The court had given a one-page order on the case just hours after the May 10, 2017, hearing ended, affirming that Tribal Council has the authority to impeach and remove elected officers, that Grand Council doesn’t have the force of law unless Tribal Council enacts the decisions made there and that Lambert’s claims couldn’t be heard at the preliminary injunction stage. Then-Attorney General Danny Davis had intervened to represent the tribe in the case, and while the court ruled that the time was right to hear Davis’ claims, it said Lambert’s claims came too early, as no impeachment hearing had yet occurred.
That order had included a statement that a written opinion would follow. However, no such opinion materialized until months after the impeachment concluded and a new principal chief was sworn in.
The Supreme Court case was heard by a three-justice panel, and ultimately the three justices were not able to agree on all aspects of the case. The 22-page majority opinion was signed by Justice Robert Hunter and Justice Jerry Waddell, with an 11-page dissenting opinion by Presiding Chief Justice Brenda Toineeta Pipestem.
The majority upheld the original order that Tribal Council could remove Lambert from office, that Council could vote to impeach and remove Lambert even though a census hadn’t been performed in the legally required timeframe to determine how council votes are weighted, and that the April 2017 Grand Council didn’t have the authority to stop the impeachment.
However, the opinion included some statements that could bode well for Lambert’s cause now that the impeachment is over with. The majority held that tribal members have a “substantial right” to a lawful impeachment process.
“The lawfulness of the impeachment process will remain in question after its completion,” the opinion reads. “Consequently, we hold that the answers to the complex legal questions raised in this appeal affect a substantial right, and that right will be lost if we do not hear this case.”
However, the justices were careful to say that they did not want to be in the business of deciding political questions. Whether Lambert should have been removed from office is “a political question that we will not entertain,” the opinion said, but the court can decide if the process used to remove him followed tribal law.
The issue is, who has the authority to ask the court that question?
Sovereign immunity, a doctrine that protects tribal governments from suit unless they explicitly waive that protection, is typically a barrier to those claiming that a particular government action is unlawful. However, the opinion said that sovereign immunity was waived to an extent when Davis brought claims against Tribal Council in his capacity as attorney general. The majority ruled that Davis’ intervention in the matter was lawful.
“All enrolled members of the EBCI, including those who are in favor of impeachment and those who are not, are inherently interested in the legitimacy of the impeachment process itself, and the only means by which they can act to protect that interest is through the Attorney General’s intervention in this matter,” the opinion reads.
Davis’ intervention caused sovereign immunity to be waived, the opinion said, “but only with regard to the justiciable issues raised by the Attorney General on behalf of the EBCI. As to the claims raised solely by Chief Lambert, sovereign immunity has not been waived at the preliminary injunction stage.”
The opinion did not state whether Lambert’s claims might be able to go forward at a stage other than the preliminary injunction stage, but it also didn’t say that they couldn’t. Davis is no longer the attorney general, and the person currently in that position does not share Davis’ views regarding issues with the impeachment process.
Pipestem’s dissenting opinion took issue with the majority’s ruling that Davis had the right to intervene and that this intervention resulted in a waiver of sovereign immunity.
According to Pipestem, the attorney general can prosecute and defend cases in which the tribal government is a party but is not authorized to represent the tribal membership as a whole. While the North Carolina attorney general does have the ability to bring suits on behalf of the state’s citizens, Pipestem wrote, the language in state law granting that ability is absent in tribal law. Because the section of tribal law in question is modeled on state law, she continued, “it appears that the drafters of the Cherokee Code made a conscious decision not to grant the AG the authority to act on behalf of the public interest.”
“Absent the AG’s authority to intervene, this Court is without jurisdiction at the preliminary injunction stage to hear any of the issues raised by the parties because there has been no waiver of tribal sovereign immunity,” Pipestem wrote.
With the Supreme Court opinion now published, the impeachment issue is back in the courts, with the ruling on a March 29 hearing not yet filed as of press time.