COMMENTARY: In no uncertain terms

by Jan 11, 2021OPINIONS





Sometimes out of sight is truly out of mind. This certainly seems to be the case with the push to establish or re-establish an Eastern Band of Cherokee Indians governing constitution. 

Just a few years ago, a constitution for our Tribe was a hot topic. Most of the discussion revolved around the idea that a constitution was desperately needed, and the only real debate was what it was going to look like. 

The current governing document is the Charter which is a summary document that talks about the qualifications and powers of the Tribal Council and marching orders, loosely, for the Principal Chief and Vice Chief. It does not mention a judiciary at all. In fact, the language implies, and the government has interpreted, that language as saying that the Tribal Council as, not only the makers of law, but also the adjudicators of law. So, the same folks who make the laws, in cases of contracts and land rights for example, are the same people who interpret the law. 

There have been cases brought before Tribal Council in which a will has expressed a direction and it has been overturned by the government without any judicial hearing. That is because the Charter gives Tribal Council the power to manage “and control all property, either real or personal, belonging to the Tribe”. In Section 23 of the Charter and Governing Document, the Tribal Council is granted enforcement authority. It says, directly, that the Tribal Council, “is hereby vested with full power to enforce obedience to such laws and regulations as may be enacted.”

So, in a representative government, powers are typically separated to prevent one person or body from having so much authority that it is no longer a representative government. A person or body may become so powerful that it would be next to impossible to challenge a decision made by the person or body because there is no check or balance to override a decision made by it. That is why you see clearly defined powers established by a governing document for most democracies and other representative forms of government; legislative branch with the power to establish laws and no power to interpret or enforce law, a judicial branch to interpret law and no power to establish or enforce law, and an executive branch to enforce law and no power to establish or interpret law. 

In our case, we have one body who has legislative, interpretive, and executive powers. We do have an Executive Office, but by Charter it is governed by Tribal Council. We have a court system, but it is established by tribal law, not by Charter. Our court system is contracted and established in legislation in our Cherokee Code. 

The Charter is a very basic document outlining fundamentals of our governance. For the more extensive laws that we live by, we have a Code of Ordinances or what is commonly referred to as the Cherokee Code. The Cherokee Code has long been the law of the land for tribal members. The Cherokee Code is a collection of laws primarily established by the succession of Tribal Councils since the Charter was established. The Charter requires a vote of the people to change or amend. The Cherokee Code is dictated by the Tribal Council. If a Principal Chief or Vice Chief uses veto power to block a Tribal Council action, the Council may still enact law with a supermajority vote. Even calls for referendum votes on issues pass through the Council, to be approved to allow, or not, the people to vote on an issue. 

Within the Charter, the only right given to the Principal People, the citizenry of the Eastern Band of Cherokee Indians, is the right to vote for elected officials – Tribal Council members, Principal Chief, and Vice Chief. Definitely no small potatoes, but very limited in scope, especially for a population as large and diverse as our community, and with an economy and budget as large as that of the Eastern Band. There are no civil rights, other than voting, mentioned for us in the Charter. The Charter is focused on succession rights for elected officials and governance over land and personal property – a very basic mechanical diagram of government operations. Rights of free speech, religion, etc. are relegated to Cherokee Code, if mentioned at all. 

A few years ago, Tribal Council enacted legislation submitted by then-Chief Lambert to place term limits on the offices of Principal Chief and Vice Chief. The legislation, in ordinance form, received overwhelming support from the Tribal Council that was seated at the time. Over multiple years, the Council has been asked and legislation has been submitted to impose term limits on our legislative body. Many Council members and candidates have expressed support for term limits on Tribal Council. Some have said that elections are the only term limits that they feel are necessary. But even with as much support that has been expressed for term limits over the years, legislation never makes it to a vote. The last resolution proposing term limits was tabled with an expressed intent to have a working session on term limits and then it vanished. It is even questionable that any resolution or ordinance that dictated term limits would stand a test in court anyway, because the Charter does not include language about limiting the terms of any elected official. So, the citizens rights of limiting terms, recall, petition, and even protest are all in the hands of one body. 

If we all know that a constitution for the Tribe is needed, why is there not more interest in creating one? The latest attempt to present a draft for referendum consideration, submitted two years ago, met with criticism from the Tribal Council, who said it was underdeveloped. At the time, the Constitution Committee said they would go back to the drawing board and try to address the areas of concern that Tribal Council targeted. In the meantime, the Committee asked for and received $50,000 budgeted for the purposes of redrafting a constitution. However, during the COVID crisis, the funds were frozen and, at last check with the Committee, access to the funds remains blocked. 

In a few conversations with Lloyd Arneach Jr, who is one of the champions for an Eastern Band of Cherokee Indians Constitution, he expressed that participation in Constitution draft meetings has waned. I have attended a couple of those sessions and typically, attendance is one or two members of the team of community leaders, lawyers, judges, etc. who originally worked on the document that was dismissed by the Council. 

The Committee is attempting to solicit community participation in the formulation of a constitution. They want representation from all the communities on the Boundary, indeed from all population groups in our Tribe, including those who live off-Boundary. Committee meetings are being held via Microsoft Teams software virtually. All tribal members are invited to participate. If you are interested in being a part of the creation of a Tribal Constitution, contact Lloyd Arneach at He will give you instruction on when the next meeting will be held and will send you a link with instructions on how to login and help our Tribe get a constitution to the people for a referendum vote. 

We must look at our documents of governance and decide if they are making the best environment for our people, present and future. If the answer is yes, then we need to drop the pretense, dissolve the committee, and work with what we have – a document that is basically two-pages long with no civil rights for the community and dependent on the power of one body. If the answer is no, then we need to get involved and work for a better alternative, one that empowers the people with inalienable rights, outlines specific parameters for powers of branches, and ensures fairness and equality for all tribal members. 

This isn’t about the individuals who are seated in the seats of power, who are trying to do the difficult jobs of governance. It is about the governing document and resolving the flaws and ambiguities that perpetuate contradiction in law and deny the community of rights and processes that they deserve. With the document as is, it is difficult or impossible for our elected officials to sometimes separate personal needs from community needs. They should not have to be torn between doing what is right for the community and doing what is expedient for the next election. A constitution could address and even resolve those types of challenges that elected officials face. 

In my opinion, there should be at least two members from each Boundary community and at least two tribal members who live off-Boundary engaged at each meeting of the Constitution Committee. And, with the importance of this document to our community, resources should not be frozen that might hinder the committee’s ability to have a referendum ready document by election day, which is September of this year. And we need our elected officials to be engaged in the process of creation for they are community members too. It is up to us to make this work for our present and our children’s future. Now is the time to get involved. 

Contact Lloyd and participate in the next meeting. This is too important to be apathetic about. We need a constitution. Again, contact Lloyd Arneach at to participate in the next Constitution Committee meeting. You may also view the work that has already been done toward an EBCI Constitution at