By HANNAH SMITH
As the Constitution Convention gears up to vote on how to proceed with a constitutional referendum for registered voting members of the EBCI, I wanted to comment on something that has puzzled me and that is worrying me.
I am puzzled why there is an assumption among some that EBCI can repeal and replace the laws that form our government in a simple, singular referendum question that essentially asks: Vote “yes or no” to replace these old laws with all these new laws.
I worry because I’m among my fellow tribal members that believe the laws that form our government are outdated. I believe it is urgent that legal guarantees for a full judiciary to complement separation of powers and checks and balances exist in the legal foundation of tribal government. I want guaranteed individual rights to enforce when government action may violate them. I would also be interested in voting for other common-sense laws for a stronger, modern government.
I worry about the history of failed constitutional reforms at EBCI and that in our excitement to ride the popular support for legal changes, we’re forgetting that EBCI has its own legal system, its own laws that aren’t the same as BIA rules that ushered in the previous “repeal and replace” method of legal re-form for EBCI.
Before EBCI holds a referendum allowing the people to vote for new constitutional laws, we must ask two questions: (1) Does EBCI law govern referendum lawmaking? And (2) If so, how do we adopt new constitutional law that is safe from legal challenges?
To assume a repeal and replace question asking “yes” or “no” to a collection of new laws that would institute a new government, repealing the old, is dangerous. We have been conditioned by BIA that this method is legal. This method was legal under the federal Indian Reorganization Act. But much has changed and EBCI law is now paramount as a self-governing tribe.
Chapter 161, Section 9 of the Cherokee Code governs referendum elections at EBCI, providing registered voters a right to vote for or against a law or issue through a referendum election.
“All registered voters shall be eligible to vote on a referendum issue.” Sec. 161-9(c)(9).
The word “a” is singular. Registered voters have a right to vote on one issue at a time, separately, but for multiple issues or laws in the same election. In fact, this standard was utilized in the original 1986 constituting process and thereafter in 1995 when the Charter was amended to add eminent domain protections.
“A referendum is the people’s ability to vote on ballot questions approved by Tribal Council.” 161-9(a).
The word “questions” is plural. Council would approve each question on a ballot just as the Election Board does in the pre-certification process when a law or issue is presented through the petition process by tribal members.
“The Petitioner’s Committee shall submit the proposed referendum language and the text explaining the proposed action to the Board of Elections for review to pre-certify the referendum issue/question as consisting of only one issue or question prior to collecting signatures on the petition.” 161-9(c)(5).
I don’t see that a repeal and replace approach to the entire collection of laws forming our government is the authorized procedure under EBCI law. I do see an approach for repealing and replacing, or adding, or subtracting one law at a time exists. I worry that getting the legal process wrong now could result in another failed attempt to improve our lives and cause general confusion about the legitimacy of the Cherokee Code and the EBCI government itself. I believe repealing and replacing entire tribal governments is federal law tactic, long outdated for modern tribal governments.
To avoid litigation and possible failure of this important, long-needed, effort to improve our futures under EBCI governing law we must respect the rule of law. Our forbearers’ determination to self-govern deserves this respect. Doing this will ensure a successful tribal referendum that rejuvenates the EBCI into a modern government as we have all come to expect and deserve.
Smith is an EBCI tribal member living in Whittier, N.C.
