By ROBERT JUMPER
Tutiyi (Snowbird) and Clyde, N.C.
We have struggled for several years in attempts to create a constitution “by the people for the people”. The most recent failed attempt was six years in the making. The proposed constitution, was approved by the government to be brought to the community for a referendum vote, along with elected official term questions that had been scheduled to be brought to the people for two years. In the course of a month (and just two months before the election when those referendum questions were to be decided by the people) the people were allegedly protected from what was presented as an ill-considered decision. This outcome even after many of the same officials who just a month before the reversal said that it was more important to let the people decide than what they thought of the proposed changes to the law. We had appointed officials and in the legal system making hypothetical statements and providing challenges against the proposed constitution by stirring fear with a litany of “what ifs”.
Don’t get me wrong. The governing document of any nation should be a well thought out, well-defined document that guides us into the future. But it is also a document that should be based on the will of the people it is to be set in place to govern. If only the framers of the Charter had considered that instead of crafting a document of convenience, one that is “by the government to do business”. As was pointed out in the hastily assembled argument against the people’s vote, the vagueness of the Charter is well-suited to negotiation and bargaining with other governments and other entities because of its being so vague. Unfortunately, it is also almost silent on tribal members’ civil rights. So, since May 8, 1986, or thereabouts, the tribe has used the Charter to govern our nation. And for twenty-plus years since then, the people have been trying to find our way back to a constitution, off and on.
The new constitution committee is working as best they can to prepare another attempt at a representative governing document. The governors of the Tribe thought it best to create an new workgroup, a constitutional convention made up of government officials, community club leaders, previous constitution committee members form the community, and youth. The make-up of this committee looks very similar to the make-up of the group that assembled six years ago (maybe seven now) with one exception, elected officials are now serving on the committee. This is a departure from the previous years of effort where elected officials didn’t want to influence or direct on a document that is being touted as “by the people”. But they are meeting and reporting out on what is admittedly a slow process. I believe that the target date for getting to the people for referendum vote is the 2027 election. If that is the case, there is a long road and a bunch of work ahead for the constitution convention.
The possibilities for our Tribe are and the benefits could be great. For example, the Rosebud Sioux Tribe (South Dakota) members elect their tribal treasurer, as does the Delaware Nation (Oklahoma). In the meantime, maybe some of those in the know in the committee should look into what important steps forward they could make in the governance of our tribe and introduce legislation to amend what we already have that might help identify and implement meaningful changes in government that would better recognize the rights and will of the people. We shouldn’t have to wait for rights to be incorporated into law until a complete constitutional proposal is submitted to Tribal Council, which that has been fruitless for over two decades.
Things like amending the Charter to formally make the Cherokee Court the third branch of government I think most of us agree that it is a long overdue change. The tribe should give thought to the possibility of electing justices to their seats. And before you say it, it is possible to set guidelines in the Cherokee Code and the election law to set criteria for qualifying as a candidate that could be used to make sure that we get qualified candidates. I surely don’t have anything against judges we have serving us. But everything we do as a people should be done with a eye toward the generations to come and ensuring that we and they have input into our leadership choices. The most direct way to do that is through the right to vote.
The same is true for the Offices of Attorney General and Tribal Prosecutor. And it is not uncommon for Indian tribes to elect their attorney general. Again, the excuse that we are afraid we would get someone who is not qualified doesn’t hold water. Tribal law can set whatever qualifications it needs to on candidates to make sure they fit the job. Notable nations who elect their attorney generals are Cherokee Nation, Muscogee (Creek) Nation, and the Osage Nation. Typically, in these tribes, the mandate for attorney general elections come from their tribal constitutions, but, alas, we don’t have one of those. And a tribal prosecutor is the equivalent of district attorneys in the outside world. I know thinking these things as a tribal member is a little overwhelming and would likely mean we would have to rethink the entire election guidelines and process. It might be that elections for those offices would have to include the ability of tribal members to vote on members from other tribes or non-enrolled to fill seats in those areas because of the skill set required for the seat and potentially limited candidate pool. But we are smarter than some people think we are, and I believe we could and would elect good representation.
And it might be beneficial to us all for the Tribe to revisit the entire issue of term limits, staggered terms, and extended terms. This change would be a pivotal change for our tribe. There are so many good things that would come from introducing a four-year term for legislators with term staggering and instituting breaks in service with term limiting. These changes would encourage more engagement in the political process. Voters would feel more empowered. Community members would be emboldened to step into the political arena. And sitting elected officials would have more time to focus on running the tribe instead of running for office.
We have discussed before how little the Charter speaks to the power of the people. Making these changes are ways to push it closer to the day when we have governance by the people for the people. Our voting right is the right we have under the current governing document to take control of our own destiny. We need to stop being okay with having privileges through the Charter and Code and get a real bill of rights for the membership of the Eastern Band of Cherokee Indians.
I believe that government and community do want to establish a governing document that both reestablishes and recognizes tribal member rights. I think we have let fear and fearmongering turn back the clock on the constitution for over twenty years. I hope that the new constitutional convention fares better and can get past the fear and subsequent apathy that has stifled us. And I hope that that committee or some other will step forward to propose immediate change in those areas where it will be a benefit to our people.
