Published On: Mon, Jan 13th, 2014

Minors Fund lawsuit dismissed

By SCOTT MCKIE B.P.

ONE FEATHER STAFF

 

A lawsuit against the EBCI Investment Committee and Principal Chief Michell Hicks has been dismissed in Tribal Court.  In a ruling filed on Dec. 19, 2013, Associate Judge Danny E. Davis wrote, “…defendants motions to strike and motions to dismiss pursuant to Rule 12(b)(6) are hereby allowed and plaintiff’s claims against the Eastern Band of Cherokee Indians Minors Fund, the Investment Committee of the Eastern Band of Cherokee Indians Minors Fund and the members of the Investment Committee and Chief Michell Hicks in their official and individual capacities are hereby stricken and dismissed…”

In his conclusions of law, Judge Davis wrote that the EBCI Minors Trust Fund and the Investment Committee are not entities “capable of being sued” and “that defendant Trustees of the Minors Trust Fund and defendant Chief Michell Hicks are public officials and did not waive their public officer immunity or sovereign immunity and are immune from individual liability.”

Members of the then-Investment Committee named in the lawsuit include:  Adele Madden, Michael Ray Cooper, Tiani D. Osborn, John Cameron Cooper, and Jo A. Blaylock.

Chief Hicks said, “I am pleased with the court’s decision to dismiss the Minor’s Fund lawsuit.  I believe the Investment Committee acted in good faith in managing the Minor’s Fund during a difficult and uncertain time.  Investments, by their nature, come with certain risks and loss is always difficult.  However, I have every confidence that, in the future, the Tribe has enacted measures to minimize losses in this fund.”

The original lawsuit was filed by EBCI tribal member Steve Teesateskie Jr. along with others who lost interest money in their minors trust funds due to a fluctuation in the stock market in 2008.  Court records indicate that Teesateskie’s trust fund assets were $90,016.53 on Dec. 31, 2007 and fell to $78,419.37 by Dec. 31, 2008.

Due to failure to comply with certain requirements, Teesateskie didn’t receive his distribution payment until June 2, 2011 when he received $86,915.99 ($65,180.99 after taxes) according to the court documents.

Judge Davis wrote in his ruling, “…the Trustees did not transfer the plaintiff’s funds to the pre-payout sub-account during the calendar quarter ending September 2008 when the plaintiff reached his 17th birthday.  That while plaintiffs have alleged that this failure to transfer funds resulted in a loss to plaintiff’s funds, there is no allegation that plaintiff lost any principal as set forth in Chapter 16 Section 16C-6.

He also states that the N.C. Rules of Civil Procedure “govern procedures” in the Cherokee Court and “this (Cherokee) Court lacks subject matter jurisdiction under N.C. Rules of Civil Procedure, Rule 12(b)(1) as to plaintiff’s First Claim For Relief – Violation of Cherokee Code, Fourth Claim for Relief – Unjust Enrichment, Fifth Claim For Relief – Constructive Trust and Sixth Claim For Relief – Punitive Damages and in addition, all of the above claims fail to make sufficient factual allegations that state a claim upon which relief can be granted under N.C. Rules of Civil Procedure, Rule 12(b)(6).”

A request for comment from Russell McLean III, the attorney for the plaintiffs, went unanswered by press time.

 

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