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 Fight For Justice

On the Keweenaw Bay Indian Community Reservation

Judge Thorne's 1995 Order

to hold an run-off election for judge using the same voters.



CASE NO. C-95-6 &7






On December 17, 1994, the Keweenaw Bay Indian Community held an election for several tribal offices, including the position of Tribal Chief Judge. The election for Chief Judge resulted in a tie between the two contestants. The defendant is the chief judge whose term of office expired with the December election. In the absence of a "duly elected" successor the defendant has "held over, in the office of the Chief Judge. Petitioners brought this action to remove the defendant and seeking to obtain a new election. Briefs in support and opposition were filed with this court. Oral argument was heard in these matters on April 20, at which time Milton Rosenberg appeared on behalf of petitioners. The defendant appeared pro se. At the request of the parties the record remained open to allow supplementation.

Petitioners subsequently filed an amended complaint and Defendant filed an amended answer. Petitioners have requested an injunction baring defendant from serving as chief judge of this court. Defendant has filed a motion for summary judgement. Memoranda were filed in support and opposition to the two requests. The Tribe entered an appearance in the matter through an amicus brief.


The standard of proof for a preliminary injunction is high. A number of different formulations have been presented in the briefs of the parties. This court adopts the four part test set out in United States Postal Service v. Stimpson, 515 F. Supp. 1149 (ND Fla. 1981). This test requires two traditional elements together with two focusing considerations. The two tests are first, a determination of the likelihood of success on the merits and second, a determination of the irreparable nature of the injury being caused. The two focusing considerations are an assessment of the harms to be balanced and a determination of what is in the public interest.

(Not public interest in the sense of fascination or obsession, but in the broader sense of what is best for the community.)

The question before this court then, as raised by Plaintiffs request for an injunction, is whether the facts and legal conclusions of this case support the issuance of a preliminary injunction. In other words: 1) How likely is it that Plaintiffs will prevail on the merits? 2) Will irreparable injury be caused by not issuing the injunction? 3) What are the competing harms at issue in this case? 4) Where is the public interest in this case?

At the same time, Defendant has filed a Motion for Summary Judgement. The standard of proof for a summary judgement motion is first that there is no dispute about the material facts of the case, and second that as a matter of law one side is entitled to judgement. In other words: 1) Are there material facts in dispute? 2) Is either party entitled as a matter of law to judgement?

Both of these motions raise essentially the same questions, although through different methods. Another way of looking at the issues presented is to examine whether any benefit is to be gained through additional factual development (either in discovery procedures prior to trial or in the actual trial). If not, is there an answer that ought to be reached in order to limit ongoing harm and controversy?


The essential facts of this case are clear. The tribal election of December 1994 ended in a tie. Since that time the incumbent has been "holding over", as the Chief Judge for the Keweenaw Bay Indian Community (hereinafter KBIC). These events are now threatened to be swept up in a larger controversy currently being litigated about tribal membership, and a disputed election. Judicial economy might suggest that all of these matters ought to be resolved simultaneously, if not together in one case. Balanced against this, however, is the knowledge that the other cases are not yet ready for final submission in that there are outstanding motions as well extensive factual development still to be accomplished. In the mean time, the community is without a court and chief judge that is distanced from the furor. The essential facts are clear, the question remains as to what the competing interests are and how severe is the threatened harm.


At issue is the role of the community in selecting the dispute resolution mechanism for this community. In probably the majority of tribal communities the judicial positions are filled by selection of the tribal legislative body, the tribal council.

(Reference the National Indian Justice Center and the National American Indian Court Judges Association, both organizations in daily contact with the almost three hundred tribal courts in the United States.)

In other tribal jurisdictions the judges are selected by the executive branch of the tribe, the tribal chairman or president or governor.

( The Navajo judicial systems allows the tribal President to make the selection, subject to confirmation by the Council. In another, not random, similarity to the federal system of judge selection in the United States the appointment is a lifetime appointment following a period of probation (usually two years).)

Rarely are tribal judges selected in a plebiscite. States are much more likely to involve elections either in the initial selection of a judge or determining whether the judge previously selected is to be retained in office. Tribal judges are usually selected for a specific term of years or they may serve at the will of the Council. Less often, as in the case of the Navajo court, tribal judges may serve a lifetime appointment.

It is not the place of this court to decide which system is preferable. Rather, the KBIC, in its Tribal Code, has decided that the community as a whole should pick its own judges. (KBIC Tribal Code Section 1. I 08.) In the this particular case the community voted, but the results were inconclusive; a tie resulted. Since that time the office of chief judge has been the subject of substantial controversy. The incumbent judge has been "holding over in the absence of a certified successor. Some states prevent this by drawing lots to determine a victor in an election that is deadlocked, others allow a holdover and provide for a new election. The KBIC Code has no formally sanctioned method for resolving such disputes.

