Appellate court ruling
1/16/2000 12:00:00 AM
After levying criticisms that two former administrations compromised the Tribe's
sovereignty by involving federal officials in a leadership dispute, the Saginaw
Chippewa Appellate Court ruled the current Tribal Council should remain seated.
The Jan. 5 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
"In sum, both the "holdover" and "interim" councils were in error," the court
stated in its 43-page opinion. "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.
"This reliance on the federal government rather than upon the basic right and
responsibility of self-government is counter to the established principles of
tribal sovereignty and, as we shall see below, yielded a major intrusion into
the internal governmental functions of this Tribe."
Peters became interim chief after receiving the Aug. 10 letter in which Gover
refused to recognize the administration headed up by Kevin Chamberlain. Gover
cited the Chamberlain administration had "failed in four efforts to conduct
elections and effect a lawful transition of power." Gover relied on the results
of a Jan. 19, 1999 primary election for determining the 10 seats representing
District 1 for the "interim" council.
Since August, the Tribe successfully conducted a primary and general election,
which retained eight of the original 10 members of the "interim" council.
"We recognize that at the heart of the Chamberlain Council's justification
for its continued validity beyond the end of the term of office is its assertion
that the membership mandate had to be fulfilled before any valid elections could
take place," according to the opinion. "In its estimation, it was, thus, essential
to change the membership of the Tribe. This was effectuated by the dual initiatives
to investigate the validity of membership claims, and, to amend the Constitution
to reflect its vision of an ideal profile for membership. Both are problematic
on legal and theoretical grounds."
Chamberlain and five of the original council members representing District
1 to the time they were deemed a "holdover" administration were originally sworn
into office on Jan. 22, 1997.
The court also found the "theory and structure of the Constitution also served
to erode the Chamberlain Council's dual initiatives and its continued occupancy
"In this case, the Chamberlain Council ran on a particular platform that did
indeed gain the public trust," the opinion further stated. "But there is a clear
Constitutional implication that such platform must be fulfilled or completed
within the given two years.
"The holdover actions of the Chamberlain Council were clearly in violation
of the Saginaw Chippewa Indian Tribal Constitution. The Tribal Constitution
makes no provision for a holdover tribal council and implicitly rejects such
The Saginaw Chippewa Appellate Court- comprised of Chief Justice Carey N. Vincenti,
Associate Justices Cheryl D. Fairbanks and Frank R. Pommersheim-also called
Gover's Aug. 10 letter "remarkable in at least three aspects."
"First, it provides absolutely no legal authority for Mr. Gover's decision.
No part of the United States or Saginaw Chippewa Tribe's constitution, no federal
or tribal statute, no federal or tribal regulation, and no case law-federal
or tribal-are cited, much less discussed.
"Second, Mr. Gover's decision clearly violates the Constitution of the Saginaw
Chippewa Tribe of Michigan in recognizing 11 instead of 10 representatives from
the Isabella District. Third, it breaks entirely new (and tribally unconstitutional)
ground in recognizing individuals who have not won any general election but
only are top vote getters in a primary election."
The court also stated Gover's actions did nothing to advance the government-to-government
relationship between the federal government and the Saginaw Chippewa Indian
Tribe of Michigan.
"The Assistant Secretary's extreme course of conduct in this matter ripped
and tore at the fabric of Tribal sovereignty," they wrote. "The problem in this
case is not the fact that the Peters Council was "interim" in nature, but rather
that its recognition by the Assistant Secretary as such was erroneous and illegal
as a matter of both tribal and federal law. This in no way, however, makes,
the holdover actions of the Chamberlain Council legal.
"This case demonstrates the potential for genuine crisis when there is a failure
of confidence in and respect for tribal law and tribal institutions. In this
instance it generated the painful paradox of an illegal "holdover" government
in contention with an illegal "interim" government aided and abetted by the
illegal actions of the Assistant Secretary's Office. This is not to say that
any side intended to create harm or crisis but only that it did happen. No one
welcomes painful experience but it can provide the benefit of learning, perhaps
even wisdom, if it is carefully examined. If it is merely ignored or trivialized,
it invites tragedy. This Court has taken the road of close examination in an
attempt to render justice with compassion and without recrimination; an examination
that might lead to a new beginning of cultural conciliation and democratic respect."
Toward the end of their ruling, the justices also explained how the philosophy
of law is applied in Indian Country.
"In the American system of jurisprudence litigation is conducted on an adversarial
basis: there are clear winners and clear losers," they explained. "Traditional
notions of Native American jurisprudence are concerned with healing, restoring
balance and harmony, accomplishing reconciliation, and making social relations
whole again-no winners or losers-rather, there are survivors who must be nourished
back to health. Although the Petitioners do prevail in their claims regarding
the Assistant Secretary's authority, we cannot conclude that they should be
restored to leadership as a continuation of an unlawful holdover Council-to
do so would not be mindful of the tribal members' need for healing and transcendence.
Neither can we uniformly endorse the enactments of the Peters Council except
to the extent that they restored the political process that elected the Chamberlain
Council and this current Council to office."