By ROBERT JUMPER
Tutiyi (Snowbird) and Clyde, N.C.
Reactionary anything is a gamble. Reactionary governance is dangerous.
You and I, as tribal members, have given lip service to the development of a constitution for decades. The most recent effort was six years in the making. Outreach programs, advertising, community club learning sessions, websites, social media pages, and more were provided to the community over those six years.
There were many voices, even voices in tribal leadership, that agreed that the Eastern Band of Cherokee Indians needed a constitution that solidified the rights of the Principal People. And most of those voices agreed that a constitution needs to be “by the people, for the people”. During those six years, by and large, tribal officials tried to stay out of the formal discussion of constitution creation, saying that it needed to be done independently, without political influence.
The Constitution Committee, which had been charged with preparing a draft constitution for referendum consideration and funded by the government to do so, diligently worked to engage the community in the drafting of a document for tribe-wide consideration. In the final stages of discussion, the Cherokee Community Club Council (CCCC) was engaged to do a thorough review of the document, and, in a formal session (actually two sessions) of their meeting, documented their endorsement of the draft constitution, examining it article by article. The sessions may still be found online as those were streamed live on social media for all the world to see.
Once the document had been endorsed by the CCCC, they presented it to Dinilawigi (Tribal Council) in the form of a resolution, requesting that the Principal People be allowed to decide if this document would replace the Charter as the foundational governing document for the Eastern Band of Cherokee Indians. The vote in Tribal Council was unanimous, all hands were raised to let the people decide if this constitution draft was indeed the way the people wanted to go. While some of those Dinilawigi representatives said that they disagreed with this or that part of the constitution, they all agreed to the point of going on record with a formal vote that it should be the people’s choice, not the government’s.
Now, enter the Attorney General’s Office. After six years of silence on the matter, after the vote was taken to let the people decide, this office came out vigorously against allowing the people to choose, citing portions of the proposed constitution that, in their opinion, could be “potentially disastrous” to the tribe and tribal operations. Their knee-jerk response to the draft constitution was for the AG’s Office to create a counter-resolution (after a solicitation to the Constitution Committee and CCCC to ask Dinilawigi to rescind their resolution to allow the referendum vote – an effort that failed in both entities) to remove the referendum question on the constitution and replace it with a “lick and promise” measure. The proposed language from the AG’s Office was to Band-Aid the Charter and Governing Document, adding caveats like adopting the Indian Civil Rights Act (ICWA) and incorporating the Cherokee Tribal Court as a true third branch of government.
The approach seemed to let us hit this issue with a “lick and a promise” (Grammarist.com- “This oddball phrase ‘a lick and a promise’ is meant to describe someone doing a quick and superficial job with the full intention of coming back to it at a later date to finish it better or more thoroughly”).
All my young life, I would hear my elders use the term, a lick and a promise. Some would say “a lick and a prayer”. It almost always indicated that something sudden or unexpected happened and required an immediate reaction to the situation, one where no strategy was prepared to address it in case it ever happened. Put together a temporary solution in hopes that it holds while a more permanent solution can be formulated.
Well, the Dinilawigi, on the advice of the AG’s Office, withdrew their support of the referendum question and their support of allowing the people to make the choice. They rescinded the question and rejected the AG’s Office’s alternative. They instead decided to create a new constitution committee and task them with further study, contemplation, and drafting of a constitution to present to the Dinilawigi, and with their blessing, to the people in the form of a resolution for referendum.
What is the difference in the makeup of the new constitution committee? The government’s hands-off approach was abandoned and now the Constitutional Convention Committee is structured to include members of the government, including two members of the Dinilawigi, two members chosen by the Ugvwiyuhi (Principal Chief), and Taline Ugvwiyu (Vice Chief), and two members from the Tribal Court. So, of the 14-member committee, 43 percent of the committee is elected or appointed governmental officials or people selected by same. And while the tribal judiciary is engaged, no provision was made to engage tribal legal except for a reference to instruct “a legal review to be performed before submission of a proposed constitution to Dinilawigi for referendum.” No more “lick and a promise”. We are going to plan it this time. Except that tribal legal counsel was sought numerous times by the Constitution Committee. But to be fair, the AG’s Office did say they didn’t review the draft constitution up for referendum because they were not told to (by the government). Maybe this time, it will be different. The constitution delegates should insist on legal representation from the beginning of their deliberations, not wait until they think they have a clean document. Ideally, that would be an independent legal counsel. If that doesn’t work for the Dinilawigi financially, then a member of the AG’s Office should be present at every session of the constitution planning meetings.
The legislation appointing this new constitution committee was passed in July 2023. Selection of delegates took until January 2024. Since then, it is my understanding that they have met a couple of times in unpublicized, if not closed, meetings to elect officers and establish procedures. There has been a first public meeting of this body scheduled for June 27 as of this writing, just shy of a year since the resolution constituting them (pardon the pun) went into effect. Like in “The Wizard of Oz”, I hope that there is work being done behind the curtain that we are not seeing.
And that is the most troubling thing about this process. You don’t know what you don’t know. Governing document creation for democracy should be one of the most public-facing processes in a community. No hidden agendas. No offline meetings. Everything should be documented and recorded and made accessible to the community for inspection, examination, and reexamination. As far as I know, no documentation process was in place when delegates were selected. For example, for each category of delegate seats, what was the pool from which they were selected? What was that process? If the government is going to be integrally involved in the committee, shouldn’t there have been a public confirmation process for the delegates? And if there was no vetting process, how would this group be able to do any more than the previous group?
Everyone who is anyone has talked about how important a constitution and a constitution process are. And yet we stumble as a people when we are asked to engage and create one. Let’s not be five, ten, twenty years down the road again and suddenly bristle when we are still governed by a charter instead of a constitution “by the people, for the people”.
The Constitution Delegation meeting is scheduled for Thursday, June 27 at 6 p.m. at the Yellowhill Activity Center. It has been announced as a tribal community meeting, meaning all tribal members are invited to attend. If you are concerned about your rights as a member of the Eastern Band of Cherokee Indians, this might be important for you to attend. Let’s try not to repeat history.
