A family whose land was seized last month by the Eastern Band of Cherokee Indians will now have their day in court, after they lodged a protest with tribal council last week.

The tribe had reclaimed the land, citing a technicality in the landowner’s will. The will lacked two signatures.

Tribal council voted 10 to 2 last month to take back the land. But the family has come forward with new evidence, an affidavit by a person they say was a second witness to the will. In light of that, Tribal Attorney General Annette Tarnawsky recommended that the issue be moved out of the political arena and into the legal system.

“I would request at this point, if that affidavit is being used as new evidence, I would request that a court rule on this,” said Tarnawsky, noting that there is case law in North Carolina that has dealt with similar issues.

But tribal council still spent more than an hour deliberating and debating the issue before finally deciding to absolve themselves and send it instead to tribal court.

In that hour, it was not only the issue itself that was debated, but a slew of other problems that it illuminates.

Several members returned to this month’s session complaining that they had little time to look over the documents of the case before they had to vote. The case had 12 pages of evidence, but those packets were only given to council members a few minutes before the vote.

“My concern is that council acted without looking at the information,” said Big Cove Council Member Teresa McCoy. “It’s a dangerous, dangerous thing to do.”

Snowbird Council Member Diamond Brown voiced a public apology to the family for the quick decision made last month. He voted to reclaim the land in July, but changed his opinion after speaking with the family and getting more information.

Even Principal Chief Michell Hicks stepped in to the council house to weigh in on the touchy issue.

“There has got to be a process that clarifies the specifics of the will,” said Hicks. “We’ve got to get that in place. We don’t want to see any family in this situation, but our duty is to uphold the law.”

Hicks added that, in this particular situation, he thought it deserved a hearing.

Tract of value to the tribe

The land in question is a 200-acre tract in Cherokee County, which just so happens to be adjacent to land the tribe bought last year to build a secondary gaming establishment.

The tract is part of the reservation, and like all reservation land is collectively owned by the tribe. But land rights can still rest with individual tribal members, and in this case the land rights belonged to Gladys Wright until she died in 2009. She thought she left those rights to her four children.

While Wright was an enrolled member, her children don’t meet the blood degree. They were entitled to land rights for the remainder of their lifetime only, and after that it would have  reverted to the tribe anyway.

However, when the chief asked Tarnawsky to buy the property for the tribe for the proposed gaming establishment, that’s when the will was examined and the questions over its validity emerged. Those questions, in turn, made it impossible to buy the land since it lacked clear title.

“I would have loved to have bought this property and not had an issue,” Tarnawsky said.

And that brought up yet another issue: the absence of legal counsel at tribal council.

Tarnawsky is the attorney general for the tribe, but she answers directly to the principal chief.

Painttown Council Member Terri Henry pointed out the inherent flaw in that system — what happens when tribal council needs its own legal advice? What if the advice it needs conflicts with what the chief or the rest of the executive branch wants?

“We essentially have a person who reports to him [the chief] standing up and advising the council,” said Henry. “We do not have a lawyer in this chamber to represent and report to the council.”

And, she concluded, they need one.

After the lengthy deliberations had concluded, however, the council made only one decision: to allow Gladys Wright’s four children to defend their mother’s will in tribal court.

And out of that single decision came a host of new issues that are sure to resurface in the future. As it turns out, the rules determining what makes a will valid or invalid aren’t exactly clear.

Although the Cherokee Code defers to state law for declaring a will valid or invalid, the Cherokee Charter, which legally trumps the code, doesn’t.

And then there’s the tradition of oral wills that is longstanding in Cherokee and has before been recognized by tribal council. The tribe also accepts wills from other states, where the rules might be different.

That lack of clarity, said Tarnawsky, makes the whole situation murkier and brings to light a larger issue that, she said, the tribe needs to deal with.

“It really needs to be a decision of council and a decision of the Cherokee people what you want to do,” said Tarnawsky on the broader issue of what constitutes a will.

A family is protesting after they say the Eastern Band of Cherokee Indians seized land they claim is rightfully theirs.

When Gladys Wright died in 2009, she left all of her property to her four children. But last month, Cherokee Tribal Council voted to take 200 acres that once belonged to the family and put it under tribal ownership. The land, located outside Andrews, has long been part of the Cherokee reservation, known as the Qualla Boundary. Only enrolled members of the tribe are allowed to own land, or the child of an enrolled member.

Wright is a tribal member, but her children are not, so she could not leave the land to them outright. But she could grant her children a life estate, meaning they could own and live on the land for their lifetime, but could not pass it on when they die.

When a first descendant dies, or if a tribal member doesn’t leave a will, any trust land reverts back to the tribe.

The complicated nature of land ownership means that wills leaving property to heirs comes to tribal council for approval. Most of them are pretty routine and are often settled and voted on in less than five minutes.

Most of them, however, don’t concern a 200-acre tract where the tribe has expressed interest in building a satellite casino — as is the case with Wright’s land.

The tribe claims Wright’s will granting her children a life estate on the property wasn’t properly executed, and it was in its rights to take back the land.

Wright’s children and critics of the move say the tribe capitalized on a technicality: it only had one signature.

The will itself was pretty clear that Wright wanted the land to go to her children. But Wright’s final will had only one witness signature on it, and North Carolina State Law requires at least two.

Elizabeth Poscich, one of Wright’s daughters who lives on the property in Cherokee County, said she was blindsided by the decision.

“I didn’t even know this had happened,” said Poscich. “A concerned citizen called me and told me.”

Poscich said she thought everything had been settled, especially since the will had been probated in Kentucky, where Wright died, and stamped and accepted by the tribal clerk of court nearly a year ago.

Last year, too, tribal council passed a resolution about buying the land. Poscich said she was never contacted, but some of her siblings were not keen to sell.

The tribe has been eyeing the land for a hybrid gaming facility — not quite a casino but more than a bingo hall.

And to build the gambling center, the tribe needs the land. It purchased around 400 acres of adjoining, non-trust land last year, but gambling activities can only be conducted on land that was part of the original Qualla Boundary.

