By SCOTT MCKIE B.P.
One Feather Asst. Editor
CHEROKEE, N.C. – The current governing document of the Eastern Band of Cherokee Indians (EBCI) is known as the Charter and Governing Document. It was set in motion by the EBCI with Res. No. 132 (1986) on May 8, 1986.
How it was enacted
Res. No. 132 states, “The Eastern Band of Cherokee Indians has operated under a governing document known as the State Charter which was approved and adopted by the Tribal Council before submitted to the North Carolina General Assembly for enactment. The State Charter has not been directly amended by the Tribal Council since 1897. The Tribal Council deems it necessary and proper to update the Charter in order to guarantee principals (sic) of due process and equal protection of the law to present and future members of the Eastern Band.”
For context, the State Charter was ratified on March 11, 1889 and amended on March 8, 1897.
Res. No. 132 continued, “The Eastern Band of Cherokee Indians in Special Council assembled at which a quorum is present that the Tribal Election Board shall conduct a referendum among eligible voters of the membership of the Eastern Band, as set forth in the current Tribal Election Rules and Regulations, to approve or disapprove the changes to the Charter as proposed.”
The proposed changes put forth to referendum on Oct. 8, 1986 were as follows:
- Section #5: Council members shall serve staggered four-year terms. FAILED (889 No, 147 Yes)
- Section #6: Principal Chief and Vice Chief must be elected by a majority of at-large votes cast. PASSED (614 Yes, 421 No)
- Section #9: In order to run for any elected office, candidates must be enrolled members of the Eastern Band of Cherokee Indians. PASSED (642 Yes, 384 No)
- Section #16: The first generation of an enrolled member of the Eastern Band of Cherokee Indians shall enjoy all property, both real and personal, that is held in said enrolled member’s possession at their death. First generation shall include all children born to or adopted by an enrolled member. PASSED (639 Yes, 397 No)
- Section #19. All members of Tribal Council, including the Chairperson shall be entitled to vote on all issues. PASSED (536 Yes, 501 No)
According to a report from the EBCI Board of Elections, a total of 1,044 (12.5 percent) people voted in the 1986 referendum. That report does state, however, “The figure of 12.5 percent included all persons that are on the roll. Our Charter and C.F.R. T25, Sect. 81.1(k) set our blood degree at 1/16 or more. Therefore, we conclude from the above figures, that only 6 percent of our duly qualified tribal members voted in the 1986 Referendum. The Tribal Council on May 8, 1986 passed Resolution No. 132 which set it at 25 percent of eligible voters. This is 5 percent less than the ’30 percent of those entitled to vote’ as proscribe (sic) by the C.F.R. Sects. 81.1(k) and 81.7. Therefore, according to Res. No. 132-1986, the Code of Federal Regulations Sect. 81, the Indian Civil Rights Act, and our rights to due process, the 1986 Referendum was at the time of the vote count and from that date on null and void.”
Despite the finding from the EBCI Election Board, Tribal Council passed Res. No. 461 on Jan. 9, 1987 which stated “that the results of the Oct. 8, 1986 Charter Amendment Referendum are hereby recognized, ratified, and confirmed.”
The Charter
Let’s delve into the Charter. The part in bold after the “Section” headers is the actual language found in the Charter. Some of the sections will be followed by a “discussion notes” header because the section might require extra explanation. That part is written by the One Feather.
Section 1. The officers of the Tribe shall consist of a Principal Chief, Vice-Chief and twelve members of Council as follows: From Yellowhill Township two members; from Big Cove Township two members; from Birdtown Township two members; from Wolfetown Township two members; from Painttown Township two members; from Cherokee and Graham Counties, constituting one Township, two members.
Discussion Notes: This is pretty straightforward except that the representatives from Cherokee and Graham Counties are usually referred to as Snowbird/Cherokee County representatives.
Section 2. The Principal Chief or Vice-Chief and members of Council shall be elected to their respective offices by the enrolled members of the Eastern Band of Cherokee Indians, who have attained the age of eighteen (18) years. All officers elected by the Council shall hold office until the first annual council held after the next tribal election and all officers shall hold office until their successors are duly qualified.
Section 3. The election for Principal Chief and Vice Chief and Tribal Council shall be held on the first Thursday in September, 1987, and every two (2) years thereafter, under such rules and regulations as may be adopted by the council.
