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Aug. 15 meeting, Tribal Councilors passed a new Whistleblower Protection Act after learning earlier this year it was repealed in 2012.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Rules Committee meeting, Assistant Attorney General Chrissi Nimmo said the act would replace the one that legislators repealed in 2012.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.
TAHLEQUAH, Okla. – The Tribal Council unanimously amended the Cherokee Nation’s election law during its May 16 meeting after removing the definition of “term” as a full four years when pertaining to an elected office.
Previously, the Rules Committee added the definition to Legislative Act 04-14 to further define “term” within the CN Constitution. However, during the May 16 meeting, Tribal Councilor Victoria Vazquez, who sponsored the act, introduced it with an amendment.
“I have one small change. We will be striking the definition of ‘term’ in its entirety,” she said.
Tribal Councilor Jack Baker seconded the motion before the body voted by acclamation.
After the meeting, Tribal Councilor Janees Taylor told the Cherokee Phoenix that the legislation’s intent was to make tribal elections run more smoothly.
“Changes needed to be made to avoid issues that have come up in past elections such as a candidate raising funds and campaigning then not filing for office. There were some very good changes made with this act, and it was important for this council to work through the details until we reached a solution we could all live with. In the end, the only issue we could not agree on was the definition of ‘term.’ It speaks to the integrity of this council that we were able to work together to find a solution that we all could agree on and I am pleased that it passed unanimously,” she said.
Tribal Councilor Dick Lay, who opposed defining term as “a full four years,” said he was happy the definition was removed from the legislation. “Council can now move forward to important issues on behalf of Cherokee citizens.”
Vazquez deferred comments to Attorney General Todd Hembree, who said he believes several necessary changes were made to the election law with the amendment.
“I’m proud of the collaboration between the council, the Election Commission and the AG’s office making these amendments happen,” he said.
Regarding the “term” definition being pulled from the amendment, Hembree said the Tribal Council did not define what constitutes a complete term, but left that interpretation up to the plain reading of the Constitution.
In March, the Rules Committee discussed the word “term” in the Constitution, and Hembree said that “term” was not defined within the election law. “Nowhere during the election law have we ever defined what a term of office is.”
The committee then voted to define “term” as “consecutive full four (4) years in which the elective or appointed officer may perform the functions of office and enjoy its privileges, a term shall not include the remainder of any unexpired term or partial year.”
However, after debate during the April 12 Tribal Council meeting, legislators sent back the act to the Rules Committee for review. The committee again approved the “term” definition with a 9-6-1 vote until May 16 when it was pulled from the amendment.
Also with the election law change, Tribal Councilors moved the general election from the fourth Saturday in June of the election year to the first Saturday to allow the Election Commission more time to for election matters. They also defined the term “candidate” as a person who has raised funds and/or accepted in-kind contributions in excess of $1,000 or has filed for office.
With this change, one can be considered a candidate before actually filing for an elected position.
Other changes included a new section for record retention and assessing a civil penalty for a person who has become a candidate and fails to file as one.
Also at the May 16 meeting, the Tribal Council approved Pamela Sellers as the EC’s fifth member. Sellers took her oath during the meeting with Supreme Court Justice John Garrett presiding.
The body also approved Valerie Rogers to the Home Health Services board and the Comprehensive Care Agency or PACE board.
Councilors also approved nine donations of surplus equipment to various organizations within the CN.
TAHLEQUAH, Okla. – Tribal Councilors on April 12 sent back to the Rules Committee Legislative Act 04-14, which amends the Cherokee Nation’s election code, after several legislators voiced concerns regarding the definition of “term.”
In March, the committee defined “term” as “consecutive full four (4) years in which the elective or appointed officer may perform the functions of office and enjoy its privileges, a term shall not include the remainder of any unexpired term or partial year.”
Tribal Councilor Harley Buzzard said on April 12 that he could not support the act.
“I feel like the Cherokee people had a constitutional convention and had decided what they wanted in the election code…I think we’re really messing with the Constitution of the Cherokee Nation if we go to changing some of the wording of that act. I could see if this passes as it’s stated, we’re going to have some problems with further elections that come down the road,” he said.
Tribal Councilor Buel Anglen added that from what he’s read in the Constitutional Convention transcripts those involved did not want to add the word “full” when referring to one’s elected term.
“There’s a lot of good stuff in this election law that we looked over for a long time, but at this time, putting that one (definition) in there is going to keep me from supporting this act,” Anglen said.
Tribal Councilor Janees Taylor said she felt the committee discussions were geared toward making the election code clearly match the CN Constitution. “And so, I feel like our intent was to match the Constitution, which says in several areas a term is four years. If the Constitution can stand on its own, I’m not opposed to taking out “EE” (the section in the legislation defining term), but I just want to clarify that our intention was to firm it up and match the Constitution.”
Tribal Councilor Dick Lay offered a friendly amendment to remove the section defining “term,” and Tribal Councilor Victoria Vazquez initially accepted it. She later revoked the friendly amendment and motioned to send the legislation back to Rules Committee. That motion passed with no opposition.
Legislators also unanimously authorized the “approval of a loan agreement and limited waiver of sovereign immunity” as part of the Indian Health Service Joint Venture expansion in Tahlequah.
According to the legislation, the CN will accept and execute a general obligation credit facility loan agreement “with a group of lenders to be arranged by BOKF, NA dba Bank of Oklahoma” and approved by the CN in a principal amount of $170 million to finance construction of the Cherokee Nation Tahlequah Outpatient Facility.
The body also passed an act creating the Cherokee Nation Judgment Fund, which “governs all judgments, inclusive of attorney fees and interest, entered against the Cherokee Nation or any department, agency or subdivision thereof.”
According to the act, “all monies accruing to the credit of the fund are hereby appropriated, and shall be budgeted and expended by the Treasurer for the payment of eligible claims.”
Legislators also approved the three initial members of the Cherokee Immersion Charter School board: Rufus King, Melvina Shotpouch and Russell Feeling.
According to CN Communications, all three are Cherokee speakers and will serve five-year terms.
“Through the Cherokee Immersion Charter School, the Cherokee Nation is cultivating a new generation of Cherokee speakers,” Council Speaker Joe Byrd said. “The revitalization of our language is of the utmost importance, thus making this board extremely vital. We need governing school board members who not only speak our language, but understand the seriousness of the mission of our school.”
The Tribal Council also:
• Authorized interviews and research within the CN by the National Institute of Justice Regarding Domestic Violence and Sexual Assault regarding violence against Indian women;
• Amended Title 21 of the CN code annotated relating to offenses against property;
• Authorized the name change of Sallisaw Creek to National Cherokee Nation Park;
• Allowed CN to lease tribal trust land to the Kenwood Rural Water District for a water treatment plant, tank, pump station and wells; and
• Supported the deployment of the F-35 Lightning II Fighter Aircraft to the 138th Fighter Wing.
Legislators also amended both the capital and operating budgets for fiscal year 2016.