The specter of a constitution has again risen in Cherokee, making its way to committee for the first time in 15 years.
Tribal council last week voted to create a constitutional task force, the second step in a long process that will require discussions, debates and, should it reach the final finish line, a vote by the entire tribe on a document. If approved by the majority of the people, it would forever change their way of governing.
The idea of crafting a self-governing constitution to replace a state-imposed charter for the tribe has been floated on and off for years, at times more seriously than others. It’s always proved too controversial to succeed.
This particular incarnation of the constitutional effort is being spearheaded by Terri Henry, a council member from Painttown just finishing her first term.
Henry is a lawyer who did undergraduate work in political science and international relations, then went on to spend a good chunk of her career in positions with the federal government. Her background qualified her to take the lead.
Each community club representing the six districts of the reservation will nominate two task force members. They will start drafting a document and, most importantly, says Henry, get input from the tribe’s members.
“When you’re talking about something that is as important as a constitutional document, what is really important is that everybody has the same understanding of what the [constitutional] principles are and what the proposed language is,” says Henry.
In that sense, the history of the constitution among the Eastern Band of Cherokee is a double-edged sword for those trying to craft a new document.
The tribe is currently governed under a charter granted by the state of North Carolina. But that hasn’t always been the case. The trail of charters and constitutions is long and complicated. Over the years, the Bureau of Indian Affairs has drifted in and out of the process, there was a constitution, then a charter, then perhaps another charter?
But the original constitution, called the Lloyd Welch Constitution, is the one that is most often cited, the one to which tribal members return when making the case for a constitution. It was created by and named for a man named Lloyd Welch in the late 19th century, shortly after the bulk of the Cherokee were routed from their homelands by the Indian Removal Act.
That document, the only constitution the Eastern Band has known, is really a set of three documents that took two years to complete.
“What we learned is that our people have turned to the Lloyd Welch constitution because that was a constitution ordained by the people. When it moved to a charter from the state of North Carolina, that was lost,” said Sarah Sneed, a lawyer who helped with an initial review, the first step in the constitutional process. “I believe that’s why, over the years, people have clung to the Lloyd Welch documents, because the sovereignty of the people was lost.”
But on the other side, there have been at least six tries to get a new constitution OK’d by the people. Every last one was voted down.
The most recent attempt that made it as far as a referendum was a 1996 version.
A few years later, then-council member PeeWee Crowe tried to resurrect the idea with a council resolution. It was passed, but no action was taken.
This time, it seems, advocates are hoping to overcome obstacles that have hamstrung earlier constitutions through education.
The committee will hold regular meetings, broadcast them on the tribe’s public television station and solicit copious input from all sides.
Specific steps are not yet laid out. With the committee not even formed, it’s a little early to define a set path.
But council members seemed hopeful that this time, the tribe would make it further toward clearer branches of government and true sovereignty, led by the people.
There are 595 federally recognized tribes in the United States, and dozens of them have their own constitutions.
“We have a governing document that’s a charter,” said Henry. “It’s important that we have a constitution. This defines us as a self-governing people.”