Tribal Code - Sault Ste. Marie Tribe of Chippewa Indians
Enacted July 5, 1995. Including Updates Through 2004.
CHAPTER 16: REMOVAL FROM OFFICE
16.101 Purpose and Scope.
The purpose of this Chapter is to implement Tribal Constitution article VI by providing procedures for determining petitions for removal from office of Tribal elected officials. It governs proceedings for removal initiated after the effective date of this Chapter.
The Board of Directors finds that:
(1) The Tribal Constitution and Bylaws provides for a democratically elected Chairperson and Board of Directors, with fixed terms of office. It permits removal from office upon petition by eligible voters alleging specific facts which show a violation of tribal law, after provision of notice and a hearing on the charges before a specially-convened hearing board.
(2) The provisions of Tribal Constitution article VI provide the sole remedy to tribal members for removal of elected officials from office. Removal of officials elected by tribal members is disfavored and is warranted only in serious circumstances.
(3) The requirement of allegations of specific facts showing a violation of tribal law, contained in Tribal Constitution article VI, section 3, is intended to provide the accused with fair notice of the charges against him or her, to allow for a determination whether the allegations would warrant removal if proven, to safeguard elected officials against spurious accusations, and to inform the accused official of the facts which will be at issue at the hearing.
As used in this Chapter:
(1) Accused official means the member of the Board of Directors or the Chairperson who is the subject of a removal petition filed in accordance with Tribal Constitution article VI, section 3.
(2) Eligible voter means any enrolled member of the Tribe who is eighteen years of age or older, and who is either:
(a) shown on the tribal membership roll to be a resident of an election unit; or
(b) registered as a voter residing outside of any election unit for the immediately preceding Tribal election conducted under Tribal Code Ch. 10.
(3) Hearing Board means the body created under §16.107(3) of this Chapter for the purpose of hearing the charges in the petition against the accused official.
(4) Hearing Officer means the person identified under §16.107(4) of this Chapter as the person to preside over the hearing on the charges in the petition against the accused official.
(5) Secretary means the Tribal Recording Secretary and staff working under the Tribal Secretarys direction.
16.104 Initiation of Proceedings.
(1) Proceedings under this Chapter are commenced with the filing with the Board of Directors of a petition seeking the removal of the chairperson or board member. A petition may not request the removal of more than one official. Filing of a petition shall take place at a regular or special meeting of the Board of Directors. The filing of a petition constitutes receipt of a petition within the meaning of Tribal Constitution article VI, section 4(a).
(2) A removal petition shall have a principal sponsor, who shall act as the petitioner for purposes of any hearing held on the petition. The principal sponsor shall be a qualified and registered voter of the Tribe. The name of the principal sponsor shall appear on each page of the petition along with the mailing address and telephone number. The principal sponsor is responsible to oversee the initiation of the circulated petition and for compliance with the provisions of this Chapter. Along with the petition the principal sponsor shall submit a statement signed under penalty of perjury that to the best of his or her knowledge and belief each page of the petition was circulated by a qualified circulator and complies with the provisions of sub. (3).
(3) Signatures on the petition shall be solicited only by qualified circulators, who shall be eligible voters of the Tribe. Each page circulated shall contain a certification by the qualified circulator of that page that he or she is a qualified circulator and that to the best of his or her knowledge and belief no signature on the petition was obtained through fraud, deceit, or misrepresentation; he or she has neither caused nor permitted a person to sign the petition more than once; he or she has no knowledge of a person signing the petition more than once; each signature is the genuine signature of the person purporting to sign the petition; the signer was an eligible voter of the Tribe residing at the address shown; and that the signature was solicited and obtained in compliance with this Chapter.
16.105 Contents of Petition.
(1) The petition shall contain a statement of specific facts which, if true would constitute a violation of tribal law specified in sub. (3), together with a citation to the provision of the Constitution and Bylaws, ordinance, or resolution violated. The allegations must provide facts which, if true, would establish each element of the violation alleged and which provide sufficient detail so that the accused official can reasonably determine the conduct with which he or she is charged.
