Published On: Tue, Sep 2nd, 2014

Tribal Council files Motion to Intervene on Paul’s Diner case

 

SCOTT MCKIE B.P.

ONE FEATHER STAFF

 

Tribal Council has filed a motion in a case involving a restaurant in the Yellowhill Community.

Tribal Council has retained an attorney of its own, W. Scott Jones of Asheville, who filed a Motion to Intervene and a Motion to Dismiss on Friday, Aug. 22 on a Complaint and Request for Declaratory Judgment and Preliminary Injunction, filed on Wednesday, Aug. 13 by Hannah Smith, EBCI Office of the Attorney General, on behalf of the Eastern Band of Cherokee Indians in a case involving Res. No. 179 (2014).

The Motion to Intervene states, “Tribal Council is entitled to intervene in this action because the subject matter of this action is so situated that the decision of this action would, as a practical matter, impair Tribal Council’s interest and powers as granted to it in the Charter and Governing Document, and Tribal Council’s interests are not adequately represented by the existing parties…”

The Motion to Dismiss lists five reasons for dismissal including:

  1. “The Complaint purports to seek a declaratory judgment regarding the management and control of property belonging to the Tribe;
  2. Issues regarding the management and control of property belonging to the Tribe are within the exclusive purview of the Tribal Council;
  3. The Complaint seeks determination of matters properly encompassed within the political question doctrine;
  4. The Complaint seeks an advisory opinion and thereby presents non-justiciable issues; and
  5. The Complaint fails to state a claim upon which relief can be granted.”

In commenting on the two motions filed by Jones, Hannah Smith simply said, “This was expected and understandable.”

A request for comment from Jones was not answered by press time.

The original issue stems from Res. No. 179 which 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.

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 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.”

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