--- Am. Tribal Law ----, 2008 WL 8929354 (Hopi C.A.)
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Appellate Court of the Hopi Tribe.
In the Matter of Certified Question of Law Re:
In the Matter of VILLAGE AUTHORITY TO REMOVE TRIBAL COUNCIL REPRESENTATIVES.
April 4, 2008.
Attorneys and Law Firms
Laura Berglan, Flagstaff, AZ, for Bacavi Village.
Before LOMAYESVA, Justice, and SEKAQUAPTEWA and RICHLAND, Justices Pro Tempore.
On January 28, 2008, the Village of Bacavi filed the below certified question of law. Pursuant to Hopi Tribal Ordinance (“Ordinance 21”), § 1.2.8(a), this Court answers as follows:
CERTIFIED QUESTION OF LAW
Do Villages, regardless of their form of government, have the authority to remove or decertify their duly-certified Tribal Council Representatives?
I. The Court finds that the village of Bacavi has standing to file a certified question.
Pursuant to Ordinance 21, § 1.2.8(a), “The Hopi Tribal Court of Appeals shall have Jurisdiction to answer questions of Hopi tribal law, including Hopi constitutional law, certified from any tribal, federal, or state court or from any tribal, federal, or state administrative agency.” This Court finds that villages are included within the parameters of both tribal courts and administrative agencies. Accordingly, under Ordinance 21, § 1.2.8(a), the Village of Bacavi has standing to certify a question of Hopi tribal law.
II. The Court finds that the Constitution delegates the exclusive power to remove duly-certified Tribal Council representatives to the Tribal Council.
The Constitution specifically enumerates the two grounds for the removal of a Tribal Council representative by Tribal Council. See HOPI CONST., Art. V. First, the Tribal Council shall automatically remove a representative found guilty of a “misdemeanor involving dishonesty, or a felony, or of drunkenness”. HOPI CONST., Art. V, § 1. Secondly, the Tribal Council may also remove a representative from office “for serious neglect of duty, by a vote of not Less than two-thirds of the Council, after the officer has been given full opportunity to hear the charges against him and to defend himself before the Council.” HOPI CONST., Art. V, § 2.
In contrast to this specific enumeration of the Tribal Council’s authority to remove a representative, the Constitution is silent as to a village’s authority to remove a Tribal Council representative. Given such silence and the explicit enumeration of the Council’s removal powers, this Court finds that the removal power is allocated solely to the Tribal Council within the constitutional framework. A village may withhold certification of a representative. See HOPI CONST., Art. IV, § 4. However, it may not remove a representative once the official has been certified.
The Village of Bacavi contended during oral arguments that the village authority to remove its Tribal Council representatives is an inherent power of villages as independent sovereigns that pre-existed the Tribal Council. Bacavi further argued that the removal power is necessary to ensure that representatives are acting on behalf of and are responsive to their villages.
Bacavi’s first argument raises the issue of whether the power to remove Tribal Council representatives pre-existed the Constitution when it was drafted in 1936 and thus resided with the villages, or whether it was a new power that was created as part of the negotiated relationship between the central tribal government and the village governments going forward.
Prior to the formation of the Hopi Tribal Council, the Hopi and Tewa Villages were autonomous city-states that did not answer to any central authority or federated body. Before and after the passage of the United States federal government’s Indian Reorganization Act of 1934, federal agents lobbied hard for the villages to adopt either distinct village constitutions or a central “tribal” constitution. The concept of a central, representative law-making body was new and unprecedented. After significant consultation with village leaders, the federal agent realized that it would not be politically possible to get most villages to adopt IRA-style constitutions.
In the end they had to significantly alter even the central tribal constitution from the IRA tribal constitution boilerplate before the villages would support it. Numerous concessions were made in the allocation of powers between the Tribe and the villages and between traditional leaders and their village populations, including 1) recognizing the authority of the Kikmongwis to certify representatives to Council, HOPI CONST., Art. IV, § 4; 2) the preservation of the leadership powers of the Kikmongwi absent the proper adoption of village constitutions that might allocate some or all of his powers to the members of the village, HOPI CONST., Art. III, §§ 3 & 4; and 3) the explicit reservation of dispute resolution power to the villages over certain subject matter areas, HOPI CONST., Art. III, § 2. Absent from these explicit recognitions or reservations of village and/or Kikmongwi powers is the power to remove certified representatives to the Tribal Council.
