By SCOTT MCKIE B.P.
ONE FEATHER STAFF
During last month’s Tribal Council regular session, four representatives vote for a measure, seven voted against, and one abstained. The measure passed due to the weighted vote power of those four representatives. The issue of the weighted vote, a system where each individual Tribal Council representative’s voting power is based on the population of their said community, came up again in this month’s regular session on Thursday, April 5.
Tribal Council tabled Res. No. 184 (2018), submitted by Painttown Rep. Lisa Taylor and Big Cove Rep. Richard French, which called for Council to use a “one-man, one-vote” rule until a valid census can be accomplished for the Eastern Band of Cherokee Indians. Currently, a weighted vote system is used with Tribal Council representatives, according to Cherokee Code Section 117-12, having the following vote power: Birdtown representatives 12 percent, Wolftown representatives 12 percent, Big Cove representatives 7 percent, Yellowhill representatives 7 percent, Painttown representatives 6 percent, and Cherokee County – Snowbird representatives 6 percent.
The legislation states, “…a valid census to get the proper weighted vote for each Council member would require a counting of each living enrolled tribal member in each community and the truth is there has never been a valid census performed by the Tribe for the purpose of counting enrolled tribal members.”
The legislation further stated, “…until it is possible for Charter Section 19 to be adhered to that Tribal Council votes shall be counted as traditionally and historically done on the basis of ‘one man one vote’ based solely on each Tribal Council Member being equal to one vote and each community having two votes…”
Several Tribal Council representatives said during discussion on the legislation on Thursday that acting on the resolution would violate the Tribe’s Charter and Governing Document. Section 19 of that document states, “ In order to provide equal representation to all members of the Eastern Band, the members of the Tribal Council shall, in their deliberations, cast votes on a weighted basis, with the weight of each vote determined by each Council member. A tribal census, for the purposes of determining the weight of the votes to be cast by each Tribal Council member, shall be conducted prior to the 1981 tribal election and prior to the election each ten years thereafter to determine the number of enrolled tribal members residing in each township.”
The Charter continues, “After the regular 1981 tribal election and each ten years thereafter, the Tribal Council, at its first regular meeting, shall determine the total number of votes to be cast in the Tribal Council and shall allot a voting authority to each Council member. The voting weight allotted to each Council member shall be determined by computing the mathematical ratio, fraction or proportion that exists between the number of enrolled tribal members residing in each township and the total number of enrolled tribal members. All Council members, including the Chairman, shall be entitled to vote on all issues.”
After the legislation was read on Thursday, two moves were immediately made on the floor. Rep. Taylor made the move to table so language in parts of the resolution could be worked on and possibly amended.
Birdtown Rep. Albert Rose made the move to kill and noted, “I don’t think you can change this by resolution anyway…we might be violating our oath by trying to do it by resolution.”
He later added, “Would it not have to go to a referendum vote for the people to change it?”
Michael McConnell, EBCI interim attorney general, answered Rep. Rose and said, “Yes, you would have to have a referendum. I applaud Tribal Council for trying to stay focused on the idea of making sure that the votes represent the population of the community. I don’t think you can get there using the vehicle of this resolution. It essentially asks you not to comply with the Tribal Charter until sometime in the future, and that’s not an approach that you want to take.”
He noted that this issue arose during last May’s impeachment hearings and subsequent court actions. “The Cherokee Supreme Court, in summary, said, ‘yes, this issue has been raised to us that there has not been a valid census done for awhile. The Supreme Court, in its decision, referenced 2001. The Court then went on to say that ‘we recognize that there is a statutory mandate that a census be performed every 10 years; however, there is no express or implied provision that would require all legislative action to cease if that census is not performed’.”
He added, “The Court is saying, ‘Tribal Council, you still have to do your business’.”
Principal Chief Richard G. Sneed referenced a case that came before the U.S. Court of Appeals in 1973 known as White Eagle v. One Feather and said the ‘one man-one-vote’ plan would not be legal, “You can do more representatives which we’re not going to do that. You can do a weighted vote, or you can redistrict…by referendum, the Charter would have to be changed, and when you redistrict recognize that parts of Birdtown will become parts of Yellowhill, etc…from the Supreme Court on down, this has been dealt with already that it violates the Equal Protection Clause of the 14th Amendment and the Indian Civil Rights Act. To say in the resolution, that this was imposed upon us by a federal court, I suppose you could say that, but this goes all the way to the Supreme Court of the United States. Our own Supreme Court has affirmed that the lack of a census does not negate the tribal government’s necessity of it continuing to work.”
Becky Walker, an EBCI tribal member from the Birdtown Community, said a valid tribal census was completed 18 years ago. “There was one done in 2000, and at that time, that census would have redistributed the weighted vote, but the Council that sat at that time chose not to didn’t they, because they knew that some of the larger communities their percentages were going to go even higher.”
She went on to state, “That also means that the other communities lose. So, when you do this census and you come back in here and you vote to redistribute the percentages, those larger communities take your percentage. So, communities that are now six (weighted vote) could become four or five.”
In speaking about several of the smaller communities, she noted, “Your community is going to have less representation.”
Chief Sneed said he didn’t see the point to tabling the legislation. “If Tribal Council wants to put it out for referendum to redistrict, we can do, but what I’m saying is this legislation, in its current form, cannot be acted upon…procedurally, nothing can happen with this resolution…it’s asking you to violate the Charter so I just don’t see how you can carry it out.”
Just prior to the vote, Rep. Rose stated, “I withdraw my move to kill, and I want to accept the 2000 census.” His move didn’t receive a second and the vote on the legislation was taken.
During the discussion, Big Cove Rep. Perry Shell inquired where the currently planned census is in the planning stages. Chief Sneed said the process is going slowly due to hiring issues. Currently, only 39 people have put in applicants, about 100 short of the number needed.
“The issue there is they have to pass a drug test and a federal background check, and I think that’s scaring some folks off,” said Chief Sneed who said a work session will be needed to help resolve some of those issues.