--- Am. Tribal Law ----, 2025 WL 2609253 (Ho-Chunk)
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Ho-Chunk Nation Supreme Court.

HO-CHUNK NATION ELECTION BOARD, Appellant,
v.
Brianna TAHDOOAHNIPPAH, Appellee,
and
Ho-Chunk Nation Legislature, Interested Party.

Case No.: SU 25-04
|
Filed April 2, 2025

Trial Court Case No.: CV 25-03

Hon. David J.W. Klauser, Manąpe Hųk, Associate Justice, Hon. Tricia A. Zunker, Hinųk pįį, Associate Justice, Hon. Todd R. Matha, Wanašip, Chief Justice

DECISION (Reversing Trial Court and Upholding Election Board Non-Certification)

INTRODUCTION

This is an election case. At the time of the October 2024 redistricting election, the appellee, Brianna Tahdooahnippah, was serving her first term as a District 4 legislator. Shortly before the redistricting election, appellee moved from an address in Ramsey County, Minnesota, to an address in Comanche County, Oklahoma where she still resides. She continues to serve as a District 4 legislator and sought candidate certification for reelection to the same seat in January 2025. The appellant, Ho-Chunk Nation Election Board, determined that she does not meet the one-year residency requirement for candidate certification.1 The key issue in this case is whether the appellee meets the residency requirement to run for re-election as a District 4 legislator under the Election Code.2

On March 14, 2025, the appellant filed a timely Notice of Appeal and motion to stay the Trial Court decision. Order (Remanding to Election Bd. & Renaming Hr’g), CV 25-03 (HCN Tr. Ct. Mar. 12, 2025) [hereinafter Final Judgment]; see also HCN R. Civ. P. 80; HCN R. App. P. 7. On March 17, 2025, this Court accepted the appeal, issued a stay, and established briefing deadlines. The appellant filed a brief in support of appeal on March 20, 2025.3 The appellee filed a response brief on March 25, 2025.

FACTUAL BACKGROUND

The appellee represents District 4 in her first term as legislator. The relevant facts surrounding appellee’s residency are undisputed. Appellee’s Resp. Br., SU 25-04, at 10 (Mar. 25, 2025). As of January 17, 2024, she resided in Ramsey County, Minnesota. On August 4, 2024, after her family moved to Oklahoma due to her husband’s employment, she changed her address from Ramsey County, Minnesota to her new address in Comanche County, Oklahoma. At that time, both addresses were located in the geographic boundaries of District 4. On October 18, 2024, the Special Redistricting Election was held, and the Ho-Chunk Nation voters adopted redistricting Scenario 4. Under this scenario, Ramsey County, Minnesota, was redistricted to District 1 and Oklahoma remained in District 4. The appellee submitted her Official Nomination Petition Form on January 17, 2025, seeking re-election to represent District 4. Id. at 4. The appellant denied her certification for failure to meet residency requirements for the District 4 seat and for lack of valid requisite signatures. Election Bd. Mtg. Mins. (Jan. 20, 2025) at 4.

STANDARD OF REVIEW

This Court possesses the constitutional authority “to interpret and apply the ... laws of the Ho-Chunk Nation,” and may render binding “conclusions of law.” HCN Const. art. VII, § 4. When reviewing questions of law, the Court employs a de novo standard of review, meaning that it examines a matter anew. Hope. B. Smith v. Ho-Chunk Nation, SU 03-08, at 5 n.3 (HCN S. Ct. Dec. 8, 2003). The Court generally employs a clearly erroneous standard when reviewing Trial Court findings of fact. Ho-Chunk Nation v. Nicole Christopherson, SU 15-03, at 5-8 (HCN S. Ct. Sept. 10, 2015).

Significantly, the Judiciary does not defer to the legal or factual conclusions of the Election Board.

