This post was originally published on here
By ROBERT JUMPER
Tutiyi (Snowbird) and Clyde, N.C.
Assistant Editor Scott McKie Brings Plenty wrote a series of articles titled “EBCI Government Explained,” in which he provided some down-to-earth explanations of the functions of our government. Scott provided some great reporting on specific topics of tribal governance, and they are well worth the read if you have the time and energy to track those down in our archive of news stories.
We are governed through a document called “The Charter.” Like a constitution, it provides the broad stroke parameters of governmental function for our tribe. Unlike a constitution, the Charter has little language in it regarding the civil rights of the people who are governed. Granted, the Charter does imply the people’s right to vote and some mechanisms for ensuring proper weighted voting for elected officials relative to the community to which each voting member is attached.
The bad news is that for the last several election cycles, the part of the Charter that directs the government to perform a tribal census to determine proper Dinilawigi (Tribal Council) seat weights has been neglected.
From the Eastern Band of Cherokee Indians Charter and Governing Document, “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.”
You may see the entirety of publicized tribal law by going to www.Municode.com.
In theory, not having a census that accurately establishes the legitimate basis for conducting an election of tribal officials would nullify any election after the decade for census had lapsed without one. And, hypothetically, if you don’t have properly elected officials with legitimately weighted seats, then law transacted by the body politic might be invalid as well. A valiant effort was made in 2023, in that the government authorized a “census” through resolution, crafting the language to address the issue of not having the Charter-prescribed census. But the census fell short of the intended goal, which was to bring the tribe back into compliance with Charter law.
In the official results of the “EBCI Census 2023” there is no mention of the number of respondents to the survey, although the tribal policy analyst indicated in later interviews that 56 percent of the 11,513 “adult members” took the poll (even allowing electronic responses and offering $100 per respondent in return for a response).
The EBCI Census 2023 did manage to ask relevant health and safety of the community questions but failed to provide a legitimate count for the purposes of bringing our tribe back into balance in the weighted seats of governance, and back into lawful adherence to Section 19 of the Charter and Governing Document.
One slide (the “census” was presented to the public in a PowerPoint slideshow format) did get close with a slide asking, “In which township are you registered to vote?” 27.05 percent responded that they were not registered; 19.92 percent said Tsisqwohi (Birdtown), 17.45 percent said Wayohi (Wolftown), 9.35 percent Aniwodihi (Painttown), 9.07 percent Elawodi (Yellowhill), 8.81 percent Tsalagi Gadugi/Tutiyi (Cherokee County/Snowbird), and 8.34 percent Kolanvyi (Big Cove).
Just as a reminder, Cherokee Code law currently puts those weights at 24 percent for Tsisqwohi seats (12 percent each), 24 percent for Wayohi seats (12 percent each), 12 percent Aniwodihi seats (6 percent each), 14 percent for Elawodi seats (7 percent each), 12 percent for Tsalagi Gadugi/Tutiyi seats (6 percent each), and 14 percent for Kolanvyi seats (7 percent each).
To date, there has been no resolution or ordinance change put before the Dinilawigi to modify the Cherokee Code to reflect any of the results of the EBCI Census 2023.
But theory and hypothesis aside, the reality is that life goes on, and unless the community perceives these conditions as critical issues, very little to nothing will ever be done about them. And as one former Dinilawigi representative conjectured to me, the complacency of the constituency might just indicate their satisfaction with the status quo. My counterargument was that another possible reason is that we, the people, have grown accustomed or apathetic to the way things are and simply don’t think something like the weighted vote being accurate is going to make enough difference in their day-to-day lives to expend energy on it. We want change, we just don’t think we can afford it.
We have been governed in a representative republic fashion for many years now. We have struggled with the concept of a democratically controlled society. Mostly, the challenge is about the balance of powers among branches and quasi-branches of government. A legislative branch is necessary for the creation of a social structure for the protection of the people. An executive branch is necessary for the implementation of that social structure for the protection of the people. And, in most democracies, including representative republics, a judicial branch is needed to maintain a system of checks and balances, or to ensure that the decisions of other branches fall within the framework of existing and acceptable law. In other words, the judicial branch would provide for the interpretation of the law and uphold a “checks and balances” system for the protection of the people.
