The position was vacated in May when Vice Chief Richard Sneed was sworn in as principal chief following Tribal Council’s vote to remove then-Principal Chief Patrick Lambert from office. The crowd in the councilhouse that day had been quite vocal about its desire for a special election to choose the tribe’s new leaders, to the point that Sneed’s inauguration had to be moved to the Cherokee Justice Center to escape the commotion.
The Eastern Band of Cherokee Indians has been operating without a vice chief ever since, and council has not yet decided whether it will fill the vacancy by appointing someone from its own ranks or by authorizing a special election. Councilmembers discussed the issue during a special meeting held June 15, with everyone seeming to agree that a special election would be the best way to go — seven of the 12 members stated that they would support a special election, with none of the remaining five saying they would oppose it.
“Regarding the special election, that would be a very good policy because the time we’re talking about before the next election for chief and vice chief is so far,” Councilmember Anita Lossiah, of Yellowhill, said during the June 15 meeting. “It’s over two years. It definitely would be good policy to do that, but we have to make sure it’s in alignment with the charter.”
A legal question
Councilmembers had expressed some concern over whether the law allows them to hold a special election in this circumstance. The Cherokee code says that, in the event that the principal chief’s office is vacated, the vice chief “shall” become principal chief for the balance of the term. However, in the very next sentence it says that if the vice chief position is vacated, council “may” elect a successor from among its members to serve the remaining term.
In the legal world, the word “shall” is typically understood to mean that something must happen, while “may” is typically understood to be less restrictive. However, the law in question does not specify what options Tribal Council has should it not choose the vice chief from its membership — it neither states that a special election is an option nor prevents one from taking place.
The only situations in which a special election is specifically required are in the case of a vacancy on Tribal Council or the School Board with more than six months left in the term, or in the case that the vice chief and principal chief offices are vacated simultaneously and the Tribal Council chairman is not eligible to become principal chief.
Councilmembers said June 15 they were uncertain as to whether the law allowed them to order a special election and wanted the Cherokee Supreme Court to weigh in on the issue.
Principal Chief Richard Sneed said that, in his view, this language doesn’t allow for a special election to be held.
“There is no provision in the law or charter for a Special Election in the current situation we find ourselves in,” he said in an email. “The AG (attorney general) and Legislative Counsel both have stated such.”
Tribal Council heard from the Attorney General’s Office and Legislative Counsel during a closed session meeting that preceded the open discussion June 15.
“There are only one or two council members who are asking for it (a special election),” Sneed continued in an email exchange with The Smoky Mountain News. “They would be the only ones who would run. The others would have to drop out of their respective council races to run and they are not going to do that.”
If that’s the case, then opinion on the issue has flipped since the June 15 meeting, when seven of the 12 councilmembers voiced support for a special election. Neither Chairman Bill Taylor, of Wolfetown, or Vice Chairman Brandon Jones, of Snowbird, returned requests for comment on this issue.
Things left off June 15 with council agreeing to ask for an opinion from the Supreme Court and, if given the OK, to put the vice chief’s position on the ballot in conjunction with the Sept. 7 General Election.
Attempts at discussion
The issue was not included on the agenda for Tribal Council’s July 6 meeting, but Councilmember Tommye Saunooke, of Painttown, brought it up minutes into the session.
“Mr. Vice Chairman, my people from Painttown want to know when we’re going to let them vote on a vice chief,” she said, addressing Jones, who was chairing the meeting with Taylor absent.
“The Supreme Court said they weren’t able to give us an opinion, which we kind of suspected that might happen, but we will discuss that at the end of the agenda today,” Jones said.
It would be highly unusual for the court to provide an opinion on a particular issue, such as the laws surrounding special elections, without an actual lawsuit being entered on the topic. Typically, legislative bodies rely on the expertise of their own attorneys to avoid making decisions that could result in a lawsuit.
Tribal Council never did discuss the vice chief issue during its July 6 session, or during the session’s continuation July 10, but for a brief exchange between Jones and Councilmember Teresa McCoy, of Big Cove, later in the July 6 meeting.
Denise Ballard of the EBCI Board of Elections had come before Council to present the official results of the June 1 Primary Election, adding at the end of her presentation that if Tribal Council wants to have the vice chief’s office on the Sept. 7 ballot, “We have to move on this.”
“I move at this time we allow the election board to start the process to have an election for vice chief,” McCoy said.
“I think we need to have that discussion today before we do that, see how we’re going to handle that process, “Jones said.
“How did the opinion from the Supreme Court turn out?” McCoy asked.
“We’ll set some time aside this afternoon to discuss that,” Jones replied.
“Can we discuss that on television?” McCoy asked.
“Yes, we will,” said Jones.
No such discussion ensued, however.
“Many told me they felt like this was a stall tactic,” McCoy said in a follow-up email exchange, referring to the decision to consult the Supreme Court. “It has been six weeks and I am beginning to agree with them.”
McCoy believes that the word “may” in tribal law clearly allows for Tribal Council to “fix this emergency situation in some other way” besides appointing a vice chief from its membership.
“Council can and should allow our tribal members to vote,” she said via email. “They talk about healing, they talk about respect, they talk about following the law, then, that is what they need to do. Our members still have the foul taste of a predetermined impeachment in their mouths. Our members vote in September in the general election. I don’t see them voting for current council members who don’t have enough confidence in them to vote for a vice chief.”
The window for the vice chief’s office to be included on the Sept. 7 ballot may have already closed, at least if Tribal Council wants that election to include absentee and early voting options. Early voting starts Aug. 14, and the Board of Elections is already taking requests for absentee ballots. However, nothing’s certain — the election board hasn’t yet met to discuss the issue, elections worker Nancy Locust said over the phone.
“Once Council lets us know what they’re going to do, that’s when we’ll get together and figure out the dates,” Locust said.
Tribal Council’s next scheduled meeting begins 8:30 p.m. Thursday, Aug. 3.