Author: Lloyd Arneach

Section 1. Adoption. This Constitution shall become the supreme law of the Eastern Band of Cherokee Indians when adopted by a majority vote of the registered voters of the Eastern Band of Cherokee Indians voting in an election and shall become effective after certification by the Election Board.

Section 2. Supreme Law of the Tribe. Upon adoption, this Constitution shall repeal and supersede the Charter and Governing Document of the Eastern Band of the Cherokee Indians as well as any law or precedent dependent thereon which is inconsistent with this Constitution.

(January 2022 draft + commentary to view the corresponding explanation.)

Section 1. Constitutional Convention. A Constitutional convention shall be held every twenty (20) years after adoption of the Constitution of the Eastern Band of Cherokee Indians. It will be attended by delegates that will include an equal number of representatives from each branch of government; Legislative, Executive, Judicial, and from the Cherokee Community Club Council. The chosen delegates must be Tribal citizens who will convene, moderate, and direct the activities of the convention. The Constitutional Convention shall meet to examine the Constitution and propose any changes to the Constitution. The Cherokee Community Club Council will prepare a budget every twenty (20) years to finance the event from the Tribal General Fund account. The convention will be publicly noticed and open to any Tribal citizen who wants to have input.

Section 2. Referendum Amendment. This Constitution may be amended by a simple majority vote of the registered voters of the Eastern Band of Cherokee Indians voting in an election called for that purpose by Tribal Council. At least thirty-three percent (33%) of those registered to vote shall vote in such election, and the amendment shall become effective after the results are certified by the Election Board.

(January 2022 draft + commentary to view the corresponding explanation.)

Section 1. Savings Clause. All actions of the Eastern Band of Cherokee Indians adopted before the effective date of this Constitution shall continue in full force and effect to the extent that they are consistent with this Constitution.

Section 2. Transitional Provisions. The current members of the Tribal Council, the Principal Chief and Vice-Chief, and the Judges and Justices of the Cherokee Court system serving at the time of the adoption of this Constitution shall continue to serve in their respective offices for the duration of their present term at which time the applicable provisions of this Constitution shall control.

Section 3. Term Limit Exemption for Incumbents. The limitations placed on the terms of service by this Constitution shall not be calculated based on prior service for any incumbent holding office at the time of adoption.

(January 2022 draft + commentary to view the corresponding explanation.)

Section 1. Sovereignty. The Eastern Band of Cherokee Indians affirms that it is a sovereign nation with all rights and privileges attendant thereto. The Eastern Band of Cherokee Indians shall be conclusively immune from any cause whatsoever as an established sovereign.

Section 2. Limited Waiver. The Eastern Band of Cherokee Indians expressly waives the Tribe’s sovereign immunity for claims brought in the Cherokee Court system seeking injunctive or declaratory relief concerning any rights guaranteed by this Constitution.

(January 2022 draft + commentary to view the corresponding explanation.)

The Legislative Branch of the Eastern Band of Cherokee Indians shall be empowered to adopt laws and regulations for the management and control of all real property belonging to the Tribe, and no person shall be entitled to own a possessory holding in any lands belonging to the Eastern Band of Cherokee Indians, unless such person shall be a citizen of the Tribe.

Section 1. Land in Trust. All lands owned by the Tribe and held in trust by the United States for the benefit of the Eastern Band of Cherokee Indians, shall remain trust property in perpetuity. Nothing in this section shall prevent the Tribe from entering into a ‘like-kind’ exchange of trust property for other realty.

Section 2. Eminent Domain. When deemed necessary by Tribal Council, lands held by the Eastern Band of Cherokee Indians for which a possessory holding has been assigned, may be condemned only for public purposes for the benefit of the Tribe. This power of eminent domain may be exercised only after each person who has a property interest in the subject of condemnation has received proper notice, due process, and just compensation for their property interest. The Eastern Band of Cherokee Indians will not use the power of eminent domain except for public utilities, improvements, infrastructure, or prehistoric/historic cultural sites.

(January 2022 draft + commentary to view the corresponding explanation.)

