COMMENTARY: We shall see. Or is it may?

by Jun 30, 2023OPINIONS0 comments


One Feather Editor


Maybe if we had a constitution instead of a charter, things would not have been so frustrating this week. After all, as the Attorney General’s Office puts it, we would be talking about making amendments to it instead of overhauling it wholesale. Maybe there would be some way to come together and discuss realistic solutions that make sense for our community. As it stands, the Tribal Council in the July 2023 session will have to make a tough decision. If they lean in favor of the Community Club Council, they will put up for a referendum vote a document that the legal division of our government has taunted as almost unmanageable and have inferred will cause a catastrophic challenge to the business workings of the tribe. If the Council favors the Attorney General’s position, that body must admit some pretty damaging things, to wit, they did not use proper discretion in sanctioning the referendum question in the first place, did not consult any expert in the field to get a value judgment on the document, and potentially be perceived as not looking before it leaped. Keep in mind this was a unanimous vote of those present. And, yes, you must include the Executive Office in the mix, because while the Principal Chief did not ratify it with his signature, he did let the resolution sit the required amount of time prescribed by Code law to let it “self-ratify” without a veto.

A constitution for our Tribe has become the political hot potato of the election. I know it has been a tiresome journey for those involved in trying to formulate a document “by the people, for the people”. As with many things of importance to our Tribe when trying to take their temperature on a subject, the masses do not flock to comment like they do when you show them a picture of a beaded graduation mortar or a picture of a cute puppy. One could be quick to conclude that because they, the People, are unresponsive on social media they are ignorant of or don’t have an opinion on a subject like the constitution. That would be a wrong assumption.

The proposed constitution has been advertised, promoted, explained through commentary, shared at community club meetings throughout the Boundary, and mailed to every enrolled member family. I have not just seen the Constitution Committee ask for input, I have seen them beg for input, from the community, and from the government. No one in their right mind would say that the community has not had an opportunity (or multiple opportunities) to know, understand, or have input on the constitution proposed by the Community Club Council.

I know. Because even though I didn’t have to and no one begged or pleaded with me to, I took an interest in the formulation of a constitution for our tribe. As a tribal member, not because I hold a position that might be affected by its adoption. Every person that I have talked to about the governing document, the Charter, with any depth has said it “ain’t good enough”. As time went by, we went from a constitutional government to being governed through a business charter. And that is what the government likes about the Charter. It provides a bare-bones framework, stripped of civil rights with plenty of wiggle room to do business. Nothing wrong with that, except that the People are put in the backseat when it comes to their rights, our rights. Maybe if I hadn’t seen Section 19 ignored for over a decade, I could be more sympathetic to the argument of the Attorney General’s Office. By rights and rudimentary logic (I ain’t a lawyer, but that doesn’t mean I am incapable of reasoning), every election and every subsequent ordinance and resolution vote that has taken place since our tribal census was not taken to ensure the proper weight to votes, all of those would be null and void. Is the Charter the governing document? If so, what should be the consequences of violating its edicts? “A tribal census, for the purposes of determining the weight of the votes to be cast by each Tribal Council member, shall be conducted prior to the 1981 tribal election and prior to the election each ten years thereafter to determine the number of enrolled tribal members residing in each township.”

From Cornell University (a law school), “Shall is an imperative command, usually indicating that certain actions are mandatory, and not permissive. This contrast with the word ‘may,” which is generally used to indicate a permissive provision, ordinarily implying some degree of discretion.” So, even though I am just a common, run-of-the-mill tribal member, with an average amount of common sense and education, I am able to figure out that taking that census that is spelled out in Code is not an option. It is actually one of the few civil rights afforded to the People by the Charter.

I also reason that the chances of our government being taken to task for this slight are minimal. And I know that it is not realistic for all the elections, resolutions, and ordinances to be redone to comply with the Charter.

And that makes the argument of the Attorney General’s Office a little watery to me. They claim that the constitution, if accepted by the People, and used to replace the Charter would be this nearly irrevocable law that would be catastrophic in its inflexibility and would hamstring tribal negotiations because of the “shall” language in it, then why isn’t that true of the Charter, where “shall” language is ignored by the government without consequence to the government for years?

Just a few things that I presume. I presume that the members of the Community Club Council and the Constitution Committee want the Tribe to have the best governance possible and one that affords the community its proper place as a seat of power. The power of governance should never subjugate the governed. Civil liberties provided by resolution and ordinance are not rights, they are privileges. And privileges may be taken away from you. Please read the Charter and try to determine how many rights it gives you. Go ahead. It won’t take long. I’ll wait. If you find more than one or two, you have got me beat. The Community Club Council and the Constitution Committee are not adversaries of the People.

And I presume just as strongly that the Attorney General’s Office and the Tribal Government are not adversaries to the People. They, too, want the best governance possible for our tribe. In fact, few people who are in office or serving in public service today were instrumental in putting the Charter in place. I believe that the AG has good intentions in trying to hold the proposed constitution from a public vote. That office is tasked with making our government as legally sound as possible and surely a constitution, any constitution, is going to be messy business when it comes to governance, particularly when dealing with outside entities that may not understand the culture of the Eastern Band of Cherokee Indians.

While the Attorney General’s Office is doing what it should be doing, I just wish they had been inspired to do it sooner. What they have done is like waiting until the last play of the game with a 4th quarter, 4th down, no time on the clock, and asking that the rules of the game be changed before the last play is executed. It is hard to get around the fact that the government’s and tribal legal’s input was sought on more than one occasion over the years with no or little response. The Attorney General’s Office has stated in a variety of ways that they did not engage because they were not directed to by the Executive or Legislative Branch, and that proper procedure was not followed in getting the proposed constitution referendum question resolution to the floor, else wise the legal team would have been tasked with it by law.  But here is my concern, for years, this committee has begged input on a proposed governing document. A committee, mind you, that was ordained by the government (and funded, no less). There have been no bones made about the significance of this effort, which all sides have at one time or another, said is of “historic” importance. So, just as a common, run-of-the-mill tribal member, it surely is a head-scratcher that in the last play of the game, so to speak, the message is issued that the sky is falling and the cries of “Wolf!” are sounding.

Whether the proposed constitution is a good governing document or a bad one is not for me to dictate to the members of the Tribe. And I don’t think that should be left up to the government to tell you either. You read, you research, you search your heart, and you vote up or down. That is why we say voting is a right. It is personal. Nobody, including the government, gets to tell you how to do it. They can only make their case to you. Then you choose.  Will our governing document be “Of the People, For the People”? That is up to you, tribal member.

If the Tribal Council leaves the referendum question in place, we shall see.