8 Okla. Trib. 109, 2003 WL 24313610 (Cheyenne-Arapaho)
Edward P. WILSON, Plaintiff/Appellant,
v.
The 33rd BUSINESS COMMITTEE of the Cheyenne–Arapaho Tribes of Oklahoma, and its membership, in their official capacities, Bill Blind, Roy Dean Bullcoming, Vera Franklin, James Pedro, Vinita Sankey, Robert Tabor, and Eddie Whiteskunk; and Bill Blind, Diane Hawk, Vinita Sankey, Robert Tabor, and Eddie Whiteskunk in their individual capacities; and the Election Board of the Cheyenne–Arapaho Tribes of Oklahoma, and its membership, in their official capacities, Marcianna Jacobs, Sam Hart, Fred Blackbear, George Rishel, O.T. Sankey, Douglas Campbell, Gaynell Williamson, and Brenda Byrd, Defendants/Appellees.
No. CNA–SC–02–02.
Supreme Court of the Cheyenne–Arapaho Tribes.
March 18, 2003.
Rehearing denied May 7, 2003.
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.3.1. Powers of Elected Legislative or Legislative/Executive Branch
1.3.1.1. Legislative Meetings
3. Interpretation of Tribal Constitutions
Under CHEY–ARAP. CONST. art. XIV, § 1; id. art. XVI, § 2; id. art. IX, § 1; and id. art. IV, § 4, the Chairman of the Cheyenne–Arapaho Business Committee has eight and only eight functions: (1) a nondiscretionary duty to preside over all Business Committee meetings; (2) the power to perform “all the duties of a chairman;” (3) the power to exercise any authority delegated to him or her by the Business Committee; (4) the power to vote in Business Committee meetings where a tie vote would otherwise exist, and on removal matters without limitation; (5) the power to preside over Tribal Council meetings where the Council has not selected another presiding officer; (6) a discretionary power to call special Business Committee meetings within his or her discretion; (7) a nondiscretionary duty to convene special Business Committee meetings that are required by CHEY.-ARAP. CONST. art. XVI, § 2 and art. IX, § 1; and (8) a nondiscretionary duty to certify duly-adopted Business Committee ordinances or resolutions and, if he or she has presided over the relevant Tribal Council meeting, to certify duly-adopted ordinances or resolutions of the Council.
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.3.1. Powers of Elected Legislative or Legislative/Executive Branch
1.3.1.1. Legislative Meetings
3. Interpretation of Tribal Constitutions
Chairman of the Cheyenne–Arapaho Business Committee has no power to prevent the Business Committee from having constitutionally-mandated meeting by refusing to call, convene, attend, or preside over such meetings.
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.3.1. Powers of Elected Legislative or Legislative/Executive Branch
1.3.1.1. Legislative Meetings
3. Interpretation of Tribal Constitutions
Under CHEY.-ARAP. CONST. art. XIV, § 1, and except with respect to removal petitions brought under id. art. IX, § 1, Chairman of the Cheyenne–Arapaho Business Committee may vote in Business Committee meetings only where tie vote would otherwise result.
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.2.2. Powers of Other Tribal Officers
1.3.1.1. Legislative Meetings
Where the Chairman of the Cheyenne–Arapaho Business Committee has failed to perform the non-discretionary duty to call, convene, attend, and preside over constitutionally-required Business Committee meetings, other Business Committee members have a non-discretionary duty to convene such meetings themselves, with such meetings being presided over by the highest-ranking Business Committee officer present.
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.2.2. Powers of Other Tribal Officers
1.2.5. Hierarchy of Tribal Officers
1.3.1.1. Legislative Meetings
For purposes of presiding over meetings of the Cheyenne–Arapaho Business Committee in the absence of the Chairman, the hierarchy of tribal officers, in descending order, is (1) Vice–Chairman; (2) Secretary; and (3) Treasurer.
1.1.2. Tribal Court Jurisdiction (tribal law)
1.1.3. Internal Distribution of Tribal Judicial Powers
1.1.10. Standing
1.1.30.1. Temporary Relief
1.1.30.3. Permanent Injunctions
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.3.1.1. Legislative Meetings
Where the Chairman of the Cheyenne–Arapaho Business Committee has failed to fulfill the non-discretionary duty of calling, convening, attending, and presiding over constitutionally-required meetings of the Business Committee, or in the event that a quorum cannot be obtained for any such meeting for any other reason, any Cheyenne–Arapaho citizen shall have standing to bring an action before the tribal District Court to enforce the constitutionally-required-meeting provisions of the Cheyenne–Arapaho Constitution and this Order.
1.1.2. Tribal Court Jurisdiction (tribal law)
1.1.3. Internal Distribution of Tribal Judicial Powers
1.1.30.1. Temporary Relief
1.1.30.3. Permanent Injunctions
1.3.1.1. Legislative Meetings
Where an action to enforce the “constitutionally-required-meetings” provisions of the Cheyenne–Arapaho Constitution has been brought by any tribal citizen, the District Court of Cheyenne–Arapaho Tribes shall enjoy, where a delict has been found on the part of any Business Committee officer and/or member, the normal, broad, inherent remedial powers of courts of equity in enforcing those constitutional provisions.
1.1.2. Tribal Court Jurisdiction (tribal law)
1.1.3. Internal Distribution of Tribal Judicial Powers
1.1.30.1. Temporary Relief
1.1.30.3. Permanent Injunctions
1.3.1.1. Legislative Meetings
In enforcing the “constitutionally-required-meetings” provisions of the Cheyenne–Arapaho Constitution, the District Court of Cheyenne–Arapaho Tribes’ remedial powers include, but are not limited to, actually convening a Business Committee meeting itself, with the Business Committee officers’ and/or members’ attendance compelled by the Court’s contempt powers, where other reasonably-available options have proved to be unavailing.