While the Court has afforded agency deference to several tribal sub-entities, e.g., Enrollment Committee, Gaming Commission, and Insurance Review Commission, it has not deferred to Election Board determinations. See Christopherson, SU 15-03, at 8 (providing overview of tribal administrative model). In regards to the Election Board, the Legislature has clearly instructed that the Board “retain[s] the ability to interpret and apply the Election Code (2 HCC § 6) unless such interpretation or application is found by the Trial Court to be contrary to the Constitution and laws of the Nation.” Election Code § 6.26.

Benjamin A. Krause v. HCN Election Bd., SU 21-03, at 3 n.3 (HCN S. Ct. Mar. 2, 2021); see also Amy Kirby v. Jerry T. Gallagher, SU 18-04, at 4-5 (HCN S. Ct. Oct. 24, 2018) (identifying necessary preconditions for agency deference). The Trial Court’s decision to extend agency deference, in conflict with appellate authority, proves in error and likewise does its corresponding decision to remand for findings of fact. Final J. at 9-12; cf. HCN Const. art. VII, § 6(a) (“The Trial Court shall have the power to make findings of fact ....”); see also Tahdooahnippah, SU 25-03, at 4 (“The trial court ... should have been capable of engaging in a limited fact-finding inquiry ....”).

* * * * *

The appellee has asserted that her claim deserves a particular degree of constitutional scrutiny. In her response, the appellee contended that “Ho-Chunk Nation members enjoy a constitutionally protected Due Process right to run for office.” Appellee’s Resp. Br. at 7 (citing HCN Const. art. X, § 1(a)(8)).4 The appellee additionally cited a federal district court decision for the equivalent proposition. Id. (citing Becton v. Thomas, 48 F. Supp. 2d 747, 757 (W.D. Tenn. 1999)). Yet, the appellee later clarified that she “has never argued that she has a ‘fundamental’ right to run for office ..., merely ... that she has a constitutionally protected right ... that cannot be infringed without a rational justification.” Id. at 9 (citing 48 F. Supp. 2d at 758); see also Verified Compl. at 4-5. HCN Election Bd. v. Tahdooahnippah, SU 25-03 (Feb. 5, 2025).

In this respect, the Court has previously explained “that while voting is a fundamental right ..., being a candidate for office is not a fundamental right.”5 Dallas White Wing v. HCN Election Bd., SU 07-09, at 7 (HCN S. Ct. June 4, 2007); see also Robert Two Bears v. HCN Election Bd., SU 13-02, at 6 (HCN S. Ct. May 20, 2023) (reiterating this understanding); Ona Garvin v. HCN Election Bd., SU 07-07, at 6 (HCN S. Ct. July 23, 2007) (same). The Court acknowledged this distinction since the constitutional text does not secure a member’s ability to run for elective office.6 Supra note 5; see also San Antonio Sch. Dist. v. Rodriguez, 411 U.S. 1, 31, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (describing designation of fundamental status, which involves “recogniz[ing] ... an established constitutional right[ ] and giv[ing] to that right no less protection than the Constitution itself demands” (quoting Shapiro v. Thompson, 394 U.S. 618, 642, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (Stewart, J., concurring))); Price v. Cohen, 715 F.2d 87, 93 (3d Cir. 1983) (“[T]he term fundamental rights ... means those rights which have their source, explicitly or implicitly, in the Constitution.” (citing Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982))).7 Consequently, a decision to pursue Ho-Chunk legislative office entitles a tribal member to no more constitutional protection than any other human endeavor, and characterizing this pursuit as a “constitutionally protected ... right” is grossly misleading. Appellee’s Resp. Br. at 7; cf. Newell-Davis v. Phillips, No. 22-30166, 2023 WL 1880000, at *3 (5th Cir. Feb. 10, 2023) (“Where the alleged violation is not predicated on a ... fundamental right, we apply rational basis review.”), cert. denied, ––– U.S. ––––, 144 S. Ct. 98, 217 L.Ed.2d 25 (2023).

