Tribal council kicks controversial land ownership to courts

A family whose land was seized last month by the Eastern Band of Cherokee Indians will now have their day in court, after they lodged a protest with tribal council last week.

The tribe had reclaimed the land, citing a technicality in the landowner’s will. The will lacked two signatures.

Tribal council voted 10 to 2 last month to take back the land. But the family has come forward with new evidence, an affidavit by a person they say was a second witness to the will. In light of that, Tribal Attorney General Annette Tarnawsky recommended that the issue be moved out of the political arena and into the legal system.

“I would request at this point, if that affidavit is being used as new evidence, I would request that a court rule on this,” said Tarnawsky, noting that there is case law in North Carolina that has dealt with similar issues.

But tribal council still spent more than an hour deliberating and debating the issue before finally deciding to absolve themselves and send it instead to tribal court.

In that hour, it was not only the issue itself that was debated, but a slew of other problems that it illuminates.

Several members returned to this month’s session complaining that they had little time to look over the documents of the case before they had to vote. The case had 12 pages of evidence, but those packets were only given to council members a few minutes before the vote.

“My concern is that council acted without looking at the information,” said Big Cove Council Member Teresa McCoy. “It’s a dangerous, dangerous thing to do.”

Snowbird Council Member Diamond Brown voiced a public apology to the family for the quick decision made last month. He voted to reclaim the land in July, but changed his opinion after speaking with the family and getting more information.

Even Principal Chief Michell Hicks stepped in to the council house to weigh in on the touchy issue.

“There has got to be a process that clarifies the specifics of the will,” said Hicks. “We’ve got to get that in place. We don’t want to see any family in this situation, but our duty is to uphold the law.”

Hicks added that, in this particular situation, he thought it deserved a hearing.


Tract of value to the tribe

The land in question is a 200-acre tract in Cherokee County, which just so happens to be adjacent to land the tribe bought last year to build a secondary gaming establishment.

The tract is part of the reservation, and like all reservation land is collectively owned by the tribe. But land rights can still rest with individual tribal members, and in this case the land rights belonged to Gladys Wright until she died in 2009. She thought she left those rights to her four children.

While Wright was an enrolled member, her children don’t meet the blood degree. They were entitled to land rights for the remainder of their lifetime only, and after that it would have  reverted to the tribe anyway.

However, when the chief asked Tarnawsky to buy the property for the tribe for the proposed gaming establishment, that’s when the will was examined and the questions over its validity emerged. Those questions, in turn, made it impossible to buy the land since it lacked clear title.

“I would have loved to have bought this property and not had an issue,” Tarnawsky said.

And that brought up yet another issue: the absence of legal counsel at tribal council.

Tarnawsky is the attorney general for the tribe, but she answers directly to the principal chief.

Painttown Council Member Terri Henry pointed out the inherent flaw in that system — what happens when tribal council needs its own legal advice? What if the advice it needs conflicts with what the chief or the rest of the executive branch wants?

“We essentially have a person who reports to him [the chief] standing up and advising the council,” said Henry. “We do not have a lawyer in this chamber to represent and report to the council.”

And, she concluded, they need one.

After the lengthy deliberations had concluded, however, the council made only one decision: to allow Gladys Wright’s four children to defend their mother’s will in tribal court.

And out of that single decision came a host of new issues that are sure to resurface in the future. As it turns out, the rules determining what makes a will valid or invalid aren’t exactly clear.

Although the Cherokee Code defers to state law for declaring a will valid or invalid, the Cherokee Charter, which legally trumps the code, doesn’t.

And then there’s the tradition of oral wills that is longstanding in Cherokee and has before been recognized by tribal council. The tribe also accepts wills from other states, where the rules might be different.

That lack of clarity, said Tarnawsky, makes the whole situation murkier and brings to light a larger issue that, she said, the tribe needs to deal with.

“It really needs to be a decision of council and a decision of the Cherokee people what you want to do,” said Tarnawsky on the broader issue of what constitutes a will.

Jurisdiction quagmire challenges Cherokee courts

Tribal leaders and prosecutors in Cherokee will now have stronger tools to mete out justice to criminals on the reservation, thanks to a bill signed into law by President Obama last year.

The Tribal Law and Order Act of 2010, approved by Congress and the president in July of last year, gives tribal governments and court systems such as the ones in Cherokee increased power and flexibility in fighting crimes that are committed on their lands.

In the past, the jurisdictional tangle surrounding justice for crimes committed on the reservation, along with limited allowances on punishments, have meant that criminals don’t always get the penalties they may deserve for offenses in Cherokee.

Under old law, the harshest sentence a tribal court could impose for any charge was one year in prison and a $5,000 fine, which pales in comparison to the maximum penalties allowed at the state and federal level.

Now, tribes are free to approve penalties of up to three years and are allowed to stack up to three charges. That means that, if adopted by Tribal Council, multiple severe offenders could see as much as nine years of prison time.

To Tribal Prosecutor Jason Smith, this is a huge accomplishment for tribal justice and will change the face of many of his cases.

