TAHLEQUAH, Okla. – The Cherokee Nation Tribal Council approved a resolution on Oct. 17 authorizing the Cherokee Nation to execute a lease agreement with Chilocco Wind Farm, LLC, a company owned by PNE Wind USA, Inc.
According to the resolution, the tribe “since time immemorial has exercised the sovereign right of self-government on behalf of the Cherokee people…” and “the Cherokee Nation encourages economic development and acknowledges renewable energy resources are necessary to prevent land and air pollution as an alternative to the use of fossil fuels and is part of our long-term solution toward energy sustainability.”
“Be it resolved by the Cherokee Nation that the Council recognizes that Chilocco Wind Farm, LLC will obtain debt financing and equity investments to fund the wind resource infrastructure project and that it is necessary to grant a limited waiver of sovereign immunity for the sole purpose of allowing Chilocco Wind Farm, LLC to initiate causes of action against the Cherokee Nation in the event of default under the terms of the Wind Resource Lease Agreement,” the legislation states.
Cherokee Nation Tribal Councilors Dick Lay and Buel Anglen both discussed openly why they would vote against the legislation.
“I think it’s going to essentially destroy our Chilocco property. It’s our trust property the only trust and only property we have left of the old Cherokee Outlet,” said Lay. “It’s impossible for me to vote for a waiver of sovereign immunity so that some foreign controlled windmill company can get a bank loan. I just can’t bring myself to do that.”
Councilor Anglen agreed with Lay saying that the need for the company to have the waiver of sovereign immunity to borrow money without knowing background or anything about it is something he cannot do.
“My true reason for not supporting this Chilocco property – I have relatives that attended boarding school there and to me it’s just going to destroy that property and just in my heart I cannot support destroying that property. If it was private property, I’m all for windmills…but not on the Chilocco Indian property,” he added.
Councilor Harley Buzzard, who originally didn’t support this legislation, said he would be in support of it stating that after the earthquake around CN Holiday he was even more so interested in cleaner energy.
“Then I thought about the windmill farm and how clean energy that is and I thought about the injection wells that are up and down the northern part of Oklahoma which cause the earthquakes in my opinion,” he said. “I know we’ll always have to have oil for what we do, but this is a small part in getting away from those oil companies now that’s ruining part of our lands.”
Tribal Council Speaker Joe Byrd said he also was very hesitant in the beginning.
“But I did speak with those tribes also. Visited with the leader of the Kaw Nation and they have a wind farm right there and they shared with me, this will be good. I think the money that we’ll be bringing in, but it’s not just about the money. It’s an alternative resource of energy that we’re looking into here,” he said. “We have to look at other sources of energy.”
The Cherokee Phoenix requested a copy of the Wind Resource Lease Agreement, but was denied due to “confidentiality obligations” and said that the start on construction is expected to be within the next two years.
“As this is an ongoing development the start of construction is depending on many factors. At this point full advancement of construction is anticipated for late 2017 or early 2018,” said Kenny Wheeler, project manager for PNE Wind USA, Inc. “Also the start of operation of the project is depending on many factors. Our best estimate at this point is late 2018.”
Wheeler added that the final decision on where the energy will be distributed has not been made, but the energy once determined will be marketed to another entity.
“Cherokee Nation will receive revenue in form of a lease payment. The lease payment is tied to the revenues of energy sales,” he added. “Due to confidentiality obligations we are not at liberty to share the revenue details. Please get in contact with the relevant authorities of Cherokee Nations government or Cherokee Nation Businesses.”
At this time, this is the only wind farm operated by PNE Wind USA, Inc. in the area of the Chilocco Indian School.
The resolution passed 10-6 with Councilors Lay, Anglen, Don Garvin, Baker, Crittenden, Walkingstick voting no. At Large Councilor Wanda Hatfield was absent.
Cherokee Nation Secretary of Natural Resources Sara Hill said this wind farm will bring in revenue in the form of land leases with PNE Wind USA, Inc., but not the actual wind energy produced.
“It really just is a ground lease. The money will come in through the lease process. We do benefit from the money that comes through there (the project) in the sense that it supports the ground leasing. The only time we would get additional payments beyond that off of the leasing would be if there was a real big spike in energy prices. If that energy was a lot more valuable that we expected it to be then Cherokee Nation, if they got a windfall, they could share in that. We don’t anticipate that being the case, but if it occurred the Cherokee Nation could make additional money off of that. We are doing the ground lease so that the development can occur,” Hill said.
