Cherokee Nation high court hears Walkingstick appeal to rejoin chief’s race

05/24/2019 05:45 PM
Main Cherokee Phoenix
Dist. 3 Tribal Councilor David Walkingstick fills out paperwork declaring his candidacy for principal chief on Feb. 4 at the Election Commission Office in Tahlequah. He was disqualified by the EC on May 17 for campaign violations. CHAD HUNTER/CHEROKEE PHOENIX
TAHLEQUAH – Disqualified principal chief candidate David Walkingstick’s fate in the race now rests in the hands of Cherokee Nation Supreme Court justices who heard his appeal May 24.

In a 4-0 vote on May 17, the tribe’s Election Commission ousted Walkingstick, the Dist. 3 tribal councilor, for violating tribal election law. Its decision was based on a case made by the attorney general’s office that Walkingstick and his campaign illegally accepted in-kind donations from a limited liability company called Cherokees for Change, and solicited illegal contributions.

Deputy Attorney General Chrissi Nimmo told the Supreme Court that if Walkingstick is reinstated as a candidate, “We are telling the world that Cherokee Nation elections are for sale.”

One of Walkingstick’s attorneys, Brian Berry, contended the attorney general’s case had “not one bit of evidence that can carry any weight.”

Like the May 17 EC hearing, Walkingstick’s courtroom appeal attracted a full house. Chief Justice James Wilcoxen asked spectators to refrain from “outbursts no matter what your feelings are” before hearing testimony that lasted less than two hours.

Supreme Court officials said a decision would likely be rendered no earlier than noon Tuesday, the deadline for Walkingstick’s attorneys to file a “proposed finding of facts” statement.

Much of the attorney general’s case was based on the fact that under CN law only individuals are allowed to make campaign contributions.

“It is clear that Cherokees for Change LLC made illegal in-kind contributions to the campaign of David Walkingstick,” the May 17 EC decision states. “David Walkingstick knew that Cherokees for Change LLC was being created directly for his benefit and both his financial agent and his mother assisted the LLC in carrying out its mission.”

Gregory Russell Appleton, who was briefly the Walkingstick campaign financial agent, created the LLC on Feb. 21. In an affidavit that included 103 pages of correspondence among Walkingstick, campaign manager Luke Harshaw and others, Appleton suggested that Walkingstick was in on the LLC from its inception.

“On Feb. 21, 2019, David Walkingstick had knowledge that I intended to create/had created a legal entity that would accept donations and make expenditures in support of his candidacy,” Appleton wrote. “That legal entity was Cherokees for Change LLC.”

When asked about the statement, Walkingstick said his former financial agent was lying.

Via its website, Cherokees for Change accepted contributions of nearly $60,000, Appleton stated. The LLC also maintained a Facebook page and sent out two mailers, one supporting Walkingstick and the other criticizing one of his two principal chief opponents, Chuck Hoskin Jr.

Walkingstick has maintained there was no connection between his campaign and the LLC.
“There’s no collusion or coordination between Walkingstick for Chief and Cherokees for Change,” he told Marshal Service Director Shannon Buhl, according to a transcript of their conversation.
Walkingstick said he and Appleton parted ways Feb. 28.

“I couldn’t afford Rusty,” he said. “Now, what he did after that, I don’t know. I don’t keep up or coordinate … with Rusty.”

Walkingstick added that he has no control over anti-administration groups.

“If they’re pro Walkingstick or pro Lay or pro Hoskin, great, so be it,” he said.

In a May 23 brief requesting the Supreme Court uphold the EC’s decision, Attorney General Todd Hembree suggested that Walkingstick “was never a bystander in this transaction, but a participant who worked to arrange contributions for Cherokees for Change LLC.” He added that evidence “demonstrated that Walkingstick and his financial agent used Cherokees for Change LLC as a place to ‘hide’ donations.”

“Walkingstick’s motive to do this is illuminated clearly in a text message he sent to Appleton on Jan. 5, 2019, where he observed that, ‘[i]t’s kind of a recurring theme that people are scared to get involved in this race,’” Hembree wrote. “Given that this is the first principal chief election where no incumbent is running since 1995, it is perhaps understandable that potential donors would be more willing to donate if they could hedge their bets and remain anonymous. So Walkingstick and Appleton went about arranging a way for donors to do that, using the state and federal PAC system as a model.”

In its ruling, the EC agreed that Walkingstick’s campaign attempted to cover up its connection with the LLC by changing the financial agent’s name on documents, refunding LLC donations and closing a P.O. box that was allegedly set up by Walkingstick’s mother for LLC purposes.

In a Facebook video following his disqualification, Walkingstick described the EC’s decision as “deeply concerning,” and referenced what he called “corruption and cronyism” in the CN.

“When an unelected board of Cherokee citizens close to the chief can remove a candidate without due process or evidence of wrongdoing, it highlights something fundamentally wrong with our election process,” Walkingstick said. “This is not just another election. This is a turning point in our Nation’s history, one where our citizens will determine the value that they place on having their voices fully heard and freely at the ballot box.”

Oklahoma City attorney Jason Reese, on Walkingstick’s behalf, described the “faulty” EC hearing as one in which “the attorney general’s office went to great pains to remove an option from the democratic electorate of the Cherokee Nation.”

“The commission continues to fail to demonstrate the offer or acceptance of any in-kind contribution as opposed to a third-party expenditure,” Reese stated in a May 23 brief filed with the court. “Likewise, the commission remains unable to cite any Cherokee Nation law against coordination or communication between a campaign and a third party.”

At the Supreme Court hearing, Reese questioned the tribe’s definition of “in-kind contributions” and said tribal laws had not been updated “to accommodate Citizens United,” a landmark U.S. Supreme Court case that granted corporations and unions unlimited spending power on political activities.

“They could not have foreseen the rise of independent expenditures,” he said.

Nimmo argued that “Citizens United does not apply to or within the Cherokee Nation.”

According to the Attorney General’s Office, Walkingstick also sought an illegal donation from Cherokee Nation Businesses board member Shaun Shepherd.

“I told (Walkingstick) that I could not support him,” Shepherd wrote in an affidavit.

“(Walkingstick) told me that I could make a cash contribution and remain anonymous and that no one had to know but he and I. He asked if I would be willing to contribute to his campaign through a family member, specifically mentioning my mother. I told him no …”

Walkingstick’s legal team unsuccessfully sought to have the attorney general’s office disqualified from the case citing a “political conflict of interest” because Hembree and Nimmo donated to the Hoskin campaign.

To the Supreme Court justices, Nimmo said, “No one has cited a single law that says a donation to the opponent in a case you’re involved with is a conflict of interest because there aren’t any.”

Walkingstick’s running mate for deputy chief, Meredith Frailey, was not implicated of wrongdoing. Nimmo said there was “zero evidence she had a connection with Cherokees for Change.”

“She benefitted from Cherokees for Change to be sure,” Nimmo said. “But she did not cooperate with Cherokees for Change, as far as we know, in expressing that message.”
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