Cherokee Supreme Court reverses Election Board decision in McCoy case

by Apr 30, 2019Front Page, NEWS ka-no-he-da





Teresa McCoy’s name will appear on the primary ballot as a candidate for Principal Chief for the Eastern Band of Cherokee Indians (EBCI).  Previously denied candidacy for the office of Principal Chief in several rulings by the EBCI Election Board, McCoy had her appeals case heard before the Cherokee Supreme Court on the afternoon of Monday, April 29, and the Court issued an order at 10 p.m. on Monday to vacate and reverse the Board’s decision.

“The Court, based upon review of the record and briefs, and consideration of oral arguments, hereby vacates and reverses the decision of the Board of Elections denying certification to Teresa McCoy as a 2019 candidate for the Office of Principal Chief of the Eastern Band of Cherokee Indians,” reads the order.  “The Court hereby orders the Board of Elections to certify and place Teresa McCoy on the primary ballot as a 2019 candidate for the Office of Principal Chief of the Eastern Band of Cherokee Indians.”

The order went on to state, “Due to the extremely compressed schedule prior to the beginning of the June 6, 2019 primary election as set out in Chapter 161 of the Cherokee Code, the Court issues this order without a written opinion.  A written opinion will be forthcoming at a later date.”

In a hearing that took almost four hours, McCoy, a resident of the Big Cove Community, had her case argued by Jamie Kilbourne, former prosecutor for the Eastern Band of Cherokee Indians (EBCI). The hearing was held with both legal teams having short time-spans due to the fact that tribal code states that absentee ballots have to be available by Wednesday, May 1 – less than two days away from the hearing time.

McCoy was initially denied candidacy by the EBCI Election Board in a letter dated Monday, April 1 which alleged that she did not meet the requirements set forth in Cherokee Code Section 161-3(d)(2) and Section 17 of the Tribe’s Charter and Governing Document.  Following this initial denial, she filed an appeal and a hearing was held on Tuesday, April 9.

The Board issued a ruling on her appeal on Monday, April 15 in which they affirmed their initial ruling and stated in a letter, “Following the submission and presentation of additional information at your appeal hearing, the Board has determined that you do not satisfy the requirements to be a candidate for the position of Principal Chief as set forth in the Elections Code.  The information presented at your appeal hearing did not disprove the underlying issues involving your conduct that we concluded constitute actions that both ‘defrauded the Tribe’ and aided or abetted, counseled or encouraged Kathie McCoy in defrauding the Tribe.”  The One Feather requested a copy of the appeal ruling from the Board, but that request was not fulfilled by press time.  The copy of the ruling referred to in this article came from Teresa McCoy.

The allegations against Teresa McCoy stem from a trip that she and Kathie McCoy took to a January 1996 NAGPRA (Native American Graves Protection and Repatriation Act) consultation at the University of Alabama.  The Board alleges that Teresa McCoy received a travel check from the Tribe totaling $432 as well as receiving a consultation fee from the university totaling $1,500.60.

An investigation was launched by the Cherokee Indian Police Department in 1997, but Teresa McCoy was never charged in the instance by tribal, state, nor federal officials.

Monday’s (April 29) hearing was held before Cherokee Supreme Court Chief Justice Kirk Saunooke and Associate Justices Brenda Pipestem and Robert Hunter.

Kilbourne argued throughout the hearing that Teresa McCoy’s due process rights were violated by the Election Board.  He pointed to the fact that only a small portion of the initial Cherokee Indian Police Department investigation was entered into evidence weighed by the Board.  “Over 1,000 to 1,500 pages were in the original investigation.  We only have 45 pages.  Had the full 1,000 pages been available, we feel Ms. McCoy would have been exonerated.”

Calling the Election Board’s appeal hearing a “quasi-judicial hearing”, Kilbourne went on to argue, “We feel the Election Board over-simplified the concept of fraud.  She did not defraud the Tribe.  She never had any intent to defraud the Tribe.”

He said it’s been a 22-year-old fight and that there was no standard of proof.  “All we’re asking for is equal protection under the laws.”

Kilbourne said he felt it was a gender issue as well.  “We believe that the choice to not certify either of the female candidates for Principal Chief is very problematic.”

Associated Justice Pipestem questioned this stating that five of the six members of the Election Board are female.  “What evidence is on the record that I can look at other than just your personal beliefs?”

Kilbourne answered, “I think we just look at it that two women came up and two women went down.”

He raised issues with interviews conducted prior to the Election Board issuing its initial ruling.  “We don’t know what documents were in front of them because they were not produced at the hearing….she did not have a hearing that allowed her a reasonable chance for a defense.”

Kilbourne further stated, “The statute (tribal law) has inherent problems.”

Stating that tribal members have a right to choose, he noted, “Let the people elect their own leaders.”

Chris Siewers argued at the hearing on behalf of the Election Board, “That is a clear law starting with the Lloyd Welch Constitution.  If you’ve defrauded the Tribe or aided and abetted to defraud the Tribe, you lose your right to hold public office, period.”

He discussed the documents contained in the 1997 Cherokee Indian Police Department investigation and noted, “We simply don’t have those documents.  They’ve been lost to time.”

Justice Hunter inquired about the interviews conducted that the Election Board used and said, “What bothers me is nowhere is there sworn testimony.  It does raise issues here.”

Siewers noted, “The only time there was sworn testimony was at the appeal hearing.”

He said the Board acted in accordance to tribal code and added, “The Board acted in conformance with what’s been done in the past.”

Justice Hunter further asked, “Does the Election Code satisfy the process set out in the Indian Civil Rights Act?”

Later in the hearing, Siewers said he felt the case was simple, “If you take money from the Tribe that you’re not entitled to, then you’ve created a fraud against the Tribe.”

He said the Board did act accordingly and said, “The court has never said that all of this evidence had to be taken under oath.  This entire hearing today has been mostly about procedure and not about the facts.”

In closing rebuttal remarks, Kilbourne took shots again at the way the initial interviews were conducted, “Many of the interviews took place behind closed doors.  She was fighting against evidence that she wasn’t aware of.”

He said fraud has never been defined in tribal code, “They’re (Election Board) basically saying, ‘I know it when I see it’.  That can’t be the standard that is applied across the board…this particular case is an example of what happens when you don’t have due process.”

At the end of the hearing, Justice Pipestem inquired as to a deadline the Election Board needed their decision by in order to print the ballots to be made available to absentee voters.  While a deadline was not given during the hearing, the ballots, by Code, have to be available by Wednesday, May 1.

Per Justice Saunooke, neither recording devices nor cameras were allowed into the proceedings.