Proposed Constitution to the Delegates

The following is a proposed new constitution which the Constitution Convention Committee has approved to be recommended to the delegates of the 1999 Cherokee Nation Constitution Convention. This new constitution is the culmination of the issues raised and proposals received by the Commission through the oral and written testimony of tribal members at its many public hearings, as well as many long meetings of the Commission in which these issues were discussed and debated. The proposed new constitution is in fact a comprehensive revision of the current 1976 constitution with the Commission's recommended changes fully incorporated. Each change from the original 1976 text is appropriately indicated by numbered superscripts(#) with the proposed change indicated in the box.

Proposed change

Constitution
of the
Cherokee Nation1

1. As prepared and endorsed by the Drafting Committee of the Constitution Convention Commission. The phrase "of Oklahoma" has been omitted from the title and all other references to the Cherokee Nation throughout the constitution.

PREAMBLE

We, the people of the Cherokee Nation, in order to preserve our sovereignty, enrich our culture, achieve and maintain a desirable measure of prosperity, the blessings of freedom, acknowledging, with humility and gratitude, the goodness of the Sovereign Ruler of the Universe in permitting us so to do, and imploring his aid and guidance in its accomplishment do ordain and establish this Constitution for the government of the Cherokee Nation.2

2. The words "our sovereignty" has been added to the opening sentence; the phrase "tribal culture" has been replaced with "culture". The sentence "The term "Nation" as used in this Constitution is the same as "Tribe"" has been relocated to Article I.

 

 

Article I. Federal Relationship3

3. The article name "Federal Regulations" has been replaced with "Federal Relationship".

 

The Cherokee Nation is an inseparable part of the Federal Union. The Constitution of the United States is the Supreme law of the land; therefore, the Cherokee Nation shall never enact any law which is in conflict with the Constitution of the United States. The term "Nation" as used in this Constitution is the same as "Tribe." 4

4. The language "any Federal law" was replaced with "the Constitution of the United States".

 

 

Article II. Bill of Rights

Section 1. The judicial process of the Cherokee Nation shall be open to every citizen of the Cherokee Nation. Speedy and certain remedy shall be afforded under the terms of this Constitution for every wrong and injury to person, property or reputation wherein said remedy does not conflict with the laws of the United States. The Council shall prescribe the procedures pertinent thereto as provided in Article VII.5 The appropriate protections guaranteed by the Indian Civil Rights Act of 1968 shall apply to all citizens of the Cherokee Nation.

5. The language "as provided in Article VII" was added.

 

 

Article III. Citizenship6

6. All references to tribal "member," "members," or "membership" have been replaced with "citizen," citizens," or "citizenship".

 

Section 1. All citizens of the Cherokee Nation must be citizens as proven by reference to the Dawes Commission Rolls, including the Delaware Cherokees of Article II of the Delaware Agreement dated the 8th day of May, 1867, and the Shawnee Cherokees as of Article III of the Shawnee Agreement dated the 9th day of June, 1869, and/or their descendants.

 

Section 2. There shall be established a Cherokee Register, to be kept by the Registrar, for the inclusion of any Cherokee for citizenship purposes in the Cherokee Nation who presents the necessary evidence of eligibility for registration.

(a) A Registration Committee shall be established. It shall be the duty of the Registration Committee to consider the qualifications and to determine the eligibility of those applying to have their names entered in the Cherokee Register. The Registration Committee shall consist of a Registrar and two (2) assistants. All members shall be appointed by the Principal Chief, and confirmed by the Council.

(b) There shall be a number assigned to every name which is approved and entered into the Cherokee Register. This number shall be preceded by the three words, "Cherokee Registry Number."

(c) The decisions of the Registration Committee shall be subject to de novo review by the lower courts created by Article VII. 7

7. The language "shall be subject to review by the Tribunal created by Article VII" has been replaced with "subject to de novo review by the lower courts created by Article VII."

Section 3. Registration as used in this article refers to the process of enrolling as a citizen of the Cherokee Nation and is not the same as the registration for voting purposes.

