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Council discusses the court system’s place in government

cherokeeLast week wasn’t the first time since the new tribal leadership took office that the issue of separation of powers has cropped up. During the December budget hearings, things got heated in council chambers when Chief Justice Bill Boyum came to discuss the budget for Tribal Court.

“My position, for reasons unknown to me, has been essentially reorganized and sent to report directly to the chief and put under the chief’s budget,” Boyum told Tribal Council. “I don’t really have to tell you what that does to the court system. It destroys the court system.”

Lambert’s proposed budget, Boyum said, provided “down to the penny” what he’d asked for but moved the budget for his position, chief justice, under that of the principal chief. 

“If I report to the chief, he is essentially my client and then I can’t hear any case because the EBCI (Eastern Band of Cherokee Indians) is involved in nearly every case,” Boyum said. “It essentially takes me out of the picture. Maybe that’s what someone wants.” 

Lambert bristled at the implication. 

“I resent those types of comments, because there was no ill intent intended there,” he said. “If he (Boyum) bothers to look at the org chart, he remains in the same place. It is merely a matter of budgeting.” 

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Legally speaking, Lambert continued, Tribal Court is not currently a third branch of government with power equal to the executive and legislative branches. The change was mostly just a form of budgetary housecleaning, designed to place officials of equal levels on the same line. 

“Until we get that third branch of government, that’s all this is intended to do is be consistent,” he said. 

Councilmembers hold differing opinions on Tribal Court’s place in the government. Some maintain that it is, in fact, a third branch of government, while others hold that it’s not. 

“Despite what Patrick (Lambert) says, there is a judicial branch. Just because it’s not in the charter or constitution doesn’t mean it doesn’t exist,” said Councilmember Travis Smith, of Birdtown, pointing out that the three appointed judges are nominated by the chief, confirmed by Tribal Council and fall outside the personnel policy the executive branch administers. 

“The code does clearly state that the judicial power shall be vested in the judicial branch,” agreed Councilmember Anita Lossiah, of Yellowhill, adding that, “it is vital that we keep them (the branches of government) separate.”  

Other councilmembers held the opposite view. 

“You got a chief and then you got a council, and that’s established by charter. The court should fall below the chief and be out from him,” said Councilmember Teresa McCoy, of Big Cove. “I’m sorry, that’s what I think. You are not a separate branch of government.” 

“I’m saying no, they’re not,” said Councilmember Adam Wachacha, of Snowbird, agreeing with McCoy. 

Despite the differing opinions, council opted to move the budget for Boyum’s position back where it had been, under Tribal Court. But with Lambert’s office moving toward creating a draft constitution for the tribe — none currently exists — and a new tribal leadership with a set of views apart from those of the previous cohort, the issue of separation of powers will likely come up again.   

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