The Cherokee Nation Election Commission voted to disqualify principal chief candidate David Walkingstick Friday after a daylong hearing — there was not immediate word about an appeal.
The hearing began Friday morning with a motion by Walkingstick’s lawyer, Brian Berry, seeking the removal of Attorney General Todd Hembree and Assistant Attorney General Chrissi Nimmo from the hearing for contributions they made to Chuck Hoskin Jr., Walkingstick’s opponent. The motion was denied, and the hearing continued with opening statements.
Walkingstick was accused of accepting illegal, in-kind donations from Cherokees for Change LLC. Tribal election laws prohibit contributions from corporations and other legal entities.
Walkingstick also was accused of accepting anonymous contributions, another violation of tribal election laws, and using his Cherokee Nation cell phone to make campaign-related calls. Hembree said the evidence was clear that Walkingstick is subject to disqualification and criminal prosecution.
Berry disagreed, arguing the investigative memorandum presented by the Hembree’s office consisted primarily of hearsay evidence. He said the Walkingstick campaign had nothing to hide.
Walkingstick was the only witness called by the attorney general’s office. Nimmo asked him about his use of his Tribal Council cell phone. Walkingstick said campaign conversations did occur on his cell phone, but insisted it was not illegal, as it was part of his compensation package as a tribal councilor.
Berry objected, reading a passage from Hembree’s memo that stated the election code prohibits only the use of office phone extensions, and that the code has not been updated to include cell phones. Berry said the only thing specified is office phone extensions, but his objection was overruled.
Walkingstick denied making campaign-related calls with his cell phone and of having knowledge of a post office box – rented by Walkingstick’s mother – that was used as a return address for Cherokees for Change. He also denied having contact with Hudson Talley, a contractor for Cherokees for Change, and claimed he had no contact with Rusty Appleton.
Appleton was Walkingstick’s financial agent at the time of filing for candidacy and also the individual who formed Cherokees for Change LLC. The two mutually decided to go their separate ways, Walkingstick said, and he denied having conversations with anyone about creating an limited liability company for independent expenditures for his campaign.
“We’re here because the allegation is that after Rusty Appleton left your campaign – actually before he left your campaign – he formed an LLC to take donations to help your campaign,” said Nimmo.
Berry objected to the line of questioning, stating that unless any of the AG office’s witnesses were present to be cross-examined, then all of Nimmo’s arguments were hearsay. Nimmo presented a 108-page packet of text messages and emails alleged to have been circulated among Walkingstick, Rusty Appleton, Hudson Talley and campaign manager Luke Harshaw.
“This is, even if it is hearsay, it’s absolutely impeachment evidence,” said Nimmo. “He has sat here for the last 20 minutes and lied to this council. We can walk through [the messages] one by one.”
Berry continued to object, saying the candidate was ambushed, as none of the individuals mentioned by Nimmo were present to be cross-examined. The commission overruled Berry’s objections.
Walkingstick said the messages sent from his phone to Appleton or Talley were actually sent from Harshaw. Also included in Nimmo’s packet of messages and emails was an affidavit by Appleton, saying Walkingstick was aware on Feb. 21 that Cherokees for Change was created for accepting donations and making expenditures in support of his candidacy.
Walkingstick previously said Appleton had served as his financial agent until Feb. 28.
Walkingstick said the only thing he knew about Cherokees for Change is that it is an “anti-administration group,” and that he has nothing to do with what groups choose to support him. He also stated the AG’s office was biased and in support of the Hoskin and Bryan Warner campaign to secure future employment.
Berry argued Walkingstick was ambushed, and that while Hembree said he received the copies of messages Thursday afternoon, Appleton’s affidavit had been signed weeks ago. Berry said there was no definitive proof that Walkingstick accepted or solicited any contributions.
“I didn’t see anything proven,” said Berry. “Matter of fact, all these witnesses they have in the memo, where are they? Nobody’s here. The best they have is a hearsay document with no facts that could be supported by evidence, most of which didn’t even involve Mr. Walkingstick.”
Berry said Walkingstick’s campaign is not happy about being linked to Cherokees For Change, and again stated the only witness for the AG’s office was Walkingstick.
“Mr. Walkingstick was grilled by a couple of AGs that are some of the biggest supporters and contributors to his opponent,” he said. “That just rubs me the wrong way. The appearance of impropriety with regard to that office is unfair. How can the Justice Department be trusted in Cherokee Nation, when we can’t even have a hearing that is fair with regards to the prosecution.”
Berry said he pities “any fool running for principal chief’s office” if he or she is not backed by the current administration.
“The Cherokee citizens have a right to have their voice heard,” he said. “David has a right to be on that ballot.”
Nimmo brought up the packet of messages during her closing arguments and accused Walkingstick of lying to commissioners. She pointed to the text messages as evidence of her allegations.
Walkingstick’s campaign issued a statement following the hearing but did not address the issue of a possible appeal to the Cherokee Nation Supreme Court.
“Although we are proud Cherokee citizens, we are also United States citizens with a guaranteed right to free speech protected by the U.S. Constitution,” Harshaw said. “The Cherokee Nation Election Commission’s ruling to remove David Walkingstick shows either a total disregard or misunderstanding of what our First Amendment protects.
“The United States Supreme Court ruled in Citizens United v. FEC that U.S. citizens cannot be denied the right to raise and spend money to influence an election for a candidate,” Harshaw said. “The Election Commission’s disqualification of Walkingstick from the principal chief election is in direct conflict with this ruling that remains the law of the land.”
The campaign denied any coordination with Cherokees for Change LLC and rejected the idea that the Cherokee Nation Election Commission has any “legal right to remove a candidate from the ballot as the result of another United States citizen exercising their First Amendment right to free speech.”
Grant D. Crawford writes for the Tahlequah Daily Press.