(2) A petition may include more than one ground for removal. Grounds which rely on different incidents or patterns of conduct shall be stated as separate counts or grounds, each of which shall meet the requirements of sub. (1).
(3) Violations of the following shall constitute grounds upon which a petition for removal may be based:
(a) Violation of the Constitution and Bylaws.
(b) Conduct which would constitute a violation of any provision of the Tribal Code that is punishable as a crime, regardless of whether the Tribal Court would have jurisdiction over the offense.
(c) Violation of the Tribal Code Ch. 10: Election Ordinance, or Tribal Code Ch. 96: Open Meetings Ordinance.
(d) Violation of any other ordinance or resolution that specifically provides that its violation may constitute grounds for removal from office.
(5) The petition must be signed by at least one hundred (100) eligible voters of the Tribe. Only original signatures shall be submitted in the petition.
16.106 Procedure Upon Filing of Petition.
(1) The Secretary shall maintain the original petition at all times. The allegations contained in the petition shall remain confidential until the Board of Directors acts on the petition. Information identifying the signatories to the petition shall remain confidential except as provided in §16.108.
(2) As soon as practicable after the filing of the petition, the Secretary shall refer the petition to the Tribal Registrar, who shall make a determination of whether the petition contains the requisite number of signatures of eligible voters. The Registrar shall review the petition and Tribal voter registration records under standards and procedures utilized for the verification of signatures on nominating petitions for Tribal elections conducted under Tribal Code Ch. 10. The Registrar shall certify the determination to the Board of Directors as least five (5) days before the date of the meeting at which the Board of Directors will consider the petition.
(3) The Board of Directors shall consider the petition within fifteen (15) days of its receipt of the petition at a regular meeting or a special meeting called for that purpose. The contents of the petition, except for information identifying the signatories, shall be given to the members prior to the meeting. The Board of Directors shall consider the petition in an open meeting, and the contents of the petition (except for the identity of the signatories) shall thereafter be public.
(4) The Board of Directors shall determine whether the petition, on its face, appears to meet the criteria of §16.105. A detailed examination of the allegations shall not be required. The Board of Directors may, in its discretion, request the opinion of the Legal Department on the facial sufficiency of the petition. If the Board of Directors determines that the petition appears to be insufficient, it shall dismiss the petition.
(5) If the Board of Directors determines that the petition appears, on its face, to meet the criteria of §16.105, it shall set the date, time, and place for the initial hearing and direct the Secretary to prepare and serve a notice of hearing upon the accused official stating the date, time and place of the initial hearing and attaching or incorporating the allegations of the petition as notice of the charges against the accused official.
(6) The determination of the Board of Directors on the sufficiency of the petition shall not be subject to the referendum provisions of Tribal Code Ch. 12.
16.107 Hearing Board.
(1) Upon a determination by the Board of Directors that the petition appears to be valid, the Chief Judge of the Tribal Court shall contact the person appointed by the Board of Directors to select the Hearing Board and the Hearing Officer in accordance with sub. (2) to initiate the selection and appointment process. The Chief Judge shall act as the Tribal liaison with the person appointed to do the selections and, once the Hearing Board and Hearing Officer are selected, to act as liaison with them as well.
(2) The Board of Directors shall appoint a person to select the Hearing Officer and the Hearing Board, and hereby appoints Kathryn L. Tierney to make the selections until such time as the Board shall change the appointment.
(3) The Hearing Board shall consist of three (3) attorneys who are licensed to practice law in at least one state, and who are not employees of the Tribe and have never had an attorney client relationship with the Tribe, the petitioner, or a member of the Board of Directors, or who have never provided advice to the Board of Directors in any capacity. Preference in selection shall be given to attorneys who are Native American and to attorneys who are knowledgeable about tribes and Native American law.
(4) The Hearing Officer shall be an attorney licensed to practice law in at least one state and who meets the criteria set forth for Hearing Board members in sub. (3). Preference in selection shall be given to an attorney who has judicial or similar experience, is Native American, and is knowledgeable about tribes and Native American law.
