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April 14 & April 15, 1997
Cherokee Nation of Oklahoma
Tribal Council Meeting Minutes

Transcribed by Franklin Mclain
Assistant Editor for the Cherokee Observer


Regular Tribal Council Meeting
April 14, 1997 - 6:00 p.m.

CALL TO ORDER:

President Eagle called the meeting to order at 6:25 p.m. in the Tribal Council Chambers, W.W. Keeler Complex.

INVOCATION:

The invocation was given by President Eagle.

ROLL CALL:

Roll call was given by Gina Blackfox, Legislative Aide. The following members were present:

  1. Bill John Baker
  2. Mary Cooksey
  3. Harley Terrell
  4. Barbara Conness
  5. Harold Phillips
  6. Sam Ed Bush
  7. Don Crittenden
  8. Charles Hoskin
  9. Dora Mae Watie

President Eagle stated that 2/3 of the council were required for a quorum at this session of the Council and that a quorum was not present. Council members absent were Harold DeMoss, Paula Holder, William Smoke, Nick Lay, Barbara Starr-Scott, and Troy Poteete. Principal Chief Byrd presented the State of the Nation Address.

STATE OF THE NATION ADDRESS:

Chief Byrd commented that since the previous council meeting the current constitutional crisis has escalated and has reached a point where the stability of our government is in jeopardy. As Principal Chief he must do everything within his power to resolve this situation while maintaining the future of the Cherokee Nation. His first priority is for the safety of tribal citizens, he requested that this evenings meeting be conducted in a calm and peaceful manner. He stated that last week they were very near an agreement which would have put an end to the majority of the controversy. He instructed a tribal attorney to negotiate a settlement with the tribal prosecutor and members of the Judicial Appeals Tribunal. An agreement was reached between the parties, the Justices, and the Executive Branch, and prosecutor agreed and the Director of the Marshal Service did not agree. They were going to reinstate all marshals and place the director and deputy director on contract to complete the investigation They refused. Chief Byrd feels he gave his inch and they refused. They nearly had an agreement and they back downed from it. So they continue to find themselves in a situation where the judicial appeals tribunal continues to issue orders which do separation of powers that the Cherokee constitution is so carefully set up. The same day the court issued an order which placed the largest Cherokee Nation corporation in receivership with the court. This order also removed Jerry Holderby as CEO and reinstated Gerald Cantrell. This effort was done with fully armed marshals last Thursday The same tactics used when they took this complex. This weekend the CEO went to each bingo halls and ordered the hall managers not to deposit any money and that he would send someone to pick the money up Chief Byrd commented a system exists whereby funds are deposited to pay vendors. This amount is nearly one million dollars a week and this type of action could literally bankrupt the most successful business which funds tribal programs at a level of 250,000 dollars a month Today, the CEO fired at least four of the corporate employees for no reason. The court is running the entire corporation. They have not only affected the executive branch, but also the Tribal Council. Where does this end? Chief Byrd does not, at this point, see where within this process, they will ever be treated without prejudice This has become too personalized. The Justices, suing the executive branch, the marshals suing the executive branch, the prosecutor suing legislative branch, where does this end? How can we continue this process without prejudice. The Cherokee Nation is supposed to handle their own affairs. He requested all to remember the individuals who were not present, the elected officials representing tribal members within their districts. By not showing up tonight, they are doing a great disservice to the Cherokee people, what are they afraid of? They were elected by the people; we have a crisis which still exists, we must move forward. Because of this situation, he is again calling an emergency council meeting for tomorrow night at April 15, 1997, 6:00 p.m to address the constitutional crisis. He expressed his appreciation for those in attendance and requested they call their council representatives who were not present in order to move forward.

Following the message, Council member Watie presented an award to Bradley Jones, Division III Heavyweight wrestler, recently participated in the Danny Hodge World Championship held in Las Vegas. Competitors came from as far away as Russia and Bulgaria. Bradley won the title as world champion. Councilman Phillips assisted in presenting a certificate of achievement.

ADJOURNMENT:

President Eagle declared the meeting adjourned.

