TAHLEQUAH — The Cherokee Nation Tribal Council on Monday night passed an act 9-8 requiring certain positions within the tribe be held exclusively by Cherokee citizens.

The specific positions are key posts within the executive branch, including general counsel, chief of staff, executive director of Communications, executive director of Government Relations, and chief executive officers of Cherokee Nation Businesses.

The positions affected are currently held by CN Chief General Counsel Kalyn Free, a Choctaw; Chief of Staff Chuck Hoskin Sr., a Cherokee; Executive Director of Communications/Government Relations Jim Gray, an Osage; and CNB CEO Shawn Slaton, a non-Indian. With the exception of Slaton, all were hired by Principal Chief Bill John Baker after his inauguration last November.

Those voting in favor of the measure included Councilors Julia Coates, Jack Baker, Buel Anglen, Cara Cowan-Watts, David Thornton, Don Garvin, Lee Keener and Jodie Fishinghawk.

On Friday, CN Attorney General Todd Hembree issued an opinion on the legislation and found it unconstitutional, saying he believes it impedes on the division of power between the legislative branch and the executive branch.

Coates addressed the issue of constitutionality during discussion Monday.

“We have received opinion from our attorney general that this legislation is unconstitutional,” said Coates. “I had questions about that  when I voted for it in committee, but I will still vote for it, because I believe it’s good in principle. The people who hold certain positions become the face of this nation; I believe they should be Cherokee citizens. Normally, we don’t step on the hires of the principal chief and the executive branch, but I believe the positions described in this legislation should be held by citizens of the Cherokee Nation. When they’re held by noncitizens, I believe it creates the potential for biases to come into play.”

Councilor Janelle Fullbright, who opposed the measure, explained her position.

“We are here to follow the rule of law and obey our constitution,” said Fullbright. “This is not a personal vendetta against who the chief has selected to serve in these positions. We have an interim CEO, Shawn Slaton, who has done a wonderful job, he is not a Cherokee Nation citizen. These positions are not required by the constitution to be a Cherokee citizen. I intend to follow the rule of law.”

Frailey, who is one of three attorneys on the council, also opposed the legislation.

“I appreciate the comments all of you have made,” said Frailey.  “I’ll be voting against it because I believe it’s unconstitutional. Executive power is vested in the chief. It’s in his realm to appoint or employ those he considers capable of fulfilling administrative roles. Secondly, this act will set a precedent. If the tribal council requires this of the executive branch, should we require the legislative branch to do it? The judicial branch? The other entities? While I appreciate the principle and objective, I believe we are over-reaching and it violates the distribution of power.”

Lay, who sponsored and authored the legislation, said he sees nothing unconstitutional about it.

“Tremendous pressure was put on me to table this. I’ll not do it,” said Lay. “I was a Cherokee-preference guy when I got here, and I still am. I’ll take my chances with Cherokee judges. We’ve got a chief counsel who’s a non-Cherokee, a government relations and communications director who is a non-Cherokee. Give me a break, unconstitutional. I don’t believe it is. Is this Cherokee Nation, the Choctaw Nation, the Osage Nation, what is it?”

Anglen said the people currently holding the posts aren’t in immediate danger of losing their jobs. He voted in favor of the measure.

“It was all Cherokees who voted me into office, and I have to support the Cherokee people,” said Anglen. “You can’t make it retroactive; you can’t run them off because they aren’t Cherokee.”

Each position included in the legislation has a contract with varying start and end dates. When the contract comes up for renewal, the act, if it stands, would make Cherokee preference mandatory for contract renewal.

The other two attorneys on the council, Chuck Hoskin Jr. and Tina Glory-Jordan, also opposed the measure.

The chief has five days to veto the legislation, and it would take a two-thirds vote of the council to override a veto.

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