Cherokee judge awarded NCBA's highest honor

By Lisa Majors-Duff

Most of us at some point in our careers have had the same thought - "If I made the rules, I'd..." Then the boss walks in and we go back to doing our jobs as they were designed.

So when given an opportunity to make the rules, literally, Harry Martin left his third retirement behind to become chief justice of the Cherokee Supreme Court and creator of a new court system and judicial branch of government for the Eastern Band.

"I didn't know anything about Cherokee, and I didn't know anything about Indians," Justice Martin said from his office within the Cherokee Tribal Court headquarters on Acquoni Road. "I think I'd only been here twice."

Regardless of his unfamiliarity with the reservation and its inhabitants, Martin said he never hesitated when Principal Chief Leon Jones offered him the opportunity to assist the Cherokee people in replacing a court system run by Washington, D.C., with one operated totally by Indians.

For his work to create the new Cherokee court system, a responsibility he took on in May of last year, in addition to a distinguished legal career that has taken him from the Superior Court bench to seats on both the N.C. Court of Appeals and state Supreme Court, and finally as the driving force behind the the Fourth Circuit U.S. Court of Appeals's mediation program, Martin was awarded the John J. Parker Award by the N.C. Bar Association during its annual conference in Wilmington last month.

The effort to establish a new court for the Cherokee people began with an act of Congress in the 1975, Martin said. That's when the Indian Self-Determination and Education Assistance Act was passed.

"The U.S. government has vacillated back and forth with regard to the Indians," Martin said. "First they wanted to kill all of them, then they wanted to move them all west of the Mississippi, then they wanted to push them all into the Pacific Ocean. But little pockets held out."

Up through the mid-1970s, the federal government attempted to assimilate the Indians into the "white world," but that changed in 1975 with the new federal standard, which basically gave Indian tribes the right to establish independent institutions like schools, hospitals and courts, said Martin.

After gaming came to the reservation, Cherokee Tribal Council members took the government up on its offer and entered into a contract with the Bureau of Indian Affairs to operate its own courts.

Prior to Tribal Council's December 1999 ordinance creating an independent court system, Cherokee Indians with civil and criminal complaints were subject to a CFR court, or Code of Federal Regulations, run by the BIA, said Martin.

"It was a federal court, and the BIA hired all the employees," he explained.

Once it was determined that Cherokee would have its own court system, someone was needed to oversee its development. Six months into his third retirement, Martin received a call from Chief Leon Jones.

"I was really retired. I was trying to play golf and I was bugging all my working friends, trying to get them to have lunch with me," said Martin. "That's when Chief Jones called and said, 'Judge, I understand you're unemployed.'"

Born and raised in the Lenoir and Blowing Rock areas, Martin came to Asheville after graduating from Harvard Law School in 1948. He spent 30 years in the state system, serving as a Superior Court judge in the counties of Western North Carolina, where he sat on the bench in the old Jackson County Courthouse and remembers with a grin Marcellus "Buck" Buchanan's bow ties and booming voice.

From the Superior Court bench, Martin went to Raleigh to serve on both the N.C. Court of Appeals and the state Supreme Court until someone (he would not say who) told him he was too old to be a judge. So he went to work for five and a half more years with the Fourth Circuit Court of Appeals.

Though he admits to having no proof of who gave Chief Jones his name ("I suspect [Sylva attorney] Ben Bridgers is the guilty party," he said.), Martin said he was "very interested" in the tribe's desire to create its own court system.

"I told Chief Jones that I'd be delighted to help," Martin said. "My goal, as I told the chief then, is by the time I left here this court would be all Cherokee.

"I think Cherokee should have Cherokee judges, not white judges," he continued. "And this is something that will happen, no doubt in my mind."

Under the old CFR system, Cherokee had three trial judges, only one of whom had passed the N.C. Bar Exam. Of the other two, only one had even been to law school. On the way to accomplishing his goal, Martin said some changes were need. While one of the trial judges is from Franklin and considered a "contract" judge, another has been accepted to law school at Chapel Hill this fall, while the third is Martin's son, Matthew, who left his practice to help his father in Cherokee.

"We have a separation of powers to some extent," Martin said. "The principal chief nominates the judges, and they are approved by Tribal Council, just like the president and Congress."

As chief justice of Cherokee's three-person Supreme Court, Martin has a six-year term, while the three trial judges have four-year terms, all subject to reappointments. There is no appellate level besides the Supreme Court. The court system's budget is roughly $1.3 million annually.

With what Martin termed "a very busy first session," several years worth of accumulated cases pending before the Supreme Court were recently disposed of. "The Supreme Court docket is current," he said. "Several notices of appeal have been given, but they are not ready for argument."

As for jurisdiction in criminal matters, non-Indians cannot be tried for crimes they are accused of committing on the reservation, a situation Martin does not approve of.

"I think this is wrong," he said of rules requiring non-Indians to be tried in either Jackson or Swain county courts for lesser offenses and in federal court for more serious crimes. "Regardless of their race, if someone commits a crime on the reservation, he should be subject to the Cherokee court. If a Cherokee is arrested in Jackson County for drunk driving, he'll go to court there; they won't bring him back here."

Jurisdiction over non-Indian defendants is different across the country with regard to Indian courts, Martin said, depending on the language in a tribe's treaty with the U.S. government.

On the civil side of the law, Cherokee's court system has "unlimited jurisdiction," Martin said. "Indians and non-Indians can all be sued here."

After a year of operation, the court system staff is well on its way to becoming "all Indian," said Martin, who runs down the list of Cherokee employees, beginning with the two Supreme Court associate justices, who are both Cherokee women and law school graduates; his secretary; two magistrates; a probation officer; and four staff members in the clerk of court's office.

But finding lawyers to work on a full-time basis in Cherokee has not been easy, Martin said.

"Cherokee is a sovereign nation with approximately 12,500 people, 7,500 of whom live on a reservation of 56,000 acres," he said. "You'd think there'd be at least one lawyer here."

While there may not be a law office on the reservation, about a dozen lawyers from surrounding communities regularly try cases in Cherokee, said Martin, who established the Cherokee Bar Association and required lawyers who intend to practice in the Cherokee be members in good standing. Cherokee Bar Association members number about 70, and while many are from as close as Sylva and Bryson City, at least one practices in Greensboro, Martin said.

Recruiting Cherokee's prosecutor was, likewise, a difficult task, said Martin. While the BIA employed a part-time prosecutor, "we really needed a full-time guy, and it took eight months to get him here. This was another case of it being a hard job getting someone to work here."

The Cherokee people seem to like the idea of having their own court system, Martin said. Though many problems existed under the CFR system, one of which was a tendency on the part of the losing side to take their complaints to Tribal Council members or the chief, they are being addressed and resolved, he said.

Because of the Fourth of July holiday, court is not in session this week in Cherokee. But sessions for small claims, juvenile cases, traffic violations, civil, criminal and jury trials are all scheduled in the coming weeks. Only enrolled members can be impaneled on a jury, which is generally made up of eight people, instead of the usual 12, Martin said.

This father of three who lives with his wife, Nancy, in Asheville, described his service in Cherokee as "a great experience. I really love it over here." In addition to working with "really good people," Martin becomes nearly giddy at the prospect of one day walking out the door of his office and dropping a fishing line in the Oconaluftee River.

"And what more beautiful place could I have found to work?" he asks.

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