COMMENTARY: When it is time to dance, who leads?

by Dec 6, 2021OPINIONS0 comments



One Feather Editor


A small group of people have been diligently at work in an attempt to engage community input for a tribal constitution. There have been several people who have engaged (the most recent effort has had, at various times, the presence of lawyers, judges, and many other prominent community members who actively contributed to the crafting and drafting of the constitution). After their first draft presentation to Tribal Council, many of the people who had engaged in that draft moved on to other projects.

During the draft presentation, several criticisms came from the Council regarding the content of the proposed constitution. The consensus was that, in the eyes of the Tribal Council, the constitution was just not refined enough to go to the people for consideration through referendum. To my knowledge, elected officials did not provide any direct input into the crafting of the draft, because they themselves said that a constitution needs to come from the people, but when the Constitution Committee brought forth a document for the people to consider, the Tribal Council denied the people a chance to consider it. Their rationale at the time was that they were obligated to make sure that the constitution represented the will of the people before the people could consider it in referendum.

Much of the consternation with the draft was that it was perceived as long or too long for the constituency to absorb and understand. This is something we have heard from government officials before. The idea is that the average community member just doesn’t know enough, isn’t capable of understanding the language, or wouldn’t be able to grasp the consequences of action prescribed by a governing document.

Remember all the discussions we have had about closed sessions? Read the Cherokee Code Section 117-45.3 Subsection 2 d (12). Maybe I am understanding it wrong. You decide. Currently, the privilege of knowing and the government sharing information isn’t dependent on my level of understanding, It only requires that I have an interest in knowing. And my privilege of knowing certainly doesn’t depend on someone else’s opinion of my ability to understand.

Over the course of 2021, beginning in January, the Cherokee One Feather provided a forum for the Constitution Committee to present the draft constitution, a section and many times, a subsection each week, with a brief commentary to attempt to explain to our community how each piece of the constitution would work. In each piece, each week, contact information was provided so that the community would have an avenue to contribute and engage in the process. Each week, an email address and website were promoted to the community so that all who wished could participate in editing the draft. Out of the roughly 11,000 tribal citizens who are or will be voting age by the time a referendum might be considered on the constitution, a very small fraction have voiced any feedback to the committee regarding the draft. Efforts continue to ensure that all or as many who wish to be educated on the content have a copy of the draft and information on how to engage.

One of the challenges to getting the draft into the hands of tribal citizens is obtaining access to contact information. Both enrollment and voter contact information are considered confidential by the Tribe. The Constitution Committee, while sanctioned by the government, is not considered a governmental entity and, even if they were, might not qualify to receive the names and addresses of voters or those of voting age from our government. Once the constitution draft makes it over the hurdle of approval to go to referendum by Tribal Council, the Election Board will then likely be willing to distribute the draft to eligible voters but is unlikely to participate in any citizen education process until then.

Most, if not all, elected officials have expressed that the Tribe needs a constitution. But public engagement by elected officials has been limited. In the most recent candidate debates, candidates and incumbents for Tribal Council seats touted their endorsement of “a constitution” for the Tribe, but when asked if they had read the currently proposed constitution, most said they had either only read portions of the draft, or they had not read it at all. This is interesting since one of the arguments raised against the draft presented to Tribal Council was that it was too long for the average person to understand.

If you take a quick read of the 1868 Lloyd Welch Constitution, and particularly the 1875 amendments to that constitution, you will find much of the current Charter language came from those 1875 amendments. There appears to be, in the 1868 original, a Tribal Council established of 12 representatives. Then, November 26, 1870, there was an establishment of a grand council, which consisted of 23 delegates (according to the count of delegate names in the Lloyd Welch Constitution). Those early Cherokee citizens did understand the importance of community input and direct authority in governance decisions, because this larger body (the grand council) was given the ability to have “all acts done, made, and confirmed in grand council, as aforesaid, shall be binding upon all members belonging to or constituting the aforesaid band, in all matters held in common interest of said band and not otherwise.” This grand council had the authority to establish place and time for an annual meeting and all their decisions superseded all other governmental actions.

My guess is that over the years the grand council has been morphed into the concept of community clubs. That is a guess since I have not researched that transition and based on recent public discussions among our tribal officials, most do not know the history of the transition away from the grand council concept either.

A right of the people should not be able to be done or undone by a governing body. By excising a portion of the Lloyd Welch document to create the Charter, important civil rights of the citizenry have been left out. It is hard to see this at first glance, because some of those rights have been transformed into “privileges” through the vehicle of the EBCI Code of Ordinances.

The hard pill to swallow is when you realized that certain rights that should be codified and guaranteed constitutionally, are not even in your governing document. They are considered privileges in code that may be taken from you with a 2/3 vote of any sitting governing body and some privileges may be removed with as little as a simple majority of a Tribal Council if a Principal Chief concurs in its removal.

I have not heard many, if any, of my fellow tribal citizens say that they prefer to only have a say in governance whenever an election rolls around. I have heard few of my fellow tribal members say they think that certain of their rights should potentially be reduced or taken away because government considers them to be privileges, instead of what they are. When it comes to dance of governance, the governing document should be a constitution of the people, by the people, for the people. Our tribal community and its citizens are the founders of the dance. It should be us who lead.