The following is the text of the revised complaint filed by Brokenwing in Tribal Court on May 4, two days before the injunction hearing. Keep in mind that these are the allegations of the Plaintiff. The defendants, the Mohegan Tribe and the Council of Elders have yet to respond to the allegations in this complaint:
1. Plaintiff is a Mohegan Tribal Member and is editor of the website Brokenwing Editorials.
2. Brokenwing Editorials is an independent and informational website in which substantially all content is written by Plaintiff.
3. The Council of Elders, on February 12, 2009, approved revisions to sections of the Enrollment and Membership Office Rules and Procedures that govern the good standing process to “enhance and clarify the due process protections provided for Tribal members.” Revisions include, but are not limited to,: 1) The designation of a three-member panel comprised of members of the Council of Elders to hear good standing requests; 2) The Council of Elders shall grant a review of a good standing recommendation provided that a written appeal by the affected tribal member is filed within 30 days; 3) The affected tribal member may be accompanied by a representative or family member at good standing hearings; 4) A table of possible punishments for nine types of violations has been added.
4. Plaintiff was notified in a letter dated December 9, 2008 that the Council of Elders accepted a “Good Standing” complaint made against Plaintiff by two (2) Tribal Councilors alleging that articles written by Plaintiff violated Chapter 31, Section 31.24, part (a)(6) of the Mohegan Code, which states, “willful misconduct of an egregious or repetitious nature, which results in significant harm to any person, property or financial interest of the Tribe, or which is seriously detrimental to the Tribe” and Chapter 31, Section 31.24 (a)(8), which states, “violation of any policies or ordinances of the Mohegan Tribal Council or Council of Elders.”
5. A final good standing determination was approved by the Council of Elders on April 30, 2009, in which Plaintiff was deemed not to be in good standing.
6. Plaintiff was not present when witnesses were questioned by the three-member panel of the Council of Elders, therefore Plaintiff could not examine, cross-examine or provide any rebuttal testimony regarding the various witnesses’ testimony. Plaintiff was not made aware of these various witnesses or the testimony given by these witnesses until after he was issued his preliminary good standing ruling.
7. The three-member panel could not compel the presence of witnesses or require the Tribal Council to deliver relevant documents and audio recordings requested by the Plaintiff.
8. The seven-member appeal body for good standing rulings includes the members of the three-member panel that issued the preliminary good standing ruling.
9. The Council of Elders determined that Plaintiff violated Chapter 31, Section 31.24, part (a)(8) of the Mohegan Code but failed to present any written policies or ordinances that were actually violated by the Plaintiff.
10. Article XI, Section 1, of the Mohegan Constitution states that “The Mohegan Tribe, in exercising its powers of self-government, shall make no law inconsistent with The Indian Civil Rights Act of 1968 (25 U.S.C. §§1301-1303; 82 Stat. 77), which requires that the Tribe not: (a) Make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances.”
11. Article XI, Section 1(h) of the Mohegan Constitution states that the Tribe not “Deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without the process of law.”
12. The “Good Standing” forum/court is not listed as part of the court system in the Mohegan Court System Ordinance, enacted on October 12, 2008.
13. The Court System Ordinance provides for a Peace Keeper that could potentially resolve disputes in a fashion that would be less costly and burdensome on the Court System and the parties involved.
14. On May 2, 2009, the Council of Elders denied Plaintiff’s request to discuss details of the good standing process in order for Plaintiff to petition against the good standing resolution in accordance with Article XII, Section 1 of the Mohegan Constitution.
CLAIMS, INJURIES OR DAMAGES:
1. Chapter 31, Section 31.24, part (a)(6) of the Mohegan Tribal Code, is too broad, violating Plaintiff’s due process.
2. Chapter 31, Section 31.24, part (a)(8) of the Mohegan Tribal Code, as applied, violates Plaintiff’s due process.
3. The Council of Elders application of unwritten (oral) laws violates Plaintiff’s petitioning rights guaranteed under Chapter XII, Section 1 of the Mohegan Constitution.
4. The Good Standing process and procedures violate Plaintiff’s due process.
5. The Council of Elders, by sitting as a good standing board, have removed themselves as the supreme review body for all cases involving the punishment of Tribal members, including Plaintiff, thereby denying Plaintiff his due process rights.
6. Plaintiff’s petitioning rights guaranteed under the Mohegan Constitution were violated.
7. A Peace Keeper has not been made available to Plaintiff.
Wherefore, the Plaintiff prays that this Court:
1. Rule on the constitutionality of Chapter 31, Section 31.24, parts (a)(6) on its face and (a)(8), as applied to Plaintiff, of the Mohegan Tribal Code.
2. Rule on the constitutionality of the process and procedures of the “Good Standing” forum/court.
3. Rule on whether the Council of Elders by sitting as a “Good Standing” forum/court violates the Mohegan Constitution and the Court System Ordinance by removing the Council of Elders of their duties as the supreme review body that would otherwise be available to Plaintiff and other Tribal members in exercising their rights under the Court System Ordinance.
4. Reverse the Council of Elders good standing determination made against Plaintiff.
5. Order the Council of Elders to make available information pertaining to future good standing resolutions in a timely fashion such that Tribal members are afforded the ability to petition against good standing resolutions.
6. Order the Council of Elders to appoint a Peace Keeper as required under the Court System Ordinance.
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