1.3.1.1. Legislative Meetings
2.1.1. Rights Pursuant to Tribal Constitutions
2.2.9. ICRA: Due Process
3. Interpretation of Tribal Constitutions
5.3. Removal of Tribal Officers
Failure of the Business Committee of the Cheyenne–Arapaho Tribes to conduct an initial special meeting called pursuant to CHEY.-ARAP. CONST. art. IX, § 1 to consider a properly-filed petition brought under that provision to remove a sitting Business Committee member does not abate and/or terminate the pending recall petition, and that petition may, if appropriate notice and other constitutional requirements are satisfied, be considered at a subsequent Business Committee meeting.
2.1.1. Rights Pursuant to Tribal Constitutions
2.2.9. ICRA: Due Process
3. Interpretation of Tribal Constitutions
5.3. Removal of Tribal Officers
Because, for purposes of procedural due process, Cheyenne–Arapaho law creates a “property” interest in retaining a Business Committee office lawfully obtained, a Business Committee member is entitled to some kind of hearing in the Business Committee before he or she is removed from office under CHEY.-ARAP. CONST. art. IX, § 1.
1.1.18. Exhaustion of Administrative Remedies
1.1.26.6. Preservation of Issues for Appeal
1.1.30. Remedies
1.3.1.1. Legislative Meetings
2.1.1. Rights Pursuant to Tribal Constitutions
2.2.9. ICRA: Due Process
3. Interpretation of Tribal Constitutions
5.3. Removal of Tribal Officers
Where a Cheyenne–Arapaho Business Committee member subject to a pending removal petition has fifteen days’ notice of (and attends) a special removal meeting of the Business Committee that fails to lawfully convene, and the tribal District Court orders a Committee meeting to convene to consider the petition two days later, and the member in question decides not to attend the subsequent meeting despite having notice thereof, a removal decision made at the subsequent meeting does not violate the “fifteen-days’ notice” requirement of CHEY.-ARAP. CONST. art. IX, § 1, or the due-process requirements of id. art. III, § 1 or 25 U.S.C. § 1302(8).
1.1.2. Tribal Court Jurisdiction (tribal law)
1.1.25.2. Burden of Proof
1.1.26.8.2. Content of Briefs
22. Evidence
24. Tribal Customs
For Cheyenne–Arapaho courts to rely on tribal custom in an adjudication, such custom must be documented and its perimeters established.
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.2.2. Powers of Other Tribal Officers
1.3.1.1. Legislative Meetings
24. Tribal Customs
Absent evidence of any binding tribal custom to the contrary, the presiding officer at a meeting of the Cheyenne–Arapaho Business Committee (whether or not the Chairman of the Business Committee) may “second” a motion.
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.2.2. Powers of Other Tribal Officers
1.2.5. Hierarchy of Tribal Officers
1.3.1.1. Legislative Meetings
3. Interpretation of Tribal Constitutions
General inability of the Chairman of the Cheyenne–Arapaho Business Committee to vote except where a tie vote would otherwise result, established by CHEY.-ARAP. CONST. art. XIV, § 1, is a personal disability that follows the occupant of the Chairman’s office, and does not attach to any other Business Committee officer or member who at any point happens to be validly chairing a Business Committee meeting.
1.2.1. Powers of Tribal Chief, Principal Chief, or Governor
1.3.1. Powers of Elected Legislative or Legislative/Executive Branch
1.3.1.1. Legislative Meetings
3. Interpretation of Tribal Constitutions
5.3. Removal of Tribal Officers
While CHEY.-ARAP. CONST. art. XIV, § 1 generally prohibits the Chairman of the Cheyenne–Arapaho Business Committee from voting unless a tie vote would otherwise result, id. art. IX, § 1 makes an exception to that general rule and authorizes the Chairman, along with other Business Committee members, to vote on the removal of fellow Business Committee members.
1.1.18. Exhaustion of Administrative Remedies
1.1.26.6. Preservation of Issues for Appeal
2.1.1. Rights Pursuant to Tribal Constitutions
2.2.9. ICRA: Due Process
3. Interpretation of Tribal Constitutions
5.3. Removal of Tribal Officers
While the “misconduct or neglect of duty” clause of CHEY.-ARAP. CONST. art. IX, § 1 establishes substantive as well as procedural preconditions to the removal of a validly seated Business Committee member, and assuming arguendo that those substantive limitations are justiciable, a member subject to a removal petition before that Committee waives any objection that he or she engaged in no “misconduct or neglect of duty,” as well as any related due-process objections, by failing to appear and contest the charges at a valid special removal meeting of which he or she had notice.
Jim Merz appeared on behalf of Appellant.
John Fredericks III appeared on behalf of Appellees.
Justice ARROW delivered the Opinion and Order of the Court, in which Chief Justice RIVAS and Justice BLACK join.
I.
*1 Prior to January 8, 2002, Appellant Wilson was the validly-elected representative of Cheyenne District 3 to the Business Committee of the Cheyenne–Arapaho Tribes. On that date, he was provided notice that a recall petition alleging misconduct had been filed against him, and that a removal hearing was scheduled for January 23, 2002, at 11:00 a.m.
On January 14, 2002, then-Business Committee Chairman James Pedro attempted to rescind the notice letter of January 8. On January 17, an emergency hearing was held before the District Court of the Cheyenne–Arapaho Tribes in Business Committee v. Pedro, No. CNA–CIV–02–08, 7 Okla. Trib. 391[, 2002 WL 32099760] (Chey.-Arap. D.Ct.2002), in which the Court ordered then-Chairman Pedro to proceed with the scheduled January 23 meeting. On January 23, at 9:00 a.m., then-Chairman Pedro submitted a letter of resignation as Chairman to himself, despite Article VIII, Section 3 of the Cheyenne–Arapaho Constitution, which provides that “[t]he term of office for each committeeman elected after the first election shall be for a period of four (4) years, or until his successor is duly elected and installed in office.” Id. (emphasis added).1 Six members of the Business Committee did, however, meet at 11:00 a.m. on January 23, 2002 (including Appellant), but no meeting was convened. Later on the afternoon of the 23rd, the District Court sua sponte ordered the convening a meeting of the Business Committee at 3:00 p.m. on January 25. See Pedro, 7 Okla. Trib. at 394.
