Members of the Seneca-Cayuga tribe remain divided just days before the first case is scheduled to be heard in the tribe's newly established internal court system.
On Monday, the Seneca-Cayuga District Court will hear a petition for declatory judgement and injunction regarding petitions for special meetings of the tribe's general council. The action was filed Oct. 3 by Seneca- Cayuga Chief Paul Spicer and specifically names nine members of the tribe, including Second Chief Katie Birdsong and Secretary/Treasurer Kay Crow-Ellison.
In the meantime, some members of the tribe and a plaintiff's attorney are questioning the validity of the court, despite the Bureau of Indian Affair's affirmation of the tribe's right to establish the court.
According to documents provided by the tribe, resolutions passed Aug. 23 include the adoption of a tribal code of laws and establishment of a tribal court and tribal police department.
Attorney Scott Edwards, representing Ellison, believes the resolutions are invalid.
“The Seneca-Cayuga constitution and bylaws does not grant either the business committee or the general council the authority to create a tribal judicial system,” Edward said. “The addition of a tribal judicial system is a fundamental change in the form of government established under the constitution and cannot be accomplished by simple legislative enactment without specific constitutional authorization.”
According to John Little, a tribal judiciary specialist with the Department of Interior, individual tribes have the legal right to abandon their relationship with the Code of Federal Regulations and reclaim their jurisprudential sovereignty.
“The legal process of establishing a tribal court is quite simple actually,” Little said. “The tribe must pass a resolution. The Seneca-Cayuga Tribe has passed that resolution and established its own tribal court.”
Jeannette Hannah, director of the eastern region of the Bureau of Indian Affairs agrees.
“Membership of the council clearly states that ‘supreme governing body of the tribe shall be the Seneca-Cayuga general council,'” Hannah said. “It does not include language limiting any of the subsequent articles in the constitution. Hence, the position of the bureau is that Tribal Resolution 60-082307 provides the authorization for the tribe to establish a tribal court pursuant to Article VI which states the business committee has the authority to act ‘in all matters on which the tribe is empowered to act'.”
Using case example Comstock Oil and Gas Inc. v. Alabama and Coushatta Indian Tribes of Texas Edwards argues that the Seneca-Cayuga Constitution must be amended by the people of the Seneca-Cayuga Tribe before the tribal government may impose a judicial branch of government on the tribe.
“The Seneca-Cayuga Constitution requires the Secretary of Interior to submit a proposed constitutional amendment to a referendum vote where at least 30 percent of the voting members of the tribe participate and the amendment is approved by a majority vote,” Edwards said. “Unlike some tribes, the Seneca-Cayuga tribe has retained the provision in their constitution that requires the Secretary of Interior to conduct an election.”
In a telephone conversation with Hannah last week, she stated that the tribe has completed the necessary steps to establish a tribal court with the exception of providing the BIA with a copy of the tribe's law and order code and a request to be removed from the CFR listing.
“On both the requirements, the tribe has the option of requesting of the Assistant Secretary of Indian Affairs a waiver of the regulations,” Hannah said. “The Assistant Secretary has the sole authority for waiver of Federal regulations not mandated by law.”
In a letter to Spicer, dated Oct. 30, Hannah acknowledges that the tribe has requested such waiver.
“Chief Spicer's urgent desire to immediately establish a tribal court is his need to stop the general council from assembling on Nov. 10,” Edwards said. “The Chief needs BIA recognition to legitimize his otherwise constitutionally invalid court. If he is successful, he will have used the BIA to stop the peaceful assembly of tribal members and prevented the exercise of their constitutional right to petition for action and redress their grievances. These rights are granted by law under the federal Indian Civil Rights and the Seneca-Cayuga Constitution.”
Spicer contends that he has a moral and legal obligation under his elected authority to protect the tribe and its interests. He said he will continue to do just that.