Published On: Thu, Apr 27th, 2017

Court finds Grand Council doesn’t have “force of law”

 

By SCOTT MCKIE B.P.

ONE FEATHER STAFF

 

According to the Cherokee Tribal Court, the Grand Council meeting held in the Charles George Memorial Arena on Tuesday, April 18 doesn’t have the “force of law”.  In a 13-page order filed in Tribal Court on Wednesday, April 26, Judge Sharon Barrett, temporary associate judge, wrote of several issues surrounding the meeting including a lack of advance notice to all EBCI tribal members, irregularity in voting, and lack of precedent regarding the rules and procedures used.

The Order was the result of a hearing held on Monday, April 24 on new motions filed on Friday, April 21 by EBCI Attorney General Danny Davis on behalf of Principal Chief Patrick Lambert.

“Although the convening of the Grand Council is also a custom, tradition and precedent of the Eastern Band of Cherokee Indians, tribal law does not detail the procedures that govern, nor is it provided in tribal law that Grand Council enactments have the force of law,” wrote Judge Barrett.  “At this time, Plaintiffs have not shown that Cherokee custom, tradition or precedent give the enactments of a Grand Council the force of law, especially in the absence of subsequent action thereon by the Tribal Council.”

Judge Barrett also stated that even if the Grand Council did carry the force of law, the meeting held on April 18 was not conducted “in accordance with the laws, customs, traditions and precedents” of the Tribe.  She further wrote, “Specifically, given the lack of a showing of proper notice, the Court does not conclude that the Grand Council meeting of April 18, 2017 was ‘a Grand Council of all enrolled members’ under Section 10 (Charter and Governing Document).  Plaintiffs have merely shown that there is opposition within the tribal community to the impeachment proceedings that have been commenced before Tribal Council.”

Proper prior notice to EBCI tribal members and the adoption of rules and procedures were two sticking points for Judge Barrett in this case.  She pointed to two prior Grand Council meetings as precedent.

“Grand Council was called in 1979 by Principal Chief Crowe to consider a proposal to adopt a new Constitution for the Eastern Band of Cherokee Indians,” Judge Barrett wrote.  “Notice of the scheduled Grand Council was published repeatedly in the One Feather beginning more than a month before Grand Council was held.”

She noted that Principal Chief Joyce Dugan called “multiple” Grand Council meetings during her term in the mid-1990s.  “Advance notices of the scheduled Grand Councils, and of meetings of the Grand Council Organizational Committee that was established to plan for the Grand Council, were published repeatedly in the One Feather.”

Of the April 18, 2017 Grand Council, Judge Barrett noted, “The process of providing notice to the Tribe began on or about Tuesday, April 11, 2017 by Plaintiff Chief’s posting on Facebook.  Notice was not published in the One Feather.  No evidence was offered that notice of Grand Council was provided to all enrolled members.”

The voting processes used at the April 18 Grand Council meeting were also an issue and Judge Barrett noted that Cherokee Election Board members expressed concerns over those processes.  “These concerns include: a) Failure to assure that people at Grand Council signed in according to a standardized method; b) Lack of standardized method of ensuring the tribal enrollment status of voters; c) Lack of a standardized accountability for ballots either distribution, completion or submission; d) Lack of a procedure for certifying the results of the votes taken, and e) The Election Board received reports of voter irregularities such as observation of actual voting, instruction on how to vote and coercion in voting.”

The rules and procedures of Grand Council were also discussed in the Order.  Evidence was given during the hearing that during the 1979 Grand Council meeting it was decided that a quorum would consist of at least 500 voting members present.  The same number was used for a February 1996 Grand Council meeting.

Both of those meetings also contained Rule 8 which read, “Passed Resolutions shall be presented to the Executive and Legislative branches of Government within 30 days.  This shall be done in a special session of the Tribal Council called by the Chief.”

The rules and procedures approved for the April 18 Grand Council meeting said a quorum “shall be those tribal members present at the time of the meeting.”

That meeting also contained Rules 20 and 21 which read as follows, “Rule 20: All resolutions that are passed in Grand Council will become law immediately upon proper confirmation and ratification by the Grand Council, and service of the confirmed and ratified resolution on the Tribal Council Chairman and Attorney General of the Eastern Band of Cherokee Indians.  Rule 21: Any act of Tribal Council can be rescinded and killed by a majority vote of the Grand Council.”

Judge Barrett noted, “These rules plainly vary from the rules of prior Grand Councils in numerous, significant ways…”

Plaintiffs also asked that an injunction on the impeachment proceedings be granted until a Tribal Census could be completed as the last one was performed in 2001 and differences in the weighted vote given to each Tribal Council representative could have changed.  That portion was denied by Judge Barrett who wrote, “While voting weights might require adjustment, it is also possible that the mapping and census work might lead only to minor changes that would not impact the outcome of Tribal Council votes in connection with this case, or other legislative matters.”

Judge Barrett went on to state, “Such an injunction would have the effect of stopping, or calling into question, every enactment by Tribal Council (except those that are unanimous) until the mapping and census is complete.  This would greatly alter the status quo, rather than preserve it.”

The Order did grant the motion that the Defendants cannot enforce Res. No. 547 (2017), a resolution passed by Tribal Council that called for the immediate suspension of Chief Lambert.  Also in Wednesday’s Order was the following, “The Cherokee Supreme Court entered its order on April 21, 2017 staying impeachment proceedings; the prompt entry of this order is intended to assist in expediting appellate review, not to interfere with or contradict the rulings of that higher court.”

Previously, on Friday, April 21, Acting Chief Justice Brenda Toineeta Pipestem granted a motion for stay on the impeachment proceedings.  “The Court, under Rule 62(f) of the N.C. Rules of Civil Procedure, extends the stay over the impeachment proceedings that are currently pending before the Tribal Council until the completion of proceedings in this court and an Order is issued.”

Those arguments will occur on Tuesday, May 9 at 10am at the Tribal Courthouse.

On Wednesday, April 19, Tribal Council approved Res. No. 562 (2017) whereby they amended the Impeachment Hearing Date to Tuesday, May 2 – a date that is now invalid due to Acting Chief Justice Pipestem’s ruling.