Discussion Notes: This section is a little confusing as it states that the election for Principal Chief and Vice Chief and Tribal Council shall be held every two years. That is not the intent however. Section 5 states the terms of office as two years for Tribal Council representatives and four years for both Principal Chief and Vice Chief.
Section 4. There shall be an Executive Committee, which shall consist of the Principal Chief and Vice-Chief. The committee shall execute and carry out tribal laws and administer the daily operations of the Tribe.
Section 5. The representatives elected to the Tribal Council shall hold office for terms of two years. The Principal Chief and Vice Chief shall hold office for terms of four years.
Section 6. The Tribal Council shall establish a Board of Elections and enact election rules and regulations for the conduct of tribal elections. Election for Principal Chief and Vice-Chief must be by a majority of at-large votes cast by eligible voters.
Section 7. The Principal Chief shall receive as compensation for his services such sum as shall be appropriated by the Tribal Council, not to exceed one pay raise per annum. The Vice-Chief shall receive such sum as shall be fixed by the Tribal Council, not to exceed one pay raise per annum. Both the Principal Chief and Vice-Chief shall receive such traveling expenses as may be authorized by the Tribal Council. The members of the Tribal Council shall receive such compensation as shall be appropriated by the Tribal Council, with no pay raise to take effect until the next council is seated. All other officers and employees of the Tribe shall receive compensation for their services as shall be provided by the Tribal Council.
Section 8. The seat of government of the Eastern Band of Cherokee Indians shall be centrally located within the Qualla Boundary, North Carolina.
Section 9. In order to run for or serve as Principal Chief, Vice-Chief or Tribal Council member, a candidate must be an enrolled member of the Eastern Band. For the offices of Chief and Vice-Chief a candidate must also be at least thirty-five years of age by the date of the election and have resided on Cherokee trust lands continuously for at least two years immediately preceding the date of the election. For the Tribal Council a candidate must be at least eighteen years of age by the date of election and have resided in the township which he is to represent for at least ninety days immediately preceding the date of the election.
Section 10. There shall be an Annual Council held on the first Monday in October of every year, and in cases of emergency the Principal Chief may call a Special Council, but no business can be transacted in either Annual or Special Council unless a quorum of the members shall be present, with a quorum consisting of a majority of the members of Council elected at the last preceding election. The Principal Chief shall have the right to call a Grand Council of all enrolled members to attend and he shall preside over such meeting.
Discussion Notes: The last Grand Council was called by Principal Chief Patrick Lambert and was held in the Charles George Memorial Arena in Cherokee, N.C. on April 18, 2017. According to the Cherokee Tribal Court, the meeting didn’t have the “force of law”. In a 13-page order filed in Tribal Court on Wednesday, April 26, 2017, Judge Sharon Barrett, then-temporary associate judge, wrote of several issues surrounding the meeting including a lack of advance notice to all EBCI tribal members, irregularity in voting, and lack of precedent regarding the rules and procedures used. There is nothing in the Cherokee Code that further explains Grand Council or its procedures.
Section 11. At the convening of the Annual Council a new chairman, vice-chairman and clerk shall be elected by its members and hold office until the next Annual Council; provided, that all officers elected or appointed by the Council shall serve during the pleasure of the Council and for failure to perform their duties may be removed by said Council and others elected in their stead.
Section 12. All acts of Council shall be signed by the chairman and the clerks, and countersigned by the Principal Chief or Vice-Chief.
Section 13. The Principal Chief shall have the power to veto all acts of Council but his veto shall not prevail against a two-thirds vote of Council. All acts neither ratified nor vetoed by the Principal Chief within thirty (30) days shall be deemed valid legislation.
Section 14. In the case of death, resignation or disability of the Principal Chief, the Vice-Chief shall become the Principal Chief and shall serve the balance of the elected term of office until removal or disability or his successor is elected. In case of death, resignation or disability of the Vice-Chief, the Council may elect a successor who shall serve until removal or disability or his successor is elected. In the event the offices of both Principal Chief and Vice-Chief become vacant simultaneously, the Chairman of the Council shall become Principal Chief and shall serve the balance of the elected term of office and the Council shall elect a Vice-Chief who shall serve the balance of the elected term. If the Chairman does not meet the qualifications for the office of Principal Chief, the vacancy shall be filled by an election under rules established by the Council.
