By ROBERT JUMPER
One Feather Editor
CHEROKEE, N.C. – At just after 10 am on Friday, Feb. 10, the Cherokee Supreme Court convened to hear an appeal in the case of Benjamin Cody Long. Long was found guilty of “misuse of Tribal property’ on Oct. 14, 2021 (20CR465). While not in attendance at court, Long, through his attorney Andy Banzhoff, asked to have his conviction vacated for misuse of tribal property, a conviction that came as a part of a larger case brought from a network breach. The larger issue of the breach itself was not determined to have anything to do with Long. The conviction had to do with an unauthorized access to the tribal network.
According to Banzhoff, the conviction was based on a section of the Cherokee Code, Chapter 14, Section 70, Subsection 42C1, which states:
Misusing Tribal property. It shall be unlawful for a person in possession of or charged with the safekeeping, transfer, or use of Tribal property to:
- Without lawful authority appropriate the Tribal property or any portion of it to his own use or use of another.
Banzhoff said that it was questionable as to whether Long was under any obligation to adhere to the direction of his former superiors to cease to use the tribal network since, at the time of the incident, Long was suspended and relieved of all his duties. Banzhoff also focused on language in the Code that states “to his use or the use of another”. He contended that, since there was no documented action other than accessing the network, Long’s accessing the network did not rise to the level of a violation of the Code SS 14-70-42C1.
Banzhoff, reading from a document prepared and supplied to the Court and the EBCI (Eastern Band of Cherokee Indians) Prosecutor’s Office, also questioned the timing of when Long might have accessed the network. He indicated that there might be some question as to whether Long accessed the network before or after his suspension. The attorney also challenged the testimony of Doug Chase, Tribal Information security officer, who was introduced as a lay-witness, not an “expert” witness. Banzhoff suggested that Chase gave testimony beyond the parameters defined for lay-witnesses and had used reference materials beyond his own personal knowledge.
Tribal Attorney Cody White addressed the Supreme Court, responded to the three areas of challenge by the appellant. He explained that the judge in the trial had addressed the section of Code 14.70.42C1 and had ruled that the use and action described in this case did fit the definition outlined in Code. White also disagreed with the idea that Long might not have had a duty to comply with the direction of his supervisor to not be on the network using his OIT (Office of Information Technology) credentials. He said the Code violation would apply regardless of Long’s status as an employee. White also pointed out that the decision of the jury in October 2021 was unanimous.
On the subject of the testimony provided by Chase, White said that the trial judge had ruled on his testimony and found it to be in order. White also stated that he thought that Chase’s testimony substantially agreed with that of the defense’s expert witness on the tribal IT logs and their interpretation.
White also addressed a question that was asked by the Court concerning a phone that had apparently been the device that Long used to access the network. According to White, ownership of the phone was determined to be Long’s, but the SD card or chip in the phone was the property to EBCI.
The Supreme Court will now deliberate and create an opinion or ruling on the appeal. There is no time limitation on the Court as to the timeframe for finalizing a ruling on the appeal.
