EC says Duncan can run for Dist. 7 seat

BY TRAVIS SNELL
Assistant Editor – @cp_tsnell
12/07/2018 08:00 PM
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Cherokee Nation citizen Tim Houseberg looks at his attorney, Deborah Reed, during a Dec. 7 hearing at the Election Commission Office in Tahlequah. Houseberg and CN citizen Robin Mayes each challenged the candidacy of Canaan Duncan for the Dist. 7 Tribal Council seat. BRANDON SCOTT/CHEROKEE PHOENIX
TAHLEQUAH – The Cherokee Nation’s Election Commission on Dec. 7 unanimously ruled CN citizen Canaan Duncan as an eligible candidate for the Jan. 5 special election to replace former Dist. 7 Tribal Councilor Frankie Hargis.

CN citizens Robin Mayes and Tim Houseberg each challenged Duncan’s candidacy stating he violated the tribe’s election law by becoming a candidate while employed at the CN. According to CN law, tribal employees and employees of CN majority-owned entities must resign before filing for an elective position.

According to EC documents, both challengers claim Duncan is ineligible to run because he, while as a CN employee, conducted campaigning activities before he resigned his job in the secretary of state’s office on Nov. 28. He filed for office on Nov. 29.

Both challengers contend that Duncan became a candidate before resigning because he met the $1,000 fundraising minimum that makes a person a candidate, according to a 2015 amendment to the election law.

That amendment defines a candidate as “a person who has raised and/or accepted in-kind contributions in excess of One Thousand Dollars ($1,000.00) or has filed and is qualified to run in an election to hold elective office in the Cherokee Nation…”

Mayes was not present for the hearing, but EC Chairwoman Shawna Calico read his statement.

“After the 2015 election was over the council made revision to the election law defining a candidate as one who engages in campaign activities and made it applicable before filing,” Mayes’ statement read. “It must be noted that the language requiring candidates to not be employees at the time of filing was written and established long before the 2015 election and before the new rules were implemented. Therefore, it is challenger’s position that the council overlooked and failed to adjust the language in other sections of the election law leaving this conflict and loophole that circumvents the spirit and intent of requiring candidates not be employees.”

In response, Duncan’s attorney, Curtis Bruehl, said the challenges come down to when a CN employee needs to resign before filing for an elective office.

“The first thing we must do is look at the (election law) statute. We’re going to look at Section 31, and even in the contest, it says very clearly that an employee must resign before the filing of the declaration of candidacy. That’s historically how employees of the Cherokee Nation proceed, and that’s exactly what Mr. Duncan did here. He resigned the day before he filed his candidate packet.”

Bruehl said commissioners should look at the plain language of Section 31B, which states a candidate at the time of filing, shall not be employed by the CN or its entities. It also states that a candidate can’t file for an office if already filed to run for another office in the same election unless the prior filing is withdrawn.

“And we do not need to look beyond the plain language of the statute to determine his resignation came before the time he filed his packet,” Bruehl said. “And if there was any confusion in what the statute says, in Part 1 the candidate shall not be employed as of the day of filing. This is not based on the definition of when someone becomes a candidate. It is based upon an action, and that action is the filing of the declaration of candidacy, the filing of the packet. As long as an employee resigns before they walk through those doors and submit their declaration of candidacy, they are in compliance with the statute.”

He added that even though the Tribal Council expanded the candidate definition in 2015, it has no effect on the timing of when an employee must resign.

Houseberg’s attorney, Deborah Reed, said Section 31B also states each candidate shall meet any other applicable requirements as set forth in the CN Constitution and Chapter 4 of the election law. She said the Tribal Council’s amended definition of candidate sets forth an additional requirement.

“What we believe is that Mr. Duncan may have received donations in excess of a thousand dollars whether it was cash or in-kind,” Reed said. “The plain language of the statute provides that employees shall not be a candidate because they have to resign. When the Tribal Council changed the definition of candidate, it should follow, per public policy behind this law, that that person should have resigned when he became a candidate.

Bruehl said he stipulated that Duncan met the expanded candidate definition prior to his resignation but reiterated that the issue was whether Duncan resigned before filing. “All you have to do is resign before you file. The expansion of the definition of candidate does not affect the timing of when you must resign, as clearly the statute says.”

After deliberating, commissioners voted 4-0 on both challenges deeming Duncan eligible to run. Calico said the EC found no constitutional provision or legislative enactment that prohibits a CN employee from becoming a candidate and campaigning for elective office while being an employee other than the provision stating an employee must resign before filing.

Commissioner Randy Campbell was absent.

“I’m thankful for the process that people can go through and get a decision like this,” Duncan said after the decision. “Of course, I’m happy with the decision they’ve come to and look forward to running a good campaign and serving the people, hopefully.”

Any challenge of the EC’s decisions must be filed in the CN Supreme Court by Dec. 14. The court would then have Dec. 17-19 to hear the matter and rule on it.

The Dist. 7 seat became vacant after Hargis in November resigned to become the tribe’s new registrar. The EC had 90 days from her resignation to fill the Adair County-based seat, according to CN law.
About the Author
Travis Snell has worked for the Cherokee Phoenix since 2000. He began as a staff writer, a position that allowed him to win numerous writing awards from the Native American Journalists Association, including the Richard LaCourse Award for best investigative story in 2003. He was promoted to assistant editor in 2007, ...
TRAVIS-SNELL@cherokee.org • 918-453-5358
Travis Snell has worked for the Cherokee Phoenix since 2000. He began as a staff writer, a position that allowed him to win numerous writing awards from the Native American Journalists Association, including the Richard LaCourse Award for best investigative story in 2003. He was promoted to assistant editor in 2007, ...

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