By ROBERT JUMPER
One Feather Editor
There are some passionate, involved people who believe that our tribe needs a constitution. They believe that in it is imperative to the ongoing health of our people to have rights restored that were neglected when the tribe switched from a constitution to a charter. They believe that we should have rights, not privileges bestowed by a code that is dictated by the government. They believe that the government should be accountable to the people, not the other way around.
We have had a constitution before. And other tribes operate under a constitution. If we look closely at the Charter and Governing Document, we see that much of the language in it comes from the previous constitution. The difference is that we don’t have any intrinsic and inalienable rights in the Charter. Oh, it implies our voting rights and sets up a weighted legislative voting system that is supposed to represent the entirety of the people, giving more weight to the communities with the most people in them. It is the one piece of power, the right of the populous to select their representation. It is a right, right? Wrong.
For the weighted voting system to be effective, there must be a routinely conducted tribal census. The census identifies any shifts in the populations of each community so that weights or percentages for each seat can be accurately represented. And that census hasn’t been conducted in several election cycles and there doesn’t seem to be a huge rush by our government to conduct one. So, do we have any civil rights in the Charter? The only one mentioned by the Charter has not been exercised in several years, while the Charter mandates one every 10 years.
Don’t get me wrong, we have good governance. Our leaders historically have guided us to a democratic system that functions and represents us with a legislative, executive, and judicial order. But all ordinances and resolutions are dictated by the government, not the people, with the few exceptions in referendums. And while it is true that we can vote every two years for legislators and four years for executive, the elections are being held without the one safeguard that the voters had regarding balancing power, the tribal census.
A census was scheduled for our people years ago after the Tribal Council realized that one had been mandated by the Charter, but had not been done in violation of Charter, then was put on hold because the government said it could not find enough resources to conduct a census. Then the government agreed to put the census on hold, apparently indefinitely. For me and for any tribal member, this should be a very concerning revelation. For a tribe with the financial resources and manpower available like the Eastern Band, it really stretches the trust in the government to tell its people that they can’t conduct a mandated lawful census because they don’t have the resources. It is hard to see how that is a credible argument.
Rule of law depends on those who govern adhering to the laws that they have created. Adherence to the law, for it to mean anything at all, must be consistently and equally applied. Otherwise, the people begin to lose confidence in the foundation of their governance.
Read over Section 19 of our Charter and Governing Document. Count the number of “shalls”.
“In order to provide equal representation to all members of the Eastern Band, the members of the Tribal Council shall, in their deliberations, cast votes on a weighted basis, with the weight of each vote determined by each Council member.
“A tribal census, for the purposes of determining the weight of the votes to be cast by each Tribal Council member, shall be conducted prior to the 1981 tribal election and prior to the election each ten years thereafter to determine the number of enrolled members residing in each township.
“After the regular 1981 tribal election and each ten years thereafter, the Tribal Council, at its first regular meeting, shall determine the total number of votes to be cast in the Tribal Council and shall allot a voting authority to each Council member. The voting weight allotted to each Council member shall be determined by computing the mathematical ratio, fraction, or proportion that exists between the number of enrolled tribal members residing in each township and the total number of enrolled tribal members. All Council, including the Chairman, shall be entitled to vote on all issues.”
Shall is not a word with different weights. The dictionary definition, a definition as it applies in law, states, “Shall is an imperative command, usually indicating that certain actions are mandatory, and not permissive. This contrasts with the word ‘may,’ which is generally used to indicate a permissive provision, ordinarily implying some degree of discretion.”
For example, the Charter says that all Council members shall have the right to vote on all issues. The law does not say that any representative may be prohibited from voting on any issue. It says all representatives have the unquestionable right to vote. And challenges to that law have been met with the response that the Charter is the final and foundational law of the tribe. It cannot be violated or changed without a vote of the people, a referendum. Again, the Charter is the document voted into law by referendum, and it cannot be altered without referendum. And not holding a census in accordance with Charter is altering the Charter.
But what of the “shall” regarding the census? If shall means shall, then how can our government not provide us with a census? What should be the consequence of ignoring, neglecting, or suspending a mandate of the Charter and Governing Document of the tribe? By rights, our rights, should there not have been a referendum to suspend the census, if that is what the government wanted to do? Why don’t the people have any say in this important (and only) civil right that is supposed to be in place to make our elections fair and equitable?
It is beyond time to vote in a tribal constitution. We must provide input on the draft that is now being circulated by the Constitution Committee. And we must support their effort to get it to a referendum vote.
No constitution. No census. No civil rights. And I guess a bigger question is “Why are we silent?”