James Garland Eagle
President


Extraordinary Tribal Council Meeting
April 15, 1997 - 6:00 p.m.

CALL TO ORDER:

President Eagle called the meeting to order at 6:15 p.m. in the Tribal Council Chambers, W.W. Keeler Complex.

INVOCATION:

The invocation was given by President Eagle.

ROLL CALL:

Roll call was given by Gina Blackfox, Legislative Aide. The following members were present:

  1. Bill John Baker
  2. Mary Cooksey
  3. Harley Terrell
  4. Barbara Conness
  5. Harold Phillips
  6. Sam Ed Bush
  7. Don Crittenden
  8. Charles Hoskin
  9. Dora Mae Watie

Council members absent were Harold DeMoss, Paula Holder, Nick Lay, Troy Poteete, Barbara Starr scott, and William Smoke.

President Eagle declared a quorum present in accordance with Article 6, Section 8 of the Cherokee Constitution. President Eagle entered a formal legal opinion to this effect.

Councilman Phillips stated for the record that it is his understanding that two-thirds of the members of the Council constitute a quorum and questioned whether a quorum was present. Councilman Hoskin raised, a question about quorum requirement, asked if Mr. Seymour could provide information on his opinion.

Mr. Seymour provided comments regarding three provisions in the Cherokee constitution which deal with the subject of meetings of the Council. The first of those is under the legislative grant of power in Article 5 of the Cherokee constitution in Section 4. Section 4 of Article 5 of the Cherokee constitution provides that at regular meetings of the Council, a quorum shall be two-thirds of the Council.

Article 5, Section 5 of the Cherokee constitution provides that special meetings may be called by the Principal Chief; and by the council and there are other provisions as well, 51% of the Council may call a special meeting. When a special meeting is called, ten days notice is required, the notice must be published and the notice must state the purposes of the meeting and no business that is not within the purposes of the meeting may be transacted. There is no reference in Article 5, Section 5 to a requirement for a quorum.

Article 6, Section 8 of the Cherokee Constitution deals with the powers granted to the executive branch. Section 8 of Article 6 provides that the Principal Chief may convene the council on extraordinary occasions. Article 6, Section 8 further provides that the Council may set such notice and such rules as it chooses with regard to those meetings. The Council prior to now, has not done so, Article 6, Section 8 does not require a published notice of the meeting, nor does it have any provision for ten days. In addition, Article 6, Section 8 specifically says, that no business shall be conducted unless there is a quorum. There is no definition of a quorum in Article 6, Section 8. The word "quorum" is defined in Webster dictionary, Black's law dictionary, and Roberts Rules of Order as a "majority of the assembly". Section 2, of Article 5 of the Cherokee constitution specifically provides that the council may set its own rules and procedure and take care of those matters related to decorum. Title 19 of the Cherokee Code, Section 3 5, was enacted by the Council and it sets forth the way the council shall conduct its business. Section 3 5, of Title 19, says that "unless there is a provision in the Cherokee statutes or the Cherokee constitution," to the contrary, "the conduct of business at all council meetings shall be in accordance with Roberts Rules of Order". Roberts Rules of Order says that a quorum is a majority of the assembly. The constitution of the United States, specifically provides, that a majority of the United States House of Representatives and of the United States Senate is a quorum for their conduct of business. Churches, civic organizations, and charitable organizations where typically a requirement of a quorum for their meetings of their boards of trustees or directors is a majority. Roberts Rules of Order points out that in very large societies on occasion, that it is necessary, to provide that a quorum is significantly less than a majority. It is well recognized that anybody may provide by specific delineation, a quorum requirement of more or less than a simple majority. Now if you look to the purpose of the three provisions in the Cherokee constitution you further find support for the notion that a quorum at extraordinary sessions means just that as it is defined, a majority. At all regular sessions of the council, which are covered by Article 5, Section 4, in which a two-thirds definition is set forth for a quorum. Any business may be conducted anything may be considered and passed. You will find in Roberts Rules of Order, when you have a regular meeting, the assembly may take up any and all business. When you have an extraordinary meeting you may only consider those matters which the Principal Chief has identified. When you have a special meeting, which requires a ten day notice you may only consider those matters which come within the purposes which are identified in the call. As a result of all of that, the word "quorum" in articles 6, Section 8 must necessarily be read to mean a "majority". Had the framers of the Cherokee constitution wished to require that there be two-thirds of the Council present, they would have said so. Furthermore, if they had thought that was appropriate, most likely, they would not have permitted extraordinary meetings of the council to occur. In any event, there are three very different provisions and they all have different requirements under the differing circumstances.

