Published On: Mon, Aug 25th, 2014

Injunction filed on Paul’s Diner case

By SCOTT MCKIE B.P.

ONE FEATHER STAFF

 

The fate of a Cherokee restaurant might lie with a complaint filed in Cherokee Tribal Court on Wednesday, Aug. 13.  Hannah Smith, EBCI Office of the Attorney General, filed a Complaint and Request for Declaratory Judgment and Preliminary Injunction on behalf of the Eastern Band of Cherokee Indians in a case involving Res. No. 179 (2014).  She says the Declaratory Judgment is about much more than a property dispute and was filed to clarify law and the rights of tribal members.

Res. No. 179 was submitted on April 10 by the Tribal Lands Committee and passed on May 1.  It details a land encroachment issue between Mary S. Ensley, owner of Paul’s Diner in the Yellowhill Community, and Sheridan Smith.  Both are heirs of the late Geneva Smith and received various Upper Cherokee Parcels.

“This month, the Office of the Attorney General filed a Complaint and Request for Declaratory Judgment in the Cherokee Court,” said Hannah Smith.  “The Complaint and Request for Declaratory Judgment is not a lawsuit against the Tribe or Tribal Council.  The lawsuit is brought on behalf of the Tribe out of concern for tribal members and requests some guidance on whether tribal members have a right to bring land disputes to the court, and if not, then how Tribal resolutions that are quasi-judicial in nature are to be implemented in a manner that is consistent with the Tribe’s Charter and Governing Document and the Indian Civil Rights Act.”

She explained further, “The background issue prompting the Declaratory Judgment action involves a land dispute, an encroachment issue, between tribal members and Resolution No. 179  (2014).  The resolution resolved the land dispute according to the quasi-judicial Lands Committee Appeal process and requires the Business Committee and other tribal agents to carry out Council’s decisions.  The Business Committee is concerned that implementing the Tribal Council resolution may violate the property and civil rights of one or all of the tribal members involved, while creating potentially devastating economic consequences for many tribal members in the community.”

“Voting to file the declaratory action and taking a ‘better to be safe than sorry’ approach was a wise decision, and I applaud the members of the Business Committee who voted to do so,” Hannah Smith related.  “Given the significant importance of the possessory holding property rights at stake, asking the Tribal Court for some interpretation and guidance is appropriate.  The questions asked to the Tribal Court involve legal rights of tribal members versus the powers of the Tribal government.  Of course it is controversial within the Tribal government, but that is what our Tribal system of government is designed for.  The legislative, the executive and the judicial branches of government are designed to check and balance government powers over individual rights.”

She concluded by saying, “The Business Committee’s vote to file the declaratory action demonstrates that it values the rights of tribal members enough to ask some very tough questions about our tribal laws and government systems.  The United States Constitution, and when you’re in Indian Country, the Indian Civil Rights Act, guarantees all of us certain protections of our life, liberty and property.  The ultimate goal of the Business Committee is to make sure that the rights of individual tribal members are adequately protected, and that there is a clear and fair process for resolving these types of disputes between tribal members.  If the Cherokee Court decides to hear and make a judgment on these issues, whatever the outcome, our tribal members and our tribal government will have a clearer understanding of how Indian civil rights and tribal property rights work together under our own tribal laws and systems of government.  Once clarified, we can all move ahead with satisfaction that we have done our best for tribal members.”

The voting on Res. No. 179 went as follows:  FOR – Big Cove Rep. Teresa McCoy, Big Cove Rep. Perry Shell, Yellowhill Rep. David Wolfe, Chairwoman Terri Henry, Cherokee County – Snowbird Rep. Brandon Jones, Cherokee County – Snowbird Rep. Adam Wachacha, Birdtown Rep. Albert Rose; AGAINST – Vice Chairman Bill Taylor, Wolfetown Rep. Bo Crowe; ABSTAIN – Yellowhill Rep. B. Ensley; ABSENT – Birdtown Rep. Tunney Crowe, Painttown Rep. Tommye Saunooke.

According to the Resolution, the building which houses Paul’s Diner encroaches on Upper Cherokee Parcel Nos. 276-A and 277 which are now owned by Sheridan Smith.

The Bureau of Indian Affairs Cherokee realty office completed a plat survey of the properties in October 2006 detailing the lands and the encroachment.  The Tribal Lands Committee upheld the BIA plat on Aug. 23, 2012 and the Tribal Business Committee voted to accept it during a hearing on July 8, 2013.

The Resolution offered three ways for Mary Ensley to solve the situation including:

  • Remove all encroaching property/buildings from the parcels including parts of a two-story house and Paul’s Diner
  • Purchase said property from Sheridan Smith
  • Lease said property from Sheridan Smith

The Resolution also immediately revoked the business license for Paul’s Diner.

The Declaratory Judgment filed in Tribal Court on Aug. 13 states, “Res. No. 179 (2014) is to be carried out by the executive and administrative agencies and committees of the Tribe, but it is unclear what authority is granted and what limitations are imposed upon the legislative branch of the EBCI as it concerns the individual property rights of tribal members…”

It continues, “Pursuant to Res. No. 179 (2014), the Defendants Mary and Paul Ensley have not complied with the remedial options issued in Tribal Council’s Resolution No. 179 (2014).  The Plaintiff has not revoked the business license of Defendant Mary Ensley or executed the intent of the ‘injunctive-type’ relief; and Defendant Smith is currently without legally enforceable remedies leaving the status of rights, obligations and liabilities for both the Plaintiff and all Defendants uncertain and insecure.”

The Declaratory Judgment’s Causes and Claims for Relief section states, “Plaintiff seeks clarification of the Tribe’s law and the legal rights, obligations and liabilities of Plaintiff and Defendants as it concerns tribal possessory property rights and the protections of the Indian Civil Rights Act.”

The Judgment also asks for a preliminary injunction in carrying out Res. No. 179 until certain questions can be answered by the Court including does the Cherokee Charter and Governing Document “authorize the Tribal Council to act as a quasi-judicial body” and “are individual land assignments or possessory holdings, assigned by the Tribal Council to members of the Tribe, property ‘owned by the Tribe’?”

Another key question raised in the Judgment is, “Must the Executive Branch execute and carry out the rulings and actions issued by Tribal Council and Lands Committee?”

As of press time, no other filings or any judgments have been made in this case.

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