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On Aug. 21 the Lac du Flambeau Tribal Council passed an amendment to the tribal constitution that changed the tribe’s election code by introducing seven new qualifications for tribal members seeking to appear on election ballots. On the same day, the tribe’s election committee applied the new code to the tribe’s 2008 election ballot and removed five candidates on the grounds that they did not meet the new electoral qualifications.

In response, the five nominees removed from the ballot have filed an injunction in Lac du Flambeau Tribal Court against both the tribal council and the elections committee. The injunction claimed the changes to the election code could not be applied to the ballot until their constitutionality was reviewed by the tribal court.

The amendment to the election code passed by the tribal council and the injunction filed as a protest have cast new light on the legal confusion that has resulted from a lack of clearly-defined separation of powers within the government structure of the Lac du Flambeau tribe.

Now the tribe’s court has the responsibility of ruling on an issue that may set wide-sweeping precedents for what the tribal council can do and what rights of due process tribal members can claim.

Chief Tribal Judge Alice Soulier requested that briefs be filed by legal counsel from both sides by Thursday and promised to rule on the issue by Friday.

The removal of the ballot nominees and their responding request for an injunction can be viewed as a continuation of the political conflict that ensued after ten tribal members occupied the tribal office building demanding a federal audit of tribal finances in March.

In the incident, members of a group of tribal members calling themselves the Ginews peacefully occupied the tribal council building on March 26 until they were removed and arrested by law enforcement officials from the tribe and county. The group included a number of women who called themselves the Ginew Grandmothers.

The women claimed that the current tribal council and particularly Tribal President Victoria Doud were guilty of mismanaging tribal funds and abusing the tribal constitution and they have continued to ask for a forensic audit of the tribe’s finances.

Doud responded to the group’s protest and occupation of tribal buildings by calling them “terrorists” and by dismissing their actions as politically motivated attempts to interfere with the lawful processes of tribal government. A political battle ensued that has divided the tribe in recent months.

At the time of the occupation three tribal council members affiliated themselves with the Ginew cause. On May 30, those three tribal council members – Jerome “Brooks” Big John, Tom Maulson, and Muriel Fralick – were removed from the Tribal Council by vote. A subsequent referendum vote on June 10 confirmed their removal from office. The group protested the ruling as political intimidation and vowed to run for the five open spots on the tribal council this fall.

Of the five nominees removed from the ballot by the tribal election committee on Aug. 21, all five have been affiliated with the Ginew group. The three members already removed from tribal office – Big John, Maulson, and Fralick – were presumably excluded from the ballot on the grounds that one of the elements of the amendment to the election code stipulated that any tribal member previously removed from office could not appear on an election ballot in the future.

According to a press release from the Lac Du Flambeau tribe, the amendment of the election code occurred because, “Tribal Membership voiced serious concerns of casting a ballot at the election which includes individuals who were previously removed from office through a Special Election process or who may have felony records.”

But Ginew Grandmothers Ronda Snow and Betty Jack, who sought to run for council seats, suspect they were excluded from the ballot for their participation in the occupation of the tribal building. Their participation in the protest may be covered by a much broader element of the amendment to the election code, which stipulated that any candidates that “have been involved in immoral or illegal acts against the tribal government” be excluded from the ballot.

“This has completely corrupted the election process and denied us of both our tribal constitutional rights and our U.S. constitutional right. It has directly affected our tribal members’ ability to choose their leaders,” said Snow. “As far as the court case is concerned, what’s most troubling to us is that they’re changing the rules in the middle of the game in order to eliminate their opposition.”

Because the tribal election process formally began on Aug. 17, the deadline for ballot nominees to submit their petitions, Snow and her fellow claimants have filed the injunction in the hope that the court will rule the amendment of the election code during the election process unconstitutional.

“Once the election process started, to change the rules seems very clearly unconstitutional,” said Snow.

Tribal spokesperson Laura Stoffel said on Wednesday afternoon that Tribal President Victoria Doud did not want to comment on the timing of the amendment to the electoral code until after the ruling on the injunction.

The political struggle between Doud’s administration and the Ginews aside, the legal issues affected by Chief Tribal Judge Soulier’s ruling on Friday are crucial to the tribe’s future.

