not like about the document, the majority voiced support for allowing a referendum vote during the General Election Thursday, Sept. 7.

Officially, the proposed constitution is already authorized to appear on the ballot. Tribal Council voted  on that in April, with no discussion and unanimous approval. Principal Chief Richard Sneed took no action, allowing the resolution to pass into effect unsigned after 30 days.

But in the weeks following the vote, Attorney General Mike McConnell began raising questions  about how the proposed constitution might negatively impact the tribe, should it be adopted. In June, he introduced a resolution  seeking to replace the constitution referendum with a series of four questions that would amend the Charter and Governing Document and rename it as a constitution. Council voted to table that resolution and schedule the June 21 work session

Objections from the attorney general

The discussion covered a lot of territory but came down to a fundamental disagreement as to whether certain sections of the proposed constitution would have detrimental impacts on the tribe — as argued by McConnell and Senior Associate Attorney General Hannah Smith — or whether the flaws were minor and easily fixed through the accessible amendment process described in the document.

The proposed constitution has a “substantial” number of issues that would jeopardize tribal government functions “at the highest level,” Smith said.

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“We would have to go to court and fight about it,” she said. “We don’t need a constitution that right out of the gate provides litigation opportunities and unclear powers and limitations.”  

Top of the list of issues with the document, she said, was its likely impact on the tribe’s ability to enter into business agreements with non-tribal entities. The proposed constitution states that the Eastern Band of Cherokee Indians “shall be conclusively immune from any cause whatsoever as an established sovereign.” While it includes a limited waiver that allows it to be sued within the tribal court system in relation to rights guaranteed by the constitution, it does not state that waivers are available for the purposes of contracts and business agreements.  

“If the proposed constitution passes at referendum … [the Tribal Casino Gaming Enterprise] could no longer seek loans, do any major construction, and couldn’t enter other various agreements with management firms, etc.,” Smith wrote in a June 30 commentary published in The Cherokee One Feather. “Similarly, the Tribe’s other legal entities could no longer come before the Council to ask for limited waivers of immunity either.”

She also took issue with provisions in the article setting up the judicial branch. The current Charter and Governing Document, which stands as the tribe’s supreme law, does not include a judicial branch of government at all — the tribal court system was created through a law of Tribal Council and could be dismantled with the same.

While Smith is “on board” with enshrining this branch of government in the tribe’s foundational legal document, she believes the wording contained in the proposed constitution would “derail” the judiciary as it currently exists. In a May 30 letter of Mary Herr of the Swain County Democrats Whittier/Cherokee Precinct referenced during the June 21 meeting, Smith wrote that language in the proposed constitution would “make it impossible” for the tribe to maintain the standards that it needs to exercise expanded criminal jurisdiction as provided by the federal Violence Against Women Act. It would also restrain judges from “making rulings consistent with Cherokee values, customs and traditions” by “forcing certain federal rulings to take precedent,” she wrote.

Both Smith and McConnell criticized the role of the Cherokee Community Club Council in the selection of judges, constitutional amendment process and in other areas of the proposed constitution, saying the document set the Council up as an unelected fourth branch of government. The Community Club Council is a volunteer organization made up of leaders from the each of the tribe’s nine community clubs.

Under the proposed constitution, the Constitution Convention during which amendments could be proposed for referendum vote would run from a budget prepared by the Cherokee Community Club Council and be attended by an equal number of delegates “from each branch of government; Legislative, Executive, Judicial, and from the Cherokee Community Club Council.” Meanwhile, recommendations for judicial appointments would be submitted by a panel consisting of officers of the Community Club Council and members of the judiciary. Tribal Council would confirm these appointments.

“Community Club Council should not be a fourth branch of government,” said Attorney General Mike McConnell. “And that’s what they’re setting themselves up to be.”

Ongoing support

Proponents of the proposed constitution admitted that the document had flaws but said that Smith and McConnell had grossly exaggerated their impact — and inexplicably delayed communicating their concerns. Several of the points that Smith made in her initial comments to Tribal Council were flat wrong, said Constitution Committee Chairman Lloyd Arneach.

For example, Smith stated that the tribe would be stuck with the constitution it approved for at least two decades, because the document allows for amendments to be made only every 20 years. But the document actually says that a Constitutional Convention to consider amendments shall be held “at least” every 20 years.

Amending the current Charter requires a voter turnout of at least 51%, all but guaranteeing changes can be considered only during the chief’s election once every four years, but the proposed constitution would reduce the turnout requirement for amendments to 33%.