Now, the Court’s omission of “Due Process” from the preceding quoted phrase could likewise warrant a misleading characterization, but for two significant considerations. First, the Court has not - and will not - recognize the concept of substantive due process. Garvin, SU 07-07, at 10; George Lewis v. HCN Election Bd., SU 06-07, at 7, 7 Am. Tribal Law 41 (HCN S. Ct. Mar. 12, 2007); Jacob LoneTree v. Robert Funmaker Jr., SU 00-16, at 7 (HCN S. Ct. Mar. 16, 2001). The Court has instead interpreted the Ho-Chunk due process clause by resort to hocąk tradition and custom.8 See In re K.E.F., SU 97-03, at 6 (HCN S. Ct. Oct. 17, 1997) (entailing basic fairness and an opportunity to be heard). As a result, the appellee’s due process reference must relate to procedural due process, but the appellee nowhere identified a protected liberty or property interest. Supra note 4. Absent such a demonstration, the appellee is not entitled to constitutional due process protection.

The Court has not had an occasion to directly address the contours of an asserted liberty interest, but such claims typically derive from reputational concerns, which do not arise in a case primarily involving questions of residency. For instance, one’s liberty interest is implicated when the government “attaches ‘a badge of infamy’ ” to an individual. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (quoting Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed. 216 (1952)). “Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him [or her], notice and an opportunity to be heard are essential.” Id. The facts in this case do not conceivably raise these concerns, and, to reiterate, the appellee has presented no such allegation.

Turning to property interests, a litigant “asserting procedural due process claims must first articulate a property right recognized by the Constitution,9 case law, or statute.”10 Garvin, SU 07-07, at 10 (footnote added). After satisfying this initial burden, the Court shall ensure the presence of “two distinct components of due process: notice and an opportunity to be heard.”11 Kenneth L. Twin v. Toni McDonald, SU 05-09, at 7 (HCN S. Ct. July 3, 2006). Quite obviously, one cannot claim a property interest in an aspiration to obtain a vocation. See Miriam E. Whiteagle v. Exec. Dir. of Pers., Carol Garvin, SU 18-02, at 8-9 (HCN S. Ct. Oct. 24, 2018) (holding that statutory procedure enabling job applicants to contest employment interview and selection process does not create a property interest). As such, the appellee has no property interest in a prospective, speculative legislative position.12 The Court shall accordingly perform an unrestricted de novo review of the presented legal issues.

DECISION

I. The Trial Court erred in preemptively addressing the appellant’s sovereign immunity from suit.

The Court previously explained that it could “sua sponte determine whether the Judiciary properly exercises subject matter jurisdiction.” Tahdooahnippah, SU 25-03, at 1-2 (citing Ho-Chunk Nation v. Harry Steindorf, SU 00-04 (HCN S. Ct. Sept. 29, 2000)). The Trial Court must also adhere to this understanding for reasons already expressed. Id. at 2 n.2 (citing, in part, Gen. Council Agency v. HCN Ethics Review Bd., SU 16-01, at 4 (HCN S. Ct. July 13, 2016)). However, the Trial Court cannot independently raise issues relating to sovereign immunity from suit, an affirmative defense that the appellant must assert. SU 16-01 at 5 n.8 (clarifying that affirmative defenses, including sovereign immunity, “are subject to waiver” even if a successfully raised defense would “deprive[ ] the ... court[ ] of ‘jurisdiction,’ in general terms” (citing, in part, In re Prairie Island Dakota Sioux, 21 F.3d 302, 305 (8th Cir. 1994) (“[S]overeign immunity is a jurisdictional consideration separate from subject matter jurisdiction ....”))); see also Sharon Williams v. HCN Ins. Review Comm’n, SU 98-01, at 16 (HCN S. Ct. Oct. 29, 2008) (“Where a party fails to assert a defense of sovereign immunity in a case, such a defense is waived.”).

The Court earlier observed that the institutional parties did not apparently raise the defense of sovereign immunity from suit as no such indication otherwise was reflected in the underlying opinion. Tahdooahnippah, SU 25-03, at 1 n.1. The parties have subsequently confirmed this assessment. Appellee’s Resp. Br. at 17; Appellant’s Br. at 10. The Trial Court, therefore, should not have engaged in an examination of sovereign immunity, which unnecessarily extended to a constitutional analysis of relevant Election Code provisions. Final J. at 13-14. This Court offers no opinion on the constitutionality of these respective statutory subsections.

