18 NICS App. 27, PAIUTE v. CLARK (August 2020)
IN THE PAIUTE TRIBAL COURT OF APPEALS
PAIUTE INDIAN TRIBE OF UTAH
CEDAR CITY, UTAH
Paiute Indian Tribe of Utah Tribal Council, Complainant/Appellee,
v.
Carmen Clark, Corrina Bow, and Delvern Pikyavit Respondents/Appellants.
NO. APP-2019-001 (August 26, 2020)
SYLLABUS*
Appellants challenged their removal from the Tribal Council and argued that their removal violated the Tribe’s Constitution. The Court of Appeals ruled that the Tribal Council did not vote by a majority as required by the Tribe’s Constitution and remanded to the Tribal Council for further proceedings.
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Before: |
Randy A. Doucet, Chief Appellate Judge; Lisa L. Atkinson, Appellate Judge; and Thomas Weathers, Appellate Judge. |
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Appearances: |
Geoffrey Strommer, Hobbs, Straus, Dean & Walker LLP, for Appellee; Mark Echo Hawk, Echo Hawk & Olsen, PLLC, for Appellants. |
OPINION
Weathers, J.:
This matter comes before the appellate court on a challenge to the removal of Respondents from the Tribal Council. The removed Tribal Council members have raised dozens of points on appeal. We find most of them meritless and will not address them individually. However, we do agree that the Tribal Council did not vote by a majority of its members to remove Respondents as required by the Tribe’s Constitution. As a result, the removal violated the Tribe’s Constitution. This matter is remanded to the Tribal Council for further proceedings consistent with this opinion and the process set forth in the Tribe’s Constitution.
I. BACKGROUND
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The Paiute Indian Tribe of Utah (“Tribe”) is a federally recognized Indian tribe comprised of five constituent bands. A tribal council governs the Tribe. The Tribal Council consists of six members, one elected from and by each constituent band at a band election, and the sixth elected as chairperson by the entire membership.
On April 16, 2019, the Tribal Council met in executive session and reviewed allegations against three of the Tribal Council members for violation of the Tribal Council Standards of Conduct (Ordinance No. 2009-01). By Resolution Nos. 2019-39, 2019-40, and 2019-41, the Tribal Council determined the allegations fell within the scope of the Tribal Council Standards of Conduct and that if true, would support a determination of unethical or improper conduct. The resolutions were duly approved.1
By letter dated April 30, 2019, the Shivwits Band notified the Tribal Council that it would not be participating in any removal hearing. It said it viewed the process as unconstitutional. It also stated that it was withdrawing all sovereign authority delegated by the band to the Tribal Council. The Tribal Council interpreted this letter as the Shivwits Band vacating its seat on the Tribal Council.
On June 11, 2019, the Tribal Council, through a hearing officer, held a hearing relating to the allegations against Respondents. The Shivwits Band did not attend or participate. Respondents also did not attend the hearing and presented no evidence in defense. By Resolution Nos. 2019-45, 2019-46, and 2019-48, the Tribal Council ruled (with only three council members participating) that Respondents had violated the Tribal Council Standards of Conduct and removed them from the Tribal Council as the sanction as permitted under Article XII of the Tribe’s Constitution. The removed Tribal Council members then appealed their removals as unconstitutional.
II. LEGAL DISCUSSION
A. Jurisdiction
The removed council members challenge the jurisdiction of this Court to hear this matter even though they filed the Notice of Review to this Court. We find that we have jurisdiction to hear this matter.
According to the Tribe’s Constitution, the jurisdiction of this Court “shall extend to all suits in law or equity arising under this constitution or tribal ordinances.” Paiute Indian Tribe of Utah Constitution art. VI, sec. 2. In particular, “issues of the constitutionality of a tribal council member’s removal may be reviewed by the tribal appellate court.” Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(b)(4).
The Tribal Council established and convened this Court by Resolution No. 2019-49 for the limited and exclusive purpose of reviewing issues of constitutionality relating to the removal
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of the removed Tribal Council members.2 Such review clearly arises under the Tribe’s Constitution. But Appellants argue that the Tribe’s Constitution does not allow for such a limited, dependent, ad hoc appellate court. We need not address that issue at this time. The scope of our jurisdiction is not at issue in this appeal; the issue is whether we have jurisdiction to hear the appeal. We find that we do. While we do not view this Court as limited, dependent, or ad hoc, it does not matter because our ruling still falls within that supposed limited scope of review.
