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Wednesday, 09 August 2017 14:00

Tribal Council approves special election

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Cherokee came one step closer last week to having a special election to fill the vacant vice chief’s seat, but the resolution narrowly passed by Tribal Council still needs a signature from Principal Chief Richard Sneed to become effective.

“I’m taking everything under advisement as to how to handle this,” Sneed said during a follow-up interview. “Speaking with the attorney general, I haven’t made a decision on that yet.”

Tribal Council had voted 57-43 to hold a special election for the office during a special-called meeting Thursday, July 27, but no legislation was attached to the vote. When council returned for its regularly scheduled Aug. 3 meeting, however, it considered a resolution that would officially direct the Eastern Band of Cherokee Indians Board of Elections to set a date for a special election.

Theoretically, the vote should have been a formality to solidify the decision made the previous week, but 30 minutes of impassioned discussion and sharp disagreement preceded passage of the Aug. 3 resolution, with the final vote coming out slightly differently than the one taken July 27. The measure passed 51-43, with Councilmember Adam Wachacha, of Snowbird, abstaining with his six votes. Wachacha had supported the special election during the July 27 vote.

“I’m kind of torn right now,” Wachacha said as the discussion began. “I want both, but I know it can’t be both ways. It’s either going to have to wait until December until we can elect one, or we just select one and change the laws so hopefully this tribe never has to go through this again.”

The vice chief’s seat has been vacant since May 25, when Tribal Council voted to remove then-Principal Chief Patrick Lambert from office and Sneed, then vice chief, was sworn into the office.

Tribal members had called for a special election since the day of the impeachment, with Tribal Council agreeing during a special-called June 15 meeting that a special election would indeed be the best course of action, especially considering that the vacant term still has two years left in it.

However, some Tribal Council members have since had questions about the legality of a special election in this circumstance. Cherokee law explicitly allows a special election in only one circumstance — in the event that both the principal and vice chief offices are vacant simultaneously and the Tribal Council chairman doesn’t meet the requirements to serve as chief.

“Basically what they’re trying to do is fill in the blanks and make up law as they go along that says since it doesn’t say we can’t do it, that means we can,” Sneed said in an interview. “That’s not how the law works.”

Those who support a special election, however, have been quick to point out one key word: “may.”

Tribal law states that in the event that the principal chief’s seat is vacated, the vice chief “shall” become the principal chief. However, the next sentence says that if the vice chief’s seat is vacated, Tribal Council “may” appoint the successor.

The word “may” is often read to imply some level of freedom, while “shall” typically implies that something is mandatory. Those in favor of a special election argue that the law should be interpreted to mean that Tribal Council “may” appoint a vice chief but “may” also fill the vacancy in some other manner — namely, via a special election.

“The people want to vote, I want to vote, because I don’t want a second appointed chief,” said Lori Taylor, a Tribal Council candidate from Big Cove who has been outspoken on the issue. “That’s never happened in our history.”

Both of the attorneys in the room — Legislative Counsel Carolyn West and Attorney General Danny Davis — said that the law made no explicit provision for a special election.

“You’re not breaking the law necessarily (by having a special election), but it’s not authorized either,” Davis said. “If it’s not authorized, what authority do you have to do it?”

That doesn’t mean that Council can’t hold a special election, he said. But if it chooses to do so, he’d recommend amending the election ordinance to make sure the law explicitly allows for it. The problem with that is that election laws can’t be changed during an election year, so the amendment would have to wait until Oct. 1 — after the September General Election — to be introduced. That would mean a new vice chief couldn’t be sworn in until December.

“I listen to the people and I want them to have a special election, but those people, they’re also tribal employees too,” said Councilmember Albert Rose, of Birdtown. “Tsali Care, they’re having volunteers work right now because they’re so understaffed.”

Sneed mentioned the situation at Tsali Care — the tribe’s nursing home — as well. Because there are too few employees to meet mandatory staffing requirements, Tsali has had to turn patients away even with empty beds available.

Tribal law requires both the chief and the vice chief to sign off on new hires, so with no vice chief in place no new hires have been made since May, and none are likely to be made until a new vice chief is in place. Currently, Sneed said, there are 40 people who had tribal jobs lined up and in process at the time of the impeachment, and they’ve been waiting ever since to get to work.

There could be other ways to deal with the issue. Taylor suggested that Sneed hire people using contracts rather than job offers until the vice chief issue is dealt with, as he has the authority to issue such contracts without a vice chief’s signature. Davis pointed out that contracts might not be fair to employees, as they would not come with tribal benefits or count toward time served in the tribal workforce.

McCoy criticized Sneed for not finding some workaround to allow hiring to continue.

“Every chief that I have worked with would have already done it, because no one is going to blow up and get mad if Mr. Sneed hires someone,” McCoy said.

Sneed bristled at the criticism, maintaining that all he’s trying to do is follow the law in the face of a situation that Tribal Council — not he — created.

“She certainly would love me to do something that she could come back to the council and impeach me for,” Sneed said in a follow-up interview.

Though Sneed says he hasn’t yet decided what he’ll do with the passed resolution, it’s clear that he’s not in favor of a special election. In his view, it’s just not allowed in the law, and bending the rules to accommodate what he called “a small group of supporters” would set a dangerous precedent.

“There’s one person sitting on council — namely Teresa McCoy — who wants to be vice chief, and her main shot at that is if there’s a special election,” Sneed said. “That’s what’s going on. That’s why she’s lobbying so hard for it.”

McCoy does indeed want to be vice chief. She announced her candidacy immediately following the July 27 vote, and this will be her fourth run for the office. However, McCoy decided in March that she would not seek re-election to her seat on council, before articles of impeachment had even been passed and the vice chief vacancy created. McCoy had been a vocal opponent of the impeachment.

She contested Sneed’s statement that her support of the election is motivated by self-interest.

“Our people deserve to be included in the selection of their chiefs, just like their council,” she said in an email. “Our tribe has stood on the principles of democracy for millennia, and the watered-down attempt to overthrow our people and our government needs to end.”

Sneed has three choices on what to do with the resolution. He can sign it, veto it, or let it sit for 30 days without a signature, at which point it would go into effect without a signature. Tribal Council would need a two-thirds vote to overturn a veto, meaning that two or three councilmembers would have to join in favor of a special election.

In the Aug.3 vote, Councilmembers Richard French, of Big Cove; Alan “B” Ensley, of Yellowhill; Tommye Saunooke, of Painttown; Bo Crowe, of Wolfetown; Rose; and McCoy voted in favor of holding a special election. Opposed were Chairman Bill Taylor, of Wolfetown; Vice Chairman Brandon Jones, of Snowbird; Councilmember Marie Junaluska, of Painttown; Councilmember Anita Lossiah, of Yellowhill; and Councilmember Travis Smith, of Birdtown. Wachacha abstained.

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