At the appointed time on January 25, a quorum was assembled and a Business Committee meeting was convened, with Vice–Chairman Bill Blind (according to one rendition) apparently refusing to formally chair the meeting even though then-Chairman Pedro had again ignored the District Court’s Order by failing to appear.2 Appellant did not attend, though he had notice of the meeting.3 The petition to remove Appellant from his Business Committee position was discussed, and a removal motion was adopted by a vote of five to one. Appellant was thereupon removed from his C–3 Business Committee seat.
Appellant unsuccessfully sought relief against Appellees in the District Court on various grounds in a multicount complaint, then timely perfected his appeal to this Court.
Jim Merz appeared on behalf of Plaintiff/Appellant herein and in the District Court proceedings below. Charles H. Tripp appeared on behalf of Defendants/Appellees below.
II.
The Cheyenne–Arapaho Constitution establishes two procedures for removal of members of the tribal Business Committee. First, any member of the Business Committee may charge another member, in writing, with misconduct or neglect of duty. The constitutional provision applicable in such an eventuality provides, in whole, as follows:
Any member of the business committee charged, in writing, with misconduct or neglect of duty by a fellow committeeman may be removed from the business committee or from an office of the business committee, provided at least five (5) of the members vote in favor of removal. A special meeting of the committee shall be called to consider any removal action; and the accused shall be provided with a minimum of fifteen (15) days notice of said hearing and be provided the opportunity to attend and testify in his own behalf. The decision of the committee shall be final.
*2 CHEY.-ARAP. CONST. art. IX, § 1 (emphasis added).
Tribal constitutional law also permits one-third of the registered voters of a district to petition for the recall of the Business Committee member from that district. Id. art. IX, § 2. Only the former removal provision is relevant herein.
III.
Appellant essentially advances six grounds for reversal. First, he proffers a broad-based attack on the power of the District Court to have ordered the convening of any Business Committee meeting.
Second, he alleges that the failure of the Business Committee to convene on January 23, 2002, at 11:00 a.m. (the date and time stated in the original notice presented to Appellant on January 8) terminated the removal proceedings ipso facto,triggering a new fifteen-day-notice period in the event the Committee wished to again pursue Appellant’s removal. Failure to provide such notice, he argues, violated the due-process provision of the federal Indian Civil Rights Act of 1968 [ICRA], see 25 U.S.C. § 1302(8), and the tribal Constitution, see CHEY.-ARAP. CONST. art. III, § 1 (incorporating Title II of ICRA “[t]o the extent applicable”).4
Third, Appellant urges (apparently in the alternative) that because the motion to remove him at the January 25 meeting was seconded by Vice–Chairman Blind, the motion was invalid because “a second to a motion by the chairman is in violation of the traditional customs of the Tribe.” Appellant’s Opening Br. at 4 (emphasis added).
Fourth, Appellant invokes Article XIV, Section 1 of the tribal Constitution, which provides, in whole, as follows:
The chairman of the business committee shall preside over all meetings of the committee, shall perform all the duties of a chairman, and exercise any authority delegated to him by the business committee. He shall have the privilege of voting in case of a tie. He shall further preside at all meetings of the tribal council, unless a different presiding officer is selected by the tribal council at the outset or at any time during the course of the meeting.
CHEY.-ARAP. CONST. art. XIV, § 1 (emphasis added). For purposes of this argument (again, apparently proffered in the alternative), Appellant characterizes Vice–Chairman Blind as “the acting Chairman,” Appellant’s Opening Br. at 5, and maintains that as such he should not have been able to vote under Article XIV, Section 1. Thus, he reasons, the five votes that are established as the sine qua non for removal by Article IX, Section 1 were not present, since the five votes could only be obtained with Vice–Chairman Blind’s invalid (on Appellant’s theory that he was the “acting Chairman”) vote.
Fifth, apparently again in the alternative, Appellant returns to the premise that the Vice–Chairman was not the “acting Chairman” of the meeting, and urges that “in the absence of the Chairman the Vice–Chairman is the only person that can chair a meeting of the Business Committee.” Appellant’s Opening Br. at 7. To further clarify, he specifies, “all meetings of the Business Committee must be conducted by either the Chairman or the Vice–Chairman acting as the Chairman,” and concludes that “[i]f the meeting of the Business Committee is conducted without a Chairperson, the meeting is a nullity.” Id.5 It would be tautological to observe that in Appellant’s view, no business (including Appellant’s removal from office) could be validly conducted at a meeting that is a nullity.
*3 Sixth, Appellant urges:
Where a member of the Business Committee is charged with misconduct, due process requires the Business Committee members to assume the burden of proof, and at a minimum, due process requires a prima facie showing of misconduct. In this instance, the Business Committee violated the due process rights of the accused by failing to do anything other than take a vote.
Notice of Appeal at 2.
We will address each of Appellant’s six contentions in turn.
IV.
A.
As noted above, Appellant first argues that the District Court lacked power to have ordered the Chairman to call, convene, attend, and preside over the January 23 Business Committee meeting, and to have ordered the attendance at that meeting of the other Business Committee members. Appellant also challenges the District Court’s power to have ordered the convening of the meeting of January 25, and/or the District Court’s decision to actually preside at that meeting (if that is in fact the proper characterization of the January 25 events).
