Supreme Court upholds Walkingstick disqualification

BY CHAD HUNTER
Reporter
05/29/2019 12:00 PM
Main Cherokee Phoenix
Dist. 3 Tribal Councilor David Walkingstick takes part in the May 11 Stilwell Strawberry Festival parade. The Election Commission disqualified him from the principal chief’s race on May 17. An appeal of that decision failed in the Supreme Court. CHAD HUNTER/CHEROKEE PHOENIX
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. The EC disqualified him on May 17 for campaign violations. CHAD HUNTER/CHEROKEE PHOENIX
TAHLEQUAH – The Cherokee Nation Supreme Court on May 29 denied David Walkingstick’s appeal to rejoin the principal chief race.

In a 4-0 vote on May 17, the Election Commission disqualified Walkingstick, the Dist. 3 tribal councilor, for violating tribal election law. He filed an appeal that Supreme Court justices heard.

“The May 24 Supreme Court proceeding provided an additional opportunity for the parties, including the candidate, to offer witnesses, clarifying information or other data to enhance the record in this case, but no such information of probative value was provided,” the court’s order states, adding that conclusions reached by the EC “are supported by sufficient evidence” to disqualify Walkingstick from the June 1 election.

The remaining chief candidates are former Secretary of State Chuck Hoskin Jr. and Dist. 12 Tribal Councilor Dick Lay. Absentee, early walk-in and Election Day votes cast for Walkingstick will not be counted, EC attorney Harvey Chaffin said.

Walkingstick’s disqualification was based on a case made by the attorney general’s office that he and his campaign illegally accepted in-kind donations from the limited liability company Cherokees for Change and solicited illegal contributions.

Deputy Attorney General Chrissi Nimmo told the court that if Walkingstick was 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.”

“(Walkingstick) committed no violation justifying disqualification as a candidate for office of principal chief under Cherokee Nation law as it currently exists,” Walkingstick’s attorneys wrote in a “findings of fact” document filed with the court May 28. “The evidence presented to the commission fails to prove (Walkingstick) accepted in-kind contributions from Cherokees for Change.”

Much of the attorney general’s case was based on CN law that allows only individuals 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 stated Walkingstick knew of 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 Hoskin.

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. He added that he had no control over anti-administration groups. “If they’re pro Walkingstick or pro Lay or pro Hoskin, great, so be it.”

In a May 23 brief requesting the court uphold the EC’s decision, Attorney General Todd Hembree said 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 stated 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.”

“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.

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 …”

The Supreme Court ruling noted that commissioners “also found that another potential contributor, Sheldon Miggletto, was solicited by Walkingstick for campaign contributions.”

The Supreme Court also noted that Walkingstick’s responses “were evasive” at the EC hearing, and that he “provided no plausible explanation” for the post office box.

“All of this activity and the record demonstrate the election commission properly found that the facts constitute evidence that Walkingstick knew Appleton had created Cherokees for Change to solicit and receive contributions in support of his candidacy and he and Appleton had engaged in solicitation of unlawful campaign contributions,” the court order states. “Most importantly, all of this was done outside of the control and knowledge of the election commission.”

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.”

Another principal chief candidate, Rhonda Brown-Fleming, was deemed ineligible to run by the EC based on residency requirements. The Supreme Court upheld that decision.

Click here to view the Supreme Court ruling.
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