 

 

Article IV. Distribution of Powers

 

The powers of the government of the Cherokee Nation shall be divided into three (3) separate departments: Legislative, Executive and Judicial; and except as provided in this Constitution, the Legislative, Executive and Judicial departments of government shall be separate and distinct and neither shall exercise the powers properly belonging to either of the others.

 

 

Article V. Legislative

 

Section 1. The legislature shall consist of one legislative body to be called the Council of the Cherokee Nation. 8

8. The language "The initial election of members to the Council pursuant to this Constitution shall occur within 120 days from the date of its ratification on a day to be announced by the Principal Chief" has been omitted.

 

Section 2. The Council shall establish its rules for its credentials, decorum, and procedure, and shall elect a Speaker from its own membership to officiate over Council meetings. The Speaker shall normally exercise his or her vote in Council matters, but in the case of a tie vote, may either abstain from voting to break the tie, or call upon the Deputy Principal Chief to cast a tie-breaking vote.9 The Speaker shall also be third in line of succession to serve as Acting Principal Chief in case of removal, death, resignation or disability of both the Principal Chief and Deputy Principal Chief until the disability be removed or a successor shall be elected. 10

9. The language "and shall elect a Speaker from its own membership to officiate over Council meetings. The Speaker shall normally exercise his or her vote in Council matters, but in the case of a tie vote, may either abstain from voting to break the tie, or call upon the Deputy Principal Chief to cast a tie-breaking vote" has been added to create a position of Speaker of the Council.

10. The last sentence has been added to allow the Speaker to serve as Acting Principal Chief in succession after the Deputy Principal Chief.

 

Section 3. The Council shall consist of twenty-four (24)11 members, who are citizens by blood of the Cherokee Nation. Each Council member shall be elected in the general election for a term of four (4) years and until his or her12 successor is duly elected and installed. The Council shall establish representative districts which shall be within the historical boundaries of the Cherokee Nation of Oklahoma. These districts shall be apportioned to afford a reasonably equal division of tribal citizenship among the districts. All seats on the Council shall be organized to create a system of staggered terms to fill an alternating number of seats by election every two years.13

11. The number of Council seats has been expanded from 15 to 24.

12. All gender singular pronouns throughout the constitution such as "he," "his" or "him" have been changed to a gender plural equivalent.

13. This sentence has been added to implement staggered terms on the Council.

 

To implement this enlarged system with staggered terms, the newly elected Principal Chief shall, within 30 days of assuming the duties of office, appoint nine citizens otherwise qualified to hold elected office on the Council, to serve one special term of two years until the year 2001. The newly elected Council of fifteen, at its first regular meeting following these appointments, shall consider confirmation of the nine appointees and determine by lot three of the newly elected council seats that will serve one special term of two years, until the year 2001, at which time twelve council seats shall be filled by regular election.14 Should any of the appointed seats remain unfilled after 90 days of the newly elected Principal Chief taking office, the seat or seats shall be filled by the unelected council candidate or candidates receiving the highest number of votes in the 1999 election.

14. This paragraph has been added to institute nine new seats on the Council.

 

Section 4. There shall be at least one regular session of the Council in the calendar year which shall convene on the second Monday in each January or at such other date as the Council shall determine. No business shall be conducted by the Council unless a majority (13) of members thereof regularly elected and qualified shall be in attendance, which number shall constitute a quorum, provided however that a two-thirds (2/3) quorum shall be required until the enlarged Council of twenty four is seated. The session may not exceed a maximum of thirty (30) calendar days for pay purposes.

 

Section 5. Special meetings of the Council may be called: (A) by the Principal Chief, (B) by the Deputy Principal Chief when he has the full powers of the Principal Chief as elsewhere defined, (C) upon written request of fifty-one percent (51%) of the members of the Council, or (D) upon the written request of ten percent (10%) of the registered voters of the Cherokee Nation. The purposes of said meeting shall be stated in a notice published not less that ten (10) days prior to the meeting, and the Council may not consider any other subject not within such purposes. No special meetings may convene until thirty (30) days have elapsed after the adjournment of a prior session or meeting, unless called pursuant to (A) and (B) above.

