
    Linda O’LEARY, as Chairperson of the Executive Finance Committee of the Cherokee Nation Tribal Council, and Bill Johnbaker, as co-chair of the Executive Finance Committee of the Cherokee Nation Tribal Council, Petitioner, v. Ben STEVENS, Human Resources Group Leader of the Cherokee Nation, in his official Capacity, and Callie Ketcher, Secretary Treasurer of the Cherokee Nation in her official capacity, Respondents.
    JAT-04-13.
    Cherokee Nation Judicial Appeals Tribunal.
    Jan. 4, 2005.
    Todd Hembree, Stilwell, OK, for Petitioners.
    A. Diane Hammons, Director, Cherokee Nation Department of Law and Justice, Richard D. Osburn, Tahlequah, OK, for Respondents.
    Before: DARRELL DOWTY, Chief Justice, DARELL MATLOCK, Justice and STACY L. LEEDS, Justice.
   RELIEF GRANTED AS l‘ER ORDER

OPINION

Justice MATLOCK.

The Petitioners filed their complaint requesting this Court issue an order prohibiting the Respondents from reducing the merit pay increases for the fiscal year 2005 for the Cherokee Nation employees working under the supervision of the Tribal Council as awarded by the Chairperson and Co-chairperson of the Tribal Council Executive Finance Committee and that such action by the Respondents was a violation of the separation of powers clause of the Cherokee Nation Constitution of 1975.

The Respondents filed their Answer and Counter Claim which in essence denied the Tribal Council’s right to evaluate and award the support staff employees of the Tribal Council merit pay raises for the fiscal year 2005 which would be inconsistent with the policies for merit pay raises as determined by the Human Resource Group Leader of the Cherokee Nation and implemented by the Cherokee Nation Secretary-Treasurer.

The Court, after examining the files and record, and hearing sworn testimony from Ben Stevens, Human Resource Group Leader of the Cherokee Nation, and the Honorable Cara Cowan, District 7 Cherokee Nation Tribal Council, finds:

I

This Court has jurisdiction of the parties and subject matter pursuant to Article VII of the Cherokee Nation Constitution of 1975.

II

The employees comprising the support staff of the Tribal Council are under the administration, supervision, direction, and control of the Tribal Council. Art. 5 § 6(A) Cherokee Nation Constitution of 1975.

III

The Chairperson and Co-chairperson of the Cherokee Nation Tribal Council Executive Finance Committee currently have the authority to exercise administration, supervision, direction, and control over all matters concerning the staff of the Tribal Council pursuant to Resolution No. 01-01 Cherokee Nation Tribal Council.

IV

The 2005 Comprehensive Budget Act enacted by the Tribal Council and approved by Principal Chief Chadwick Smith authorized merit pay raises for the 2005 fiscal year for support staff employees of the Cherokee Nation Tribal Council in a sum not to exceed five (5%) percent of the employees current pay respectively.

V

The five (5%) percent merit pay raises for the 2005 fiscal year directed by the Chairperson and Co-ehairperson of the Tribal Council Executive Finance Committee, for the Tribal Council support staff employees are within the authorization of the budget for the Tribal Council in the 2005 Comprehensive Budget Act.

VI

The 2005 fiscal year merit pay raises directed for the Tribal Council support staff employees by the Chairperson and Co-chairperson of the Tribal Council Executive Finance Committee do not cause the pay rates of any of the Tribal Council Support Staff employees to exceed the range of pay for their respective classification under the Human Resource Policies and Procedures of the Cherokee Nation.

VII

The Cherokee Nation Administration by its Human Resource Group Leader and Secretary-Treasurer implemented a three (3%) percent merit pay raise for the Tribal Council support staff employees for the 2005 fiscal year instead of the five (5%) percent directed for the Tribal Council support staff employees by the Chairperson and Co-chairperson of the Cherokee Nation Tribal Council Executive Finance Committee.

VIII

The refusal of the Cherokee Nation Human Resource Group Leader and Secretary Treasurer to implement the merit pay raise for the 2005 fiscal year for the Tribal Council’s support staff employees as directed by the Chairperson and Co-chairperson of the Cherokee Nation Tribal Council’s Executive Finance Committee, under the findings of fact herein, was a violation of the separation of powers clause set forth in Article IV of the Cherokee Nation Constitution of 1975.

IT IS THEREFORE ORDERED by the Court that the Respondents are directed to implement the five (5%) percent merit pay raise for the support staff employees of the Cherokee Nation Tribal Council to the date of beginning of the 2005 fiscal year as directed by the Chairperson and Co-chairperson of the Executive Finance Committee of the Tribal Council.

Concurring: DARRELL DOWTY, Chief Justice and STACY L. LEEDS, Justice.  