She added that she appreciates this deal because it is helping to produce a more clean energy, which in the end will be a great help to the Cherokee people.
“I think that is a benefit that we can see as the wind farm moves forward,” she added.
Minimum payments expected from the lease are around $1,000,000 per year, although that amount can change year to year. According to officials, two other tribes have leases also with PNE Wind USA, Inc. the Kaw Nation and Otoe Missouria.
In addition, the Tribal Council confirmed the renomination of Shannon Buhl as Marshal for the CN. His term was set to expire in November. The new term will begin in November 2016 and end in November 2021.
The Tribal Council amended the agenda to add a resolution from committee authorizing the participation in a nationwide elder needs assessment.
According to the legislation, the CN has partnered with the “University of North Dakota School of Medicine and Health Services to provide a past Needs Assessment instrument, evaluation, and reporting with no cost to the Cherokee Nation.”
TAHLEQUAH, Okla. – Six Tribal Councilors voted against adding to the agenda a resolution authorizing a wind resource lease agreement between the Cherokee Nation and Chilocco Wind Farm LLC. Despite passing the legislation an hour earlier in a reconvened Rules Committee meeting, the measure failed to get a two-thirds vote during the Sept. 12 Tribal Council meeting.
With Tribal Councilors Harley Buzzard and Rex Jordan absent, Tribal Councilors David Walkingstick, Dick Lay, Jack Baker, Shawn Crittenden, Don Garvin and Buel Anglen voted against adding the wind farm legislation to the agenda.
According to the resolution, the Tribal Council had previously authorized Cherokee Nation Businesses to obtain “grant funding to support feasibility studies as to the development of wind energy within the jurisdiction of the Cherokee Nation.” It also states that it would be “economically advantageous” for CN to create wind energy resources in Kay County on its Chilocco trust property.
“We’re looking for alternative energy,” Tribal Council Speaker Joe Byrd said. “It’s on the heels of the Dakota pipeline issue where we protect our land, we protect our resources.”
Byrd said some Tribal Councilors were not in favor of building a wind farm in the Chilocco area and wanted to keep the land untouched.
“After a few years, it will be a mess to clean up,” Garvin said. “We’re trying to protect our land, and I don’t think that’s good use for the our land. I think (we should) leave it like it is, try to be good neighbors to the people (that live) up there around it.”
The legislation also calls for a limited waiver of sovereign immunity if the entity seeking to bring suit against the CN is Chilocco Wind Farm LLC or its successors or assigns; the claim is for breach of contract and seeks only actual or liquidated damages, including attorney fees, resulting from the Nation’s noncompliance with the Wind Resource Lease Agreement; and that any action can only be brought in the United States for the Northern District of Oklahoma.
The resolution is slated to be on the October agenda because it passed the Rules Committee.
However, Tribal Councilors did pass a resolution supporting the Standing Rock Sioux Tribe’s protest against the Dakota Access Pipeline in North Dakota.
The resolution states the Standing Rock people have an “inherent right” to protect their lands, historic and sacred sites, natural resources, drinking water and families from “this potentially dangerous pipeline.”
“The good thing is, is Indian Country is coming together and we are many. Together we are strong,” Walkingstick said.
Tribal Councilors also authorized the development of a three-year plan for Public Law 102-477 activities that includes the Workforce Innovation and Opportunity Act programs, the Child Care and Development Block Grant program, the Job Placement and Training program, the Adult Education Program and the Self-Governance Vocational program. The tribe’s current plan expires Sept. 30.
Legislators also amended the fiscal year 2016 comprehensive operating budget by adding $2.1 million for an authority of $684.8 million. The increase stems from grants received and increases in the General Fund, Department of Interior-Self Governance, Indian Health Service-Self Governance and Native American Housing Assistance and Self-Determination Act budgets.
Legislators approved the tribe’s $277.7 million capital and $656.4 million operating budgets for FY 2017 with only Tribal Councilor Shawn Crittenden voting no.
“There’s some good things, some really good things in here,” Crittenden said. “I said I’m going to give it a year and I’m going to see my roadblocks. Like I said, there’s good things in here, and I’m confident in the year to come that some of those we can work together to get through those roadblocks. I promise myself I’d do that and I feel confident in the year to come. I’m going to say no on this.”
Tribal Councilors also authorized the CN as a National Congress of American Indians member with Principal Chief Bill John Baker as the designated representative. In his absence, he would appoint one of 42 people as an alternate delegate, which includes Deputy Chief S. Joe Crittenden, all 17 Tribal Councilors and various CN officials.
