By SCOTT MCKIE B.P.
One Feather Asst. Editor
CHEROKEE, N.C. – The Department of Justice was created for the Eastern Band of Cherokee Indians (EBCI) with the passage of Ord. No. 118 on Feb. 4, 2016. This legislation also set an Attorney General as the director of this new department.
The whereas section of the ordinance explains why the department was put into Code at that time. “The provisioning and management of legal services to the Eastern Band of Cherokee Indians has no clear governmental mandate; and currently the responsibility for the provisioning and management of legal services to the Eastern Band of Cherokee Indians is not organized or centrally managed and comes from a number of sources, including the Office of the Attorney General.”
It continues, “A centralized structure and mandate for the provisioning and management of legal services to the EBCI will provide enhanced accountability and efficiency of use of tribal resources.”
Cherokee Code Section 114-1(a) establishes the department and sets its director as the Tribe’s Attorney General. Section 114-1(b) states, “The Attorney General shall be a lawyer duly licensed in the State of North Carolina and in the Cherokee Court and shall serve as the Tribe’s chief legal counsel. The Attorney General shall be appointed by the Principal Chief and shall serve at the discretion of the Principal Chief.”
Section 114-2 outlines the duties of the Attorney General as follows:
- To prosecute or provide for the prosecution and defend or provide for the defense of all actions in which the EBCI, including any of its departments, subdivisions, enterprises, boards, committees, or programs shall be interested, or a party, and to appear for the EBCI in any other court or tribunal in any cause or matter, civil or criminal, in which the EBCI may be a party or interested. The primary source for all legal services for the EBCI is the Attorney General.
- To engage and manage outside legal resources as are reasonably necessary to protect the best interests of the EBCI and to maintain autonomy for Tribal entities and subdivisions where required by Tribal law.
- To direct and manage all lawyers within the Department of Justice, including the civil and criminal divisions.
- To consult with legal counsel for the Tribal Council and legal counsel for the Principal Chief to ensure that there are open lines of communication among all legal service providers engaged or employed by the EBCI.
- To engage outside independent counsel for such boards as is necessary to provide for the fair administration of justice, not inconsistent with the powers granted to boards or enterprises by the Cherokee Code.
- To investigate a discrimination complaint filed by a covered employee against the Office of Internal Audit in accordance with Cherokee Code Section 96-6(b).
The final duty, found in Section 114-1(f) was added with the passage of Ord. No. 362 on Sept. 8, 2016. The whereas section of that ordinance states, “There is a need to statutorily protect all tribal and tribal entity employees who make disclosures evidencing illegal or improper government activities; and the intent of this ordinance is to strengthen and improve protection for the rights of tribal and tribal entity employees, to prevent reprisals, and to help eliminate wrongdoing with the tribal government.”
Ord. No. 118 also established a Prosecutor’s Office for the EBCI. Section 114-3 states, “There shall be a Prosecutor’s Office within the Department of Justice, which shall be under the direction of a Chief Prosecutor hired by the Attorney General.”
Section 114-3(b) states the duties of the Chief Prosecutor as:
- Ensure that justice is served through the prosecution in a timely manner and in the name of the EBCI all criminal actions and infractions requiring prosecution in Cherokee Court;
- Direct and manage such assistant prosecutors as are hired within the Prosecutor’s Office; and
iii. Cooperate and coordinate with all law enforcement agencies to assist in the development of criminal cases to ensure timely and successful prosecutions.
Section 114-4 deals with any lawyers who are employed by the EBCI but are not in the Department of Justice. It states, “Legislative counsel to the Tribal Council and executive counsel to the Principal Chief are not employees of the Department of Justice and are not managed by the Attorney General. However, the Attorney General shall coordinate regular meetings and communication among the Attorney General, legislative counsel to the Tribal Council, and executive counsel to the Principal Chief to ensure coordinated and efficient provision of legal services to the EBCI.”
The definition of “Attorney for the Tribe” is set forth In Cherokee Code Chapter 15 (Criminal Procedure) Appendix A as follows: “(A) The Attorney General or an authorized assistant or deputy; (B) The Tribal Prosecutor or an authorized assistant; and (C) Any other attorney authorized by law to conduct proceedings under these rules as a prosecutor.”
