By ROBERT JUMPER
Tutiyi (Snowbird) and Clyde, N.C.
I think it is important for our community to read and understand a dialogue that accompanied a vote in Dinilawigi (Tribal Council) regarding legislation submitted by the Office of Internal Audit and Ethics. The discussion revolved around a piece of proposed legislation submitted by Sharon Blankenship, EBCI (Eastern Band of Cherokee Indians) Office of Internal Audit, on behalf of the Audit and Ethics Committee.
Section 117-45 of the Cherokee Code deals with “Standards of ethical conduct.” Specifically, the legislation requests that subsection 5.a. be added to 117-45 which states, “In extenuating circumstances, a Tribal official may request a limited waiver from any provision of 117-45.3 (this is the actual itemized ethics requirements) by submitting a written request to the Office of Internal Audit and Ethics in accordance with that office’s rules of procedure. Limited waivers will not be considered after the fact.”
I would like to offer this dialogue as commentary so that the community may make their judgments concerning what was said during the discussion. It is my opinion that the ethics policy for our tribe needs to be as strong as possible, and the administering agency and committee must have the authority to completely enforce that policy. Laws should not be made just to police those individuals who are currently in seats of office. Laws should be made with an eye toward the future of our tribe. We can have a government that is running like a well-oiled machine with all branches working in lockstep and we can still need checks and balances to ensure the public trust is being satisfied.
As Taline Ugvwiyu (Vice Chief) Alan B. Ensley accurately pointed out, the tribal government works “for the 16,000, not a certain few.”
Just a personal note: I was taught in media and marketing classes, and it has been a truism in my career; perception is reality to your audience, or in this case, your constituents. It is just as important to be aware of how your community perceives you as it is what or who you really are.
These quotes have been edited for length and readability. The video with the exact quotations is on the Cherokee One Feather Facebook page.
After Sharon Blankenship introduced the legislation, Dinilawigi Chairman Michael Parker recognized Joey Owle. At the beginning of his remarks, he noted he was unable to locate a work session that Blankenship had alluded to as being held on Sept. 17, 2024, for this ordinance change. I also did a cursory search for that video and was unable to locate it.
Owle, Wayohi (Wolftown) and EBCI member said, “I was very interested in this amendment to the ordinance to our tribal law specifically around the proposed addition of section 117-45.5 unlimited waivers and what qualifies as an extenuating circumstance in which a tribal official may request a limited waiver from any provision under 117-45.3 which speaks to the code of ethics. I could go over a host of scenarios that could be very concerning in terms of tribal officials having business interests that may be on a Business Committee that has previously requested exemption from part of the Code of Ethics that relates to a contract that they have business interests in maybe not directly but maybe also their family member. Perhaps Sharon could go over and define what an extenuating circumstance is.”
Sharon Blankenship, commented, “This is something that we address internally in our policies and procedures. This would be in special circumstances and will need to be considered on a case-by-case basis. We can’t give an exhaustive list of what would qualify under that but there are situations where there is a service that a tribal official can provide to our tribe that’s not available elsewhere so it would be situations like that where there are goods and services that can be readily available that where tribal official could apply. So, it’s on a very limited basis. There’s a process that you must go through to request that limited waiver then it has to be reviewed by the Ethics Review Committee and approved by the Ethics Review Committee.”
Owle noted, “That speaks to the concern that I bring and maybe the public also would share in that you could have a tribal official who has maybe a consulting business that is TERO-certified (where there are clear rules and standards to meet). Regarding the proposed ordinance change, it should be concerning in terms of not only nepotism that could be applied from a tribal official to one of their children who have taken ownership of a business or that you may have business interests and recreate this circular system in which, for example, I’ll request a waiver because I can provide a business service consulting strategic planning whatever it may be to the tribe and now I’ll just request that the system is set up to where you can line your pockets as a tribal official if that request for exemption is granted. I would be hard-pressed to say why that would be granted with your tribal official whether in the executive office or in the legislative branch that you’re then beginning to find an opportunity for profiting on a newly carved out exemption if you’re able to demonstrate that you’re the only one that can provide that service to the tribe which again would be hard-pressed to say that there are other businesses other tribal members who are not tribal officials that could provide that service. This is a very slippery slope here on that last section I think that you all should be concerned about. I would recommend this be tabled for further discussion or that section 117-45.5 be revised or cut. I think it provides for a very circular, dangerous scenario in which tribal officials can begin to gain approved contracts for themselves and through this body since there’s such a great relationship as expressed by the Vice Chief for the first six months of his administration. ‘The relationship has never been better between the legislative body and executive body’. To me, that sounded an alarm, saying that there are very few checks and balances that are going to be in place between the bodies. I wanted to state publicly today that this creates a very dangerous scenario for how our tribal government might operate.”
