By Travis Snell
Assistant Editor

TAHLEQUAH, Okla. – The Cherokee Nation Supreme Court unanimously ruled on Feb. 4 that current elected tribal officials are serving their first terms under the tribe’s 1999 Constitution and can run for their respective seats again in 2011.

“With this ruling, all those Cherokee officials who were elected in 2007 and choose to run in the 2011 election will be seeking their second consecutive term of office for purposes of being elected under the Cherokee Constitution of 1999,” the ruling states. 

It affirms a May 20, 2009, decision by District Court Judge Bart Fite, which Tribal Councilors Jodie Fishinghawk and Tina Glory Jordon appealed to the Supreme Court on June 16, 2009, alleging Fite erred in his ruling.

Following the Supreme Court ruling, Fishinghawk said she was “disappointed” with the case’s final result. 

“The plain language of the constitution, the intent of the founders, the timing of the constitution’s approval all point me to the conclusion that office holders re-elected in 2007 are in their second term,” she said. “But the court has adopted the chief's position on the matter.”

According to the tribe’s 1999 Constitution, councilors can serve two consecutive terms and then must sit out a term before seeking another council seat. The principal and deputy chiefs must also sit out a term after serving two consecutive terms before seeking the same seat. 

Principal Chief Chad Smith filed the lawsuit on Nov. 19, 2008, asking the District Court to determine if he and some Tribal Councilors were eligible to run for re-election in 2011. 

Smith, who was initially elected principal chief in 1999, is serving in his third consecutive term, but only his first under the 1999 Constitution, according to the District Court ruling. 

Following Fite’s ruling, Smith said he planned to seek a fourth term but wanted “to resolve any outstanding issues” with the lawsuit before the 2011 election.

“If someone brought this case two years from now it could have thrown the election process into confusion,” Smith said. “The last thing the Cherokee Nation needs is for our citizens to be confused about who can and cannot be candidates in any given election, and that’s why I felt it was important to resolve these issues now.” 

Both the Supreme and District courts’ rulings uphold a 2007 opinion by CN Attorney General Diane Hammons that states the first term for any elected official under the 1999 Constitution is the term that began on Aug. 14, 2007.

The 1999 Constitution was written during a 1999 constitutional convention and sets term limits for elected officials. Cherokee voters ratified the constitution in August 2003, but it took a 2006 ruling from the tribe’s top court, then the Judicial Appeals Tribunal, before it became effective.

Also in the Feb. 4 ruling, the Supreme Court stated that Legislative Act 07-07, which provides six-year terms to some Tribal Councilors, is constitutionally valid. Councilors approved the staggered terms, but Smith included the issue in his 2008 lawsuit.

Nine of the 17 Tribal Councilors are serving six-year terms with their terms expiring in 2013. The remaining eight councilors are serving four-year terms with their terms expiring in 2011. 

Fishinghawk said she was pleased the court recognized the council’s authority to stagger terms.

“The constitution and the election laws give the council considerable authority over such matters,” she said. “Frankly, even this court, which has been deferential to the chief on a variety of issues, had to reach the conclusion that the council could stagger terms.”

Reach Assistant Editor Travis Snell at (918) 453-5358 or travis-snell@cherokee.org