By SCOTT MCKIE B.P.
ONE FEATHER STAFF
After discussing the possibility of a Constitution for the Eastern Band of Cherokee Indians at a community meeting in the Yellowhill Community in April 2017, a group started meeting to draft one. Just about a year later, the group has a document to present to the EBCI tribal members for their review and comment. They have also established a website, https://sgadugi.org/february-2018-draft-constitution/, where the draft can be viewed.
The Tribe has voted on proposed Constitutions several times in recent history. One of the votes was on Aug. 28, 1984, and according to documents from the BIA, it was “duly rejected by a vote of 737 for and 1,144 against and 1 ballot found spoiled or mutilated in an election in which at least 30 percent of the 3,853 members entitled to vote cast their ballot…”
Fifteen years later, in October 1999, EBCI tribal members headed to the polls and rejected a proposed Constitution by an overwhelming margin of 1,299 votes against to 547 votes for. That draft failed in each of the voting townships.
Lloyd Arneach Jr., an EBCI tribal member from the Yellowhill Community, spoke of how the current draft of the Constitution came to be, “A group discussion on a Constitution for the Eastern Band of Cherokee Indians was initiated by a community member request at a regularly scheduled Yellowhill Community Club meeting in April 2017. The group has increased to include other communities and has been open to anyone interested in participating.”
He noted the group meets on Monday evenings from 6 – 8pm at the Shawn Blanton EOC Building in Cherokee. Arneach said a final draft of the proposed Constitution will be ready for the July regular session of Tribal Council, and they are hoping to have a vote for adoption by the people on Wednesday, Oct. 3 which is Heritage Day/Children’s Day at the Cherokee Indian Fair.
Former Yellowhill Rep. Anita Lossiah has worked with the group and said they began their work by referencing various documents. “We started out with the current Charter and Governing Document, the constitution draft created by the Constitution Committee established by a resolution from the Junaluska Leadership Council, and the constitution draft from Chief Lambert. We have additionally referenced the U.S. Constitution, the Indian Civil Rights Act, the Indian Reorganization Act, the Cherokee Code, and have additionally consulted subject matter experts.”
Lossiah said the proposed Constitution includes some interesting changes to the current tribal governmental structure. “The main changes are the addition of individual rights, three equal but separate branches of government, and term limits for Tribal Council.”
Currently, under the Charter and Governing Document, there is no mention of a Judicial Branch of the EBCI tribal government. The current Judicial Branch was established by Ord. No. 29 which was passed by Tribal Council on April 1, 2000.
On the changes to the group’s proposed Constitution, Arneach said, “The main changes are the addition of individual rights, the formal recognition of three equal but separate branches of government, staggered terms for Tribal Council, and the provisions for term limits for all leaders of each branch of government. It defines Grand Council, impeachment procedures, and provides for voter recalls.”
Lossiah said the establishment of a Constitution is of the utmost importance. “The Eastern Band of Cherokee Indians is at a pivotal point in history. Rarely has a community made such strides of improving the well-being and lifestyles of their members as we have seen over the past 21 years due to gaming. Unfortunately, this has brought new problems, but this has also brought many new opportunities for our members and communities.”
She added, “Additionally, with this newly-acquired revenue comes additional responsibilities. It is the duty of our elected officials to redistribute these gaming proceeds and other acquired funding to best meet the needs of our members and communities. How well is this being done? How well are the rights of our members and communities being protected? Are we putting the money where it is needed most or least? How are we holding the tribal government accountable?”
Lossiah said the current Charter and Governing Document lacks “vital items” such as limiting government, establishing a governmental structure that is fair to all, and outlining individual rights and protections. “Upon review of this document, it became quickly evident that many additions were needed.”
Arneach said the proposed Constitution has been years in the making. “This draft Constitution is an organic document built from the foundational work done by many others before us. This draft is a culmination of these earlier works plus new ideas that best address our current governing needs as established by the people and for the people.”
Carmaleta Monteith, an EBCI tribal elder from the Yellowhill Community, noted, “I took great interest in volunteering to join like-minded community members when the opportunity presented itself to focus on creating a governing document for our Tribe. As long as I can remember, there has been controversy as to whether or not we have an appropriate document to govern our people. Another factor that impacted me was living in a community where unsettling and emotionally-charged incidents led to the subsequent inability for our tribal leaders to conduct business as usual.”
She added, “The work that we have done has created a framework where all tribal members can have input in how we want to be governed. It is hoped that tribal members will respond to the appeal for input by reading and responding to the articles in the One Feather and going to the website sgadugi.org to comment.”
