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Lawsuit over council pay raises makes its way to Annual Council

fr lawsuitsA year’s worth of time and a shakeup in leadership haven’t been enough to take the pay raises Cherokee Tribal Council voted itself last year out of the public eye. With a lawsuit already filed in the tribe’s court system, the impending legal battle took center stage during Annual Council last month.

Held every year in October, Annual Council kicks off Cherokee’s fiscal year by allowing tribal members to submit legislation for council’s consideration throughout the month. Among the resolutions making their way to the council floor in October were three related to the impending legal proceedings. 

The legislation was controversial even outside of its content, as the 16 named defendants include five sitting councilmembers. Those five questioned whether council should even discuss the resolutions in open session, as the conversation could take a turn toward something best saved for court.

“We’ve been sued. Should we be actually hearing the legislation?” asked Council Chairman Bill Taylor, of Wolfetown, during session Oct. 29, expressing a recurring theme. 

“Because this resolution involves and talks about the lawsuit that is pending in the tribal court system, it is my advice to this body to not make any decisions or really even discuss these issues,” said Interim Attorney General Hannah Smith, also echoing a point she’d reiterated many times. 

“I think it is worthy of a discussion in front of the members of this tribe that have had to live with the decision made that day (Oct. 14, 2014), and it has bothered them,” countered Councilmember Teresa McCoy, of Big Cove. She was referencing a different lawsuit-related resolution during a different October Council session, but the point was one she repeated throughout the month. 

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It was McCoy’s resolution that brought the pay raise issue to the Annual Council. During the Oct. 14 session, she submitted legislation that would have required all 16 defendants to retain their own attorneys rather than expecting tribal government to pay their legal expenses. 

“All the people on this boundary have to hire an attorney, and sometimes when tribal government misrepresents — intentionally or not — the integrity of its community, it should be open for suit,” McCoy said. “Because if not, it’s one-sided against the public that the government can do what it wants to whom it wants.” 

Smith responded to McCoy’s resolution by advising council to take the discussion to closed session to avoid compromising the defense. Councilmember Alan “B” Ensley of Yellowhill, who is a defendant in the lawsuit, agreed, at one point moving that council go to closed session. 

But the motion was not successful, and the resolution launched a long back-and-forth in which some councilmembers expressed their continued discomfort with the pay raises and everything that surrounded them, while others voiced concern that passing McCoy’s resolution could imperil the tribal government’s legislative immunity down the road. 

Councilmember Adam Wachacha of Snowbird, also a defendant in the lawsuit, held that position, telling council that he’d already hired his own lawyer but would still advise council to be cautious of McCoy’s resolution. 

“What he (the attorney) suggested to me was if that if this resolution passes, then we’re basically giving up a piece of our legislative immunity,” Wachacha said. 

Ensley agreed. 

“I think if this council passed this resolution, all the other boards and committees, they’re going to be liable, and I don’t think that’s what we want to happen,” Ensley said, moving to kill the resolution. 


A counter-resolution 

The legislation wound up passing narrowly — Ensley, Wachacha, Yellowhill Councilmember Anita Lossiah and Painttown Councilmembers Marie Junaluska and Tommye Saunooke voted against it, with Richard French, of Big Cove, abstaining and Taylor absent — but its success was short-lived. A week later, on Oct. 22, Lossiah and Councilmember Travis Smith, of Birdtown, brought in a new resolution for consideration to replace McCoy’s.

“The spirit of the other one (McCoy’s resolution) I fully supported, but I was concerned for the liability of this tribe,” Lossiah said. “I feel this clarifies it and it brings to the attention that we always need to protect this immunity.” 

Lossiah and Smith’s resolution asserted that “additional research was needed concerning the public policy behind legislative and government immunity and whether it would be affected by the passage of (McCoy’s resolution)” and laid out an alternative way to navigate the question of who should pay the defendants’ legal fees. 

Basically, the resolution says that the tribe should pay up front if one of its representatives is sued — whether the suit is filed against that person as an official or an individual — in the course of his or her duties. However, if the court finds that person to “have been acting outside the scope of his or her official authority,” the defendant will have to repay their legal expenses. 

“We have to be able to freely pass legislation, as we have been appointed and put in these positions by our communities,” Lossiah said, explaining the need for this approach. “Anything that would erode that protection for this body would be a hindrance on our government function.”

McCoy, however, disagreed, contending that while she appreciates “the intent of this legislation,” she strongly believes “when tribal government breaks the law, tribal government should be held accountable like everybody else.” 

Besides, she said, it’s not like council has never waived its sovereign immunity for specific situations before. 