The citizens of the Eastern Band of Cherokee Indians, in exercising the powers of self-government shall be protected as follows:

1. Basic Freedoms. The Tribe shall not make or enforce any law which infringes upon religious beliefs or prohibits the free exercise thereof, nor any law which establishes any religion or prefers one over any other, make or enforce any law prohibiting the freedom of speech or of the press, or the right of the people to peaceably assemble, and to petition for redress of grievances;
2. Firearms. The Tribe shall not pass any law infringing upon the right of the people to own and use firearms inconsistent with the Second Amendment to the United States Constitution;
3. Personal Protection. The Tribe shall not pass any laws targeting a specific person or group of people to bypass due process, bill of attainder; or pass any laws to be applied after the fact, ex post facto;
4. Search & Seizure. The Tribe shall ensure that any person accused of an offense be informed of the nature and cause of the accusation, be confronted with the witnesses against him or her, have compulsory process for obtaining witnesses in his or her favor, and have the assistance of counsel for his or her defense, whose fees may be reimbursed by the defendant as provided by law if convicted, and to have these rights explained at the time of arrest or accusation;
5. Criminal Trials. The Tribe shall not compel any person in any criminal case to be a witness against him or herself, nor subject any person for the same offense to be twice put in jeopardy, nor deny to any such person the right to a speedy and public trial, and due process of law. The Tribe shall ensure that any person accused of an offense be informed of the nature and cause of the accusation, be confronted with the witnesses against him or her, have compulsory process for obtaining witnesses in his or her favor, and have the assistance of counsel for his or her defense, whose fees may be reimbursed by the defendant as provided by law if convicted, and to have these rights explained at the time of arrest or accusation;
6. Jury Trial. The Tribe shall not deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the Eastern Band of the Cherokee Indians;
7. Bail and Punishment. The Tribe shall not require excessive bail, impose excessive fines, nor inflict cruel and unusual punishments;
8. Equal Protection. The Tribe shall not deny to any person the equal protection of its laws or deprive any person of life, liberty, personal property or a possessory interest in real property without due process of law;
9. Voting. The Tribe shall not deny the right to vote to any citizen of the Tribe who has attained the age of eighteen (18) years or older;
10. Education. The Tribe shall establish, provide for, and perpetuate an educational system that promotes, at a minimum the preservation of the Cherokee language and culture;
11. Reserved Powers. Powers not granted to the Tribal government shall be reserved to the People.

(January 2022 draft + commentary to view the corresponding explanation.)

Voter recall is the process for the community to decide if an elected official needs to be removed from office for non or poor performance between elections.

Section 1. Initiation. A notice of intent to initiate a recall petition must be registered by a citizen of the Tribe with the Board of Elections to initiate a recall. The Board of Elections shall calculate the number of signatures required as sixty-seven percent (67%) of the voters who cast a ballot in the previous General Election for the specific office in question and assign a commencement date.

Section 2. Signature Collection. The petition must be signed by registered voters eligible to vote for the elected official being recalled and verified by the Board of Elections. Any petition to be valid must be submitted to the Board of Elections within thirty (30) days of the petition commencement date. If the petition is not timely submitted, the signatures obtained are invalidated.

Section 3. Referendum. If the petition for recall meets or exceeds the above requirements, then a Referendum for Recall shall be instituted by the Board of Elections.

Clause 1. Locking Voter Registration. While the Referendum for Recall is in process, no new voters shall be allowed to register within the district of recall.

Section 4. Special Election. The Board of Elections shall give notice to the affected voters of the purpose, time and location of the special election to be held within ninety (90) days from the date of the Board’s official acceptance of the validated petition.

Section 5. Results of the Election. An affirmative vote for recall of sixty-seven (67) percent or more of the votes cast in the recall election, as certified by the Board of Elections shall be required to remove an elected official from office. The elected official shall be removed from office immediately creating a vacancy. Any vacancy so created shall be filled pursuant to the appropriate provision of this Constitution.

Section 6. Consequences. Any persons removed from office by recall shall not be disqualified from holding office in the future or employment in any governmental capacity by the Eastern Band of Cherokee Indians.

(January 2022 draft + commentary to view the corresponding explanation.)

Any elected or appointed official of the Eastern Band of Cherokee Indians who violates their oath of office or is guilty of any offense making them ineligible to hold said office may be impeached and removed from office by a two-thirds unweighted vote of council.

