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Wednesday, 10 August 2011 13:07

Tribal council kicks controversial land ownership to courts

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A family whose land was seized last month by the Eastern Band of Cherokee Indians will now have their day in court, after they lodged a protest with tribal council last week.

The tribe had reclaimed the land, citing a technicality in the landowner’s will. The will lacked two signatures.

Tribal council voted 10 to 2 last month to take back the land. But the family has come forward with new evidence, an affidavit by a person they say was a second witness to the will. In light of that, Tribal Attorney General Annette Tarnawsky recommended that the issue be moved out of the political arena and into the legal system.

“I would request at this point, if that affidavit is being used as new evidence, I would request that a court rule on this,” said Tarnawsky, noting that there is case law in North Carolina that has dealt with similar issues.

But tribal council still spent more than an hour deliberating and debating the issue before finally deciding to absolve themselves and send it instead to tribal court.

In that hour, it was not only the issue itself that was debated, but a slew of other problems that it illuminates.

Several members returned to this month’s session complaining that they had little time to look over the documents of the case before they had to vote. The case had 12 pages of evidence, but those packets were only given to council members a few minutes before the vote.

“My concern is that council acted without looking at the information,” said Big Cove Council Member Teresa McCoy. “It’s a dangerous, dangerous thing to do.”

Snowbird Council Member Diamond Brown voiced a public apology to the family for the quick decision made last month. He voted to reclaim the land in July, but changed his opinion after speaking with the family and getting more information.

Even Principal Chief Michell Hicks stepped in to the council house to weigh in on the touchy issue.

“There has got to be a process that clarifies the specifics of the will,” said Hicks. “We’ve got to get that in place. We don’t want to see any family in this situation, but our duty is to uphold the law.”

Hicks added that, in this particular situation, he thought it deserved a hearing.

 

Tract of value to the tribe

The land in question is a 200-acre tract in Cherokee County, which just so happens to be adjacent to land the tribe bought last year to build a secondary gaming establishment.

The tract is part of the reservation, and like all reservation land is collectively owned by the tribe. But land rights can still rest with individual tribal members, and in this case the land rights belonged to Gladys Wright until she died in 2009. She thought she left those rights to her four children.

While Wright was an enrolled member, her children don’t meet the blood degree. They were entitled to land rights for the remainder of their lifetime only, and after that it would have  reverted to the tribe anyway.

However, when the chief asked Tarnawsky to buy the property for the tribe for the proposed gaming establishment, that’s when the will was examined and the questions over its validity emerged. Those questions, in turn, made it impossible to buy the land since it lacked clear title.

“I would have loved to have bought this property and not had an issue,” Tarnawsky said.

And that brought up yet another issue: the absence of legal counsel at tribal council.

Tarnawsky is the attorney general for the tribe, but she answers directly to the principal chief.

Painttown Council Member Terri Henry pointed out the inherent flaw in that system — what happens when tribal council needs its own legal advice? What if the advice it needs conflicts with what the chief or the rest of the executive branch wants?

“We essentially have a person who reports to him [the chief] standing up and advising the council,” said Henry. “We do not have a lawyer in this chamber to represent and report to the council.”

And, she concluded, they need one.

After the lengthy deliberations had concluded, however, the council made only one decision: to allow Gladys Wright’s four children to defend their mother’s will in tribal court.

And out of that single decision came a host of new issues that are sure to resurface in the future. As it turns out, the rules determining what makes a will valid or invalid aren’t exactly clear.

Although the Cherokee Code defers to state law for declaring a will valid or invalid, the Cherokee Charter, which legally trumps the code, doesn’t.

And then there’s the tradition of oral wills that is longstanding in Cherokee and has before been recognized by tribal council. The tribe also accepts wills from other states, where the rules might be different.

That lack of clarity, said Tarnawsky, makes the whole situation murkier and brings to light a larger issue that, she said, the tribe needs to deal with.

“It really needs to be a decision of council and a decision of the Cherokee people what you want to do,” said Tarnawsky on the broader issue of what constitutes a will.

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