Tribal member fights for access to possessory land

By BROOKLYN BROWN BIGMEAT

One Feather Reporter

 

BRYSON CITY, N.C. – Scott Welch is a member of the Eastern Band of Cherokee Indians (EBCI) from Tsisqwohi (Birdtown). He is the possessory holder of tribal land on Cooper’s Creek Road that borders the Great Smoky Mountains National Park and the Qualla Boundary in Swain County.

It also borders the privately owned Cooper Creek Trout Farm of Gerry Laschober, a non-enrolled person.

Welch said his first memories of his land on Cooper’s Creek are from when his family acquired the land in 1970 when he was seven years old. He said he used the land for decades to hunt, camp, spend time with family and friends, and find solace in the ancient mountains of his tribe.

But in the last several years, Welch has not been able to access his land. He has been barred access via a gate erected by Laschober, who argues that Cooper’s Creek Road is a private road that Welch does not have access to. Welch says he cannot complete the upkeep of his property that he maintained pristinely for years.

Welch maintains that State Road (SR) 1355, Cooper’s Creek Road, is a public road 3.6 miles long, giving access to his property.

Welch has an official letter detailing the mileage of the road as 3.6 miles from then-North Carolina Department of Transportation (NCDOT) Data Compilation Section Manager Hardee R. Cox dated Dec. 12, 2006.

He also has an official letter dated Jan. 23, 2009, from NCDOT Engineer J.L. Woodard stating in part, “This road segment passes through the Cooper Creek Trout Farm and terminates at the Great Smoky Mountains National Park boundary. Our records indicate this segment of the road is public. The owner of the trout farm believes it is private. In early 2007, the Department of Transportation (NCDOT) began receiving complaints about a gate blocking the road at the southern end of the trout farm. In response to the complaints, NCDOT reviewed its records regarding the official length of the road included on the state highway system. Our records indicate that the official length is 3.60 miles from the intersection of US 19. The gate erected by the owner of the trout farm is located 3.26 miles from US 19.

The property owner has refused our requests to remove the gate, insisting that the road is private. On Sept. 9, 2008, we attempted to remove the gate, however, the property owner had blocked our access to the gate with a car…It is the position of the NCDOT that this road is a public state-maintained road. For the road to become private, it must be abandoned from the state system and be declared private. Declaring the road to be private, after abandonment from the state system requires County action.”

On July 14, 2011, Resolution No. 789 (2011) was passed unanimously in Dinilawigi (Tribal Council) and later ratified by Ugvwiyuhi (Principal Chief) Michell Hicks. The resolution was submitted by the Office of the Attorney General and reads as follows:

WHEREAS, a gate has been erected at the entrance of the Cooper Creek Trout Farm in Swain County; and

WHEREAS, this gate blocks access to the final .2 mile of Cooper’s Creek Road and specifically blocks access to Scott Welch’s possessory holding in the Birdtown Community; and

WHEREAS, the Tribe needs to pursue all available legal remedies to keep Cooper’s Creek Road open to the public on behalf of Scott Welch and the entire Tribe.

NOW, THEREFORE BE IT RESOLVED by the Tribal Council of the Eastern Band of Cherokee Indians, in Council assembled, at which a quorum is present, that the Attorney General’s Office is authorized to pursue legal action to remove the gate and re-establish public access along Cooper’s Creek Road in Swain County, North Carolina.”

The following Dinilawigi members voted to unanimously pass the resolution: Teresa McCoy, Perry Shell, Gene Crowe, Mike Parker, David Wolfe, Alan Ensley, Jim Owle (Chairman), Diamond Brown, Adam Wachacha, Bill Taylor, Terri Henry, and Tommye Saunooke.

Since the resolution passed in 2011, no legal action has been taken by the tribe as required by resolution, and the gate remains erected.

EBCI Attorney General Michael McConnell did send an official letter to Laschober dated June 13, 2022, which reads in part, “I am writing to you because of your ownership of, or connection to, Cooper Creek Trout Farm and Pond, located at the address referenced above. The trout farm and pond are accessed via Coopers Creek Road, which is identified as State Road 1355 (SR 1355).

I direct your attention to the enclosed letters dated 2006 and 2009. Taken together, the letters confirm that SR 1355 is a state maintained public road. It is 3.60 miles long and runs from its intersection with US 19 to the boundary of the Great Smoky Mountains National Park. The road also ends at or near the boundary of the Cherokee Indian Reservation. It is sometimes used by the Tribal government and Tribal members to access that part of the reservation…It is illegal under North Carolina law to obstruct it, or to inhibit the use of it by the public. Neither you or your employees have a legal foundation for blocking it with the gate, a truck, or any other means. Please tell your employees to stop blocking the road and stop intimidating members of the public (including Tribal members) who use the road.

We welcome the opportunity to work with you to find solutions and avoid future conflicts about the road. Please contact me if you have any questions.”

Laschober responded to McConnell in a letter dated June 17, 2022, and again asserted that the road is private, stating in part, “I would like you to see the picture of the ‘STATE MAINTAINENCE ENDS” sign that has stood at the entrance of the Trout Farm for 50+ years.” Laschober adds, “No recorded right of way + no maintained right of way = PRIVATE ROAD.”

Welch said that state maintenance does end along the road, but the road has never been declared abandoned and private by county action as is required by North Carolina law.

Welch says he wants the resolution from 2011 to be enforced.