Instead we find explicit text setting out the detailed causes and process for the Tribal Council to remove its members. If the villages in 1936—or in 1969, 1980, or 1993 when the Constitution was amended—intended a parallel power to be established in the villages, they failed to memorialize it.
The Constitution sets out the explicit ground rules governing the relationship between the tribal and village sovereigns. It would be ill-advised to initiate the practice of reading meaning into the silences of the primary document mediating the relationship between the tribal and village sovereigns. It is out of deep respect for both that we decline to effect a Constitutional Amendment by plenary judicial review.
Fundamental issues beyond the scope of this Answer would need to be debated in proposals to amend the Constitutional allocation of removal powers. Such issues include, but are not limited to, two important questions: First, the removal provisions must not compromise the long-term stability of the Tribal Council’s law-making capacity. Secondly, the removal process would have to ensure consistent and fair process regardless of which village petitioned the Council for the removal of its representative.
A Constitutional Amendment reallocating the removal powers between the Council and villages must consider the potential effects village removal authority would have on the long-term stability of the law-making capacity of the Council. The debates surrounding such an amendment would need to address whether village removal powers would compromise the Tribal Council by creating a continuously changing membership, thus denying the Council of stability that is needed for an efficient government. Complex governmental programs and policies often need to function and be evaluated in the long run over time; but with the threat of immediate removal, representatives may be further deterred in supporting long-term plans and programs for the Tribe which may not bring immediate short-term benefits to villages.
Also, the Tribe may have reservations about permitting individual villages to formulate diverse qualifications for their representatives. Such diversity among the numerous villages may result in a “patchwork” that would be inconsistent with the vision of a more organized Council representing the Hopi villages. Supporters of village removal powers may argue that there is no reason why uniformity of grounds for the removal of representative, its methods, and occasions must be imposed upon all the villages since village laws that set forth individual removal requirements would not necessarily affect the interests of any other village. On the other hand, should a village choose to remove a representative, this would affect the functioning and stability of the Council as a whole.
Secondly, the removal process would need to ensure consistent, fair process regardless of which village petitioned for the removal. Under both our customs and traditions requiring fundamental fairness and the due process provision of the Indian Civil Rights Act of 1968,1 the Tribe and this Court ensure that all persons are provided with fairness protections. The current Constitutional removal framework consistently ensures fundamental fairness and due process by requiring proof of cause and an opportunity for the representative to defend himself before Council. See HOPI CONST., Art. V, § 2.
At oral argument, the village of Bacavi argued that their Bylaws similarly ensure fair process. The removal process memorialized in the Bacavi Village Bylaws sets out that a Tribal Council representative may be removed only for cause, by a majority vote of the Board of Directors, and after the representative has been allowed to address the Board directly or through a representative. See Bacavi Village Bylaws, Article VIII.E. The grounds for removal are limited to: (a) gross neglect of duty; (b) nonfeasance or malfeasance in office; (c) public use of alcohol and/or drugs; and (d) conviction in any tribal, federal or state court of a crime involving fraud, dishonesty, moral turpitude or a felony. See Bacavi Village Bylaws, Article VIII.E.
Although the Bacavi Bylaws appear to ensure fundamental fairness and due process, their certified question has been framed to apply to all villages. The Court cannot be similarly assured that all villages have established a removal framework that ensures that a representative will be removed with fundamental fairness and due process.
In light of the fundamental issues that surround the allocation of removal powers between the Tribe and the villages, the Court believes that a village removal power should not be casually read into the silences of the Constitution’s plain language. Rather, the power ought to be promoted through the careful deliberation that accompanies the process for Constitutional Amendments.
The Court thus finds that the removal power was not an inherent power of the villages that pre-existed the Constitution in 1936, but instead came into existence as part of the negotiation between the villages and tribal sovereigns in drafting the original Constitution. However, if villages feel strongly that the removal powers are presently misallocated in the Constitution, the villages may push for a Constitutional Amendment. Until there is such an Amendment, however, this Court is bound by the clear language of the Constitution, which delegates the removal power of representatives exclusively to the Tribal Council.
