Council overrides veto claiming Charter violation
Following an 80-minute closed session discussion, Tribal Council voted 9-3 last week to override Principal Chief Richard Sneed’s veto of an ordinance the body passed Jan. 14 changing how contracts for Legislative Branch functions are executed.
Under tribal law, any contract worth $50,000 or more must be approved by the Business Committee — which is composed of six of Tribal Council’s 12 members as well as the principal chief and vice chief — and then signed by the principal chief before becoming effective.
The ordinance Sneed vetoed states that contracts over the $50,000 threshold do not need to go through the Business Committee or receive the chief’s signature if they stem from the Legislative Branch. Such contracts must be signed by the Tribal Council chairman or vice chairman instead.
When he introduced the legislation during the Dec. 3 council meeting, Birdtown Representative Albert Rose said it was in response to past instances in which a chief had withheld his signature from legislative contracts.
“All this is stating simply is it will give the chairman and vice chairman the authority to sign off on contracts that this body needs,” said Rose.
However, Attorney General Mike McConnell cautioned the body against approving the ordinance.
“I don’t think you can do what you want to do,” said McConnell. “I think it violates Section 20 of the Charter. I do respect what you want to do, and I want to suggest that I’d like to find a different way to get there.”
Section 20 of the tribe’s Charter and Governing Document states simply that “no money shall be paid out except upon warrant of the Principal Chief as authorized by an act of the Council.”
McConnell suggested that the ordinance instead be amended to state that, while the chief’s signature is still needed to execute a contract, the chief cannot withhold approval “unreasonably.” Additionally, he suggested, the ordinance could be amended to state that no contract over $50,000 approved by Tribal Council would need to go through the Business Committee, because Business Committee is primarily composed of Tribal Council members.
“The problem is with the word ‘unreasonably,’” he said. “But as you work through the law, sometimes you have to rely on that word, and the attorneys dealing with it know why it’s there. For instance, the Principal Chief could not come forward and say, ‘I just don’t like this thing. I’m not going to sign it.’ The reliance would be if it complies with the other checkboxes for tribal contracts, then he would be obligated to sign it and if he or she did not potentially there would be some remedy for that.”
Legislative Counsel Carolyn Ward disagreed with McConnell’s assessment, saying that, as keepers of the purse, Tribal Council is well within its rights to control spending decisions within its own branch of government.
“The court has stated on several different occasions that executive and legislative are two totally separate branches of government,” she said. “In 2016 Council took the action to have Legislative Branch be stronger,” she said. “You created the Tribal Operations Program. You have your own employees. You have your own branch that’s fully functional. To say that everything has to go through the executive for a signature, that’s crazy.”
Sneed took exception to that perspective.
“The Charter says what it says,” he said. “I disagree wholeheartedly with Miss West’s analysis that Council can essentially do whatever Council wants.”
The Dec. 3 discussion ended with a unanimous vote to table the ordinance, and when it reappeared on the agenda Jan. 14, the vote was once more unanimous, with Council this time opting to pass it. The version of the ordinance attached to the Jan. 14 agenda did not include McConnell’s suggested revisions.
Sneed vetoed the ordinance, in his letter to Council reiterating the arguments McConnell had made Dec. 3, stating that the ordinance violated the Charter.
None of what appeared to be a lengthy discussion on the veto issue was conducted in open session. Rose moved to go into closed session immediately after Sneed’s veto letter had been read into the record, and Council approved the move by a unanimous vote. The body went off-air for 80 minutes before coming back to vote.
Tribal law requires that any motion to go into closed session must cite one or more of the permissible reasons to do so listed in Sec. 117-13 of the Cherokee Code. However, no reason was cited prior to the start of the closed session.
Voting to override Sneed’s veto were Painttown Representatives Tommye Saunooke and Dike Sneed; Wolfetown Representatives Bo Crowe and Chelsea Saunooke; Big Cove Representatives Richard French and Perry Shell; Yellowhill Representative Tom Wahnetah; Snowbird Representative Bucky Brown; and Rose. The three votes opposed to the override came from Chairman Adam Wachacha, Vice Chairman David Wolfe and Birdtown Representative Boyd Owle.