Following Mr. Seymour's presentation there were no comments or questions about the number required for a quorum, and there was no appeal to the council of the president's ruling that a quorum was present.

STATE OF THE NATION:

Chief Byrd provided brief remarks on the current situation with the Cherokee Nation and the need to conduct this extraordinary session tonight.

President Eagle stated the meeting was called by the Principal Chief to consider matters concerning the Bureau of Indian Affairs temporarily taking over law enforcement in the Cherokee Nation and the transfer of weapons and the equipment by all present and former marshals to the Bureau of Indian Affairs and to consider articles of removal against the three justices of the judicial appeals tribunal. The first order of business is that of the Bureau of Indian Affairs temporarily taking over law enforcement in the Cherokee Nation and the transfer of weapons and equipment by all present and former marshals to the Bureau of Indian Affairs.

NEW BUSINESS:

1) Authorizing Approval of a Resolution Requesting the Chief, Law Enforcement Services,

Bureau of Indian Affairs to Temporarily Resume Law Enforcement Responsibilities Presently Under Compact with the Cherokee Nation and Declaring an Emergency/R# 17-97

Councilman Terrell introduced the resolution requesting the chief law enforcement services, Bureau of Indian Affairs, to temporarily resume law enforcement responsibilities presently under compact with the Cherokee Nation and declaring an emergency. He continued by stating the Cherokee Nation Tribal Council recognizes there is a disagreement between the executive branch and the judicial branch over the status of the marshal service. Under the self governance compact the Cherokee Nation has assumed responsibilities for providing law enforcement service to Cherokee citizens within our jurisdiction. Providing for the health and safety of the Cherokee constituency is the highest priority of the Tribal council Given the current circumstances, the Tribal Council has determined that the best way to provide for the protection of the Cherokee people is to suspend the activity of the Cherokee Nation Marshal Service and request the assistance of law enforcement officers from the Bureau of Indian Affairs on a temporary basis. Both groups of marshals those constituted by the Principal Chief and the former marshals, will be required to turn in all Cherokee Nation equipment and or supplies over to the Bureau officers. By following this scenario, any potential conflict between the two groups will be eliminated while maintaining law enforcement services to the Cherokee people The Principal Chief will be authorized to negotiate with the Bureau of Indian Affairs for the reimbursement of their expenses and define the terms and conditions of their assistance

Councilman Terrell then moved for the passage of the resolution and Councilman Bush seconded the motion Councilman Bush requested permission to address the Tribal Council in order to relay his personal comments regarding this particular issue (A verbatim copy is on file in the Tribal Council office). Upon completion of his statement he supported the passage of legislation rescinding the Cherokee Nation Marshal Service and requesting that their law enforcement duties be assumed immediately by the BIA. In addition, the marshal service would immediately surrender to the BIA all their weapons, cars, computers, uniforms, and other equipment of whatever nature The BIA has agreed to this request and will provide law enforcement until further notice from the council.

Councilman Phillips requested permission to have Dennis Wickliffe and Jim Fields of the Muskogee Area Office to come forward to provide additional information on this issue. He further stated it must be very clear this is definitely a temporary situation and he also inquired if this action would effect tribal sovereignty. Jim Fields, Director of Muskogee Area Office commented that he was invited by Chief Byrd to attend the meeting to respond to any questions regarding the possible retrocession of the law enforcement program to the BIA.

Dennis Wickliffe stated a tribe may at any time request the BIA to take a program back, and in this situation the Cherokee Nation has requested the BIA to assume the marshal services for a temporary basis. The resolution specifies eight weeks, in no way, does retrocession impact the compact of the Cherokee Nation and in no way, does it lessen the progress and the success of the self-governance programs.

