The decision, which stemmed from a June court hearing, didn’t consider whether Council’s actions in October 2014 had broken the law. Rather, it evaluated whether those bringing the case had a right to ask the court to rule on the issue.
“Plaintiff’s sincerity and earnest concern about the propriety of Defendants’ alleged actions is not the benchmark for standing,” wrote Barrett, who had been sworn in shortly before the hearing following a decades-long legal career, first as an attorney and then as district court judge in Buncombe County and a special superior court judge for North Carolina.
“Even where it appears that a taxpayer, citizen or group of such persons has a genuine concern regarding the use of funds, and that this interest may be prompted by their status as taxpayers or citizens,” she continued, “it is not enough to create standing unless those persons are in danger of suffering any particular concrete injury as a result of the operation of the challenged law.”
The plaintiff in this case was the Eastern Band of Cherokee Indians for Justice and Accountability, a group of tribal members aiming to ensure fairness and honesty in tribal government. The defendants — all 16 of them — were a collection of current and former elected officials of the tribe and one former finance officer, an appointed position. They had allegedly been involved with or benefited from an October 2014 vote to boost pay for Tribal Council members and cut backpay checks for the years when those members supposedly should have been earning the higher salary.
According to documents from a public records request procured by the EBCIJA, backpay checks for councilmembers ranged from $10,637 to $33,391, with former Principal Chief Michell Hicks receiving $42,500 in backpay and former Vice Chief Larry Blythe $5,100. The pay raise had boosted councilmembers’ annual salaries by more than $10,000 to $80,600, with the chair and vice chair pulling in $86,400 and $83,500, respectively.
EBCIJA members were upset about the sum of the expenditures but even more upset about the way council went about approving them. The pay raises and backpay were included as part of the yearly budget bill and not debated in open council. The vote was taken without discussion at the end of a budget hearing at which two councilmembers, who afterward vocally opposed the pay raises, were not present. And the higher salaries and backpay were paid out immediately, rather than being embargoed until the next election had passed and those new members were seated.
Opponents of the pay raises had argued that last part is what made the pay raises illegal. The tribe’s Charter and Governing Document states that “no pay raise (for Tribal Council) is to take effect until the next council is seated.” The conventional understanding of that had been that any pay raise council approved for itself had to wait until after winners of the next election were seated to take effect. But Hicks had argued that the pay increases were not raises but rather “adjustments” to comply with a 2004 resolution stating pay for councilmembers should increase at the same rate as that of tribal members. Council hadn’t gotten a raise since 2007, at which time they had also voted themselves a $10,000 increase.
Lack of standing
Before getting a judge to rule on the claims themselves, the EBCIJA had to establish that it had a right to bring those claims, the key issues being standing and tribal sovereignty.
Meghann Burke, representing the EBCIJA, had acknowledged after the June hearing that the standing issue “is a very difficult one for us” but held to the opinion that the EBCIJA had a case. She argued in court that her clients were indeed directly injured when council put more than $1 million in backpay and associated benefits into their own pockets. Otherwise, she said, those funds would be poured into tribal programs and services to benefit tribal members — her clients. Cherokee tradition sees decisions more heavily through the lens of group impact and consensus than does American tradition, Burke continued, and the court should take that into account when considering how to determine standing.
“All members of the tribe are affected when Tribal Council violates tribal law for individual personal gain,” Burke told Barrett during the hearing.
Perhaps, Barrett wrote, but that doesn’t mean that any member of the tribe can sue when she disagrees with a spending decision in Council, just as the law doesn’t permit any citizen of the United States to sue when he disagrees with the fiscal wisdom of an item in the federal budget.
To bring a suit on behalf of its members, Barrett wrote, quoting a decision from Hunt v. Washington State Apple Advertising Commission, a group’s members would have to “otherwise have standing to sue in their own right.” The EBCIJA’s case failed that test, Barrett said.
“Plaintiff has not alleged that its members have a sufficient personal stake to challenge the budget resolution at issue in this case,” Barrett wrote.
The defendants had listed other grounds for dismissal as well, with tribal sovereign immunity being the strongest argument aside from standing, but Barrett’s decision did not parse those other arguments.
“Having concluded that the Plaintiff’s Complaint must be dismissed for the reasons discussed above, the court need not address the other grounds for dismissal,” she wrote.
Reactions to the ruling
Burke said that though she respects the decision, she’s disappointed with the ruling.
“The Eastern Band of Cherokee Indians for Justice and Accountability proudly stands on the values, customs and traditions of the Cherokee people, as well as clearly established law recognizing associational standing, in asserting a legal injury as a result of the wrongs committed by these defendants,” Burke said in a written statement following the decision. “Not once did the arguments raised in court deny that these elected officials violated Tribal law.”
The suit is not necessarily dead. The plaintiffs have the right to appeal Barrett’s decision to the Cherokee Supreme Court but have not yet decided whether they will pursue that course of action.
Defense Attorney Carleton Metcalf, however, is confident that the ruling would hold up regardless.
“We are pleased that the court agreed the case should be dismissed,” he said in a written statement, “and believe the ruling to be sound in light of the law and the allegations that were made in this matter.”
Some tribal members had looked to a July indictment of nine former members of the Winnebago Tribal Council as encouraging news for their cause. The indictment includes charges of conspiracy, theft and misapplication of funds belonging to an Indian gaming establishment, according to a press release from the U.S. Department of Justice. In that case, defendants had received salary increases of about 35 percent in February 2013 that were retroactive to October 2012, as well as five separate bonuses in 2013 totaling $6,000 and six separate bonuses in 2014 totaling $11,000, the release said.
But even if the buck does indeed stop here, said EBCIJA member Becky Walker, the group has a lot to be proud of.
“Though the case has been dismissed, I feel really confident about the work that was done here in the community, and I feel like the people have sent a strong message to tribal leadership, basically saying that we’re not afraid to stand up when we feel like the people have been treated wrongly,” Walker said.