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Wednesday, 03 August 2011 12:56

Cherokee descendents lose land over technicality in will

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A family is protesting after they say the Eastern Band of Cherokee Indians seized land they claim is rightfully theirs.

When Gladys Wright died in 2009, she left all of her property to her four children. But last month, Cherokee Tribal Council voted to take 200 acres that once belonged to the family and put it under tribal ownership. The land, located outside Andrews, has long been part of the Cherokee reservation, known as the Qualla Boundary. Only enrolled members of the tribe are allowed to own land, or the child of an enrolled member.

Wright is a tribal member, but her children are not, so she could not leave the land to them outright. But she could grant her children a life estate, meaning they could own and live on the land for their lifetime, but could not pass it on when they die.

When a first descendant dies, or if a tribal member doesn’t leave a will, any trust land reverts back to the tribe.

The complicated nature of land ownership means that wills leaving property to heirs comes to tribal council for approval. Most of them are pretty routine and are often settled and voted on in less than five minutes.

Most of them, however, don’t concern a 200-acre tract where the tribe has expressed interest in building a satellite casino — as is the case with Wright’s land.

The tribe claims Wright’s will granting her children a life estate on the property wasn’t properly executed, and it was in its rights to take back the land.

Wright’s children and critics of the move say the tribe capitalized on a technicality: it only had one signature.

The will itself was pretty clear that Wright wanted the land to go to her children. But Wright’s final will had only one witness signature on it, and North Carolina State Law requires at least two.

Elizabeth Poscich, one of Wright’s daughters who lives on the property in Cherokee County, said she was blindsided by the decision.

“I didn’t even know this had happened,” said Poscich. “A concerned citizen called me and told me.”

Poscich said she thought everything had been settled, especially since the will had been probated in Kentucky, where Wright died, and stamped and accepted by the tribal clerk of court nearly a year ago.

Last year, too, tribal council passed a resolution about buying the land. Poscich said she was never contacted, but some of her siblings were not keen to sell.

The tribe has been eyeing the land for a hybrid gaming facility — not quite a casino but more than a bingo hall.

And to build the gambling center, the tribe needs the land. It purchased around 400 acres of adjoining, non-trust land last year, but gambling activities can only be conducted on land that was part of the original Qualla Boundary.

Though the family sees it as a technicality, Tribal Attorney General Annette Tarnawsky explained to tribal council members that the tribe defers to state law when it comes to the validity of wills. And without two signatures, it can’t be valid.

At the time, Council Member Diamond Brown voted to reclaim the property for the tribe. But he now says he wishes he’d had more time and more information before casting that vote.

How are people supposed to know, said Brown, that they need two signatures? Wright’s will only had a printed line for one witness, and the tribal court accepted it. Who was supposed to tell her she needed more?

“If you notice, it [the will form] does not have a place for two witnesses,” said Brown. “If I went in there and did the same thing and gave all my bequeath to my children, well I think I’m legit, I think I’m on the up and up.”

And because the will was accepted by officials in Kentucky and at the Eastern Band’s own tribal court, Poscich and her family thought the same.

There’s something else that, in hindsight, worries Brown as well. Over the years, Welch had drawn up several other wills. And the most recent incarnation before the disputed will did, indeed, have two signatures.

Tarnawsky told council members that it didn’t mention property in Cherokee County, though.

“It does not say Cherokee County, but it does say ‘all my property,’” said Brown. “It’s plain to see that she wants her children to have that land. I know they want the land, but from what I gather from what I read from all the wills, her children have the right to it.”

The chief, however, stands by the choice made in council.

“…[The] probate documents failed to comply with the Cherokee Code’s inheritance law,” said Hicks in a statement, though he conceded that the case highlighted a problem that could affect more than a few enrolled members. “As principal chief, I believe it’s imperative that every enrolled member feel confident and secure that their wishes for passing on their possessory holdings will be upheld and carried out.”

In response, the tribe will now offer will services to members for free starting October 1, hiring attorneys to draft new wills and review existing documents for any member who shows interest.

Poscich and her family, meanwhile, are coming to Thursday’s Tribal Council meeting to fight the ruling. Diamond Brown said he’ll support the family, along with Council Members Terri Henry and Teresa McCoy. Henry and McCoy were the only council members who didn’t vote for the measure. They moved to table it until the family could come to speak in their own defense.

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