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Wednesday, 19 April 2017 13:49

Unstable ground: Complex questions surround upcoming Cherokee impeachment process

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More than a year of tension and fighting within the Eastern Band of Cherokee Indians government will come to a head this week, with a hearing for impeachment charges against Principal Chief Patrick Lambert slated for Thursday, April 20, and Lambert calling a Grand Council of all enrolled members for Tuesday, April 18, in an attempt to save his position. 

But, while some big decisions about the future of the tribe could be made by this time next week, the political fallout will likely take much longer to resolve. Much is uncertain about the events ahead — impeachments are rare, Grand Councils even rarer, and many of the laws pertaining to how they are conducted and what power they have are unclear, at best.

After talking to a variety of attorneys, judges and tribal members familiar with Cherokee law — several of whom asked that they not be named, due either to prohibitions of their current position or an unwillingness to attach their names to the dispute — The Smoky Mountain News will attempt to answer some of the many questions raised by the current state of politics on the Qualla Boundary. 

What is impeachment? 

Though it’s a basic question, it’s also one without an answer in the Cherokee tribal code. Tribal law contains no definition for the word “impeach,” and the only mention of how to impeach an elected official is found in a single sentence of the tribe’s Charter and Governing Document: “Any officer of the Eastern Band of Cherokee Indians who violates his oath of office, or is guilty of any offense making him ineligible to hold said office, may be impeached by a two-thirds vote of council.”

“If you impeach somebody, what’s the next step? How do you remove him from office?” asked Rusty McLean, a Waynesville attorney who grew up on the Qualla Boundary and has studied Cherokee law throughout his 40-year career. 

Lambert made the same point during the April 6 Tribal Council meeting, asserting that council has the authority to impeach, but not to remove. 

Reading the Charter, it’s hard to say who’s right. The sentence does not explicitly say that Tribal Council can remove an elected official but does say that an impeachable offense is one that makes the official ineligible to hold office, perhaps implying removal.

According to Merriam Webster’s dictionary, “impeach” can mean “to charge a public official before a competent tribunal with misconduct in office” but can also mean “to remove from office especially for misconduct.” However, the dictionary at law.com defines “impeach” as “to charge a public official with a public crime for which the punishment is removal from office.”

SEE ALSO: Grand Council votes to stop impeachment

SEE ALSO: Court denies lawsuit of anti-impeachment councilmember

So, when the Charter says “impeach,” does it mean it in the sense of charging someone with misconduct, or in the sense of removing someone due to misconduct?

The part of the Cherokee code that discusses removal of judges and justices is one of the few other places where impeachment is mentioned in tribal law. In this section, the law describes the power to “remove by impeachment,” in which impeachment is the mechanism and removal is the result. 

However, others assert that the power to remove is assumed to be part of the power to impeach. If the body that is given the power to impeach has no power to follow through with any consequence for the crimes prompting impeachment, then why grant power to impeach in the first place? 

“The EBCI Tribal Council has a precedent of removal of an elected official after an impeachment hearing,” said Tribal Council Chairman Dennis “Bill” Taylor in a statement to The Smoky Mountain News. “The process would entail the swearing in of a new Principal Chief or in this case the elevation of the Vice Chief to that post.”

During the 2003 impeachments of former Principal Chief Leon Jones and former Tribal Council Chairman Bob Blankenship, the law was indeed interpreted as giving Tribal Council the authority to remove elected officials from office. In the resolution setting up rules for the impeachment hearing, the 2001-2003 Tribal Council approved language stating that, if articles of impeachment were approved by Tribal Council, impeachment hearings would follow “for a final decision on whether these officials should be removed from office.” 

Even if Lambert argued that Tribal Council did not have the power to remove him and refused to leave his office, Tribal Council would have plenty of leverage. Council controls the tribe’s purse strings and could paralyze the chief’s office financially if it so chose. And regardless of the removal question, the tribal code is quite clear that any official who is impeached cannot run for office again. 

What is Grand Council? 