Separation of powers has always been a challenge in a democracy. It surely has been in our tribal system of governance. The structure of the Charter provides the Dinilawigi with broad powers of governance. Section 23 of the Charter, “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.”
In one meeting during the debate about the most recent proposed constitution (2022), the legal office expressed its preference for the Charter (or at least its language) because the open-ended-ness of the language of the current governing documents made it easier to negotiate with businesses, governments, and other entities on issues affecting the tribe. And, since I am not a lawyer or politician, I don’t have the expertise to argue that point. Our leadership may be in a similar situation. If so, then we, the community and the government, are at the mercy of the interpretations of others, be it consultants, lobbyists, lawyers, other governments, etc. Beloved Woman Carmeleta Monteith, during the April Diniawigi session where the constitution referendum questions were approved, said, “I think that they (Council) understand that governments need constitutions, not business charters, to be the governing documents.”
So, for the community’s sake and for the government’s sake, formalizing a third branch of government, a judicial branch, would make the most sense for our people. In recent discussions of the tribal court system, there were indications that some members of the Dinilawigi would prefer a direct ability to remove judges from their seats. It was even suggested that the Court should be treated like “other boards and committees” in that respect. This gives a possible peek into the mindset some in government have regarding the need for checks and balances and accountability. Currently, in law for the Court, there is an ethics review board consisting of the Ugvwiyuhi (Principal Chief) and Taline Ugvwiyu (Vice Chief), Chair and Vice Chair of Dinilawigi, and the President of the Community Club Council, who provide the oversight for judicial behavior. The Attorney General stated that this judicial ethics board has been in place since the court was created. He said, “I think the goal was to have a subset of both branches of government, and a representative from the community,” essentially to limit bias in the retention and release of judges.
See what I mean about paying attention? If you look at the surface, you will think everyone would be on board with having a true third-branch tribal judiciary. But doing so means a potential redistribution of power. And what has hamstrung us, in my opinion, is the timidness of both our community and government when it comes to change in the balance of powers. A referendum question, or set of questions, was approved unanimously for the people’s vote in 2021-22 by Dinilawigi on two separate occasions, ratified, and was sitting, awaiting the October election date. This referendum vote would have allowed the community to decide on increasing the length of Dinilawigi’s term of office, staggering those terms, and implementing a term limit.
Later, in June 2023, the Dinilawigi approved another set of referendum questions that would have allowed the community to decide the merit of a proposed constitution. After six years of silence on the issue of the tribal constitution while it was being hashed out by community members, including a line-by-line review and approval process by the Community Club Council, the tribe’s legal office stepped forward to announce that the proposed constitution posed a significant threat to the well-being of the tribe. Dinilawigi, based on input from the Attorney General’s Office, disallowed all the referendum questions, and accepted a resolution to reconstitute the constitution committee and the process to include government direction and to do further investigation on how to proceed with a constitution. The referendum questions about Dinilawigi terms had been approved and sitting for nearly two years to be put before the people, but were removed at the same time as the constitution questions within a two-month span of time. Ironically, both the Dinilawigi terms and the Judiciary Branch were included in the proposed constitution.
I will admit to being a little cheeky in saying that tribal politics is not rocket science. It is not my intent to belittle the great sacrifice our tribal leaders make to serve our community. I surely don’t have any access to meetings where those high-level decisions are being hammered out. I have little doubt that our leaders are making their best efforts and consulting with knowledgeable people on what we need to do to serve our people best. But the little doubt that I do have comes from what I don’t know. And, if you are the average enrolled member, you likely don’t know either. That could be a little. That could be a lot.
On the conclusion slide of the EBCI Census 2023 slide show, it reads, “Thank you to everyone who participated. Your time and effort are greatly appreciated and play a crucial role in ensuring our community’s needs and priorities are accurately represented. Your responses will help us allocate resources more effectively and plan for a brighter future for all EBCI members. Thank you for contributing to the strength and unity of our tribe.” Well, maybe for 56 percent of us. And the 100 bucks did come in handy.
