EBCI Attorney General seeks removal of the constitution referendum question

by Apr 23, 2023NEWS ka-no-he-da0 comments


One Feather Editor


On Thursday, April 20, the Constitution Committee of the Eastern Band of Cherokee Indians (EBCI) held its regular weekly meeting at the EOC building. In attendance were Lloyd Arneach Jr., chairperson of the committee, and Beloved Woman Carmaleta Monteith, who serves on the committee and is a representative of the Community Club Council (Yellowhill).  Others in attendance were Ernest Tiger (vice chairperson of the Community Club Council), Virginia Johnson (Yellowhill Community Club representative), Judge Barbara “Sunshine” Parker, EBCI Attorney General Michael McConnell, Hannah Smith, Bonnie Claxton, Tammy Jackson, and Big Cove Tribal Council Rep. Teresa McCoy.

The meeting opened with a statement from Rep. McCoy who left immediately after making her comments. She alluded to an unannounced, unaired meeting held with Tribal Council on April 19 to discuss the constitution referendum with members of the Attorney General’s office and Executive Committee. She indicated that these tribal executives had concerns that the existing language in the proposed constitution threatened the sovereignty of the EBCI.

On April 6, Tribal Council voted unanimously to allow a referendum vote on the September 2023 ballot on the issue of approving the proposed constitution, with the existing language.

Rep. McCoy said during Thursday’s meeting, “I hope that all of us can remain open-minded about this entire process. I hope we can put it out there and move forward. I look at this and it’s very readable. It’s presentable. But, it causes (Office of the Attorney General’s) ire to rise. We had a pretty lively discussion yesterday. I am not here representing Tribal Council at all. I told Hannah that ‘I will go down there together with you and talk to the Constitution Committee’. I could not get them to tell me specifically, very precisely, tell me what they have a concern with.”

She went on to say the Committee had, in the document, covered the three branches of government, and “you even put some civil rights in here that we do not have”. She alluded to items mentioned like the Indian Civil Rights Act, additional unspecified language concerning the bolstering of sovereignty. “What can we do to enhance the document, yet not make it so large and big and technical that people won’t understand it or support it? That’s just coming from me.”

She said further, “I know how important this is to communities. I am (a member of) Tribal Council. I don’t look to the Executive when I need answers. I look right back to the Community Club Council, and, before that, I take my issues up with the Big Cove Community Club. Sometimes you have to trust your people.”

Hannah Smith spoke next, clarifying that Res. No. 559, passed at the April session of Tribal Council, authorized the referendum question and the existing constitution language to be voted on by the people.

The Attorney General said he was hoping that, at that session of the Tribal Council, the representatives would have “read and tabled” the referendum resolution, giving time for discussion and modification of the document via work sessions. He said that the attorneys in his office read the existing document as presenting some important “issues and (big) problems that may be unanticipated. We see some things in there that are very troublesome that could create uncertainty in tribal government and could diminish some protections that tribal members currently enjoy.”

Community Club Council Vice Chairperson Ernest Tiger asked if the Attorney General’s office could identify these critical issues. McConnell attempted to answer the question indicating that he could make a “long, long list”, then yielded the floor to Hannah Smith, who said, “We can identify those, and we are ready to identify those in the proper forum where we have time because it isn’t a five or 10-minute spiel. It is going to take some time to explain everything, and you can categorize some of the problems as oversight, not close enough reading to catch some errors, and then some of them require legal analysis.”

Both McConnell and Smith referred to their being “fresh eyes” on the document. She referenced “case law” and “Supreme Court”, saying that the Constitution must not be in conflict with those. And she said, because the Tribal Council voted in favor of the legislation, and it could be ratified in 30 days after the vote, either by Chief’s signature or expiration of the waiting period, that “we are all stuck”.

