About 20 tribal members filled the audience benches in Cherokee Tribal Court last week, watching the first court hearing in a lawsuit decrying pay raises Cherokee Tribal Council gave itself in 2014. The suit’s defendants were asking Judge Sharon Barrett to dismiss the claims.
“The concepts of accountability, the concepts of transparency are perfectly fine. I want to be very clear for everyone that the position of the defendants is not that those concepts should be challenged,” said Carlton Metcalf, the defense attorney. “The issue that is being dealt with here is simple: whether the claims that have been brought have a legal basis.”
None of the 16 defendants were present June 8 as the hearing began, though Amy Walker and Becky Walker — two members of the Eastern Band of Cherokee Indians for Justice and Accountability, the group bringing the suit — took seats alongside the group’s attorney Meghann Burke.
The complaint
The claims in question stem from a tribal budget passed on Oct. 14, 2014. The vote came at the end of a budget hearing that fall at which 10 of the 12 Tribal Council members were present — nine of them voted to pass the document, which included hefty pay raises and back pay for all councilmembers. Back pay was also provided to then-Chief Michell Hicks and then-Vice Chief Larry Blythe, as well as to four former councilmembers, according to public records obtained by the EBCIJA.
The budget bill upped councilmembers’ salaries from about $70,000 to $80,600, with salaries reaching $86,400 for council chairman, the records showed. Back pay checks ranged from $10,600 to $33,400 for 16 current and former councilmembers, as well as $42,500 in back pay for Hicks and $5,100 in back pay for Blythe. All told, Burke said, back pay and associated benefits totaled about $1 million.
Many tribal members were outraged at the high payouts, but they were also adamant that the pay raises violated tribal law. According to the tribe’s Charter and Governing Document, Tribal Council can give itself a raise, but the raise can’t take effect until the next election has been held and the new council seated. Further, a 2004 ordinance states that raises for Tribal Council must be in keeping with the percentage given to tribal employees.
The $10,000-plus raises exceeded the roughly 3 percent cost-of-living increase that tribal employees received that year, and they took effect immediately — nearly a year before the 2015 elections. But Hicks argued that the action was legal. The increase was a “pay adjustment,” for the years when council hadn’t received raises in keeping with the 2004 law, he said, not a “pay raise.”
The EBCIJA felt so strongly that the raises were illegal that they enlisted Burke’s services and filed suit against the councilmembers who had voted for the raise, as well as the former councilmembers who received back pay, and Hicks and Blythe. All defendants were named in their personal capacities but for the finance director — responsible for enforcing the law — who was named in official capacity.
“At the heart of this lawsuit, your honor, is seeking to hold these officials accountable for their actions,” Burke said. “That’s really what it’s about.”
Lack of legal standing?
The EBCIJA is asking for the defendants to return all the money from raises and back pay to tribal coffers, also seeking reimbursement for court costs and attorney’s fees.
But right now, the group is waiting to find out whether the case will even be heard. The defense argued six different reasons why the court should dismiss the case, but the strongest arguments rested on issues of standing and tribal sovereignty.
Metcalf began by telling Barrett why the EBCIJA isn’t an entity capable of bringing a suit. The group isn’t incorporated or registered in any way, he said. There’s no individual identified as being its leader or having suffered personal harm as a result of council’s actions.
“We do not know what the party’s organization looks like. We don’t know who the party officers are. We don’t know if it has officers,” Metcalf said. “We don’t know anything about the organization.”
“We do not name an individual under a plaintiff, and we contend that under NAACP versus Alabama we do not have to,” Burke replied.
In the 1958 NAACP case, the National Association for the Advancement of Colored People claimed that the state of Alabama violated its Fourteenth Amendment due process rights by requiring it to disclose its membership lists. The court ruled that disclosing the list would suppress membership. This is a similar situation, Burke said, because in this case also EBCIJA members have reason to fear retaliation, loss of employment and humiliation if their names were public.
She also contended that, because all members of the tribe receive minor’s fund payouts when they come of age and per capita checks twice per year, they have an explicit, vested interest in the finances of the tribe.
“All members of the tribe are affected when Tribal Council violates tribal law for individual personal gain,” Burke said.
Cherokee people have a long history of government by consensus and non-hierarchical structure, she continued. And that fact creates a problem with Metcalf’s argument that the EBCIJA should produce lists of party officers.
