TRIBAL LAW: LESSONS FROM THE CHEROKEE

Introduction:

Located about an hour away from Knoxville in Cherokee, North Carolina, the Eastern Band of Cherokee Indians1 were once part of a much larger Cherokee Nation population. However, when the Trail of Tears 2 was mandated, and forced removal and relocation were directed by the US government and then-President Andrew Jackson, the Cherokee Tribe became divided into what is known today as the Cherokee Nation and United Kituwah Band, located in Oklahoma, and the Eastern Band, made up of those who remained and rebuilt within North Carolina’s Qualla Boundary (sometimes called the Cherokee Indian Reservation). This piece will explore the self-governing aspects of the Eastern Band of the Cherokee.

Governance:

The Cherokee people are a sovereign nation with its own laws, elections, government, and institutions. Though it certainly has relationships with the United States federal government, the state of North Carolina, and the general population, they are, nevertheless, self-governed and autonomous. The Nation operates under a ratified Constitution with a tripartite government with executive, legislative and judicial branches. Services are administered under the Executive Branch through the Principal Chief and Deputy Principal Chief and their cabinet members. Laws are enacted by a 17-member legislative body, the Tribal Council.

Tribal Law:

American Indian tribal law is distinct from federal American Indian law. While federal Indian laws govern the relationship between tribes and the federal and state governments, tribal laws cover the inner workings of specific tribes. Each tribe has its own laws and government, which are structured similarly to the federal three-branch system. For example, the Cherokee have an executive division, headed by a chief and a vice chief, a legislature division or 12-member Tribal council, and a judicial branch or Tribal court.

The Tribal Court is headed by a Chief Justice, two full-time Associate Judges, two Associate Appellate Justices, and numerous Temporary Judges/Justices, all of whom have been nominated by the Principal Chief and confirmed by the Tribal Council. Tribal judges must be attorneys licensed by, and in good standing with, the North Carolina State Bar. Tribal laws are developed by tribes or Indian nations and apply to their members and to individuals within tribal territories. The reach of tribal law beyond the Cherokee people was expanded by the Tribal Law & Order Act (TLOA), 3 which helps to address crime in tribal communities and places a strong emphasis on decreasing violence against women in their communities.

Ordinances:

Like most governmental entities, the Cherokee are empowered to enact various laws in the form of ordinances. Ordinances of the Eastern Band of the Cherokee are codified by the Municipal Codes Corporation, a service many attorneys rely upon when practicing municipal law. The ordinances of the Cherokee contain rules and regulations not unlike other public entities. Topics include:

• Civil procedure

• Taxation

• Professions and occupations

• Zoning/land use

• Utilities

• Judicial and Juvenile law, to name but a few

Native American Graves Protection and Repatriation Act of 1990:

One recurring legal issue of great importance to the Cherokee concerns the proper care and treatment of Cherokee skeletal remains and burial site preservation mentioned. Because of the looting and desecration of Indian gravesites, Native American peoples across the United States petitioned Congress to pass the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA).4 Since 1990, federal law has provided for the repatriation and disposition of certain Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. Currently, the University of Tennessee’s McClung Museum curates the remains of about 6000 prehistoric Native Americans that have been recovered during excavations by the Tennessee Valley Authority. The Museum’s staff work closely with the Cherokee to ensure repatriation of Native American Ancestral Remains and cultural items back to their proper cultural communities.

Conclusion:

Despite some important distinctions, the Cherokee’s governing body generally acts as any other legislative body in creating laws, authorizing expenditures, appropriating funds, and conducting oversight of activities carried out by the chief executive and tribal government employees. What is unique, however, is the fact that the Cherokee nation has been selfgoverning long before Europeans, with their own notions of governance, set foot on Cherokee lands. To quote one tribal historian, “The Cherokee people have existed since time immemorial.” I for one am glad they exist today and are willing to share their rich, unique culture.

1 The Cherokee people, according to my research, prefer the term “Indian.”

2 The Trail of Tears was an ethnic cleansing and forced displacement of approximately 60,000 people of the “Five Civilized Tribes” between 1830 and 1850 by the United States government.

3 25 U.S.C.: Indians; 42 U.S.C.: Public Health and Social Welfare

4 The Native American Graves Protection and Repatriation Act, Pub. L. 101-601, 25 U.S.C. 3001 et seq., 104 Stat. 3048

By: Angelia Morie Nystrom Long, Ragsdale & Waters, P.C.