(Section f. 109 of the Code provides some little guidance. "In the event of the removal, resignation, or permanent incapacity or inability to act of a trial division judge, a special election shall be held within thirty (30) days of such removal, resignation, or permanent incapacity or inability to act...... )

The community has, however, determined that it's judges ought to be elected by the majority of the members.

Instead of fulfilling its role as a resolver of controversy, the present KBIC tribal court has been the subject of intense scrutiny and considerable distrust. Until the matter is resolved the controversy will likely continue.


It is well-established law that the right to vote, and thereby participate in the electoral process, is fundamental. This point has been articulated by the U.S. Supreme Court: "In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections. . . " Dunn v. Blumstein, 405 U.S. 330, 336 (1972). In the present case, it is imperative that the right of Keweenaw Bay Indian Community members to participate in the selection of their Chief Judge be preserved. Those members are the appropriate body for ultimately deciding who should hold that office.

The Supreme Court reiterated the importance of that right in Wesberry v. Sanders, 376 U.S. 1 (1964). Speaking for the majority, Justice Black stated that "[n]o right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, we must live." Id, at 17. This principal was more recently affirmed in Burdick v- Takushi, 504 U.S. 428, 44, 112 S.Ct. 2059, 2067 (1992). Citing Wesberry, the Court went on to state that the electoral process must be structured to maintain "the integrity of the democratic system." Id.

As a general rule, English based common law does not grant a right to contest an election. Without a constitutional or statutory provision English based common law relied upon quo warranto, a proceeding to determine whether a person exercising power is legally entitled to do so.

(29 C.J.S. Elections Sec. 246 (1965).)

Quo warranto proceedings have been used to try and determine the title to numerous public offices, including judges, county commissioners, district and prosecuting attorneys, public school officers, and board of education members. (74 C.J.S. Quo Warranto Sec 8 (1951).) Quo warranto has been utilized in Michigan when no specific statutory mention was made of election contests, including in the case of election ties.

(10 Michigan Law and Practice Sec. 91 (1956). See also Ferzacca v. Freeman216 N.W. 469 Mch. 1927). )

Michigan law is not binding upon the KBIC because as a separate sovereign it is entitled to create its own law. This court, however, chooses to follow the example of Michigan, without reliance upon antiquated European writs. Rather, Indian communities are testaments to a hallmark of survivors, their ability to adapt to changing conditions and still honor the essential traditions. This court will honor the right of the community to choose its own officials and consequently to test their authority given by the members of the community. This suit is a legitimate attempt by tribal members to remedy a perceived injustice. Tribal courts, being essentially community courts, ought to facilitate the resolution of such fundamental disputes.

The community has a compelling need for a full-time Chief Judge. Without the presence of a certified duly elected Chief Judge, government officers, agencies, and the community are deprived of a recognized judicial authority. In addition, numerous vital functions of that office could be thrown into confusion, without anyone being specifically responsible to perform these functions. The court in Wheeler, et al. v. U.S. Department of the Interior, et, al., 14 ILR 2058 (10th Cir., 1987) cited just such a situation as a compelling reason for interfering with a tribal election. The Wheeler court stated that, since the Department [of the Interior] is sometime required to interact with tribal governments, it may need to determine which tribal government to recognize. Id at 2060. The lack of a certified Chief Judge is such a special situation. That need, in addition to the right of the electorate to select their own Chief Judge, supports the need for a new election.


The chief judge has been holding over for the last six months following the election in December 1994. The question has arisen as to whether it is proper for an elected official, particularly a judge, to hold over following a tie. There is a split in authority as to whether a hold over, is proper. In 1887 the U.S. Supreme Court in Badger v. U.S, 93 U.S. 599 (1887), found that when in official's term is fixed by statute, that official's power ends when his term expires and his right and power to perform the duties of the office is at an end, as completely as if he had never held the office.(Badger at 601.) This case did not deal directly with a hold over attempt. In 1901, however, the Supreme Court appeared to sanction a hold over. In Waite v. Santa Cruz, 184 U.S. 302 (1901), the Supreme Court held that a public official whose term had expired and who was discharging his duties in full view of the public, and without appearing to be an interloper, may bind the entity in which he holds office to legal responsibilities. (Interestingly, Badger, which did not deal with a "hold over," is not cited in this opinion). In the absence of a statute specifically authorizing a "hold over' the Virginia Supreme Court found that the proper course of action was to declare the office vacant. Burnett v. Brown, 72 S.E.2d 394, 401 (Va. 1952). As recently as 1979 the Iowa Supreme Court has read a statute describing a term of office to be for two years and until his successor has been elected and qualified, as permitting a "holding over."

