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Appeals court sends year-old case back for review

Observer Staff

7/5/2005 12:00:00 AM

Tribal Council cannot judge the merits of a recall petition levied against them, ruled the Saginaw Chippewa Tribal Appellate Court on April 26.

The ruling stemmed from an April 6, 2004 lawsuit filed by Patricia Peters-the organizer of a removal drive that was invalidated by Tribal Council on March 31, 2004. The recall targeted Executive Council members Chief Audrey Falcon, Sub-Chief Bernie Sprague, Treasurer Charmaine Benz and Secretary Ruth Moses. The petitions accused the four of "misconduct and dishonesty" regarding the Tribe's former lobbyist and public affairs consultant, as well as the elimination of the Tribe's Legislative Affairs director position.

In his written opinion, Associate Justice Michael Petoskey remanded the case back to the Saginaw Chippewa Tribal Community Court for review.

"The Court found that certain requirements of Ordinance No. 4 did not apply to Tribal Council's review," stated Chief Audrey Falcon. "The Court, however, affirmed the Council's right to review the petitions for valid signatures and stated that if the Tribal Council finds that the petitions are not procedurally valid, then the process comes to an end subject only to review by the Saginaw Chippewa Community Court."

Ordinance No. 4-which governs Tribal elections-includes provisions that petitions need to have signatures of at least 30 percent of the registered voters who reside in the voting district represented by the council member who is subject of the petition. It also includes language that gives Tribal Council "exclusive review" in determining the validity or invalidity of a removal petition.

Peters has maintained after a recall is validated by the Tribal Clerk, an election should be called within 30 days based on provisions of Section 14 of the Amended Constitution and By-Laws of the Saginaw Chippewa Indian Tribe of Michigan.

"There are no provisions in the Tribal Constitution or the ordinance that allows the Council to vote on the reasons or the clerk's review procedures," she stated.

Tribal Council never physically received the petitions from Tribal Clerk Darryl Jackson. In a March 26, 2004 letter to Tribal Council, Jackson stated he feared retribution for himself and the members who signed the petition.

Saginaw Chippewa Tribal Court Chief Judge Joseph Martin on June 18 ruled that Ordinance No. 4 is a necessary tool to clear up Constitutional vagueness.

"Ordinance No. 4 saves the Tribe and its members a vast amount of resources by placing the decision in the hands of the Council initially, instead of possibly wasting much time, money and effort pursuing removal effort after removal effort," stated Martin in his ruling.

The Saginaw Chippewa Appellate Court justices disagreed.

"The otherwise thoughtful opinion of the Community Court does not adequately identify where there is any language in the Constitution itself, or even in Ordinance 4, that allows Tribal Council review on the merits," stated Associated Justice Michael Petoskey. "All the language in Article IV, Section 14(b) of the Constitution and Ordinance 4 is to the contrary. The Community Court appears to confuse the due process elements of notice and an opportunity to speak to the public, in order to provide fair treatment to a challenged Tribal Council member, as also conferring a right on the Tribal Council to review the "merits" of a removal petition submitted by "eligible voters." Such an interpretation is not supported by the plain text of the Tribal Constitution and, in fact, directly contradicts it."

Petoskey also addressed the alleged failure of the Tribal Clerk to submit the petitions for review.

"The Community Court did not make any findings regarding the disputed facts in this case about whether the Tribal Clerk performed, or refused to perform, his duties under Ordinance 4 and whether Tribal Council refused to accept the petitions when they were presented," he stated. " Rather, there is a leap to the presumption that all of the petitions are invalid because the signature requirement had not been met. None of these critical, fundamental facts have been determined. Absent such findings, this Court cannot ascertain whether the petitions do indeed have the required number of signatures to kick into motion the mandatory election process."

The justices reversed the judgement of the Saginaw Chippewa Community Court and remanded it with the following directions:

"(1) The Community Court shall determine whether the Tribal Clerk did or did not file his written determination as to the number and validity of the signatures on each of the removal petitions as required by Sec. 3(d) of Ordinance 4. If not, the Community Court shall compel the Tribal Clerk, under pain of contempt, to do so forthwith.

(2) Once this process is complete and the Tribal Council exercises (or waives) its limited procedural review of the petitions as authorized by Sec. 3(d)(7) of Ordinance 4, the Tribal Council shall provide each individual subject to removal with a written statement of the reasons for his or her removal as they are stated on each petition as required by Sec. 14(c), Art. IV of the Tribal Constitution.

If the petitions are not procedurally valid under Sec. 3(d)(7), the process comes to an end with the right of appeal to the Community Court available to the Plaintiff/Appellant. It is also to be emphasized that a Tribal Council member named in a removal petition shall not participate in any Tribal Council review proceedings.

(3) The Tribal Council shall then call a meeting forthwith in the district where the subject Tribal Council members reside but with at least 20 days notice. At this meeting, "the Tribal Council member will have the opportunity to respond."

(4) After compliance with these Tribal Constitutional requirements, the Tribal Council shall promptly, but within 30 days, conduct the removal election by "eligible voters" in the appropriate District as required by Sec. 2(b) of Ordinance 4."