Section 1. Allegations of Misconduct. Any claims of misconduct by an elected or appointed official shall be referred to the Audit and Ethics Committee who shall meet within thirty (30) days to determine whether any further action is warranted.

Section 2. Drafting of Charges. If further action is warranted, the Audit and Ethics Committee shall investigate and determine whether there is sufficient cause to draft Articles of Impeachment. If there are multiple officials to be charged, separate articles shall be drafted for each official. The Audit and Ethics Committee will present the article(s) to Tribal Council.

Section 3. Acceptance of Charges. In open session where a quorum is present, Tribal Council shall hear the allegations of misconduct presented in the Articles of Impeachment. The Audit and Ethics Committee shall bring the allegations of misconduct to the floor for a majority vote on whether to accept any Article of Impeachment. Upon acceptance, a date shall be set no later than sixty (60) days from the date of ratification for a hearing on any article so ratified.

Clause 1. Limited Presence. Anyone named in an Article of Impeachment shall be permitted to be present while the Information is read into the record but shall not be permitted to be present during any discussions or vote on the article wherein they are named.

Clause 2. Ratification. The Tribal official named in an Article of Impeachment shall not be involved in, nor interfere with the process of ratification of that specific article.

Section 4. Hearings. Tribal Council will hold public hearings on whether to convict the individual named in the ratified Articles of Impeachment. The ratified Articles are not a limiting factor in what the Tribal Council may consider.

Clause 1. Rights of the Accused. Persons named in ratified Articles shall have the right to defend themselves with their own attorney, present evidence, call witnesses, subpoena persons or things pursuant to the Cherokee code, and perform cross-examinations.

Clause 2. Prosecution. The Audit and Ethics Committee shall hire an attorney to prosecute the case. If during the prosecution more charges are discovered, the Articles of Impeachment may be amended.

Clause 3. Tribal Council. A quorum of Tribal Council shall convene to listen to the entire case without prejudice before rendering a verdict convicting or acquitting a defendant.

Clause 4. Duties of the Presiding Jurist. The Chief Justice of the Cherokee Supreme Court or his/her peer justice as a designee, shall preside over the hearings, rule on evidentiary and procedural objections, possess the power of contempt, and ensure the proceedings are carried out in an ordered and unbiased manner. The Chief Justice shall not participate in the deliberations for impeachment and does not have a vote.

Section 5. Judgment. Less any Council Representative who may stand accused, Tribal Council may perform their deliberations in a closed session but shall be in an open session to cast votes.

Clause 1. Conviction. To sustain a conviction, the prosecution shall prove an Article of Impeachment by clear, logical, and convincing evidence. A two/thirds (2/3) supermajority unweighted vote of the Tribal Council quorum present must be reached to convict the accused. If convicted, the official shall be immediately removed from office. The vacancy created shall be filled according to applicable provisions of this Constitution.

a. Appeal. An official convicted by Tribal Council and thereafter removed from office following impeachment cannot seek judicial review of such conviction. Tribal Council has sole authority to impeach an elected or appointed official.

Clause 2. Acquittal. If a supermajority vote is not reached on an Article, the official shall be acquitted of that Article.

Section 6. Penalties. A judgment of conviction causing an official to be removed by impeachment rendered by the Tribal Council shall include a disqualification from holding future elected or appointed office of the Eastern Band of Cherokee Indians

Clause 1. Reversal of Removal and Penalties. All judgments and penalties determined by Tribal Council regarding impeachment are final and are not subject to review by any other branch of Tribal government.

Clause 2. Criminality. A judgment to remove from office by impeachment shall be final. Civil and criminal charges of the impeached official may be brought forward in a court of law.

Clause 3. Restitution. The Eastern Band of Cherokee Indians may initiate a civil action in the Judicial Branch to seek restitution of any funds or property misappropriated or wrongfully acquired by an individual removed by impeachment.

(January 2022 draft + commentary to view the corresponding explanation.)

The Oath of Office is a solemn promise between the elected or appointed officials and the Cherokee People for whom they are elected or appointed to represent.

Section 1. Agreement to Ethics. All elected or appointed officials of the Eastern Band of Cherokee Indians, before taking their oath of office, shall agree by signature, to conform their conduct to the Standards of Ethical Conduct as stated by the Audit and Ethics Committee.