Grand Council, according to the Tribe’s Charter and Governing Document, is a gathering to which all enrolled members are invited and over which the principal chief presides. 

But that’s where the consensus ends. According to Lambert, the Grand Council has the power to pass, uphold or overturn an action of the Tribal Council. However, others point out that those powers aren’t stated anywhere in tribal law, whereas the Tribal Council’s legislative authority is clearly outlined. 

“Some Tribes use Grand Council to permit their members to vote. We do not,” said Councilmember Travis Smith, of Birdtown, in a post to his public Facebook page. In Cherokee, Grand Council is more a tool to get the opinion of the people, he added. 

Those who say the Grand Council has authority to pass laws and even overturn decisions of Tribal Council point to both longstanding tribal tradition and to the Lloyd Welch Constitution, which members of the Eastern Band of Cherokee Indians passed in 1868.

“If you can go back through Cherokee history, even before the Lloyd Welch Constitution, anytime there was something important coming up or whatever, they would announce there would be a Grand Council and runners would be sent out to all the different villages, and they would say Grand Council is going to be held at such and such place, and the word would be spread,” said Mary Wachacha, a tribal member and member of the Qualla Boundary Historical Society who has spoken publicly in support of Lambert. 

In Cherokee Tribal Courts, judges are asked to look to tribal customs as well as to tribal laws, so that sort of thing carries weight. 

However, law is important as well, and though the Lloyd Welch Constitution does mention Grand Council, it’s fuzzy on what Grand Council actually is. The constitution starts out saying that it had been drafted by a “general council,” and that going forward a general council should meet once per year to draft and pass laws for the tribe. However, later in the document it says that “a grand council is this day organized” and that the Grand Council is made up of a finite list of delegates. Going forward, the constitution said, annual elections should be held to select delegates for an annual Grand Council, which would meet each October to pass laws. 

Thus, while the Lloyd Welch Constitution does say that Grand Council has the ability to make laws, the Grand Council described could be closer to today’s Tribal Council than to the gathering of all tribal members that Lambert held April 18. 

Whose decision carries greater weight, Tribal Council or Grand Council?

Again, opinion on this question is split. 

“I think the Grand Council wins because that’s every member of the tribe,” McLean said, an assertion with which Wachacha agrees. In a video that Birdtown Tribal Council candidate Ashley Sessions posted on Facebook, Cherokee Beloved Man Jerry Wolfe supported this view. 

“In the Grand Council session, whatever the people say, that’s the vote,” Sessions said in the video. “Tribal Council can’t overturn what the people vote.” 

“Now, that’s the people,” Wolfe responded. “The people that make the law. We’re strong, we are.”

The opposing view, however, would be that, between Grand Council and Tribal Council, the Tribal Council’s powers are the only ones that are clearly defined in tribal law. 

“The Grand Council carries no weight of authority in regards to tribal government operations,” Taylor said. “The full authority of matters concerning Tribal government operations including impeachment rests with the duly elected Eastern Band of Cherokee Tribal Council.”

So, while some may feel that a vote of tribal members gathered at Grand Council should prevail, this view says, that’s just a feeling. It’s not a law or a power granted in the tribe’s charter or code of ordinances. But Tribal Council’s authority is. 

Is there any opportunity to appeal Tribal Council’s decision at the impeachment hearing? 

This depends on who you ask. 

“The Tribal Court does not have the ability to overturn a decision of Tribal Council,” said Taylor. 

Others interviewed for this story agreed with that assessment, saying that impeachment is a function of the legislative body and it’s not within the court’s purview to rule on such a decision. 

On the other hand, if Lambert believed that laws were broken in the course of conducting the investigation and then setting up the hearing, it’s possible that he could bring a suit contending that the process itself was illegal. 

When Tribal Council first passed legislation directing that articles of impeachment be drafted, in February, the resolution gave Vice Chief Richie Sneed the power to ratify it, declaring that Lambert had “a conflict of interest.” However, tribal law gives the power of ratification to the chief, and Lambert wound up vetoing the resolution. While Tribal Council overturned the veto, in doing so it acknowledged Lambert’s right to veto. 