Though the family sees it as a technicality, Tribal Attorney General Annette Tarnawsky explained to tribal council members that the tribe defers to state law when it comes to the validity of wills. And without two signatures, it can’t be valid.

At the time, Council Member Diamond Brown voted to reclaim the property for the tribe. But he now says he wishes he’d had more time and more information before casting that vote.

How are people supposed to know, said Brown, that they need two signatures? Wright’s will only had a printed line for one witness, and the tribal court accepted it. Who was supposed to tell her she needed more?

“If you notice, it [the will form] does not have a place for two witnesses,” said Brown. “If I went in there and did the same thing and gave all my bequeath to my children, well I think I’m legit, I think I’m on the up and up.”

And because the will was accepted by officials in Kentucky and at the Eastern Band’s own tribal court, Poscich and her family thought the same.

There’s something else that, in hindsight, worries Brown as well. Over the years, Welch had drawn up several other wills. And the most recent incarnation before the disputed will did, indeed, have two signatures.

Tarnawsky told council members that it didn’t mention property in Cherokee County, though.

“It does not say Cherokee County, but it does say ‘all my property,’” said Brown. “It’s plain to see that she wants her children to have that land. I know they want the land, but from what I gather from what I read from all the wills, her children have the right to it.”

The chief, however, stands by the choice made in council.

“…[The] probate documents failed to comply with the Cherokee Code’s inheritance law,” said Hicks in a statement, though he conceded that the case highlighted a problem that could affect more than a few enrolled members. “As principal chief, I believe it’s imperative that every enrolled member feel confident and secure that their wishes for passing on their possessory holdings will be upheld and carried out.”

In response, the tribe will now offer will services to members for free starting October 1, hiring attorneys to draft new wills and review existing documents for any member who shows interest.

Poscich and her family, meanwhile, are coming to Thursday’s Tribal Council meeting to fight the ruling. Diamond Brown said he’ll support the family, along with Council Members Terri Henry and Teresa McCoy. Henry and McCoy were the only council members who didn’t vote for the measure. They moved to table it until the family could come to speak in their own defense.

Harrah’s Cherokee casino bought nearly half a million dollars of liquor over the past year, netting almost $50,000 in profits each for the ABC stores in Sylva and Bryson City — which had the privileges of being the casino’s suppliers.

But despite the numbers on paper, it is hasn’t proved quite the windfall the two towns hoped.

“It was nothing like they said it was going to be,” said Monty Clampitt, chairman of the Bryson City ABC board.

“People thought there would be a world of money flowing in all of a sudden if we did this,” said Kevin Pennington, chairman of the Sylva ABC board. “I think it was a little surprising that there was not near as much money coming in.”

The casino began serving alcohol to customers last year. The Cherokee reservation was — and still mostly is — dry. The tribe made an exception for the casino, but lacked an ABC store of its own. So it turned to the ABC stores in neighboring Sylva and Bryson City to buy from.

Since the reservation lies partly in Jackson and partly in Swain counties, figuring out which store had dibs on being the casino’s alcohol supplier got complicated. Ultimately, the stores in Bryson and Sylva launched a joint venture with the sole mission of filling bulk liquor orders for Harrah’s and decided to split any profits 50-50.

Both towns hoped it would be a lucrative deal for them, since profits from the ABC stores go straight to town coffers.

But neither town has seen a penny yet, despite being more than a year into the operation.

“We haven’t gotten any of it yet. None,” said Pennington.

The joint venture has cleared $100,000 in profit so far, so at first blush it’s not clear why that money hasn’t been meted out to the towns along with the regular ABC dividends.

But Clampitt and Pennington said the profits to date have been used to build up working capital and inventory.

Roughly half the profits are tied up in inventory — $50,000 in liquor is stacked on pallets and shelves in the back storeroom of the Bryson City ABC store, ready and waiting to fill the weekly orders coming from Harrah’s.

Another $50,000 is sitting in the checking account, a cushion to ensure smooth cash flow, Clampitt said.

Since the state warehouse will only ship to local ABC stores once a month, they have to buy the liquor up front.

Harrah’s makes out a shopping list of what it will probably need, but its actual order may vary, so it could be weeks before the inventory moves off the shelves.

“You can’t tell a customer what to buy,” Clampitt said.

But with inventory and reserves now built up, profits made from here on out will be paid out quarterly. Sylva and Bryson City can each expect checks for $11,600 to arrive any day, a payout from the second quarter, Clampitt said.

Cherokee forays into ABC store of its own

No sooner than Bryson and Sylva’s joint venture has started paying off, however, and the end is in sight. Cherokee is well on its way to an ABC enterprise of its own and within the year will stop buying from its neighbors.

From the beginning, Cherokee has wanted to setup its own ABC store, selling the liquor to Harrah’s itself and keeping the profits for the tribe rather than sending them down the road to Bryson and Sylva.

The logistics of starting one haven’t been easy. The tribe ultimately needed a special bill passed by the General Assembly allowing it to start its own ABC venture, so it can order directly from the state warehouse without going through the Sylva or Bryson stores as middlemen.

The Sylva and Bryson stores weren’t planning on riding the casino’s liquor gravy train forever.

“I figured it wouldn’t be long before the tribe got it worked out,” said Larry Callicut, town manager of Bryson City.

“I was not at all surprised when the Cherokee said they can just buy stuff directly from the state,” Pennington added.

Delayed gratification

It will be several more months, and possibly even a year, before the new Cherokee ABC board is up and running, however. There’s a complicated computer system to set up, a staff to hire and a place needed to hold all those waiting pallets of liquor.

“They’ve got some organizing planning and what not to do,” Clampitt said.

Once that’s done the Sylva and Bryson joint venture will become obsolete. It would make sense to shut down the operation and close out the books, liquidating all that inventory and cashing out the checking account.

At that point, the two towns could expect a final payout of $50,000 each.

That’s a good chunk of change for small, cash-strapped, recession-burdened towns to clear. It’s better than nothing, Clampitt supposed, but it wasn’t exactly free money.

“It’s been a whole lot of work,” Clampitt said.

The Bryson ABC store lends its staff to the joint venture serving the casino. It takes labor to manage the inventory: keep up with what’s running low, place monthly orders with the state, parcel out weekly shipments to the casino and all the related bookkeeping.

