|June 26, 2014
Reprinted for voter information
The Tribal Council requested that the Legal Department write a brief memo documenting the history of the concerns that served as the basis for the Tribes’ appeal of the proposed constitutional amendment that is the subject of the upcoming Secretarial Election. Feedback from the Council indicates that there is some confusion within the Tribal membership regarding the purpose of the election, as well as the potential impacts to the Tribal Constitution.
The upcoming Secretarial Election was not called by the CSKT Tribal Council. It is a result of a petition submitted by an organization of tribal members. The Tribal Council was first made aware of the election when then Chairman Joe Durglo received a copy of a letter sent to the petitioning organization.
In his September 20, 2013 Decision Letter, Regional Director Stan Speaks stated that the Branch of Tribal Government Services, Northwest Regional Office, had completed a thorough technical review of the petition submitted by “The People’s Voice, Inc.” (the petitioning party) in accordance with 25 CFR Part 82. The petition asked for a Secretarial election for the purpose of amending the Constitution and By-Laws of the Confederated Salish and Kootenai Tribes (Tribal Constitution). The Decision Letter noted that the People’s Voice had submitted proposed language that would amend the Tribal Constitution to allow recall of sitting Tribal Council members. In approving the request for a Secretarial election on the proposed amendment the Regional Director explained that the BIA had “requested a solicitor’s legal review of the proposed language; we made minor changes and found that the proposed language would not be contrary to any applicable federal laws. Enclosed is a copy of the proposed language that will be submitted to the membership of the Confederated Salish and Kootenai Tribes.” The proposed amendment was included as an attachment to the Decision Letter. The Tribes appealed the Regional Director’s decision to hold a Secretarial election using the proposed amendment citing the contradictions and internal conflict it would create within the Tribal Constitution, as well as the vague, confusing and unclear language of the amendment itself.
One of the remedies the Tribes sought from their appeal to the Interior Board of Indian Appeals (IBIA) was a request that “[s]hould this Board ultimately uphold the decision to hold the secretarial election, the Tribes request that the language of the proposed amendment be significantly redrafted so there will be clear and unambiguous standards for petition and recall that do not conflict with other sections of the CSKT Tribal Constitution and Bylaws.”
The Tribes appeal was ultimately dismissed by the IBIA as premature, as there was no final decision by Mr. Speaks to amend the CSKT Constitution, rather that action would only come as a result of an affirmative vote to amend the Constitution. At that point the IBIA could then hear an appeal because the harm alleged by the Council would become “concrete and particularized.”
The Secretarial Election is currently scheduled for Saturday July 12, 2014. The BIA has appointed an election board, and the BIA is also responsible for producing the ballots and voter information letter. Concerns that formed the basis of the Tribes appeal to the IBIA still remain, and include the following:
1. VOTER CONFUSION.
The language on the ballot will be an exact recitation of the proposed amendment. The opening paragraph of the proposed amendment states:
“Section 3 Recall – Upon a petition of at least 1/3 of the eligible voters of the Flathead Reservation, the membership may have the power to recall any tribal council person for malfeasance, or any part of the Confederated Tribes’ Constitution.”
Nowhere in the proposed amendment is there a definition of “malfeasance” or what is intended by “any part of the Confederated Tribes’ Constitution.” This language was one of the key issues of the Tribes’ appeal. The Tribes argued that any proposed amendment to the Tribal Constitution should be grammatically correct and universally clear and understandable on its face. The errors in wording could be confusing to voters who are trying to interpret the intent of the proposed amendment. The standards for recall are vague and ambiguous, and open to individual voter interpretation. The fact that voters have now expressed some confusion regarding what they are voting on is understandable.
The Council’s appeal also cited to several other vague and confusing elements, including:
• There is a lack of clarity in the proposed amendment regarding how many sitting Council members may be recalled at one time.
• It is unclear how many Council members may be recalled under one recall petition.
• It is unclear how many Council members may potentially commit “malfeasance” through one action (e.g. does a unanimous vote on a controversial Tribal Resolution subject the entire Tribal Council to potential recall?)
Also contributing to voter confusion may be the error in the voter information letters that the BIA sent out, which stated that the election was to amend the enrollment section of the Tribal Constitution. This was an error by the BIA and its election board, not the Tribal Council.
2. IMPACTS TO THE TRIBAL CONSTITUTION.
The Tribes’ appeal to the IBIA also detailed several proposed conflicts within the Tribal Constitution that could result from voter approval of the proposed amendment, including:
• Lack of due process guaranteed to Tribal Council members under the Tribal Constitution and federal law (Indian Civil Rights Act). Under the proposed amendment a Council member need only be accused of malfeasance or something under the Tribal Constitution in order to be subject to a recall petition.
• Conflict with Article V, Section 2 (Vacancies and Removals) which governs how the Tribal Council can remove a sitting member. There could be two different standards for removal of a Council member, depending on whether the Council member was subject to removal under the Section 2, or the proposed Section 3.
• Article IV (Nominations and Elections). Section 1 provides for election of five Council members every two years, potentially conflicting with the terms of the proposed amendment that would allow for Council members to be voted out of office in an unlimited series of Tribal elections.
• Section 1 also provides that the Tribal Council shall appoint a successor to fill a vacant seat. The proposed amendment would allow for a recall vote, but does not specify how the recalled Council member will be replaced.
• Article IV, Section 2 constitutionally vests the election board with the authority to determine rules and regulations governing all elections. Currently the CSKT election board has determined the only limitations on Tribal members who want to run for an open Council seat are felony conviction, age, residency and having pending litigation against the Tribal government. This conflicts with the proposed amendment, which would bar a recalled Council member from ever running for Tribal Council again.
It should also be noted that the proposed amendment seems to require the Tribal Council to determine if a recall petition qualifies for a vote within a 48-hour window. The CSKT Tribal Council regularly meets every Tuesday and Thursday, subject to quorum, and the proposed amendment states: “The council shall, at its next meeting after the filing of such petition, determine whether the petition as filed meets the requirements of this section of the Tribal Constitution.” The Tribes’ appeal contended that this language requires the entire petition to be accepted, reviewed and certified as a qualifying or non-qualifying petition for recall in an unrealistic timeframe.
The Tribal Council was concerned about voter confusion and a number of potential problems that could result if the proposed amendment was passed and thus appealed Mr. Speaks decision to call the election. Aside from the issues specifically noted above, the Tribal Council was concerned that passage of the proposed amendment would lead to a destabilized government. At its worst, the Council feared that it could create an environment of political and constitutional dysfunction that would make it difficult or impossible for the Tribal Council to govern effectively, pursue business opportunities for the CSKT, and provide services that are essential to meeting the needs of the CSKT membership.