Council recall lawsuit dismissed by chief judge

Scott Csernyik

1/25/2005 12:00:00 AM

The Saginaw Chippewa Tribal Court recently dismissed a lawsuit concerning the recall of four Tribal Council members.

The written opinion on the matter was filed by Tribal Court Chief Judge Joseph Martin on June 18. The matter was heard before him on June 4. 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.

Martin stated the Saginaw Chippewa Tribal Court has subject matter jurisdiction over the lawsuit; the Tribal defendants do not have sovereign immunity from the lawsuit; and that Ordinance No. 4 is a necessary tool to clear up Constitutional vagueness in the removal process.

"[The] plaintiff asserted at the hearing that the words �shall have an opportunity to be heard and present evidence' simply implies a dog and pony show for the public; and that the Council is mandated to have the election go forward," stated Martin in the decision. "In plain terms, Article IV, Section 14(c) denotes that there must indeed be reasons for seeking the removal of a Council member, but also that the named member is entitled to due process as well, with the use of due process meaning that a final decision must be rendered."

Defendants in the case 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."

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 May 13 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 defendants also argued 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.'"

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."

Martin also stated in his decision the Tribal Constitution authorized Tribal Council to create a court system that is "an independent branch of government-at least within the scope of its delegated jurisdiction."

"Constitutions exist not as a grant of power to a government, but as a limitation placed upon its powers," he stated. "While Council's determinations in the political process remain political questions and non-justiciable in the eyes of this court, the procedures used in coming to those decisions are not, and shall remain justiciable by this court."