Published On: Thu, Apr 13th, 2017

Rep. McCoy’s Impeachment injunction denied in Tribal Court

 

By SCOTT MCKIE B.P.

ONE FEATHER STAFF

 

A Cherokee Tribal Court judge has denied a preliminary injunction against nine representatives of the Tribal Council of the Eastern Band of Cherokee Indians.  The injunction, filed by Big Cove Rep. Teresa McCoy, was denied by Judge Sharon Tracey Barrett, Cherokee Court Temporary Associate Judge, on Tuesday, April 11.  The nine representatives listed as defendants included: Tribal Council Chairman Bill Taylor, Vice Chairman Brandon Jones, Birdtown Rep. Travis Smith, Birdtown Rep. Albert Rose, Painttown Rep. Marie Junaluska, Cherokee County – Snowbird Rep. Adam Wachacha, Wolftown Rep. Bo Crowe, Yellowhill Rep. Anita Lossiah, and Yellowhill Rep. B. Ensley.

Rep. McCoy was seeking injunctive relief against the nine Council representatives on several issues.  Per the Order on Preliminary Injunction filed in Tribal Court by Judge Barrett, Rep. McCoy sought to prohibit the defendants various actions such as: considering agenda items related to the impeachment of Chief Lambert “until they have complied with all provisions of the Cherokee Code and Charter” and “set Plaintiff’s Petition for hearing and conducted a hearing as required by the Cherokee Code”, conducting meetings relating to Tribal Council without proper notification to all representatives, conducting any votes or decisions during meetings outside of the regular monthly session, holding “secret meetings”, retaining legal services “unless the retention and approval is properly included on the agenda of a regularly scheduled Tribal Council meeting”, and conducting any impeachment hearings of Chief Lambert until a tribal census is done.

One of the reasons given by Judge Barrett for the denial of the injunction was sovereign immunity.  She pointed to Cherokee Code Section 1-2(i) which states, “None of the foregoing language is intended to grant a waiver of sovereign immunity against the Eastern Band of Cherokee Indians so that a temporary restraining order or preliminary injunction may be entered against the Eastern Band of Cherokee Indians or any agent or official acting in their official capacity, ex parte or otherwise, unless said action is instituted by the Eastern Band of Cherokee Indians against said agent or employee or official.”

The Order stated, “This case is plainly not an action instituted by the Eastern Band of Cherokee Indians, but rather is an action by one member of Tribal Council against others.  Thus, the Court finds and concludes that this Court is not empowered to award the injunctive relief requested by Plaintiff…”

Judge Barrett went on to state, “…even if there were no issue presented with respect to sovereign immunity under the Code sections above, the Court finds and concludes that the granting of the requested preliminary injunction is not supported based upon considerations arising from for the separation of powers, as well as implications of the political question doctrine, legislative immunity, and issues of standing.”

Rep. McCoy was represented in the case by John D. Noor, an Asheville-based attorney with Roberts & Stevens. P.A.  On Wednesday afternoon, he told the One Feather, “Councilwoman McCoy is very disappointed with the Court’s decision and is actively evaluating her appeal options.”

This is the second injunctive-type relief Rep. McCoy has sought in the past weeks.  On Wednesday, April 5, she filed a Temporary Restraining Order against the same nine Tribal Council representatives named in this case in an attempt to keep them from “introducing or considering any articles of impeachment or anything related to the impeachment of Chief Lambert”.

That motion was also denied by Judge Barrett who wrote in her ruling on that motion, “At this early stage of the litigation, before the Defendants have even had an opportunity to appear and defend themselves with respect to the relief sought, the Court finds and concludes that there has been an insufficient showing…”

Christian Siewers, who represented the defendants in this matter, declined to comment further on the issue.