They also personally deliver weekly orders to the casino — a perk afforded to their special customer. (Run-of-the-mill bars and restaurants have to do their own pick-up.)

The Bryson ABC store gets compensated for some of those hours. In June, for example, the store billed the joint operation for $607 worth of its employees’ time.

But the Bryson board also donates some of the labor and overhead to the joint venture. It doesn’t pro-rate a portion of its utilities to the Cherokee operation, for example. Nor does it bill for the labor of unloading the truckload of orders coming from the Raleigh warehouse each month.

The two stores have finally paid themselves back for start-up loans taken from their own bank accounts to get things up and running — namely building up the necessary inventory.

The stores also had to purchase a $15,000 computer system for the joint Cherokee venture. The state ABC system is particular about the software used by all the stores, requiring a certain type of program that interfaces directly to the state warehouse, not only for placing orders but also allowing the state to track the whereabouts of every bottle of liquor.

The state wouldn’t let Bryson’s ABC store use its existing computer system, since the Cherokee venture was technically considered a new standalone enterprise, Clampitt said. So both stores dipped into their own funds to buy the computer system, cutting into profits they would have made otherwise.

Pennington said he was skeptical from the start.

“It was such shall we say a unique situation to start that combined store, I personally never felt like it was done for the best interest of the people of Jackson County to begin with,” Pennington said.

Pennington said he actually advocated against it, but the state ABC people made them do it.

“It wasn’t our idea at all,” Pennington said.

As for the $15,000 computer system? Bryson and Sylva ABC boards have already written that off and deducted it from the Harrah’s profits. But it would be nice to get a little something back for it when the joint venture is shut down,  Clampitt said. He hopes they could sell it to the new Cherokee ABC board.

Coincidentally, a countywide alcohol referendum on the ballot in Jackson County next year could lead to a new ABC store in Cashiers, which if passed, might just need a computer system as well.

Why so complicated?

Liquor sales in North Carolina are a tightly regimented affair. All liquor coming in to the state makes its first stop at warehouse in Raleigh. Local ABC stores in turn order from the state warehouse, a means of controlling the sale and distribution of liquor to the public.

Local stores act as middlemen. They get the liquor at wholesale prices, then mark it up to resell to customers, both to the general public and to bar and restaurant owners. The state dictates how much of a markup is allowed, about 25 percent.

After covering overhead and salaries, local ABC stores turn the remaining profits over to the local government, either the town or county, or in some cases both.

In the current political debate, the word ‘debt’ has become ubiquitous. Cherokee is no exception, where discussion of the debt of the Eastern Band of Cherokee Indians — and how, precisely, to dispose of it — has dominated the election season since it began this spring.

With one month to go until the election for chief, vice chief and tribal council, voters are standing up at every public forum to ask questions about the debt while candidates are touting their plans to eradicate it.

Meanwhile, the finance department for the tribe has gone on a massive public information campaign: opening a forum on the tribe’s website, starting a hotline where people can e-mail questions and get an answer back from a finance officer and leafleting the reservation with brochures entitled things like “A Closer Look at Tribal Debt.”

One question seems to underlie the whole discussion: how much, exactly, is the debt?

Answers from different sources have been many and varied, and depend very much on where you stand politically. The incumbent chief and vice chief claim the tribe’s debt is manageable. The challengers claim it has ballooned out of control.

It’s often said that numbers don’t lie, and with tribal debt, these are the raw numbers as of June 30, the end of the last fiscal year.

The tribal government has two debts it’s paying off directly: $57.2 million is still owed on the $107 million school complex and $10.8 million is still owed on the Sequoyah National Golf Club.

There’s also an $8.9 million series of loan guarantees that the tribe backs for the Cherokee Historical Association’s line of credit, the Tribal Bingo Enterprise and Balsam West, a broadband enterprise the tribe has a stake in.

If you take the position of the tribe’s finance department and Principal Chief Michell Hicks, that’s all the debt the tribe has — $76.9 million.

But then, of course, there’s the casino debt.

The casino is undergoing a massive expansion project, for which the tribe’s casino enterprise has secured a $650 million line of credit. So far, the enterprise has tapped $494.3 million of it.

Deputy Financial Officer Kim Peone expects that not all of it will be spent when the expansion is complete, and she doesn’t consider that tribal debt at all.

The casino is an entity of the tribe, but is run by a separate group called the Tribal Casino Gaming Enterprise. The gaming enterprise, not the tribe itself, is responsible for the casino’s half billion in debt.

But here’s where politics comes into play. The current administration running for re-election is adamant that tribal debt shouldn’t include casino loans.

And it’s true that, if the casino defaulted, the bank wouldn’t come looking for the tribal government’s assets.

“We’re not ignoring the impact that a default would have on this tribal government and the services that we provide to this community,” said Peone. “But the casino debt is not guaranteed by the tribe, it’s guaranteed by TCGE.”

From that perspective, there’s $76.9 million in debt. Meanwhile, the tribe’s designated account it makes debt payments from has just over $134 million in it.

Simple math tells you that the tribe could pay the debt off today, but according to Peone, choose not to because that money is earning more interest than the debt is costing.

“Currently, the interest rate on that loan is less than the funds that we’ve invested in,” said Peone. “From year-to-date, that fund has earned 4.5 percent as opposed to 2 percent in a loan.”

On the current schedule, she plans to have both the school and golf course loans paid in full by 2014.

Casino debt part of bigger picture

But opponents say you can’t remove the tribe from the casino; they’re inextricably linked.

For starters, profits from Harrah’s Cherokee Casino accounts for roughly 90 percent of the tribe’s operating budget. If more of those profits were diverted to making debt payments, the tribe’s budget for providing services to enrolled members — such as schools and medical care — would be impacted.  

Patrick Lambert, a challenger for the position of principal chief, said he thinks it’s impossible to separate casino debt from the tribe.

“It’s all tribal debt,” said Lambert, pointing out that the tribe’s operating budget would plummet precipitously were anything to happen to the casino debt.

This is Lambert’s second time going for the chief’s seat, and though he lost by a slim margin in the 2007 election, he defeated Hicks in the July primary. He is a lawyer for the Tribal Gaming Commission.

