COMMENTARY: Do restrictions on protests violate rights?

by Dec 17, 2018OPINIONS





I’ve covered governments both on and off tribal land. They’ve ranged from Tribal Council and its committees to school boards, from county commissions to town councils and aldermen. I can say this with confidence, none of the other governments hold a candle to the Tribe when it comes to tribal members having access and a say in its operations.

Currently the Tribe tabled a proposal to amend its law on protests. Submitter Becky Walker wants to change the wording from “interested party” to “enrolled member,” which means any tribal member can file a protest on any legislation. If passed as submitted, that means I as an enrolled member can protest, for example, a recognition of heirs resolution for a family of which any connection I had would be extremely remote. That isn’t right. If this proposal passes as submitted, it has the potential to slow tribal government to a crawl, to the point it would get nothing done.

This is something that doesn’t exist in the surrounding local governments, nor does it exist in the state or federal government. One can’t just file something stating “I protest” in any of those circumstances and expect to get anywhere. Does it violate First Amendment rights for a redress of grievances in those instances? No, it doesn’t.

When it comes to the current law, unamended to read “interested party,” it doesn’t violate First Amendment rights, nor does it violate the Tribe’s equivalent, the Indian Civil Rights Act. In fact, the Tribe can have no protest law on legislation at all, and it still wouldn’t amount to a rights violation.

The right to demonstrate, petition for redress of grievances, is still there. If someone objects to how council carries out its functions, or objects to something in its agenda and wishes to organize a demonstration, there are legal ways to do it. Apply for a permit, follow the terms of the permit, and have at it. This is applicable at the local governments outside of the reservation too.

However, there are other avenues tribal members have. They can submit legislation to amend or rescind laws. This has been a common practice, and sometimes it works well. This is an avenue that really doesn’t exist with local governments around us, nor state, nor federal governments. It’s rare, if ever, that they accept proposed legislation just written by their constituents. In fact, it’s rare they accept a proposal that wasn’t drafted by an attorney.

If the results don’t address the grievances, then there’s the courts. If a tribal member or members don’t like the actions of tribal leaders on issues, or they should not like the inaction of tribal leaders on some issues, they can file suit in court. This has happened. The actions against Tribal Council pay raises and roadside zoos have been examples of this, and with an institution whose main function is to review the legality of some practices or actions, it’s the perfect place for it. Outside of Cherokee, this is also common practice.

When the argument is made that to regulate protests amount to a civil rights violation, that argument doesn’t hold water. No other government that has tribal members as constituents provides the level of input and access for tribal members to participate. And the rights to free speech, press, practice of religion, peaceably assemble or petition for redress of grievances are not absolute. If they were, there’d be porn in the checkout aisle of Food Lion, human sacrifice in the streets and Asheville’s topless rallies would spill over onto the Qualla Boundary. Regulation of expression is allowable, and the courts, both tribal and Supreme, would probably agree.

Bottom line is, for all the flaws of our tribal government, it’s our tribal government. And I appreciate the level of participation I’m allowed to have in it, even if I’m disappointed in the results. I haven’t seen that level of access at any of the other governments I’ve covered. The protests and rehearing law really should only change “calendar” days to “business” days. That’s reasonable, but restricting it to interested parties needs to remain as it is. That’s if the law is even necessary to begin with when you have all the other avenues of redress.