TAHLEQUAH, Okla. – At their Aug. 15 meeting, Tribal Councilors passed a new Whistleblower Protection Act after learning earlier this year it was repealed in 2012.
The act is to protect employees from “retaliatory action” when participating in “protected activities” such as reporting alleged wrongdoing of a co-worker, supervisor or elected official.
The vote passed unanimously with Tribal Councilor Wanda Hatfield absent.
During the July 12 Rules Committee meeting, Assistant Attorney General Chrissi Nimmo said the act would replace the one that legislators repealed in 2012.
“When the Ethics Act was amended in, I believe, 2012 it was included in the language… this repeals Title 28. When you repeal a title you repeal all of the title,” she said. “No one caught that at the time that the Ethics Act was passed…It should have said it repeals this section of Title 28, but what it said was it repeals Title 28. When the new Ethics Act was passed…it took out the whistleblower language.”
Tribal Councilor Buel Anglen said as soon as he heard the Whistleblower Act was no longer in place he and others worked to reinstate it.
“Of course that opened my eyes up when I found out that there was that one case where we found out that the Whistleblower Act was not in effect anymore and that it had been taken out,” Anglen said. “So I asked some of the council people that were on it when it came out, why did that happen, and none of them knew anything about it. It was kind of worded in there to where it didn’t look like anything had changed, eliminated…So we just jumped right on it to get it back in once we found that out.
“(Tribal Councilor) Dick Lay and I took the charge on it,” he added. “We got it back in, and I think now the employees can feel comfortable again. If something’s going on, they speak up and not have to worry about losing their job or anything else.”
Nimmo said new language states “protected activity does not include false information provided by the employee.” Nimmo said what this means is that the employee’s allegations have to be “true.”
“What we intended by putting this language in is saying that what they report has to be true. So it keeps an employee from making up something,” she said. “The way that this is written, also in the burden of proof, that if an employee made up false information and they were terminated for that and they filed a claim under the Whistleblower Act in District Court of the (Cherokee) Nation, which would be the AG’s office defending the Nation, could prove that the information that they shared was false and they knew that it was false then they don’t get their job back, they don’t get back pay and they’re not protected under the Whistleblower Act because the Whistleblower Act is intended to protect employees who make a good-faith effort to shed light on possible wrongdoing by the government.”
Also at the Aug. 15 meeting, legislators transferred tribally owned trust lands to mutual-help home participants. According to legislation, the tribe acquired Delaware County land in 1937 and 1938 from the United States. The tribe later set aside certain areas within that land to be leased “for the construction of Mutual-Help Homes.”
The legislation states within portions of this trust land the tribe “established multiple housing Subdivisions” and “desires to transfer the following Mutual Help-Home sites to the participants in Trust.”
The legislation lists Peggy Wagnon, Jerry and Velma Tagg, Molly Sapp, Stanley and Amy Proctor and Roxanne and Cordell Smith as the participants of the project, which will be in Kenwood.
Legislators also authorized the tribe to lease trust land to the CC Camp Community Organization.
According to legislation, the land is 26.48 acres in Adair County located on Hwy 59 that encompasses the Cherry Tree Red Gym and softball fields. The legislation states the organization will lease the land from the tribe for $1 a year for 25 years beginning this year.
Tribal Councilor Frankie Hargis said leasing “this property to the organization will only lead to more community events and create a tighter bond between Cherokee families.”
In other business, legislators:
• Reconfirmed Susan Chapman Plumb to the Cherokee Nation Foundation board and Jeff Limore to Sequoyah High School board of education, and
• Authorized a grant of easement for right-of-way to the Adair County commissioners for the reconstruction of a bridge in the Lyons Switch community.
TAHLEQUAH, Okla. – The Tribal Council during its July meeting amended the Cherokee Nation’s civil code that, according to the attorney general’s office, was long overdue.
Attorney General Todd Hembree said major changes involve creating causes of actions and procedures designed to modernize the court system.
“There was an increase to statute of limitations, which is the time frame in which a Cherokee citizen can bring a cause of action,” Hembree said. “Previously, most cases could be brought within two years. Now most cases can be brought within five years, with some having a three-year limitation.”
According to legislation, civil actions, other than for the recovery of real property, can only be brought within the following periods after the cause of action shall have accrued and not afterwards:
• Within five years: an action upon any contract, agreement, or promise in writing,
• Within three years: an action upon a contract express or implied not in writing, an action upon a liability created by statute other than a forfeiture or penalty, and an action on a foreign judgment.
