Sault Tribe Election Challenge

EX PARTE MOTION FOR DECLARATORY JUDGMENT

The reason for adding ex parte to this motion is obvious; the Plaintiffs are simply asking this honorable Court to declare that the Sault tribe Constitution says what it says, and that stated language is controlling.  There can be no response by the Defendant that could competently challenge the plain language text of the Constitution.

PLAINTIFFS

As can be seen, several of the Plaintiffs wish to remain anonymous due to their concern that the revelation of their names would place an undue burden on their privacy; additionally, they fear a public revelation of their names may very well result in retaliation. 

DEFENDANT

Defendant “Election Committee” is the governing body over Tribal elections which derives its duties and responsibilities from Chapter 10 of the Code of the Sault Ste. Marie Tribe of Chippewa Indians. 10.103(12).            Sault Tribe Election Code 10.101(2) specifically anticipates this suit, recognizes the Court’s jurisdiction, and confers standing on the Plaintiffs.

COMPLAINT TO THE SAULT TRIBE ELECTIONS COMMITTEE
ACCOMPANYING THIS MOTION

Article IV, Section 3 of the Sault tribe Constitution reads as follows: “The members of the board shall be qualified voters of the Tribe, eighteen (18) years of age or over.”  The key to understanding the issues behind this case are embodied in the phrase “qualified voters,” and, it must be noted that there is no other language in the ST Constitution that defines exactly what a “qualified voter” is, or must be, except that that qualified voter must be “eighteen (18) years of age or over.” In other words, the Tribal Constitution defines a “qualified voter” (and potential member of the Board of Directors, or Chairperson) as a Tribal member who is at least 18 years of age.

The issue in this case arises due to action of the Board to enforce “election code” language that attempts to supersede the Constitutional language that defines “qualified,” beyond that which is defined by the Constitution (STC 10.110 (a) & (b).  These unconstitutional “supercessions” can be seen in 10.110(1)(e) (establishing residency requirements not found in the Constitution), and 10.110(1)(i) (barring anyone with a felony record from running for public office). 

It is a well-established principle of Constitutional law that Constitutions cannot be “amended” by the mere adoption of “Code” or legislation; in order to amend any Constitution (Tribal, federal, or state), the proper Constitutional emendation procedure must be followed.  For the Sault Tribe Constitution, those procedures can be found in Article X of its Constitution.

As a consequence of not following Constitutional process to amend the Constitution regarding who is “qualified” to be a member of the Tribal Board of Directors, Sections 10.110(1)(e), and 10.110(1)(i) pose an unconstitutional barrier to the Plaintiffs’ right to run for Tribal office, and for Members to vote for the candidates of their choice.  That is, according to the Tribal Constitution, any and all “qualified voters” are eligible to run for Tribal office, to become either a member of the Tribal Board of Directors, or to become the Tribal Chairperson.

While not binding on this Commission, a ruling by the St. Regis Tribal Court appears to be directly applicable: “Should there be a desire to change the rights found in the [St. Regis Tribal] Constitution and restrict who may vote as a member, there is a requirement that a proper Amendment to the Constitution be made …. Any Amendments, whether seeking a Residency requirement for any elected official, or Member, or to restrict Membership, must be clear, specific, and have the numbers required to validly amend the Constitution.”  The case law cited above can be found at —https://www.narf.org/nill/constitutions/saint_regis/stregisconst.html  

            Additionally, Article IV, Section 2, of the Tribal Constitution mandates that: “election units shall elect from within their qualified membership one member to the board to represent each five hundred (500) members or fraction thereof.”  In this regard, Article 5, Section 1, of the Constitution states: “At four year intervals beginning four years from the year of adoption of this constitution, the board of directors shall cause to be made a census and voter registration of the membership within each unit and shall publish no less than three (3) months in advance of the next general election the results thereof.”

            While it is entirely possible that the current number of Board members (12) was established by these Constitutional mandates at the time of its adoption (1975), the Constitution mandates that the number of Board members must be adjusted to reflect the “membership within each unit … at four year intervals.”

            As part of the recent COVID funding debate, the Tribe reported that there were 16,500 “residents” of the Tribal Service area.  Based on this “census,” and the Constitutional mandate of Article 5, Section 1, the Court should Order the Election Committee to anticipate, and prepare for, the election of at least thirty-three (33) Directors to the Tribal Board of Directors in 2022.

            We wish the Court to note that Section 10.101(2) reads as follows; “Each of the numbered sections and subsections of this Chapter shall be deemed to be discrete and severable. If any provision of this Chapter shall be held to violate the Constitution and/or By-laws of the Tribe, the validity of each and every other provision shall be unaffected thereby and all such other provisions shall remain in full force and effect.”

RELIEF SOUGHT

            Even though the Election Code prohibits “campaigning” before January 28, 2022, which is obviously months away, Plaintiffs urge this honorable Court to Order the Defendants to immediately adopt procedures to (1) insure that candidates for Tribal office are (1a) “qualified voters” without regard to their “conviction status” or to their (1b) supposed “residency.” 

Furthermore, the Defendants should be ordered by this Court to (2) promulgate rules to insure that the number of Board members to be elected is constitutional (one member per 500 members).  Finally, Plaintiffs urge this Court to issue its Declaratory Judgement (that the Constitution says what it says) as soon as possible in order to provide the membership with proper guidance toward conducting an election in 2022 that is in full compliance with the Tribe’s Constitution.

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