Lambert said he is concerned, too, about just where the tribe is investing its money to get such good returns, asking if such investments are too risky.

“I think it’s pretty clear on debt. I come from a background of small business, and so I understand about debt and borrowing and those type of issues,” said Lambert. “Debt is a necessity, but it’s also something you can’t let get out of control. We need to control the spending so we can start applying more of the revenues we do have to overall debt.’

Right now, said Peone, the tribe puts 8 percent of every dollar it spends to paying off its non-casino debts.

The casino pays $20 million a year on its debt, plus more on interest.

Both principal chief candidates have promised to pay down the debt if they are elected, though that could be plus or minus a few hundred million depending on what you consider “the debt.”

The current administration is out to prove that the tribe is on sound financial footing, especially compared to other municipal governments.

The opposition is calling for a check on spending and reigning in the debt.

And when voters visit the polls September 1, it may be the best numbers that win.

A flash flood struck the Cherokee fish hatchery last week, pummeling fish in the raceways with a wall of water laden with mud, rocks and branches.

It wiped out hundreds if not thousands of trout and left a massive clean-up job for hatchery workers.

“We had dead fish all over the raceways,” said Robert Blankenship, manager of the Cherokee fish hatchery and stocking program. “A lot got washed out.”

Some were swept down stream and lived, based on fishing reports below the hatchery, but many others suffocated under mud or were struck by debris.

Blankenship estimated the creek the hatchery sits on swelled to four to five times its normal size. A worker who lives at the hatchery heard rocks tumbling down the mountain as the wall of water hit around midnight last Thursday, Blankenship said.

The flashflood flattened 75 feet of chain link fence surrounding the property in the Big Cove community. There is no data on the amount of spot rainfall the area must have received.

Just how many fish were lost won’t be known until clean-up is completed and workers can do an inventory.

Cherokee’s hatchery is a $1.2 million operation, raising 400,000 trout a year from eggs. The tribe’s waterways are the best stocked in the state — 13,000 trout per mile compared to only 800 per mile on average in waters stocked by the state of North Carolina.

And that’s not going to change, Blankenship said.

“We put out three big truckloads of very nice fish Friday,” Blankenship said. “We are going to continue to keep the river well-stocked.”

The hatchery will buy fish if necessary in order to keep pace with its stocking reputation, Blankenship said.

Cherokee is well known not just for its quantity, but size of trout. Blankenship makes sure trout bound for fishing waters are least 12 inches, but regularly stocks trophy trout over two pounds, some reaching nearly four pounds and up to 26 inches long.

Cherokee has worked hard to build its reputation as a top fishing destination in the Southeast — it’s a regular stop for fly-fishing TV shows and recently hosted the U.S. National fly-fishing competition — and will fight to keep that standing.

“The Cherokee fishing program is alive and well,” said Matt Pegg, director of the Cherokee Chamber of Commerce. “The team at the hatchery has worked very hard to restore the facility and will continue to do what they have always done to ensure the fishing program in Cherokee is strong.”

Steve Mingle, owner of River’s Edge Outfitter, has been fielding phone calls at the shop from people asking about the hatchery disaster but has put their fears to rest.

“I told them the fishing was still good,” Mingle said.

Each trout lost in the flash flood represents time, money and energy. It takes 10 to 12 months to raise a trout — from an egg in the incubation tank to a catchable fish.

Eggs are hatched in an indoor facility, and kept in tanks until they reach three to four inches. Those fish weren’t harmed, which bodes well for long-term production. It’s also good news for the five different fly fishing tournaments being held in Cherokee next year.

Meanwhile, however, the clean-up is ongoing. After hauling away piles of dead fish, hatchery workers are using track hoes to scrape a foot-and-a-half of muck off the bottom of the raceways.

That means lots of juggling trout around, shifting them from one run to another as each one gets a clean out.

The surviving fish had to be sorted out anyway though, Blankenship said. The hatchery keeps fish segregated by size, so when it’s workers can easily net liked-size fish on stocking days. But the flash flood overtopped the raceways, and fish of different sizes were mixed up.

“We got 2-inch fish mixed in with 12-inch fish,” Blankenship said.

Blankenship said he hopes the tribe’s insurance will cover the losses. They may also be eligible for federal farm disaster aid that covers crop losses.

“We are going to explore all avenues,” Blankenship said.

Former Gov. Jim Hunt toured Cherokee last week at the invitation of Cherokee Preservation Foundation.

The governor, who helped negotiate the agreements between the EBCI and the State of North Carolina that paved the way for the casino and the establishment of Cherokee Preservation Foundation, came to see how the Foundation has invested in cultural preservation, economic development and environmental preservation over the past decade.  He was accompanied by his wife and their daughter Rachel.

During the trip, he toured Cherokee, taking in new facilities and improvements made to the reservation since his last visit nearly a decade ago. He also met with tribal, cultural and community leaders to talk about progress made in recent years. It was his office that allowed the birth of casino gaming on the reservation, so this tour was a chance to see the fruits of that decision, more than 10 years on.

The Cherokee Preservation Foundation has given out more than $50 million to various Cherokee projects since its creation in 2000.

“When I last visited Cherokee ten or so years ago, the cultural organizations like Qualla Arts and Crafts, the Museum, the Drama and Village had wonderful products and programs, but the facilities were dated and not up to par with other venues around the state and region. Ten years later, I see a very different picture,” Hunt told guests at an evening dinner hosted by the Cherokee Preservation Foundation.

Hunt was the governor from 1977 to 1985 and 1993 to 2001. He is the longest-serving governor in the state’s history.

Swain County social workers in charge of protecting children are paid less and handle more cases than those elsewhere in the state and region, factors that likely contribute to a higher-than-average turnover.

Swain’s Department of Social Services has been plagued by the loss of child welfare workers. It was chronically short staffed for much of last year — seven child welfare workers left over a nine-month period.

Each time one quit, the ones who remained had to pick up the pieces. Their work load increased. Cases were handed off midstream. The number of new hires in the ranks — lacking any formal training or education in the field — only made matters worse.

