“At this time,” reads Barrett’s April 26 decision, “Plaintiffs have not shown that Cherokee custom, tradition or precedent give the enactments of a Grand Council the force of law, especially in the absence of subsequent action thereon by the Tribal Council.”
However, the ruling does not amount to a legal green light for Tribal Council’s efforts to remove Lambert from office. The ruling responded to Lambert’s request for a preliminary injunction, a relatively rare action in which the court concludes that, even before holding a full trial, it’s evident that the defendants will likely lose and that irreparable harm will result if the action in question isn’t halted. Barrett decided that Lambert’s case — represented by Asheville-based attorney Scott Jones — had not met that high standard.
However, the Cherokee Supreme Court has granted a request from Attorney General Danny Davis — who has intervened in the case — to review that decision. A hearing is scheduled for May 10, the day after the May 9 hearing during which the Supreme Court will hear arguments on a variety of other impeachment-related complaints.
Grand Council’s legitimacy questioned
Barrett upheld her earlier decision that Tribal Council has no authority to suspend Lambert from office, as it attempted to do in an April 6 resolution. But she did not conclude that Grand Council’s decisions have historically held the force of law, or that the Grand Council held April 18 was conducted in accordance with tribal traditions.
In some historical examples, Barrett wrote, there is evidence that action from Tribal Council was needed to validate decisions of the Grand Council. For example, rules governing the 1979 Grand Council stated that passed resolutions should go before Tribal Council during a special session, and that Tribal Council would carry out those resolutions in ordinance form. Similar language appeared in the rules published for the Grand Council called in February 1996. However, no such stipulation was included in the rules governing the April 18 Grand Council.
“These rules (for April 18) plainly vary from the rules of prior Grand Councils in numerous significant ways … Among other things, these rules provide no role whatsoever for the Tribal Council in the process of adopting the resolutions of Grand Council as ordinances,” Barrett wrote.
Barrett also questioned whether the April 18 Grand Council could be considered a council representing all enrolled members, pointing out issues with the way the meeting was noticed and the vote taken. In previous Grand Councils, she wrote, notices, rules and agendas had appeared in The Cherokee One Feather well ahead of time, while this Grand Council was first announced on Lambert’s public Facebook page, six days beforehand. Notices were sent in the mail, but evidence had not been offered to show that those notices went to all enrolled members. The meeting was not advertised in The One Feather.
In addition, Barrett wrote, the Eastern Band of Cherokee Indians Board of Elections was not involved in the voting, and many people cast their votes before discussion was complete and voice votes taken. Amendments were added to some items from the floor, but there was no opportunity for people who had already turned in a ballot to change their votes if they so desired.
“The court does not find that the Grand Council held on April 18, 2017 was conducted in accordance with the laws, customs, traditions or precedents of the Eastern Band of Cherokee Indians,” Barrett wrote. “Instead, the Grand Council represented a display of public support by numerous enrolled members of the Plaintiff Tribe, including many friends and supporters of Plaintiff Chief, for him and for the measures that were considered.”
The Grand Council drew 1,355 people, with 1,242 turning in a ballot and 1,140 voting on the impeachment issue. Of those, 84 percent voted to rescind the resolutions Tribal Council had passed to start impeachment proceedings against Lambert. Attendance was less than 10 percent of the tribe’s membership, but the number of voters was 31 percent of the number who voted in the chief’s race in 2015.
Supreme Court hearing coming
There is potential for the court to reverse its decision. The Cherokee Supreme Court granted Davis’ request that the higher court review Barrett’s ruling, and a hearing is scheduled for 9 a.m. Wednesday, May 10. Afterward, the court can either grant the preliminary injunction — meaning that impeachment proceedings would cease — or it could deny the request, meaning the proceedings could continue.
But even if the request were denied, the lawsuit would continue. True to its name, a preliminary injunction is a preliminary action — one taken before the full case can be entered and argued. A hearing on all the facts and legal issues at play will likely be scheduled for some later date. However, if the Supreme Court denies the preliminary injunction, Tribal Council will be free to pursue impeachment while the lawsuit plays out.
If an impeachment hearing is held and Tribal Council votes to remove Lambert, a new lawsuit could result. In her ruling, Barrett allowed that a vote to remove him would raise “significant questions” about what the law says.
For example, it’s unclear whether the Charter gives Tribal Council the power to actually remove an elected official from office, or merely the power to accuse that official of wrongdoing. The tribe’s Charter says only that elected officials who violate their oath of office “may be impeached by a two-thirds vote of council.” It does not explicitly say that council can remove impeached officials, and tribal law doesn’t clarify the issue any further.
“Further, a question might, in the future, be presented in this case if the Tribal Council enacts a two-thirds final vote upon impeachment, because the governmental body that issues articles of impeachment do not customarily hear impeachment trials,” Barrett wrote. “It appears that such an approach would be a contravention of the practices in most, if not all, legislatures in other jurisdictions.”
In both the state and federal government, the House of Representatives has the power to draft articles of impeachment, but the Senate conducts the hearing and holds the final vote on whether the official should be removed from office. But the tribe does not have a bicameral legislature, and tribal law contains no mention of these powers being divided.
No impeachment hearing will be held until the Supreme Court comes back with a ruling following the Mary 9-10 court hearings.
The situation in short
Tribal Council officially launched its efforts to impeach Principal Chief Patrick Lambert during its Feb. 2 meeting, claiming that the results of an Office of Internal Audit investigation showing violations of human resources policies and overspent contracts amounted to impeachable offenses. Of the 12 councilmembers, nine have been consistently pro-impeachment and three have been consistently anti-impeachment. Lambert has claimed that the charges against him are baseless and the impeachment effort is retaliation for his attempts to expose wrongdoing in tribal government. The FBI is currently investigating potential mishandling of federal money at the Qualla Housing Authority as a result of an audit Lambert’s office completed.
8:30 a.m. Tuesday, May 9: Budget Council will be held.
10 a.m. Tuesday, May 9: The Cherokee Supreme Court will hear arguments on a variety of issues, including Tribal Council’s authority to suspend the chief, the legality of decisions made during secret meetings of Tribal Council, whether due process of law was violated and the legitimacy of the investigation on which Tribal Council is basing its impeachment efforts.
9 a.m. Wednesday, May 10: The Cherokee Supreme Court will hear arguments on the authority of Grand Council to override Tribal Council and on the legitimacy of the Grand Council held April 18.
8:30 a.m. Thursday, May 11: Tribal Council will be held.