By ROBERT JUMPER
One Feather Editor
The 2023 Tribal election was an education in referendum politics. The reactions and decisions made provided a window into the collective mindset of the government and legal establishment that is serving our people.
Late 2020. That is when a proposed resolution to ask the members of the Eastern Band of Cherokee Indians (EBCI) to change the Charter and Governing document to convert the terms of Tribal Council seats from two years to four years, create a staggered term system, and invoke term limits of two consecutive terms. Without going through the petition process outlined in Cherokee Code 161-9, the writer of the legislation had no hope of passage unless a council representative sponsored the resolution as their own. Cherokee Code 169.9.c.1.a states, “A referendum initiated by Tribal Council does not need a petition.”
So, the intrepid young man who wrote the proposed resolution stood before the Tribal Council and asked if there would be any representative willing to sponsor the resolution, a resolution that would change the structure of tribal elections and reform the two-year perpetual campaign mode that has hindered community and economic development for years.
Almost immediately three Tribal Council members put their support behind the proposed legislation. Prior to a vote, there was support around the “horseshoe”, but not for the content of the legislation. After all, it did call for term limits, something that no politician feels great about. But they were in unanimous agreement that this was an issue that the people should be allowed to speak about.
One Council member stated, “I am glad to finally see this. It has been a long time coming.”
The vote was unanimous and was then ratified by the Principal Chief.
The EBCI Election Board along with an attorney from the EBCI Office of the Attorney General, reworded the questions, condensing from three questions to two, so that the people could easily understand the intent of the questions and make a clear choice. These revisions had to go before the Tribal Council again in early 2021 for approval. Again, the Tribal Council unanimously said with their votes that they unanimously supported the right of the people to make the decision on Tribal Council terms of office. Another unanimous “in favor of” Tribal Council vote. Another ratification by the Principal Chief. It truly looked like the government was going to respect the right of the people to be heard on terms of office for the Tribal Council. But not so fast.
While the two term questions waited for a Chief’s election to roll around, progress was being made on getting a proposed Tribal constitution to a vote. The constitution had been on a six-year-plus journey of public meetings and debates in our community. At every turn, every week, the Constitution Committee solicited input and revision, holding education sessions, providing literature, and publicizing in the community. They built and maintained a website and social media page. They attended community club meetings and reported to the Council. They sought the guidance of the legal establishment in our community, tribal government attorneys, and members of the court. They even reached out to the Cherokee school system to try to provide information to the students. You really would have had to have been a salamander under a river rock to have not seen nor heard of the proposed constitution and its contents.
When the Community Club Council adopted the constitution, having meetings dubbed “Constitutional Conventions”, examined, and approved the proposed constitution article by article, went before the Tribal Council to seek to put the constitution and its adoption as the governing document on the 2023 ballot for a referendum decision for the people, Tribal Council quickly discussed and then voted, unanimously, to put the question to the people. Again, many of the representatives said that they were not endorsing the constitution, but the right of the people to choose their governance. Once again, it looked like the people would be able to choose their own destiny and direction of their future. But not so fast.
Remember that the term limit questions had already been approved over a year before the constitution was brought to the Council for consideration. Keep in mind that throughout the constitution writing process, input was sought but not brought from the government attorneys. That is, not until the referendum question was passed by the Tribal Council. It was at that point a campaign began to dismantle the vote of the Council. The Attorney General staff (acting in its official capacity) and members of the Tribal Court (not acting in their official capacities) met with the Constitution Committee and Community Club Council and urged them to jointly ask the Council to rescind the constitution referendum resolution because of alleged catastrophic damage that it would do to the governing structure of the tribe. A proposal that just a month earlier was so innocuous that it didn’t merit a look from government officials was suddenly the most dangerous document in the land. The passing of the referendum question prompted a counter piece of legislation to throw out the constitution and replace it with changes to the existing Charter, a document that is admittedly more to the legal department’s liking. It is simple, flexible, and free of civil rights.
Now this hubbub came to pass all because the Tribal Council decided a very positive thing. They decided that these were things that were big enough, important enough, to ask the people if they were the right things to do. Were all the representatives in favor of term limits? Definitely not. Were all the representatives in favor of the Constitution? Decidedly not. But they all, unanimously, said that they believed in the right of the people to vote. That is, until they didn’t. With the legal department and a special interest group in Chambers bombarding the Tribal Council with the message that the sky was falling, the Tribal Council not only reversed themselves on allowing a referendum vote on the constitution but did away with the term questions that had been approved for the ballot for nearly two years. And poof, just like that, the people’s opportunity to choose was unchosen for them. And yes, this too was ratified by the Principal Chief.
Cherokee Code 161.9.a.b.-A referendum is the people’s ability to refer newly enacted law by petition, from the legislation to the ballot for final approval. Referendum shall mean the submission of a proposed public measure or actual statute to a direct actual vote.
No rationale was offered for the removal of the term questions. One representative said that the term questions, like the constitution question, seemed too “last minute”. They may not have understood that the legislation had been approved twice nearly two years ago. Either that, or we differ greatly on the concept of last minute.
Now, what survived the reversals was two referendum questions on consumables – namely, liquor and cannabis. One question asked us about our agreement of mixed drinks for Cherokee businesses, extending what is already available at the casino. The other question could have approved adult use applications of cannabis, adult use including medical and recreational applications.
Cherokee Code 161.9.c.11 states, “The outcome of the referendum vote, if it has met the minimum threshold of voters, shall be certified by the Board of Elections and shall be deemed a binding action or law duly passed and ratified by the Principal Chief. Any decision made by referendum vote cannot be overturned unless there is another referendum.”
The September 2023 referendum vote met the minimum voter threshold. Certification is not a problem. What is a problem is the wording of the questions themselves.
Each question starts with language typical of a survey question, not a directive or initiative. “Do you support…” prefaces each question. And while possible actions are suggested by the questions, there is no clear instruction to the government to do anything. “Do you support” basically means “I am in favor of you doing…”. Had the question started “Do you direct…”, it would have meant “I direct you to do…”.
So, what we had were survey questions, not referendums. Members of the tribal legal establishment have all but confirmed it. After the election results were released, people were asking if the yes majority vote on the cannabis meant that recreational use of cannabis made legal. The question was so prevalent in the community that the Attorney General issued a press release, stating, in part, “Since election day, a common question has been whether or not the referendum automatically legalized adult-use marijuana. It did not. The effect of the referendum is that it shows support for legalization among the majority of voters. Tribal Council is the Tribe’s lawmaking body. Any changes to Tribal law will have to be made by Tribal Council.”
The way the questions were worded, there is nothing legally binding about either.
Which is probably fitting. These two issues could have been easily decided by our Tribal Council without a referendum. Sure, it is nice to be asked, but to be asked in such a way that the preference of the people may legally be ignored is disingenuous to the community. Where was all the legal scrutiny that came to bear on the previous questions, the questions that would have really made substantive change for our people?
There must be a better structure for referendum law. If there is ever a constitution for our tribe, civil rights will be a critical piece of it. But for now, we must fight for the privileges afforded by resolutions and ordinances. Not rights. Privileges. The difference? That definitive language like “…cannot be overturned unless there is another referendum.” In other words, your will cannot be overturned by any government body. That would be a right. The problem? The language resides in an ordinance; an ordinance that may be overturned by a vote of a government body. That makes what would be a right, a privilege, subject to change by someone other than you, the community. That is the way it is for the majority of our laws. And for as long as we are willing to accept it, that is the way it will be.