II. The Election Code requires a legislative candidate to meet a one-year residency requirement in the district they seek to represent, which means the geographic district and not the numeric district.

As repeatedly stated, “[t]he Ho-Chunk Supreme Court has favored a plain language approach [to] and interpretation [of] the Constitution, statutes and contracts.” Karena Thundercloud, Vice President v. HCN Executive Branch, SU 20-05, at 9 (HCN S. Ct. Dec. 15, 2021) (citing Lewis, SU 06-07, at 7; Marx Adver. Agency, Inc. v. Ho-Chunk Nation, SU 04-07, at 11 (HCN S. Ct. Apr. 4, 2004); Greg Littlejohn v. HCN Election Bd, SU 03-07, at 5 (HCN S. Ct. July 11, 2003) (Butterfield, J., dissenting); Lowe, SU 00-17, at 6). The plain language of the Ho-Chunk Nation Election Code reveals that “[a] candidate for Legislature shall be eligible to run for office in the District in which the candidate has resided for at least one (1) year immediately prior to filing the petition declaring his or her candidacy.” 2 HCC § 6.8a(iii). Additionally, it is long settled that once the voters of the Ho-Chunk Nation approve a redistricting plan, the old districts cease to exist. Robert A. Mudd v. HCN Legislature, SU 03-02, at 7 (HCN S. Ct. Apr. 8, 2003) (citing HCN Const. art. V, § 4). The Mudd Court further stated that it is a mistake to assume that the old districts continue to exist in some form. Id. at 7-8. Here, the appellee argues because she has lived in what was numerically designated as District 4 for more than one year, she meets the residency requirement. This is erroneous reasoning. She must have resided in the geographic boundaries of the new district for a minimum of one year, which she did not. Therefore, the appellee did not meet the one-year residency requirement to run for District 4 legislator because when she submitted her Official Nomination Petition Form on January 17, 2025, she had only lived in District 4 since August 4, 2024, a period of approximately five and a half months.13

By way of analogy, the appellee directed the Court’s attention to “at least one other jurisdiction [that] ha[d] considered a case ... almost factually identical to ... [her] position.” Appellee’s Resp. Br. at 14 (emphasis added) (citing Wenke v. Hitchcock, 6 Cal.3d 746, 100 Cal.Rptr. 290, 493 P.2d 1154 (1972)). The California Supreme Court confronted a case in which a prospective candidate for First District Supervisor of Orange County detrimentally relied upon a county legal counsel opinion and moved three blocks to remain in the First District. William F. Wenke’s former residence would have become situated in the Fourth District due to redistricting. Id. at 1156. However, three months later, county counsel issued a superseding opinion in which he determined “that a candidate could not move and preserve ... continuity of residence in [a] district.”14 Id. at 1157.

On these facts, the Wenke court held:

[A] person desiring to become a candidate for the office of member of the board of supervisors who has been an elector within a given supervisorial district but will be made a nonresident thereof by redistricting may choose one of two alternatives. He [or she] may choose to apply his previous period of residence to his [or her] new supervisorial district or to his [or her] former supervisorial district to the end of becoming a candidate for such office either in his [or her] new district or in his [or her] former district. In the event he [or she] chooses to be a candidate for the office of supervisor of his [or her] former district from which his [or her] place of residence will be excluded by such redistricting, in order to preserve his [or her] period of residency, he [or she] must, prior to the effective date of the boundary change, relocate his [or her] residence in his [or her] former district by moving it to a location therein which has not been removed therefrom by the redistricting.

Id. at 1160.15 The Supreme Court of Alaska subsequently found the rationale advanced by the Wenke court as persuasive. Hayes v. Municipality of Anchorage, 46 P.3d 971, 973 n.4 (Alaska 2002). However, in Hayes, the prospective candidate continuously resided in the same home while the numerical designation of the district changed. The candidate, therefore, satisfied the one-year residency requirement within the new district boundaries for which he sought elective office.