 

Section 6. All meetings of the Council and of its committees shall be open to the public except: (A) When the discussion shall concern employment, retention or discharge of personnel;15 (B) When the question of the moral turpitude of any citizen is discussed; or (C) When the decorum of the audience shall prejudice orderly administration of business. In the event that consideration of a subject shall take place in Executive session, the vote shall take place in an open meeting.

15. The language "member of the Tribe" has been replaced with "citizen".

 

Section 7. The Council shall have the power to establish laws which it shall deem necessary and proper for the good of the Nation, which shall not be contrary to the provisions of this Constitution.16 The style of all bills shall be: "Be It Enacted By The Cherokee Nation". The style of all resolutions shall be "Be It Resolved By The Cherokee Nation".

16. The language "Laws or enactments which are required by Federal statutes to be approved shall be transmitted immediately upon enactments provided by Section 11 of this Article to the President of the United States or his authorized representative." has been omitted.

 

Section 8. No laws passed by the Council shall have retroactive effect or operation.

 

Section 9. The Council shall have the power to remove elected and appointed officials in the Cherokee Nation and said removal must be conducted in accordance with Article X of this Constitution.17

17. The language "the power of removal" has been replaced with "the power to remove elected and appointed officials in the Cherokee Nation". The language "Nothing herein is intended to abrogate or limit the authority of the President of the United States or any person or agency to which the President or Congress of the United States shall delegate authority therefore, to remove the Principal Chief or his subordinates" has been omitted. The reference to Article XI was changed to Article X.

 

Section 10.18 Every enactment which shall have been approved by a majority of the members in attendance at the Council shall, before it becomes effective be presented to the Principal Chief, if he or she approves, he or she shall sign it; if not, he or she shall return it with his or her objections to the Council, which shall enter the objections in the Journal and proceed to reconsider it. If, after such reconsideration, two-thirds (2/3) of the entire council shall agree to pass the enactment, it shall become fully effective and operational notwithstanding the objections of veto of the Principal Chief. In all such cases, the vote of the Council shall be determined by yeas and nays, and the names of the members voting shall be entered on the Council’s Journal. If any enactment shall not be returned by the Principal Chief within five (5) days (Sundays and holidays excepted) after it shall have been presented to him or her, the same shall be law in like manner as if he or she had signed it, unless the Council shall, by its adjournment, prevent its return, in which case, it shall become a law without the approval of the Principal Chief. No enactment shall become law after the final adjournment of the Council, unless approved by the Principal Chief within fifteen (15) days after such adjournment.

18. The former Section 10 stating "Members of the Council and all Executive Officers shall be bound by oath, provided in Article XII, to support the Constitution of the Cherokee Nation, the Constitution of the United States of America, do everything within the individuals power to promote the culture, heritage and traditions of the Cherokee Nation and to perform the duties of their respective offices with fidelity" has been omitted as being cumulative with the oath requirement in Article XII.

 

Section 11.19 The Council shall establish a continuing system of permanent publication for all laws of the Cherokee Nation and judicial opinions of the highest appellate court. The system shall provide for regular updating, indexing and digesting and shall be of public record at all times.20

19. Renumbered from Section 12.

20. This section was added to implement a system of continuing publication for Cherokee law.

 

Section 12 In accordance with Article 12 of the Treaty with the Cherokees, dated November 28, 1785 (Treaty of Hopewell), and Article 7 of the Treaty with the Cherokees dated December 29, 1835 (Treaty of New Echota), there shall be created an elected office of Delegate to Congress who shall be a citizen of the Nation and shall serve a term of four (4) years. The Delegate to Congress shall be headquartered in Washington D.C. and shall endeavor to participate in congressional activities and shall at all times advocate the best interests of the Cherokee people. The Delegate to Congress shall make regular reports to the Council and Principal Chief on congressional activities and administrative matters relating to federal Indian policy and shall produce an annual report to the Cherokee people on the state of Indian affairs in Washington.21

21. Section 12 has been added to create an elected office of Delegate to Congress.

 