Kolanvyi (Big Cove) Rep. Richard French said, “I’m speaking for myself regarding that comment that Vice Chief Ensley made. This Council and this Executive are working better than anything that I’ve worked on in my ten years here. I don’t think that’s a buddy-buddy system. I think that’s what the people wanted to put in here. They directed us to work together and move this tribe forward. That’s what we’re doing. It’s not that there are favors or whatever you might be insinuating. This Tribal Council is working its tail off along with the executive to move this tribe forward. The reason this council is working a lot better is because we’re getting a lot of the facts that we didn’t used to get. We are getting honesty brought to us. We are at the table. Decisions are made by 14 people: 12 legislators and 2 executives. That hasn’t happened in a long time here. That’s why things are working better because we’re all at the table. We’re all working together.”
Blankenship concerning extenuating circumstances said, “That’s something we handled through internal policies and procedures. We don’t take it lightly. It’s going to take heavy consideration. An example of something that might qualify under that position is the Cherokee language. There are very few Cherokee language speakers, so if you have a tribal official who speaks the language but can also provide those services to the tribe that is something that would be exempted.”
Ugvwiyuhi (Principal Chief) Michell Hicks said, “Just in regards to this request, I’m not sure where this language came from, and as it relates to my position, my signing of the oath. If there’s any reference to my former company, no names were mentioned, but you know my wife has full ownership of that company. That company does not bid at all on any tribal work. If there’s any insinuation around that then you’re absolutely wrong. Even moving forward there would be no intent to try to negotiate that with any tribal leader or anything of that nature because it is an ethical question. I just want to clear the air on that so that you know there’s no speculation that that is occurring or could potentially occur in regards to Chief Strategy Group as it relates to this particular waiver. I have no doubt Sharon would do the proper work. I haven’t seen in the 15 months of office this come to light. But I do see your point as it relates to the language speakers where that potentially could come into play. I see where there might be isolated instances. In regards to giving one of the 14 here unfair treatment toward a family member, I haven’t seen that. If that does come to the table, obviously I feel comfortable that this body and the executive body will address it appropriately in the right manner. I just want to make sure I’m clear as it relates to this particular waiver. That was not driven by the Chief’s office by any means.”
Owle noted, “That there could be tribal officials that speak in the Cherokee language is as far less likely than a tribal official actually having a business providing consultation or whatever other services, the latter being a more likely of a scenario that could be coming to fruition and additionally when it comes to the information and perhaps sharing could elucidate is how are these waivers that are granted for whatever reason going to be made public? Are they considered part of a public document under Chapter 132? Is that something that can be requested? How would Internal Audit monitor business contracts that are passed? Business Committee, since it’s a closed session, do they regularly audit those contracts for adherence to the Code of Ethics to see where any elected official votes on a certain contract to understand if there are conflicts of interest with immediate family members or themselves? I appreciate the Chief’s comments. I think that is a good example to reference as you know I’m I have gone in Internal Audit to just inquire about how they individual who becomes an elected official, who had contracts with the tribe perhaps 10s of thousands hundreds or thousands of dollars come into office and then how do they verify that that person is no longer the owner of the business? It was related to me that it’s just kind of good faith. They said they did there’s no verification. We don’t know how some of these checks and balances are occurring. It’s just by good faith. That’s what they said. I think legislation could create a very slippery and dangerous scenario in which there could be a circular economy for any tribal official that might find a loophole, this being that loophole, saying well I can provide this service I am a TERO certified vendor and I’m the only one that can provide this for us so now we take it to Business Committee and approve that contract. And perhaps that continues for cycles in which that person begins to profit.”
Blankenship commented, “Yes we do come and do audits on contracts. We have access to all the tribe’s contracts. We’re currently developing a process where we review contracts that are held by tribal officials so we can address those.”
Taline Ugvwiyu Ensley said, “I take a lot of pride when I stand up and say that this executive office weren’t so good with this Tribal Council. I don’t mean we agree on every issue that comes in. I didn’t agree with the legislation this morning but we’ll work together. I’ve worked with I believe five different chiefs in my time being here. In this administration, we’ve had more council meetings in the Chief’s office, in my office. We all work together I don’t mean we all would agree on every issue that comes in here. I supported it (the formulation of the ethics code) when it first came about years ago. We know our community and our constituents have concerns. We’re a billion-dollar industry. We support being the audited on all of our tribal programs but to insinuate something gone awry, that it just isn’t good for our community. It just gets everybody up in the air. We want to be transparent. We are transparent. I used to keep a bunch of book laying on my office desk and when our people come in I want them to see where all of our tribal money’s spent. We all have families. Myself and the Chief, we sign off on every employee that’s hired. If one of our relatives comes in, we usually to get a legal opinion from Mike McConnell (Attorney General) if we can sign off on it or what we need to do. It just frustrates me that somebody would insinuate that it ain’t good for Tribal Council and the Executive to work together. We worked for 16,000, not a certain few. There’s nothing to be hide here and we support Internal Audit in all their endeavors.