 III. The Court finds that villages have the Constitutional right to petition the Tribal Council to remove a representative for serious neglect of duty and that the Tribal Council is bound to timely act upon such petitions.
Although villages do not have an inherent power to remove duly-certified Tribal Council representatives, this Court finds that villages have a Constitutional right to petition Tribal Council to remove a representative for the constitutionally defined causes. See HOPI CONST., Art. V. Furthermore, upon such a petition, Council must act upon the petition in good faith and in accordance with the Constitutional procedure for the removal of representatives.
The Constitution was drafted to recognize and give great deference to the sovereign, autonomous villages: “The Hopi Tribe is a union of self-governing villages”. See HOPI CONST., Preamble & Art. III, § 1. Similarly, Article III, § 2, provides: “The following powers ... are reserved to the individual villages....” Thus the Constitution reserves an enumerated list of pre-existing powers to the villages, clearly recognizing village sovereignty.
In light of the Constitution’s recognition of village sovereignty, the Tribal Council is constitutionally mandated to act upon a petition by a village to remove a representative for cause in a timely manner. Upon submission of an action item by a village for the removal of a Council representative, Tribal Council shall initiate proceedings in accordance with the removal provisions of the Constitution. See HOPI CONST., Art. V, § 2. If the Council finds that a representative has seriously neglected his or her duty as a Tribal Council representative or finds that he or she was found guilty in a Tribal or other court of a misdemeanor involving dishonesty, or felony, or of drunkenness, then Council may remove the representative “by a vote of not Less than two-thirds of the Council, after the officer to be so removed has been given full opportunity to hear the charges against him and to defend himself before the Council.” See HOPI CONST., Art. V. When there is a legitimate request from a village to conduct such a proceeding, the Council does not have the discretion to ignore or delay the initiation of such proceedings.
Although I concur that a Hopi Village has standing to pose a certified question of law, I do not agree with the majority that it lacks authority to remove through a duly sanctioned village process their Tribal Council representatives.
When our Constitution was drafted in 1936 each Hopi Village acted independent in its affairs. Although the Hopi villages were bound together by a common language and cultural and religious heritage, they nonetheless acted as distinct sovereigns. In addition, they acted with extreme resistance to outside influence. Merely 29 years prior to the drafting of the Constitution, Hopi society had divided itself over its acceptance of outside education. A number of Hopi leaders were sent either to prison or to forced education as a result. It is in this context in which the Constitution was drafted. In light of many Hopis’ suspicion of the outside, the drafters were deferential to the traditional leadership in seeking Hopis acceptance of this new and foreign manner of government.2
For these reasons, I believe the Constitution must be read in light of this deference by the drafters to respect the traditional and autonomous nature of the villages. I also believe this includes the drafters’ belief that a village had the right to choose the manner in which to appoint and remove a Tribal Council representative. I would not read into our Constitution’s silence an implied limitation.
There is abundant evidence within our Constitution of the drafters’ intent to treat village authority deferentially. See HOPI CONST., Art. III, § 3 (each village shall decide for itself how it shall be organized); HOPI CONST., Art. III, § 4 (a village if constitutionally organized shall clearly state within its constitution how Council representatives shall be selected and the Tribal Council shall only recognize a village representative if certified by the village Kikmongwi). The Kikmongwi is a sacred position and most Hopi would be loath to question his decisions. If a Kikmongwi decided to remove a representative, most Hopi, even if they disagreed, would defer once his decision was reached. This would have been known to the drafters of our Constitution. As such, a village’s right to remove a representative is a manifestation of this respect and deference and it is unlikely the drafters intended otherwise. For all of these reasons, I dissent.
--- Am. Tribal Law ----, 2008 WL 8929354
“No Indian tribe in exercising powers of self-government shall ... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” See INDIAN CIVIL RIGHTS ACT of 1968, § 1302.
There is some evidence to suggest that despite the efforts of the drafters that the new Constitution was not accepted by the general Hopi populace.