"the People's Paths!" Cherokee News Path - Attorney General issues opinion

TAHLEQUAH, Oklahoma – At the Tribal Council’s request, Attorney General Diane Hammons recently wrote an opinion stating Cherokee Nation officials elected in 2007 are serving their first term under the 1999 Constitution.

The council’s Rules Committee requested Hammons’ opinion on the term limits outlined in the 1999 Constitution, which became law in 2006. The committee asked if elected officials who took office in 2007, and who were previously elected in 2003, were serving their first or second term under the constitution.

She answered the committee stating that any official who served from 2003-07 and was re-elected in 2007 would be serving his or her first term.

In her opinion, Hammons wrote the 1999 Constitution instituted term limits for elected officials that were not included in the previous constitution. The council limitation found in the 1999 document states that councilors shall be limited to two consecutive terms and must sit out a term before seeking re-election to a council seat.

The principal chief and deputy chief terms are also limited. According to the constitution, anyone having been elected principal chief in two consecutive elections shall not be eligible to file for the principal chief seat in the election following his or her second term.

“The Constitutional provisions on term limits specifically refer to the election of the officials rather than to the term itself and thus the date of election to a term is the pertinent date,” Hammons wrote.

Because the CN has never had term limits for elected offices, no prior CN case law concerning the issue of term limits exists, she wrote, and the term limit provisions in the 1999 Constitution do not specifically address the date upon which counting of elected terms begins.

In 2006, the CN Supreme Court ruled in the case “Status and Implementation of 1999 Constitution of Cherokee Nation” that the 1999 Constitution became effective on July 26, 2003, after Cherokee voters adopted it.

But because no specific date was set for counting terms under the new constitution, Hammons wrote, there are three possibilities for when the counting begins: All elected terms ever served, including those prior to the effective date of the 1999 Constitution; immediately upon the effective date of the 1999 Constitution, which would include the 2003-2007 term; or terms could be counted to include only those elected terms where the election occurs on or after the effective date of the 1999 Constitution, which would start with the 2007-2013 term.

Hammons also cited “U.S. Term Limits, Inc. v. Hill,” a 1994 Arkansas case where term limits were imposed by a state constitutional amendment, but the amendment did not specify the date when the terms would take effect.

The court determined that because no benchmark date was provided, the amendment was unclear and required the court to apply rules to determine the benchmark date. The Arkansas court also ruled the amendment “would not be construed as retroactive when it may be reasonably construed otherwise.”

Because of the amendment’s lack of a benchmark date for counting terms and the rule against construing laws to be retroactive, the court held that only those terms commencing after the amendment’s effective date would count towards term limits.

Hammons wrote that if the U.S. Term Limits case were applied to the CN question, only terms where an individual was elected after the effective date of the 1999 Constitution would be counted as terms towards the term limitations.

“Such a rule would be consistent with the intentions of the (CN) Constitutional framers,” Hammons wrote.

She added, “Any elected official who was elected in 2003 and then re-elected in 2007 is, for purposes of counting terms limits, serving their first term in office at this time.”