A petition for permanent injunction and a temporary restraining order against two Seneca-Cayuga Tribal members was dismissed Thursday by order of the Court of Indian Offenses in Miami.
The case against the tribe's second chief, Katie Birdsong, and secretary/treasurer, Kay Crow- Ellison, was dropped as the court determined that the suit was filed without proper authority.
Judge William Wantland called the matter a “critical issue” and said that he had no other option but to dismiss the case.
“We have alleged all along, in this case and in a case before a Tulsa County district judge, that the tribe was never a real party in these cases,” said Scott Edwards, the attorney representing Ellison. “This is a case of Chief (Paul) Spicer claiming to act on behalf of, and in the name of, the Seneca-Cayuga Tribe without having been given the authority of the tribe to bring these suits.”
At the heart of the matter questioning the tribe's authority to file suit is a variance from Robert's Rules of Order - which governs the actions of the tribe's business committee - and a June 26 business committee poll vote that authorized the tribe to seek injunctive relief against Birdsong and Ellison through the law firm of Jess Green.
According to Robert's Rules of Order, a board may hold meetings through a conference telephone call if bylaws specifically allow. Seneca-Cayuga bylaws do not make that provision, according to Edwards.
Robert's Rules of Order further mandate that, when bylaws provide for convening by electronic means, meetings must be conducted in a manner that allow all members participating to hear each other at the same time. The rules also state that board members should be advised during the conference that individual approval of any proposed action obtained from a majority of board members does not constitute valid board approval.
Actions must also be ratified by the board at its next regular meeting before they become official, according to the rules.
Edwards told the court that the tribe's business committee has not physically convened since June 7. Birdsong and Ellison, who both sit on the business committee, have attested that they have never received notice of a meeting to authorize the legal action against them. Edwards has also said that a late-July poll vote to waive Ellison's sovereign immunity and a June 26 poll vote to seek injunctive relief has yet to be ratified, therefore there is no lawful authority to bring the suit in the name of the tribe.
“The process that he (Spicer) has chosen to use is not within the laws of the tribe,” Edwards said in a post-hearing interview. “The chief can't just call the first three members of the business committee, call it a quorum and take action on behalf of and in the name of the tribe.”
A resolution passed by the business committee on June 29 also indicates that the committee authorized, in a poll vote, the hiring of Spencer Fane Britt and Browne, LLP, to represent Spicer in his capacity as chief and as an individual in all matters regarding pending litigation in state or federal court. Resolution 24-062907 also authorizes the firm to represent the tribe's tobacco and gaming corporations and indemnifies Spicer for reasonable fees and costs incurred in any litigation.
To date, according to Edwards, the tribe has incurred more than $100,000 in legal fees for the two suits brought forth by the tribe against Ellison, including the case that was dismissed Thursday and a case dismissed in Tulsa County on July 31.
Green, representing the Seneca-Cayuga Tribe said Thursday that he will likely re-file the case after the business committee meets Tuesday and ratifies resolutions recently passed through poll votes.
Spicer said he could not say if the case would be re-filed.
“I think we are slowly working through the court system, resolving some of our problems,” Spicer said after Wantland ordered the dismissal. “It provides some needed time for both sides to act in a logical, rational manner.”
Spicer indicated that it was possible that all the “‘I's were not dotted nor the ‘T's” crossed when the tribal attorneys brought forth their suit, but the team was in the process of correcting the problems, all of which he said would have been clarified had the hearing been stayed until after a meeting of the tribe's business committee.
However, the court denied that request of the tribe's attorneys.
“I have the utmost respect for the judge,” Spicer said. “He is wise and fair. He offered no advantages to either side. That is all our side has ever asked for.”
Wantland was critical of tribal members “across the board” for “childish” behavior that forced the court to take action Aug. 4 to secure the documents of the tribe's claims committee. The court ordered the Bureau of Indian Affairs to secure the documents after Spicer issued an order restricting the duties of the claims committee. They, in response, staged a sit-in and refused to leave their office until law enforcement could secure the documents.
“I understand tribal disputes,” Wantland said. “I am no stranger to people acting like children. But, there is a responsibility that goes with sovereign government and administration of tribal business and politics. This court is not pleased. Act like adults.”
The judge subsequently addressed matters regarding a separate case in which a group of 109 tribal members has petitioned for the calling of a special general council meeting. The petition is one of several similar pleas that have been ignored by Spicer, according to tribal members who have repeatedly asked Spicer to address their concerns.
On Thursday, Wantland stressed to tribal officials that there “will be” a special meeting called of the general council and set a Sept. 17 hearing date to hear all challenges of the proposed meeting.
The defense has challenged the legitimacy of the signatures and the constitutionality of agenda items presented with the petition.
“I plan to call a general council meeting,” Spicer said. “I see the need, but we have issues that we have to clear up first.”
Spicer said the petitioners have stated some valid concerns in their request for a special meeting, but he would not be specific.
“I will not necessarily exclude (petitioned) items from the agenda,” Spicer said. “There are a couple of things that need to be addressed from their petition.”
Spicer called Thursday's dismissal a “step forward” for tribal government and the beginning of a process that may ultimately reunite the tribe.