“So we got nine people that’s going to overrule the Grand Council and the vote of the people. Is that what I just saw happen?” said Principal Chief Patrick Lambert.
Lambert went on to say that this gathering of Tribal Council couldn’t even be considered a valid meeting, as the tribe’s Charter and Governing Document states that only the chief can call a special session of Tribal Council. He repeated the claim two days later, when Tribal Council met for its second special session of the week. That time, the purpose was to add five articles to the existing seven articles of impeachment.
As a result of Tribal Council’s refusal to recognize the legitimacy of Grand Council, Lambert added a new complaint to an existing lawsuit in Cherokee Tribal Court which now alleges 12 counts of law breaking on the part of Tribal Council. Temporary Associate Judge Sharon Tracey Barrett heard arguments Monday, April 24, on Lambert’s motion pushing for a preliminary injunction on Tribal Council’s impeachment efforts. After three-and-a-half hours of arguments, Barrett said she would take the issue under advisement and come up with a ruling at a later date.
“We have shown the court a substantial likelihood of success on the merits (of the case),” Lambert’s attorney Scott Jones told Barrett, adding that granting a preliminary injunction would “prevent irreparable harm” to the tribe.
If granted, the injunction would stop Tribal Council from moving forward with impeachment until the court could conduct a full hearing to determine who should have the final say — Grand Council, or Tribal Council. A variety of other issues are at play in the lawsuit as well.
Tribal law is a bit hazy on the definition and function of Grand Council. It’s not mentioned anywhere in tribal code but appears only as a single sentence in the tribe’s Charter and Governing Document: “The Principal Chief shall have the right to call a Grand Council of all enrolled members to attend and he shall preside over such meeting.”
Jones based his case for the authority of Grand Council in tribal custom and tradition. In Tribal Court, judges must look to customs, traditions and precedents alongside the laws themselves.
“The Grand Council historically has the ultimate power of the tribe,” Jones said. “It is the power of the people.”
In recent history, he said, Grand Council has been called three times. Once, in 1972, Grand Council met and voted to accept a $1.86 million settlement from the U.S. government for obstructing tribal heritage sites with the building of the Tellico Dam. A few years later, Principal Chief John Crowe called one in 1979 to draft a constitution. And most recently, Principal Chief Joyce Dugan called a series of Grand Council meetings in 1995 and 1996.
Jones argued that the decisions of these Grand Councils were recognized as carrying the full authority of the tribe. When Grand Council voted to accept the settlement in 1972, that decision was accepted by the U.S. government, he said. And before the 1979 Grand Council concluded, the tribe voted to submit the draft constitution it had compiled in those sessions to the Bureau of Indian Affairs, which would conduct an election for tribal members to decide whether to adopt the constitution. In accordance with the vote, the constitution was submitted, though it did not pass the election and was never adopted.
While Jones averred that Grand Council’s authority has been observed in the past, upon questioning from Barrett he allowed that Tribal Court had never before been asked to weigh in as to whether Tribal Council or Grand Council is more powerful.
However, he argued, Grand Council’s authority is well grounded in tribal tradition, and the meeting held April 18 sent a clear message to Tribal Council.
“It’s unquestionably the will of the people that the impeachment proceedings cease,” he told Barrett.
Tribal Council’s view
However, Chris Siewers — the attorney representing Tribal Council — argued that there was no historical precedent for Grand Council overriding an action of Tribal Council and said that, even if there was, the April 18 Grand Council meeting was not conducted in accordance with procedures used in the past.
“What happened here can’t be called Grand Council in any historic sense of the word, but I don’t think the court has to get to that to decide the issue at hand,” he said. “I think from what we’ve presented this morning it’s clear there’s not this idea of a Grand Council that can convene and tell other elected officials what to do. I think that what this history shows is it’s more a consultation session.”
To support that argument, he pointed to a 1994 resolution that had been submitted to the Tribal Council by the clerk of Grand Council, asking that a Grand Council be held that October. Tribal Council killed the request.
