“The Court, based upon review of the record and briefs, and consideration of oral arguments, hereby vacates and reverses the decision of the Board of Elections denying certification to Teresa McCoy as a 2019 candidate for the Office of Principal Chief of the Eastern Band of Cherokee Indians,” reads the order, issued at 10 p.m. Monday, April 29. “The Court hereby orders the Board of Elections to certify and place Teresa McCoy on the primary ballot as a 2019 candidate for the Office of Principal Chief of the Eastern Band of Cherokee Indians.”
The decision followed nearly four hours of arguments Monday before a three-judge panel consisting of Chief Justice Kirk Saunooke, Associate Justice Brenda Pipestem and Associate Justice Robert Hunter.
Hearing before the Board of Elections
McCoy was denied certification to stand for election in an April 1 letter that stated she was ineligible due to tribal law that bars people who have defrauded the tribe from running for public office.
The incident in question dated back to 1996, when McCoy and her sister-in-law Kathie McCoy attended a Native American Graves Protection and Repatriation Act consultation at the University of Alabama. At the time, McCoy represented Big Cove on Tribal Council and Kathie McCoy was the tribe’s NAGPRA representative. Both women received a travel advance from the tribe to pay for food and lodging, with Kathie McCoy also receiving compensation for mileage; McCoy’s advance was $432 and Kathie McCoy’s was $475.80. However, the University of Alabama later mailed checks to the two totaling $1,500 apiece. The payment included a $1,000 consultation fee as well as reimbursement for mileage, lodging and meals, according to vouchers the university prepared as copied in the board’s investigation.
According to the election board, the incident qualified as defrauding the tribe, because McCoy accepted travel reimbursement from the university when tribal funds had already been expended to cover those costs. She should have repaid the travel advance to the tribe and diverted the consultation fee as well, since she was already being compensated for her time as a Tribal Council representative. The board further found that McCoy had “aided, abetted or encouraged another to defraud the tribe” when she signed the back of Kathie McCoy’s check from the University of Alabama.
McCoy was quick to appeal the decision, with Waynesville attorney Rusty McLean representing her during a two-hour hearing before the election board Tuesday, April 9. McCoy had asked that the hearing be televised and open to the public, but the board denied that request — information as to what was said in that hearing comes from a transcript of the hearing provided by McCoy. The Board of Elections did not respond to a request for the transcript.
During the hearing, McCoy called six witnesses — including herself — to testify under oath.
McCoy testified that she and Kathie McCoy had both attempted to fill out the university’s form requesting mailing information for the check with Tribal Finance’s address but were told they had to put their own names on it, as the money was specifically meant as an honorarium. No investigation commenced until more than a year later, when then-Vice Chief Gerard Parker resigned under investigation.
“Chief Parker came up and he was going out the door,” McCoy said. “He pointed a finger at myself and Ms. Regina Rosario. Both of us had our hearings before Tribal Council in June of 1997, and we were both cleared of any wrongdoing.”
McCoy testified that she claimed the income from the university on her taxes and that at the time all she was required to do in terms of financial reconciliation of travel expenses was to turn in her motel receipts. After the hearing before Tribal Council, she said, it came out that then-Principal Chief Joyce Dugan regularly took honorariums and put that money into an education fund for students. McCoy said she later donated $1,000 — the amount of the honorarium — to that fund.
Kathie McCoy didn’t steal either, said McCoy, and contrary to the election board’s allegation she did not take Kathie McCoy’s money and deposit it in her own account. She simply cashed the check for her sister-in-law and brought her the money, as Kathie McCoy had to get to work and didn’t have time to run by the bank.
The Cherokee Indian Police Department began investigating the incident around April 1997 — 15 months after the trip to Alabama — and concluded that investigation in August or September of the same year. McCoy was never interviewed as part of the investigation or even told it was happening, according to documents from the police department contained in the election board’s investigation. The Tribal Council at the time held a hearing on the accusations against both McCoy and Rosario on June 27, 1997, and did not pursue action against either woman.
“(Chairman Jack) Gloyne said the matter is resolved as far as Tribal Council is concerned,” reads an article The Cherokee One Feather published at the time. “He said any action depends on what the U.S. District Attorney’s office does.”
That office declined to charge McCoy in 1999 and again in 2003, according to documents contained in the election board’s investigative report against McCoy. McCoy has been certified to run for office in every election since the 1996 trip — in fact, in the election held in September 1997, just over two months after the hearing before Tribal Council, McCoy was re-elected to the body as the top vote-getter in Big Cove, according to an article The One Feather published at the time.
During the same April 9 election board hearing, Kathie McCoy testified that she was never told to pay the tribe back from the money the university had given her, that she also claimed the payment on her taxes and that “nobody tells me what to do” — McCoy had not told her to defraud the tribe. Terri Henry, who in 1997 worked as a tribal administrator for Dugan, testified that McCoy had donated $1,000 to the chief’s education fund.