Section 2. Oath of Office. All elected or appointed officials of the Eastern Band of Cherokee Indians before entering upon the duties of office shall take the following oath before the Chief Justice of the Cherokee Supreme Court, or his/her designee:            

“I do solemnly swear (or affirm) that I will faithfully execute the duties of (the elected or appointed officials as applicable) of the Eastern Band of Cherokee Indians and will to the best of my ability, preserve, protect and defend the Constitution of the Eastern Band of Cherokee Indians and the Constitution of the United States, and laws confirmed and ratified by the Eastern Band of Cherokee Indians. I do solemnly swear (or affirm) that I have not obtained Tribal office by any undue or unlawful means, and that in all measures which may come before me I will so conduct myself in a manner most conducive to the interest and prosperity of the Eastern Band of Cherokee Indians.”

(January 2022 draft + commentary to view the corresponding explanation.)

Grand Council, being a unique body in Cherokee culture and tradition, shall be an assembly of the Principal People which consists of Tribal citizens eighteen (18) years of age or older. The Cherokee Community Club Council shall convene, establish the procedures for, set the agenda for, and preside over Grand Council.

Section 1. Call for Grand Council. The Cherokee Community Club Council Officers shall have the exclusive right to call a Grand Council of all eligible Tribal citizens. A public notice shall be published no later than thirty (30) days prior to the convening of Grand Council.

Section 2. Financing Grand Council. The Community Club Council will prepare an annual budget to be financed from the Tribal General Fund account and overseen by the Community Club Council Officers for the possible convening of Grand Council.

Section 3. Agenda. Any agenda item(s) for Grand Council must be submitted to the Cherokee Community Club Council Officers for prior approval thirty (30) days before a Grand Council is convened.

Section 4. Officers. The Cherokee Community Club Council Officers will determine the roles and responsibilities for the officers of the Grand Council and who will fill them.

Section 5. Quorum. A quorum of Grand Council shall consist of no less than thirty (30) percent of the eligible Tribal citizens.

Section 6. Results from Grand Council. Any resolutions decided upon in Grand Council shall be placed on the legislative agenda for the next meeting of Tribal Council for legislative consideration.

(January 2022 draft + commentary to view the corresponding explanation.)

Section 3. Installation.

Clause 1. Chief Justice.

a. Appointment. Recommendations for the position of Chief Justice shall be submitted to the Principal Chief by a panel consisting of the Cherokee Community Club Council Officers who are citizens of the Eastern Band of Cherokee Indians and active Justices and Judges of the Cherokee courts. The Chief Justice shall be nominated by the Principal Chief from the recommendations presented by the panel and confirmed by Tribal Council.

b. Vacancy of office or reappointment. In the event that the Chief Justice is unable to complete the current term of service or successfully completes the current term of service, Article VI, Section 3.1.a of this Constitution shall apply.

Clause 2. Other Justices and Judges.

1. Appointment. Nominations for the position of Associate Justices, Chief Judge and other judges shall be submitted to the Tribal Council for confirmation by a panel consisting of the Cherokee Community Club Council Officers and the Chief Justice.

Clause 3. Temporary Adjudicators and Magistrates. Prior to assignment, temporary Justices and Judges shall be nominated by the Principal Chief and confirmed by Tribal Council. Magistrates shall be appointed exclusively by the Chief Justice.

Clause 4. Adjudicators at the time of adoption. Notwithstanding any other provision of this Constitution, any Justice or Judge of the Eastern Band of Cherokee Indians Courts who holds that office at the time this Constitution is adopted shall continue to assume all powers and duties of that office as set forth in this Constitution.

Section 4. Term.

Clause 1. Supreme Court. The Chief Justice shall be appointed for a term of ten (10) years. Associate Justices shall be appointed for a term of eight (8) years.

Clause 2. Cherokee Trial Court. The Chief Judge shall be appointed for a term of ten (10) years. Associate Judges shall be appointed for a term of eight (8) years.

Section 5. Compensation. The Justices and Judges shall be compensated from the Judiciary budget as administered by the Chief Justice of the Cherokee Supreme Court. No Justice or Judge shall be subjected to a reduction in compensation during a term in office.