However, the resolution introduced in April to approve articles of impeachment and set up a hearing once more gave Sneed the power to ratify, not Lambert. This time, Lambert did not assert his right to veto. 

It is worth noting that, during the 2003 impeachment of Jones and Blankenship, Tribal Council took a similar action. The resolution approving rules for the impeachment hearing and the hire of a special impeachment prosecutor stated that “because the Principal Chief has a conflict of interest in this matter, the Vice Chief is authorized to ratify this resolution,” similar language used in the 2017 resolutions pertaining to Lambert’s impeachment.  

For McLean, “there is no question in my mind” that the impeachment issue will wind up in court. 

“I just hope that the judge they select will devote the time to analyze the historical procedures of the tribe, the documents of the tribe, and work it forward to a point in time when you can rule on the actions that were taken by council against the chief in this instance,” McLean said. “I think that’s going to be the issue. Will the judge devote such time to it in order to ensure it’s a decision that can be affirmed with a good basis in the law to support its decision?”

Several members of the Cherokee Tribal Council are currently under investigation by the FBI. Could the results of that investigation, when concluded, have any retroactive effect on the impeachment decision? 

The consensus seems to be no. The impeachment and FBI investigation are separate processes, performed by separate bodies, pertaining to separate allegations. The outcome of one won’t likely affect the outcome of the other. 

While the two are separate, they have been linked in the public eye. Lambert has repeatedly called the impeachment effort a “witch-hunt” and said it’s retaliation for his attempts to expose wrongdoing in tribal government — attempts that included a forensic audit of various tribal dealings that were then handed over to the FBI and resulted in an investigation that has now been going on for more than six months. While the majority of Tribal Council has expressed concern with the results of the Office of Internal Investigation that forms the basis for impeachment — the report lists contracts executed without proper approval and various violations of human resources policies — Lambert has said the allegations are trumped-up charges that shouldn’t rise to the level of impeachment. 

However, the influence of the FBI investigation on the impeachment process — if that is indeed what is going on — could be hard to prove. 

“I don’t see that you can,” McLean said when asked if the impeachment could be reversed if the FBI results incriminated councilmembers. “I don’t think you can make it retroactive unless you can show some kind of intent on the part of those people.”

Is there any potential for the federal government to get involved? 

Not likely, it seems. The federal government has often expressed a preference for staying out of what it deems to be internal tribal politics. 

The ability of federal courts to weigh in on such affairs was at the center of the well-known case Santa Clara Pueblo vs. Martinez, decided in 1978, in which the petitioner Julia Martinez contended that a membership ordinance passed by the Santa Clara Pueblo tribe violated the right of equal protection guaranteed under the Indian Civil Rights Act. The case went all the way to the Supreme Court, which decided that, because Indian tribes are “distinct, independent political communities” the court did not have authority to rule in the case. 

That’s not to say that the federal government can never intervene. 

According to an October 2016 report from the Bellingham Herald in Washington, the Bureau of Indian Affairs decided not to recognize any actions of the Nooksack Indian Tribe after March 2016, as the tribe had violated its constitution by holding Tribal Council meetings without a quorum being present. 

However, the situation was an “exceedingly rare” one, the BIA’s principal deputy assistance secretary Lawrence Roberts wrote in an Oct. 17, 2016, letter, the paper reported.

 

Important dates ahead

• Tuesday, April 18: Principal Chief Patrick Lambert held a Grand Council of all enrolled members. The meeting fell after The Smoky Mountain News’ press deadline but will be covered in the April 26 issue.

• Thursday, April 20: Tribal Council will hold a hearing for the impeachment charges against Lambert and make a decision by the end of the day. 

• Thursday, May 4: Tribal Council’s monthly meeting will begin at 8:30 a.m. Budget Council, on which all 12 councilmembers sit, will be held Tuesday, May 2. 

• Meetings are typically broadcast online at livestream.com/accounts/10717024.