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Motion to dismiss filed in lawsuit contesting Cherokee council raises

fr cherokeeDefendants in a lawsuit stemming from raises and backpay the Cherokee Tribal Council voted itself in October 2014 are hoping to convince a judge to dismiss the case against them.

The motion to dismiss lays out several reasons why the lawsuit should supposedly be thrown out, one of them a claim that many had expected the defendants to make since the beginning — that they’re protected from lawsuit by sovereign immunity. Though the current and former elected leaders of the Eastern Band of Cherokee Indians who are named in the lawsuit are being sued as individuals — not, save one former staffer named in an official capacity, as members of the government — the actions that prompted the lawsuit occurred while they were serving their official duties. 

The plaintiffs’ attorney Meghann Burke doesn’t believe that fact should hold off the lawsuit. This summer — before the suit was filed — she said, “We contend that if you act illegally, you cannot possibly be acting under the power of the law.” 

The alleged illegal act occurred on Oct. 4, 2014, when Tribal Council voted to pass a budget that included raises of more than $10,000 for each of its 12 members and backpay for the years when they supposedly should have already been earning the higher rate. Backpay checks went out not only to the 12 sitting councilmembers but also to four former councilmembers and to Michell Hicks and Larry Blythe, who at the time were serving as chief and vice chief, respectively. 

All but one of the councilmembers in the room at the time voted for the raises, with Councilmember Bo Crowe, of Wolfetown, the sole nay vote. Councilmembers Brandon Jones, of Snowbird, and Teresa McCoy, of Big Cove, were absent at the time and came out strongly against the action. 

Many tribal members reacted angrily, pointing out that the tribe’s Charter and Governing Document explicitly states that any raises given to councilmembers must wait until after the next election to go into effect — these had been paid out immediately. Hicks, meanwhile, said that they were “pay adjustments,” not raises, given to comply with a 2004 law that said pay raises given councilmembers should be comparable to those given tribal employees. Council pay hadn’t increased since 2007, he said, so the extra money was just accounting for that lag. 

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All councilmembers receive the same salary, regardless of the number of years served, though the chair and vice chair positions do come with a slightly higher salary. 

Hicks’ explanation didn’t sit well with some tribal members, who formed a group called the EBCI for Justice and Accountability, secured Burke as a lawyer and filed a lawsuit in Tribal Court. 

Carlton Metcalf of the Asheville firm Van Winkle, Buck, Wall, Starnes and Davis, P.A., is representing the defendants.

Aside from the sovereignty issue, the motion to dismiss claims that: 

• The plaintiffs don’t have standing. To bring a lawsuit, the person or organization must have standing, meaning that they’ve been specifically injured by the action they’re protesting. Metcalf contends the EBCI for Justice and Accountability doesn’t meet that criterion. 

• The plantiffs did not “exhaust administrative remedies.” According to Metcalf, the plaintiffs didn’t try everything they could have to fix the problem before going to court, including, according to the motion, “pursuing potentially available relief directly from Tribal Council.” 

Members of the EBCI for Justice and Accountability did approach Tribal Council during the aftermath of the decision. At one point, group leader Peggy Hill came forward during a council session to ask, “Where do we go now? What do we do now?”

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

Before filing the lawsuit, the plaintiffs had sent demand letters to the councilmembers who voted for the raise, letting them know a suit would be filed if they didn’t reverse the decision, but no reversal came. 

• No way to prosecute four of the defendants. Four of the people named in the lawsuit — Diamond Brown, Michael Parker, James Owle and James Taylor — received backpay checks but were not sitting on council at the time the raises and backpay were approved. They had no opportunity to vote for or against the raises. Metcalf says that there’s no basis for suit against them. 

• Civil conspiracy isn’t addressed in Cherokee law. The lawsuit includes a claim of civil conspiracy against Hicks and Blythe, asserting that the two had agreed to introduce and sign into law a resolution containing the raises and backpay, which the suit says “plainly violates” Cherokee law. However, Metcalf’s motion to dismiss says that civil conspiracy isn’t a valid complaint recognized under Cherokee law. 

• Some parties were omitted from the lawsuit. The motion says that the lawsuit fails to “join one or more necessary parties,” meaning that some people who should have been included were not. It’s unclear who these “necessary parties” are or why they should have been included. 

The defendants have not yet asked that a hearing be scheduled on the motion. However, if and when they do a judge will have to preside and determine whether the case should continue. 

If the case survives the motion to dismiss, it will go to trial. 

Both Burke and Metcalf declined to comment, as the court case is pending. 

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