Section 15. In case of death, resignation or disability of any member of Council a new member shall be elected by the Township under such rules and regulations as may be prescribed by Council or election rules.
Section 16. The Council of the Eastern Band of Cherokee Indians shall direct the management and control of all property, either real or personal, belonging to the Tribe, but no person shall be entitled to the enjoyment of any lands belonging to the Eastern Band of Cherokee Indians as a tribe, or any profits accruing therefrom, or any monies which may belong to the Tribe, unless such person shall be an enrolled member of the Tribe, and in case any money, derived from any source whatsoever, belonging to the Eastern Band of Cherokees, shall be distributed among the members thereof, the same shall be distributed per capita among the members entitled thereto.
The first generation of an enrolled member of the Eastern Band of Cherokee Indians shall enjoy all property, both real and personal, that is held in said enrolled member’s possession at their death. First generation shall include all children born to or adopted by an enrolled member.
Section 17. No person shall ever be eligible for office or appointment of honor, profit, or trust who shall have aided, abetted, counselled, or encouraged any person or persons guilty of defrauding the Eastern Band of Cherokee Indians, or themselves have defrauded the Tribe, or who may hereafter aid or abet, counsel or encourage anyone in defrauding the Eastern Band of Cherokee Indians. Neither shall any person be eligible to such office, who has been convicted of a felony.
Section 18. The Principal Chief, Vice-Chief and members of Council before entering on the duties of office shall take the following oath before some officer authorized to administer oaths: “I do solemnly swear (or affirm) that I will faithfully execute the duties of the office of ___________ of the Eastern Band of Cherokees and will to the best of my ability, preserve, protect and defend the charter and governing document and laws confirmed and ratified by the enrolled members of the Eastern Band of Cherokee Indians. I do solemnly swear (or affirm) that I have not obtained my election or appointment to Tribal office by bribery or any undue or unlawful means or fraud, and that in all measures which may come before me I will so conduct myself as in my judgment shall appear most conductive to the interest and prosperity of the Eastern Band of Cherokees.”
Section 19. 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. All Council members, including the Chairman, shall be entitled to vote on all issues.
Discussion Notes: The last Tribal Census affecting weighted vote was held in 2001. Per the Charter, a Tribal Census was due to be held in 2011, and that didn’t occur. It was due to be held in 2021, and that didn’t occur either. The current weighted vote of the Tribal Council is based on the community populations from the 2001 Tribal Census. An electronic Census was held for the EBCI in 2023, but the results have not been put forth as official statistics for the weighted vote as of this printing.
Section 20. No money shall be paid out except upon warrant of the Principal Chief as authorized by an act of the Council.
Section 21. The Executive Committee shall present a proposed budget to Tribal Council no later than July 1 of each year.
Section 22. Any officer of the Eastern Band of Cherokee Indians who violates his oath of office, or is guilty of any offense making him ineligible to hold said office may be impeached by a two-thirds vote of council.
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.
Section 24. Whenever it may become necessary, in the opinion of the council to appropriate to public purposes for the benefit of the Tribe any of the lands owned by the Eastern Band of Cherokee Indians, and occupied by any individual Indian or Indians of the Tribe, the Council may condemn such land for the aforesaid purposes only by paying to the occupant of such land the value of such improvements and betterments as he may have placed or caused to be placed thereon, and the value of such improvements or betterments shall be assessed by a jury of not less than six competent persons, who are members of the Tribe, under such laws and regulations as may be prescribed by the Council. The Eastern Band of Cherokee Indians will not use eminent domain under this section or any other Tribal or Federal laws to take an individual Tribal member’s possessory holding except for bridges, roads, power lines, schools, hospitals, or sewer and water lines. Each Tribal member shall receive proper notice, proper hearings, and proper compensation for their lands.
Discussion Notes: This Section was added following a referendum vote on Sept. 5, 1995.
Branches of EBCI tribal government
The Charter discusses the two branches of government for the EBCI – Executive and Legislative and outlines the duties of the Executive Branch (Section 4) and the Legislative Branch (Tribal Council, Section 16 and 23). The Charter doesn’t mention a Judicial Branch. That branch was established in Cherokee Code with the passage of Ord. No. 29 on April 1, 2000.
Amending the Charter
The Charter doesn’t mention anything about amendments, and we cannot find anything in the Cherokee Code which speaks to this matter.
