The afternoon of Sept. 27 took an unusual turn in the Cherokee Justice Center when Human Resources Employment Manager Patricia Watkins and a pair of Cherokee Indian Police Department officers arrived to escort Chief Justice Bill Boyum off the premises.
Boyum’s keys, phone and computer access were removed, and Watkins informed him he was being put on paid suspension.
Court employees had made allegations of harassment and a hostile working environment, according to a Sept. 27 letter from Watkins to Boyum, and he would be placed on a 30-day suspension with pay while an independent third party investigated the case.
Results of the investigation have not been made public, though sources inside tribal government said the allegations included demeaning speech to female courthouse employees and threatening behavior.
But when Boyum came before Tribal Council in October, it wasn’t to discuss the particulars of what he had or had not done wrong. Rather, he took issue with the process and brought with him a resolution that, if passed, would reinstate him as chief justice.
Boyum’s argument
In the resolution, Boyum contends that Chief Lambert, through the actions of Human Resources, violated the law.
“We must enforce obedience under the charter,” Boyum wrote, “by restoring the Chief Justice to exactly the same position he was before the unlawful action.”
Furthermore, Boyum wrote, “to avoid the obvious appearance of impropriety and because of the clear conflict of interest,” “all investigative materials (must) immediately be collected from the Ethics Committee, HR or anyone who has them and be destroyed.”
Lambert’s supposed conflict of interest, Boyum wrote, stems from his personal feelings toward Boyum and the fact that Watkins is Lambert’s sister.
Meanwhile, Lambert’s chief of staff Sage Dunston said that the chief’s office had not had any communication with HR about Boyum’s employment. Lambert was out of town when the harassment reports came to light and Boyum was suspended, Dunston said, and though Lambert appoints the secretary of HR, Watkins’ position is not politically appointed.
In his comments to Tribal Council, Boyum contended that he, as a judge, is exempt from the personnel policy that governs other tribal employees. He can be impeached, and there’s a procedure for that, but he can’t be hired, fired or disciplined like other tribal employees.
As outlined in the Cherokee Code, the chief justice is appointed to a six-year term by the Principal Chief and confirmed by Tribal Council. Boyum became Chief Justice in 2006, when he was appointed by former Principal Chief Michell Hicks, and began a second term in 2012.
“They used the personnel policy in a proactive way to investigate me unlawfully. That’s what it comes down to,” Boyum told Tribal Council. “If you want an independent court system, you need to fix that. If you don’t want to have an independent court system, you won’t have a government.”
According to the Cherokee Code, judges and justices can be impeached only by the ethics commission, which is made up of the chair and vice chair of Tribal Council, the Principal Chief, the Vice Chief and the chair of the Community Club Council. Boyum argued that tribal government had violated the law by suspending him absent an action of the Ethics Commission.
“This is not about what happened or what is going on in the office,” he said. “This is a legal question as to whether or not this follows the law. That’s what this is about — whether I am exempt from the personnel policy.”
Next steps
Danny Davis, attorney general for the tribe and a former district court judge in Western North Carolina, disagreed with Boyum’s assessment of how the law was followed. Boyum may not fall under the personnel policy as a whole, he said, but he does fall under the anti-harassment policy.
“Everyone, elected officials, are subject to the anti-harassment policy,” Davis said. “Are there gray areas here? You betcha. But the situation here called for a little different interpretation.”
The tribe’s anti-harassment policy casts a wide net, stating that it covers “everyone in the workplace, including elected officials, deputy officers, managers, supervisors, co-workers, non-employee visitors and vendors.”
“The process was followed, the investigation was completed, it was forwarded to who we thought the proper folks were,” Davis said.
It’s true, Davis said, that only the ethics commission has the power to permanently remove a judge through impeachment. Human Resources did not remove Boyum — it suspended him until the Ethics Commission could make a final decision.
Tribal Council then cleared the councilhouse chambers to discuss the issue further during an hour-long closed session meeting.
When open session resumed, the discussion had turned to what the next step should be.
“(Tribal Council Attorney Carolyn West) is partially right when she says this should have gone to the court system at some point in time. It should have gone to the court system first,” Boyum said. “They didn’t do that. That’s the problem. Now you can’t use the court system. It’s too late because the court system’s in the middle of it now.”
West, meanwhile, still recommended that council look to the courts for a resolution.
“The issue before you is asking Tribal Council to interpret the code and different sections of the code, and the Eastern Band gave that authority to the judicial branch,” she said. “Therefore it’s my opinion that the proper venue for this issue is before the courts.”
“I think we have two choices here,” said Councilmember Teresa McCoy, of Big Cove. “We can allow Mr. Boyum to withdraw and go the court route, or we can kill the legislation.”
“There is no court route to go,” Boyum replied. “You’ve not waived sovereign immunity. It will take six months to do this. It will ruin your court system.”
It was the suggestion of Councilmember Alan “B” Ensley, of Yellowhill, that wound up prevailing.
“We’ve had a good discussion on this, and I’m going to move to table at this time for further review,” Ensley said. “That would give time for the ethics committee or whatever to conduct their investigation.”
Of the 12 coucilmembers, nine voted in favor of Ensley’s move and two opposed it. Councilmember Tommye Saunooke, of Painttown, abstained from voting. Though Chairman Bill Taylor, of Wolfetown, and Vice Chair Brandon Jones, of Snowbird, sit on the Ethics Commission that will ultimately decide Boyum’s fate, they both participated in the vote.
That was on Oct. 18, but thus far no final decision has been made about Boyum’s employment. His original 30-day suspension ended Oct. 27 but was extended until the ethics committee could review the issue, according to EBCI Communications Director Chris McCoy.
Debating the third branch
This isn’t the first time that Cherokee’s executive and judicial branches have found themselves at odds. In January, Chief Justice Bill Boyum and Principal Chief Patrick Lambert sparred over the court system’s place in the budget. Lambert’s proposed budget had moved Boyum’s position to fall within the chief’s budget, which Boyum said would create a conflict.
“If I report to the chief, he is essentially my client and then I can’t hear any case because the EBCI is involved in nearly every case,” Boyum had said. “It essentially takes me out of the picture. Maybe that’s what someone wants.”
Lambert, meanwhile, made it clear that he resented the comment — there was “no ill intent intended” he said, and Boyum fell under the same place on the organizational chart as he had before. The change was merely for consistency’s sake.
Nevertheless, it’s true enough to say that elected officials have differing opinions regarding the place of the judicial branch in tribal government. The tribe’s Charter and Governing Document — analogous to the Constitution in U.S. government — outlines only two branches of government, executive and legislative. However, a section of the Cherokee Code added in 2000 established the judiciary as a separate branch.
Because the Charter and Government Document overrides the code, some say that the judicial branch is not a true third branch, while others say that a separate judicial branch is clearly outlined in the code and necessary for a functional government.