According to University of Wisconsin-Madison Professor of Indian Law Richard Monet, the Lac du Flambeau tribe is suffering for not having updated its tribal constitution following the emergence of tribal gaming as its major source of revenue.

“The problem is structural. There isn’t a clear identification of the powers and functions of government,” said Monet. “A lot of the tribes that have not gotten around to reforming their systems are running into these same problems. One of the most difficult separation of powers issues is the relationship of a government to its people when it acts as a government and when it acts as a business.”

Governments, as a rule, must be transparent and accountable to function well, while businesses need to pursue strategies that are often times predicated on timely-decision making and secrecy. Monet said states have had to confront the same issue in instances related to state-run lotteries and state liquor sales, but the issue has broader consequences for tribal governments.

“For tribes it’s complicated a million-fold because their main source of revenue is the tribal casinos which are businesses. This election fight is a symptom of that. My opinion is the court should say, ‘You can’t change the rules halfway through the game,’ but there’s much more at stake in this issue than just the election ballot,” said Monet.

Throughout the course of the political struggle between Doud’s administration and Ginew supporters, the Ginews have appealed to federal agencies with oversight capacities, but their appeals have met with what Snow calls a “brick wall.”

Monet believes the BIA, and the state and federal courts should not intervene in what is an internal conflict within the Lac du Flambeau tribe. The State of Wisconsin only has jurisdiction over “civil causes of action” on the reservation, and because this matter involves the tribal government, it cannot be deemed a civil cause. The federal courts have jurisdiction over violations of the Indian Civil Rights Act, but the practice of the court has been to rule on violations of the act only in cases involving the incarceration of an individual invoking the writ of habeas corpus, which is not the case in this instance. For the BIA to intervene in a matter of tribal governance would undermine the relationship between the tribal membership and its government.

“This is very likely wholly an internal matter. The court should air this out and see if the tribe’s due process has been followed,” Monet said.

As if the issue were not already complicated enough, the specific relationship between the Lac du Flambeau Tribal Council and its election committee is also confusing, because the committee only has the power to apply the election code and not to interpret it. The tribal constitution also contains a clause that states in matters concerning the interpretation of the election code, the tribe should defer to the State of Wisconsin’s election code.

According to Monet, tribal governments are generally immune from injunctions as sovereign bodies, but election boards are generally governed by the courts, which means the injunction would seemingly only be granted should the claimants prove that the new election code was applied inappropriately.

But Snow claims that the Lac du Flambeau constitution, according to an amendment designed to reinforce the separation of government and judicial powers passed in 2005 and upheld in a federal appeals court, grants the tribal court jurisdiction to make decisions regarding the constitutionality of the tribal council’s decisions.

On Friday, Chief Tribal Judge Soulier will decide whether or not to grant the injunction against the amendment to the tribe’s election code. In her decision, Soulier will determine whether Doud’s administration will succeed in clearing the ballot of Doud’s political opposition, but the judge’s ruling may also set a precedent that will determine tribal members’ ability to challenge the decisions of their tribal council in the future.

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Comments »

Rez_Mom wrote on Aug 29, 2008 6:39 AM:

" seems that Judge Soulier had already made her decision yesterday and is not honoring the injunction. :(
If this is true, it is sad news for all tribal members. We are no longer allowed the freedom to think or make choices for ourselves. "

Bob wrote on Aug 28, 2008 9:17 PM:

" Do we still live in a place called the home of the free? If so, let the people decide, not the council. Does the council rule or does the majority rule? We do live in the U.S. and what does it stand for, not individualism, Very pathetic if this goes through. "

BND wrote on Aug 28, 2008 8:31 PM:

" Let due process be done, if your afraid of the outcome, get out and let the tribe do the voting. Let them decide, its treir decision, not the tribal council. Who do they think they are, George Bush. "

innocent bystander wrote on Aug 28, 2008 6:48 PM:

" As the old saying goes, "what goes around, comes around". "

Bobby C. wrote on Aug 28, 2008 12:38 PM:

" How is it possibly legal to vote out your own opponent in an election,this paper is clearly an attempt to keep the current council in power by them running unapposed.Of course their are rules to follow but changing those rules after the fact and seeing who their opponents are and making a rule and voting your opponent out is clearly ileagal. "

The comments above are from readers. In no way do they represent the views of the Rhinelander Daily News.