By ROBERT JUMPER
Tutiyi (Snowbird) and Clyde, N.C.
The power of the Dinilawigi (Tribal Council) goes well beyond any town, county, or state government. The authority given to the Dinilawigi by the Charter and Governing Document of the Eastern Band of Cherokee Indians (EBCI) is far-reaching. Its power is not limited to legislating.
Charter Section 23: “The Tribal Council is hereby fully authorized and empowered to adopt laws and regulations for the general government of the Tribe, govern the management of real and personal property held by the Tribe, and direct and assign among its members thereof, homes in the Qualla Boundary and other land held by them as a Tribe, and is hereby vested with full power to enforce obedience to such laws and regulations as may be enacted.”
The Dinilawigi in our system of government is given, for all intents and purposes, absolute power.
The Charter gives certain authorities to the Executive Office, but those flow through Dinilawigi. The delineation of powers among the branches of government is quite fuzzy in the Charter. The Executive Branch should be the enforcing branch of government, implementing laws established by the Legislative Branch, the Dinilawigi, and overseeing the day-to-day operations of the tribal government, which includes personnel and programs. But a few years ago, Dinilawigi decided to move an entire program under the direct authority of Dinilawigi. In addition, the Council created two appointed positions that they control. These actions clearly show that Dinilawigi has executive as well as legislative authority.
The Cherokee Code refers to the Cherokee Court as the “Judicial Branch” of the Tribe. The use of the word “branch” is disingenuous because the fact is that nowhere in the Charter and Governing Document will you find any reference to a Judicial Branch of our government. In traditional representative republics or democracies, the Court is the interpreter of law. But those who established the Cherokee Charter did not make any reference to this body or branch. And while laws created are supposed to flow from the Charter, in this case, that would have been impossible because no reference exists to a tribal court of any kind. In fact, the Lloyd Welch Constitution from 1868, which the current Charter mimics to a large extent and many believe to be the true current governing document, says, “The power of the Eastern Band of Cherokee Indians shall be divided into two distinct departments, the executive and the legislative.”
So, the mindset, it would seem, early on in our tribe, was that an interpretive branch wasn’t necessary. It was brought to my attention by a colleague that, likely, back in those early years, we were limited in the amount of interpretation and indeed enforcement we could mount.
It shouldn’t be lost on us that anything in the Cherokee Code is amendable or reversible through action of Dinilawigi. There is an area of gray concerning those laws enacted through community mandate (referendum), but even that type of legislation requires a resolution or ordinance to be drafted by or through Dinilawigi and voted by Dinilawigi into existence before it is officially law. By that same token, any law, whether resolution or ordinance, may be modified or totally deleted from the Cherokee Code through a vote of the Dinilawigi. The difference for ordinances, any change would have to sit for a minimum of 25 days before it could be voted up or down by the Council. So, technically, a simple vote to abolish the Court could make the Judicial Branch extinct in as little as 25 days. Don’t get me wrong, I do not believe there is any appetite at all to do such a thing, but the possibility exists because there is nothing in law to prevent it.
You might say, well, there is the Executive veto that is also a factor. Yes, this is true; however, vetoes may be overridden with a two-thirds majority vote of Dinilawigi. What does that look like in consideration of the Charter-mandated weighted vote? Seven of the 12 seats, just over half, are all that is needed to override an Executive veto.
The weighted vote brings up another head-scratching situation with our government. Polling of our population is supposed to occur on a per-decade basis (similarly to the federal national census) to ensure that the weights for each community’s seats truly represent the population of each community.
The mandate from the governing document is in Section 19 of the Charter. “In order to provide equal representation to all members of the Eastern Band, the members of the Tribal Council shall, in their deliberations, cast votes on a weighted basis, with the weight of each vote determined by each Council member. A tribal census, for the purposes of determining the weight of the votes to be cast by each Tribal Council member, shall be conducted prior to the 1981 tribal election and prior to the election each ten years thereafter to determine the number of enrolled tribal members residing in each township. After the regular 1981 tribal election and each ten years thereafter, the Tribal Council, at its first regular meeting, shall determine the total number of votes to be cast in the Tribal Council and shall allot a voting authority to each Council member. The voting weight allotted to each Council member shall be determined by computing the mathematical ratio, fraction or proportion that exists between the number of enrolled tribal members residing in each township and the total number of enrolled tribal members.”
Allowing elections and operations to proceed is certainly necessary for the continuation of our government and community, but isn’t the adherence to the governing document also important? Isn’t it supposed to be important to the sovereignty of our tribal nation? And when we neglect or ignore the foundational document of our tribe, shouldn’t that be at least an ethical concern? A less-than forthcoming attempt at a tribal census took place back in 2022-23, but after it was presented to Dinilawigi, there was no resolute action taken based on the results of that survey. Even if we accept the survey done in 2022-23 as a legitimate census, before that, we went two decades without a legitimate tribal census that specifically addresses the proper representation of each community. Since any ethics challenges brought up through the tribe must go through the tribal ethics committee, who then, in turn, sends their recommendations for any action to Dinilawigi (unless there is a criminal violation), and it is up to Dinilawigi to determine what action will be taken, the takeaway is that Dinilawigi is supremely in authority. Their power is absolute.
The one check and balance available to the community for our governors, including Dinilawigi, is tribal elections. It is the one time every two years that we, the Principal People, have the ultimate say. That is why you should take your privilege to vote seriously. In the July Primary Election, just 31.97 percent of eligible voters participated in the selection of the candidates that now stand before you to consider leading our tribe for the next two years. I hope we realize the urgency and importance of voting in this General Election for the most important seats of governance for the Eastern Band of Cherokee Indians.
