Published On: Tue, May 28th, 2019

COMMENTARY: Proposed constitution gets candidate ‘disqualifiers’ right

 

By SCOTT MCKIE B.P.

ONE FEATHER STAFF

 

This election cycle of the Eastern Band of Cherokee Indians got off to a rocky start as three candidates were originally deemed unable to be certified by the EBCI Board of Elections.  Two of those candidates, Sharon Bradley and Teresa McCoy, won their appeals and were subsequently certified by the Board.  Mary “Missy” Crowe lost her appeal and was not allowed to run for Principal Chief.

Under the proposed constitution, being put forth by the Citizens for a Constitution, all three of the ladies would have been certified as candidates for this year’s election.

The current law under which the three ladies were not certified originally can be found in Cherokee Code Sec. 161-3d (Qualifications for offices.) which lists various things under which a candidate would not be certified.  The first line of Sec. 161-3d states, “No person shall ever be eligible to file for or serve any of the above tribal offices, if: (1) The person has been convicted of, pled guilty to, or entered a no-contest plea to a felony…”

The key word there is “convicted”.  That word does not appear in subsection (2) which states, “The person has aided, abetted, counseled, or encouraged any person or persons guilty of defrauding the Eastern Band of Cherokee Indians or has defrauded the Tribe…”

Why does subsection (2) not carry over the wording from subsection (1) with regards to requiring a conviction?

McCoy was originally not certified as the Board alleged she violated subsection (2) over monies paid to her as a result of her attending a NAGPRA conference in Alabama over two decades ago.  She was never convicted of any crime.  As a matter of fact, McCoy was never even charged with any crime.

But, because the word convicted does not appear in subsection (2), it leaves the burden of being the jury to the Board of Elections.  If the law had the phrasing in there regarding being convicted, it would be a simple ‘check yes or no’ for the Board instead of having to do an investigation, have a hearing, serve as the judge and jury, and then give a legal opinion.  That puts the poor Board in a terrible position and doesn’t seem fair to the candidates.

The proposed constitution addresses this issue.  Article IV, Section 2, Clause 1, of the proposed document, lists the “disqualifiers” for any EBCI candidate as such, “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.  Or they themselves have been found guilty in a court of law in defrauding the Tribe or any of its entities.  Neither shall any person be eligible to (hold) such office, who has been convicted of a felony.”

The language in the proposed constitution takes the vagueness out of the law entirely.  It becomes very simple at that point – has the candidate been found guilty in a court of law or not?  Easy as pie.  As it is now, there is an incredible ambiguity as to what “defrauding” the Tribe means and how it is proven.

In several hearings, the Cherokee Supreme Court ruled in favor of McCoy and she is on the ballot for the Primary Election coming up on June 6.

Bradley and Crowe were both initially not certified due to Cherokee Code Sec. 161-3(d)(5) which states, “The person is more than 90 days in default of an obligation to pay a debt to the Tribe, which obligation is imposed by law, contract, or court order and the default has not been cured.”

Both ladies allegedly owed money to the Qualla Housing Authority.  Bradley was able to prove in her hearing that clerical errors led to her being in arrears and she has been placed on the ballot.  Crowe’s case is much more complicated and involves problems to her house that have allegedly not be fixed.  Long story short, she did not win her appeal and is not on the ballot.

Under the proposed constitution, both ladies would be on the ballot and never would have been uncertified to begin with as that document states nothing about owing money or being in arrears to the Tribe.  I like that part of it because I feel that owing money, even if you are currently in arrears, is not a criminal act.

If you are going to go that far as to not certify candidates because they owe money to the Tribe, then why not do an entire credit report and base it off of that as well?  It just seems like a very slippery slope that the Tribe doesn’t need to walk down.

Recently, several candidates for office in the Cherokee Nation have been uncertified for candidacy due to campaign finance issues.  I feel this is an issue that the Eastern Band of Cherokee Indians needs to address as well.  But, maybe that’s for another day.  The constitution is important and should be the focus now.

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