Four election protests dismissed or denied
10/28/2005 12:00:00 AM
Two protests filed over the recent primary election have been denied with another pair being dismissed.
Election Appeals Judge Vanya S. Hogen dismissed protests filed by "Members of the Anishinabe Voices," as well as District 1 Tribal member and candidate Craig Graveratte because of pending legal action. Both protests concerned having a candidate on the ballot that did not submit to a hair follicle drug test.
Delores Jackson-who also filed a protest over the election-has sought a temporary preliminary injunction in an attempt to circumvent and abolish mandatory drug testing for Tribal Council hopefuls. The matter-originally ruled on Sept. 8 in Saginaw Chippewa Community Court-went to the Saginaw Chippewa Appellate Court who remanded the case back to the lower court.
Since 1994, the Saginaw Chippewa Indian Tribe of Michigan has required a negative drug test prior to being a candidate for a Tribal Council election. On July 27, Tribal Council specified the test would be a hair follicle drug test. Prior to that time, the test was unspecified, but all testing was done by urine sample. A total of 57 candidates were on the Oct. 11 ballot, with District 1 Tribal members able to vote for up to 20. Of all the candidates, Jackson was the only one who refused to take the hair follicle drug test. The other 56 individuals took the test and passed.
In her lawsuit, filed Aug. 17, Jackson alleged violations of the 1986 amended Tribal Constitution and the Indian Civil Rights Act. She also maintained that amending Ordinance No. 4 within weeks of the election schedule "is procedurally unfair and places a chilling effect on plaintiff and other candidates interested in running for Tribal Council in the 2005 general election because candidates are being forced to choose between submitting to an unlawful search of their persons or forgoing the right to run for Tribal Council."
The community court is expected to hear legal arguments after the general election takes place pertaining to claims concerning the Saginaw Chippewa Constitution, unreasonable search and seizure, freedom of religion, as well as defenses.
"I feel that a Tribal member should respect all Tribal laws and ordinances to be elected to the highest position of our Tribe," stated Graveratte.
The Anishinabe Voices group took a similar stance and further claimed the candidate drew votes from others who followed the candidate criteria.
"From the list published after the primary election it was obvious without her votes, a lot of the candidates could have had many votes that could have pushed them forward into the November election."
The group went one step further in their protest, suggesting to "hold Delores from the final election and put the No. 21st person, April Borton, in her slot."
In her Oct. 11 decision, Hogen stated "this tribunal is therefore without authority to rule otherwise and whether Ms. Jackson was properly included as a primary candidate will depend on the outcome of her Tribal court lawsuit."
In Jackson's protest, the District 1 Tribal member claimed "that a number of individuals running for a seat on Tribal Council are adopted members-not born to a member-of the Tribe and therefore they are not eligible to run or serve on Tribal Council.
"It has been clarified that these individuals were in fact adopted into the membership, on Resolution TM-3-82, and they were not born to a member at the time they obtained their adoption through a resolution, into the Tribe which was a criteria under the Constitution at the time," stated Jackson in her Oct. 13 protest.
Jackson's protest targeted Josephine Jackson, plus incumbents Michael Floyd Sr., Federico Cantu, Charmaine Benz, "as well as others."
"I believe it is in the best interest of the Tribe and the membership, to maintain the integrity of the elected leadership of the Tribe by following our constitutional law in doing so," stated Jackson in her protest.
Hogen countered in her ruling by stating this "tribunal does not have the authority to determine whether someone is or is not properly considered a member of the Tribe."
Hogen added that testimony and evidence demonstrated that their names appear on the official membership roll of the Tribe, and therefore their tribunal must consider them to be members of the Tribe.
"Ms. Jackson did not prove that any candidate had been adopted pursuant to Article III, Section 1(d) of the Constitution," she stated in her Oct. ruling. "In fact, the documentation she submitted with her protest demonstrated that the five candidates she challenged had been adopted in 1982, four years before Article III, Section 1(d) was added to the Constitution."
Incumbent District 1 Tribal Council Representative Brenda Champlin-who's name did not appear on the primary ballot-filed a protest over her name being omitted on the ballot after a second drug test came back negative.
"Originally I was scheduled to run as a candidate for Tribal Council and after taking my first drug test, it was returned as positive," she stated in her protest. "I believed that to be erroneous and re-took the hair follicle testing which then came back negative the second time.
Nominating petitions were made available for the general election on Aug. 15 and due by Sept. 15. All final drug test results were to be returned to the Tribal Clerk's Office no later than one day prior to the approved date for the posting of the candidate list for the general election. According to the election schedule, the candidate's list was to be posted by 5 p.m. on Sept. 22.
"You received my test results on Sept. 22, 2005 at
9:06 a.m., as is clearly printed on the fax you received the day you posted the list of candidates running for election," added Champlin. "My name was omitted. I did my test in a timely manner...I understand that a Tribal holiday was on Sept. 23 [Michigan Indian Day] and Tribal Operations would be closed. I should not have been penalized because the Tribe celebrates a holiday by closing the offices, thereby interfering with ordinance procedures."
In the protest denial, Hogen relied on the findings of fact that stated the drug screening notice contained in the candidate packet:
"If the results of the initial drug test are positive or inconclusive, then a second test will be required. The results of a second test must be returned to the Tribal Clerk within the time frames set forth above. The prospective candidate should schedule his/her first drug test immediately, so that in the event a second test is necessary, the results of that second test will be submitted to the Tribal Clerk within the time frames specified."
Champlin took her first drug test on Sept. 13 and her second test on Sept. 20.
"While it is unfortunate that Ms. Champlin will not have an opportunity to run for reelection to the Tribal Council, perhaps the results in this case will cause future candidates to submit to drug testing immediately after obtaining a candidate packet. In so doing, a candidate can ensure ample time remains to take two drug tests, if necessary, and to challenge the results of any drug test."