Page 1 of FFJ Case 2:96-CV-294 Opposition to Motion to Dismiss

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

 

DEBRA WILLIAMSON-EDWARDS,
et al.,
Plaintiffs,

VS. Case No. 2:96-CV-294

HON. DAVID W. McKEAGUE
BRUCE BABBITT, as Secretary of the Interior, et al.
Defendants.

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PLAINTIFFS' BRIEF IN OPPOSITION TO MOTION TO DISMISS

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Facts

     The plaintiffs are enrolled members of the Keweenaw Bay Indian Community,1 who have brought this action challenging the refusal of the Secretary of Interior (hereafter "Secretary") and his delegates to exercise the review of tribal membership resolutions as undertaken by the Secretary in the act of approving the Keweenaw Bay Tribal Constitution.

     In January 1995 then-Chairman Fred Dakota and members of the Keweenaw Bay Tribal Council canceled the results of the annual tribal election, denied seats to four newly-elected Council members, and inaugurated a plan to disenroll some 200 enrolled tribal members and voters. In implementation of this plan the Council passed two resolutions, 467 and 501, which are the subject of this action. The first resolution declares that certain enrolled members shall no longer have the right to vote or hold office, but shall continue to exercise treaty rights. The Plaintiffs Williamson-Edwards, Kramer and Baron are included among the persons affected by this resolution. The second resolution sets up a procedure for having the persons who have been stripped of membership rights under Resolution 467 apply for adoption pursuant to Art. II, Sec. 2 of the Keweenaw Bay Constitution.

The Keweenaw Bay Constitution recognizes two classes of members: members by right under Art. II, Sec. 1; and members by adoption, pursuant to Section 2. Under Art. IV, Sec. 6 of the Constitution, all members over the age of 21 and presently residing on the reservation are entitled to vote in tribal elections. However, under the Constitution, members adopted pursuant to Art. II, Sec. 2, may vote but "shall be excluded from participating in any rights or claim arising out of treaties, and from the right to hold office in the Community." Art. II, Sec. 2.

The plaintiffs are all enrolled under, Section 1. In addition, their names are included in the roll of Keweenaw Bay members entitled to participate in the distribution of proceeds from a treaty judgment awarded to the Keweenaw Bay Tribe. Recognition of this roll for treaty purposes was expressly sanctioned by Congress. 25 USC 1300h-6. Under the Keweenaw Bay -Constitution, such entitlement is only available to persons enrolled under Art. II, Sec. 1. Operating in tandem, the resolutions in question confront persons who have been purged of their tribal membership rights with two alternatives: (1) to be persons allowed to exercise treaty rights but who are denied the right to vote or hold office, a classification unknown and contrary to Articles II and IV of the Constitution; or (2) to surrender the treaty rights they hold by participating in an adoption proceeding that would bar the exercise of treaty rights, in exchange for the right to vote.

Shortly after enactment of the second resolution the plaintiffs petitioned defendant Bolton to exercise the duty of secretarial review.2
Art. VI, Sec. l(k) of the Keweenaw Bay Constitution provides the Tribal Council with the power

To enact resolutions or ordinances not inconsistent with Article II of this Constitution governing adoptions and abandonment of membership, subject to review by the Secretary of Interior.

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1. In what follows, the terms "Tribe, 11 "Keweenaw Bay" or ."Community" should be understood as referring to this body.
2. Under the procedures for secretarial review prescribed in Article VI, Section 2 of.,t-he Constitution, such review is delegated in the first instance to the Superintendent of the Michigan Agency.welfare" enactment under Article VI, Section l(a), rather than a loss of membership provision under Article VI, Section 1 (k) . As to Resolution 501, dealing with the adoption referendum on the purged individuals, defendant Bolton again stated that it was a "temporary solution."

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