Lossiah also stressed the need for public input on the document. “This document should be the supreme law of the Tribe, the source of all governmental power, and established by the people. All enrolled members should be a part of this process whether they live on or off tribal trust property. This is the only way to establish a document by the people for the people. Individual community discussions are still underway, and drafts can be viewed and commented upon online at sgadugi.org. All comments, concerns, and recommendations are wanted and needed.”
Lossiah concluded with, “It is time, way past time, to adopt a Constitution that meets the needs of our members and communities. The Eastern Band of Cherokee Indians is the driving economic engine of western North Carolina. We need to step up to the duties and responsibilities we have today. We need to better protect our members and communities, better protect our financial investments in this region, and above all better protect our Cherokee culture from eradication. This must start with the establishment of a new Constitution.”
The Preamble for the draft Constitution reads as follows, “We, the Principal People, the Eastern Band of Cherokee Indians, acknowledging the Creator, being determined to hold fast to our ancestral homelands and natural resources; and, in order to establish justice, ensure tranquility and promote our culture, education, language and common welfare and secure to ourselves and our posterity the blessings of liberty, do establish this Constitution of the Eastern Band of Cherokee Indians. Herein we do acknowledge the 1875 Lloyd Welch Constitution, Chapter 207 of the 1887 North Carolina State Charter, and the 1986 Eastern Band of Cherokee Indians Charter and Governing Document and declare that this Constitution supersedes these and all other previous governing documents.”
A Governing Documents Review Committee was convened in 2010 with the passage of Res. No. 271 (2010) which stated that the group was “to research the governing documents of the Tribe, to clarify the role and function of the branches of our tribal government…”
The group released a 64-page report in June 2011 that outlined its findings which included several recommendations including, “The Charter and Governing Document needs to be expanded and enhanced under constitutional principles, which must include an independent court system and protection of the civil rights of tribal members.”
The opening page of their report speaks to the Charter and states, “A long-standing controversy has troubled the Eastern Band of Cherokee Indians community almost 25 years regarding the validity of the Tribe’s Charter and Governing document (the “Charter”). Although addressed by a 1993 Tribal Council-authorized investigation by a committee made up of Tribal Council and community members, criticism of the Charter as invalid continues to persistently arise in Tribal Council proceedings.”
After researching the validity of the Charter, the Review Committee reported, “The 1986 amendments have been repeatedly challenged by tribal members for failing to have been legally ratified. In 1993, the Eastern Band Tribal Council approved the creation of an investigating committee to look into any deficiencies in the referendum election through which the Charter and Governing Document was approved. The Committee, authorized under Resolution No. 1, of that year concluded that Chapter 207 was in effect at the time of the 1986 referendum and its provisions were not followed, therefore, invalidating approval of the Charter and Governing Document.”
The Review Committee came to a different conclusion and reported, “The Committee does not agree that the referendum to approve the 1986 Charter and Governing Document was invalid because a Grand Council was not called and a two-year period of deliberation was not provided. The Committee does conclude, however, that the number of registered votes cast to approve the 1986 changes to the EBCI governing document did not meet the 25 percent approval requirement set by Tribal Council for that election.”
A report from the EBCI Election Board, obtained by the One Feather, states that a total of 1,044 people voted in the above-mentioned referendum vote held on Oct. 8, 1986 which represented 12.5 percent of the eligible voters.
The Review Committee examined several governing documents including the Loyd Welch Constitution (note: although commonly spelled Lloyd, all instances in the report refer to it as Loyd). “…in 1868, they convened, in a Grand Council at Cheoah near what is now the Snowbird community, to prepare an organizing document. This first expression of Eastern Cherokee self-governance is the earliest of three documents contained in what is referred to as the ‘Loyd Welch Constitution’. The 1868 document was expanded and revised through amendment in 1870 by the people assembled at Qualla Town, near present-day Cherokee, North Carolina. Loyd Welch was Principal Chief when the governing document was finally rewritten and adopted in 1875 at the Cheoah Council Grounds.”
After the U.S. Supreme Court ruled against the Tribe in the 1886 court case The Cherokee Trust Funds, the Eastern Band of Cherokee Indians v. the United States and Cherokee Nation, commonly called the Cherokee Nation West, 117 U.S. 288, “the Court commented on the Eastern Band’s constitutional documents, refuting its authority to organize under a constitutional system,” the report states.
The Tribe took action according to the report, “Unable to hold property and without legal protection, the Eastern Band then turned to the state legislature obtaining a corporate charter from North Carolina in 1889, Chapter 211, North Carolina Private Session Laws, amended in 1897 as Chapter 207. Once it achieved status as a North Carolina corporation, the Eastern Cherokees could finally own land and took title to the Qualla Boundary in 1897.”
The state charter stood as the governing document, having been amended a few times, until 1986 when the current Charter and Governing Document was installed.