EDITORIAL: To Be or not To Be; that is Tribal Court’s question      

by Jan 19, 2016OPINIONS0 comments





There has been quite a stir recently over the proper place of the Tribal Court. We have had front row seats via cable and live stream during Tribal Council sessions to the debate over the powers of the different branches of tribal government. Just what is a “branch” anyway?

We have before discussed the definition of situational truth. It is a truth that depends on position, timing and/or personal ethics. Two people on different sides of a particular situation have opposite opinions concerning the situation. Is one right and the other wrong? Not necessarily. Both may have valid arguments supporting their side of the position, but their position and personal ethics differ to the point that they cannot come to a clear and absolute truth.

Such would seem to be the case, at the moment, with regard to the “branches” of our government. If you Google “branches of government”, Google will provide you with a nice list of explanations of how representative democracy works. This model has been applied to the United States federal, state and even local municipal governments. There is a legislative body that creates law, a judicial body that interprets the law and an executive body that enforces or carries out law. In at least the first couple of pages of options, you will see that model described ad nauseam. At those same sites or pages, you will see references to separation of powers or duties. Theoretically or situationally speaking, the presumption is that a clear separation in the duties of creation, interpretation and enforcement of the law must be maintained or the government will not effectively function.

Now, long before the federal government was born, Native American tribes had functional governments. And, those governments, including the Cherokee people’s government, functioned quite well. Back in the day, there were war chiefs, peace chiefs and tribal councils. Before that, there is mention in Cherokee history (Payne-Butrick Papers; Anderson, Brown & Rogers; 2010; University of Nebraska Press) of a “U-kv” or God’s man and a council of elders who formulated law, interpreted law and executed law. From what I can see in the materials that I researched, judges came along after contact with the immigrants (or invaders, depending on your situational truth).

I can only imagine that those who wrote the charter and governing document were drawing on the historic governance of the Cherokee, because there is no mention of a third, separate but equal, branch of government called the Judicial. There is a Principal Chief, Vice Chief and 12 members of Tribal Council, but no Tribal Court. According to www.municode.com, these documents were enacted and adopted by the Tribal Council on May 8, 1986 and last amended on Oct. 8, 1986.

Then, roughly four years later, the tribe, through Tribal Council, resolved that it did need an interpreter of law. Chapter 7 – Judicial Code of the Cherokee Municipal Code creates or composes what is termed a “Judicial Branch”. The code lays out the process for appointment of justices or judges, and establishes a Trial and Supreme Court. In Section 7-5 (e), which outlines the powers of the Supreme Court of the Judicial Branch, the Code states, “Orders of the Supreme Court are final and shall not be subject to appeal to any other body of the Eastern Band of Cherokee Indians”. Also, in Section 7-3 (d), the Code sets the judges and justices of Judicial Branch apart from the Tribe’s personnel policies and procedures, stating the rest of the branch are deemed Tribal employees.

So, is there a third branch of Tribal government for the Eastern Band of Cherokee Indians? Some say that since the Judicial Branch is not included in the Charter and governing document, it cannot be a true third branch. Others say yes since the Judicial “Branch” is codified, with powers extending to “all persons, activities, and property within the territory of the Eastern Band based upon inherent territorial and popular sovereignty…original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Charter, laws, customs, and traditions of the Eastern Band”.

It may be just a matter of language and terminology. Or, it may be a situational truth that Tribal Council, the Executive Office and, you will resolve. On Principal Chief Lambert’s first day before Tribal Council, he took responsibility for providing a draft Constitution this year. Once Chief Lambert and the Tribal Council have that document ready for the members of the Tribe, you will ultimately give the answer to the question.