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Cherokee Supreme Court Rejects Council Members’ Claims for Legal Fees March 28, 2008

Posted by rezjudicata in Cherokee Supreme Court, Tribal Courts.

Cherokee Nation v. O’Leary, SC-2006-13 (Cher. Sup. Ct. Jan. 22, 2008)

Issue(s): Cherokee Law > Council Legal Fees >> Reimbursement; Cherokee Constitutional Law > Separation of Powers >> Council Members >>> Enumerated Authorities

After discovering suspected wrongdoing by the Principal Chief and several executives, seven Cherokee Tribal Council members (Appellants) hired lawyers to pursue legal action. Appellants sued the Chief and others “on behalf of the Nation,” but without formal approval of the tribal council as a whole. Appellants then requested that the Cherokee Nation cover the Appellants’ legal costs. Is the Nation obligated to recoup Appellants’ legal expenses?

The Cherokee Supreme Court said no. Appellants argued that Tribal Council members have authority spend and recoup legal fees without the whole Council’s consent. The Court agreed, but stated that the right to reimbursement is statutory. The relevant resolution requires that: 1) the legal representation must concern matters before the Council; and 2) must not personally benefit any individual Council member. Appellants urged that their issue was a matter before the Council. They cited numerous briefings and Council appropriation of the money Appellants alleged the Chief misused. The Court, however, found no legislative act, resolution, Committee or Council agenda, or notice concerning Appellants litigious plans. The Council did convene as a body to vote on Appellants’ decision to file a federal lawsuit. But the Court still found that the initial decision to pursue litigation never appeared properly before the Council. Construing “matters before the Council” procedurally, the Court ruled that Appellants held no entitlement to reimbursement.

With a related argument, Appellants also claimed that Council members individually may file suit in matters affecting the Nation. The Court responded that the Council indeed defends the money of the people, but must act as a body. Moreover, the Constitution mandates that the Attorney General represent the Nation in all actions where the Nation is a named party. Appellants filed their federal suit “on behalf of the Nation,” though the Nation was not named as a party. Nevertheless, the Court found that Appellants breached Constitutional separation of powers by exercising exclusive authority of the Attorney General. Therefore, Appellants could not recoup their legal costs.

Apologies for the late post. Evidently the Cherokee Supreme Court posts its opinions based on the date of appeal, not date of opinion. This case went unnoticed because it originated in 2006 and the Court posted it as a 2006 case.



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