Appellate Court Petition Filed

Scott Csernyik

2/28/2000 12:00:00 AM

A former Tribal leader has filed a petition for the Saginaw Chippewa Appellate Court to consider withdrawing its opinion.

The Jan. 5 ruling-which criticized two former administrations for compromising the Tribe's sovereignty by involving federal officials in a leadership dispute-also stated the current Tribal Council should remain seated.

Kevin Chamberlain, who served as Tribal chief from January 1997 to August 1999, filed the petition for reconsideration, clarification and modification with the court on Feb. 3.

Chamberlain's petition asks the court to withdraw its opinion and reconsider the matter given the following three contentions:

• several findings of fact are either unclear or inaccurate;
• a more complete and accurate assessment of the facts may require a different conclusion of law; and
• the court's failure to order a process for advancing the "healing" which it espouses fails to take full advantage of its historic opportunity to resolve the difficulties which gave rise to this suit and which are destined to give rise to similar disputes in the future.

The Jan. 5 appellate court ruling found that Assistant Secretary of the Interior Kevin Gover acted illegally and lacked the authority to recognize an "interim" council led by Chief Phil Peters Sr. The court also condemned the actions of the "holdover" administration because they violated the Tribe's Constitution by setting aside the results of at least three elections after the expiration of their term of office.

"In sum, both the 'holdover' and 'interim' councils were in error," the Jan. 5 ruling stated. "Moreover, this appeal to the United States government exemplifies both the negative impact that historical federal policy has had upon Indian Tribes, and, the all-too-often Tribal populist reliance on the well-established paternalistic posture of the BIA."

The Saginaw Chippewa Appellate Court is comprised of Chief Justice Carey N. Vincenti, as well as Associate Justices Cheryl D. Fairbanks and Frank R. Pommersheim.

On Dec. 30, 1998, Vincenti was administered the oath of office for the Saginaw Chippewa Court of Appeals. The appointment came following a Dec. 22, 1998 resolution which amended the Tribal Code, replacing earlier appellate court procedures. Fairbanks and Pommersheim were appointed to the bench on March 20, 1999.

Peters became interim chief after receiving the Aug. 10 letter in which Gover refused to recognize the Chamberlain administration. Since August, the Tribe successfully conducted a primary and general election, which retained eight of the original 10 members of the "interim" council.

"The court's attitude, expressed throughout, but most succinctly in its conclusion, is that everyone behaved badly, but that now that an election has taken place, everything is back in Constitutional harmony," according to the petition. "The fact of the matter is that no full and fair election could have possibly taken place on the Saginaw Chippewa Reservation in the environment that was created by the Peters Council when they forcibly took control of the Tribal government in mid-August.

"At some point this Tribe, and this court, must be willing to refuse to accept the blankets, the money, and the governments that the United States Government has forced down their throats at such great cost to the Indian Nations. There is a higher principle at work in this case, which this court has failed to recognize. The Saginaw Chippewa Constitution guarantees that there will be an election every two years, but the Bureau of Indian Affairs will be a constant threat so long as it is allowed to be one. Because this court opinion has forced the Tribe to accept a mirage of constitutional tranquility rather than a vision of Tribal unity and self-government, its decision should be withdrawn and reconsidered."

The petition also criticized the court's approach to resolving the political dispute and suggested alternatives should have been explored.

"The court could have, for instance, ordered that the two sides meet and discuss their differences to find out whether some common ground could be reached," stated the petition. "The court could have retained jurisdiction over the membership and election disputes that gave rise to this dispute and which are destined to give rise to disputes in the future if they are not corrected.

"In short, there are myriad of possible solutions to this case that do not involve a simple opinion and order purporting to resolve issues which are still festering underneath the iron curtain of 'constitutional stability' that has been imposed on this Tribe."