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Wednesday, 17 May 2017 14:12

Cherokee court allows impeachment to continue

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The Cherokee Supreme Court issued a pair of rulings last week that paved the way for impeachment efforts against Principal Chief Patrick Lambert to continue. However, the order left several key points of contention unaddressed, meaning the issue will likely continue to appear on the court schedule.

Though Lambert’s attorney Scott Jones said he was “disappointed with the court’s ruling,” he found elements of it encouraging. 

The Supreme Court upheld the lower court’s ruling that, because Tribal Council has not yet voted to remove Lambert from office, he doesn’t have any basis to sue — at least, not yet. Presumably, Lambert could return to court if Tribal Council did vote to remove him. At that time, the court could rule on still-unanswered questions, such as whether Lambert has a right to due process and whether that right has been violated, or his claim that Tribal Council ignored tribal laws when moving the impeachment forward.  

“We were pleased to see that the court did have jurisdiction to answer these questions, and that the court’s ruling on the Chief’s claims was, essentially, that he had come to court too early,” Jones said. “There will now be an impeachment trial, and we will likely be back in court after that.”

An impeachment hearing has been scheduled for 10 a.m. Monday, May 22, and Lambert fully expects that it will end with a vote to remove him from office. If that happens, his legal team will likely make a beeline to court. 

SEE ALSO: Impeachment hearing scheduled for May 22

Meanwhile, Council’s attorney Rob Saunooke sees the rulings as a clear victory for his client. Siding with Saunooke’s arguments, the court found that Council has the authority to both impeach and remove any elected official and that Grand Council decisions don’t carry the force of law unless they’re backed up by an action of Tribal Council. The decision also upheld the lower court’s denial of Jones’ request for an order halting impeachment proceedings until the court could schedule a hearing on the full case. 

“I’m not surprised. The law is very clear,” Saunooke said. “The Attorney General’s arguments about the inability of the tribe to impeach and remove were beyond disingenuous.”

Impeachment-related litigation has been circulating through the Cherokee Tribal Court since a series of actions Tribal Council took April 6 to adopt articles of impeachment against Lambert, set an April 20 hearing date on the matter and suspend him from office until the hearing concluded. 

Lambert immediately filed suit, saying that council did not have the authority to suspend him — Temporary Associate Judge Sharon Tracey Barrett agreed, issuing a preliminary injunction to stop the suspension — and also arguing that Tribal Council did not have the authority to remove him from office through impeachment. The suit was later amended to reflect a variety of other complaints. Lambert alleges that Tribal Council broke the law by not publishing the impeachment resolutions before bringing them to the floor, by conducting secret meetings and by depriving him of his due process rights. The suit also argued, among other points, that some Tribal Council members have “an irredeemable conflict of interest” in the impeachment hearing and that the impeachment is retaliation for Lambert’s own investigations into wrongdoing in tribal government. 

Lambert asked that Barrett issue a preliminary injunction in the case, which would prevent Tribal Council from making any more impeachment-related decisions until after the court had heard and decided on the full case. In hearings April 17 and April 24, Barrett heard arguments for and against the preliminary injunction, eventually issuing a decision denying the request. Lambert appealed the decision to the Cherokee Supreme Court, which held hearings May 9 and 10. 

In addition to Lambert and Tribal Council, the case contained a third party — Attorney General Danny Davis, who intervened on behalf of enrolled tribal members. 

“I wasn’t sure these two feuding branches were going to protect this government, and the processes that are important and the legal questions that need to be answered,” Davis told the court May 9. 

The hearing included a great deal of back-and-forth between Presiding Chief Justice Brenda Toineeta Pipestem and the three parties as to whether the law actually gave Davis the authority to intervene of his own accord. However, the ruling did not include any statement on the matter. 

The Cherokee Supreme Court consisted of a three-justice panel, including Pipestem, Associate Justice Robert Hunter and Associate Justice Jerry Waddell. The one-page orders were not attached to any written decision, but the documents promised that a decision explaining the rulings would follow. 

May 9: Does Tribal Council have the right to remove Lambert? 

Order: Impeachment can proceed; Tribal Council has power to impeach and remove; preliminary injunction denied

From the legality of Tribal Council’s own actions while pursuing impeachment to Council’s authority to remove an elected official from office, the May 9 hearing covered a wide range of topics. 

“We are here because Tribal Council claims absolute and all-encompassing power unrivaled by the rule of law,” Jones told the court. “I want to argue to you instead that even the lawmakers must follow the law.”

