Injunction on alcohol referendum denied

by Apr 12, 2012Front Page, NEWS ka-no-he-da0 comments




     EBCI tribal members went to the polls on Thursday, April 12 to vote on the four measures comprising the alcohol referendum.  Some felt the referendum was in violation of Tribal law. 

     Peggy Hill-Kerbow, on behalf of herself and 14 other EBCI tribal members, filed a Complaint and Request for Injunctive Relief in Tribal Court on Tuesday, April 10.  That injunction was denied in a Memorandum Order issued on Wednesday, April 11 by Associate Judge J. Matthew Martin. 

     The following were named as defendants in the complaint: Eastern Band of Cherokee Indians, the EBCI Tribal Council Representatives, EBCI Election Board, Tribal Alcoholic Beverage Control Commission (TABCC) and Principal Chief Michell Hicks. 

     The complaint alleged that “defendants chose to ignore Tribal Law Cherokee Code Chapter 161-9 Referendum/Initiatives and passed the Resolution to hold a referendum vote on April 12, 2012 the same of alcoholic beverages on Tribal Trust Lands.” 

     It also alleged that the TABCC has acted “over and beyond their realm of authority”. 

     The plaintiffs were asking for a complete halt to the referendum as well as the Court to find “the defendants have engaged in conduct that violates Tribal Law”. 

     In his order, Judge Martin wrote, “CC (Cherokee Code) Section 161-16(d) provides the burden of proof: ‘Any person filing a protect for election irregularities under Subsection 161-16(c) must establish during a hearing in front of the Board of Elections that the alleged irregularities unfairly and improperly or illegally affected the actual outcome of the election.’”

     “In this matter, the Plaintiffs allege that the conduct of the election itself will result in an illegal outcome,” he wrote. 

     He said that the plaintiffs may file a protest of irregularities with the Election Board.  “In light of this, the Court should not grant an injunction,” Judge Martin wrote.  “The Court notes that the Plaintiffs did not request a hearing on this issue and that it appears from the file that some of the Defendants have not yet been served with process in this case.  The Court has dispensed with oral argument of this issue inasmuch as the result is clear from the Complaint and the relevant law and argument would not aid in the decisional process.” 

Complaint and Request for Injunctive Relief

 Memorandum Order by Judge Matthew Martin