Section 13 In the case of removal, death, resignation or disability of any of its members the Council shall fill the vacated seat in the following manner: If a majority of the office’s four-year term remains to be served, the Council shall authorize a special election in the district of the vacated seat it be conducted within ninety days; if a minority of the office’s 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.22

22. Section 13 has been added to provide a method of filling vacated council seats.

 

 

Article VI. Executive

 

Section 1. The executive power shall be vested in a Principal Chief, who shall be styled "The Principal Chief of the Cherokee Nation". The Principal Chief shall hold his or her office for the term of four (4) years; and shall be elected by the registered23 voters on the same day and in the same manner, except as otherwise provided by this Constitution, as they shall respectively vote for members of the Council for that particular year.24 The candidate for Chief receiving the highest number of votes shall be the Principal Chief; but if two (2) or more shall be equal and highest in votes, one of them shall be chosen by a vote of the Council. The manner of determining contested elections shall be as directed by Cherokee law.25

23. The phrase "qualified votes" has been changed to "registered voters" throughout the constitution for clarity and consistency.

24. The language "provided, the Principal Chief in office when this Constitution is ratified shall continue in office until his successor is duly elected in the 1979 election and installed." has been omitted.

25. The language "The returns of the election for the Principal Chief shall be sealed and directed by the lawfully appointed election officials to the Secretary Treasurer, who shall, immediately after the organization of the Council, and before proceeding to other business, open and publish the same in the presence of a majority of the Council." has been omitted as being obsolete. The introductory phrase "The person having the highest number of votes. . . " has been changed to "The candidate for Chief receiving the highest number of votes . . ."

 

Section 2. The Principal Chief of the Cherokee Nation shall be a citizen of the Cherokee Nation in accordance with Article III; shall have been born within boundaries of the United States of America, its territories or possessions; shall have established a bona fide, permanent residence within the historical boundaries of the Cherokee Nation for no less than 270 days immediately preceding the day of general election in which he or she was elected; and shall have obtained the age of thirty (30) years at the time of his or her election and be a citizen by blood of the Cherokee Nation of Oklahoma.26

26. This section incorporates the residency requirement for Chief which was approved by the voters in 1995.

 

Section 3. The registered electors shall elect a Deputy Principal Chief, who shall possess the same qualifications as the Principal Chief, for a term of four (4) years at the same time and in the same manner as herein provided for the election of the Principal Chief.27

27. The language "provided, that the initial election of the Deputy Principal Chief shall take place in conjunction with the first Council election pursuant to this Constitution and in accordance with Section 1 of this Article." has been omitted.

Section 4. In case of the absence of the Principal Chief from office due to his or her death, resignation, removal or inability to discharge the powers and duties of the said office, the same shall devolve upon the Deputy Principal Chief for the remaining portion of the four(4) year term to which the Principal Chief has been elected. In case of disability, such powers shall continue during the term of such disability. Vacancies in the office of the Deputy Principal Chief shall be filled by the Council.

 

Section 5. 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.28

28. The language "of both the Principal Chief and the Deputy Principal Chief has been changed to "of the Principal Chief, Deputy Principal Chief and the Speaker of the Council".

 

Section 6. The Principal Chief and Deputy Principal Chief shall, at stated times, receive for their service a compensation not inconsistent with Article IX.

 

Section 7.29 The Principal Chief may on extraordinary occasions convene the Council at the seat of government pursuant to Article V, Section 5, and such notice and other laws as may be prescribed by the Council. The purpose of said meetings must be stated and the Council may consider only such matters as are specified in the call of the extraordinary meetings. Before the extraordinary meetings may be legally sufficient to conduct business, a quorum of the Council must be present.

29. The language "Before the Principal Chief assumes his or her office, he or she shall take the oath or affirmation as provided for in Article XII." has been omitted as being cumulative with the language in Article XII.

 

Section 8.30 At one session of the Council annually, the Principal Chief shall communicate by message, delivered to the Council upon the condition of the Cherokee Nation; and shall recommend such matters to the Council as he or she shall judge expedient.31

30. Renumbered from Section 9.

31. The language "At every session of the Council" has been changed to "At one session of the Council annually". The language "and immediately upon its organization" has been omitted.