Business Committee members are paid in large measure for attending Business Committee meetings and conducting important tribal business therein. See generallyCHEY.-ARAP. CONST. art. IV, § 5 (tying compensation of Business Committee members in substantial measure to meeting attendance). Tribal welfare as a general matter, the best interests of individual tribal members, and tribal constitutional law all demand that Business Committee meetings be held regularly, see, e.g.,CHEY.-ARAP. CONST. art. XVI, § 1 (“Regular monthly meetings of the business committee shall be held on the first Saturday of each month at the tribal headquarters ....”), and that tribal business be transacted professionally and efficaciously at such meetings, see, e.g., id.art. IV, § 4 (“All action taken by the ... business committee shall be pursuant to duly adopted ordinances or resolutions, and shall be certified by the presiding officer.”). Nevertheless, this Court takes judicial notice of the fact that more than one Chairman has refused to convene regular (or otherwise-constitutionally-required) Business Committee meetings over the years,6 apparently on the assumption that the Chairman has the power to prevent the Business Committee from meeting—apparently forever (or at least until the Chairman’s term expires)—by simply refusing to call, convene, attend, or preside over such meetings. That assumption is false.
Article XIV, Section 1 of the Cheyenne–Arapaho Constitution is quoted in its entirety above. See supra, slip op. at 4[,8 Okla. Trib. at 124],Article XIV, Section 1 assigns the following five functions (i.e., non-discretionary duties or discretionary powers) to the Chairman of the Cheyenne–Arapaho Tribes:
1. “[P]resid[ing] over all meetings of the [Business C]ommittee;”
2. “[P]erform[ing] all the duties of a chairman;
3. “[E]xercis[ing] any authority delegated to him by the [Business C]ommittee;”
*4 4. “[V]oting in case of a tie [Business Committee vote];” and
5. “[P]residing at all meetings of the tribal council, unless a different presiding officer is selected by the tribal council....”
CHEY.-ARAP. CONST. art XIV, § 1. In addition, Article XVI, Section 2 assigns the Chairman a sixth function (in this instance, a power): it authorizes the Chairman to call special Business Committee meetings within his own discretion. A seventh function (in this instance, a non-discretionary duty) is established by Article XVI, Section 2 and Article IX, Section 1, which require the Chairman to convene special Business Committee meetings under the circumstances described in those provisions. And Article IV, Section 4 establishes an eighth function (a contingent duty), by requiring the “presiding officer” of the Business Committee or Tribal Council (who will often but not necessarily be the Chairman) to certify duty-adopted ordinances or resolutions. No other functions are assigned to the Chairman of the Cheyenne–Arapaho Tribes by the Cheyenne–Arapaho Constitution, and as noted above, not all of the eight above-described functions are discretionary powers. For ease of identification, the functions described above will be referred to as the Chairman’s “eight functions.”
It is obvious to this Court (and Appellant’s briefs do not dispute) that were the Chairman of the Cheyenne–Arapaho Tribes to enjoy the power to prevent the Cheyenne–Arapaho Business Committee from meeting indefinitely, that power could only be derived from the first of the eight functions described above. It cannot be seriously contended that chairmen as a general matter have the power to prevent the entities they chair from meeting, so the “second function” is manifestly inapplicable. The Business Committee has not attempted to delegate to the Chairman the power to prevent the Business Committee from meeting (and any such attempt would undoubtedly be unconstitutional under Article XVI, Section 1), so the “third function” provides the Chairman with no such power. Because voting is not in issue for present purposes, the “fourth function” is also irrelevant, as is the “fifth function,” since Business Committee meetings, not Tribal Council meetings, are in issue. The “sixth function” (the Chairman’s discretionary power to call special meetings) is not applicable herein, since the Chairman’s power to call a special meeting in no way implies a power to refuse to call a constitutionally-mandated one. The “seventh function” (calling constitutionally-mandated meetings) is relevant, but not to Appellant’s (or the Chairman’s) advantage: Because the function is a nondiscretionary duty, see infra, slip op. at 8–9[,8 Okla. Trib. at 129–30], it cannot be the source of power to refuse to convene or attend such meetings. And the “eighth function” (certification by the “presiding officer” of duly-adopted ordinances or resolutions) by its own terms does not speak to the calling or refusing to call of any meeting whatsoever. So the power of a Chairman to prevent the Business Committee from meeting stems either from the “first function” or it does not exist at all. As we shall see, it does not exist at all.
*5 As defined by Article XIV, Section 1 of the Cheyenne–Arapaho Constitution, the Chairman’s “first function”—presiding over Business Committee meetings—is a nondiscretionary duty, not a discretionary power.Article XIV, Section 1 states that “[t]he chairman of the business committee shall preside over all meetings of the committee,” id. (emphasis added), and the Constitution elsewhere provides:
As used in this constitution and by-laws, the word shall is deemed to mean imperative or mandatory and to exclude the exercise of discretion. The word may is deemed to mean permission or liberty and to include the exercise of discretion.
CHEY.-ARAP. CONST. art. I, § 9 (second emphasis added). Construed in pari materia with the imperative created by the Constitution’s “regular monthly meetings” provision, see id.art. XVI, § 1 (“Regular monthly meetings of the business committee shall be held ....“ (emphasis added)), and the other “mandatory meeting” provisions of the Cheyenne–Arapaho Constitution, see id.art XVI, § 2 (“Special meetings of the business committee shall be called by [the Chairman] upon a written request of five ... of its members or upon receipt of a petition signed by two hundred and fifty ... members of the tribal council” (emphasis added)); id. art. IX, § 1 (“A special meeting of the [business] committee shall be called to consider any removal action .... “ (emphasis added)), one conclusion is perfectly clear: Cheyenne–Arapaho constitutional law leaves the Chairman with no discretion whatsoever to refuse to call, convene, attend, and preside over regular monthly meetings, and such special meetings as are required by Articles IX and XVI of the Cheyenne–Arapaho Constitution.
