In a 2002 referendum, the members of the Eastern Band of Cherokee Indians voted to authorize an audit of the tribe’s enrolled members. Almost eight years later, the process is coming to a head as the Tribal Council considers how to use the findings of the study.
The primary issue facing the council is what to do about the 300 names the audit showed to have no connection with the Baker Roll, the tribe’s benchmark for enrollment qualifications.
“The Cherokee people are currently working through the procedures and policies to be set in place to deal with these individuals,” said Principal Chief Michell Hicks. “This is a difficult situation for us all, but a necessary step to ensure we are all in compliance with the Eastern Band’s enrollment guidelines.”
After perusing 18,000 files and more than 115,000 documents, the staff of The Falmouth Institute presented the final enrollment audit report to the Tribal Council last October. Now the council is charged with setting the policies and procedures that will be used to implement the findings.
The auditors found 1,405 files they deemed actionable, 683 files that did not meet the current enrollment requirements, and 300 people with no connection to the Baker Roll
At stake is not just who can be considered a member of the tribe, but also the benefits and rights that come with recognition as a tribal member, including the right to own land in the Qualla Boundary and the right to per capita payments. There are currently about 13,000 enrolled members of the Eastern Band of Cherokee.
During committee meetings last month, tribal council members considered the possibility of taking land back from disenrolled members and asked their legal team whether they would have to provide compensation for it.
EBCI Attorney General Annette Tarnawsky said the Pechanga Tribe in California and the Saginaw Chippewa Tribe of Michigan are in the midst of similar enrollment verification proceedings, but neither has used the enrollment audits to expel people from their reservations or to repossess land.
Jennifer Bainbridge, a tribal attorney in charge of researching the issue, said the lack of precedents makes for slow going, but that property rights issues would be the sticking point.
“There’s not any case law out there about tribes who have disenrolled people and taken their property,” Bainbridge said.
As complicated as it is, figuring out how to enforce the enrollment audit may prove simpler than determining how to interpret it.
Tribal Council member Terri Henry, who represents the Painttown community, pointed to the fact that the original Baker Roll was a contested document. When the roll was adopted in 1926, the Tribal Council approved 1,924 names and challenged 1,222 names on the 3,136-person list. For Henry, that fact shows that even at that point the tribe felt its membership should be a smaller group than the one the federal government recognized.
“To me, this kind of answers the question about the body politic at the time,” Henry said. “This was actually at the time the roll was enacted. This would be at the genesis moment of the enrollment of the tribe.”
The dispute over the Baker Roll can be traced to the fact that it was a document that relied on land records belonging to William Thomas, who facilitated the purchase of the land used to establish the Qualla Boundary. According to Tarnawsky, the Baker Roll “was derived from landholdings of Cherokee enrolled members who either sold or gave land to Mr. Thomas that then became part of the boundary.”
The Thomas papers date to the 1840s.
The difficulty of verifying all of the records available to the Cherokee that could establish enrollment criteria was made evident when David Wyatt, head of the tribe’s GIS mapping program, began discovering historic documents during his research of land tracts.
“In the process of scanning all that information at BIA, we came across a little bit of everything,” Wyatt said
Wyatt found original copies of Thomas’ records, census records from as early as 1912, and a 1967 revised version of the Baker Roll, among other documents. None of these were included in the enrollment audit conducted by Falmouth, and their staff indicated to Tarnawsky that the scope of their project would be limited to records in the possession of the tribe’s enrollment office.
So far, the Cherokee have spent $746,000 on the audit, with another $100,000 budgeted for its completion. But with the discovery of new records that could be pertinent to the effort, it’s not clear when the job will be done.
Tribal Council member Teresa McCoy was clear in the meeting last month that her constituents want closure.
“I do prefer that there be a deadline placed on this. Let’s not let it drag out for another six months. Our community met last week, and they were adamant. They were ready to start the next morning. They are tired of waiting. They have waited for seven years, and they don’t know what’s taking so long,” McCoy said.
But the council will have to decide whether to push disenrollment proceedings on the list of 300 or on a broader group identified by the audit.
With a vocal part of the membership clamoring for resolution, the council will have to negotiate intricate legal issues in addition to sorting out how to deal with records in possession of the Bureau of Indian Affairs and the State of North Carolina that could shed light on the status of enrollment claims.
Tribal Council member Tommye Saunooke asked for patience.
“I think the public needs to understand that the results of the audit did not come back to the council until late 2009. Council has not drug their feet on this,” Saunooke said.