In a more recent state court decision, the Pennsylvania Supreme Court addressed the situation that a prospective candidate encounters in Pennsylvania when choosing to relocate prior to finalization of redistricting with candidacy subject to a one-year residency requirement:

Candidate takes up residence in Old District A more than a year before the next election. Then he [or she] moves to Old District B less than a year before the next election. The L[egislative] R[eapportionment] C[ommission]’s Final Plan subsequently combines the portion of Old District B to which Candidate moved with the portion of Old District A in which Candidate formerly resided, and designates the amalgamation New District C. Because Candidate will have lived within New District C’s geographical boundaries for at least one year prior to the election, Candidate will be eligible to represent New District C if he [or she] maintains his [or her] existing residence or moves to another part of New District C after the Final Plan takes effect.

In re Jordan, ––– Pa. ––––, 277 A.3d 519, 539 (2022). The Jordan court continued to explain that it included the above scenario to erase any ambiguity, i.e.,

in order to highlight the gamble that a prospective candidate takes when deciding to move to a different (old) district without knowing whether the geographical area containing the candidate’s new residence ultimately will be combined with the geographical area in which he or she previously resided. If the ... Final [Redistricting] Plan combines the two areas, the candidate lucks out and will be eligible to represent that geographical entity ..., the New [Legislative] District .... Otherwise, the would-be candidate will be ineligible for any state legislative office until the candidate will have resided in the newly constituted district for one year preceding the election in which the candidate seeks the office.

Id. at n.21.

In reaching this decision, the Pennsylvania Supreme Court provided a “ ‘plain language’ ” interpretation unencumbered by any heightened degree of constitutional scrutiny, meaning “candidates must have taken up residency within the boundaries of their respective current districts at least one year before ... Election Day.” Id. at 536 (citation omitted). The Wenke court additionally observed: “residency requirements ... tie[ ] inhabitancy to fixed geographical areas, rather than numerical designations ....” Id. at 538. This Court’s opinion aligns with the Wenke decision and neither determination, on identical facts, fails to comply with “ ‘[e]lementary considerations of fairness.’ ”16 Appellee’s Resp. Br. at 12 (quoting Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)).

CONCLUSION

For the reasons noted above, the Court reverses the Trial Court decision in its entirety, and it upholds the Ho-Chunk Nation Election Board’s non-certification of appellee for failure to meet the one-year residency requirement as required under the Election Code, 2 HCC § 6.8a(iii).

