By SCOTT MCKIE B.P.
One Feather Asst. Editor
CHEROKEE, N.C. – The tribal government of the Eastern Band of Cherokee Indians (EBCI) has three branches including executive, legislative, and judicial. The first two are covered in the EBCI Charter & Governing Document. The third, the Judicial Branch, was established by Dinilawigi (Tribal Council) in the Cherokee Code with the passage of Ord. No. 29 on Jan. 6, 2000.
The legislation, submitted by then-Kolanvyi (Big Cove) Rep. Mary W. Thompson, stated in the Whereas section, “The Bureau of Indian Affairs has operated a Court of Indian Offenses for the Eastern Band of Cherokee Indians since 1981, with limited jurisdiction under federal law; and the Eastern Band of Cherokee Indians has expressed its intent to contract for and assume responsibility of the court system pursuant to the Indian Self Determination and Educational Assistance Act, Public Law 93-638, for purposes of establishing a tribal court with full jurisdiction to hear and decide disputes that arise within its territory,”
Courts and their powers
According to Cherokee Code Sec. 7-1(a), “The Judicial Branch shall be comprised of one Supreme Court, one Trial Court, and such other Trial Courts of Special Jurisdiction as established by law. The Supreme Court shall be known as the ‘Cherokee Supreme Court’ and the Trial Court shall be known as the ‘Cherokee Court’. Trial Courts of Special Jurisdiction shall be established by the Tribal Council and named according to their function (e.g., Cherokee Juvenile Court).”
Sec. 7-1(b) outlines the makeup of each Court. “The Supreme Court shall be comprised of one Chief Justice and two Associate Justices. The Trial Court shall be comprised of one Chief Judge and two Associate Judges, and other Associate Judges of the Trial Courts of Special Jurisdiction.”
The powers of the Court are outlined in Sec. 7-4 and Sec. 7-5. The first deals with the Trial Court and states it “shall have the power to interpret and apply the Charter, laws, customs, and traditions of the Eastern Band of Cherokee Indians, and to make findings of fact and conclusions of law and issue all remedies in law and relief in equity”.
The subsequent section deals with the Cherokee Supreme Court and states it “shall have the power to interpret and apply the Charter, laws, customs, and traditions of the Eastern Band of Cherokee Indians, and to make conclusions of law. The Supreme Court shall not have the power to make findings of fact.” It goes on to state “shall have the power to declare any law void if such violates the Charter and Governing Document of the Eastern Band of Cherokee Indians, enacted in 1986, as it may from time to time be amended”.
One interesting part of the law in the Cherokee Code on the Judicial Branch is Sec. 7-25 (Amendment) which states, “To protect the independence of the Judicial Branch, this Chapter may only be amended by a vote of two-thirds of the Cherokee Tribal Council and ratification by the Principal Chief.”
For context, all other tribal law being presented only requires a majority vote of the Dinilawigi.
Jurisdiction
The jurisdiction of the Judicial Branch is covered in Sec. 7-2(a) which states, “The jurisdiction of the Eastern Band of Cherokee Indians, including the Judicial Branch, extends to all persons, activities, and property within the territory of the Eastern Band based upon inherent territorial or popular sovereignty. The territory of the Eastern Band is comprised of all lands within the Qualla Boundary, all lands held by the United States for the benefit of the Eastern Band or any member of the Eastern Band, and all other lands acquired by the Eastern Band, notwithstanding the issuance of any right-of-way. The territory includes all surface and sub-surface lands, submerged lands under navigable or non-navigable waters, all air and water, and all natural resources. Every person who enters the territory shall, by entering, be deemed to have consented to the jurisdiction of the Eastern Band of Cherokee Indians.”
Now, it does go on to state in Sec. 7-2(c), “The Judicial Branch shall not have jurisdiction over matters in which the exercise of jurisdiction has been specifically prohibited by a binding decision of the United States Supreme Court, the United States Court of Appeals for the Fourth Circuit or by an Act of Congress.”
One Supreme Court case that affects jurisdiction is Oliphant v. Suquamish Indian Tribe (1978). According to the Supreme Court syllabus on this case, “Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.”
As a result of this landmark case, federally recognized tribes do not have criminal jurisdiction over non-Indians, but they do have jurisdiction over their own tribal members and members of other federally recognized tribes.
Tribes did gain some jurisdiction over non-Indians with the Violence Against Women Act. According to information from the U.S. Dept. of Justice, “Prior to the Violence Against Women Reauthorization Act of 2013 (VAWA 2013), if a victim was Indian and the perpetrator was non-Indian, the crime could be prosecuted only by the United States or, in some circumstances, by the state in which the tribe’s Indian Country is located. VAWA 2013 included a provision recognizing the authority of participating tribes to exercise ‘special domestic violence criminal jurisdiction’ over certain defendants, regardless of their Indian or non-Indian status, who commit crimes of domestic violence or dating violence or violate certain protection orders in Indian Country. The Violence Against Women Act Reauthorization Act of 2022 expanded this jurisdiction to cover additional crimes, including assault of tribal justice personnel, child violence, obstruction of justice, sexual violence, sex trafficking, and stalking and renamed it to ‘special tribal criminal jurisdiction’.”
The Cherokee Court is one of a few in Indian Country to utilize the enhanced sentencing made available to tribal courts with the Tribal Law and Order Act of 2010. That law gave courts of federally recognized tribes the ability to impose a penalty of up to three years and a $15,000 fine per count or a total penalty of up to nine years. Prior to that law being enacted, tribal courts were limited to one year and a $5,000 fine per count.
Appointments and terms for justices and judges
Sec. 7-11 states that justices and judges in the EBCI Judicial Branch are all appointed by the Ugvwiyuhi (Principal Chief) and confirmed, following a confirmation hearing, by Dinilawigi (Tribal Council). Sec. 7-12 sets their terms of office as follows: Chief Justice, six years; Chief Judge, six years; Associate Judges for Trial Court, six years; Associate Justices, four years; Associate Judges for the Trial Court, four years.
According to Sec. 7-14(b), “All persons appointed as associate justices of the Cherokee Supreme Court and as associate judges of the Cherokee Tribal Court shall also be attorneys licensed by and in good standing with the North Carolina State Bar.”
