COMMENTARY: Attorney General weighs in on Constitution

by Apr 28, 2023OPINIONS0 comments


EBCI Attorney General


On April 6, 2023, Tribal Council passed Resolution No. 559 (2023), which was submitted by the Community Club Council.  The resolution is the Community Club Council’s request for a referendum vote at the General Election on Sept. 7, 2023, to immediately repeal the Charter and Governing Document and replace it with a draft Constitution that was written by the Constitution Committee.

Tribal Council passed Resolution No. 559 very quickly, upon a motion by Big Cove Representative Teresa McCoy.  A very similar repeal-and-replace resolution and draft Constitution were submitted in Resolution No. 489 (2019).  That resolution was withdrawn from Tribal Council consideration on June 13, 2019.

The Constitution Committee is a group of Tribal members who have been working on this issue and who report to the Community Club Council. The Committee received money from Tribal Council to pursue its work. The intent of Tribal Council was that the Committee should do its work without interference from the Tribal government.  No Tribal elected officials, attorneys or employees acting in their official capacity are members of the Committee.

The Office of the Attorney General has not inserted itself into the Committee’s work.  This was a conscious decision made to respect the freedom Tribal Council gave the Committee.  It was important to avoid the perception that the Attorney General’s Office, in its official capacity, was attempting to dictate the Committee’s direction.

Now that Tribal Council has taken official action to move the draft Constitution to the next stage, the Office of the Attorney General has a duty to analyze its effect on Tribal members and Tribal governance, to identify harmful unintended consequences that have gone unnoticed by the Committee and that may harm the Tribe’s legal position and sovereignty, and to inform Tribal leaders and the public of these effects if the draft Constitution is approved at the General Election.

The draft Constitution presents some good ideas that the AG’s Office supports – such as establishing the judicial branch and incorporating civil rights protections into the Tribe’s primary governing document.  It also, however, presents many unintended consequences that will be harmful to the Tribe and will deprive Tribal members of established rights protected by the Charter and Governing Document.

Here are just a few of the problems created by the draft Constitution:

  • It deletes the right, expressed in the Charter, of all Tribal members to receive equal distributions of per capita.
  • It dilutes the checks and balances that are present in the Charter that keep the Legislative Branch and the Executive Branch from overrunning each other. For example, the draft Constitution is not clear as to which elected official may bind the Tribe in contracts, and which elected official has authority to represent the Tribe in government-to-government relations with federal and state agents.
  • It removes the authority, and therefore the ability, of the Principal Chief to manage the daily operations of the Tribe.
  • It makes Tribal Council, the Cherokee Court and Cherokee Supreme Court subservient to federal court decisions and the U.S. Constitution. This limits our inherent Tribal sovereignty.
  • It confuses the roles of the Principal Chief and Vice Chief regarding the power to veto legislation. In one section, it requires the Principal Chief and the Vice Chief to act together, but in another section a veto only requires one to act.
  • The resolution requires a ballot question that is incomplete. The question on the ballot will be whether voters approve of the draft Constitution or disapprove of it.   It does not attempt to describe any provision of the draft Constitution.  It says nothing about repealing the Charter. The trigger for repeal is only stated in the draft Constitution.

The better approach for improving Tribal government and serving Tribal members is to amend the Charter, step-by-step.  An incremental approach is more careful, less disruptive to Tribal members, and will produce better results.

The Charter and Governing Document, in all of its iterations, has guided the Tribe from 1868 to the present.  That’s 155 years of decisions, rights and legal developments, all building on the decision that came before.  The Charter has helped the Tribe become one of the most successful tribes in the country.  That success has created legal complexities that are not adequately addressed in the draft Constitution.  The best way to improve the Tribe’s legal foundation is to amending the Charter, not throw it away.