Tsalagi Gadugi (Cherokee County)/Tutiyi (Snowbird) Rep. Adam Wachacha said, “To beat be back on the perception of tribal officials, I’m halfway in agreeance with not leaving so broad and maybe highlight what an individual could do. As an example when I was thinking of the kind of the foods already thing too, if there was ever something happened life COVID again and you’ve got farmers that because there’s 14 but there’s a bunch of tribal officials actually to be able to look at that extenuating circumstances but those have been few and far between because let’s say there’s COVID and hurricane Helene has an extenuating circumstance. I don’t know if it should be listed instead of like leaving it wide open. The public may want more and there’s not been any discussion in Snowbird about this but I think there could be or there may be just with some of the perceptions that you know that the trial official could use their position or their business because they have a business major and I’ve been looking at other opportunities for business myself away from the tribe. If it’s something that the tribe needed one day and that could be an extenuating circumstance that might be an opportunity for an individual. I’ve always told the individuals that leaving look at public services like well if you have a business you basically have to give that business up because you’re going to go into you know the boundaries of Internal Audit and Ethics. They have to weigh that decision out if they want to be a business owner or if they want to be a tribal official, because the two don’t cross. I would be okay with kind of specifying what an extenuating circumstance would be so it would kind of help ease the minds of anybody in our public for basically having a broad approach to what a tribal official can or can’t be and if it specifies especially Cherokee language then I think that would be something that everybody could be in agreeance too because those are very few and far between there’s not anybody on here that’s a fluent speaker that would even qualify. Not the saying they can’t go through the courses or any future representatives couldn’t do that but at least that would be open but that that would be kind of my hopes and the only amendment that I could look at is kind of striking most of this or striking it all and just looking at extenuating circumstances such as Cherokee language teacher and kind of put the rest of it in there took to fit that.”
Aniwodihi (Painttown) Rep. Michael Stamper said, “This legislation would then allow you guys to create a process with which you further define what that waiver would be considered as something that successful or not so this is just getting the process started you guys would then go into greater detail as to how you would grant that limited waiver in the future what circumstances would present themselves to be accepted. I’m fine with this language right as it is I’m also welcome to creating a another amendment to the definition page that highlights what extenuating circumstances are to add that in the Code that’s what the definition section is 4 in the Code. I think this is something that outlines a good process and highlights where we are as a tribe moving forward.”
Ugvwiyuhi Hicks noted, “Everybody has assets here. Some choose to use those assets in different ways. You may be a farmer. You may have rentals. There’s nothing in the oath that says that a tribal leader cannot have ownership in a business. There’s not one thing that I’m aware of. I think that’s a misconception. How you use that asset, like you come in and try to bid on tribal work. Now that’s a different story but there is nothing legally that says any of these individuals cannot own a business. That needs to be clear for the community. How you use the business is where the ethical question is. I do appreciate my relationship with this Tribal Council. I feel that we are transparent. I feel that we work hard together. We work on tough issues. Joey you brought up a great question here and I think it helps to clarify some of these points. When it comes to legalities, any official can own a business. How do you apply the businesses and where is the question.”
Kolanvyi Rep. Perry Shell said, “I believe everybody here has the best interest of the tribe at heart. I don’t always agree with the Principal Chief, or the Vice Chief, or Richard, or anybody else around this table and I don’t agree with anyone 100% but at the end of the day this is for the people, and we have to work together. I think in the past there’s been so much animosity, so many things going on. I think it’s good that we do this. I’m glad we’re having this discussion today. Extenuating circumstances will be hard to determine because we don’t know. After all, they are extenuating.”
Michael McConnell, EBCI attorney general said, “There’s nothing saying of tribal official cannot own a business and benefit from that business. The ethics code and tribal law comes in to say if you’re in a position of power you can’t use that power to you know make yourself a sweetheart deal that kind of thing. Everyone stands behind that prohibition. I’ve never had anybody at the tribe say just don’t pay attention to that. That’s not the case. The tribal leaders I’ve worked with have all been very careful and responsive to the Ethics Committee. This waiver also has a benefit in that it allows a tribal official who is within this group of people who has to abide by these laws, it allows them to go into the Ethics Committee and say “I’m thinking of doing this. Is it okay? Is it not OK and can I have a waiver?” That way it actually increases who knows who’s doing what. It increases scrutiny of their behavior so in that sense that there could be some considerable benefit to having this process in place.”
Dinilawigi Chairman Parker called for the vote on this legislation. All voted in favor except Rep. Wachacha, who voted against.
