COMMENTARY: Take control

by Aug 25, 2020OPINIONS




“Actually, I want to know where we are at right now. Because the way some things are going right now, there is not a flow and it is very counterproductive. You know, if we want to see some things fixed, then let’s talk in a respectful manner. I know that there is a lot of passion to fix this, but when we are jumping all over the place, I can’t even follow it. We are jumping everywhere. If we want to fix something for our people, let’s be proactive. Right now, it is very counterproductive. I am not trying to be offensive to anybody, but let’s get on track. I understand some things have happened in the past and there is finger-pointing and feelings are hurt. That is the problem sometimes when we make decisions in here. They can be based on emotion. And that usually leads us down a tougher path. So, let’s be proactive and get through this.” – Wolftown Representative Chelsea Saunooke during a work session on Monday, Aug. 24 regarding changes to the election laws of the Eastern Band of Cherokee Indians

The Tribal Council is considering legislation that will revise the existing law regarding elections. The Council was meeting in work session to hear the Election Board, lawyers, and the community regarding proposed changes to the Election ordinance. The election laws for our Tribal elections have been the subject of criticism and even lawsuits for many years. Tribal Council Chairman Adam Wachacha (Cherokee County/Snowbird) indicated that nearly every two years that there is some sort of contesting of how the elections are run and disagreement over outcomes.

This work session lasted less than three hours, and they managed to discuss two of the items, possibly one page of law. Discussion seemed to be more about process than progress.

There are unfortunate timing issues with work sessions for public input. First, of late, notifications that work sessions are occurring are very close to when the actual work session occurs. With the other activities that the Tribal Council must be engaged in, the ability to give a two-week notice prior to a public input work session, which is common practice (and in some cases law) in other municipalities, is hindered.

The other is that these work sessions are held during what is usually the workday for most of the community. Tribal workdays are 7:45 a.m. to 4:30 p.m. and the common workday is from 9 a.m. to 5 p.m., either of which excludes workers from expressing their opinions in sessions unless they forego a day’s pay or use up paid leave. So, that narrows the input, and tribal community opinion to those who are not constrained by those work hours. Add to that, many people in the community either have medical conditions that would not allow them to travel or are caregivers to those tribal members and cannot leave them to attend sessions, especially on short notice. With school out of session or in restricted sessions, parents are also limited on the ability to attend legislative sessions.

So, community representation is extremely limited. And while those who did attend this particular work session provided valuable input for the Council, that input is limited simply because two or a few voices do not necessarily represent the views and opinions of the majority or the whole.

“The people” as some put it are the Principal People, the Eastern Band of Cherokee Indians, and that is a body that is 16,000+ members strong, each with a set of opinions and viewpoints that are as unique as night and day. The closest we get to eliciting a group opinion from “the people” is during elections. At that time, the people select representation. We have a representative government. The people voice themselves through the voting process, then those elected through the voting process set in to governing. Even in that process, it is difficult to find a majority of voters versus population and a percentage of votes high enough to elect in some cases.

There seemed to be a lot of reflection on past events, which is relevant and appropriate. You may not correct the wrongs of the past or, as one person put it “bad law”, without looking at impact. It is part of the whole “those who don’t know their history are doomed to repeat it” philosophy. But the discussion repeatedly got into the weeds. After being stated once, a point would be rehashed again. And resulted in the “jumping around” pointed out by Rep. Chelsea Saunooke.

There were several comments made about outside arbiters, consultants, and lawyers. There seemed to be some worry about the Election Board’s lawyer residing in the West. The lawyer expressed substantial credentials in mediating Indian election law for as many as twelve tribes. One of the accusations made toward the Election Board is that one or some of the board may be making decisions based on personal dislike or disputes. It would seem to me that an independent arbiter without EBCI ties would be a welcome additional voice to the conversation.

Tribal Council has an enormous task in election law reform. To steal a quote from history (attributed to different people) “You can please some of the people all of the time and all of the people some of the time, but you can’t please all of the people all of the time”.

Council is going to have to find the best remedy, in their best estimation, to provide guidance for the Election Board. Hopefully, they are in their communities, getting a sense of what as many people are thinking about this as possible. Because I don’t think this is top of mind for many folks, even though it should be. Without term limits, clear parameters for vetting candidates becomes even more critical. And without constitutional law, referendums to reform the Charter need to be a priority to bring our instrument of governance into the 21st century.

I know that COVID-19 has stymied us with regard to “business as usual”. I know that we are trying to get back on track while the pandemic is still raging. But I echo Rep. Chelsea Saunooke’s plea. She spoke of counterproductivity, lack of respect, and confusion. The people need to be heard, all of them or at least as many as possible. Maybe some off hours work sessions are in order. Maybe administrative leave for those wanting to be heard at work sessions. If we can grant leave for sports, surely, we could for the legislative process. Maybe a more formal structure to how discussion occurs during the work sessions. I applaud those who did show up from the community for stepping up and sharing their viewpoints.

I applaud the Election Board and Attorney General’s office for their efforts to carry out the laws of the Tribe. I applaud the Tribal Council for making the effort to build stronger election law. It appears we all want the same thing. Hopefully, it will begin to look that way when we meet to discuss it in work sessions.