It was in this climate that the case of Aubrey Kina-Marie Littlejohn slipped through the cracks. Despite repeated warnings from relatives that baby Aubrey was being mistreated and neglected, social workers failed to intervene.

When Social Worker Craig Smith finally paid Aubrey’s caregiver a visit last September, the caregiver chalked up bruises on the baby to a fall down the stairs.

Smith told her to take the baby in for a physical exam. But the doctor’s exam never happened. Smith either forgot, or was too busy to follow up. And four months later, Aubrey died alone on a mattress on the floor in the back room of a single-wide trailer in a case that has sparked far-reaching outrage and sympathy.

Smith has since admitted falsifying records to hide potential negligence and failures by the agency, according to law enforcement documents. He claims the orders to do so came from his superiors, and that knowledge of the cover-up went all the way to the top.

Swain DSS is under investigation by the State Bureau of Investigation. Its director has been fired and the majority of its board members replaced.

On the heels of the scandal, the state Department of Health and Human Services launched its own competency review of Swain DSS in March. The state audited a random sample of 57 child welfare cases to determine if Swain DSS was properly protecting children.

The state’s evaluation raised a red flag over the “significant turnover” in the past year.

“Turnover does have an adverse effect on the functioning of the agency. Turnover results in social workers being stretched thin to cover the workload of vacant positions,” according to the state review.

Furthermore, supervisors in charge of training new hires were not fully qualified to be in management roles, according to the report.

Smith, ironically, was not one of the many new hires at Swain DSS. He had been with the agency for four years.

But he was not untouched by the ripple effect of high turnover each time someone around him left.

“That person’s workload gets distributed among the survivors,” said Evelyn Williams, a clinical associate professor at the UNC School of Social Work.

Even once a replacement is found, the more experienced social workers often continue to shoulder a disproportionate case load, including the more difficult or complex cases — all the while trying to help the new workers learn the ropes.

The loss of a coworker can be more depressing than the sheer prospect of more work. Child welfare workers in a small agency can be tight knit and get depressed when they lose one of their own.

“It is really hard work to do. It is challenging work to do. It is emotional work to do,” Williams said. “Your coworkers become vital to your support system.”

Off the charts

Swain County’s extreme turn-over last year among child welfare workers is more than twice the average turnover in the state.

While worse off than other counties, Swain is hardly alone in its struggle. Statewide, 50 percent of child welfare workers quit within two years. Only 25 percent stick with it longer than five.

“It is not easy to keep and recruit qualified social workers,” said Bob Cochran, director of Jackson County DSS. “It is not an easy job. It can be very stressful.”

Swain DSS has been fighting abnormally high turnover for years.

The caseload carried by Swain’s child welfare workers, even when fully staffed, is higher than other counties.

But its lower salaries are most often blamed as the culprit, as the prospect of better pay in surrounding counties lured staff away.

“The agency has historically provided training to new staff who then move on to better paying jobs,” Swain DSS leaders asserted in 2009 in a “self-assessment” included in the state’s performance review that same year.

It’s a point few could argue.

“Poor counties have difficulty holding good workers,” agreed Ira Dove, director of Haywood County DSS.

But salary is not everything. Social workers who are fulfilled in their jobs are more likely to stick with it.

And that’s where smaller DSS agencies in rural counties should have an advantage.

“Smaller counties have this wonderful work environment to offer,” said Evelyn Williams, a clinical associate professor at the UNC School of Social Work. “The director probably knows your name, there are collegial relationships that are very close and supportive. The whole pace and climate is often different in a positive way that may offset to some extent the lower salaries.”

In rural counties, case workers have a stronger sense of community, which can also make the job more rewarding, according to Patrick Betancourt, Policy Program Administrator at the N.C. Division of Social Services.

“Even though it is a non-tangible thing, it does motivate the worker to strive for the best practices they possibly can,” Betancourt said.

It can not only make up for lower salaries, but larger case loads.

“They can tolerate the heavy work load when they feel like they are making a difference,” Williams said.

However, there is a tipping point.

“The higher the work load, the less able they are to be engaged in a way that might make a difference,” Williams said. And likewise, “if the salary is really low and people don’t feel like it is a fair salary, then it is a major problem that has to be solved before anything else kicks in.”

Why stretched so thin?

Swain County child welfare workers routinely work more cases than they should under state standards.

But how many social workers to hire — along with how much to pay them — is up to each county. The state and federal governments pitch in some money to cover social workers’ salaries, but counties pick up most of the tab and set their own salaries  and staffing levels.

The state does, however, dictate a reasonable caseload — one that Swain routinely exceeded. Child welfare workers should have no more than 10 open cases at a time, according to state statute. Some Swain child welfare workers had nearly double that at times.

The state does not check for compliance to determine whether county DSS agencies are exceeding the maximum caseload for child welfare workers.

“Quite honestly, I believe that is a local responsibility,” said Sherry Bradsher, the state director of the Department of Health and Human Services.

Bradsher said it’s the job of the county DSS director “to make sure their agency is staffed appropriately.”

The state periodically does a performance review of each county DSS, about every three years or so. But caseload is not an area the state makes a habit of inspecting or asking about.

Bradsher said the state does keep monthly data on the number of child welfare cases in each county, and could feasibly calculate the caseload. But no one at the state level does so as a matter of course.

Besides, there are nuances behind the numbers.

“Just seeing we have 25 open cases doesn’t tell me a lot. How many are going to close in the next day or so? How many children are in each of those cases? How high risk are they?” Bradsher said. “It may be OK to be three or four cases over. I am not sure it is OK to have twice as many cases.”

If Bradsher learned that a county was routinely and egregiously exceeding the acceptable caseload, and she believed children’s safety was at risk as a result, it could trigger some heavy-handed intervention.

The state theoretically can seize control of child welfare functions, hire the necessary number of workers, and then bill the county for it, Bradsher said.

“We didn’t want situations where workers had too many cases,” Bradsher said of the state provision allowing for a take over. “Fortunately, we have never had to do that. Counties are very conscientious about the needs of child welfare. I think what you will find as far as positions across our state is most counties are appropriately staffed.”

