Lawsuit filed against former tribal leadership
The day after Cherokee’s new chief and vice chief took their oaths of office, a lawsuit naming nearly all the Eastern Band of Cherokee Indians’ elected leaders from the previous term found its way to the courthouse.
The lawsuit — which names nine of the 12 members of the 2013-15 Tribal Council, former Principal Chief Michell Hicks, former Vice Chief Larry Blythe, Deputy of Finance Kim Peone and four members of the 2011-13 Tribal Council — takes issue with the salary increases council voted itself last year. From the outset, the five-figure raises and back pay checks had aroused the ire of tribal members, prompting a group of them to band together to do something about it, under the name EBCI for Justice and Accountability.
“The illegal pay raises contributed to a climate of distrust of our Tribal Council and Executive Branch,” said Lea Wolfe, a member of the organization. “Tribal Council disregarded our laws as though they didn’t exist. They need to be held accountable.”
According to the tribe’s Charter and Governing Document, council can vote itself a pay raise, but members can receive the extra money only after the next election takes place and the new council is seated. However, in October 2014, Tribal Council voted 9-1 to enact a budget that included raises of more than $10,000 apiece for councilmembers — effective immediately — as well as back pay for the years when they supposedly should have already been receiving the extra money. Some of the back pay checks totaled more than $30,000, and some of them went to former councilmembers who no longer held their seats when the raises were approved. Hicks and Blythe also received back pay checks.
Hicks, who was principal chief at the time and introduced the budget ordinance, told council that the raises were legal, as they were not technically raises but rather “pay adjustments” to comply with a 2004 ordinance that said council pay should increase at the same rate as that for tribal employees. Council hadn’t gotten a raise since 2007 when, incidentally, the sitting council had voted itself a $10,000 raise. Council pay needed adjusting to comply with Cherokee code, Hicks said.
Interim Attorney General Hannah Smith had agreed with that point of view in council chambers, but a memo she wrote to Peone and Hicks in September 2014 said the opposite.
“Section 117-15 (a) of the Tribal Code states that the pay increases for Tribal Council members shall not exceed an amount appropriated in that fiscal year for tribal employees and that the pay increase shall not take effect until the next elected legislative body is seated,” she wrote.
Meghanne Burke, attorney with the Asheville-based firm Brazil & Burke, has been working with members of EBCI for Justice and Accountability to file a lawsuit since this spring, but the group decided to hold off on filing until after the tribe’s newly elected leadership was seated.
“We thought that we’d have a better opportunity for that once the Tribal Council and chief was sworn in,” Burke said, referencing the influence that the executive branch of Cherokee government has on its judicial branch. She felt that the suit might not have gotten a fair hearing if filed while Hicks was still chief.
The suit, filed in Tribal Court, contends that councilmembers acted illegally when they passed the budget and that Peone was at fault in her official capacity for carrying it out. It accuses Hicks and Blythe of civil conspiracy for introducing and failing to veto the budget ordinance containing the raises. The suit contends that they knew it was illegal and had agreements with each other and with members of Tribal Council to “violate Cherokee Code 117-15 (a) and the Charter and Governing Document.”
The suit requests a preliminary injunction on payouts of the hiked salaries — councilmembers now receive $80,600 per year, with higher salaries for the chair and vice chair — and reversal of the portion of the budget ordinance allowing the pay increases, as well as a return of salary raises and back pay already paid out.
Burke also questions the validity of the budget ordinance itself, alleging that it was not enacted during an official council session. Tribal Council enacted the budget ordinance at the end of a budget hearing, rather than during a regularly scheduled Tribal Council meeting.
“Traditionally, no official acts are taken during budget hearings,” Burke said. “That’s just an opportunity for council to hear from different groups.”
Many of the trappings of a traditional meeting, such as roll call, representation from the Bureau of Indian Affairs and other formalities were missing at the budget hearing where the budget was passed, Burke said.
“There’s an interesting question for the court, which is, is a budget that was passed outside of official session an official law?” Burke said.
The defendants will have 30 days to respond to the claims, with a request for a 30-day extension likely. Burke is requesting a trial by jury in Tribal Court.
“I think it’s evident that this has provoked the ire of the people, and people are paying attention,” she said.
Hicks declined to comment for the story, as he hadn’t yet seen a copy of the lawsuit when contacted. Neither Blythe nor Shenan Rae Atcitty, a Washington, D.C., attorney who had been working with councilmembers after Burke sent a demand letter apprising them of the impending suit this spring, returned a request for comment by press time.
Who’s named in the suit?
- Councilmembers from 2013-15: Terry Henry, Bill Taylor, Gene “Tunney” Crowe, Jr., Alan “B” Ensley, Albert Rose, Tommye Saunooke, Perry Shell, Adam Wachacha, David Wolfe, all named individually.
- Councilmembers from before 2013-15: Diamond Brown, James, Owle, Michael Parker, James Taylor, all named individually.
- Tribal employees: Kim Peone, in her official capacity as deputy of finance.
- Chiefs: Former Principal Chief Michell Hicks and former Vice Chief Larry Blythe, named individually.