All Citations
--- Am. Tribal Law ----, 2025 WL 2609253

Footnotes
1	The appellant also determined that the appellee did not submit the requisite number of valid nomination signatures as a second reason supporting non-certification. However, whether the appellee meets the residency requirement is dispositive in this matter, and the Court accordingly withholds judgment on the issue of nomination signatures.
2	Appellant’s failure to notify the appellee in writing by certified mail that she did not meet of the qualifications for office, as required by the Election Code, greatly hindered the efficient administration of this election. 2 HCC § 6.8f(2).
3	In its briefing, the appellant highlighted its earlier request for the Court to issue an opinion in SU 25-03 at or before 2:00 p.m. on March 4, 2025, less than one day after its appellate filing, noting that the late issuance served to delay the General Primary Election. Appellant’s Br., SU 25-04, at 4 (Mar. 20, 2025); see also id. n.2 (“appreciat[ing] the ... prompt action ..., [which] does not go unnoticed”). But see E-mail from Hon. Todd R. Matha, Chief J., to Mary Thunder, Clerk of Ct. (Mar. 4, 2025, 01:48 p.m. CST) (on file with author) (forwarding opinion for processing). Quite significantly, the appellant could have sought interlocutory consideration of the temporary restraining order issued on February 18, 2025, but, for unknown reason(s), opted, in its discretion, not to do so. Instead, the appellant waited and sought interlocutory consideration of the temporary injunction entered on Friday, February 28, 2025, filing the interim appeal near close of business on Monday, March 3, 2025. E-mail from Clerk Thunder to Supreme Ct. (Mar. 3, 2025, 04:52 p.m. CST) (on file with recipients). But cf. Appellant’s Br. at 16 (“The Appellant feels strongly that this matter could have been resolved quickly ....”). Although under no statutory compulsion, yet acknowledging the urgency of the matter, the Court, comprised of jurists serving in a part-time capacity, issued its opinion in less than twenty-four hours, representing the first conscientious and timely action undertaken in the above-described process. See HCN Election Bd. v. Tahdooahnippah, SU 25-03, at 4-5 (HCN S. Ct. Mar. 4, 2025) (criticizing trial court delay).
4	“The Ho-Chunk Nation, in exercising its powers of self-government, shall not ... deprive any person of liberty or property without due process of law.” HCN Const. art. X, § 1(a)(8).
5	Compare id. art. VIII, § 5 (“Any member of the Ho-Chunk Nation who is at least eighteen (18) years old and who meets all other requirements established by the Ho-Chunk Nation shall be eligible to vote.” (emphasis added)), with id. art. V, §§ 6-7 (identifying legislative terms of office and qualifications, respectively).
6	Regarding an alleged infringement upon an individual’s ability “to pursue the livelihood or occupation of [one’s] choosing ..., it is well settled that no ... fundamental right exists ....” Medeiros v. Vincent, 431 F.3d 25, 29 n.3 (5th Cir. 2005), cert. denied, 548 U.S. 904, 126 S.Ct. 2968, 165 L.Ed.2d 951 (2006).
7	“ ‘[A] denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.’ ” Chloris Lowe Jr. v. HCN Legislature Members, SU 00-17, at 8 (HCN S. Ct. Mar. 13, 2001) (quoting Reynolds v. Sims, 377 U.S. 533, 566, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)).
8	The Court maintains authority to determine the contours of due process because “[a]lthough the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analogous safeguards enforceable in tribal courts ..., ‘the guarantees are not identical’ [to the Bill of Rights] ....” Nevada v. Hicks, 533 U.S. 353, 384-85, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (Souter, J., concurring) (citations omitted); cf. ICRA, Pub. L. No. 90-824, § 202(a)(8), 82 Stat. 73, 77 (current version at 25 U.S.C. § 1302(a)(8) (2018)) (“No Indian tribe in exercising powers of self-government shall ... deprive any person of liberty or property without due process of law.”).
9	The Court, in Garvin, addressed a General Council recall action that unnecessarily included an allegation of malfeasance in office. See HCN Const. art. IX, § 5 (prompting a special election). In dicta, the Court appeared to suggest that the General Council should afford a legislator pre-deprivation procedural due process in the context of a removal, given the pre-condition of malfeasance. Garvin, SU 07-10, at 10; see also HCN Const. art. IX, § I (“The General Council may remove any member of the Legislature for malfeasance.”). However, earlier in the opinion, the Court stated: “[I]t is not the presence of malfeasance that creates the property right but the absence of at-will employment.” SU 07-08 at 8. In other words, a legislator’s election to a set term, which cannot be summarily interrupted without cause, establishes a property interest in continuing representation. HCN Const. art. V, § 6. The Court concluded its opinion by expressing that recall, in contrast to removal, would not trigger due process protection since “[l]osing a petition for recall does not deprive a legislator of anything ..., it merely subjects them to a vote of confidence.” SU 07-08 at 9. For purpose of clarification, the constitutional removal section incorporates the requirements of “reasonable notice ... and ... reasonable opportunity