Martin v. Eastern Band of Cherokee Indians

8 Am. Tribal Law 386

Opinion

Order

This case has been moved from the Cherokee Court to the Cherokee Supreme Court. The issue is whether the case is properly before the Cherokee Supreme Court.

1. The defendants filed a motion for summary judgment which was heard on November 18, 2009 and an order was entered on December 11, 2009 allowing the motion in part, and denying it as to the claim by plaintiff for wrongful termination.

2. The defendants on December 31, 2009 gave notice of appeal to the Cherokee Supreme Court from the Cherokee Court order of December 11, 2009, although the order was interlocutory.

3. The defendants on January 5, 2010 filed a motion in the Cherokee Court to stay proceedings in that court pending appeal of the case to the Cherokee Supreme Court.

4. The Cherokee Court on January 15, 2010 entered an order denying the defendant’s motion of January 5, 2010. The Court found that the defendant EBCI does not have a substantial right that cannot be protected in an immediate appeal. The Cherokee Court also held that discretionary exercise of appellate jurisdiction was by the appellate court, not the trial court: Flaherty v. Hunt, 82 N.C.App. 112, 345 S.E.2d 426 (1986).

5. The defendants did not enter notice of appeal from the order of January 15, 2010.

We hold that this case is not pending in the Cherokee Supreme Court. It is pending in the Cherokee Court. The Clerk of the Cherokee Court is directed to place this case on the trial docket.

Done at the Qualla Boundary, Cherokee, North Carolina, this 18th day of March, 2010.