“It’s the biggest change that the new law has brought about as far a criminal liability is concerned,” said Smith. “I’m hopeful that it will allow the tribal court to prosecute and to punish a broader range of crimes more appropriately, to more appropriately and effectively deal with more serious crime than they have done in the past.”


A convoluted court

Committing a crime in Cherokee – and being prosecuted for it – isn’t as cut and dried as it would be outside the reservation. Not everyone who breaks the law in Cherokee can expect to go to tribal court for it, nor can everyone expect that they’ll be held accountable by state or federal law enforcement. As Smith puts it, “jurisdiction is a huge quagmire. It’s not as simple as that.”

To begin with, only enrolled members of the Eastern Band, enrolled members of other federally recognized tribes and non-U.S. citizens can be punished by tribal courts. In Cherokee, they have an extra provision for others who want to fall under the tribe’s authority – a waiver of jurisdiction, in legal speak – but it’s entirely optional and not without controversy.

Everybody else – which includes non-Indian local residents, American tourists, casino patrons – will get pursued by the long arm of some non-Native law, be it local for piddly offenses such as speeding, state for bigger but still victimless crimes, or federal for more major crimes or those perpetrated by Indians against non-Indian victims, and vice versa.

To call it a quagmire is putting it kindly, but according to Smith and Don Gast, his cohort in the U.S. Attorney’s office who prosecutes Cherokee’s federal cases, they do a good job of working within that framework.

According to Gast, his office doesn’t decline tribal cases in the same way they would with non-tribal cases. Of the many cases that come across a normal federal prosecutor’s desk, many are just too small-time to warrant attention in federal courts.  Gast doesn’t do that with cases that come to him from Cherokee.

“We don’t decline cases in our districts on the basis of crimes being not big enough in scope like we do on state cases,” said Gast, because they realize that for these cases, many of which are violent crimes such as rape and child abuse, federal court is their one chance to bring the alleged criminal to justice.


Bringing order out of chaos

Such crimes are the very reason the Tribal Law and Order Act was created. An Amnesty International study found that Native American women were more than twice as likely to suffer domestic abuse than other women in the United States, and a separate Department of Justice study found that one third of Native American women will experience rape in their lifetime.

Although neither of these unusually high statistics is caused by the difficult maze of prosecution and justice tribal jurisdiction creates, both named it as a barrier to lowering those high rates.

In light of that, the other important provision the law makes is a recommendation for formalized procedures for sending cases to federal court and closer communication with the local U.S. Attorney’s office. There’s even a provision for cross-training a tribal prosecutor as a Special Assistant U.S. Attorney, or SAUSA, who would be able to follow cases off the reservation and into federal court and prosecute them there.

In Cherokee, they’re keen to see more cases federally prosecuted. At a special meeting on law and order held last week, more than one member expressed frustration at what they perceive as a high number of cases that don’t get taken to federal court, leaving victims without justice.

Council Member Teresa McCoy believe that some of the burden for making sure fewer cases fall through the cracks should fall to the council.

“Well, if we’re telling our public it just wasn’t big enough for the feds to take, then our laws should handle it,” said McCoy, advocating for adoption of the stiffer penalties the new federal law allows and possible banishment from the reservation for non-tribal members who can’t be prosecuted in tribal court.

“Every time there’s a dismissal there’s a victim and that victim got no help,” she said.

“We still have a way to help ease the pain of the public.”


No state “safety net”

Gast wouldn’t entirely agree with that assessment. He’s firm on the fact that he prosecutes any and every tribal case that comes before him unless it’s out of his jurisdiction or it’s a bad case. And, he said, because of the nature of many of the crimes – domestic, child and sexual abuse, among other violent crimes – there are more bad cases than a normal federal prosecutor, who mostly deals with proactive cases like sting operations, would see.

The sad truth, said Gast, is that often victims won’t or are afraid to speak, recant their stories or don’t want to prosecute their attackers. And this is true across the nation, not just on the reservation.

He maintains that, while tribal cases may be declined more often than non-tribal federal cases, that declination rate isn’t really any higher than the rates for similar crimes in state courts. Unreported or unprosecuted violent crimes are part of a broader, national trend that often has nothing to do with the prosecutor and everything to do with the victim.

“The mission of the U.S. Attorney’s office is to prosecute crime,” said Gast. “And in Indian country, the scope of that mission is broader because we don’t have the safety net of the state court.”

Still, in Indian Country, many would like to see the cracks that criminals have long slipped through closed, in whatever way they can.

Though Gast doesn’t see a need for it, Smith said he’d like to look into the possibility of a SAUSA for Cherokee. “It’s certainly something I think a lot of the public here would be in favor of,” said Smith, an observation that was proven true by public sentiments expressed at last week’s meeting.

But overall, Smith echoed Gast, noting the good working relationship that he enjoys with Gast’s office, a benefit not enjoyed by many western tribes, who are laboring with overworked prosecutors in huge districts.

“We’re in better shape than a lot of places and a lot of reservations because we have that cooperation and we have had with the U.S. Attorney,” said Smith. “But could it be better? Absolutely.”

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