Todd Hembree: A Key Constitutional Issue: Separations of Powers (Q&A)

Native Nations Institute

Cherokee Nation Attorney General fields questions about the critical role of separations of powers in effective Native nation governance and how the Cherokee Nation instituted an array of separations of powers in the development of their new constitution

Native Nations
Resource Type

Hembree, Todd. "A Key Constitutional Issue: Separations of Powers." Tribal Constitutions seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. May 1, 2012. Presentation.

Q: With your election commission, how did you develop it and make it work?

Hembree: Well, it's worked real well. The constitution states that there will be a permanent election commission, so in the past before our constitution would come in, we ran it by ordinance that it would come into effect six months before an election and end six months after elections. Here, the constitution says that this is going to be a permanent body, so therefore these commissioners are appointed for a term of years, and that's a staggered term of years. How we did that in our enabling legislation is very good, because we wanted to have a diverse body. So under our code, the legislative branch -- the tribal council -- gets to pick two members of that commission, carte blanche. The chief doesn't get to veto it or anything. The 17 tribal council members chose those two. Then the principal chief, the executive branch, he gets two members, carte blanche. He gets those two, right off the bat. Now obviously you don't want just four members because you can end up with a tie, so we wanted to have five members to this. So those four members, the two from the executive branch and the two from the legislative branch, they get together and they pick a fifth that has to be approved by both the legislature and the principal chief. So again, building in the process of independence and insulating itself from the political structure as much as possible. Anyone else? Yes.

Q: My name is Chase Iron Eyes and I have a question. What I'd like you to talk about, "˜cause I'm an attorney as well, and one thing that I've run into that I don't know if the Cherokee Nation has run into, is that a lot of times the people that you work for, the client, doesn't know that there is such a thing -- and I don't know the full scope of it either -- but the difference between an attorney general, general counsel, in-house attorney, legislative council, all those things. Is there some examples or something you can offer to talk about that?

Hembree: Fantastic question, because as an attorney, the first thing you need to know is who your client is. Now in our system of government, I as the attorney general, I am the attorney for the Cherokee Nation. I am not the chief's attorney, I am not the tribal council's attorney. Now we have the ability for the legislative branch, the tribal council, to hire their own independent counsel. Twelve years ago I was their first council attorney that they had ever hired, to be their representative. So it is important that each branch have their own independent counsel. The legislators have theirs, the principle chief has his own counsel that answers only to him and looks to him to represent his interests and promote the policies that he wants to promote. Obviously, the legislative attorney will insure that all legislative processes and the rules of the procedures of the council are followed but I as myself, as the attorney general, I'm independent.

Now again, we're fortunate. We have the resources to do that. There are a number of tribes that they're lucky to have one counsel and in that instance it needs to be, that attorney, whoever he or she may be, needs to spell out distinctly, okay, who am I working for? Am I attorney for the tribe itself, so do I have a globalistic or holistic approach to my representation? Do I only represent the chief, or do I represent the tribal council? Those are things, they're questions that have to be answered right up front. If you can put it into a structure, we have a good one, the Cherokee Nation does have a good one. But [be] mindful that we all don't have the same resources. When an outside counsel comes along, the first thing that they need to determine for their sake and the sake of the tribe is who do I represent? Because believe you me, I've seen instances where they've tried to represent all parties, and they end up with conflicts of interest that are definitely not attractive. Anything else? Anyone else? Well, again, thank you very much ladies and gentlemen for your hospitality and any time you're near Tahlequah, come on by. We'll make a good host. Thank you."

Related Resources


Cherokee Nation Attorney General Todd Hembree discusses the critical role of separations of powers in effective Native nation governance, and provides an overview of how the Cherokee Nation instituted an array of separations of powers in the development of their new constitution, which was ratified…