CASE WHATS U S TRIBAL ROLE - News and Media - http://maxpages.com/injusticey2k/WHATS_U_S_TRIBAL

Case: What's U.S. Tribal Role?

Feds replace tribal council with rival but face court challenge

Elizabeth Amon
The National Law Journal
November 2, 1999

A struggle to control the casino-rich Saginaw Chippewa American Indian tribe has led to a federal lawsuit that could have a wide impact on Indian tribes across the country.

The case pits a faction of the Saginaw Chippewas of Mount Pleasant, Mich., against the U.S. Department of the Interior. The issue: When can the federal government intervene in internal Indian affairs?

In August, Kevin Gover--who, as Interior's assistant secretary for Indian affairs, runs the Bureau of Indian Affairs--took sides in a tribal council election dispute and ordered that the winners of a primary election, whose victory had been invalidated by the incumbents, be allowed to take office.

The deposed council members filed suit in U.S. district court in Bay City, Mich., claiming that the federal government did not have the authority to intervene. In addition, plaintiffs claim that the case was a matter reserved for the tribal, not federal, courts. Saginaw Chippewa Indian Tribe of Michigan v. Gover, No. 99cv1032BC.

Although the federal government has broad power over Indian tribes, Native Americans do have some degree of sovereignty, which can cause an awkward conflict of authority.

"It's the big question: What, if any, are the limits on the secretary's authority?" says Nell Jessup Newton, dean of the University of Denver College of Law and an expert on American Indian law.

Other experts, however, say that the case may affect only tribes that have grown rich running casinos, and several are skeptical that the court will actually address the questions raised by the suit.

"If the court does decide the case on its merits, it will definitely have an impact, but I'm concerned the court will find a procedural loophole," says Alexander Skibine, a professor at the University of Utah College of Law.

Arguments on the plaintiffs' motion for a preliminary injunction to reverse Mr. Gover's action were held on Oct. 28; a decision isn't expected until after Nov. 8.

THE SAGINAW DISPUTE
Like many American Indian tribes, the Saginaw Chippewa have been plagued for years with conflicts and confusion over tribal membership. Lately, the dispute has produced allegations of voter fraud. Some tribe members claim that individuals who are not valid members through blood or adoption have been allowed to vote in tribal elections.

With the opening of the tribe's Soaring Eagle Casino in 1993, the stakes of membership increased. The casino on the tribe's 216-square-mile reservation makes profits of more than $200 million a year, permitting the tribe, among other things, to make annual payments of $30,000 apiece to its 2,800 members.

The tribe's wealth makes its ruling council a powerful body, controlling the award of lucrative casino contracts, determining membership policies and overseeing constitutional changes.

The fight for control of the council pits a group of "reform" candidates, headed by Kevin Chamberlain, 31, against entrenched tribal leaders from an extended family, led by Philip Peters.

The dispute started in 1996, when Mr. Chamberlain defeated Mr. Peters, the incumbent, in a recall election after allegations that some incumbent council members were guilty of corruption or that they were fraudulently enrolled as tribal members and had fraudulently enrolled others. Mr. Peters, Mr. Chamberlain says, is fraudulently enrolled himself; Mr. Peters denies this.

The next year, the tribe held regularly scheduled primary elections. The Chamberlain council invalidated the results of these elections after tribe members challenged the winners' qualifications. Over the next 14 months, three additional primaries were held, for 10 of the 12 tribal council seats. The Chamberlain-led council invalidated all of the results, alleging voting and membership fraud.

Mr. Peters and the other primary winners claim that the Chamberlain council invalidated the elections because the Chamberlain group mostly lost. As is common in tribal governing disputes, the Peters group appealed to the regional BIA, which in turn contacted Mr. Gover.

At any given time, says Mr. Gover, a former lawyer-lobbyist who has run the BIA since 1997, a half-dozen such disputes and appeals are before him. He says that he usually does not take action and that the disputes are resolved internally, but that this case is different. "After losing four elections, they needed to leave," Mr. Gover says, speaking of Mr. Chamberlain's group. "It's really that simple."

On Aug. 10, the U.S. government recognized as an interim government the top vote-getters from the last primary, and Mr. Peters became tribal chief again.

The tribe's general election is scheduled for Nov. 2, with Mr. Peters and his people on the ballot and Mr. Chamberlain off it.

THE LEGAL BASIS
Mr. Gover says that the source of his authority to intervene is "not entirely clear." The Saginaw intervention is the first of his administration, and he says that he is uncertain how often or under what circumstances previous administrations intervened. In considering his options, he says, he had no clear guidance: "There's no statute that tells us what to do when these situations arise--and precious little case law."

He says that the suit is not entirely unwelcome because a federal judge will decide whether the BIA has the authority to intervene.

Richard Monette, a professor at the University of Wisconsin who heads the Great Lakes Indian Law Center and is the attorney bringing the suit on behalf of Mr. Chamberlain and other deposed council members, says that the federal government has no authority to intervene, particularly in cases that involve allegations of civil rights violations, as this case does.

Mr. Monette, of counsel to Brown & LaCounte, in Madison, Wis., argues that the U.S. Supreme Court's Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66 (1978), backs him up. The court found that the only federal court remedies for American Indian civil rights violations available under the 1968 Indian Civil Rights Act are habeas corpus proceedings in cases involving incarceration. He says that the government should not have stepped in unless appeals in the tribal court system had been exhausted.

But Mr. Gover says that the tribal court in effect bowed out of the dispute when it called the matter a political question and upheld the council's right to invalidate the elections. Martinez, Mr. Gover says, restricts only federal court intervention, not executive action.

Indian law experts hold differing views of executive branch intervention. Robert Williams Jr., a professor at the University of Arizona, says that although the federal government's intervention in this case is highly unusual, "[t]he power has always been there."

But Robert Porter, director of the Tribal Law and Government Center at the University of Kansas School of Law, says that the absence of clear direction is meaningful.

"In instances of silence," he says, "the inherent sovereignty of the tribe is what predominates."

MONEY EQUALS POWER?
Mr. Monette suggests that the federal government's involvement in the Saginaw Chippewa dispute has more to do with political money than anything else. He says that a web of politicians, lobbyists and federal employees at the White House have played a role in the intervention on behalf of a council sympathetic to the current administration.

The tribe, which does its lobbying out of its $1.4 million mansion on Embassy Row in Washington, D.C., donated $220,000 to the Democratic Congressional Campaign Commission from June 1997 to August 1998, and $80,000 during the same period to the National Republican Congressional Campaign Committee.

"What's becoming increasingly clear to me is that it's all the way at the top of the Democratic Party, and it's to get at the money," Mr. Monette says.

Mr. Gover says that he was unaware of the tribe's political donations. "It played no role in my decision," he says.

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