Submitted by the Cherokee Community Club Council
EBCI (Eastern Band of Cherokee Indians) Attorney General Michael McConnell wrote in his commentary letter, “On April 6, 2023, Tribal Council passed Resolution No. 559 (2023), which was submitted by the Community Club Council.”
This describes a historical moment for this Tribe. The 12 members of Tribal Council unanimously agreed to allow the people to vote on whether they approve the new Constitution as presented by the Cherokee Community Club Council.
Before we begin, here’s a reminder of how this Constitution would work. Any information not explicitly stated in the document can be addressed in the Cherokee Code. All of the Cherokee Code would remain in effect as long as it does not contradict the Constitution. As an example, the Constitution does not express or explain how enrollment will work; it refers to the Cherokee Code. The Charter does not even mention enrollment.
The Constitution is a framework that establishes who has what authority, what rights and protections the People have, and how certain situations will be managed. It is not going to cover every possible scenario; it is not going to spell everything out. Those areas that are absent from the Constitution shall be filled in by the Cherokee Code. This is how the Tribe has been operating with the Charter for the past 155 years.
Before we answer the issues presented in the Attorney General’s commentary, we would like to provide clarification on some of the Attorney General’s comments regarding the monies budgeted for the SGADUGI group. Just to be clear, the funding was to promote a Constitution for the People to vote on, not to pay anyone. With the exception of the mailers that were sent in 2022 and the new billboard advertising and incidental expenses. No individual from this group has or is receiving compensation for services.
During the past six years that SGADUGI met, whose meetings have been open to any tribal member wanting to participate; elected officials were welcome to attend as well. We consulted with subject matter experts during the first three years of drafting the Constitution to provide us with guidance on considerations for the betterment and security of the People. Also, members of the Tribal Court system and attorneys attended meetings, providing their input since they would likely see the results of the Constitution in their court rooms. We appreciate the outside perspectives we received on issues that we did not originally consider.
When the draft Constitution was first presented to Tribal Council in 2019, Tribal Council and the Attorney General expressed some reservations about it. We invited the Attorney General to participate in strengthening the document and resolving any issues that he had with it. During the drafting phase, we had hoped to receive advice, suggestions and to identify any problems but received none. This would have allowed us to discuss, craft, review, and amend the document before it was made official and released to the public.
At this point, you might have noticed that we are using the term “People” instead of “Tribe.” The Tribe is the organization that acts as the government, whereas the People are those who make up the Tribe and are governed. The Attorney General works for the Tribe, not for the Chief nor Tribal Council. In other words, he works for the organization, not the People. We appreciate his concerns with the current version of the Constitution and will seriously consider his issues. If we should amend the document prior to the referendum vote, by waiting until the last minute, it will prove difficult. In order for the Constitution to make the September ballet, it has to be completed, approved, and ratified by July 1, 2023.
The Constitution was on the Council’s agenda at least a week prior to the April 6 session. The Attorney General’s office could have requested Tribal Council to table the item prior to the session so that his position could be communicated.
Before we address the Attorney General’s issues in his Letter to the Editor, we want to acknowledge another important issue, “First Generation Descendants” rights. The Constitution does not remove these rights since they are already located in the Cherokee Code Chapter 28 Section 28-2 which protects them.
The Cherokee Community Club Council (CCCC) would like to address the Attorney General’s (AG) points in his Letter to the Editor on April 28, 2023:
- (AG) “It deletes the right, expressed in the Charter, of all Tribal members to receive equal distributions of per capita.”
(CCCC) The Constitution does not include the entitlement of per capita in a governing document. However, it does exist in the Cherokee Code. The Charter states, “…and in case any money, derived from any source whatsoever, belonging to the Eastern Band of Cherokees, shall be distributed among the members thereof, the same shall be distributed per capita among the members entitled thereto.”
This means that any money from anywhere that belongs to the Tribe shall be distributed on a per capita basis. It does not state only monies from casinos on Tribal land. However, the Cherokee Code, Sec. 16C-2. – Definitions section states that Distributable net revenue “shall mean all revenue distributed to the Tribe by a gaming operation.” So, this definition is in conflict with the Charter, which states “…from any source.”
- (AG) The Constitution does not identify who can sign contracts or represent the Tribe in government-to-government relations.
(CCCC) This is covered in Cherokee Code. However, it should be noted that the Charter does not include this provision either.
- (AG) “It removes the authority, and therefore the ability, of the Principal Chief to manage the daily operations of the Tribe.”
(CCCC) The Constitution does not include the management of the Tribe, but it does not remove the authority either. Currently, the Charter states, “The [Executive] committee shall execute and carry out tribal laws and administer the daily operations of the Tribe.”
- (AG) The Attorney General references the Oath of Office, which includes the U.S. Constitution.
(CCCC) As a “domestic dependent nation,” we still fall under the umbrella of the Federal government, which includes the U.S. Constitution, but the U.S. Supreme Court established that tribes have an inherent right to govern themselves. However, Congress can limit tribal sovereignty, and unless a treaty or federal statute removes a power, the tribe possesses it. Tribes are “sovereign” because the U.S. government allows them to self-govern.
- (AG) The “confusion” on how vetoes work is misleading.
(CCCC) The Legislative Branch may receive a veto from the Executive Branch. This does not mean the Chief and the Vice Chief have to act together, only that a veto comes from the Executive Branch. In the Executive Branch, either the Chief, or in their absence the Vice Chief, can veto legislation. In either case, the veto still comes from the Executive Branch.
- (AG) The Attorney General states that the ballot question is incomplete. 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.
(CCCC) The People should vote on the document as a whole. Upon adoption, the Charter is repealed and superseded by the Constitution. To keep the referendum question simple, voters are asked – do you approve or disapprove of the Constitution?
The Cherokee Community Club Council rejected the Attorney General’s approach of simply amending the Charter and changing the name to Constitution. We understand that passage of the Constitution will create challenges for the Attorney General’s office. We have faith in the People and the Attorney General’s office that we can work together to navigate this transition to unite the voice of all our People.