The election board’s decision to deny McCoy certification was based largely on a 39-page packet consisting of various documents from the police department, NAGPRA, tribal finance and Tribal Council. All documents date from 1995 to 2003, save one. Embedded in the packet is a verification sheet, signed by McCoy and dated April 6, 2017, that states “Teresa McCoy, first being duly sworn, deposes and says that she has read the foregoing Verified Complaint and the allegations therein, with the exception of those made upon information and belief, are true to the best of his own knowledge.”
The document’s placement within the investigation packet implies that McCoy is verifying the packet’s contents are true. However, the string of numbers at the bottom of the sheet shows that it actually matches a case McCoy filed against Tribal Council in 2017 relating to the impeachment of then-Principal Chief Patrick Lambert. The election board did not interview McCoy as part of its investigation of her.
“It’s to another case, nothing to do with this, separate, and actually that’s criminal,” Lori Taylor, who worked as a paralegal on the case, said in the hearing. “You can’t do that.”
The testimony offered April 9 did not convince the election board to reverse its opinion. In a letter issued Monday, April 15 — a copy of the letter was provided by McCoy, with the election board not responding to a request for the document — the board upheld its decision, again unanimously.
“The information presented at your appeal hearing did not disprove the underlying issues involving your conduct that we concluded constitute actions that both ‘defrauded the tribe’ and aided or abetted, counseled or encouraged Kathie McCoy in defrauding the tribe,” the letter reads.
Appeal to theSupreme Court
Attorney James Kilbourne filed a notice of appeal to the Cherokee Supreme Court on McCoy’s behalf Tuesday, April 23, along with a motion to expedite the hearing, as ordinance requires the election board to have absentee ballots available by May 1. The court responded with a Wednesday, April 24, order staying the election board’s decision, ordering the board to file its record on the case by 3 p.m. Thursday, April 25, requiring both sides to file briefs by 8:30 a.m. Monday, April 29, and scheduling arguments for 1 p.m. April 29.
In his arguments, Kilbourne focused on the lack of fundamental fairness and due process he believed McCoy had seen in her dealings with the board.
A key problem, he said, is the incomplete information McCoy was given as to the election board’s investigation. When the board filed its record with the court April 25, that record included 10 pages of notes from interviews conducted with Dugan, Cherokee Indian Police Officer Neil Ferguson, 1997 Tribal Council Attorney Rob Saunooke and 1996 Director of Cultural Resources Lynn Harland.
McCoy had apparently not received those interview notes or known they existed at the time of her hearing before the election board. The interviews were not done under oath, and there’s no record as to who was present for them, said Kilbourne. That left McCoy with an “impossible burden” in proving her case.
“Her due process was violated because she was not able to access those particular notes,” Kilbourne said.
Further, he said, it’s clear that the board applied an unequal level of scrutiny to the 55 people who filed to run for office. The list of candidates includes someone who was charged with but acquitted of embezzlement, someone who was indicted for a federal felony but pled guilty to a misdemeanor and someone who was accused and cleared of wrongdoing during the same 1997 hearing as McCoy. If a cleared accusation from 20 years ago was enough to result in an investigation of McCoy, why did similarly resolved incidents not prompt investigations of other candidates, asked Kilbourne?
“Let me make this very, very clear,” said Kilbourne. “I know the individuals we discussed. They’re all fine, upstanding people who should be allowed to stand for election. We also believe Teresa McCoy should have been certified.”
The election board “oversimplified” the definition of fraud, he said, to a case of “I know it when I see it,” and failed to point to any single statement McCoy made that was knowingly false. She was entitled to her travel advance and received the university’s payment only after cashing her tribal check. There is no evidence that she knew the payment included compensation for expenses in addition to the honorarium, he said, as the voucher included in the investigation packet that outlined the line items in the $1,500 check was not given to McCoy. No policy in effect in 1996 has been brought forward to show that McCoy would have been required to reconcile her expenses after the travel occurred.
“No statement of material fact that Teresa McCoy made was ever knowingly false,” he said.
While he perhaps couldn’t argue it to meet a standard of proof, said Kilbourne, it’s suspect that the only two women to file for principal chief — McCoy and Mary Crowe — were not certified, especially given that the Eastern Band has had a female principal chief for only four years out of its recorded history.
Pipestem asked whether he had any actual evidence that gender inequality was at play.
“I think it’s pretty easy to argue that on a historical basis there was gender discrimination that kept them (women) from running for chief,” Kilbourne replied.
The election board’s argument
During his arguments, the election board’s attorney Chris Siewers said that McCoy had received “ample due process” and that a bar on allowing people who have defrauded the tribe from running for office has been part of tribal law for centuries.
