By HANNAH SMITH
Birdtown Community
It is rare that I comment publicly about the Tribe’s legal challenges and politics, but the recent events around the proposed constitution now compel me to do so.
If Tribal Council allows Resolution 559 (2023) to stand and the referendum for the constitution passes, it will bring consequences that many voting tribal members might not expect just by reading the words on the pages. At the last work session where some of the legal risks were presented, it appeared that the substance of the constitution and the legal consequences it presents was secondary to the idea of letting the people vote yes or no. After the work session, I was asked whether I could at least agree that the people should have the right to vote yes or no to adopt the constitution. My answer is no.
A constitutional law that establishes and frames the powers of government, its limitations, and protected rights of the people is the most important legal document for any government. Governments must conform all its actions to it. Legal analysis must be considered before asking the community to say yes or no to adopt this constitution. The opportunity to vote on a law is not more important than the potentially harmful consequences of the law itself especially when those consequences are not immediately obvious from reading the words on the page.
Law by its nature can be tricky, complex, and full of hidden ramifications. We have all heard of cases where the legal interpretation of a law changes because of something as small as the placement of a comma. Even the ideas that the words represent may have a legal backstory that must be considered when using the idea. When I look at an X-Ray or an MRI image with my doctor, I see the same image as my doctor. But I can’t analyze the image like my doctor. I don’t see all the indicators for disease or injury that my doctor sees despite looking at the image. We can all see the same thing with our eyes when we read the proposed constitution, but it will mean different things based on the training of the person looking.
The proposed constitution is 17 pages long and it would take many more pages to provide a full analysis, but here is an analysis of Article XIII and Article XIV as it applies to tribal business transactions. Two sentences, each from different Articles, would ruin our tribal economy.
Article XIII Section 1. Sovereign Immunity states: “The Eastern Band of Cherokee Indians shall be conclusively immune from any cause whatsoever as an established sovereign.” Article XIV Section 1. Savings Clause states that “All actions of the Eastern Band of Cherokee Indians adopted before the effective date of this Constitution shall continue in full force and effect to the extent that they are consistent with this Constitution.” Chapter 16A-5(h) of the Cherokee Code is the existing law that allows the TCGE to function by using limited waivers of immunity so that it can enter important agreements for loans, management, construction and other endeavors. Other tribal laws also allow other tribal entities to come before Council to ask for limited waivers for similar purposes. The waivers are part of the economic activity of the Tribe. If the proposed constitution passes at referendum, C.C. 16A -5(h) would immediately become void and unconstitutional. TCGE could no longer seek loans, do any major construction, and couldn’t enter other various agreements with management firms, etc. Similarly, the Tribe’s other legal entities could no longer come before the Council to ask for limited waivers of immunity either. Plus, the Tribal Council couldn’t simply fix this with an ordinance passed in its regular lawmaking capacity. All laws have to comply with the constitutional law. This would severely harm this Tribe’s economy as well as the private economy of each person and family receiving per capita distributions.
I don’t think the Constitution Committee meant for this to happen, but I’m afraid that most voters won’t anticipate this consequence if they cast a “yes” vote at the referendum. This is only one example of why the Attorney General’s Office has asked Tribal Council not to send what they’ve all admitted is an imperfect document to the ballot. There are a number of other, equally concerning ramifications. The community deserves to vote on referendum questions that are easily understandable and fully informs the voter of what it is they are voting for. It would be a tragedy to have someone vote “yes” on this constitution believing it is in the best interest of the Tribe when in reality tribal revenue and their own per capita will suffer for it.
The various hidden ramifications presented by the proposed constitution are too important to risk. My job and the job of the Attorney General’s Office is to protect the Tribe and the rights and interests of all tribal members. The Tribe is more than my employer, it’s my family as well. I can’t try too hard to protect it. I don’t love being accused of insulting my family members or elected officials. But the stakes are high, and this kind of criticism comes with the job. So, if the Tribal Council allows the people to vote for the proposed constitution, their nerves are steadier than mine. Should the referendum for the proposed constitution come to pass, I advocate voting “NO” on the September 2023 referendum’s constitution question.
