Published On: Fri, Oct 23rd, 2015
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Council reverses decision on pay raise lawsuit defendants’ representation





Tribal Council reversed a decision from a week earlier involving legal representation for those named in a lawsuit involving pay raises that occurred last fall.  Council passed Res. No. 30 (2015) in Annual Council on Wednesday, Oct. 14 which stated that those named in the lawsuit would be responsible for their own legal representation.  Eight days later, on Thursday, Oct. 22, Council passed Res. No. 36 (2015) which rescinds Res. No. 30 and provides for a case-by-case review of legal service fees.

“The main concern I had on the working of the previous resolution (Res. No. 30) is that it potentially affects the liability of this tribe, and it’s also our duty to protect the liability,” said Yellowhill Rep. Anita Lossiah, who co-introduced the legislation along with Birdtown Rep. Travis Smith, during the debate on the issue on Thursday.

Res. No. 36 states, “Additional research was needed concerning the public policy behind legislative and government immunity and whether it would be affected by the passage of Resolution No. 30 (2015), and it has been determined that Resolution No. 30 (2015) will affect these public policy frameworks for the operation of government and if those protected by the legislative and government immunity of the tribal government of the Eastern Band of Cherokee Indians (EBCI) act outside of their scope of duties, as determined by a court of law, they shall not receive paid legal services from the EBCI in response and/or defense of those actions…”

Rep. Lossiah went on to comment on the legislation, “I felt additional research was needed just to clarify the wording within that resolution (No. 30).  It would have been appropriate to table it for further discussion, but the way it was currently written, I could not support that.  This one is just clarifying with a little additional detail on the legislative immunity concern.”

Res. No. 36 also states, “…if an elected official and/or those protected by the legislative and government immunity is sued in his or her official or individual capacity and is found by a court of law to have been acting outside the scope of his or her official authority, the Tribe should require repayment of any and all legal fees incurred in the response and/or defense of the elected official and/or those protected by the legislative and government immunity and that such cost shall be deemed a debt to the Tribe.”

Big Cove Rep. Teresa McCoy, who submitted Res. No. 30, said on Thursday, “I do appreciate the intent of the legislation, and I still stand behind the other one.”

She added, “I cannot support this one because I feel like whenever tribal government breaks the law, tribal government should be held accountable like everyone else, and I believe that we sometimes hide behind immunity.”

“None of this would have occurred had Council continued to simply follow the law.  That was the first time in the history of pay raises that our tribal government did a pay raise like that, and that was the first time in the history of tribal government that we received a back pay check.”

Rep. McCoy’s Res. No. 30 stated in part, “Tribal Council was served with a demand letter several months ago, and only with discussion, no vote, retained legal services from a firm in Washington, DC…to date, the tribe has already spent $49,000 for legal fees for Tribal Council Members in defense of the demand letter.”

That resolution went on to state that each individual named in the lawsuit “will be responsible for their own attorney.”

Rep. Smith noted on the legislation he and Rep. Lossiah proposed, “This legislation that we put in here is for the well-being of the tribal government.  This talks about our tribal government moving forward.”

Rep. Lossiah also said, “This body has to be able to speak freely for the concerns of our communities.  We also have to be able to freely pass legislation…anything that would erode that protection for this body would be a hindrance on our government function.  The spirit of the other one I fully supported, but I was concerned for the liability of this tribe.”

Two motions were made on the legislation including a move to kill by Rep. McCoy and a move to pass by Rep. Lossiah.  Voting to kill were: Rep. McCoy, Big Cove Rep. Richard French, and Wolfetown Rep. Bo Crowe.  Voting to pass were: Birdtown Rep. Smith, Yellowhill Rep. Lossiah, Yellowhill Rep. B. Ensley, Painttown Rep. Tommye Saunooke, Painttown Rep. Marie Junaluska, Birdtown Rep. Albert Rose, Cherokee County – Snowbird Rep. Adam Wachacha, Vice Chairman Brandon Jones and Chairman Bill Taylor.

The lawsuit, filed on Tuesday, Oct. 6 in Tribal Court by the Eastern Band of Cherokee Indians for Justice & Accountability, disputes the pay raises.