Jones argued that the impeachment was plainly retaliation for Lambert’s efforts to expose corruption in tribal government, pointing out that the impeachment process was initiated during a spontaneous motion from the floor made at the same time that the FBI was busy raiding files at the Qualla Housing Authority, on whose board six Tribal Council members sit.  

Since then, Jones said, Tribal Council has broken laws requiring that proposed resolutions be provided to all councilmembers at least five business days before council meetings, as well as laws stating that only the principal chief can call a special session of council. Multiple impeachment-related resolutions — including those containing articles of impeachment and proposed hearing dates — were voted on with no prior publication or public notice, and this spring Tribal Council held at least two sessions outside of its normal meeting schedule that Lambert did not authorize. 

In addition, Jones said, Tribal Council shouldn’t even be allowed to preside over the impeachment hearing, as many of its members have conflicts of interest and preconceived notions about what the outcome should be. 

“Tribal Council was involved in the investigation, brought the charges, has amended the charges, has members who are witnesses of the charges and some who are subjects of the federal investigation,” Jones said. “Some Tribal Council members have already decided the outcome before having heard the evidence.”

Davis made arguments along the same lines. Because Cherokee doesn’t have a bicameral legislature, it can’t handle impeachments like the U.S. federal government and most U.S. states do, with one house bringing charges and another voting on them. However, Davis said, “they could have isolated themselves a little better from this than they have,” perhaps hiring a special prosecutor to investigate so councilmembers could be shielded from the evidence until the hearing. Because councilmembers have been so involved in the investigation, Davis said, they’re not qualified make a fair decision. 

Further, Davis said, Cherokee law doesn’t give Tribal Council the authority to remove impeached leaders. Since the 1986 charter was enacted, he said, no elected leader has been removed by impeachment — those who left due to impeachment charges resigned of their own accord. Tribal Council did not remove them. 

“My argument would be that the people have the right to remove, not the Tribal Council,” Davis said. 

Even if Tribal Council did have the power to remove, Davis argued, this Tribal Council should not be allowed to do that because it’s not properly constituted. The tribe’s Charter and Governing Document requires that a census be conducted every 10 years, but the last tribal census was done in 2001. Therefore, he said, there’s no way to know if council’s vote on impeachment actually meets the two-thirds requirement. Votes are weighted based on the population in each member’s district.

Saunooke, who has filed a motion to dismiss the overall case on the basis of sovereign immunity, rejected those arguments. 

“In some ways I feel like I’m at a Baptist revival with people picking parts of Scriptures out to support their personal opinions,” he said. 

According to Saunooke, Lambert has no right to due process. That right is granted through the federal Indian Civil Rights Act. Saunooke argued that the Indian Civil Rights Act applies only to criminal proceedings and said that it doesn’t apply to the impeachment situation because there is no inherent right to hold office. 

His reading of the law, Saunooke told the court, shows it to be “very clear” that removal and impeachment go hand-in-hand. For instance, there’s a section of Cherokee code stating that impeached officials are no longer eligible to run for office. If “impeachment” means only that someone has had charges brought against them, not that those charges have been deemed valid, then why would such a provision exist?

“The idea that they can impeach and the ghost of the former chief can walk around the tribe as if he’s still in power is a ridiculous argument, quite frankly,” Saunooke said. 

As to Davis’ argument that impeachment should be halted until a census could be completed, Saunooke said that there’s no proof that the weighted votes are inaccurate. Instead, there’s merely a possibility that they could be. 

“They haven’t demonstrated that the way we are currently voting in our council is incorrect,” Saunooke said. 

The court came down on Saunooke’s side. A ruling issued May 10 upheld Barrett’s decision to deny the request for a preliminary injunction. Furthermore, it said that Tribal Council does indeed have the authority to both impeach and remove. It also lifted the stay over impeachment proceedings that had been in place since April 17. 

May 10: Can Grand Council supersede Tribal Council?

Order: Grand Council decisions do not carry force of law if not backed up by Tribal Council; Tribal Council has power to impeach and remove. 

The second day of hearings focused on the role of Grand Council — in particular, the question of whether the Grand Council of enrolled members that Lambert held April 18 had the power to overturn Tribal Council’s decision to pursue impeachment. 

When it comes to Grand Council, all tribal law says is that the principal chief has the right to call one. According to Jones, that means that the court should look to Cherokee traditions and customs to fill in the gaps. And he believes that those traditions and customs describe a gathering that holds authority higher than that of Tribal Council. 

In his argument, Jones referenced the transcript of a meeting that former Principal Chief Joyce Dugan held in 1995 to study the traditions surrounding Grand Council. A back-and-forth between Dugan and Cherokee historian Walker Calhoun has Calhoun saying that Grand Council had the power to overturn a decision of Tribal Council. 

