Update April 2020

APRIL COUNCIL MEETINGS

The Tribal Council cancelled all meetings in March as COVID-19 began to spread in the US, including Oklahoma (the first COVID-19 death in OK was in March and was a CN citizen). It became apparent that remote attendance at committee and council meetings would be best, but our laws do not allow for remote attendance at committee meetings unless one is an At Large councilor or away on official business, and remote attendance was not allowed at all at the monthly full council meeting. So first, at the April Rules committee meeting, we had to bring a quorum of councilors in person to the committee meeting room to amend the existing law. Once that was done, other councilors attending remotely could also join and conduct business.

The agenda in April included a resolution that gave the Principal Chief the authority to enter into contracts without having to come to council for approvals he would otherwise have had to seek. From my perspective, the intent of this resolution was greatly misunderstood, which is why it became somewhat controversial, at least on social media. The most misunderstood aspect, it seemed, was that people believed the Tribal Council had some kind of ability and authority to enter into contracts, and that it was relinquishing that authority to the Chief. So it is important to note that the Tribal Council has never been the entity that entered into contracts or approved them. That has always been a function and responsibility of the administration since…forever - including the Baker admin, the Smith admin, the Byrd admin, the Mankiller admin, the Swimmer admin. If CN needs supplies or services of any kind from vendors, those contracts are negotiated and entered into by administration with oversight from the Attorney General’s office. The TC allocates funds and sets a policy agenda, but it never micromanages it by being in the negotiations. The TC may be informed or consulted, but usually only if it is a major contract of some kind.

SOVEREIGN IMMUNITY

So if Chief Hoskin already had that authority, why was he asking for something from the TC in the April resolution? Well, there is one circumstance in which the Chief must come to the Council for approval: if the contract is requiring the Cherokee Nation to waive its sovereign immunity. Sovereign immunity means that the Cherokee Nation (like any government) cannot be sued in the event of a breach or dispute over the contract. We rarely waive our sovereign immunity because generally we are able to negotiate with the vendor some other kind of remedy in case of default. But on the larger contracts – say for large construction projects like the new outpatient clinic – we often must waive our immunity in order to make the necessary contracts. We do it only when absolutely necessary, and feel confident about doing so because we never have any intention of defaulting. But when we do need a waiver, the Chief must come to the Tribal Council for approval to do so.

Because the Chief and the AG’s office had already run into requests for waivers of sovereign immunity as they were trying to get testing equipment, PPE, food, etc., they were asking for a blanket advance approval of those waivers as related to COVID-19 procurement. That’s the only thing they would have had to come to the Tribal Council for, which would have taken weeks to get onto the agenda, get approved at full council meetings, etc. And there wasn’t the time for that. In the end, they managed to get the proposed waivers removed from the contracts they’d already made, but it took some days of negotiation to do that. You will remember that initially, it was extremely competitive getting these kinds of supplies as states were pitted against the federal government and each other. And then here comes the Cherokee Nation and other tribes into that mix as well. So our leadership was looking for ways to expedite the contracting process so supplies and services would not be lost to other competitors.

THE VOTE

And that’s what 16 of the 17 members of the Tribal Council voted for, including me and At Large Councilor Mary Shaw. We voted to give the administration a fast track to getting the supplies and services needed in order to minimize hardships and save lives. We simply gave the administration advance approval to waive sovereign immunity (if needed) related specifically to COVID-19 contracting.

I’m completely comfortable with my vote, even as I certainly understand that there is a degree of political mistrust in the Cherokee Nation administration after a very nasty campaign season last year. That same level of mistrust is playing out in American politics around this pandemic as well. So we are not unique in that regard.

THE FINALIZED RESOLUTION

But because of that mistrust, the original resolution (this was not legislation – I constantly saw it referred to that way on social media, but that’s incorrect) was restricted significantly to include the following provisions:

(1) A sunset date – the resolution expires upon the lifting of the emergency order, or June 15, whichever comes first. So, in less than two weeks, that is.

(2) A limit on the amount of a single contract. The limit was set at $1 million, an amount proposed by veteran councilor Harley Buzzard, former director of Community Services at CN. Councilor Buzzard is deeply familiar with contracting and the amounts that are standard and reasonable, and is a trusted voice in all political corners.

(3) A description of all COVID-19 related contracts will be provided to Tribal Councilors within 24 hours of the contract being finalized.

(4) All Tribal Councilors will be able to inspect the actual contracts remotely, rather than having to go physically to the AG’s office, since it was closed at the time. (The contracts are not necessarily available to the public, but that’s commonplace as they may contain proprietary info that both the vendors and CN do not want to be available to competitors.)

(5) All contracts would be single sourced – they would be made directly with a single vendor and would not involve any middlemen, LLCs, etc.

In the conference calls I attended as discussions were ongoing, the Principal Chief seemed entirely open to all suggestions and entirely open to accepting these revisions, even though they amounted to restrictions on the level of authority he already had to make contracts.

Despite all the armchair lawyering that was happening on social media, this was not about our lines of credit, nor was it a constitutional violation. This last point was backed up by Attorney General Sara Hill’s opinion, an opinion that most of us already held. (A shout out - I have seen AG Hill in action in our Justice department for almost two decades and under three different administrations – except for a stint when she was our Secretary of Natural Resources. I have the utmost regard for her knowledge and integrity).

THE FIRST WAVE

As Cherokee Nation employees are going back to the workplace, and as our gaming operations are planning to reopen soon, the Cherokee Nation has come through the first (and hopefully last) wave of the pandemic much better than we feared. Although we grieve the loss of some of our citizens, including our director of Government Relations, Karen Ketcher, we also feel deep gratitude for the survival of another high level public servant who was in extremely critical condition, and gratitude for the well-being of still others in the workforce who were sick. Our hospital did not become overwhelmed and our Public Health department, first responders, and providers have done an outstanding job, as have the many community organizations that have helped to step up CN food distribution efforts.

We pray that as the Cherokee Nation, the state of Oklahoma, and states across the country take the first tentative steps toward re-opening, that we continue to take care of each other as much as ourselves, and that we continue to do what is right for those among us who remain the most vulnerable.

And we send special thoughts and prayers to our relatives in the Navajo Nation (where I used to live), who are suffering the greatest proportionate rates of infection and death of any citizenry in this country, including New York’s. I am so proud that when it became apparent that the amount of PPE that the Cherokee Nation had procured would not be needed at this time, we forwarded a significant amount of it to the Navajo Nation.

Please be well, be kind, and care for one another,