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Appellate court ruling

Scott Csernyik

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 office.

"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 of office."

"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 a possibility."

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."