For the record, Mr. Fields stated that in the late 1980's when there was a supreme court decision which identified Indian country in eastern Oklahoma, the assistant secretary had a trust and responsibility to maintain law and order in eastern Oklahoma. The Cherokee Nation in exercising their sovereignty came to the BIA under a self determination act stated they wish to perform this federal service for the BIA. At which time, we then negotiated with this Tribal Council, we recognize as the governing body of the Cherokee Nation a resolution to contract law enforcement with the BIA under the self determination act. The Secretary of Interior delegated authority to the area director who then exercises this function.

Councilman Phillips inquired about the situation concerning the lack of cooperation between the county sheriff 's office and the tribal law enforcement in providing services to the communities and can the BIA assure them on how this situation might improve. Mr. Wickliffe stated the BIA will make contact with the various law enforcement agencies to inform them they are providing law enforcement services to the Cherokee Nation on a temporary basis and they will also be working with the various district attorney's throughout the Cherokee Nation.

Councilman Hoskin inquired if it was the primary duty and responsibility of these BIA marshals to protect the Cherokee citizens. Mr.Fields emphasized very strongly that is exactly their purpose. Councilman Hoskin stated a fear that Cherokees have is relinquishing any of our responsibilities to the BIA because of past events he wants an assurance that this will be temporary and it will be in writing and presented to this council as far as the inclusive dates of this agreement. A vote was called for and passed.

2) in Re Proceedings for the Removal of Judicial Appeals Tribunal Justices, Chief Justice Ralph Keen, Justice Dwight Birdwell, and Justice Philip H. Viles (Articles of Removal)

Council member Cooksey moved that the Articles of Removal be presented by Harvey Chaffin, Attorney At Law. Council member Conness seconded the motion. Motion carried. Mr. Chaffin began reading the documents (a copy B article in the legislative office). The reading of the document was dispensed with.

Councilman Phillips stated as a point of order, although he may not agree with ad the actions of the tribunal, he has not been convinced that they have violated our constitution or our code to a point that this action is necessary and good. He further stated there is a constitution that firmly sets forth our government and realizes the action by the Tribal Council is legal but feels it is a little drastic to set aside one of our three branches of government.

Councilman Crittenden stated it is his understanding that this is not an act to disband but are articles to see if there has been any violation of the constitution. Mr. Chaffin responded this is not the removal of the tribunal but a document that sets forth the allegations against them that the full council would consider. He explained it may be beneficial to consider the articles of removal from office during the meeting set for April 28 and the trial to be conducted between the hours of 6:00pm and 10 p.m. on each day thereafter. The vote taken tonight would not be to remove the tribunal, it would be to set up a hearing to hear these allegations and articles of impeachment, the justices would be given notice, they would have an opportunity to be heard and the tribunal would sit and hear the evidence presented and after hearing all the evidence would decide what you wanted to hear how long, how much, and then you would make a decision whether or not these allegations were true first, and if they were, whether or not they were sufficient to get your vote for removal

President Eagle called for the question on adopting the articles of removal presented. The motion carried with (8) yeas;, one (1) (Councilman Phillips opposing )

3) Authorizing the Procedures for Consideration of Articles of Removal Recommended by the Council of the Cherokee Nation for the Removal of Chief Justice Ralph Keen, Justice Dwight Birdwell and Justice Philip Viles

Tom Seymour, Attorney At Law, presented the procedures for consideration of articles of removal recommended by the council of the Cherokee Nation for the removal of Chief Justice Ralph Keen, Justice Dwight Birdwell, and Justice Philip Viles.

Mr. Seymour began reading the proposed rules of procedure (on file in the legislative office). Council member Cooksey interrupted by stating all members were provided with a copy of the document and asked to dispense with reading She moved for passage of the rules of procedure and Councilman Baker seconded the motion. Motion carried with eight (8) yeas; one (1) Councilman Phillips opposing.

Council member Cooksey moved to recess the meeting and reconvene at 8:00p.m. on April 28, 1997. Council member Conness seconded the motion. Motion carried.

James "Garland" Eagle
President, Tribal Council



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