Jones also referenced a pair of examples from the 1970s. In 1972, he said, a Grand Council was held in which members voted to accept a settlement from the federal government related to destruction of Cherokee historic sites while building the Tellico Dam. And in 1979, members gathered once again to draft a constitution, voting to put it out for the required Bureau of Indian Affairs-administered election to be considered for adoption. The settlement was accepted, and the election was carried out, Jones said. 

Chris Siewers, representing Tribal Council, took issue with that summary, particularly regarding the outcome of the 1979 Grand Council. While the election was eventually carried out, that happened after Tribal Council passed a resolution to accompany it to the Bureau of Indian Affairs. And before that resolution passed, another one was enacted to kill the draft constitution. 

“Tribal Council killed it and they had the power to do it,” Siewers said. “Nobody at that time questioned it.”

But Siewers particularly ratcheted up his criticism when it came to how Lambert’s April 18 Grand Council was conducted. Unlike previous Grand Councils, he said, this one was not advertised in The Cherokee One Feather but was instead called over Facebook just one week ahead of time. And, while ballots were cast with the results overwhelmingly in support of Lambert, according to Siewers the numbers are not reliable. 

“There were numerous ways this vote was problematic,” he said. “People could vote before resolutions were read on the floor. Some people cast votes and things changed later on.”

Siewers referenced a letter from the Cherokee Board of Elections, which was not involved in the election at Grand Council. The letter details “reports of voter coercion, voter irregularities,” Siewers said, and concludes that “they don’t consider it to be a valid vote of the tribe.”

For his part, Jones defended the way the Grand Council was set up and the validity of the votes taken. Regarding notice, Jones said, Lambert did the best he could with the time he had. The way Tribal Council was handling the impeachment, he said, “things were just on a speeding train.” There was no time to advertise in The One Feather’s print edition, but notice was posted to its website and Facebook page. Lambert advertised the meeting on his own Facebook page, and flyers were placed in Cherokee’s P.O. boxes, though they were not sent to all enrolled members. 

“I don’t mean to be glib about it, but I can’t think of a better way to say it. The proof is in the pudding,” Jones said. “Far more tribal members attended this Grand Council than any ever recorded.”

The meeting drew 1,355 people, with 1,140 enrolled members voting on the impeachment issue. Of those, 84 percent voted to end the impeachment. While turnout included less than 10 percent of all enrolled members, the number of people voting on the impeachment issue was 31.3 percent of the number voting in the 2015 chief election.

Jones also pointed out that the court had a video of the entire proceedings and an affidavit from the tribal employee who arranged logistics for the meeting. 

“If there’s any question of any monkey business that went on, it should be apparent from that, and there just weren’t,” Jones said. 

The judge’s order didn’t say anything about the validity of the vote or whether Lambert had advertised the meeting sufficiently to term it a Grand Council. But it did conclude that a Grand Council can’t legislate. For a decision of Grand Council to carry the force of law, the court decided, it must be backed up with a resolution from Tribal Council.

“The ability to have our own court system is one of our truest exercises of our sovereignty,” Pipestem said as the May 10 hearing came to a close, between 11 a.m. and noon. “We’re able to make the laws but if we can’t enforce those laws what good are they? We have a heavy burden on us here today.”

An order was filed just hours later, at 5:09 p.m. that day, with an amended order filed at 9:41 p.m. May 11. 

 

Audit documents released

Principal Chief Patrick Lambert has decided to publicly release the forensic audit reports that he believes are the reason Tribal Council is attempting to remove him from office. 

The documents, which were released just before press time, include 465 pages of audit reports that RGL Forensics completed investigating the Qualla Housing Authority and expenditures in the executive office during the administration of former Principal Chief Michell Hicks. The Office of Internal Audit’s audit of Qualla Housing is included as well. 

According to an attached letter from Lambert, the reports show a pattern of “waste, fraud, and abuse,” including $53,000 in “questionable undocumented travel” from former Vice Chief Larry Blythe, $3,300 in music and media charges from Hicks, $6,500 in apparel and accessories charged to the executive office credit card and a variety of issues with Qualla Housing, such as “questionable write-offs,” “issues with documentation” and “risks for potential cash theft schemes.”

“I was elected by the Cherokee People to serve a term built on the foundation of cleaning up the corruption that has spread throughout our government,” Lambert said. “Little did I know that after launching forensic audits, the results would reveal corruption and mismanagement of Tribal resources from the highest levels.”