When asked about why the Attorney General’s office did not bring these concerns to the Constitution Committee prior to the resolution for the referendum being put to the Tribal Council, Smith indicated that unless it had been channeled through the petition process or specifically requested by tribal leadership, those types of legal reviews do not take place. She stated, “The expectation was that if something of this importance would come up, the government, not its citizens, would have come to its law office to say we need a read-over on this. I don’t know what to tell ya. If we were asleep at the wheel…it’s been a while.”

Judge Parker, not present in an official capacity with the Cherokee Tribal Court but as a member of the EBCI, then added that she didn’t keep up with the multiple versions of the document as the process of creating a draft continued. “I got my copy in the mail and you guys changed it from that time to this time. That’s the problem. Not everybody’s going to go on your website. I haven’t looked at your website until this week. I didn’t even know what it was. So, I’ve read the paper. You changed it. What’s on there (the website) is what went to Council.”

She went on to express the use of the words “and” and “or” in sentences within the document cause problems because of their different legal meanings regarding the purpose and power of leadership. Judge Parker also said terminology like “member” and “citizen” cause legal problems if left without definition. She said that some of this “stuff” already exists in Tribal Code and that it is in Code so that it may be easily changed. She indicated that the exclusion of language in Charter Section 16 from the Constitution would impact or jeopardize per capita distribution.

Tiger asked specifically what language she had identified in the proposed constitution that would jeopardize per capita. Hannah Smith said that the lack of language in the constitution like that in Section 16 of the Charter could allow government to “de-equalize” the per capita allocation for each member.

Constitution Committee Chairperson Lloyd Arneach then spoke concerning the awareness of the Attorney General’s office of a pending constitution. He said, “I am going to have to speak up now. I talked to Mike…three years ago when we first brought it up?”

McConnell responded, “Could be. I don’t remember.”

Arneach continued, “We asked the AG’s office to participate so that by the time it got to Tribal Council, all these questions, all these issues would be dealt with; had been identified and appropriately handled in the document. So that by the time it got to Tribal Council to make it a referendum item, the document was ready. The Community Club Council created this document based on the one from last year in the mailer. They made some adjustments. We heard nothing from the AG’s office. This is not a surprise. The AG’s Office was well aware ahead of time, years ahead of time that this was happening.”

Judge Parker said that regardless of “who should have participated when”, the fact remained that letting this legislation move forward would have “unintended consequences”, and referenced language in the judicial piece of the constitution that she said could potentially allow the appointment of judges without law training, causing the collapse of things like Violence Against Women’s Act (VAWA) and the Tribal Law and Order Act. She said, “It’s going to be bad.”

It was unclear from the discussion as to whether there was an understanding that the Community Club Council and Constitution Committee intended that the Code would continue to be in law, a document that currently flows from the Charter. The Code would be amended to conform to the Constitution if it passed the referendum vote.

Arneach asked what the AG’s Office is recommending. McConnell’s response, “Our recommendation and our request is that we jointly rescind Res. 559 and that we work…take a step back…and say let’s fix these problems that the lawyers have identified. We are not trying to derail the effort. But we want to get the effort right. That if people say ‘yes’ to this, we don’t fall off a cliff.”

In his estimation, there are problems with per capita, jurisdiction, sovereignty in the language of the proposed constitution. “Yeah, I could have come forward before, but it wasn’t an official document that required my time. I wait for Tribal Council or the Chief to say ‘I need a review on this’. We don’t have extra time.” McConnell, too, referenced the term “unintended consequences” when speaking of the proposed constitution.

McConnell then said he is against a “wholesale repeal and replace”, which has been the intention of the Committee from the beginning of the effort and the direction expressed by Tribal Council. The Constitution Committee or Community Club Council did not consider a partial replacement of the Charter. He called the process of replacing the Charter “problematic and creates a risk of many more problems”.

Smith elaborated on a due process point of law, stating that every article should have been presented to the people with an appropriate summary and explanation. The Constitution was presented publicly in a weekly column, one article at a time with an explanatory summary over a two-year period in the One Feather. It was and is continually available at the sgadugi.org website for tribal member review.