“Every one of us has sat here a time or two, with the exception of the new ones (councilmembers) and raised our hands to waive immunity, and who do we waive it for?” she said. “Non-enrolled people. Rich people. Money people. Business people. But never do we waive it for our own people when we violate our own law.” 

McCoy moved to kill the legislation, with a second from Bo Crowe, of Wolfetown. French was the only other councilmember joining McCoy and Crowe against the resolution, with the other nine councilmembers voting in favor of it. 


Debating immunity 

The Oct. 22 vote put to rest the question of who will pay for the defendants’ legal representation, but it wasn’t the last time the lawsuit found its way onto the Annual Council Agenda. On Oct. 29, two of the women at the forefront of the Eastern Band of Cherokee Indians for Justice and Accountability — the organization bringing the suit — came before council requesting, essentially, that the body pass legislation allowing the suit to proceed. 

“If we don’t get a waiver, you’re impeding our right under the Indian Bill of Rights, and you’re denying us our right to address the controversy in our own courts,” said Peggy Hill, a member of the group. 

Hill was referencing the Indian Civil Rights Act, passed in 1968, part of which duplicates the language in the U.S. Bill of Rights. Specifically, Hill pointed out, the act prohibits tribes from “deny(ing) any person within its jurisdiction the equal protection of its laws or depriv(ing) any person of liberty or property without due process of law.” She believes the lawsuit falls into that category. 

However, tribal law contains some contrasting language. According to Chapter 7, Section 13 of the tribal code, Tribal Court must dismiss any suit against the tribe or its representatives unless either Tribal Council or the U.S. Congress “has expressly and unequivocally” waived sovereign immunity through an ordinance, law or contract.

That’s what Hill and Becky Walker, co-authors of the resolution, were asking for. 

“If you will allow us to go and have a declaratory judgment, the people would sing your praises because at least you’re willing to acknowledge that the things that happened in here are just not right,” Walker said. 

McCoy sided with Hill and Walker, calling for the five sitting councilmembers named in the suit to abstain from the vote and the remaining seven to approve the resolution. 

If they voted it down, she said, “What it looks like to the public is that as elected officials you can break the law and hide under the umbrella of immunity, but your people are not allowed to sue you for breaking that law.” 

Travis Smith, however, questioned whether the resolution was even necessary to move forward with the suit, referencing former Tribal Council Chairwoman Terri Henry’s response to Hill last year when asked what recourse tribal members angry about the pay raises might have. 

“Madam chair told you at that time, ‘Take us to court.’ That’s all you needed,” Travis Smith said. 

Walker disagreed, asking that council still consider the legislation. 

“That would probably be your opinion,” she told Travis Smith, “but I would say that everybody here in the council probably doesn’t agree with that.” 

Council shot down the resolution, with McCoy, Jones and Crowe — the only three who sat on council 2013-2015 but were not named in the suit — providing the sole yay votes. With the exception of Big Cove Councilmember Richard French, who was absent that day, the rest of council voted against it. 

“That black cloud has hung over our community now for more than a year,” Walker said of the pay raises. “People are still upset about it. We want what happened here to be looked at in a court of law.” 

The defendants have not yet filed their response to the suit. 


The backstory

The pay raise issue originated Oct. 14, 2014, when Tribal Council passed a budget including a last-minute amendment that gave each councilmember a raise of more than $10,000, with backpay for the years when they supposedly should have already been earning the higher salary.

Of the 12 councilmembers, two — Teresa McCoy and Brandon Jones — were absent, and one — Bo Crowe — voted against the resolution. The remaining nine voted to pass it. No discussion preceded the vote, which took place in a meeting billed as a budget hearing, not a regular council session. 

The raises went into effect immediately, a fact that many decried as going against the tribe’s Charter and Governing Document. The Tribal Council meetings that occurred after the raises passed were filled with emotion. Councilmembers McCoy and Albert Rose — Rose had originally voted for the pay increases — entered protests of the action, but Tribal Council voted not to hear them. 

“Do we go to the law? Do we go to court? Do we do an impeachment? What do we do? You’ve shut us up,” tribal member Peggy Hill had said, frustrated, at the Nov. 6 council meeting last year. 

“If you choose to bring a lawsuit against the Tribal Council, you have the right to do that,” then-Council Chair Terri Henry had replied. 

After forming a group called the Eastern Band of Cherokee Indians for Justice and Accountability, Hill — together with Amy Walker, Peggy Walker, and other tribal members not wishing to be identified — set out to do just that. On Oct. 6, the group filed a lawsuit naming 16 people as defendants.

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