 

Section 9.32 The Principal Chief shall cause the laws of the Cherokee Nation to be faithfully executed, and shall conduct in person and in such manner as shall be prescribed by law, all communications and business of the Cherokee Nation. The Principal Chief may cause to be formed and operated, trusts, the beneficiary of which shall be the Cherokee Nation and these trusts shall be granted such powers as provided by law for public trusts. Authorization for these trusts, however, must be approved by a majority vote of the Council.

32. Renumbered from Section 10.

 

Section 10.33 The Deputy Principal Chief shall, by virtue of the office, aid and advise the Principal Chief in the administration of the government.34

33. Renumbered form Section 11.

34. The language "and shall be President of the Council but shall vote only for the purpose of breaking a tie vote." has been omitted.

 

Section 1135. Nothing in this Constitution shall be construed as preventing the Principal Chief from employing such administrative assistants as he or she deems proper.36

35. Renumbered from Section 12.

36. The language "from appointing such assistants... " has been changed to "from employing such assistants..."

 

Section 12.37 There shall be a cabinet composed of the following persons who shall be citizens of the Cherokee Nation: (1) Secretary of State, (2) Treasurer. These persons shall be appointed by the Principal Chief and confirmed38 by the Council. The Council, on recommendation of the Chief only, may create additional cabinet positions and departments. The Chief shall prescribe the duties and responsibilities of cabinet members. Cabinet members shall be authorized to appoint such staff and other assistants as they deem necessary. The Council may, with recommendation of the Principal Chief, abolish any established cabinet position or function or revise the title or responsibilities of any foregoing department or function.39

37. Article VIII. Cabinet has been re-numbered as Section 12 of Article VI.

38. The word "approved" has been replaced by "confirmed".

39. The cabinet position of Secretary Treasurer has been split into Secretary of State Treasurer; the cabinet positions of Secretary of Health, Education and Welfare, Secretary of Commerce and Industrial Development, General Counsel, and Secretary of Communications have been omitted. and

 

Section 1340 There shall be created an office of Attorney General who shall prosecute the criminal laws and shall be the ranking law enforcement official in the Cherokee Nation. The Attorney General shall be a citizen of the Cherokee Nation admitted to practice law before the highest Court of the State in which he or she is a resident. The Attorney General shall be elected by the registered voters of the Cherokee Nation to serve a term of four (4) years staggered with those of the Principal Chief and Deputy Principal Chief. The Attorney General shall be authorized to employ such prosecutors and other assistants as deemed necessary to carry out the duties of office.

40. This section was added to create an elected office of Attorney General.

 

Prosecution shall be by way of information based on probable cause, after due investigation, except in criminal matters involving appointed or elected officials of the Cherokee Nation. In such cases, the Attorney General shall appoint a special prosecutor who shall conduct a grand jury investigation composed of twelve citizens with the authority to issue indictments for criminal violations found. In all cases the Attorney General shall retain complete prosecutorial discretion.

 

To implement this section, the office of Attorney General shall be initially filled by appointment of the Principal Chief with confirmation by the Council until the 2001 election is conducted.

 

Section 14.41 The Principal Chief shall appoint, with confirmation by the Council, a Marshal to serve as the ranking law enforcement officer in the Cherokee Nation. Such appointee must be a citizen of the Cherokee Nation and posses sufficient training and experience in law enforcement. The Marshal shall serve under the direction of the Attorney General, and shall be authorized to employ and deputize such officers as necessary to carry out the law enforcement needs of the Cherokee Nation.

41. This section was added to create an appointed office of Marshal.

 

Section 1542 A vacancy of an elected office by reason of removal, death, resignation or disability of the elected official, for which this Constitution does not provide a process for seating a replacement to serve out the term, shall be filled by appointment by the Principal Chief with confirmation by the Council.

42. Section 15 was added to provide for the filling of vacated elected offices not otherwise provided for.