By HANNAH SMITH
EBCI Office of the Attorney General
The bottom line is that the proposed Constitution does harm to the Tribe (unintentionally, no doubt) by extinguishing some existing rights of tribal members and some existing governmental functions and legal standards for all three branches of tribal government. The Attorney General has no choice but to seek to rescind the resolution authorizing a referendum for the “all or nothing” proposed constitution and offer a solution that will still allow the years of work the Committee did in putting together the various ideas contained in the document for the people to vote for at a referendum. The AG’s office has been pitted against the proposed constitution by the media, which is unfortunate, but the AG’s office is trying to avoid very real dangers contained in that document while simultaneously making progress towards a few concepts that are overdue for our progressive tribal government.
There is no actual emergency for a “new constitution”. The EBCI’s (Eastern Band of Cherokee Indians) governmental framework is sound and has been functioning for 155 years. But there is a heightened sense of frustration, to be sure.
The current Constitution Committee worked for several years to produce a new constitution for the EBCI to vote for or against. The last time a referendum vote for a new constitution occurred was under the Joyce Dugan administration in (the 1990s) when Tribal members voted NOT to adopt the proposed Constitution then offered by that constitution committee. Before that, from 1868 to 1986 EBCI’s Tribal Council formed as a tribal government and has acted since then as a tribal government based on the legal framework it adopted for itself, styled as a constitution. The US authorized a lawsuit on behalf of the Tribe in federal court to reclaim lands purchased by tribal members for the Tribe and when that suit settled in 1880 and the Tribe was awarded most of the lands it claimed the Tribe used the NC corporation law to hold the title to the lands and its “constitution” was incorporated into the law as corporate “by-laws”. The State of North Carolina acquiesced to this in 1889 through the passage of a private law for the EBCI granting the EBCI a corporate charter to hold title to the land and to operate as a government under the Tribe’s own constitution (or bylaws under corporate law). This didn’t mean the Tribe lost its sovereign tribal status under the US Constitution or lost the protection of the federal government’s plenary authority over Tribes under the US Constitution. That legal point was made in 1892 by the 4th Circuit Court of Appeals, well after EBCI used NC law to sure up the NC land title held in common by and for the EBCI. So, the EBCI’s first constitution was adopted in 1868, by officials authorized to represent the tribal members, then a newer version was adopted in 1870 as the 1868 framework had been executed and successfully got the EBCI to the next level with a system of elected officials for the legislative and executive “branches of government”, then amended again in 1875, and then again in 1889 the same year the EBCI’s governmental framework (constitution) was incorporated into the NC Charter issued to the EBCI (calling the constitution by-laws, as it was corporate law’s legal language to do so) and then amendments in 1897, 1931, and 1933. The next act of the Tribal Council changing the legal framework was in 1986 (after a failed Constitution referendum) and after decades of tribal sovereignty taking shape in the federal court system and federal statutes. The Council’s resolution re-styled the legal framework “Charter and Governing Document”. The 1986 tribal law did not make it into the NC General Assembly as was the custom from 1889-1933. Then the Tribe held a referendum vote also in 1986 to give tribal members a chance to amend the bare bones of the 1986 Charter and Governing Document. Some referendum measures succeeded, and some did not.
Having the EBCI membership vote in a referendum for another proposed Constitution isn’t wrong per se, it is however much more complicated than perhaps the Constitution Committee and the Community Clubs gave credit to. A lot has happened since 1986 and the last successful tribal referendum vote on the EBCI’s governing legal framework (Charter and Governing Document). The proposed constitution is not “red-lined” to show the reader (lawmaker, by referendum) what the changes are from the existing law to the proposed law. It is an “all or nothing” legal document to be voted on in totality.
The proposed constitution retracts existing rights of tribal members aged 18-24 from running for a seat on the Council, retracts rights of tribal members to leave life estates to non-member spouses and non-member first-generation children upon their death, retracts rights of tribal members to petition the tribal membership for future referendum voting, and retracts the right of Tribal Council to allow waivers of its inherent legal defenses of sovereign immunity which is essential for the financial business of any Tribe, the consequence for which would devastate EBCI’s financial future. The proposed constitution would derail the existing Judicial Branch of the EBCI making it impossible to keep necessary standards for judicial qualifications intact in order to exercise certain expanded criminal jurisdiction under the Indian Civil Rights Act, while also simultaneously restraining the Judicial Branch from making rulings consistent with Cherokee values, customs and traditions forcing certain federal rulings to take precedent when not even Congress did this when it passed the Indian Civil Rights Act. These are but a few (there are several more equally as dangerous) legal issues and tribal governmental dysfunctions that the tribe’s AG’s office has a duty to bring to the attention of the Tribal Council. It is not the goal of the AG’s office to interfere with drafting a constitution, such a political act is not within its purview and would be counter to the “by the people” aspect of the initiative. It is within the purview to give feedback and expert advice to the Tribal Government and that is what the AG is doing.
The Attorney General’s Office is not against progress, or a referendum voting for a newly stylized legal framework for EBCI government, a constitution, but it does and must protect the tribal government and the existing tribal membership from unintended consequences during the process. The unintended consequences of the document and the “all or nothing” approach in favor of a more measured approach (offered by the AG in the form of another resolution recently filed) is indeed warranted. The process has been messy, unfortunately, but I’m not sure a total rewrite of foundational law for a 155-year-old formal tribal government would be anything but messy.
I hope this explains another perspective on this issue.