The residual question then becomes simply a question of judicial remedy for situations in which the Chairman has breached his or her nondiscretionary duty. Unlike the Constitution of the United States of America, the separation-of-powers structure of the Cheyenne–Arapaho Constitution establishes a “legislative-executive branch”—the Business Committee—that both exercises legislative power and (through, among other things, the selection of the Business Manager) indirectly supervises the executive operations of the Tribes. The Business Committee—composed of only eight members, CHEY.-ARAP. CONST. art. I, § 3—is an enormously powerful branch of the Cheyenne–Arapaho government. The judicial branch, which is constitutionally necessary to insure the enforcement of tribal members’ rights, see, e.g.,CHEY.-ARAP. CONST. art. III, enforce tribal law generally, and adjudicate disputes (such as the present one) that arise under the tribal Constitution, is by comparison relatively weak. The judicial branch enjoys no power to run the Cheyenne–Arapaho government even if it wanted to—which it does not. That is the provence of the Cheyenne–Arapaho Business Committee.
*6 But to effectively operate the Cheyenne–Arapaho government for the benefit of the Cheyenne and Arapaho people that comprise it, the Cheyenne–Arapaho Business Committee must meet. To be sure, the Cheyenne–Arapaho Constitution, which creates an even number of seats on the Business Committee (four representatives from Cheyenne districts, and four representatives from Arapaho districts, see id .art. VI, § 1) for historical and political reasons that are well-known to every tribal member, creates potential disincentives to meet when the Business Committee is politically divided four-to-four (as now appears to be the case).7 With the tribal Constitution (quite logically) mandating that five Business Committee members be present to constitute a quorum, see id.art. I, § 5(a), the possibilities for stalemate, gridlock, and the ultimate paralysis of tribal government are patent when the Business Committee is politically in numerical equipoise.
Nevertheless, the genius of the Cheyenne–Arapaho Constitution is that there are only seven voting members of the tribal Business Committee. SeeCHEY.-ARAP. CONST. art. XIV, § 1 (limiting the voting power of the Chairman to “voting in case of a tie”). This does not render the Chairman of the Cheyenne–Arapaho Tribes a powerless figurehead; in light of the “third function” described above (exercising “any authority delegated to him by the [Business C]ommittee,” see supra, slip op. at 7[,8 Okla. Trib. at 127]), quite the contrary. But it does encourage compromise among the members of the Business Committee—and the Chairman—if tribal government is to function effectively for the benefit of tribal members.
The political dynamics of the Cheyenne–Arapaho constitutional regime are easy to understand. A Chairman who is willing to compromise so as to secure the confidence (in addition to the raw initial votes necessary to obtain the position of Chairman) of a majority of Business Committee members may expect to enjoy delegated power from the members of the Business Committee as a whole. That is probably as it should be, since the Business Committee (at least regularly) meets only monthly, and cannot be expected to intensely scrutinize every day-to-day operation of the Tribes. As the Chairman secures the ever-greater confidence of a working majority of Business Committee members, his or her delegated (“third function”) power will likely grow. But a Chairman who will countenance little compromise with Business Committee members who may disagree with him or her on particular issues may well expect to receive less delegated, “third function” authority—and consequently will occupy a weaker office during his or her term. That, too, is probably as it should be, since any government works best when reasonable compromise and not unwavering brinksmanship is the order of the day.
Needless to say, the above observations about compromise apply to every Business Committee member—not just to whomever may be the Chairman at any particular moment in the long histories of the Cheyenne and Arapaho Tribes. Each member of the Business Committee—not just the Chairman—is required to take the oath of office, which requires, inter alia, that member to swear to “protect the best interests of the Cheyenne–Arapaho Tribes” “to the best of [his or her] ability[ ].” CHEY.-ARAP. CONST. art. XV. The members of the Cheyenne–Arapaho Tribes have the right to expect their elected leaders to live up to that oath.
*7 Nevertheless, there may be times when passions run so high as to obfuscate the duties described above; no human being, including the Chairman, the Business Committee members, or the members of this Court, has yet achieved perfection. In such circumstances, the Cheyenne–Arapaho judiciary must stand ready to do what it can—and what it is constitutionally and legally authorized to do—to help facilitate what the framers of the Cheyenne–Arapaho Constitution so obviously hoped would be the normal workings of tribal government. It must do so, in part, for a reason that is pragmatic as well as legal—because no other legal institution can do so.
On the basis of the premise that the Cheyenne–Arapaho Business Committee must run the Cheyenne–Arapaho Tribes (because no other institution can do so ), and the inextricably intertwined premise that to run the Cheyenne–Arapaho government, the Business Committee must meet, there can be no conclusions other than the ones we announce today. For purposes of resolving the Business–Committee–meeting issue, we hold:
1. That each member of the Cheyenne–Arapaho Business Committee has the NON–DISCRETIONARY DUTY to assemble “on the first Saturday of each month at the tribal headquarters, unless it falls on a legal holiday; and in such event, [the meeting] will be held on the following Saturday.” CHEY.-ARAP. CONST. art. XVI, § 1;
2. That the Chairman of the Cheyenne–Arapaho Tribes has the NON–DISCRETIONARY DUTY to call, convene, attend, and preside over regular monthly meetings of the Business Committee, and such special meetings as are required by Article IX, Section 1, and Article XVI, Section 2 of the Cheyenne–Arapaho Constitution;
3. That if the Chairman of the Cheyenne–Arapaho Tribes fails to perform the NON–DISCRETIONARY DUTY described in the preceding numbered item, the other members of the Cheyenne–Arapaho Business Committee shall have the NON–DISCRETIONARY DUTY to convene the constitutionally-required meeting themselves. In such an event, the meeting shall be chaired by the highest-ranking officer present, in the following order: Vice–Chairman, Secretary, Treasurer;8 and
4. That because every member of the Cheyenne–Arapaho Tribes is injured by the failure of the tribal Business Committee to meet regularly as required by the tribal Constitution, in the event that the Chairman of the Cheyenne–Arapaho Tribes fails to perform the NON–DISCRETIONARY DUTY described above, or in the event that a quorum cannot be mustered for a regular or constitutionally-required special meeting of the Business Committee for any other reason, any Cheyenne–Arapaho citizen (including but not limited to any Business Committee member) shall have standing to bring an action before the District Court of the Cheyenne–Arapaho Tribes to enforce the provisions of the Cheyenne–Arapaho Constitution and this Order. In securing the attendance of Business Committee members at regular and constitutionally-required special meetings of the Business Committee, the District Court shall enjoy the normal, broad, inherent remedial power of courts of equity in enforcing the above-discussed provisions of the Cheyenne–Arapaho Constitution and this Order. This power shall include but not be limited to the power to actually convene a Business Committee meeting—with attendance compelled by the Court’s contempt power—where other remedial options reasonably available to it have proved to be unavailing.