“There’s no requirement about what type of fraud happened or how much money was stolen or how long ago it occurred,” he said.
As to the interview notes that McCoy was not given prior to her April 9 hearing, Siewers said they simply constituted research to “give context” and that they were conducted with people McCoy would have known had knowledge of the incident. She could easily have called those people to the stand, he said, even without seeing the interview notes.
“The interviews don’t spell out anything new or explosive or mind-blowing,” he said.
However, later in his arguments he quoted sections from the interviews with Dugan and Saunooke that, if true, would have indicated that McCoy knew she had done something wrong.
“Teresa came in to meet with Rob (Saunooke) and was asking for his help. She was crying and very emotional,” he read from the interview the election board conducted with Saunooke. The notes went on to say that McCoy admitted to taking money and was considering resigning her office.
“Again, that’s unsworn testimony,” responded Justice Hunter.
Hunter questioned Siewers closely throughout his argument, especially as it related to the role of unsworn testimony.
Siewers told the court that tribal law does not require testimony in such investigations to be sworn and said there’s no law stating that McCoy is entitled to the evidence against her — nevertheless, he said, the election board turned the bulk of its investigation over to her.
“You’re really placing the burden of proof on her to disprove something that hasn’t been proven by sworn testimony … I know the board’s operating under what it has set out in the code. The question is does the election code satisfy due process under the Indian Civil Rights Act?” said Hunter.
Siewers, meanwhile, claimed that the presence or absence of due process should not be the focus — the facts, and their ability to prove fraud, should be.
“You could violate her due process all day long, and that doesn’t make her eligible to be certified as a candidate,” he said.
The standard for disqualifying someone from running, he said, is that four of the six people who sit on the appointed election board vote in favor. In this case, the decision to deny McCoy’s certification was unanimous.
That description did not seem to sit well with Hunter.
“Is that the standard? ‘In my opinion?’” he asked.
“The standard is that four out of the six have to agree to it,” Siewers replied.
“But what are they agreeing to?” Hunter responded.
Siewers went on to say that the court should place little importance on the fact that the Tribal Council in 1997 declined to discipline McCoy.
“Tribal Council did have a function,” he said. “They could censure her. They could impeach her. The fact they chose not to is not a legal act. It’s a political act.”
The fact is, he said, McCoy took money from the tribe. While he admitted that the expense reconciliation process was “a loose process” in 1996, he said that documents in the record show that “everyone else knew you go in and reconcile your travel,” even without firm policies in place.
Ultimately, the court sided with McCoy in an order issued just five hours after the hearing concluded. A written opinion explaining the court’s reasoning will follow, Justice Saunooke said, but due to the “extremely compressed schedule” election law requires, the panel had to issue the order in advance of the full opinion.
Tribal code mandates that absentee ballots be available starting May 1. The primary election is Thursday, June 6.
Outcomes decided on two more certification appeals
Teresa McCoy was not the only candidate denied certification April 1. Mary Crowe, who also wanted to run for principal chief, was not certified. Nor was Sharon Bradley, who filed to represent Big Y on the school board.
Both women had appeal hearings before the board of elections. Bradley said that the board overturned its initial denial and certified her to run. Crowe said she was denied again. The election board has not responded to multiple requests for the official outcomes of these hearings.
“I feel that they have violated my constitutional rights to privacy and due process,” said Crowe.
Crowe’s certification denial letter alleges that in 2011 Crowe signed a housing agreement that required her to pay $105 monthly to the tribe as an administrative fee, but that she stopped those payments. A December 2016 judgment determined that she owed the tribe $5,015, of which $3,848 is still owed. Because the debt is more than 90 days old, the letter said, she is not qualified to run for office.
In her letter requesting an appeal hearing, however, Crowe said she had stopped paying on her account due to the Qualla Housing Authority’s unwillingness to perform necessary repairs to her house.
“I am not 90 days delinquent of payment to QHA, rather QHA is 90 days delinquent of my repairs,” she wrote.
She also took issue with the timing of her denial letter. Crowe — along with everyone else who filed to run for office — received the letter informing her of her certification status April 1, even though election law requires that certification decisions be issued on or before March 31.
The election board’s letter to Bradley alleged that she promised in a 2007 agreement to pay the Qualla Housing Authority $189,000 for a home but was behind $4,500 on her monthly payments. However, in her letter requesting an appeal Bradley said that she has been trying to get the past due balance cleared from her account for more than seven years, but that Qualla Housing has not been able to explain why it’s there. She hasn’t been able to obtain a complete copy of her file, she said, as it was confiscated during the FBI’s raid of Qualla Housing in 2017, but has documentation of all the payments she’s made.
“In all of my meetings with the staff and board of Qualla Housing, I have made it clear that I am both willing and able financially to clear up my account,” she wrote.