Hatfield-“Appearance of Impropriety”
Late last week I received a couple of inquiries from officers of Cherokee At Large organizations about items they had received in the mail from current At Large Tribal Councilor Wanda Hatfield. These officers provided me with copies of a check from the Cherokee Nation for $500, a piece of Councilor Hatfield’s campaign literature, her Cherokee Nation business card, and a short note asking for “your” vote and support (presumably the “you” meant the organization, or at the least, the officers). Recognizing that this was a violation of Cherokee Nation law, I forwarded the information to an attorney who is a tribal member who told me that they would look into the matter.
In the meantime, the issue blew up on social media as others also received copies of the items. At least four At Large organizations received these mailings and there are likely others as well. On Wednesday, Councilor Hatfield put out a statement on Facebook acknowledging the “appearance of impropriety” in sending her campaign literature with a check drawn on the Cherokee Nation itself. This is not just an appearance of impropriety. It is allegedly a violation of the law that has fines and jail time associated with it as outlined in the Cherokee Nation election code. According to Ms. Hatfield, she has sent all materials to the CN Attorney General’s office, as several people have filed complaints with the Election Commission as well.
WHERE DID THE MONEY COME FROM?
The $500 was a donation from Councilor Hatfield to the At Large organizations. She was drawing the monies from a fund called “Community Assistance.” Each CN Councilor has $15,000 - $25,000 of Cherokee Nation money that they can designate to different organizations and causes they would like to support. Although the specific councilor designates the funding to an organization or cause, it is important to remember that in the end, this is Cherokee Nation money.
And that’s the issue when it is sent out accompanied by campaign literature.
WHAT IS THE CRIME?
In some other jurisdictions, when government funds (whether state or federal) have been attached to a political campaign as is the case here, a legal argument has been made that the candidate has appropriated government funds to their campaign. The resulting criminal charge has been "embezzlement" and successful prosecutions of candidates have occurred based on this interpretation. This is not about something as minor as who paid for the stamp or provided the envelope as Ms. Hatfield seems to describe it in her explanation. This is about the alleged appropriation of thousands of dollars of tribal funds to Ms. Hatfield’s political campaign.
APPEARANCE OF IMPROPRIETY?
Ms. Hatfield provided her explanation and defense of her action on Wednesday of this week. She indicated that she was unaware of the criminal aspects of this, or even that it was “inappropriate.” Even if one accepts this explanation, it still implies something pretty sad. This was so blatant that it would simply never have occurred to anyone who actually knew anything about CN law, political restrictions on non-profits, or campaign ethics, as a Cherokee Nation legislator should. It was more than “inappropriate.” On the face of it, it was illegal, and Ms. Hatfield’s explanation and defense are still not recognizing or acknowledging that.
LAW & BY-LAWS
The Election Code of the Cherokee Nation is a long and complex code that is updated periodically. I served on the Election Law Reform sub-committee in 2012 when arguably the most extensive recent reform of this code took place. We went over that legislation page by page, line by line. I became very familiar with that law. Since there were additional amendments in 2016, it’s dismaying that Councilor Hatfield does not seem to have the same familiarity. In addition, as the convener of the groups that established the Cherokee At Large organizations, I wrote the by-laws that the At Large satellite communities use, including the article that states they cannot endorse or campaign as an organization for any candidate. If the groups had done what Councilor Hatfield asked, given her their support and their vote as a group, they would have violated their own by-laws, and they recognized the problem even if she didn’t. As it stands, they would be wise to refrain from depositing the donation of Cherokee Nation funds she sent until this issue is finally determined, and so this even compromises the intended donation.
Finally, there is a greater issue here. When he was Principal Chief, Chad Smith used to call the Community Assistance funds that Tribal Councilors were able to allocate a “slush fund.” He recognized the potential for exactly this kind of thing to happen, although even he did not envision it being done so blatantly. I believe the attempt was to create a patronage relationship: I will give you money and you will give me votes. There was no other reason to include a campaign card with a donation to the group. The inclusion with a donation was completely deliberate despite any insistence to the contrary.
WHAT WILL HAPPEN?
Despite the complaints to the Election Commission, the Attorney General, the Marshal Service, etc., my prediction is that nothing will happen here, or at most, a symbolic slap on the wrist. I have not piled on to already existing complaints. After (1) my own disqualification by the EC in 2015 in clear contradiction to Cherokee law, (2) a recent ruling by the AG on my attempt to hold a meet and greet even though he did not have the contract in front of him, (3) the recent ruling by the EC against Buel Anglen, and (4) numerous other questionable rulings by the EC and AG in recent years, my present faith in the institutions of the Cherokee Nation is slim to none.
I would rather place my faith and my energy into you, the At Large Cherokee voters. You are the remedy to this and so much more. You deserve better representation than someone who is at best ignorant of the law and at worst, attempting to foster patronage relationships.
I will proudly join with you in being the remedy. Vote!