“They (the EBCIJA) have chosen not to box themselves into some Western concept of how an organization should be structured,” Burke said. “They have rejected that.”
Barrett appeared to have some difficulty with Burke’s arguments, however.
“I think that in order to have standing we may need to have a little more clarification about just what it (the EBCIJA) is,” she said. “What is the plaintiff?”
“I’m not disbelieving you,” Barrett said later during the exchange, “but at the same time there’s no verification by anybody.”
Questions of sovereign immunity
Metcalf also asked that Barrett dismiss the case on the basis of sovereign immunity.
“As I understand, the plaintiffs are not arguing that sovereign immunity has been waived but rather that it is not applicable here,” Metcalf said. “We contend that is erroneous for a number of reasons.”
As nearly every chapter in Cherokee’s code of ordinance states, the EBCI is a sovereign nation and has immunity as such. Waiving that immunity requires an act of either Tribal Council or the U.S. Congress.
Burke had recognized that sovereign immunity would be an obstacle from the case’s beginning, therefore opting to sue each of the defendants — save the tribe’s finance director — in their individual capacities.
Metcalf argued that’s a nonstarter. The allegations surround budgetary legislation, and that’s “quintessential legal activity which would be covered by legislative immunity even if the defendants are sued in their individual capacity,” he said.
Burke, meanwhile, countered that council did not enact the pay raises as part of their official capacity. Rather, they were a “flagrant and blatant” violation of tribal law.
“Here the tribal officials that we sued did not have the power to do what they did,” Burke said. “The tribe restricted their power.”
Barrett questioned Burke’s position.
“Sovereign immunity is alive and well in the tribal courts,” Barrett said. “Why is this different? You’re saying the thrust of it is, ‘This was so illegal, Judge, that you should just throw sovereign immunity out the window.’”
Legislative sovereignty applies only when officials are acting within their official capacity, Burke responded, and in this case there was a very specific law in place that outright denied council the right to do what it did. But they didn’t follow the bounds of that law.
“Instead what these individual defendants did is they raided the tribal coffers to put into their own pockets,” she said.
But what about political remedies, Barrett asked. Why is the court’s job to redress this alleged wrong? Shouldn’t that happen through elections or impeachment?
Burke pointed out that impeachment requires a two-thirds vote of Tribal Council, and it is unlikely they would vote to impeach themselves. Indeed, several of the councilmembers who voted for the raises lost their bids for re-election last fall, but that doesn’t mean that the raises go away. Councilmembers — regardless of how long they have served — are still earning that higher rate and last budget season even considered giving themselves another raise, just under 5 percent. That proposal was abandoned, however.
“This law is marching onward in perpetuity,” Burke said. “What will that do to the tribal budget over time? What will that do to people who are living in abject poverty?”
Other arguments
Metcalf acknowledged that the first two arguments were his strongest case for throwing out the lawsuit, but he cited several other grounds for dismissal as well. First, he said, some Tribal Council members from the time period in question were missing from the suit, so the claims should be invalid if they only selectively name parties.
Further, he said, some of the actions fall outside the statute of limitations, which reaches back to Oct. 1, 2014. Also, he said, it’s not clear that Tribal Court even recognizes the civil conspiracy claim the suit brings against Hicks and Blythe.
Burke asserted that the suit does indeed enjoin all people who public records show received pay raises, save those who were opposed to the legislation, and that all actions named in the suit stem from Oct. 1, 2014, or later.
“If events occurred prior, we would like to know about them,” she said.
Next steps
Barrett gave both parties two days after the June 8 hearing to submit any further documentation they’d like her to consider as she forms her decision.
For his part, Metcalf feels the case for dismissal is ironclad.
“It is our position that standing alone is sufficient,” he said. “That’s where the court can stop. But if you want to proceed, certainly the case can be dismissed with any of the immunity arguments we raised.”
Burke, meanwhile, reiterates the solid footing of the claims and her belief that council’s actions should be considered by the court.
“What Tribal Council did violated tribal law,” she said. “My client respects tribal law and asks that it be respected.”
Standing outside the courthouse in a circle of EBCIJA members who had come to watch the hearing, Burke thanked them for their presence in the courtroom. The standing issue could be a difficult one for the case, she said, but Burke assured those gathered that Barrett would give the case a fair shot.
“Judge Barrett is a very fair, very sharp judge,” she said. “No matter the result, whether we like it or not, it’s going to be a fair opinion.”