Council's authority to disenroll limited

Scott Csernyik

1/24/2005 12:00:00 AM

Tribal Council's power to remove individuals from its membership rolls is limited to fraud and mistake, the Saginaw Chippewa Tribal Appellate Court ruled recently.

The Jan. 5 decision reverses a Saginaw Chippewa Community Court ruling by then-Chief Judge Patrick Shannon on Dec. 10, 2003 in the case of William A. Snowden and Robert Hinmon, et al, vs. Saginaw Chippewa Indian Tribe of Michigan, Case No. 04-CA-1017. The decision recognized extensive Tribal Council constitutional power to disenroll. An appeal followed and oral argument was heard before the appellate court on May 15.

"This appeal raises a single issue, namely, whether the Tribal Council's power to disenroll currently enrolled members is limited to the narrow grounds expressly identified in the Tribal Constitution and if not, what are the Tribal constitutional boundaries in establishing (substansive) grounds for disenrollment," wrote Associate Justice Frank Pommersheim in the unanimous opinion. "No, the Tribe may not disenroll people for whatever �good reasons it might identify. No, the Constitution does not (and cannot) condone any constitutional failure of justice that would potentially endorse (constitutional) fraud and mistake and obtaining membership.

"Beyond such quite limited constitutional authority to disenroll on grounds of fraud or mistake, there are no other implied grounds for disenrollment."

The consolidated cases in the appeal stem from an attempt by the Tribe to disenroll two deceased Tribal members-Malinda Hinmon and Mary Lee (Tipkey) Snowden and their descendants.

"The descendants include two members of a prior Tribal Council, as well as a former chief judge of the Tribal Court," according to Pommersheim. "On Aug. 9, 2001, final administrative decisions were made under the authority of the Peters Tribal Council stripping Malinda Hinmon and Mary Lee (Tipkey) Snowden (who were both deceased by that time) of their membership. These proceedings did not provide any other meaning elements of due process. As a result, the descendants of Ms. Hinmon and Ms. Snowden sought judicial review of these disenrollment decisions in Tribal Court."

Under the next Tribal Council, headed by Maynard Kahgegab Jr., an Office of Administrative Hearings was authorized.

"On June 20, 2003, the Kahgegab Council and the Hinmon and Snowden descendants filed with the Tribal Council joint motions asking the Community Court to vacate the adverse actions taken against Malinda Hinmon and Mary Lee (Tipkey) Snowden and to remand the cases to the OAH for new hearings," according to the Jan. 5 ruling. "However, the parties also asked the Tribal Court to first resolve the predicate question of the extent of the Tribal Council's authority to initiate disenrollment proceedings within the limits of the Tribal Constitution."

On June 20, 2003, the community court entered an order vacating the disenroll-ment decisions against the pair and remanded the cases for new administrative hearings "but retained jurisdiction to first rule on the scope of the Tribal Council's constitutional authority to disenroll." Then came Shannon's four-page ruling on Dec. 10, 2003.

Pommersheim's 13-page opinion also delves into the history of the Saginaw Chippewa Indian Tribe of Michigan. There are 3,122 enrolled members in the Tribe, according to the Tribal Clerk's Office on Jan. 10.

"This case is not just about the meaning of the Saginaw Chippewa Tribal Constitution of 1986, but it is also a story about a People and a Tribe enmeshed in the coils of an unknowing and meddlesome Bureau of Indian Affairs and federal government," explained Pommersheim. "This destabilizing federal force is amply demonstrated in the history leading up to the adoption of the first Saginaw Chippewa Tribal Constitution in 1937."

Pommersheim stated the draft constitution-sent to Secretary of Interior Harold Ickes on Nov. 27, 1934 for his approval-is "noteworthy in several respects that are directly pertinent to this litigation."

"The proposed consti-tution's preamble began, �We, the members of the Saginaw, Swan Creek and Black River Band of Chippewa Indians...' The proposed Tribal Council recognized four districts-three of which were outside the boundaries of the Isabella Reservation-three representatives from Mt. Pleasant (i.e. Isabella Reservation), three from Bay City, one from Caro and three from Hubbard Lake."

But the BIA insisted that a Tribe could only organize under the Indian Reorganization Act "if it had a reservation and its only members could be Tribal people residing on the Reservation."

"With this dubious interpretation at the forefront of his reviewed of the proposed Constitution, he [Assistant Commissioner of Indian Affairs William Zimmerman] changed the preamble to read �We the Indians residing on the Isabella Reservation in the State of Michigan,'" continued Pommersheim. "In addition, he changed the proposed Tribal Council representation to require all council members be elected from within the Reservation and required that all Tribal members reside on the Reservation."

Zimmerman also advised the Tribe could "adopt" those individuals living off the reservation. The Tribal Constitution was voted on and accepted by Tribal members on March 27, 1937.

"Unfortunately, the 1937 Constitution-whatever its intent-sowed the seeds of membership confusion and discontent that yielded the bitter harvest at the core of this most challenging, even heartwrenching, litigation about the cultural and legal aspects of Tribal belonging," he also stated.

The Tribe ratified and approved an amended constitution on Nov. 4, 1986. In this document it is stated that all persons whose names appeared on the following rolls are members of the Tribe-Nov. 10, 1883; Nov. 13, 1885; Nov. 7, 1891 or Dec. 10, 1982. It also allows provisions for adoption into the Tribe and reasons for disenrollment.

"No constitutional text is completely transparent or self-disclosing and no constitution is beyond the necessity of interpretation," added Pommersheim. "In fact that is the request of the parties in this litigation, that the Court engage in constitutional adjudication."

Pommersheim further asserted the appellate court has an "unflagging duty to interpret the Constitution.

"That is, in fact its highest calling," he maintained. "Tribal membership involves not only constitutional status, but also serves as the ultimate indication of cultural belonging. With this in mind, we urge the parties, as we did in the Chamberlain case, to place themselves in the heart of Native American jurisprudence by �healing, restoring balance and harmony, accomplishing reconciliation and making social relations whole again.'"

The Saginaw Chippewa Tribal Appellate Court further concurred the "guarantee of due process requires that exercise of such implied powers must be set out in an appropriate ordinance that defines these sub-stansive grounds for disenrollment and further complies with the procedural guarantees set out in Ordinance 14."

The Tribe's official press release on the ruling appears on page 4.