Council invalidates recall petitions; lawsuit filed

Scott Csernyik

1/25/2005 12:00:00 AM

After Saginaw Chippewa Tribal leaders voted to invalidate four recall petitions against Executive Council, the organizer of the removal drive filed a lawsuit for injunctive relief.

The four petitions were filed with the Tribal Clerk's Office on March 8 by Patricia Peters against Chief Audrey Falcon, Sub-Chief Bernie Sprague, Treasurer Charmaine Benz and Secretary Ruth Moses. On March 19, Tribal Clerk Darryl Jackson delivered his final written determination regarding their validity to Tribal Council.

The petitions claim 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 each time was 6-2 against each petition, with the respective Council member facing recall leaving the room while the vote took place. 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."

For the recall effort to proceed, at least 215 signatures were required on each petition. Peters said the drive collected 243 signatures against Falcon, 251 for Sprague, 248 for Benz and 251 for Moses. After a review was conducted by the Tribal Clerk's Office concerning the validity of the signatures based on voter registration records, the Tribal Clerk determined there were 234 for Falcon, 226 for Sprague, 228 for Benz and 225 for Moses. There are 704 registered voters in District 1, according to the most recent information provided by the Tribal Clerk's Office for last special election which took place in February.

The determination of the validity or invalidity of a removal petition by the Tribal Clerk is a final determination subject to the exclusive review of the Tribal Council according to provisions in Ordinance No. 4.

During a special meeting on March 24, Tribal Council passed by a 6-4 vote Resolution No. 04-068-which directed the Tribal Clerk and/or Deputy Clerk "to provide Tribal Council with the administrative record, including the removal petitions, for such review immediately upon receipt by the Tribal Clerk and/or Deputy Clerk of this resolution."

"Tribal Council may conduct a review on its own initiative of the Tribal Clerk's determination of validity of the removal petitions as established by Section 3(d)(7)(ii) of Ordinance No. 4; and Tribal Council is entitled to review the administrative records, including the petitions, in order to ensure due process and in order to conduct a full and meaningful review of the Tribal Clerk's determination; and prior Tribal Councils have historically reviewed the administrative record, including the petitions, while conducting the review of the Tribal Clerk's final determination," the resolution stated.

Jackson, in a March 26 letter to Tribal Council, stated he feared retribution for himself and the members who signed the petition. The petitions remain locked in an old ballot box at Saginaw Chippewa Tribal Court with Jackson having the sole key.

"As Tribal members, we all have rights to privacy and confidentiality duly expressed to them under the Constitution of the United States of America, The Bill of Rights and under the Constitution and Amended By-Laws of the Saginaw Chippewa Indian Tribe [and] The Indian Civil Rights Act of 1968," stated Jackson in the letter. "I believe in my heart that I have betrayed all Tribal members regardless of whether Tribal members do or do not support the recall petition submitted on March 8, 2004 for the fact that Tribal elected officials have to act in the best interests of all Tribal members at all times and swear of affirm to an oath to do so."

Once the petitions were deemed valid by Jackson, supporters of the recall effort expected the four Tribal Council members to step down-sparking protests representing both sides. Those who supported the petition drive alleged that the Executive Council needed to step down immediately based on provisions of Section 14 of the Amended Constitution and By-Laws of the Saginaw Chippewa Indian Tribe of Michigan.

"Upon receipt of a petition signed by at least thirty (30) percent of the eligible voters within the voting district concerned seeking removal of a Tribal Council member from that district, the Tribal Council shall call a special election in the concerned district to vote on the removal of the official in question," according to the Constitutional provision.

But interim general counsel Sean Reed contends there is no provision in the law that would require any Council member to step down just because the Tribal Clerk determined that the petitions are valid.

"The protestors' demands that they step down immediately, if followed, would be a gross violation of due process, Tribal law and rights under the Constitution," he stated in an April 12 interview with the Tribal Observer. The interview was conducted because a response to the Peters lawsuit has yet to be filed as of an April 13 press date.

In the lawsuit-filed on April 6 in the Saginaw Chippewa Tribal Court-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."

Reed maintained that "no right to a removal election exists when the petitions are invalidated."

Peters is seeking 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."

Reed asserted the plaintiff is attempting to prevent Executive Council members from voting on the validity of the recall petitions filed against another Executive

"This is contrary to the law and would deprive these Executive Council members of their right to cast such a vote," he explained. "The process used by this Tribal Council is the only process available under the law and was also the same process used by previous Councils-including on Sept. 11, 2000 where eight District 1 Tribal Council members faced recall."

Peters also wants the court to find and declare the four's actions in the petition for removal matter, as well as Ordinance No. 4, Section (d)(7)(ii), as violations of the Tribal Constitution and Indian Civil Rights Act.

"[The] plaintiff asserts that the only remedy to prevent further harm and injustice is to sanction and permit a new vote on review of [the] Tribal Clerk's decision to approve plaintiff's petitions for removal," stated the lawsuit.

The following is the list of three charges levied against the four members and supporting arguments for invalidating the recall petitions.

Misconduct and dishonesty by falsely accusing and terminating without due process Washington, D.C. lobbyists Greenberg Traurig and market protection firm Capital Campaign Strategies.

Greenberg Traurig firm was not terminated and their contract expired on its own terms of Dec. 6, 2003. Capital Campaign Strategies (CCS) was terminated for breach of contract for failure to provide a report required on Nov. 14, 2003 to substantiate the work performed. Had the Tribal Council not terminated the contract, the Tribe would have been liable for another payment of $2.7 million without any reporting by CCS as to the work performed. CCS has since agreed to the termination of this contract.

Due process is a legal principle requiring notice and hearing prior to the depriving of someone of life, liberty or property right. Contractual consultants are not employees and are only entitled to whatever process is defined in the contract.

Tribal Council actions were consistent with their duties established under Article VI, Section 1(c) of the Constitution and Subsections 3(a),(b),(c) and (d) of Ordinance 19.

Eliminated Legislative Affairs position and delaying disenrollment court proceeding which therefore undermines the future financial position of the Tribe.

Tribal Council has inherent authority to eliminate positions as it deems necessary to protect or enhance the economic affairs of the Tribe and to manage the Tribe's enterprises under Article VI, Section 1(c) and 1(h) of the Constitution and under Subsection 3(a), (b), (c) and (d) of Ordinance 19.

Tribal Council did not delay any court proceeding, but instead offered a stay for disenrollment proceedings pending before the OAH. These proceedings are administrative hearings and not court proceedings.

On Jan. 14, Tribal Council passed a motion to offer a temporary stay to disenrollment proceedings contingent upon those parties agreeing to consolidate their cases. On March 3, the Tribal Council directed, with Tribal Council approval, that if consolidation was not agreed to within a defined time period by the parties, then the disenrollment for those parties would proceed.

Tribal Council has authority to enter into stipulated motions on behalf of the Tribe. The stipulated motions authorized to stay these proceedings will save the Tribe time and money in legal fees.