COMMENTARY: Time to clear up the governing document confusion

by Oct 8, 2018OPINIONS





Is the Charter and Governing Document legally our governing document or isn’t it? This is a question that has continued ever since it was adopted, by Council resolution, in 1986. Legal or not, it wasn’t adopted by the tribe through a vote of adult tribal members in an election at the time, and that’s problematic. It’s what consistently clouds the issue of the document’s validity.

This certainly was a problem during my last term at the One Feather, and it’s one that continued throughout my tenure. I still remember the letters from the late Nancy “Longtongue” Long questioning the current governing document, oftentimes referring to the Lloyd Welch Constitution as our official constitution.

The old Eastern Cherokee Defense League was constantly harping on the constitution issue, and I’m willing to bet if I called up defense league co-founders Mary “Missy” Crowe or Lisa Montelongo, I’d probably still get an earful about it.

Since I first started at this publication in 1996, only once has a constitution come up for a vote of the people. That was in 1999, where a committee of tribal members from each community worked together to draft a constitution. They worked hard to come up with something that addressed tribal members residing off trust land and how to properly represent them. They addressed the weighted vote.

Their constitution was a solid document, but it failed by a large margin. There were plenty willing to go out and urge voters to reject it. In fact, it would be fair to say that some voters rejected the document without even reading it.

There have been some attempts to address this by trying to get some kind of constitution to a vote. Former Wolftown Rep. Susan Toineeta has brought it up, and so did the late former Vice Chief Carroll “Pee Wee” Crowe. Former Principal Chief Patrick Lambert put one out. Whatever the efforts were, even to the point of drafting a document, they went nowhere.

The problems with the current Charter and Governing Document are this:

  • It only provides for two branches of government. While we do have a tribal court system (set up in the Tribal Code), its powers and limitations are not defined in the governing document, and its scope can be changed through a tribal council ordinance, and that brings us to the next point.
  • The checks and balances in place are questionable at best. In fact, the document gives council power (land issues, estates) that would be better served through the courts.
  • There is no provision affirming the civil rights of tribal members. That’s important, because part of limitation of power is affirming the rights of tribal members to hold their representatives, legislative and executive, accountable. Tribal Council’s recognition of the federal Indian Civil Rights Act of 1968 can always be rescinded, if it even gets enforced in the first place.
  • The current system of weighted votes doesn’t fully address the issues of equal representation of all communities in the way that a bi-cameral legislature would. As it occurred in the United States’ founding over whether we’d be better served through equal representation by state or with more representatives in states with higher populations, it seems such a system would better serve the tribe than the weighted vote. But this is one area where a small chance of reaching consensus exists, if any chance exists at all.
  • It continues to be a source of contention, particularly when trying to regulate qualifications for office.

Will this document be something that pleases everyone? No, of course not. Will most have portions of the document they find disagreeable? They will. Does disagreeing with a portion of the document justify killing the whole, for which most of it is agreeable? No, it doesn’t.

The beauty of most constitutions is that they’re amendable. Should the need to do so arise and most voters agree with the change, it will happen. Don’t throw the baby out with the bath water.

It’s crystal clear that there is a need for a document with no ambiguity, that spells out all checks and balances, sets the powers of all three branches of government, and will recognize the civil rights for which all tribal members have been ordained.

The current group pushing a constitution seems to have come up with a good document. It’s also a time when the constitution being put before the people actually came from the people, not politicians, not their appointed committee members, the people. It actually started with one lone member of the Yellowhill Community who wanted to discuss our governing documents. It’s time to end the confusion; give the power to the people and adopt a real constitution.