However, an issue can arise when workers quit, Bradsher said.

“The problem comes in with vacancies. You have high turn over quite honestly, particularly in child welfare,” Bradsher said.

As the cases pile up, child welfare workers might be tempted to clear old cases from their books  to make room for new ones. But it is unlikely child welfare workers would lower the bar to close cases more quickly and stay within the maximum caseload, according to Betancourt.

“I wouldn’t say there is pressure to let cases slide,” Betancourt said. “But you are constantly evaluating cases for safety and risk. As you start getting nearer your maximum you look at is there continued risk? You start evaluating more closely.”

Social workers could theoretically spend years working with a family.

“That’s part of what drives you to be a social worker. Can you make this family the best it can possibly be?” Betancourt said.

But at some point the social worker has to decide the improvement in the child’s home environment is adequate.

“That is constantly the balancing game that social workers have to play,” Betancourt said.

Oversight in the ranks

In addition to case load, the state also sets standards for supervisor-to-staff ratio: one supervisor for every five child welfare case workers.

Many counties exceed the supervisor to staff ratio by one or two workers, but won’t bite the bullet and hire that additional supervisor until they hit three or four over.

With a staff of experienced child welfare workers, pushing the ratio may be fine. When there are lots of new hires in ranks as there were in Swain, the ratio of one-to-five may not be enough.

Finding experienced, qualified supervisors is just as challenging as finding rank-and-file child welfare workers.

Often, those who excel in their job are promoted to supervisor, Betancourt said. But a good case worker doesn’t automatically make a good supervisor.

Promoting supervisors from within without giving them proper management training was a problem at Swain DSS, according to the state’s competency review of the agency in March.

Child welfare supervisors did not provide adequate direction, coaching and oversight for the rank-and-file child welfare workers, particularly given their lack of training and the large number of new hires.

Tammy Cagle, the former DSS director, had herself risen in the ranks. She started out as an entry level social worker in 1998 and within seven years had worked her way up to director. Cagle made $66,000 a year, on the very low end of DSS directors. The DSS director in Haywood makes $93,000 and in Jackson he makes $106,000.

Cagle had not asked the county to add additional child welfare positions for at least two years, according to the agency.

However, the new interim director, Jerry Smith, told county leaders he needed an additional child welfare supervisor as soon as possible.

“He needs the staff,” County Manager Kevin King told commissioners last week.

Swain County commissioners granted Smith’s request.

Quality supervisors, and enough of them, helps with the challenge of hiring and keeping good social workers, according to experts in the field.

“I think the supervisor to worker ratio is real key,” said Bob Cochran, the director of Jackson County DSS. “That really makes the difference to help people go over cases and debrief and train, especially new workers. They need a lot of face time and support and encouragement. That is real critical.”

Betancourt agreed.

“Having a supervisor that can help in making tough decisions and provide good clinical feedback is important,” Betancourt said.

Swain DSS was suffering from low morale among workers last year, according to the minutes of DSS board meetings.

In January 2010, board minutes referenced low morale among workers and team-building efforts to improve it. In December, one board member noted an improvement in morale, at least judging by the good time staff had at the agency’s annual Christmas luncheon, according to the minutes of the meeting.

Proof is in the training

The challenge developing good child welfare workers — both recruiting and retaining them — is the on-going subject of research by Williams at the UNC School of Social Work, considered one of the best in the field.

Williams held a round-table focus group with DSS directors from several WNC counties in Sylva this winter.

All said they suffered from a limited pool of qualified applicants.

“Directors have what is called a grow-your-own strategy in many places and that makes sense. People who already live in the community, have a commitment to the community and understand the community,” Williams said.

The problem, however, is that they lack training or education in child welfare or social work.

The job can be a “rude awakening” for those who have no training in the field, Cochran said. They won’t last long as a result.

The shortage of child welfare workers, particularly those trained in the field, spawned a state incentive program offering college scholarships to students willing to major in social work and put in requisite time on the job after graduation.

Similar to the state’s Teaching Fellows concept, the Child Welfare Education Collaborative offers $6,000 a year for undergraduates majoring in the field. In exchange, they must put in one year on the job for every year of financial assistance.

Western Carolina University was among the first universities to participate when it was started four years ago.

Cochran said it has helped with hiring prospects locally.

“For people who have majored in child welfare or social work, there is a cognitive resonance in what their dreams and aspirations are and what they are doing,” Cochran said. “They are really fulfilled and living their dream and tend to stay longer.”

But for the vast majority who don’t have the degree, on-the-job training becomes a make-or-break factor, Cochran said. It’s best to ease them in to the job, allowing them to shadow other workers at first, then making sure their first solo cases are easier ones.

“That is really key to longevity: the feeling of mastery early on. If they get overwhelmed early, you can bet they won’t be around long,” Cochran said.

Of course, it’s easier said than done when the rest of the staff is over-worked, and eager to have the new hire take on a full load as quickly as possible to relieve the burden.

“If you are low staffed and have had some turnover everyone else is carrying the load and suffering a bit,” Cochran said. While it’s tempting to have them hit the ground running, Cochran refrains in favor of what he considers a “long-term investment” that starts with good training.

The qualifications to be a child welfare worker aren’t particularly tough. It takes a four-year degree in a related field — and what qualifies as a related field is open to interpretation. A basic liberal-arts English degree counts as a related field as far as many counties are concerned. If counties are particularly desperate for workers, the list of “related” fields could be quite long.

“Like many other small counties, Swain County often has to under fill social work positions with persons who demonstrate some abilities, but do not necessarily have the experience and skill level commensurate with the requirements of the position,” according to the state’s competency review of the agency in the wake of the scandal.

All new hires must attend 72 hours of classroom training. The crash course is put on several times a year at a training site in Asheville where all western counties send their new hires.

After that, they are technically certified to start working cases. The training can’t come close to preparing child welfare workers from the things they will witness: children in drug infested homes, children being sexually abused by their own fathers, children going hungry.

“You can see quite a bit of burn out in a job like this,” said Betancourt.

Slipped through the cracks

Given the challenges recruiting and retaining child welfare workers, the lack of training for new hires, high caseloads in the face of turn over and generally stressful work, its not hard to understand how cases can fall through the cracks. But the consequences can clearly be tragic.