(5) The person making the appointments shall take reasonable steps to ascertain that the persons appointed meet all of the criteria set forth in this section. Upon completion of the appointment process, the appointing person shall prepare and submit to the Board of Directors a report concerning the appointment process.
16.108 Review of Petition Signatures.
The registrars determination of the sufficiency of the number of signatures on the petition may be reviewed by the Hearing Officer prior to the initial hearing upon motion of the accused official. The Hearing Officers review shall be conducted in camera, outside the presence of the parties, with the assistance of the registrar. The parties may be represented by attorneys during the in camera inspection, provided that the attorneys agree to keep the identity of the signatories confidential and not disclose them to their clients. The Hearing Officer and the attorneys shall maintain the confidentiality of the signatories. If the Hearing Officer determines that a petition contains less than 100 valid signatures or does not meet the requirements of §16.104, the Hearing Officer shall dismiss the petition.
16.109 Initial Hearing.
The Hearing Board shall convene at the date, time, and place set in the notice of hearing and hold the initial hearing as provided in this section. The Hearing Officer shall preside at the initial hearing. If circumstances warrant the Hearing Board may participate by teleconference, but the Hearing Officer shall preside in person. The initial hearing shall be for the purpose of:
(1) if the accused official wishes to challenge the petition on its face, hearing arguments and ruling on the petition in accordance with §16.110;
(2) scheduling of the hearing on the petition;
(3) scheduling discovery, motions, and other preliminary matters;
(4) expediting the disposition of the action and discouraging wasteful prehearing activities;
(5) any other matter that the parties, the Hearing Officer, or the Hearing Board wish to discuss concerning the hearing.
(6) The Hearing Officer may enter an order summarizing the results of the initial hearing.
16.110 Standards for Determination of Petition.
(1) In deciding a challenge to the petition on its face filed under §16.109(1), the Hearing Board shall determine whether the petition meets the criteria of §16.105, and whether the violations alleged in the petition would, if true, warrant removal of the accused official from office.
(2) In making the determination as to whether the violations alleged in the petition would, if true, warrant removal from office, the Hearing Board shall consider the nature of the conduct and the public interest of the Tribe, including, but not limited to, such factors as:
(a) the provisions of law violated;
(b) whether the conduct is a breach of public trust, abuse of authority, or official misconduct;
(c) whether the conduct evidences lack of integrity;
(d) whether the conduct contravenes or frustrates an important Tribal policy or interest; and
(e) whether the Tribes interests or public trust and confidence in the Tribe or its officials would be impaired if the accused remained in office.
(3) If the petition contains more than one ground or count, the Hearing Board shall make a separate determination of the sufficiency of the allegations of each challenged count under sub. (1), and may dismiss or limit the grounds for particular counts. The determination under sub. (2) shall then be made based on the totality of the remaining counts.
16.111 Hearing on the Petition.
(1) The Hearing Officer shall preside over the hearing. The Hearing Officer shall afford the accused official all of the rights guaranteed under the Indian Civil Rights Act. The Hearing Officer shall conduct the hearing and shall rule on preliminary and procedural matters before and at the hearing. The Hearing Officer shall conduct the hearing in accordance with the rules of procedure applicable to civil proceedings in the Tribal Court and shall apply the rules of evidence applicable to civil proceedings in Michigan courts. The Hearing Officer shall not participate in the deliberations of or vote on the decision of the Hearing Board; provided, that if a member of the Hearing Board shall become unable to serve in that capacity or participate in the deliberations and decision, the Hearing Officer shall do so in place of that member.
(2) In the event that issues concerning preliminary or procedural matters arise requiring resolution before the selection of the Hearing Officer, any member of the Hearing Board that has already been selected may hear and rule on the matter.
(3) If an issue arises prior to the hearing that involves the interpretation of a provision of the Tribal Constitution other than a provision of Article VIII, the Hearing Board shall refer the issue to the Board of Directors for their decision on the interpretation; provided, that no such issue need be referred if the referral would cause a delay in the proceedings.