Smith and Judge Parker emphasize their preference in the ease of resolutions and ordinances for modifying law as opposed to referendum votes which take more time to process. They indicated that the words charter and constitution were interchangeable and the documents function similarly.

The Community Club Council submitted the constitution referendum resolution, and the current language received the endorsement of the Community Club Council in a meeting in which their quorum was met. For the Community Club Council to join in any motion to rescind the resolution, they must meet again in an official session with a quorum present to vote to do so. Their next regular meeting is Monday, May 1. The next session of Tribal Council is Thursday, May 4.

As of press time, there has been no word from the Principal Chief as to whether he has signed the resolution into law. If he fails to take action, there is a 30-day law, that will automatically ratify the resolution and it would be in effect. The clock is ticking on the ability to physically get the question on the ballot, as mailings are already in the works at the Election Board.

Tiger asked the Attorney General for a timeline to completion of the revisions they would like to make to the constitution. McConnell, then Smith, then Judge Parker could not give Tiger even a “ballpark” estimate, with Judge Parker moving to discussion about revising the existing Charter to include a judiciary, advocating for leaving the judicial code in place in the Cherokee Code and just change the Charter, through referendum vote, to create the branch. She also went back to the discussion of the Indian Civil Rights Act and including it in the Charter without implementing the constitution.

Smith added that if there was an issue with calling the governing document a “charter”, that the name could be easily changed, going back to her assertion that the Charter is a constitution.

Tammy Jackson asked that the Attorney General’s office provide a detailed list of the changes that need to be made to the Constitution draft for presentation to the Community Club Council. McConnell then joined Smith and Judge Parker in recommending sticking with the Charter and just amending it, including a name change. He characterized the changes of making the judiciary a third branch, inclusion of ICRA, and the name change “easy”. That was what the Attorney General was willing to commit to as being able to meet the deadline for getting to referendum in September. He repeated that replacing the Charter with the proposed Constitution would cause “a lot of things to fall off that deck that we just built and we don’t want that”. McConnell indicated that they could provide a detailed list of “issues” with the proposed constitution, but he said the list was long and it “would try the Community Club’s patience to read that.”

Smith made some comments regarding the Cherokee way of governance versus the “anglo” way of governance. She suggested that Cherokee tradition was a looser, more oral form of government.

Smith, “I don’t think we can fix this (the constitution) for anybody. I think we need to take time and talk about the issues and try to, you know, problem solve, think about it, and problem solve some more.”

McConnell, “We have made our request. If you have to take it to Community Club Council, that is what you do. We will work on a list of things that we would like to see changed or problems we’ve identified. We can provide that to you. We can address the Community Club Council. They are not going to be happy. I know you guys are not happy that we are here throwing a grenade in your backyard.”

The Constitution Committee was established and funded by the Tribal Council to create a draft to present to them for review and approval, work that has been going on for at least three years with weekly open meetings. Committee Chairman Arneach created a website, sgadugi.org, and a Facebook page, EBCI Constitution, that has been publicly available 24 hours-a-day, seven days a week, with updates of the ongoing process of creating the constitution based on input from the community through the meetings, feedback on the website and Facebook page. Beloved Woman Carmaleta Monteith engaged the Community Club Council and discussions in the community clubs about the proposed constitution draft has been ongoing.

Two years of weekly educational pieces highlighting one article at a time were run in the Cherokee One Feather in 2021 and a republication of those pieces on an every-other-week basis in 2022. Public service announcements ran in the print newspaper and online soliciting tribal member input. The Constitution Committee provided drafts of the constitution to each enrolled member household via a mailer. Final community input came as representatives of the Community Club Council met in a “Constitutional Convention”, which was held on two evenings in March 2023. Both sessions were livestreamed on Facebook pages, then posted to the EBCI Constitution and Cherokee One Feather social media pages, where they are still available for review. Tribal member access and input on the creation of the constitution was a priority for the Constitution Committee from the beginning of the process.

At this meeting, on April 20, is the first time anyone from the Office of the Attorney General or the Tribal Court has expressed an official opinion concerning the proposed constitution.