Proposal aims to replace Cherokee constitution adoption with Charter amendments
During its next meeting Thursday, June 1, the Cherokee Tribal Council is set to debate the future of a referendum vote that could give the tribe its first constitution in more than 150 years.
In its April 6 meeting, the body unanimously approved a resolution placing the proposed constitution — developed with community input over the course of six years by a dedicated group of tribal members — on the ballot in the Sept. 7 General Election. But afterward, Attorney General Michael McConnell attended an April 20 meeting of the Constitution Committee to say that as currently written, the document would have some “very troublesome” unintended consequences. McConnell recommended withdrawing the referendum resolution and instead addressing issues with the tribe’s current governmental structure through piecemeal amendments to the Charter and Governing Document, which currently stands as the tribe’s supreme law.
The Cherokee Community Club Council — the group that submitted the constitution referendum resolution — publicly rejected that suggestion in a May 12 commentary published in The Cherokee One Feather. However, that’s the solution that Tribal Council is slated to consider June 1.
The resolution on the June agenda, which was submitted by McConnell’s office, would rescind the constitution referendum approved April 6 as well as a separate referendum resolution, approved in March 2022, that sought to amend the Charter and Governing Document to institute staggered terms and term limits for Tribal Council. In its place, the resolution would approve a referendum vote on four amendments to the Charter.
The referendum questions proposed by McConnell’s office would ask voters to change the Charter’s name to “Constitution of the Eastern Band of Cherokee Indians” and to add three new sections to the document. The first, Section 25, would enshrine the Judicial Branch as “a separate and co-equal brand of government,” its power vested in the Cherokee Supreme Court “and in such inferior courts as Tribal Council may from time to time ordain and establish.”
The second new section would state that “all provisions of the Indian Civil Rights Act shall apply in all judicial proceedings,” while the third deals with term limits for Tribal Council, chief and vice chief. These provisions nod to those contained in the proposed constitution and 2022 referendum resolution. Under the language proposed by McConnell’s office, these officials would be limited to no more than four consecutive two-year terms, excluding time served if filling an unfinished term through special election or appointment to the office. However, the amendment would not institute the staggered terms for Tribal Council members discussed in both the 2022 referendum resolution and the proposed constitution. All 12 Tribal Council members would continue to stand for election simultaneously, albeit once every four years instead of every two.
This “more measured approach” reflects “due caution and respect for the tribe’s existing legal framework,” the resolution says. While the proposed constitution “contains several positive concepts that could strengthen tribal sovereignty and governance if properly expressed and executed in relation to existing law,” immediately repealing the Charter and replacing it with the Constitution “will void or conflict with multiple existing tribal laws and, because it shifts governmental functions and powers, some of its provisions cannot be implemented without a plan for its succession as the supreme law of the tribe,” the resolution says.
In its commentary to The One Feather, the Cherokee Community Club Council said that the constitution group has welcomed input from “outside perspectives” and “subject matter experts” during its years of work on the document, questioning why McConnell waited until after the April 6 vote to specify his concerns. After all, the commentary points out, the resolution was on Council’s published agenda for at least a week prior to the session.
The commentary responds to McConnell’s concerns point by point and stresses that the Constitution is meant to be a legal framework for tribal government, not an exhaustive treatment of each possible scenario. Areas not addressed by the Constitution would be filled in by the Cherokee Code, as has been the case under the Charter.
“All of the Cherokee Code would remain in effect as long as it does not contradict the Constitution,” the commentary states. “As an example, the Constitution does not express or explain how enrollment will work; it refers to the Cherokee Code. The Charter does not even mention enrollment.”
Should the constitution be adopted, some areas of existing tribal code would certainly come into conflict with this new supreme law, the commentary acknowledges, increasing the workload for McConnell’s office.
“We understand that passage of the Constitution will create challenges for the attorney general’s office,” the commentary says. “We have faith in the people and the attorney general’s office that we can work together to navigate this transition to unite the voice of all our people.”
It’s unclear how McConnell’s proposal will fare during Thursday’s meeting. Two months ago, the resolution submitted by the Community Club Council passed unanimously, with no discussion or pushback. But Snowbird/Cherokee County Rep. Adam Wachacha was absent from that vote, and some Tribal Council members might be second-guessing their previous decision. During the May 4 meeting, Painttown Rep. Dike Sneed said he planned to request that the constitution referendum come back to the floor in June in order to get “some issues with it” “worked out” ahead of the election.
Despite the resolution’s unanimous passage, Principal Chief Richard Sneed did not sign it, choosing instead to allow it to go into effect unsigned. In a May 17 debate, five of the six candidates for principal chief said that, while they support the effort to create a constitution for the tribe, they have reservations about certain aspects of the proposed document. Big Cove resident Lori Taylor was the only candidate expressing unequivocal support for the constitution as written.
Implementing the 24-page proposed constitution would represent a massive shift from the much shorter Charter that now governs one of the country’s wealthiest tribes, attempting to thread the needle on complex issues related to governmental structure, tribal sovereignty and civil rights. But the clock is ticking on efforts to amend the question facing voters Sept. 7 — the referendum question must be completed, approved and ratified by July 1 to make the ballot.