Section 6. Powers and Duties. The Judicial Branch shall have sole power to interpret the Constitution., laws, treaties, customs and traditions of the Eastern Band of Cherokee Indians, and issue all legal and equitable orders, writs, and decrees in aid of its jurisdiction. The Chief Justice for the Judicial branch shall present a proposed Judiciary budget to Tribal Council no later than July 1 of each year and shall thereafter be empowered to administer such budget exclusively.

(January 2022 draft + commentary to view the corresponding explanation.)

The Judicial powers shall be vested in the Justices and Judges of the Cherokee Courts as herein provided, which shall constitute the Judicial Branch of government for the Eastern Band of Cherokee Indians. The Judicial Branch shall have sole power to interpret the Constitution, laws, treaties, customs and traditions of the Eastern Band of Cherokee Indians, and issue all legal and equitable orders, writs, and decrees in aid of its jurisdiction.

Section 1. Composition. The Judicial Branch shall be comprised of one Supreme Court, one Trial Court, and such other inferior appellate courts and Trial Courts of Special Jurisdiction as may be established by law. The Supreme Court shall be known as the “Cherokee Supreme Court” and the Trial Court shall be known as the “Cherokee Trial Court.”

Clause 1. Cherokee Supreme Court. The Supreme Court shall be comprised of one Chief Justice and no less than two Associate Justices. The Cherokee Supreme Court shall always sit with an odd number of Justices.

Clause 2. Cherokee Trial Court. The Trial Court shall be comprised of one Chief Judge and no less than two Associate Judges.

Clause 3. Courts of Special Jurisdiction. The Trial Courts of Special Jurisdiction shall be comprised of Judges as assigned by the Chief Justice.

Clause 4. Temporary Adjudicators. The Court shall maintain a list of temporary justices, judges and magistrates available for assignment to particular cases or duties by the Chief Justice.

Section 2. Qualifications.

Clause 1. Chief Justice. The Chief Justice shall be a United States citizen, have acquired a Juris Doctor degree from a school accredited at the time of graduation by the American Bar Association with demonstrated knowledge of Federal Indian law, and shall have no less than five (5) years of experience as a judge in a Tribal, state, or Federal court.

Clause 2. Associate Justices. The Associate Justices shall have acquired a Juris Doctor degree from a school accredited at the time of graduation by the American Bar Association with demonstrated knowledge of Federal Indian law and shall have no less than two (2) years of experience as a judge in a Tribal, state, or Federal court.

Clause 3. Chief Judge. The Chief Judge shall have acquired a Juris Doctor degree from a school accredited at the time of graduation by the American Bar Association with demonstrated knowledge of Federal Indian law and shall have no less than two (2) years of experience as a judge in a Tribal, state, or Federal court.

Clause 4. Associate Judges. The Associate Judges shall have acquired a Juris Doctor degree from a school accredited at the time of graduation by the American Bar Association and shall be members in good standing with the Cherokee Bar.

(January 2022 draft + commentary to view the corresponding explanation.)

Section 5. Compensation. The Principal Chief and Vice-Chief shall receive as compensation for services such sum as shall be determined by an appropriation by Tribal Council. No change in pay shall take effect until the next elected Tribal Council are seated as a result of a General Election. In no way shall the Executive branch directly adjust or otherwise influence any elected official’s compensation. Exhibit 20

Section 6. Powers and Duties. There shall be an Executive Committee, which shall consist of the Principal Chief and Vice-Chief. The Committee shall execute and carry out tribal legislation.

Clause 1. Legislation. The Principal Chief, or in his/her absence, the Vice-Chief shall ratify or veto any legislation passed by Tribal Council. Ratification or veto must take place within thirty (30) days of passage of legislation.

Clause 2. Budgets. The Executive Committee shall present a proposed budget based on projected annual revenues to Tribal Council no later than July 1 of each year.

Section 7. Fiscal Duty. No money shall be paid out except upon direction of the Principal Chief as authorized by an act of the Tribal Council.

(January 2022 draft + commentary to view the corresponding explanation.)

Section 3. Election for Executive office. The Principal Chief and Vice-Chief shall be elected to their respective offices by the registered voters of the Eastern Band of Cherokee Indians.