(4) The Hearing Board shall conduct a hearing on the petition, which shall be open to the public. The hearing shall be held at the place and shall commence on the date and time specified at the initial hearing. If requested by the Hearing Board, the Hearing Officer may hear all or part of the testimony or review all or part of the evidence and make findings of fact for the Hearing Board. An audio recording of the hearing shall be made in the same manner as for hearings in Tribal Court, and the hearing shall be videotaped in the same manner as for meetings of the Board of Directors.
(5) The Hearing Officer shall have the same power to swear witnesses and take testimony under oath and to issue process to compel the attendance of witnesses and the production of documents or other evidence, and to impose the same sanctions for failure to comply, as at a criminal proceeding under Chapters 70 and 71 of the Tribal Code. This power shall extend to tribal officials, and to documents and other evidence in the possession of the Tribe, notwithstanding claims of sovereign immunity.
(6) The parties to the proceeding shall be the principal sponsor, who shall be designated as the petitioner, and the accused official, who shall be designated as the respondent. Each of the parties shall have the right to be represented by counsel of their own choosing at his or her own expense.
(7) The petitioner shall have the burden of going forward with the evidence and the burden of proving the allegations of the petition by clear and convincing evidence.
(8) Each of the parties shall have the right to appear at the hearing, to present evidence and argument, and to call and examine witnesses. The accused official shall have the right to address the Hearing Board regarding the petition.
(9) The Hearing Board shall decide whether the accused official shall be removed from office by majority vote of those present and voting, applying the standards set forth in §16.110(2). The Hearing Board shall prepare a written decision setting forth its basic findings of fact and the reasons for its decision, which may be prepared with the assistance of the Hearing Officer. The decision shall be recorded by the Hearing Officer and certified to the Board of Directors. The decision shall be rendered within 60 days after the initial hearing. The decision of the Hearing Board shall be final.
16.112 Improper Contact with Hearing Officer or Hearing Board.
(1) The Hearing Officer and the members of the Hearing Board shall not have any ex parte contact with the petitioner, the respondent, counsel for either party, or any other person concerning the proceedings; provided, that nothing shall prohibit contact by the Hearing Officer with counsel for either party (or a party, if not represented by counsel) concerning routine matters of administration of the proceedings. If any such contact is made or attempted to be made, the Hearing Officer or member of the Hearing Board shall report the contact or attempt to the Hearing Board and to the Board of Directors.
(2) No person shall contact the Hearing Officer or any member of the Hearing Board with the intent of influencing the course or outcome of the proceedings under these Procedures.
(3) Except as provided in sub. (1), the petitioner and respondent shall make no contact, directly or indirectly, or cause contact to be made, with the Hearing Officer or any member of the Hearing Board with the intent of influencing the course or outcome of the proceedings under these Procedures.
(4) No person shall contact the person appointed by the Board of Directors to select the Hearing Officer and Hearing Board, directly or indirectly, with the intent of influencing the selection process or the choices to be made by the appointed person; provided, that the appointed person may seek recommendations for appointees from persons who are not connected with the Tribal government or administration.
(5) As used in this section, contact includes any form of oral or written communication, including without limitation oral contact, written communication, phone calls, e-mails, voicemail, or voice messages.
(6) Any person who violates the provisions of this section may be sentenced to imprisonment not to exceed three (3) months, or a fine not to exceed Five Thousand Dollars ($5,000.00), or both. In addition, violation of this section by a member of the Board of Directors shall constitute a violation of Tribal law upon which a petition for removal from office may be based.
16.113 Application and Effective Date.
This Chapter shall take effect on the date of its enactment and shall govern any petition filed with the Board of Directors after the effective date. It shall not apply to any proceedings on a petition filed prior to the effective date.
Resolution No. 2003-57, Establishing Interim Hearing Board Procedures, is repealed as of the effective date of this Chapter, except that it shall continue to apply to any proceedings on a petition filed prior to the effective date.