“I think we should take it (the 2007 resolution) off the books and be done with it and not worry about it,” said Councilmember Travis Smith, of Birdtown, who submitted the resolution.
Smith went on to say that council’s pay should stay at the current level of roughly $80,000 but that the body should no longer get the automatic $10,000 yearly increase outlined in the 2007 resolution.
The only problem was that the 2007 resolution doesn’t necessarily outline any such annual increase.
That resolution, which passed narrowly with seven councilmembers in favor and five opposed, simply stated that councilmembers should receive a $10,000 pay raise to take effect after the next election cycle. It was introduced following completion of a salary study that concluded, according to the resolution, that councilmembers were making “approximately $10,000 less than similar councils with like kind duties in other jurisdictions.” While there is a sentence that says salaries should “be increased by $10,000 per year,” subsequent references seem to imply that this means yearly salaries should increase by $10,000, not that pay should rise $10,000 annually.
“What are we supposed to do with this exactly?” asked Councilmember Teresa McCoy, of Big Cove, in reference to Smith’s resolution. “Are we supposed to take a $10,000 cut in pay, or should we pay back the $10,000?”
Smith replied that, no, whatever salary changes have happened up until now should stand, but council shouldn’t get a $10,000 yearly increase anymore.
Tribal Council has not been getting automatic $10,000 annual increases since 2007 — if that were the case, then councilmembers would be making $110,000 more than whatever their salary was before 2007. Currently, councilmembers make $80,600 each, with the chairman making $86,400 and the vice chairman $83,500. However, Smith said, his first year in office the raises were budgeted but councilmembers voted not to accept them.
Tribal Council has received one raise since 2007, and it was extremely controversial. In October 2014, Tribal Council approved a budget that included $10,000 pay raises for all its members, along with backpay for the years when members supposedly should have already been receiving the higher pay. Some of the backpay checks were worth more than $30,000.
The raises and backpay were effective immediately, despite a provision in the tribe’s Charter and Governing Document — Cherokee’s highest law — that no pay raise Tribal Council votes itself can take effect until after the next election. The 2007 resolution acknowledges this fact, stating that the $10,000 raise must wait until the next election cycle finishes, “per Charter and Governing Document of the Eastern Band of Cherokee Indians.”
In 2014, then-Principal Chief Michell Hicks told councilmembers that the pay hike was justified because it was not a pay raise but rather a “pay adjustment,” pointing to a 2004 law that stated Tribal Council salaries should rise in proportion with those of tribal employees. No such increases had occurred in recent years, he said.
The pay raises caused widespread anger on the Qualla Boundary, with tribal members flooding Council meetings to express their displeasure and eventually organizing to challenge the raises in a lawsuit. The suit was eventually dismissed due to lack of standing, with no ruling on the merits of the case.
McCoy pointed to the 2004 law regulating the size of Tribal Council pay increases as possibly conflicting with Smith’s resolution. Ordinances are more powerful than resolutions, she said, so a resolution regulating pay raises would find itself at odds with a resolution regulating the same thing.
The discussion — especially the exchanges between McCoy and Smith — became heated, with Smith at one point leaving the room in anger as the two discussed a conversation they’d had early in the 2015-2017 term following Tribal Council’s decision not to adopt a pay raise at that time.
Smith insisted that the 2007 resolution provided for an annual $10,000 increase, and that rescinding it would keep current pay levels the same but prevent future automatic increases. Legislative Attorney Carolyn West, meanwhile, said she interpreted the 2007 resolution as allowing only for a one-time pay increase.
Councilmember Bo Crowe, of Wolfetown, said he’d support Smith’s resolution but saw it having a different outcome than Smith anticipated.
“If we would rescind this one, we would lose $10,000 and I’m fine with that,” he said. “Our pay would go back to the $70,000, and I’m fine with that.”
Smith ultimately withdrew the resolution, saying he’d work to craft an ordinance instead to address the issue.
“I’ll bring something back in here in an ordinance that we can move forward with,” he said. “That would help everything out I believe.”
During a follow-up interview via text message, Smith said he stands by his original interpretation of the 2007 resolution — that it allows for a $10,000 increase per year. However, he said, the discussion in Council was productive.
“It made for some good discussion and some clear truths on the past,” he said. “If there is an ordinance in place, then that’s what should be followed at this time.”
The 2007 resolution
The text of the pay raise resolution passed in 2007 reads as follows:
Whereas Councilmembers last received a pay raise three years ago; and
Whereas in response to several questions, a study was commissioned to examine pay for similar councils and boards in other jurisdictions to determine if the members of the EBCI Tribal Council are over or under paid compared to the industry average; and
Whereas based on a study performed by the Tribe's compensation consultant, Gallagher - Burgess, and received by the executive office, it has been determined that EBCI Tribal Council members receive annual compensation that is approximately $10,000.00 less than similar councils with like kind duties in other jurisdictions; and
Whereas EBCI Tribal Council member's pay should be increased by $10,000.00 per year to bring them to the industry average.
Now therefore be it resolved by the Tribal Council of the Eastern Band of Cherokee Indians assembled, at which a quorum is present, the Tribal Council hereby increases the yearly compensation paid to Tribal Council members by $10,000.00 for each Tribal Council member.
Be it further resolved that this Tribal Council here concludes that the amount of this increase in compensation does not violate the amount permitted for such increases in Tribal law. The increase in compensation approved herein shall not take effect until the next elected Tribal Council members are seated, per Charter and Governing Document of the Eastern Band of Cherokee Indians.
Be it finally resolved that this ordinance shall become effective upon ratification by the Principal Chief.