By SCOTT MCKIE B.P.
ONE FEATHER STAFF
A lawsuit brought by a citizens group, comprised of members of the Eastern Band of Cherokee Indians, concerning pay raises for Tribal Council representatives has been dismissed in Cherokee Tribal Court. Temporary Associate Judge Sharon Tracey Barrett cited a lack of standing by the plaintiffs and a “failure to state a claim upon which relief can be granted” in her six-page ruling.
The lawsuit was filed in October 2015 by a group known as the Eastern Band of Cherokee Indians for Justice & Accountability (EBCIJA). Resolution No. 261 (2014), passed on Oct. 14, 2014, was the main point of contention in the lawsuit. That legislation approved the FY2015 EBCI tribal budget and included pay raises for the members of Tribal Council which the EBCIJA alleges is in violation of Section 117-15(a) which states, “Pay increases for the Tribal Council members shall not exceed the amount appropriated in that fiscal year for Tribal employees. These pay increases shall not take effect until the next elected Tribal Council members are seated…”
Six Motions to Dismiss were subsequently submitted to the Tribal Court by the defendants and were discussed in open court on Wednesday, June 8, 2016. There were various reasons for dismissal listed ranging from sovereign immunity to the plaintiff’s lack of standing.
Judge Barrett wrote that the issue of standing, or who can sue in Cherokee Courts, is not clearly stated in “law, custom, tradition, or precedent” so she had to look to federal law. In her ruling, she stated, “…Plaintiff claims only that its members have the same personal stake that every other enrolled member of the Tribe shares concerning the tribal coffers, i.e., a general hope that the Tribe might spend these tribal funds in a way that could benefit them. This is not the kind of concrete, particularized injury in fact that is required for standing. Rather, this argument is very similar to claims put forth in a long line of federal cases where people suing in their capacity as citizens or taxpayers have sought to challenge the constitutionality of congressionally-authorized expenditures.”
She continued, “In cases factually similar to this one, courts have uniformly rejected constitutional challenges to congressional pay raises whenever plaintiffs assert standing to sue in their capacity as citizens or taxpayers, as Plaintiff’s members do here.”
Judge Barrett summed up the standing issue by writing, “Plaintiff has not alleged that its members have a sufficient personal stake to challenge the budget resolution at issue in this case. As Plaintiff’s members would not have standing to sue Defendants themselves, Plaintiff lacks the requisite associational standing to sue on their behalf.”
In addressing the other grounds for dismissal, Judge Barrett wrote, “Other obstacles to Plaintiff’s claims were presented, including the immunity defenses asserted by Defendants who were sued because they are current or former officers and/or employees of the Eastern Band of Cherokee Indians. However, having concluded that the Plaintiff’s Complaint must be dismissed for the reasons discussed above, the court need not address the other grounds for dismissal asserted by the Defendants.”
Meghann K. Burke, Asheville-based attorney for the plaintiffs in the case, said after the dismissal ruling, “We respect and are disappointed with the Court’s ruling dismissing our lawsuit on standing grounds. The Eastern Band of Cherokee Indians for Justice & Accountability proudly stands on the values, customs, and traditions of the Cherokee people, as well as clearly established law recognizing associational standing, in asserting a legal injury as a result of the wrongs committed by current and former elected officials.”
She added, “The arguments raised in court did not deny that these elected officials violated tribal law.”
The defendants were represented by Carleton Metcalf of the Van Winkle Law Firm in Asheville. A request for comment from him was unanswered by press time.
Background
Named in the original lawsuit were former Principal Chief Michell Hicks and former Vice Chief Larry Blythe. Also, the following are named as defendants in the lawsuit and are being sued in their individual capacity: former Tribal Council Chairwoman Terri Henry, Tribal Council Chairman Bill Taylor, former Birdtown Rep. Gene “Tunney” Crowe Jr., Yellowhill Rep. Alan B. Ensley, Birdtown Rep. Albert R. Rose, Painttown Rep. Virginia Lee Bradley (Tommye) Saunooke, former Big Cove Rep. Perry Shell, Cherokee County – Snowbird Rep. Adam Wachacha, former Yellowhill Rep. David Wolfe, former Cherokee County – Snowbird Rep. Diamond Brown (now deceased), former Tribal Council Chairman James “Jim” Owle, former Wolftown Rep. Michael Parker, and former Big Cove Rep. James “Bo” Taylor. Former EBCI Deputy of Finance Kim Peone was named in the original lawsuit but was substituted for Eric Sneed, current EBCI Secretary of Finance, who is now in that position.
Wolftown Rep. Bo Crowe was the only one to vote against Res. No. 261 with Big Cove Rep. Teresa McCoy and Vice Chairman Brandon Jones both being absent. None of those three representatives were named in the suit.
According to records from the EBCI Office of Budget and Finance that were attached to the official court documents filed in the original suit, the pay for the Tribal Council Chairman increased from $75,000 to $86,400. The pay for the Vice Chairman increased from $72,500 to $83,500, and the pay for the other Tribal Council representatives increased from $70,000 to $80,600. The court document alleges that defendants Taylor, Brown, Owle and Parker all received “one-time lump-sum payments”.
The EBCIJA sought a waiver of sovereign immunity through Res. No. 47 (2015) to pursue this lawsuit, but that measure was killed by Tribal Council on Thursday, Oct. 29, 2015.
