EBCI Government Explained: Eminent Domain

by Aug 1, 2025NEWS ka-no-he-da0 comments

By SCOTT MCKIE B.P.

One Feather Asst. Editor

 

CHEROKEE, N.C. – The Legal Information Institute of Cornell Law School states, “Eminent domain refers to the power of the government to take private property and convert it into public use, referred to as a taking.”

The Indian Civil Rights Act of 1968 discusses the concept of eminent domain without mentioning it by name.  Sec. 1302(a)(5) states “No Indian tribe in exercising powers of self-government shall take any private property for a public use without just compensation.”

A paper by John Beaty, entitled “Tribal Eminent Domain: Sovereignty Gaps and Policy Solutions”, appeared in the Winter 2025 issue of the New Mexico Law Review and discusses tribes’ usage of eminent domain as a direct usage of sovereignty.

That paper states, “Not only is there no evidence that Congress has stripped tribes of the power of eminent domain, but Congress also appears to affirmatively recognize it.  ICRA (Indian Civil Rights Act) applies federal constitutional rights to tribal members against tribal governments.  Specifically, the Act imports language mirroring the Fifth Amendment’s Takings Clause, barring tribal governments from ‘taking private property for the public use without just compensation’.  This provision demonstrates that Congress understood tribes to have the power to take property for the public use.  Notably, it also shows that Congress knew of the existence of the power and chose to modify rather than abrograte it.”

The power of eminent domain is referred to in several parts of Cherokee law, namely the Charter and Governing Document of the Eastern Band of Cherokee Indians.

Section 24 of the Charter states, “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.”

Cherokee Code Chapter 40 is dedicated to Eminent Domain. It was established with the passage of Ord. No. 19 on Nov. 7, 1991 which officially adopted the Cherokee Code stating, “The Cherokee Code containing the general laws and ordinances of the Eastern Band of Cherokee Indians enacted by the Tribal Council through June 30, 1991 as presented to the Tribal Council on this date is hereby adopted by the Tribal Council as the official codification of the laws and ordinances of the tribe.”

Sec. 40-1 states, “The Tribe shall have the power to condemn land within the Cherokee Indian Reservation whenever such land is deemed by the Tribal Council to be necessary for a public purpose. The exercise of eminent domain shall be initiated by the Tribal Council passing a resolution identifying the land to be taken for a public purpose, the possessory holder and leasehold tenants and the purpose for which the land will be used.”

Sec. 40-2 deals with compensation for the land holder and states, “The possessory holder or leasehold tenant shall be compensated for such condemnation by payment of the value of the improvements or betterments placed on the land.”

If a price cannot be agreed upon, Sec. 40-3 states that it will be determined in Cherokee Court. “The Tribe shall file suit in the Cherokee Court and deposit with the Clerk a sum equal to the Tribe’s appraised value of the improvements or betterments. The actual value shall be determined by a jury of six tribal members.”