Another change states that the statue of limitations is one year for action for libel, slander, malicious prosecution or false imprisonment.
Hembree said also now allowing the attorney general’s office to bring actions on behalf of the CN and its citizens as “parens patriae” would have the effect of protecting the Nation and its citizens from unfair practices and harmful products.
“The Cherokee Nation Attorney General may bring a civil action in the name of the Cherokee Nation as parens patriae on behalf of tribal members of the Cherokee Nation to secure monetary relief for injuries and damages sustained by such persons by reason of any violation of law, including but not limited to, violations of the Cherokee Nation Unfair & Deceptive Practices Act,” the legislation states.
Also within the civil code amendments was a modernization of the tribe’s wrongful death statue.
“A claim for wrongful death may be brought against a person who, by his negligence or by willful, wanton or reckless acts, causes the death of another under such circumstances that the deceased could have recovered damages for personal injuries if death had not resulted,” legislation states. “A person shall be liable for the negligence or the willful, wanton or reckless act of his agents or servants to the same extent and subject to the same limits as he would be liable under this section for his own act.”
This action to recover damages must be commenced within five years of the date of death or from five years of when the next of kin knew or in the exercise of reasonable diligence.
Damages recoverable include medical and burial expenses, loss of consortium and grief of the surviving spouse, mental pain and anguish suffered by the decedent, pecuniary loss to the survivors, grief or loss of companionship of the children and parents of decedent, fair monetary value of the decedent to the personal entitled to receive damages and punitive or exemplary damages may also be recovered.
Legislation changes also include creating a section for class action lawsuits creating a cause of actions for unfair and deceptive practices and creating a cause of action for false advertising.
According to legislation, all persons may join in one action as plaintiffs if “they assert any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, personal injury or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action” or “they have a claim, right, or interest adverse to the defendant in the property or controversy which is the subject of the action.”
Hembree said the changes within the legislation stemmed from “attacks that have been occurring on tribal courts by outside parties.”
“Although, the U.S. Supreme Court failed to decide what jurisdiction tribal courts had on non-tribal citizens or entities, because of a 4-4 tie, we can expect future attacks on tribal courts. This means we must take measures to strengthen our systems, make them easy to navigate, make them accessible to all. With these changes the Cherokee Nation has gone far in accomplishing these goals,” Hembree said.
To view all changes, visit <a href="https://cherokee.legistar.com/LegislationDetail.aspx?ID=2723275&GUID=50B9140F-1CED-41FA-A0F2-2980774E16D2&FullText=1" target="_blank">https://cherokee.legistar.com/LegislationDetail.aspx?ID=2723275&GUID=50B9140F-1CED-41FA-A0F2-2980774E16D2&FullText=1</a>.
TAHLEQUAH, Okla. – The Tribal Council on July 12 approved the submission of the Cherokee Nation’s fiscal year 2017 Indian Housing Plan to the U.S. Department of Housing and Urban Development.
According to the legislation, the Native American Housing Assistance and Self-Determination Act of 1996 requires a tribe to adopt a one-year plan for each fiscal year it requests federal funding. The resolution states the CN must submit an IHP in a form prescribed by HUD to receive its FY 2017 housing funding. According to the IHP, the plan needed to be submitted by on or by July 18.
“The Indian Housing Plan is basically a road map. It is a plan, but it’s basically a road map that says ‘federal government, here is how we propose to spend these federal funds that we get under NAHASDA,’” Housing Authority of the Cherokee Nation Director Gary Cooper said.
Tribal Council officials said the tribe is requesting $52.8 million. According to the IHP the money will be used to help meet the following needs: overcrowded households, renters wanting to become homeowners, substandard units needing rehabilitation, homeless households, households needing affordable rental units, college student housing, disabled households needing accessibility, units needing energy efficiency upgrades and infrastructure to support housing.
The resolution passed unanimously with all councilors present.
Councilors also unanimously approved two applications to the Federal Highway Administration for money to replace two bridges located in Delaware and Washington counties.
Washington County’s bridge is over a tributary to the Caney River, according to the legislation. The legislation states that Bridge 84 provides “crucial access for many Cherokee citizens” and is identified as a candidate for replacement.
Bridge 27 in Delaware County bridge is over Whitewater Creek, and it too provides crucial access for CN citizens, according to the resolution. The resolution states it is identified for replacement as well.
Tribal Councilors also unanimously approved Sandra Hathcoat’s nomination to the CN Home Health Services and Comprehensive Care Agency or PACE boards.
