Court to hear motion regarding recall lawsuit

Scott Csernyik

1/25/2005 12:00:00 AM

The Saginaw Chippewa Tribal Court is expected to hear a motion on June 4 to dismiss a lawsuit concerning the recall of four Tribal Council members.

The motion, filed on May 13, alleged the court "lacks subject matter jurisdiction over the cause of action, that they are immune from this suit on the basis of sovereign immunity, that the plaintiff has not stated a cause of action that can support her requested relief and that in any event the Tribal defendants have acted reasonably and within the law."

The court filing is in response to the April 6 lawsuit filed by Patricia Peters-the organizer of a removal drive that was denied on March 31 against Executive Council members Chief Audrey Falcon, Sub-Chief Bernie Sprague, Treasurer Charmaine Benz and Secretary Ruth Moses.

Peters asserted the actions by Tribal Council to invalidate the recall petitions did "deprive her of her right to petition her government for a redress of grievances, where the defendants' did unlawfully refuse to set before the people a special removal election as required by the 1986 Amended Constitution of the Tribe, and the Indian Civil Rights Act of 1968."

She also requested in her lawsuit an order preventing, prohibiting and stopping the Executive Council from "exercising any of their powers...voting on, or interfering with, a resolution or motion to consider whether to review the decision of approval by the Tribal Clerk of plaintiff's petitions for removal...and voting on, or interfering with, a resolution or motion to approve or disapprove the plaintiff's petitions for removal by the remaining Tribal Council."

The motion filed by the Tribe's interim general counsel maintained the court has no subject matter jurisdiction over the lawsuit.

"As mentioned, unlike some constitutions, there is no independent grant of jurisdiction to the court in the Saginaw Constitution," stated the motion. "Its jurisdiction is what is given it by the Tribal Council. In accordance with the Constitution, the Tribal Council has established a court system and set forth its jurisdiction. The court cannot act beyond that jurisdiction. The Tribal Judicial Code provides for a clear limitation over the powers of the court."

The motion also stated the named Tribal Council members were exercising their "proper legislative duties as the governing body of the Tribe in a duly called Tribal Council meeting."

"There can be no argument that they were acting beyond the scope of their authority," according to the motion. "The fact that [the] plaintiff may disagree with the outcome of the vote does not render the members' actions �outside the scope of their authority.'"

Other court filings in regard to the matter include a motion for a preliminary injunction, which is slated for the court to possibly hear on June 11.

Peters, as the plaintiff, filed the motion on May 14. She contended there is a continued violation of her "civil right to petition her government for redress of grievances, her civil right due process, and her civil right of equal protection under the law."

"Laws or ordinances should not be, as is the case at bar, used by government officials as a sword to circumvent or defeat individual freedoms," her motion stated. "In this regard, plaintiff has not been afforded fair due process where the defendants', acting within their official capacity, have not followed established rules and principles as set forth in this Tribe's Constitution, or Ordinance No. 4. Moreover, it is clear that those council members who are subject to recall have an interest in any election which seeks to remove them from office."

In the Tribe's response, filed May 20, it stated the plaintiff's pleadings in "this action have at times been a bit unclear."

"The Tribal defendants also must point out that the plaintiff's papers consistently have confused injunctive relief with relief at law-and that very little of what the plaintiff is requesting is the proper subject matter for an injunction."

It also stated the plaintiff "has not shown that she will suffer irreparable harm in the absence of a preliminary injunction."

"The public interest is not served by premature judicial interference with the proper functioning of the legislative branch of government and interference with the constitutional responsibilities of Tribal Council members. The plaintiff has failed to meet the requirements for obtaining any preliminary relief. A preliminary injunction is a drastic and extraordinary remedy which is not to be routinely granted. Additionally, the primary purpose of a preliminary injunction is to preserve the status quo until a full trial results in a ruling on the merits of the case."

The recall petitions claimed there was "misconduct and dishonesty by falsely accusing and terminating without due process, Washington, D.C., lobbyists Greenberg Traurig and market protection firm Capital Campaign Strategies; eliminated (the) Legislative Affairs Director position, and delaying disenrollment court proceedings, which therefore undermines the future financial position of the Tribe."

The March 31 vote on the petitions each time was 6-2 against each petition, with the respective Council member facing recall leaving the room while the vote took place. Tribal Clerk Darryl Jackson refused to give the petitions to Tribal Council, deciding instead to deliver an oral presentation to them.

"The Tribal Clerk has not provided and refused to provide, Tribal Council with the removal petitions or administrative record in this matter," stated Falcon in a March 31 letter to Peters. "The Tribal Council finds that the specific acts(s) or omission(s) of said Council member orally presented by the Tribal Clerk that provide the cause for removal did not rise to the level of neglect of duty, misconduct in office, dishonesty or moral turpitude. The Tribal Council also finds that the number of registered voters allegedly provided on the petition is presumptively invalid due to the Tribal Clerk's refusal to provide the petitions and administrative record to the Tribal Council."