Friday, January 22, 2010

Mohegan Tribal Court Dismisses Petitioning Rights Case

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Tribal members learned more about their petitioning rights in a decision handed down by the Mohegan Tribal Court late last year.

Judge Jane Freeman ruled not to go forward with a case brought by Tribal member Mike Bartha who asserted that the Tribe´s rejection of a petition he co-sponsored violated his petioning rights under the Mohegan Constitution.

Bartha claimed that Article XII, Section 1 of the Mohegan Constitution allows a petition of 35 Tribal members to trigger a referendum vote by tribal members to enact a law put forward by the petitioners. In Bartha´s case, the petition sought to hold a referendum on a Freedom of Information law that differed from the law enacted by the Tribal Council.

Although the Tribal government´s motion to dismiss was granted in October, the Tribal government conceded during a hearing that if the Tribal Council rescinds a law then Tribal members could re-enact that law by a referendum vote if a petition with 35 signatures is delivered within seven days of the Tribal council´s action.

¨The Constitution says Tribal members can enact laws. The Constitution says enact and not re-enact,¨ Bartha said during his hearing in obecting to the Tribal government´s interpretation that the Constitution means re-enacting canceled laws.

That was the Tribal government´s interpretation of the section of the Tribe´s Constitution at issue. Article XII, Section 1 on petitioning says, ¨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."

A separate section of the Cnstitution says that signatures of 40 percent of the voters must sign a petition in order to enact laws, also the requirement provided for in the election ordinance.

The Tribal government´s interpretation of the section of the Mohegan Constitution at issue in the case was not based on any source and is not provided for or even mentioned anywhere in the election ordinance, Bartha said in his memorandum for the hearing.

The judge´s ruling said, in part, that the case should not go forward because the election ordinance does not provide for petitions of 35 signatures to enact ordinances, therefore no relief can be granted.

Barha, a former chairman of the now-defunct Constitution Revision Commission, could not be reached for comment.