Legislators also unanimously amended Legislative Act 05-16, the CN Employment Rights Act, to address businesses that are owned by trusts and assure that the beneficiaries of the enterprises are Native American.
According to the act, “Indian-owned economic enterprise” shall mean any Indian-owned commercial, industrial or business activity established or organized for the purpose of profit, provided that such Indian ownership shall constitute not less than 51 percent of the enterprise, and the ownership shall encompass active operation and control of the enterprise. No business that is more than 49 percent owned by a trust as a trust-owned business shall be included, legislation states.
The tribe’s FY 2016 comprehensive operating budget was also unanimously increased by $128,142 for a total budget authority of $676.8 million.
TAHLEQUAH, Okla. – At its June 13 meeting, the Tribal Council voted to transfer Cherokee Nation Waste Management LLC, which operates a landfill in Stilwell, back under the tribe.
At the May 26 Rules Committee meeting, Natural Resources Secretary Sara Hill told Tribal Councilors the resolution would eliminate the LLC and brings it back under the tribe’s fold.
“We’re wanting to eliminate the Cherokee Nation Waste Management entity and move the landfill back under the Cherokee Nation, which is where it started back before the LLC was created,” she said. “So we’re going to put the Cherokee Nation Waste Management group out and put the landfill back under the control of the Cherokee Nation itself.”
She also said for that to occur the tribe would need to incur the $1.5 million debt the LLC has.
“It’s about $1.5 million debt for equipment that they took out in 2014. They want to move that debt from the LLC over to the Cherokee Nation itself,” Hill said. “The Cherokee Nation will be responsible for that debt instead of the LLC. This includes consent to be sued… If we didn’t pay our loan to the bank (Welch State Bank) the bank could sue us to get the money that we owe them back.”
[BLOCKQUOTE]During the Rules Committee meeting, Tribal Councilor Joe Byrd asked Hill if the CN is looking to permanently close the landfill in the future. Hill said that “every landfill closes eventually.”
“Every landfill has a life cycle…When you sit down to plan a landfill you should plan it for 100 years worth of operations, closure and post-closure because it’s a long-term business,” she said. “But what there hasn’t really been at Cherokee Nation is a long-term strategic plan for the landfill, and that’s what we’d like to do. We’d like to go in and look at a closure, post-closure plan and set a date so we know, ‘OK, the landfill, it was open in the (19)80s. It can’t run forever.’ So we’re going to look at what is the best date to close that on, and that can be a 5-to-10-year time span potentially looking at that. But those are not decisions that we have made right now.”
The resolution passed unanimously. Tribal Councilors Janees Taylor, David Thornton and Wanda Hatfield were absent.
Legislators also unanimously renewed the Cherokee Immersion Charter School as a state charter school for another five years.
“This ensures our youth who are immersed in our Cherokee language each day are not only learning the culture to pass on to future generations, but learning it based on a curriculum that is state-certified,” Byrd said. “Research shows that bilingual learners often think more critically and are analytical, but this charter also ensures students learn the same grade-level standards as their counterparts across the state.”
According to CN Communications, the school serves more than 100 students from preschool to eighth grade.
Tribal Councilors also approved a grant application that would provide storm shelters to select Head Starts within the tribe’s jurisdiction.
During the June 13 Education Committee meeting, Marshal Shannon Buhl said, if obtained, the grant would provide safe rooms at various Head Starts.
“This grant is only intended for Head Start programs that’s on tribal lands, so there’s eight of them,” he said. “It’s going to be eight facilities in Kenwood, Cherry Tree, Pryor, Walhalla up in Nowata, Redbird, Jay. Those are going to be 400-square-foot facilities that’s going to be attached to the existing building, and they can hold about 80 people.”
He said the other two locations would be in Tahlequah.
“There’s going to be two facilities at the Children’s Village (Early Head Start) at the circle (at Sequoyah Schools). One is specifically for infants and the other will be for other children,” he said. “The big one’s going to be 2,000 square foot and hold about 400 people. The second one is going to be 800 square foot and going to hold about 160 people for the infants.”
Buhl said the approximate $800,000 grant is specifically for staff, students and those picking up students during a storm.
“These are not community storm shelters,” he said. “They’re specifically paid for and designed for the staff, students and any parents or family members that are there to pick the kids up if a storm happens.”
In other business, legislators:
• Increased the fiscal year 2016 capital budget by $129.5 million to $291.8 million,
• Increased the FY 2016 operating budget by $11.4 million to $676.6 million, and
• Confirmed Evan M. McLemore to the Cherokee Nation Administration Appeals Board.