Smith was not the only social worker that witnessed Aubrey in a harmful environment.

In November of last year, social workers took an older child out of the same trailer where Aubrey lived, citing drug and alcohol use. Aubrey was left behind, however, despite social workers also witnessing extremely cold conditions in the trailer.

An autopsy report ruled hypothermia as a possible cause of death.

That same month, a third social worker made a yet another visit to the trailer, acting on yet another tip of abuse. Aubrey’s caregiver signed a statement promising not to physically punish Aubrey, who was only 13-months-old at the time. The autopsy report cited a previously broken arm and numerous recent bruises on her head.

Despite policies and procedures that are supposed to ensure the safety of children, there is not adequate oversight by the state when something goes wrong, said David Wijewickrama, a Waynesville attorney representing Aubrey’s family.

“The reason children contiunue to die in the state of North Carolina is because the state does not have on-site review that scrutinizes the actions of social workers and holds them personally accountable when it results in serious bodily injury of the death of a child,” Wijewickrama said.

Protecting children: by the numbers

Haywood DSS

Number of cases last year    1056

Child welfare supervisors    3.5

Child welfare workers    18

Starting salary    $37,500

Turn-over    4 last year; on par with previous years

Jackson DSS

Number of cases last year    666

Child welfare supervisors    2

Child welfare workers    11

Starting salary    $39,800

Turn-over    4 last year; higher than average

Swain DSS

Number of cases last year    528

Child welfare supervisors    2; soon to be 3

Child welfare workers    8

Starting salary    $33,000

Turn-over    7 last year

The specter of a constitution has again risen in Cherokee, making its way to committee for the first time in 15 years.

Tribal council last week voted to create a constitutional task force, the second step in a long process that will require discussions, debates and, should it reach the final finish line, a vote by the entire tribe on a document. If approved by the majority of the people, it would forever change their way of governing.

The idea of crafting a self-governing constitution to replace a state-imposed charter for the tribe has been floated on and off for years, at times more seriously than others. It’s always proved too controversial to succeed.

This particular incarnation of the constitutional effort is being spearheaded by Terri Henry, a council member from Painttown just finishing her first term.

Henry is a lawyer who did undergraduate work in political science and international relations, then went on to spend a good chunk of her career in positions with the federal government. Her background qualified her to take the lead.

Each community club representing the six districts of the reservation will nominate two task force members. They will start drafting a document and, most importantly, says Henry, get input from the tribe’s members.

“When you’re talking about something that is as important as a constitutional document, what is really important is that everybody has the same understanding of what the [constitutional] principles are and what the proposed language is,” says Henry.

In that sense, the history of the constitution among the Eastern Band of Cherokee is a double-edged sword for those trying to craft a new document.

The tribe is currently governed under a charter granted by the state of North Carolina. But that hasn’t always been the case. The trail of charters and constitutions is long and complicated. Over the years, the Bureau of Indian Affairs has drifted in and out of the process, there was a constitution, then a charter, then perhaps another charter?

But the original constitution, called the Lloyd Welch Constitution, is the one that is most often cited, the one to which tribal members return when making the case for a constitution. It was created by and named for a man named Lloyd Welch in the late 19th century, shortly after the bulk of the Cherokee were routed from their homelands by the Indian Removal Act.

That document, the only constitution the Eastern Band has known, is really a set of three documents that took two years to complete.

“What we learned is that our people have turned to the Lloyd Welch constitution because that was a constitution ordained by the people. When it moved to a charter from the state of North Carolina, that was lost,” said Sarah Sneed, a lawyer who helped with an initial review, the first step in the constitutional process. “I believe that’s why, over the years, people have clung to the Lloyd Welch documents, because the sovereignty of the people was lost.”

But on the other side, there have been at least six tries to get a new constitution OK’d by the people. Every last one was voted down.

The most recent attempt that made it as far as a referendum was a 1996 version.

A few years later, then-council member PeeWee Crowe tried to resurrect the idea with a council resolution. It was passed, but no action was taken.

This time, it seems, advocates are hoping to overcome obstacles that have hamstrung earlier constitutions through education.

The committee will hold regular meetings, broadcast them on the tribe’s public television station and solicit copious input from all sides.

Specific steps are not yet laid out. With the committee not even formed, it’s a little early to define a set path.

But council members seemed hopeful that this time, the tribe would make it further toward clearer branches of government and true sovereignty, led by the people.

There are 595 federally recognized tribes in the United States, and dozens of them have their own constitutions.

“We have a governing document that’s a charter,” said Henry. “It’s important that we have a constitution. This defines us as a self-governing people.”

The race for the title of principal chief has tightened in Cherokee, where Chief Michell Hicks found himself in second place in last week’s primary election.

Challenger Patrick Lambert, who fought Hicks for the seat four years ago, won the primary with just over 46 percent of the vote. Hicks trailed with just over 40 percent of ballots on his side.

The incumbent vice chief, Larry Blythe, also lost to his challenger, reflecting possible dissatisfaction with the current administration.

The results were a coup for Lambert. Though he lost the general election by only 13 votes in 2007, he had not fared particularly well in the primary leading up to the final election that year. He garnered only 24 percent of the vote in the 2007 primary compared to 42 percent for Hicks.

“The large vote count was surprising,” said Lambert. “If you look back at where we’ve come from, I’ve increased my overall vote count from the first primary by almost 250 percent.”

Lambert emerged the victor in four of the six voting precincts, trailing Hicks in Yellowhill and Painttown.

For his part, Hicks said the second-place finish isn’t too distressing, especially given the voter turnout of just more than 50 percent.

“It’s a primary, a lot of people don’t concern themselves with the primary,” said Hicks. “I knew it was going to be close coming in. He’s got his base, and I’ve got mine. Now it’s just going to be a matter of who runs the fastest.”

Though turnout was high for a primary — slightly more than half of the tribe’s 6,704 registered voters — it still leaves more than 3,000 voters who could weigh in on either side.

Hicks, who is going for a third run as chief, doesn’t have the statistics of history on his side, however. If he wins in September, he would be only the second third-term chief.

