Page 2 of FFJ Case 2:96-CV-294 Support of Federal Defendant's Motion to Dismiss

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       Council members are elected by popular ballot. KBIC Constitution, Article III, Section 2. Article IV, Section 6 provides "Any member of the Keweenaw Bay Indian Community who is twenty-one years of age or over and who maintains residence on the reservation, and presents himself at the polls on election day, shall be entitled to vote in the district in which he resides."

       On December 17, 1994, KBIC conducted a tribal election. Subsequently, the Tribal Council refused to certify the results of the election on the ground that a number of people who had voted in the election were not eligible to do so according to the KBIC Constitution and By-laws.

       On May 20, 1995, the KBIC Tribal Council adopted Resolution KB467-95. (Exhibit 2). The Resolution stated: (1) that descendants of the original Keweenaw Bay Indian Community who met the criteria for membership set forth in Article II of the Constitution and the voter eligibility requirements of Article IV of the Constitution were eligible to vote in the election held on December 17, 1994 and would be eligible to vote in an upcoming election and election to amend the Constitution; (2) that descendants of the original community who had ancestors listed on the allotment rolls and who possess one-quarter or more Indian blood were eligible for tribal membership for all purposes other than voting and eligibility to hold elective office, (3) that there would be a Constitutional Convention in the month of July, 1995 which descendants of the original Community who met the constitutional criteria for membership and voter eligibility would be allowed to attend. Other tribal members who did not meet the constitutional criteria for membership and voter eligibility would be notified of the items discussed and allowed to submit written comments, ideas and suggestions on any proposed amendments.

       On November 7, 1995, the Tribal Council adopted Resolution KB-501-95. (Exhibit 3). KB501-5 declared a special election, to be held in December, 1995, for the purpose of adoptingcertain individuals into full voting membership in the Community. The resolution also provided that any individual adopted into the Community as a full voting member in such election would be eligible to vote in future tribal elections and in the constitutional convention.

       On November 13, 1995, plaintiffs, as individual tribal members and not as representatives of KBIC's Tribal Council, submitted resolutions KB-467-95 and KB-501-95 to Anne Bolton, Superintendent of the Michigan Agency of the Bureau of Indian Affairs (BIA) for the BIA's review and approval or disapproval. Plaintiffs request for review was based on Article VI, Section (k) of the KBIC Constitution which provides that the Tribal Council has the power to enact "resolutions or ordinances not inconsistent with Article II of this Constitution governing adoptions and amendment of membership, subject to review by the Secretary of the Interior."

       In a letter to plaintiffs dated November 27, 1995, Superintendent Bolton notified them that BIA review and approval or disapproval of the two resolutions was not necessary under the provisions of the KBIC Constitution. Ms. Bolton further informed plaintiffs of their right to appeal her administrative action.

       Pursuant to the administrative appeal process set forth in 25 C.F.R Part 2, plaintiffs appealed Superintendent Bolton's decision to the BIA Area Director, Minneapolis Area Office. On April 18, 1996, the Acting Area Director upheld Superintendent Bolton's decision and noted, "The authority to review a Resolution must be supported by reference to Tribal or Federal Law. In this case no authority exists for the review of Resolutions KB-467-95 and KB-501-95."

       The plaintiffs then appealed the decision of the Acting Area Director to the Interior Board of Indian Appeals (IBIA). On July -f9, 1996, the EBIA issued an order dismissing the appeal. (Exhibit 4). In its Order, the EBIA noted:

Appellants' ultimate goal here is to challenge the substance of Resolutions KB-467-95 and KB-501-95. In that endeavor, they clearly belong before a tribal forum. In this appeal, appellants have sought to bypass and even to usurp the Tribal Council's prerogative to submit, or not to submit, its resolutions to BIA for review. Since the question of whether or not the resolutions require BIA review is a matter of tribal law, appellants' proper recourse is, again, to a tribal forum.

29 IBIA 261, 262 (1996).

       Plaintiffs did not seek relief in tribal court. Instead, plaintiffs filed the present action which, in effect, seeks to challenge the substance of tribal resolutions KB467-95 and KB-501-95 in federal court.

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