CN '99 constitution incorporated older ideas

Grant D. Crawford | Daily Press

Wanda Hays reads the preamble to the Cherokee Nation 1999 Constitution at the Cherokee National History Museum in Tahlequah.

Before the Cherokee Nation 1999 Constitution was ratified by voters in 2003 and recognized by the federal government in 2006, the tribe was governed under different laws that required extensive input and oversight by Cherokees when they decided to rewrite the document in 1995.

Under the 1975 Constitution, the tribe was required to ask its citizens in 20 years whether the law should be amended, edited, or reworked through a constitutional convention. After it was overwhelmingly endorsed by CN citizens, the tribe created the Constitution Convention Commission in 1998 to discern what changes should be made.

"The form of government we had, I think, needed to be updated from 1975 to then 1999," said Principal Chief Chuck Hoskin Jr. "It was both giving the people an opportunity to weigh in and also maybe some objective review of our government by the leaders at the time."

The commission was made up of two representatives from the tribe's legislative branch, two appointees from the principal chief's office, and two commissioners from the judicial branch. Those six then selected a seventh independent commissioner, and the group set about determining the desires of citizens.

Jay Hannah was chosen as one of the representatives chosen by the Tribal Council. He was chair of the 1999 Constitution Convention and custodian of records for the commission.

"We then set about the process of meeting with Cherokee citizens, and we held in excess of 20 public hearings - not only across the historic boundaries Cherokee Nation, but also across the United States in tribal communities," said Hannah. "So we would go to Houston, Texas; to New Mexico; to California; to Kansas, and meet with expatriated Cherokee citizens, asking them very simplistically, 'What would you like to see changed in the Constitution?'"

Perhaps one of the biggest changes Cherokees wanted to see was a balance of power among the three branches of government. So the framers of the '99 constitution made sure to create officers who were protected from dismissal, which Hannah said was a result of "much political consternation."

"Under the '75 constitution, the tribal marshal was answerable to the principal chief," said Hannah. "Of course, that was the genesis of the constitutional crisis of 1995, when the tribal marshal was carrying out an order from the judiciary to investigate the principal chief's office. The principal chief at that time, Joe Byrd, simply dismissed the tribal marshal."

Once the commission determined that completely rewriting the constitution was the best course of action, it called for the 1999 Constitutional Convention, which was made up of 74 delegates. The delegates were selected by all three branches of the CN government and the commission itself.

For nine days, the 74 delegates met an average of 12-14 hours a day.

The group researched previous constitutions, looked over other tribal documents, and brought in constitutional scholars from Arizona State University and Harvard Law School.

"We moved through the '75 constitution in seriatim process," said Hannah. "So we took each article and each section and debated changes, and would vote as a convention to endorse our work by article and by section, until we had moved through the entirety of the constitution. In some cases, it included sweeping changes."

In many ways, according to Hannah, the Cherokee Nation 1999 Constitution restored the tribe's government provisions to mirror the 1839 document, which was signed 180 years ago. It created an upper and lower court system, as was the case under the 1839 document.

A new provision included in the '99 document required the Cherokee Nation to invoke its treaty rights under the Treaty of New Echota of 1835, to seat a delegate in Congress. That provision was recently initiated, as the tribe appointed Kim Teehee to potentially serve as a delegate on the U.S. House of Representatives.

"There are a whole host of changes," said Hannah. "The word 'member' was stricken from the constitution, and you'll see that Cherokee citizen has been replaced in that verbiage. That would have been the true verbiage in 1839 and 1827, because we are citizens of the Cherokee Nation, not 'members' of."

Cherokee citizens ratified the 1999 constitution during the general election of 2003. The Department of the Interior did not approve the changes to the constitution, however, and the Bureau of Indian Affairs has indicated over the years it does not recognize the '99 constitution. Meanwhile, the Cherokee Nation has asserted it does not need the BIA's recognition.

"The Bureau of Indian Affairs wanted to exert control over the Cherokee Nation," said Hannah. "So there was a great deal of, I will say, political and bureaucratic maneuvering at the level of the United States, to attempt to exert themselves into the control or ratification of our constitution."

The CN Judicial Appeals Tribunal, today known as the Supreme Court, decided in 2006 that the constitution was the law of the Cherokee Nation land, and has been used ever since.

"As I recall, there was a provision that stripped the Department of the Interior's approval of the constitution, and that was part of our constitutional reform," said Hoskin. "I think that caused some consternation with the Bureau of Indian Affairs, so that was part of the delay. So really, we've not been operating under this constitution for as long as people might think, at face value."

The 1999 Cherokee Nation Constitution also has a provision that will require the tribe to ask citizens whether another constitutional convention should be held. The date of a new convention will be left up to the judicial branch to decide. Hannah said it would "obviously" not be held within 20 years from the '99 convention.

The fact the Cherokee Nation has its own constitution represents its sovereignty, and Hoskin said it's important for people to know it's had one since the early 19th century.

"We've been governing ourselves based on the rule of law and based on democratic principles - popularly electing leaders - for a long time," said Hoskin. "I think that people in this country need to know that those are the values we believe and those are really American values as well."

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