It is the principal chief — not the clerk of Grand Council — to whom the Charter gives the authority to call Grand Council. However, Siewers argued, “if the Grand Council was all-powerful, why do you have the clerk of that Grand Council going to Tribal Council to ask for something?”
Siewers also cast doubt on how Lambert conducted the April 18 session. Proper notice was not given, he said, as previous Grand Councils had been advertised in The Cherokee One Feather weeks beforehand and Lambert announced this one just one week before it happened. Lambert first announced the meeting on his Facebook page and mailed flyers to every mailbox owner on the reservation, but he did not advertise it in the newspaper and, Siewers said, there was no evidence he’d sent mailers to tribal members who don’t live on tribal land.
In addition, he said, the voting procedures were suspect. The EBCI Board of Elections was not involved, and with tribal members being given their ballots upon entrance to the seven-hour meeting rather than at the ballot box, there was not enough ballot security to ensure that each person had only one vote.
“This is not a vote with real structure in place that is authorized by the election board to carry out,” Siewers said. “We cannot put any stock into those numbers.”
The votes were double confirmed, Jones pointed out, with those in attendance asked to raise their hands in a yay or nay in addition to turning in a paper ballot. Barrett expressed interest in seeing a video of the hand vote.
While much information was presented over the course of the day, quite a few questions remained unanswered. But this will not be the last time this case is heard in court. The Cherokee Supreme Court will hear the case in its entirety during a May 9 hearing — Barrett will not be the final arbiter.
“I’m very mindful that this case will probably be decided ultimately by the (Cherokee) Supreme Court,” Barrett said.
The month in review
• April 6: Tribal Council approves articles of impeachment, sets an April 20 hearing date, and suspends Principal Chief Patrick Lambert pending the results of the hearing. Lambert’s office immediately files a lawsuit claiming Tribal Council does not have the power to suspend a chief. Tribal Court grants a preliminary injunction, putting a hold on the suspension until a full court hearing can be had on the matter.
• April 11: Tribal Court denies a complaint that Councilmember Teresa McCoy, of Big Cove, filed claiming that certain actions of Tribal Council were illegal and the body should be restrained from moving forward with impeachment.
• April 17: During a hearing on the lawsuit Lambert’s office filed April 6 — which was later amended to include a list of other complaints — Tribal Court sends the matter to the Cherokee Supreme Court and mandates a 10-day stay on impeachment proceedings.
• April 18: Principal Chief Patrick Lambert presides over a Grand Council to which all enrolled members are invited to vote. Attendance is 1,355, with 84 percent of 1,140 votes cast on the impeachment issue in favor of stopping the impeachment.
• April 19: Tribal Council holds an emergency meeting during which it reschedules the impeachment hearing for May 2 to comply with the court order. Council denies a motion to recognize the results of Grand Council. Lambert says the Tribal Council meeting is not legally binding, as he did not call the meeting and the chief is the only one with the power to call a special session of Tribal Council.
• April 20: Lambert’s attorney Scott Jones writes a request for a preliminary injunction on impeachment proceedings as part of a lawsuit against Tribal Council for failing to recognize the authority of Grand Council.
• April 21: Tribal Council holds another emergency meeting, during which it adds five articles of impeachment to the original seven, adopts formal guidelines for impeachment proceedings and hires Cherokee-based attorney Chris Siewers to represent them during the hearing. Lambert again states that the meeting is not a valid meeting. Later that day, the Cherokee Supreme Court sets a May 9 hearing date for Lambert’s suit regarding the legality of impeachment, meaning that no impeachment hearing can be held before then.
• April 24: Temporary Associate Judge Sharon Tracey Barrett hears arguments on Lambert’s motion that a preliminary injunction be issued in the impeachment effort, in light of Grand Council’s vote and Tribal Council’s failure to recognize its authority. After more than three hours of arguments, Barrett says she will take the matter under advisement and rule at a later date.