to be heard.” HCN Const. art. IX, § 1. The due process clause would not seemingly provide any greater degree of protection. Moreover, the Court would not heedlessly intrude into a matter constitutionally committed to the General Council. The Court presumptively regards such cases as non-justiciable by virtue of the political question doctrine. See Lewis, SU 06-07 at 5-6 (reserving, nonetheless, the role of “safeguard[ing] and protect[ing] procedural due process of Tribal elected officials in removal cases” (citing LoneTree, SU 00-16 at 10)). In a similar context, the federal courts have removed themselves from any substantive review of impeachment cases. The U.S. Supreme Court foreclosed a procedural due process examination in the context of federal impeachments. Nixon v. United States, 506 U.S. 224, 226, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993) (deeming congressional procedure not susceptible to review due to the political question doctrine). The Nixon decision rendered preliminary determinations to the contrary unsupportable. See, e.g., Hastings v. United States, 802 F. Supp. 490, 504 (D.D.C. 1992) (“Impeached judges have a protected interest at stake: their life tenure and future ability to hold public office.”), vacated, 988 F.2d 1280 (D.C. Cir. 1993).
10	The U.S. Supreme Court has definitively resolved that the federal due process clause itself does not create property interests, nor do other constitutional provisions. “Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source ....” Bd. or Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
11	Cf. Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899-900 (8th Cir. 1994) (“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” (citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976))).
12	The federal case that the appellee deemed supportive of attaching a certain level of constitutional significance to seeking elective office proves inapposite. The Becton court relied upon the First Amendment freedom of association (as to political party) and Fourteenth Amendment substantive due process to reach its conclusion. Becton, 48 F. Supp. 2d at 754-64; see also Clements v. Fashing, 457 U.S. 957, 965, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) (“recogniz[ing] ... that [ballot access] requirements may burden First Amendment interests in ensuring freedom of association, as these requirements classify on the basis of a candidate’s association with particular political parties”). In relation to this case, the freedom of association concern is irrelevant, and the substantive due process concern is inapplicable.
13	The Court recognizes that this is a difficult outcome for the appellee, but notes that the Ho-Chunk Nation Legislature has the ability to revise the Election Code to reduce the residency requirement to a lesser period of months. Alternatively, the Legislature could refrain from calling a redistricting election less than one year from other constitutionally mandated elections to avoid this result. See HCN Const. art. V, § 4; see also id. art. VIII, § 1. In any event, it is not for this Court to legislate even when application of the law seems harsh.
14	The appellee did not relocate in an effort to maintain residency in legislative District 4. “In May 2024, Tahdooahnippah’s husband was elected Chairman of the Comanche Nation of Oklahoma, and the Tahdooahnippah family began the process of relocating to Oklahoma ....” Appellee’s Resp. Br. at 4. Also, the appellee did not act in reliance upon any standing legal opinion of the Department of Justice or legislative counsel.
15	The California Court of Appeals later explained that the Wenke decision derived from the California judiciary examining a candidacy construct, including residency requirements, alongside the right to vote. Smith v. Evans, 42 Cal.App.3d 154, 116 Cal. Rptr. 684, 686 (1974) (disapproving a one-year durational test for city office, despite moot status of appeal in a case not involving redistricting); see also Wenke, 493 P.2d at 1160 (overruling inconsistent 1933 opinion since entered prior to the state employing a strict scrutiny analysis to adjudicate matters implicating the electoral franchise).
16	Furthermore, the appellee insisted: “[I]n January 2024, had Ms. Tahdooahnippah wished to be re-elected to represent District 4 (as, in fact, was and is the case), she would have had no notice that she had to immediately move away from Ramsey County, Minnesota because ten months later that county would be redistricted into District I.” Appellee’s Resp. Br. at 12. In fact, the appellee, as a sitting legislator, had a much greater degree of notice than the general Ho-Chunk membership. “[O]n August 22, 2023 the Legislature passed a motion to consider redistricting issues and the start of redistricting to the Legislative Redistricting Workgroup ....” Legislative Special Edition, Hocąk Worak, Oct. 4, 2024, at 6 (emphasis added) (quoting HCN Leg. Res. 07-31-24 A at 1)); see also HCN Const. art. IV, § 4 (“The Legislature shall have the power to redistrict or reapportion, including changing, establishing, or discontinuing Districts.”); cf. Two Bears, SU 13-02, at 6 (recognizing that “ ‘draw[ing] upon past facts does not mean ... operat[ing] “retrospectively” ’ ” (quoting Miller v. Burk, 124 Nev. 579, 188 P.3d 1112, 1121 (2008))).