(Westphal v. City of Council Bluffs, 275 N.W.2d 439 at 441 (1979), citing Downing v. Cree 195 Iowa 57, 190 N.W. 36 (1922), the Iowa Supreme Court allowed the incumbent officer to immediately become a holdover officer automatically, by operation of law. They did note that the term was not equal to the original term, but simply until the next general election and the successor was qualified. They noted that this was the general rule. Downing at 443.)

In this particular case it should be noted that the incumbent judge has held over in his position as chief judge and administrator for the system, but has gone to great lengths to ensure that the official actions of the position are not used for inappropriate purposes.

(For example, the incumbent and the associate judge, whose term did not expire and who is acknowledged to be related to the petitioners and the opposing candidate in the election, both acknowledged and signed the order bringing an 'outside' judge in to settle this matter. Nothing has been submitted for inclusion in the record that would indicate any controversial actions other than the decision to hold over following a deadlocked election. Nor has the incumbent judge sought to argue that the election was not a tie, although there is some evidence in the record of different vote counts resulting in a majority for the incumbent. All in all, there seems to be a diligent effort by everyone connected with the court system no matter there own personal spin on this particular dispute, to uphold the integrity of the KBIC court system. They are to be commended for their dedication to a fair and just system)

In addition the Council has recently, by formal resolution, acknowledged the incumbent as a hold over. The Council indicated their initial acquiescence and then their outright approval/appointment. In order, however, to restore public confidence in the judicial system it is necessary to have a duly elected person serve as chief judge for the KBIC.


In the absence of special constitutional or statutory provisions, an election remedy is generally beyond the control of judicial authority.(29 C.J.S. Elections § 246 (1965).) For this reason, in the case of contested elections that result in a tie, a court's judgment may go only so far as to declare that the election is void or that the contestee was not elected. Noble v. Bowman, 60 S.W.2d 948 (Ky. Ct. App.1933). The remedy should ordinarily then be determined by a statutory scheme.

In the instant case, a provision within the tribal code provides guidance on this issue. The Keweenaw Bay Indian Community Code states that when a sitting judge is removed, resigns, or is permanently incapacitated or unable to act, an election for the position must be held within thirty days. Section 1. 109, KBIC Tribal Code. In this particular case, because of a tie, the office is without a certified chief judge. This court, therefore, determines it to be vacant, with a temporary hold over incumbent performing the duties of Chief Judge. A special election must then be held within the next 30 days, pursuant to KBIC Code section 1.109.

Therefore the following order is hereby entered.

1) The Motion for an injunction is granted in part and denied in part. There is sufficient likelihood that the plaintiffs will prevail on the merits and a new election be ordered. There is not sufficient likelihood that the plaintiffs will prevail on the question of a hold over judge. The irreparable injury at stake is the issue of illegal orders being issued by the court system. Balancing the various harms and factoring in the community interest is set out above, a new election is necessary for the position of Chief Judge.

2) The Motion for summary judgement is granted. There are no material facts in dispute. The election resulted in a tie. As a matter of law Defendant is entitled to hold over, but only until a special election can be called, pursuant to section 1.109 of the KBIC Code.

It is therefore ordered that:

The current chief judge is confirmed as a hold over chief judge, including actions taken since the December election. A new election must be held within 30 days. In that special election the candidates and the electors shall be taken from the same list as was effective for the 1994 election. The controversy about voter qualification must await resolution of the other cases, which have not been fully submitted by the parties. This case is decided solely upon the question of an empty seat being filled by those persons qualified to vote at the time the election was held in December. The need of the community to have a chief judge above controversy, taken together with the Code provision requiring an empty seat to be filled by special election within 30 days, require this court to declare the position of Chief Judge vacant, with the incumbent holding over as a temporary measure, and further order that an election of the membership must be held within 30 days to elect a new chief judge to fill out the remainder of the vacant term.

In the future it would be wise for the Council to deal with this question by statute, either recognizing the right of an incumbent to hold over, or providing another mechanism to ensure that such an important community position is not thrown into unnecessary controversy. Until such time -as the Council passes an ordinance governing future election ties, this order will serve as precedent.

Dated this 27 Day of June, 1995.

William A. Thorne, Jr,
Special Judge by appointment

To read a brief summary of FFJ and it's begining read Tina Lam's Detorit Free Press article

Copyright 2001 by Rose Edwards. All Rights Reserved.