*8 Pursuant to the above reasoning and constitutional authority, it follows that the District Court had the power to: (1) order the Chairman of the Cheyenne–Arapaho Tribes to call, convene, attend, and preside over the January 23rd meeting, which was required by Article IX, Section 1 of the Cheyenne–Arapaho Constitution; (2) order the other members of the Cheyenne–Arapaho Business Committee to present themselves at the January 23 meeting; (3) do the same with respect to the January 25 meeting when the January 23 meeting failed to materialize; and (4) actually convene and preside over the January 25 meeting (if he in fact did so) to secure the transaction of constitutionally-required tribal business at that meeting.
For the above reasons, Appellant’s broad-based challenge to the District Court’s actions in ordering that the meeting take place (and/or actually convening the meeting himself) must be rejected. The consequences of that conclusion with respect to Appellant’s other five arguments will be addressed in evaluating each of those arguments individually below.
B.Appellant’s second contention is that the failure of the Business Committee to convene at 11:00 a.m. on January 23, 2002 (as originally scheduled, and as originally ordered by the District Court) terminated the removal action against him ipso facto, thereby triggering a new fifteen-day notice period under Article IX, Section 1 of the tribal Constitution in the event that the Business Committee wished to further pursue Appellant’s removal from office. Failure to provide him with an additional fifteen-days notice after the January 23 non-meeting, he urges, violated his due-process rights under Article III, Section 1 of the Cheyenne–Arapaho Constitution and 25 U.S.C. § 1302(8).
At the outset, we observe that for the reasons described in Part IV–A of this Opinion above, the January 25, 2002 meeting is functionally indistinguishable from the meeting that was ordered to have occurred on January 23; because the inherent remedial powers of a court of equity are quite broad, the District Court was legally entitled to promulgate the Order convening the Business Committee on January 25 when it discovered on the afternoon of the 23rd that the meeting it had ordered for 11:00 that morning had not taken place. A court does not lose jurisdiction over a matter when one of its orders is disobeyed, and to hold that the removal petition abated upon disobedience to the District Court’s Order might provide a gratuitous dis incentive for some Business Committee members to comply with judicial orders to convene. This we will not do. In consequence, we hold that the de facto postponement of the January 23 meeting for two days, which was necessary to secure compliance with a valid judicial Order, did not ipso facto terminate the removal petition.
But even if the petition did not automatically abate, the “procedural” component of due process (which is manifestly the variety invoked by Appellant) may be violated if the procedures employed in depriving him of his office were inappropriate to provide Appellant with an adequate hearing on his removal. Clearly, Appellant was entitled to some kind of a hearing, since tribal constitutional law establishes a property interest in Appellant to his office. Cf.CHEY.-ARAP. CONST. art. IX, § 1 (“A special meeting of the committee shall be called to consider any removal action; and the accused shall be provided with a minimum of fifteen ... days notice of said hearing and be provided the opportunity to attend and testify in his own behalf.”). The question remains whether the timing of the January 25 hearing was inappropriate to the occasion under tribal due-process protections and Article IX, Section 1. We hold that it was not.
*9 First, Appellant does not dispute that he received notice of the January 23 meeting; attended that “non-meeting;” was aware that no meeting had convened on that date; received notice that the District Court had ordered a July 25 meeting; and elected not to attend that meeting for reasons of his own, see supra, slip op. at 2 n. 3[,8 Okla. Trib. at 121–22 n. 3]. Because the District Court had the lawful power to convene the January 25 Business Committee meeting; because we do not wish to create perverse incentives for potential litigants to “game” the process (any lawful process) by strategically absenting themselves from meetings where important tribal business is to be conducted; because the hearing required by Article IX, Section 1 actually occurred as ordered; and because Appellant had actual notice of that meeting, we hold that the reasons for Appellant’s decision to refrain from attending the January 25 meeting are irrelevant, and that no due process violation occurred with respect to the necessary-under-the-circumstances postponement of the January 23 meeting until January 25.
Second, the “notice” provision of Article IX, Section 1 requires “a minimum of fifteen ... days notice” of the hearing, id. (emphasis added), and the time period between the date of initial notice (January 8) and the date of the final hearing (January 25) was in excess of fifteen days. Given the fact that Appellant had actual notice of the entire course of the proceedings, we hold that the timing of the final hearing satisfied due process and Article IX requirements.
Third, both procedural due process (generally) and Article IX, Section 1 (specifically) demand that a party having a jeopardized property interest in his or her Business Committee office have an opportunity to be heard prior to its deprivation. Apparently for strategic reasons, Appellant elected not to avail himself of that opportunity. See supra, slip op. at 2 n. 3[,8 Okla. Trib. at 121–22 n. 3]. With the opportunity to be heard being present in the actual proceedings that took place, and with Appellant having had actual notice of those proceedings, we hold that the fact that Appellant was not actually heard at the January 25 meeting was a problem entirely of his own making, and that his absence from the January 25 meeting effectively waived any procedural-due-process rights that he had left as of that date. Appellant’s procedural-due-process-based argument is, in consequence, unavailing.