“We wanted to make it possible to amend the constitution,” Arneach said. “Not improbable. Which, that’s where the charter is right now.”

As to Smith’s concerns about the Community Club Council’s establishment as a fourth branch of government, that’s incorrect, Arneach said. The Council is tasked with organizing the Constitutional Convention, but not with passing legislation, he said, and while the Council is “part of the interview process” for selecting justices, the final decision still lies with Tribal Council.

“The Community Club Council has no legislative ability,” Arneach said. “They have no authority at all.”

Arneach didn’t address concerns about the constitution preventing limited waivers of sovereign immunity in business deals, but he and other speakers emphasized the ability to amend the document as issues arise. Even the Charter has many flaws, they pointed out, along with set-in-stone provisions that are flat-out ignored. In Section 19, the Charter mandates that a tribal census be carried out every 10 years and used to determine weighted votes on Tribal Council. But the tribal census currently underway  is the first since 2001.

“That makes the argument of the Attorney General’s Office a little watery to me,” Robert Jumper, editor of the Cherokee One Feather and member of the Constitution Committee, wrote in a June 30 editorial. “They claim that the constitution, if accepted by the People, and used to replace the Charter would be this nearly irrevocable law that would be catastrophic in its inflexibility and would hamstring tribal negotiations because of the ‘shall’ language in it, then why isn’t that true of the Charter, where ‘shall’ language is ignored by the government without consequence to the government for years.”

Arneach also questioned the timing of these concerns from the Attorney General’s Office. When the group presented an earlier draft of the constitution years ago, Arneach said, McConnell approached him with concerns, and Arneach invited him to participate in the revision process. But that didn’t happen. The Constitution Committee didn’t hear from McConnell’s office when the Community Club Council held its Constitutional Convention, or during the two weeks between Tribal Council’s vote and the proposed referendum being submitted to tribal government.

“They had two weeks to look at the document, to have those issues and concerns brought to you prior to your meeting,” Arneach said. “If they had issues, why not voice it before your meeting?” 

A ticking clock

From members of the public and Community Club Council members attending the meeting, the message was clear.

“All you guys are up for re-election,” said Missy Crowe, a member of the Yellowhill community. “You want us to trust you with our vote. Then do me a favor. Trust the people with our vote and let us vote for this constitution.”

It appears that most Tribal Council members agree. In response to a request from Elvia Walkingstick, each of the 12 Council members spoke in turn to deliver their thoughts on the proposal.

Nearly all of them named something they didn’t like about the current document. Many took issue with a provision establishing 25 as the minimum age for a Tribal Council member — something Smith alleged in the letter to Herr “retracts existing rights for tribal members aged 18-24.” 

However, only two of the 12 Council members — Birdtown Rep. Boyd Owle and Painttown Rep. Dike Sneed — said they’d likely vote against allowing the planned referendum vote to stand.

“When this comes up next month will I vote for it, will I vote against it? I have to be honest, I’ll probably vote against it,” Owle said.

The other members all said they’d support letting the people decide, though some of those said they weren’t sure whether they personally would vote in favor of the constitution at the ballot box.

“A lot of [voters] hate that they’re put in this position, because they feel that the document wasn’t ready to go, and so they almost feel like they would have to vote against it, and they don’t want to. And so they’re struggling,” said Snowbird/Cherokee County Rep. Adam Wachacha. “And that’s what I’m doing. I’m struggling too. Because I love a lot of the stuff that’s in this constitution. There’s a lot of great language that’s in this constitution. But there are things that may hinder me from supporting it as a voter myself when the referendum happens.”

Others were more sanguine about the proposal and its potential to improve life and legal protections for tribal members for generations to come.

“This document, every soul, every member of this tribe, it will have a positive impact for them,” said Big Cove Rep. Teresa McCoy.

The clock is ticking to decide the referendum’s fate. In some sense, it’s already run out.

Arneach, who is also a member of the EBCI Board of Elections, said the deadline for changes to ballot language is July 21. Tribal Council will consider McConnell’s resolution to replace the constitution referendum with a series of referendum questions amending the charter during its next meeting July 13, but any action of Tribal Council must pass to Principal Chief Richard Sneed before becoming effective. Sneed has 30 days to sign, veto or pass into law unsigned any action of Council – a timeframe that runs past the July 21 deadline. 

“I am more than happy to sit down with Tribal Council, with AG’s office, with anybody else, Community Club, to work on the document,” Arneach said. “But it has to be in the timeframe we that we need. Right now, we don’t have the time.”

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