Appellants also contest whether the Tribe’s Constitution allows for this Court to be established by a resolution instead of an ordinance. We see little difference in how this Court was established so long as it has been established. The distinction between resolution and ordinance as applied to this situation needlessly puts form over substance.
Appellants also challenge whether the Constitution allows for the Tribal Council to draft rules of pleading before giving the Tribal Court the chance to issue rules of pleading on its own. Because the Constitution gives the Tribal Court chief judge the first opportunity to draft rules of procedure, we will not follow the rules drafted by the Tribal Council unless and until the chief judge, whenever appointed, declines to draft such rules. See Paiute Indian Tribe of Utah Constitution art. VI, sec. 6. The remaining jurisdictional challenges alleged by the removed Tribal Council members are really challenges to the merits and need not be addressed for the reasons set forth below.
B. Constitutional Requirements
As one of their many, many arguments, the removed Tribal Council members argue that no majority of the Tribal Council lawfully voted in favor of removal as required by the Constitution. Because we agree, it is unnecessary to analyze and dispose of each of the numerous remaining arguments.
Under Paiute law, “[t]he factual determinations of the tribal council and removal decisions of the tribal council shall be final; Except, that issues of the constitutionality of a tribal council member’s removal may be reviewed by the tribal appellate court.” Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(b)(4). Under this standard, we review factual determinations for clear error, and constitutional issues de novo. See Teva Pharm. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 322 (2015) (factfinding taken as correct unless clearly erroneous); Cooper Indus. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 431 (2001) (constitutional issue merits de novo review).
“The tribal council may by a majority vote of its members remove any tribal council member, including the chairperson and vice-chairperson, for neglect of duty or willful misconduct.” Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(a). But “the right to continue to hold elective office is a property right that cannot be taken without due process of law.” Lenoir v. Monette, 2002 Turtle Mt. App. LEXIS 3, *11 (June 28, 2002). Accordingly, the Tribe’s Constitution requires the “procedure to effect the removal of any elected council member” to follow certain steps to ensure that due process. Paiute Indian Tribe of Utah
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Constitution art. XII, sec. 2(b). Because the removal process seeks to overturn the vote of the membership, strict compliance with the constitutional procedures is required.
First, the council member must be given notice of the charges and a hearing before the Tribal Council. Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(b)(1). “The council member who is the subject of a removal action may elect to have the hearing open or closed to the tribal membership.” Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(b)(1). Second, the “council member who is the subject of a removal action shall be served written notice of the charges against him or her at least five (5) days before his or her removal hearing is held by the tribal council.” Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(b)(2). Third, at “the removal hearing at which charges will be heard, the council member shall have the right to examine all witnesses against him or her, shall be entitled to call witnesses in his or her own behalf and shall have the right to be represented, at his or her own expense, by an individual of his or her choice.” Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(b)(3).
And finally, after this process has been followed, the “tribal council may by a majority vote of its members remove [the] tribal council member” subject to the proceeding. Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(a). Assuming for the sake of argument that the Tribal Council properly followed the first three steps, we find that that the Tribal Council still did not vote by a majority of its members to remove the Appellants. Therefore, the Tribal Council did not strictly comply with Article XII, Sec. 2(a).
“The tribal council shall consist of six (6) members, one (1) elected from and by each constituent band at a band election, and the sixth elected as chairperson as set forth below.” Paiute Indian Tribe of Utah Constitution art IV, sec. 1(a). “A quorum shall consist of a majority of the membership of the council.” Paiute Indian Tribe of Utah Constitution art. X, sec. 1(b)(3). “All decisions shall be made by a majority vote of the quorum.” Paiute Indian Tribe of Utah Constitution art. X, sec. 1(b)(3). Because abstentions do not count as votes, “majority vote” usually means the vote of those present and voting. See Robert's Rules of Order Newly Revised, 11th ed. (Da Capo Press, 2011), p. 400, ll. 7-12; p. 401, ll. 8-11; p. 403, ll. 13-24.
