BIA Answer to the Judges order on our case.

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United States Department of the Interior

BUREAU OF INDIAN AFFAIRS

MINNEAPOLIS AREA OFFICE
BISHOP HENRY WHIPPLE FEDERAL BUILDING
ONE FEDERAL DRIVE ROOM 550
FT. SNELLING, MN 55111

MAY 13 1999

Honorable Wayne Swartz
President, Keweenaw Bay
Indian Community
107 Beartown Road
Baraga, MI 49908

Re: Williamson-Edward v. Babbitt, Case No. 2:96-CV-294 (W.D. Mich.), and resolutions. KB-467-95 and KB-501-95 Dear President Swartz:

In 1995, the plaintiff., in the subject litigation submitted Keweenaw Bay Indian Community (KBIC) Tribal Council Resolutions KB.467-95 and KB-501-95 to the Superintendent of the Michigan Agency for review and approval. By letter dated November 27, 1995, to the plaintiffs, the Superintendent declined to review or approve the Resolutions. The plaintiffs appealed to the Area Director. On April 18, 1996, the Area Director upheld the Superintendent's decision on grounds that the tribal governing body had not submitted the Resolutions for review and, therefore. there was no authority for the Bureau to review them, The plaintiffs then appealed to the Interior Board of Indian Appeals (IBIA) which dismissed their appeal on July 19,1996. 29 IBIA 261.

On November 18, 1996, the plaintiffs next initiated the subject litigation to compel the Secretary to review the Resolutions. The Federal defendants filed a motion to dismiss the cast. However, on May 22, 1998, the court denied the motion. The court concluded that the Resolutions in effect amended the KBIC Constitution and governed the adoption of members. (Slip Opinion at pp.13-14) The court went on to find that because of the nature of the Resolutions the Secretary had a duty to review them but expressed no opinion as to the merits of the Resolutions. (Slip Opinion at p.17) Lastly, the court also concluded that the Community was not a necessary party to the litigation. (Slip Opinion at pp. 20-23)

Following the court's May 1998 order, the attorneys for the United States and the plaintiffs entered into discussions to settle the litigation rather Ow engage in further protracted litigation. As a result of those discussions, the Federal defendants agreed to the Order entered by Judge David W. McKeague on January 13, 1999, pursuant to which we agreed to review and make a final decision on Keweenaw Bay Indian Community (KBIC) Tribal Council Resolutions KB-467-95 and KB-501 95 within 120 days. The Order requires that our decision on the Resolutions be filed with the court by May 13,1999.

The Superintendent Of the Michigan Agency has reviewed the Resolutions. She concluded that if the Resolutions had been properly before her they would have been disapproved. This is the Department's decision based on its review of the Resolutions pursuant to the court's January 1, 1999 Order.

Resolution KB-467-95 was enacted by the KBIC Tribal Council on May 20,1995 and defined who was eligible for membership in the Community and what voting rights those individuals possessed. Those individuals who met the requirements for membership contained in Article II and voter eligibility requirements contained in Article IV were eligible to vote in tribal elections and the election to amend the Constitution. However, if you did not meet the membership requirements, your rights were defined on page 4 of the Resolution as follows:

BE IT FURTHER RESOLVED THAT,

Descendants of the original Community who have ancestors listed on allotment rolls and possess one-quarter (1/4) or more Indian blood are declared eligible for membership in Keweenaw Bay Indian Community for all purposes, other that voting and eligibility to hold elective office. Upon submission of proper documentation to the Enrollment Committee and approval by the Tribal Council, said membership shall entitle these descendants to all benefits and responsibilities of membership including, but not limited to, equal access to all tribal programs such as housing, education, health, police protection, the court system, the exercise of treaty-rights such as hunting, fishing, gathering and taxation, equal participation in any future per capita land claims distribution or any future per capita gaming revenue distributions and any other benefits or responsibilities of membership in the Community not specifically mentioned herein, excluding voting privileges and eligibility to hold elective office; and

Membership in the KBIC is defined in Article II of the Constitution and Bylaws of the Keweenaw Bay Indian Community (Constitution). Individuals who meet the requirements of Section I possess all rights and privileges of membership. Section 2 allows individuals who do not meet the requirements of Section 1 to apply for membership with limited rights and privileges.

The provisions of Resolution KB467-95 are inconsistent with the terms of Article 11, Section 2 of the KBIC Constitution, Under the Resolution,

1) Individuals who choose to apply for membership according to Article II, Section 2 of the Constitution must be descended from someone listed on the allotment rolls;
2)The vote on the applicant's membership application is done by the Tribal Council and not by a majority vote of the Community's membership as provided in the constitution;
3)The individuals who are approved for membership under the Resolution are allowed to participate in rights and claims arising from treaties, Contrary to the express limitation in the Constitution; and
4)The individuals who are approved for membership under the Resolution are not allowed to vote, which is similarly contrary to the Constitution.

Based on our review of Resolution KB.467-95, the Resolution is contrary to the terms of the Constitution and the KBIC Tribal Council's adoption of it is an attempt to amend the membership requirements of the Constitution by Resolution. Constitutional amendments must be voted on by the membership of the tribe in accordance with the Article VIII-Amendments of the KBIC Constitution. Resolution KB-467-95, is therefore disapproved as being contrary to the KBIC Constitution.

Resolution KB-501-95 was enacted by the KBIC Tribal Council on November 7, 1995. The Resolution states that 184 individuals who voted in the December 17, 1994, election did not meet the membership requirements found in Article II, Section 1 of the Constitution and were therefore not eligible to vote in that election. The Resolution says:

NOW THEREFORE BE IT RESOLVED THAT,
Pursuant to Article 11, Section 2 of the Keweenaw Bay Indian Community Constitution and Resolution #KB-467-95, the Keweenaw Bay Indian Community Tribal Council hereby declares that there shall be a special election held on December [ ], 1995 for the purpose of adopting into full voting membership in the Keweenaw Bay Indian Community any or all of the individuals on the attached pages who first make written application for adoption to the Tribal Enrollment Committee at P.O. Box 320, Baraga, MI 49908; and

BE IT FURTHER RESOLVED THAT,
In addition to those voters deemed eligible to vote by Resolution #KB467-95, any individual who shall be adopted by a majority vote of the Constitutional membership on December 11, 1994 shall also be certified by the Tribal Council as eligible to vote in the next election for Tribal Council and Associate Judge as well as in the Constitutional convention.

Resolution KB-501-95 is in effect, or can be viewed as a disenrollment action by the Tribal Council on the 184 individuals whose names are attached to the Resolution, or at least, as a taking away of their voting rights. The Resolution states that these individuals do not meet the requirements of Article II, Section I of the Constitution, but it does not state whether these individuals were notified that their membership was in question before their membership rights were taken away, The taking way of membership rights without due process is a violation of the Indian Civil Rights Act. The Resolution also cites the membership requirements, rights, benefits and responsibilities of membership, and voting eligibility language from Resolution KB467-95. The validity of Resolution KB-501-95 is, therefore, dependent in part on the validity of Resolution KB-467-95,which I have found must be disapproved. For all the foregoing reasons, I disapprove Resolution KB-501-95 as being contrary to the KBIC Constitution and Federal law. These decisions are final for the Department.

Sincerely,

Larry Morin
Area Director