EDITORIAL: Time to retool the rules

by Jan 14, 2019OPINIONS





Our law is frequently adjusted. Every two years a new set of government representatives adds, deletes, and amends our laws. That is their job, their responsibility. Because of the size and scope of the Cherokee Code, it is difficult to create new law without impacting other areas of the Code. Either proper research is potentially lacking, or a sense of urgency allows for opposing statutes to be written into law. Sometimes, in trying to clarify or plug gaps in regulation of the Eastern Band of Cherokee Indians via the Cherokee Code, our representatives include language that opposes existing law. Maybe a mandatory 30-day tabling of the proposed legislation is no longer enough time to research the Code to prevent laws being made that are, in effect, canceled out by another law.

We have discussed, as a Tribe, having a constitution to replace the Charter and possibly the Cherokee Code. We have considered it for a very, very long time. Try as we might, we still have not gotten anything together to present to Tribal Council for consideration to show to the people. In the meantime, Tribal Council has tasked the Attorney General’s office with sifting through the Cherokee Code to find inconsistency or ambiguity in the law and bring them before Council to resolve issues. Some positive movement has been seen throughout the year, as, for example, the Election Board requests changes to their codified procedures. This came because of a contentious past election execution, not because of the directive to clean up the Code.

All regulations requiring some form of execution should have a timeframe outlined by the legislation. A wall honoring the Beloved Women and Men of the Tribe, designated for just outside the Council chambers, has not yet been established, and no date was assigned for completion. Many of our legislators have mentioned that projects have been approved for months, years, and decades that are still on the drawing board or in various stages of evolution.

Our governing documents leave much to be desired about the rights and powers of the tribal community. Personal protections will come from the constitution when it happens. For now, we must try to negotiate via ordinance and resolution proposals to Tribal Council to maintain at least the illusion of people’s rights.

As I have mentioned in previous discussions with the readership, I don’t believe that our representatives are intentional, personally circumventing our will as a community. Just as our tribal “sovereignty” is not true sovereignty at all, because it is dependent on another government’s blessing on our ability to govern and we cannot independently stand against regulations made by the federal government, the community cannot stand against the rulings of our government. For example, a tribal member’s last will and testament detailing his/her previous wishes for the property has been successfully overridden by our government. More than once.

Some of our laws are so vague regarding procedure and consequence that Tribal Court has had to make rulings governing procedures for specific actions. Many of the actions taken over recent years have been made based on the precedent of previous steps from the minutes of prior government meetings. When governmental leadership needs to act where no procedure is outlined in Charter or Code, precedent is used to do the work. Several times, when an action of the government has been questioned, the response has been “well, that is the way we have always done it” or “that is the way it was done in the past.”

Tribal Council and the Executive Office are moving to address those gaps they find as they move through processes. As a tribal member outside the process of lawmaking, I wish that cleaning up the Code, or “retooling the rules,” was more of a priority for our government.

During the last two previous campaigns, our representatives indicated that transparency was high on their priority lists for the government. They promised more information would be reported to the people. It used to be a famous slogan during federal presidential campaigns to say, “Are you better off today than you were before the last election?” So, I ask you, do you feel that the government is more transparent since the last election? If not, it may be because while there are laws in place to facilitate the press and public to acquire public records, there is no penalty specified for not providing them. And going to court to enforce your right to them is costly in time, money, and reputation.

Reporting of current information from the government is sporadic. I recently asked the public library about their collection of annual program reports, since the Code requires that all tribal programs submit their annual reports to the Tribal Operations Program (TOP) and the public library. The government requires those reports to be submitted by a date certain. That date had passed when I made my request of the library. I was told that they would be happy to show me “the ones that they had received.” They told me that not all programs had submitted their reports to the library. They were unsure who would be responsible for ensuring that they received all the reports. The library personnel did not know who that would be. I asked others in the government and got similar answers.

I told one of our leaders of the past that strategies are doomed to fail without attention to detail. Big picture thinkers are needed to provide structure for a strategic plan and execution, but you also need people who are expert in managing and executing. It is the attention to detail in the performance that makes a strategy successful. Many of our issues stem from systematic failure to attend to detail. A well thought out plan and strict adherence to the plan is the key to, not just completion, but excellent completion. That is what “the people” want in its laws and from our governors. Retool the rules.