Because the Tribal Council consists of six members, a quorum requires at least four council members present. But, as mentioned, only three council members participated in the vote to remove. To overcome this deficiency, the Tribal Council argues that at the time of the removal hearing the Tribal Council consisted of only five members because the Shivwits Band (and its representative) refused to participate. The Tribal Council contends that the Shivwits Band vacated its seat, meaning a quorum could be established with just three council members (a majority of five members). We reject this argument.
The Tribe’s Constitution names five separate constituent bands. Paiute Indian Tribe of Utah Constitution art. III. The Tribe’s Constitution also enumerates the powers each band possesses. Paiute Indian Tribe of Utah Constitution art. VIII, sec. 2. Not one of these powers includes the ability to withdraw from the Tribe or vacate its seat on tribal council. The Tribe’s Constitution also enumerates the powers of the Tribal Council. Paiute Indian Tribe of Utah Constitution art. V, sec. 1. Not one of these powers includes the ability to change the number of Tribal Council members or consider a Tribal Council seat vacated. Nothing in the Constitution permits the Shivwits Band the power to do what it purported to do.
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The Tribal Council “shall” consist of six members, one from each band through a band election and a tribal chairperson. Paiute Indian Tribe of Utah Constitution art. IV, sec. 1. To change this number, the Tribe would have to amend its Constitution by a majority vote of the eligible voters of the Tribe voting in such an election. Paiute Indian Tribe of Utah Constitution art. XVI. No one band can unilaterally vacate its seat on the Tribal Council; it can refuse to participate, but it still occupies the seat.
We construe the Tribe’s Constitution strictly in this removal context. There is nothing in the Tribe’s Constitution allowing a band to remove itself from the Tribal Council. The Tribal Council consists of six members and a quorum consists of four members until the Constitution is amended. Because only three members participated in the removal (and only two voted in favor of removal), there was no quorum.
But, even assuming a quorum, we believe the vote still violated the Constitution. The Constitution says the Tribal Council “by a majority vote of its members” may remove a council member. Paiute Indian Tribe of Utah Constitution art. XII, sec. 2(a). Because the Tribal Council consists of six members, a majority of four members would need to vote for removal to accomplish a removal. Had the Constitution stated that the Tribal Council could “by a majority vote” remove a council member, then perhaps a number less than four would suffice (assuming a quorum). But because the Constitution included the words “by a majority vote of its members,” we read the Constitution as requiring at least four affirmative votes to remove.
This interpretation is consistent with language in Article XVI of the Constitution. That Article provides that the Constitution may be amended “by a majority vote of the eligible voters of the Paiute Indian Tribe of Utah, voting at an election” to amend the Constitution. Paiute Indian Tribe of Utah Constitution art. XVI (emphasis added). This Article does not say a majority vote of the eligible voters; but rather a majority of the eligible voters voting. That is a significant distinction. Had the drafters of this Constitution wanted to allow for removal by a majority vote of council members voting, they knew how to say so. By using the language they did in Section 2(a) of Article XII, the drafters intended that a majority of the entire Tribal Council (not just a majority of those voting at a meeting with a quorum present) must vote in favor of removal to perfect a removal. Because a majority of the Tribal Council did not vote to remove Appellants, the removal process did not satisfy Section 2(a) of Article XII of the Tribe’s Constitution.
III. CONCLUSION
Based on the foregoing, we find that the Tribal Council did not strictly comply with the Tribe’s Constitution in removing Respondents. As a result, this matter is remanded to the Tribal Council for further proceedings consistent with this opinion and the process set forth in the Tribe’s Constitution.
The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
Respondents argue that one of the Tribal Council members rescinded her vote in favor of the resolutions and complaints. There is nothing in the Tribe’s Constitution permitting a council member to rescind a vote once cast. The vote stands. Otherwise, chaos and uncertainty would ensue if any council member could withdraw his or her vote on any matter at any time for any reason. Nobody could rely on the certainty of the decision of the Tribal Council and tribal business would grind to a halt.
In a prior order, we addressed a challenge to our jurisdiction contending that we were not validly appointed as the appellate court. We found that we were validly appointed by Resolution No. 2019-49 and had jurisdiction to hear this matter.