C.Appellant’s third contention is based on the premise that Vice–Chairman Blind was the de facto chairman of the January 25 meeting, and challenges Vice–Chairman Blind’s second of the motion to remove Appellant from office. “[A] second to a motion by the chairman is in violation of the traditional customs of the Tribe,” he urges. Appellant’s Opening Br. at 4. But in Hoffman v. Election Board, No. CNA–SC–97–04, 7 Okla. Trib. 126[, 2000 WL 33976522] (Cheyenne–Arapaho 2000), we held that in order for Cheyenne–Arapaho courts to rely on tribal custom in a potentially outcome-determinative manner,
*10 there needs to be evidence of such a custom and tradition—and its perimeters—in the record. There needs to be documentation. There may need to be testimony, subject to the normal rules of cross-examination, that establishes the custom and its perimeters....
The requirements for the establishment of tribal custom described in the preceding paragraph are necessary for an easily-understandable reason: the principle of judicial legitimacy. Without them, the door would lie open for a District Court Judge (or a majority of the Justices of this Court) to impose their view of proper policy on the members of the Tribes, and cloak those conclusions in the guise of a conclusion about ... “custom” unsupported by evidence....
Hoffman, 7 Okla. Trib. at 134–35 (emphasis in original).
Appellant proffers no evidence to this Court (and proffered none to the District Court below) with respect to the existence of the custom he asserts. Equally importantly, he proffers none with respect to its perimeters—in this case, whether such a second would ipso facto void the subsequently-adopted motion (which it would have to in order for Appellant to prevail). Appellant cites no caselaw from Cheyenne–Arapaho courts attesting to the existence of such a custom. We have no basis on which we can take judicial notice of the existence of such a custom. Unwilling as we are to simply “make it up as we go along,” we must reject Appellant’s third contention for failure to document the asserted custom on which he relies.
D.Fourth, Appellant relies on Article XIV, Section 1 of the tribal Constitution, which provides in relevant part that “[t]he chairman of the business committee shall ... have the privilege of voting in case of a tie.” Reasoning (in this respect, correctly) that under the well-known maxim inclusio unius est exclusio alterius [“the inclusion of one thing is the exclusion of others”], and on the basis of tribal constitutional structure, the Chairman of the Business Committee may vote in Business Committee meetings only “in case of a tie,” Appellant contends that Vice–Chairman Blind (who on his theory—at least for purposes of this argument—was the “acting chairman” of the January 25 meeting) should not have been allowed to vote at the meeting. Without Vice–Chairman Blind’s vote to remove him from office, Appellant (again, correctly) points out that there would have been only four votes to remove—less than the five required for his removal by Article IX, Section 1. Appellant’s argument, however, fails for either of two individually-dispositive reasons.
First, the Chairman’s inability to vote in Business Committee meetings (except “in case of a tie”) is a personal disability that follows the incumbent of the Chairman’s office whether or not he or she is present at a particular meeting. SeeCHEY.-ARAP. CONST. art. XIV, § 1 (“The chairman of the business committee shall ... have the privilege of voting in case of a tie.” (emphasis added)). Thus, Vice–Chairman Blind (or for that matter, any other Business Committee member who finds himself or herself presiding over a Business Committee meeting for whatever reason) is unencumbered by the voting restrictions imposed on the Chairman by Article XIV, Section 1.
*11 Second, while Article XIV, Section 1 establishes as a general matter that the Chairman of the Business Committee may not vote in Business Committee meetings unless there would otherwise be a tie, Article IX, Section 1—which applies only to proceedings to remove a Business Committee member—appears to create an exception to the general rule, stating that under the circumstances described earlier in that provision, “a fellow committeeman may be removed ... provided at least five ...of the members vote in favor of removal.” CHEY.-ARAP. CONST. art IX, § 1 (emphasis added). Nothing about Chairman-disqualification from voting is provided by Article IX, Section 1, and its text would appear to authorize any member of the Business Committee—the Chairman included—to cast a vote on the ouster of a fellow Business Committee member.For either of the above-described reasons, Appellant’s fourth theory also fails.
E.In order to construct his fifth argument, Appellant switches back to the premise that Vice–Chairman Blind was not the “acting Chairman” of the January 25 meeting, and urges in the alternative that “in the absence of the Chairman the Vice–Chairman is the only person that can chair a meeting of the Business Committee.” Appellant’s Opening Br. at 7. On the apparent premise that District Judge Lujan (or perhaps someone else) actually presided over the January 25 meeting, Appellant concludes that “[i]f the meeting of the Business Committee is conducted without a [valid] Chairperson, the meeting is a nullity.” Id. Were the January 25 meeting a nullity, of course, then Appellant would be legally entitled to retain his office as of the present date.
In light of this Court’s holdings with respect to judicial power to compel attendance at Business Committee meetings, however, see supra, slip op. at 11–12[,8 Okla. Trib. at 134–35], and its earlier express rejection of the proposition that only the Chairman (or for that matter, only the Chairman or Vice–Chairman) may legally preside over a Business Committee meeting, see id., Appellant’s fifth contention may be disposed of summarily. It is simply based on a false premise.
F.Sixth, Appellant urges:
Where a member of the Business Committee is charged with misconduct, due process requires the Business Committee members to assume the burden of proof, and at a minimum, due process requires a prima facie showing of misconduct. In this instance, the Business Committee violated the due process rights of the accused by failing to do anything other than take a vote.
Notice of Appeal at 2.
In that sixth argument, Appellant addresses a most serious matter. On the one hand, Article IX, Section 1 provides in no uncertain terms that with respect to decisions on the removal vel non of Business Committee members, “[t]he decision of the business committee shall be final.” But on the other hand, Article IX, Section 1 does, as Appellant notes, establish both substantive and procedural preconditions to removal, and it may well be that Business Committee members facing removal actions may be entitled to Article III constitutional protections as well.
