Tribal Council Continues to Undermine Constitution

Most are aware of the Cherokee Nation Tribal Council's attempt to undermine our Constitution and the good faith of the Cherokee people. Many wonder why the council has decided to try to pass such a law and why they are trying to pass it now. They want to know who could benefit from it.

At this point in time, there are four people who could possibly benefit from the proposed term definition if the tribal council, election commission, or Cherokee Nation courts further try to circumvent the Constitution. Those four are Principal Chief Bill John Baker;  Speaker of the Tribal Council Joe Byrd;  Deputy Speaker of the Tribal Council Victoria Vazquez;  and Secretary of the Tribal Council Frankie Hargis. Together, those four people hold the top position in the Cherokee Nation as well as the top three positions on the Cherokee Nation Tribal Council. Each was elected their first time in the offices they hold under special elections.

During the Rules Committee Meeting on April 28, 2016, several council members and Cherokee Nation Attorney General Todd Hembree vehemently insisted that because the Constitution says a term is four years, the Election Law should match it. No one pointed out that our Election Law already does.

Cherokee Nation Election law has defined term since at least 1985:

"Tenure of the Principal Chief, Deputy Principal Chief, and Council Members shall be a term of four (4) years from the date of August 14, 1979, and each August 14 every four years thereafter except [emphasis mine] for vacancies that are filled in accordance with Article 6, Section 4 and 5 of the Constitution, and Legislative Act 5-76, as amended."

Our law makers intended for term to be a fixed period of time between two specific dates.

The law has changed slightly because we are now governed under a new Constitution, but the intent remains the same. Now our election law says the swearing in of elected officials shall be August 14 of the election year. That is a fixed date and makes it clear when a new term begins.

Currently, tenure (term of office) is defined as:

"Tenure of the Principal Chief, Deputy Principal Chief, and Council Members shall be a term of four (4) years pursuant to Article VI, Section 3 and Article VII, Section 1 of the Constitution, except for vacancies that are filled in accordance with Article VI, Section 13 and Article VII, Section 5 of the Cherokee Nation Constitution."

Notice there are exceptions to the term of office of four years when specific circumstances arise. Those circumstances defined within the Constitution are:

Article VI, Section 13 which states:

"In the case of removal, death, resignation or disability of any Council member, such seat shall be filled by the candidate having the next highest number of votes in that district, who is available and willing to serve and whose eligibility is confirmed by the Election Commission. In the event no such candidate exists, the Council shall fill the vacated seat in the following manner: If a majority of the four-year term remains to be served, the Council shall authorize a special election in the district of the vacated seat to be conducted within ninety days;  if a minority of the four-year term remains to be served, the Council shall elect a replacement who would otherwise be qualified to serve from the district of the vacated seat."

and

Article VII, Section 5 which states:

"The Council may, in the case of removal, death, resignation or disability of the Principal Chief, Deputy Principal Chief and the Speaker of the Council, provide by law what officer shall then act as Principal Chief until the disability be removed or a successor shall be elected."

Under those exceptions, the tenure or term of office of an elected official may be less than four years. The term that started August 14, 2013 for the District 11 Council seat is a good example of that.

Two people, Chuck Hoskin, Jr. and Victoria Vazquez, will have tenure from that full four year term, but neither served the full four years. Hoskin Jr. resigned after being appointed as Secretary of State. Resignations are one of the exceptions where our election law defers to our Constitution. Though tenure of elected officials is defined as four years in our election law, it can be shorter than four years due to those exceptions listed in our Constitution. That is what occurred when Hoskin Jr. resigned the term and Vazquez was elected to finish it.

That term started August 14, 2013 and will end August 14, 2017 when the next elected official for that council seat is sworn into office. Terms are fixed and defined by election law within the confines of the Constitution. They cannot be changed. The Constitution specifically states that Council members shall be elected in the GENERAL ELECTION for a term of four years and that voters should elect the Principal Chief on the same day, in the same manner as they vote for Council. This shows that the tenure of four years is intended to match the fixed term of four years only when one is elected in a GENERAL ELECTION.  

Whether accidental or intentional, it's starting to look like the proposed term definition is a direct attempt to allow officials elected during special elections to circumvent the Constitution and it's term limits. Our Constitution has two statements concerning term limits. 

"No person having been elected to the office of Principal Chief in two (2) consecutive elections shall be eligible to file for the office of Principal Chief in the election next following his or her second term in office."

and

"All Council members shall be limited to two (2) consecutive elected terms on the Council. All Council members having served two consecutive terms must sit out one (1) term before seeking any seat on the Council."

The above sections in red are the words in the Constitution that some councilors are trying to circumvent. By defining term as "full four years", that means any elected official that is voted into office in a special election could serve MORE than two terms. Again, Victoria Vazquez, the sponsor of the legislation, is a good example of how the new definition of term would work.

Vazquez won a special election to serve out the August 14, 2013 - August 14, 2017 term for District 11 after Hoskin Jr. resigned from it. Because she had not served a "full four years", it would not be counted against her in the term limit count set by the Constitution. Despite the fact she was sworn in office on October 22, 2013 and served 3 years, 9 months, and 23 days by August 14, 2017, her time in office would not count as a term under the new definition, therefore she could run for office in both 2017 and 2021, therefore serving a possible 11 years, 9 months and 23 days in office before being forced to sit out due to term limits. This goes directly against the good faith of the Cherokee people who voted to retain term limits. The term limits were set so that no one could serve more than a maximum of 8 years continuously without sitting out at least one term.

The Constitution and Election Laws in place now work together to set terms as a full four years that run from August 14 to August 14, four years later. Tenure or term of office of elected officials is also defined to run concurrent with the fixed period of time of our terms, but only when elected officials are elected in a general election. Those elected in special elections are exceptions and are not afforded a right to a full four years in office. Each candidate that ran in a special election knew they would have a shorter time in office for that term than one who ran in a general election. Bill John Baker, Joe Byrd, and Frankie Hargis have all run again and been elected a second time. All took the oath of office without protest, therefore accepting the fact that their first term in office had ended. 

This proposed legislation not only undermines the Constitution, the intent of the framers of the Constitution, and the good faith of the Cherokee people, but also shows a level of deceit and trickery on the part of our current tribal council that is alarming. Several of those councilors in support of this have much to gain if it passes. They are not serving the Nation's interests, but instead their own. 

This will go to a vote of the Tribal Council on May 16, 2016. It's your nation, Cherokees. Those councilors work for you. If you don't support this legislation, then let them know. Contact them and insist they vote no.

Those are my thoughts for today.
Thanks for reading.

*Sources available upon request.

copyright 2016, Polly's Granddaughter - TCB

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