Cherokee Nation motions to dismiss term-limit challenge

BY BRITTNEY BENNETT
Former Reporter
03/08/2018 12:00 PM
TAHLEQUAH – Attorney General Todd Hembree filed a motion March 1 to dismiss Cherokee Nation citizen David Cornsilk’s petition challenging Hembree’s 2016 opinion regarding four-year term limits.

Hembree states the petition should be dismissed for reasons including lack of jurisdiction and it “fails to state a claim for which the Court can grant relief.”

Cornsilk’s petition asks the District Court to overturn Hembree’s opinion and declare Principal Chief Bill John Baker and Deputy Chief S. Joe Crittenden ineligible for candidacy in the 2019 general election because they have served “two consecutive” terms after winning elections in 2011 and 2015.

Hembree’s opinion states “any candidate for elected office having served less than two consecutive, four-year terms of office is eligible to stand for re-election in the next general election.” It asserts neither Baker nor Crittenden served a full four-year term after being elected in 2011 and could run again in 2019.

Crittenden won the deputy chief’s race and was sworn in on Aug. 14, 2011, but had to assume principal chief duties until Baker was sworn in on Oct. 19, 2011, because of an appeal in his race.

Cornsilk argues that regardless of who is in the principal chief position, the term Baker won was from Aug. 14, 2011, to Aug. 14, 2015, and “the fact that he didn’t step into the office until nine weeks after it began is not pertinent to the term.” The petition also states that regardless of Crittenden stepping in while the principal chief race was decided “is not pertinent to the term” as deputy chief. As such, it argues his first term was completed from Aug. 14, 2011 to Aug. 15, 2015.

The motion to dismiss states Cornsilk’s petition “lacks jurisdiction” because the Attorney General Code does not allow the attorney general to be sued if an individual “disagrees with an opinion.” According to CN law, an attorney general’s opinion has the rule of law until overturned by a court or another attorney general’s opinion.

Cornsilk said this gives Hembree “the power to basically interpret law the same as the court.”

“What that tells me is that the Attorney General’s Office is becoming a fourth branch of government,” he said. “The only people that I get he presumes that could challenge him are maybe the Election Commission or maybe the people that ask for the opinion, but people like me, your average everyday citizen who are actually impacted by his decision, have no power to challenge him.”

According to the motion, the attorney general is shielded by sovereign immunity and Cornsilk must bear the burden of proof that the CN waived its right to be sued.

“Todd has raised the issue of sovereign immunity and that he is immune from lawsuits. I agree with that,” Cornsilk said. “Cherokee Nation officers are immune to lawsuits, but officers are only immune to lawsuits if they stay in the boundaries of their job duties. In my opinion, Todd’s opinion is overreach.”

In the motion, Cornsilk is instructed to consult Title 26, Section 37(A) or Section 37(B) of the CN Constitution to overturn Hembree’s opinion.

Title 26, Section 37(A) grants any CN citizen who is registered to vote “the right to contest the eligibility of any candidate to run for office” at a hearing with the EC, while Section 37(B) gives the right to appeal any decision concerning a candidate’s eligibility directly to the Supreme Court.

Cornsilk said the law does not allow a citizen to contest a candidate until after they have filed.

“I wanted to do it ahead of the election before any controversy so it doesn’t change our election,” he said. “If (Hembree) is successful at this, he will have set himself up as not only a maker of law, a one man council, but also will be the judge because his opinions won’t be overturned until they appear in court, and you can’t get him into court.”

According to the motion, the merits of “an actual controversy” are also missing from Cornsilk’s petition, which is a constitutional requirement to be granted a declaratory judgment. It asserts Cornsilk “fails to allege he has suffered or will suffer a particularized injury because of AG Hembree’s Opinion” and that the alleged harm “is speculative at best.”

Cornsilk said he would file a response to the motion.

“In the event that this case is dismissed on a technicality, I probably won’t have to file it again in February (2019). If the deputy and principal chief do choose to try and run for a third term, somebody will challenge it. I think that Todd, in his opinion, by raising the issue of the candidacy of chief and deputy chief, made this an issue,” he said.

The attorney general’s office declined to comment regarding this story.

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