*12 Moreover, the cynical may well conjure the temptation of a five-member majority of Business Committee members (facing determined and possibly highly-principled opposition from three dissenters on some issues) to simply eliminate the dissent by charging each of the dissenters with “misconduct or neglect of duty” (in however-general terms) in writing, and removing them from the Business Committee in seriatim five-to-three, then five-to-two, and finally five-to-one votes. It will come as a surprise to no one that no court—Cheyenne-Arapaho or otherwise—could be expected to look kindly on such manipulations.
But fortunately, the potential applications of Article IX, Section 1 and other constitutional provisions to the panoply of factual settings in which such issues might arise in futuro need not be addressed to resolve the instant case. Appellant has not challenged the specificity of the charges with which he was presented on January 8, 2002 (when he was originally given notice of the removal action), and when he was ultimately provided with the opportunity to be heard and defend on the merits on January 25, he essentially defaulted by failing to appear. Having failed to exhaust the remedy of being heard and defending at the hearing, we hold that Appellant is now estopped to challenge what he now essentially characterizes as the absence of a bill of particulars, robust discussion, and the like at the January 25 hearing. His strategic nonappearance essentially waived the important issues he might otherwise have raised in the framework of his sixth contention.
V.
For the reasons described above, the decision of the District Court of the Cheyenne–Arapaho Tribes in Case No. CNA–CIV–02–20 is AFFIRMED. Kent Stonecalf, who prevailed in the special election to replace Appellant as Cheyenne District 3 representative to the Business Committee, is declared to be the rightful occupant of that position.
IT IS SO ORDERED.
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* The syllabus and headnotes comprise no part of the opinion of the Court, and are prepared for the convenience of the reader by the Editor of OKLAHOMA TRIBAL COURT REPORTS solely in that capacity. |
InMosqueda v. Election Bd., No. CNA–SC–96–06, 5 Okla. Trib. 96 [, 1996 WL 1132737] (Cheyenne–Arapaho 1996), relying on Article VIII, Section 3, incumbents sought to hold over in office until their successors were duly qualified and installed in office. In that case, this Court held that “the language of Article VIII, Section 3 italicized above clearly requires temporary continuance in office by the individual who occupied the contested Business Committee seat during the preceding term of office.” Id. at 101 (footnote omitted). Whether Article VIII, Section 3 precludes the resignation of a Business Committee member seeking to avoid (rather than retain ) Business Committee membership—and whether it applies to Business Committee offices as well as membership—are issues we need not address to decide the case at hand for the reasons discussed below. See infra, slip op. at 5–13[, 8 Okla. Trib. at 126–35]. |
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Although there is apparently some dispute on the matter, either Vice–Chairman Blind or District Court Judge Lujan served asde facto Chair of the meeting. Which of the two chaired the meeting (if either) is also irrelevant to the disposition of this case for the reasons discussed below. See infra, slip op. at 17–18[, 8 Okla. Trib. at 140–42]. |
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Appellant represents to this Court that his motivation for not attending the January 25 meeting was “[b]ecause the procedure for removal was in violation of the due process provisions of the Indian Civil Rights Act of 1968... and the [Cheyenne–Arapaho] Constitution,” Appellant’s Opening Br. at 3, but the reasons for his nonattendance are also irrelevant to the disposition of this case for the reasons discussed below. See infra, slip op. at 14–15[, 8 Okla. Trib. at 136–38]. |
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We find that Title II, Section 202 of the Indian Civil Rights Act,25 U.S.C. § 1302, is indeed applicable to the Cheyenne–Arapaho Tribes. Despite the similarities of many of the provisions of 25 U.S.C. § 1302 to the federal Bill of Rights, however, compare id. with U.S. CONST. amends. I–VIII, we do not incorporate federal courts’ interpretations of the federal Bill of Rights (or even 25 U.S.C. § 1302) “jot for jot, bag and baggage” into Cheyenne–Arapaho constitutional law. While such interpretations may have persuasive value to Cheyenne–Arapaho courts, it is ultimately for Cheyenne–Arapaho courts (and ultimately this Court) to construe Article III, Section 1 of the tribal Constitution—and thereby, the precise contours of 25 U.S.C. § 1302 insofar as it provides rights to litigants in Cheyenne–Arapaho courts. |
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Appellant apparently expands this theory to encompass the January 23 gathering of six Business Committee members (in addition to the formally-convened January 25 meeting) in his Notice of Appeal, stating that “the meeting of January 23, 2002 was irregular and a nullity because the vice-chair believed the presiding Judge was the chairman.”Notice of Appeal at 2. |
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6. See, e.g., West v. Franklin, No. CNA–CIV–02–41, 7 Okla. Trib. 465 [, 2002 WL 32099948] (Chey.-Arap. D.Ct.2002) (refusal of current-Chairman Tabor to call regular meetings); Business Committee v. Pedro, No. CNA–CIV–02–08, 7 Okla. Trib. 391[, 2002 WL 32099760] (Chey.-Arap. D.Ct.2002) (refusal of then-Chairman Pedro to call a constitutionally-required meeting). An examination of Cheyenne–Arapaho caselaw also reveals that problems in mustering Business Committee quorums have arisen over the years for reasons other than the refusal of the chairman to call, convene, attend, and preside over such meetings. See, e.g., Pedro v. Blind, No. CNA–CIV–00–81, 7 Okla. Trib. 146[, 2000 WL 33976526] (Chey.-Arap. D.Ct.2000). |
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For the benefit of non-member readers of this Opinion, the Court notes that (thankfully) virtually never have the four-to-four political divisions been drawn on Cheyenne–Business–Committee–members vs. Arapaho–Business–Committee–members lines. |
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Because the Cheyenne–Arapaho Constitution requires that five members of the Business Committee be present to constitute a quorum and transact business, at least one of the four enumerated officers will obviously need to be present for a quorum to exist. |
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