Then there’s the 446 votes that were split among the three other chief candidates, who are now out of the race.

Which candidate will claim those votes come the general election could be anyone’s guess.

“The thing is with Cherokee elections and Cherokee politics, it’s a very personal campaign style that we have here,” said Lambert, pointing out that many vote because of a personal trust in the candidate, not a distrust of the incumbent.

While both candidates are staying tight-lipped about their courtship of the three former challengers, and their voters, it’s clear that they’re seeking to pull in the support.

Juanita Wilson, the next highest vote-getter, in the days after the primary said that she’d been contacted by both camps, but hadn’t yet decided which side to endorse.

“I have a lot of reflection [to do], because if I could’ve supported either, I wouldn’t have gone through the expense and trouble of putting a campaign together,” said Wilson. She said that, although nothing is final, she may choose to avoid endorsements altogether.

Meanwhile, both remaining contenders said their biggest challenge in the general election would be getting voters to hit the polls. Both are confident in their ability to pull off a win, if members will take the time to cast a ballot on Sept. 1.

Vice chief race equally heated

Jumping down a rung to the race for vice chief, the general election is going to be yet another repeat matchup between sitting vice chief Larry Blythe and challenger Teresa McCoy, currently a tribal council member.

McCoy has made it clear from the outset that she was in it to win against Blythe, and she got her chance, taking first place with about 39 percent of the vote. Incumbent Blythe pulled a close second with just under 36 percent.

McCoy won in four out of six communities, tying Blythe in Painttown and trailing in Snowbird.

But her margins weren’t large enough to call it a runaway — McCoy won by a single vote in one district — and the two vice chief challengers now out of the race showed more sizeable totals than those at the bottom of the ballot in the principal chief race. Blythe and McCoy have more at stake in courting those votes.

Looking toward the next two months of heavy campaigning, both remaining candidates for principal chief listed the tribe’s debt as the major issue that will define the general election.

With a new school complex and $683 million expansion at Harrah’s Cherokee Casino, the tribe’s central revenue source, they were, at one point, on the hook for close to one billion dollars in debt.

While tribal finance officials say they’ve paid down a significant chunk of those notes, they’re still likely paying on tens of millions, if not more.

In the run-up to the primary, eradicating the debt entirely and diversifying the tribe’s income streams were both hot topics. Each candidate proposed a different strategy for a more varied financial model, but all played to the public sentiment of moving away from a casino-centric mentality.

Throughout the pre-primary season, Hicks said he had a plan to eradicate the debt in the next four years. As a certified public accountant and the man at the helm for nearly a decade, Hicks said he’s the only man who can make that happen.

Lambert, though, now says that he’s got a plan for debt reduction, too. And what people want, he maintains, is a departure from the last eight years.

“I think everyone here is hungry for change,” said Lambert. “As I went out and visited homes and Cherokee families, that’s one of the primary messages I kept hearing.”

Hicks, though, is confident in his fiscal strategies and believes he can move past the change mentality his challenger described.

“I feel good and I’m confident,” said Hicks. “I think it’s more of an education of the people. We’ve definitely done our homework as it relates to the debt and how were managing it. We’re going to work hard and we’re going to be determined.”

The general election will be held on Sept. 1. Members of the Eastern Band of Cherokee Indians will vote in a new principal chief and vice chief, as well as a new 12-member tribal council and school board.

The field was narrowed from five to two yesterday in the race for principal chief of the Eastern Band of Cherokee Indians.

When votes were tallied following the July 7 primary election, incumbent Michell Hicks and Patrick Lambert, Hicks’ challenger in the 2007 election, emerged as the top vote-getters. They will now compete for the top seat in September’s general election.

In the race for vice chief, incumbent Larry Blythe and current tribal council member Teresa McCoy will move on to the next round. That matchup is also a repeat of the 2007 race.

In both contests, the incumbent garnered fewer overall votes than the challenger.

Races for the 12 tribal council seats were also trimmed to four candidates. The general election on Sept. 1 will elect a principal chief, vice chief, two tribal council members from each of the six communities, as well as school board members.

Birdtown

Michell Hicks: 313

Patrick Lambert: 418

Juanita Wilson: 64

Gary Ledford: 30

Missy Crowe: 10

Carroll “Peanut” Crowe: 146

Joey Owle: 58

Larry Blythe: 312

Teresa McCoy: 313

Yellowhill

Michell Hicks: 167

Patrick Lambert: 156

Juanita Wilson: 44

Gary Ledford: 13

Missy Crowe: 14

Carroll “Peanut” Crowe: 75

Joey Owle: 21

Larry Blythe: 128

Teresa McCoy: 172

Painttown

Michell Hicks: 227

Patrick Lambert: 213

Juanita Wilson: 34

Gary Ledford: 15

Missy Crowe: 7

Carroll “Peanut” Crowe: 91

Joey Owle: 23

Larry Blythe: 189

Teresa McCoy: 189

Big Y/Wolftown

Michell Hicks: 311

Patrick Lambert: 348

Juanita Wilson: 73

Gary Ledford: 39

Missy Crowe: 12

Carroll “Peanut” Crowe: 227

Joey Owle: 31

Larry Blythe: 229

Teresa McCoy: 300

Big Cove

Michell Hicks: 119

Patrick Lambert: 194

Juanita Wilson: 26

Gary Ledford: 31

Missy Crowe: 4

Carroll “Peanut” Crowe: 86

Joey Owle: 24

Larry Blythe: 72

Teresa McCoy: 189

Snowbird/Cherokee County

Michell Hicks: 227

Patrick Lambert: 248

Juanita Wilson: 10

Gary Ledford: 11

Missy Crowe: 3

Carroll “Peanut” Crowe: 48

Joey Owle: 38

Larry Blythe: 240

Teresa McCoy: 163

Total – Principal Chief

Michell Hicks: 1,378

Patrick Lambert: 1,598

Juanita Wilson: 255

Gary Ledford: 140

Missy Crowe: 51

Total – Vice Chief

Carroll “Peanut” Crowe: 683

Joey Owle: 197

Larry Blythe: 1,188

Teresa McCoy: 1,337