Published On: Tue, Aug 2nd, 2011

Tribe takes land in Cherokee County

First Descendants lose Life Estate, Land near Marble

 

By SCOTT MCKIE B.P.

ONE FEATHER STAFF

 

                Resolution No. 778 (2011), passed 10-2 by Tribal Council on Thursday, July 14, has caused a lot of controversy and leaves four siblings without life estate on their mother’s land near Marble.   

                Gladys A. Wright, an EBCI tribal member, passed away in September 2009.  She left a Last Will and Testament in 2003 which did not address possessory holdings or life estate for her non-enrolled children.  In 2007, she produced a second will which left her children (Henry Wright Jr., Kathryn Jasper, William Wright and Elizabeth Jo Poscich) “first generation rights for their lifetime my possessor holding in Cherokee County”.  The land in question, Cherokee County Tract #35, contains 205 acres. 

                According to the resolution passed on  July 14, submitted by the EBCI Office of the Attorney General, the 2007 will is invalid due to the fact that it does not contain witness signatures, only that of the Notary Public. 

                The resolution further states that the children of Gladys Wright were not properly given life estate and “the authorization granted by Resolution No. 308 (2010) to purchase Cherokee County Tract #35 be rescinded and that said Tract #35, containing 205 acres, more or less, revert back to the Tribe.” 

                Poscich commented, “I am devastated by the actions taken by the Tribal Council on July 14.  The Council voted 10-2 to disregard my mother’s will and her wishes to pass her possessory holdings on to her children, who are first generation descendants.” 

                “This will had already been validated by two courts, including the Tribe’s own court one year ago.  The Council voted to take the land without any compensation or even notification.  I found out about this when a concerned community member contacted me.” 

                Poscich said the situation has had a negative effect on her family.  “They took my inheritance.  I am appalled by this action that has hurt my family and myself.  If they can do this to my family, then who or what will stop them from doing this to another family?  I am hopeful that morality, honesty, and decency will ultimately prevail.”

                Poscich and her three siblings have filed a protest to Res. No. 778 asking for a hearing on the matter.  According to the TOP Office, the protest is set to be heard in Tribal Council on Thursday, Aug. 4 at 11:20am. 

                Principal Chief Michell Hicks said in a statement, “It was determined that probate documents failed to comply with the Cherokee Code’s inheritance laws, resulting in the ownership of Tract #35 reverting back to the Tribe.  The Cherokee Code permits the Tribe to transfer parcels of its trust land to enrolled members by land assignments known as possessory holdings.  Non-enrolled children of Tribal members, or First Generation Descendants, are allowed to use and occupy Cherokee trust lands that were validly assigned to their enrolled member parents on the date of their death.  However, the Code specifically states a legal requirement that such use shall be permitted only if the enrolled parent assigns the right to a non-enrolled child by a valid, written will.” 

                He continued, “All elected Tribal officials take an oath to uphold our Charter and laws and the Cherokee law was adhered to in this situation.  At the same time, this matter has generated a necessary discussion regarding our current inheritance laws and the possible need for Code revisions to prevent the legal dilemmas found in this situation.” 

                According to Chief Hicks, the Tribe is starting a program, effective Oct. 1, that may help remedy future situations like this dealing with wills.  Basic wills will be drafted, free of charge, to tribal members and existing wills can be reviewed for free to see if they meet existing tribal laws. 

                He commented that the EBCI Legal Department is also drafting a document that can be used when dealing with First Generation Descendants inheriting a possessory holding. 

                “All Tribal members should be reassured that every effort will be made to safeguard their possessory holdings and the inheritance rights of their children and families,” said Chief Hicks. 

                Painttown Rep. Terri Henry was one of two Council Representatives that voted to table the issue for further review because Resolution No. 778 was a substitute and not included in their original Council packets.  

                “I have railed against substitutes since my first session of Council,” she said.  “When you get a substitute with a whole new intent, that really upsets me to no end.”

                Rep. Henry said since the Council session, she has done research into the matter and found that the Tribe had no authority to take the land to begin with.  “Mrs. Wright passed away in 2009 and even if you determine that she did not leave a valid will that left that land to her four heirs, she did have an heir, and it would have gone to her brother Lee Craig (an EBCI tribal member ) who was alive at the time of her death.” 

                She went on to say that she feels the Council was mislead and ill-advised on the issue.  “Council should have at least agreed to table this until the matter was fully fleshed out and until we could have a full discussion on it and ask questions.  Instead, I feel it was rushed and the whole point was to take these people’s land.  What’s disturbing about this is that anyone’s land can be taken for any purpose.  That is one reason why I feel really strongly about getting a Constitution in here.” 

Resolution #778 (2011) and supporting documents

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