Clause 1. Time for Election. The election for Principal Chief and Vice-Chief shall be held on the first Thursday in September of 2023, following the adoption of this Constitution and every four (4) years thereafter under such rules and regulations as may be adopted by the Board of Elections.

Clause 2. Selection. Election for Principal Chief and Vice-Chief shall be the candidates who each receive a majority of votes cast by the registered voters of the Eastern Band of Cherokee Indians.

Clause 3. Vacancy of Chief. In case of death, resignation, removal or any cause that the Principal Chief becomes unable or unfit to perform the duties of the current term of office, the Chief shall be replaced immediately by the Vice-Chief.

Clause 4. Vacancy of Vice-Chief. In case of death, resignation, removal or any cause that the Vice-Chief becomes unable or unfit to perform the duties of the current term of office, the Vice-Chief shall be replaced immediately by an elected member of Tribal Council, chosen by Tribal Council receiving the most unweighted votes.

Clause 5. Vacancy of Executive Branch. In the event that both Principal Chief and Vice-Chief simultaneously are unable or unfit to perform their duties, the Chair of Tribal Council shall replace the Principal Chief immediately, the Vice-Chief shall be replaced immediately by any remaining elected member of Tribal Council, chosen by Tribal Council receiving the most unweighted votes.

1. Disqualification of Chair. If the Chair of Tribal Council does not meet the qualifications for the office of Principal Chief, the replacement shall be an elected member of Tribal Council who does qualify. They will be chosen by a quorum of Tribal Council receiving the most unweighted votes.

Clause 6. Interim Term. If more than twelve (12) months remain in the vacant term of office identified in the above Clauses 3, 4, or 5, the replacement shall be on an interim basis until the Board of Elections can hold a special election. If twelve (12) months or less remains in the vacant term of office identified in the above Clauses 3, 4, or 5, the replacement shall finish out the vacant term.

Section 4. Term. The elected Principal Chief and Vice-Chief each shall hold office for a term of four (4) years, not to exceed two (2) consecutive terms in the same office. Office holders who have reached this limitation shall be allowed to run for the same office in four (4) years following their departure from office.

(January 2022 draft + commentary to view the corresponding explanation.)

The Executive powers shall be vested in the Executive Officers and shall constitute the Executive Branch of government for the Eastern Band of Cherokee Indians.

Section 1. Composition. The Executive Officers of the Tribe shall consist of a Principal Chief and a Vice-Chief.

Section 2. Qualifications. In order to run for and/or serve as Principal Chief or Vice-Chief a candidate must be a citizen of the Eastern Band of Cherokee Indians; must be at least thirty-five (35) years of age either by the date of the upcoming General Election or upon entering into service; and must have legally resided on Cherokee trust lands continuously for at least two (2) years immediately preceding the date of filing for election.

Clause 1. Disqualifiers. No person shall ever be eligible for office or appointment of honor, profit, or trust who have been found guilty in a court of law for aiding, abetting, counseling, or encouraging any person or persons of defrauding the Eastern Band of Cherokee Indians or any of its entities. Neither shall any person be eligible to such office, who has been convicted of a felony.

(January 2022 draft + commentary to view the corresponding explanation.)

Section 11. Veto. Any legislation of Tribal Council may be vetoed by the Executive branch. A veto shall not prevail against a two-thirds (2/3) unweighted vote of Tribal Council.

(January 2022 draft + commentary to view the corresponding explanation.)

Section 10. Weighted Vote. In order to provide equal representation to all citizens of the Eastern Band of Cherokee Indians, a census survey of the Tribal citizenship, based upon the information located within the official citizenship rolls, shall be initiated by Tribal Council for the purposes of determining a census of the citizenship and of the Townships. The results of the census will determine the weight of the votes to be cast by each Tribal Council Representative and shall be conducted prior to the 2025 general election and prior to the general election each ten years thereafter to determine the number of Tribal citizens affiliated with a Township. After the regular 2025 general 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 Representative. The voting weight allotted to each Council Representative shall be determined by computing the mathematical ratio, fraction or proportion that exists between the number of Tribal citizens who are counted in each Township and the total number of Tribal citizens. The Cherokee Supreme Court shall have sole jurisdiction to resolve any dispute pertaining to the voting weight attributed to a Tribal Council Representative.

(January 2022 draft + commentary to view the corresponding explanation.)