Wednesday, September 2, 2009

Petitioning Rights Case To Be Heard In Tribal Court On September 11

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Last Spring, Tribal members petitioned to enact their own version of a Freedom of Information Ordinance which was not permitted to go out for a referendum vote by Tribal members. The reasons for denying the members a vote on the proposed ordinance is the subject of a Tribal Court case filed by one of the petition sponsors, Mike Bartha.

The first hearing on the case will be held on September 11 at 2:30 in the Tribal Courtroom, which is the same room used for Tribal membership meetings. The topic for that court hearing is a motion filed by one of the defendants, The Mohegan Tribe (Tribal Council), that seeks to have the Tribal court drop the case before it is heard on its merits.

The substance of Bartha's case is that the Constitution allows for members to vote on ordinances created by Tribal members with a petition of 35 Tribal members signatures but the Tribe's election ordinance (created by the Tribal Council) has no provision for that right that is stated in the Mohegan Constitution. The petition was denied because the election ordinance makes no provision for that type of petition.

Article XII, Section 1 of the Mohegan Constitution states that "The members of The Tribe reserve to themselves the power to propose ordinances and resolutions and to enact or reject the same at the polls independent of the Tribal Council upon petition of thirty-five (35) of the registered voters within seven (7) days of such action."

While two petitions were successfully submitted this year to reject the Tribal Council's freedom of information ordinance, the one petition to enact a version of the freedom of information ordinance sparked by Tribal members who were on the Constitution Revision Commission was denied. It is that petition that was denied that is the subject of the current Tribal court case.

One of the petitions to reject a Tribal Council freedom of information ordinance went out for a vote by Tribal members and was defeated.

Bartha will be representing himself in court, without an attorney. Despite that, the Tribe has once again hired a team of top-flight attorneys to battle a Tribal member with no legal experience.

Two other civil rights cases were heard in the Tribal court this year. In both cases, Tribal members represented themselves at a total cost of $40 each, not including postage. It is estimated that the Tribe has spent about 4,000 times that amount to fight these inexperienced Tribal members in court.

"Its the drunken sailor syndrome," says one Tribal member about the fees the Tribe is paying their attorneys despite the fact that the Tribe has plenty of attorneys on staff that would not cost the Tribe anything additional to handle the case.

The other two cases challenged the election law that required Tribal members to vote for a pre-determined number of candidates instead of being able to freely choose who to vote for and the other case challenged the lack of due process in good standing hearings. The court ruled that the good standing hearings lack due process but the Tribal court was overruled by the Council of Elders, who administer the good standing hearings and act as the Tribe's supreme review body.

While Bartha believes the petition is legal based on the constitution, even the constitution is not entirely clear. While the constitution says, as noted above, that 35 tribal members can enact an ordinance another section of the constitution says that signatures of 40 percent of the voters must sign a petition to enact an ordinance.

Bartha asserts that the election code violates his right to petition to enact ordinances as guaranteed under the Mohegan Constitution and asks the Tribal Court to rule on the constitutionality of the election ordinance by its failure to refer to the Consitution's section concerning enacting ordinances with a petition of 35 signatures.

The courtroom is open to the public and Tribal members are encouraged to attend to see their court in action.

The attorneys hired by the Tribal Council contend that since the election ordinance does not mention anything about the Constitution's provision for referendums on enacting ordinances through a petition of 35 tribal members, then that provision of the Constitution should not be acknowledged.