COMMENTARY: Will we have a free press, and other constitutional matters

by Jan 23, 2020OPINIONS





Personally, I don’t want you or the government to tell me what to believe or to control the flow of information to me. And, I don’t want to feel like my primary source of tribal, public information is somehow filtered by any politician or special interest group. 

When it comes to news, I want all the facts available, unspun and unembellished. When it comes to opinion, I want my opinion and the opinions of our community, as different as they may be, to be heard. The editor, Principal Chief, Vice Chief, Council member, and every other Eastern Band Cherokee citizen should have the privilege, the right, equally, to share their opinions on issues important to the least and most of the Tribe. 

You will soon see proposed legislation before the Tribal Council that could provide critical protections to the One Feather. You see, we are a program of the Tribe that reports to the government and ultimately to Principal Chief Richard G. Sneed. And, while Chief Sneed has been very open and open-minded when it comes to press freedoms, there are no guarantees in law that would protect a free press should he have a change of heart or, in years to come, a new Chief decided that he doesn’t share those free press views. 

The fact of the matter is that the Cherokee One Feather is only as free to publish in an unbiased fashion as the existing leadership allows. Yes, there are statements in the Cherokee Code that should protect the One Feather from influence, and the language is certainly stronger since October 2018, when vague and ambiguous language was removed from the Code by Tribal Council. But, the fact is that One Feather staff are tribal employees and are part of the governmental chain of command. 

Additional protections are necessary to further ensure that information and community commentary are provided for you long-term. We are hopeful that the proposed legislation will protect the staff from political pressure, whether real or perceived. The legislation will also add protection for the government and the public by identifying a clear process for dealing with any contradiction between the One Feather, the government, and the community, creating a balanced tribunal, consisting of the Chief, Vice Chief, and Editorial Board, with the authority to support or oust an editor who requires hearing and action because of an editorial decision. For an editor, and therefore the newspaper, to report honestly regarding the actions of government and governmental officials, this type of protection is needed. In all other instances, the editor and staff would be held to the tribal human resources policy and tribal code. 

Every tribal media outlet struggles with the concept of a free and unfettered press. Some opt to work with the government to attempt to create law to ensure a free press while others cow to the political power and allow their newspapers to become newsletters filled with government friendly propaganda. Those communities who acquiesce to government authority regarding free press, not only lose control of their government, they sever their right to free speech. 

Free speech is typically an integral part of the people’s governing document in a community. Current apathy about the creation of a replacement of the Cherokee Charter with a constitution would imply that the community is not ready for a constitution. Some people that I have discussed this with say that a wholesale replacement of the charter will never be accepted by the public because of the volume of change required. There are so many moving parts that it would be nearly impossible to “make it fit” the needs and wants of a large and diverse constituency, and therefore pass the rigorous inspection of Tribal Council. 

So, what if the Constitution Committee set their sights slightly lower and looked at modifying the charter, taking on small sections, drafting appropriate and modern language that fit the current Cherokee people and culture, bit by bit? Yes, it would be long, drawn out, and tedious. Changes to the Charter must be voted on by the people, as they should. This would take time as each item of change would require a vote.  But, it is better than the alternative of having our feet glued to the floor. The current document could even be relabeled from “charter” to “constitution”. Attempts at a complete replacement of the constitution have failed for decades. Maybe a methodic piece-by-piece reconstruction of the charter would eventually accomplish the same goals.  

Another area of governance that has been difficult to address is the idea of term limits. During the Lambert administration, legislation was introduced and passed that was designed to limit the number of terms a Principal Chief and Vice Chief may hold to two. But, this was a Code change which could be in contradiction to the Tribal Charter and may not be defensible if challenged. As the old saying goes, “the Charter trumps the Code.” The best way to ensure that term limits are enforceable is to vote them in through referendum and amend the Charter language. 

An interesting discussion concerning term limits for board service played out in the January session of Tribal Council. The debate was whether to and how to limit the terms of Board members. The legislation proposed dealt directly with gaming boards, but the discussion referenced all tribal boards.  There was some background information that many of the same people were selected and reselected to serve on tribal boards. Some Council members suggested that limiting the terms of board members, who are either selected or approved by the Executive Office and Tribal Council, would allow more community members with new and different education, experience, and ideas to be pressed into service to the betterment of the community. Most of the Council agreed that it was better for the community that board members be limited to two terms for a lifetime. During the debate, a request to amend the language to say “two consecutive terms” was entertained and rejected by the body. That language would have allowed a board member to be on the board for a term or two and then be reappointed after they had “sat out” a term. The legislation was passed and moved on to Executive for ratification or veto. 

There have been several attempts to introduce legislation for Tribal Council term limits. Some candidates for the seats during campaign season have indicated that they think it would be a good idea. But, the typical response to efforts for term limits on Tribal Council has always been “elections are my term limits…when the people want me out, they will vote me out.” Proposed legislation for term limits for elected officials is usually quickly tabled for work sessions that do not materialize, sit in stasis during the “election year”, and then they quietly die at the end of Council’s term. During the board term discussion, Council seemed to struggle with the idea of comparison between board terms and Council terms. Board members must be “confirmed” by Tribal Council. If Tribal Council does not confirm them, they do not get the seat and another person must be selected, or the seat left vacant. In essence, Council must vote these board candidates in. But the method of “letting the vote decide”, while deemed an effective term limiting tool for Council, was not considered effective for the gaming boards, even though it is the elected Council who determines if the board members get seated. Further, while term limits for boards was approved by Council, based on the need for more diverse community representation on the boards, the same argument was rejected (or at least tabled) when it comes to elected officials. 

Even if you are content with the way things are going governmentally, it doesn’t pay to be complacent when it comes to your governance. Ask yourself how much a change in a particular law might benefit you, your family, and the community. Don’t settle for the status quo. You wouldn’t settle for that if you were dealing with your personal affairs. Who seriously looks at their job, bank account, health care, education for their children, and says, “I am satisfied with just good enough”? 

In truth, governance impacts all of those areas of your life if you are a member of the Eastern Band of Cherokee Indians. Find ways to engage with your government. If you live on the Boundary, it is not difficult to have face-to-face meetings with those who make and execute the laws you live under. It is unnecessary for anyone to get up at the Tribal Council podium and say “this is what the People want”. Most of the voting population of the Tribe lives within an hour’s drive of that podium. Don’t let others speak for you. Speak for yourself. That is what free press and free speech is all about. And, they are foundation to any free society, including this one.