Tribal judge's legal opinion says recent election was flawed

The Chippewa Cree Tribe's top judge has told the Bureau of Indian Affairs that a recent secretarial election at Rocky Boy's Indian Reservation may have been improperly administered and does not reflect the wishes of all of the tribe's eligible voters.

Chief Judge Gilbert Belgarde said in a legal opinion sent to local, regional and national BIA offices that the Jan. 6 election was flawed and should be thrown out.

The election received preliminary approval from BIA field officer James Monte, but must be reviewed and upheld by the regional office in Billings. The Rocky Mountain regional office said Thursday it is reviewing the election results.

During the secretarial election, voters approved measures that increase criminal misdemeanor penalties, change the date of primary elections, prohibit felons from seeking office and make tribal judge positions appointed rather than elected.

Belgarde, whose term expires in November, said allowing the council to appoint judges undermines the separation of powers. He said he would likely resign and seek a buy-out from the tribe if the election is upheld.

Belgarde faxed his opinion to the BIA on Monday. He provided a copy of the document to the Havre Daily News on Thursday.

According to Belgarde's opinion, the election did not comply with the Indian Reorganization Act of 1934 because the election was not driven by a voter petition. Under the act, a voter-driven initiative for a secretarial election requires a petition signed by two-thirds of eligible voters, the opinion said.

The requirement sank a 1994 effort to hold a similar election because proponents were unable to acquire the necessary signatures, Belgarde said.

Another federal law allows the tribal council to call for a secretarial election without a petition, but Belgarde said the practice gives the tribal council too much power.

He also said the tribal council should have established a constitutional committee to inform voters about the proposed constitutional amendments and to collect public input.

"Something is amiss here - the justification for why this was," Belgarde said Thursday. "I think a constitutional committee sure would have shown a lot of light on this. There has to be a reason - either a petition by the voters or a justification by the business committee."

Tribal officials have said the amendments to the tribe's constitution were prompted by citizen requests.

Belgarde said the election was not representative of the wishes of the majority of the tribe's eligible voters, which he estimated to number about 2,000. Only 374 people registered to vote in the election, and 161 actually cast ballots.

"One hundred and sixty-one people voting?" Belgarde said. "It's not representative of the 5,000 people" who live at Rocky Boy.

Belgarde said many people did not vote because poor weather prevented them from accessing polls, and that a large number of people were unaware that an election was being held.

He said in the opinion that voters were not notified about the election via certified mail, and that enrolled members who do not live on the reservation did not have the opportunity to vote.

"People from Rocky Boy who live in Havre, Great Falls, Missoula, Billings and out of state were completely in the dark on this election," the opinion said. Some elderly people who leave home infrequently were unaware of the election, and those who were aware were prevented by bad weather from going to the polls, the document said.

"The cars weren't starting. The snow was hip-pocket deep up here," Belgarde said Thursday. "I had to call for a snowplow just to get my vehicle out."

The opinion said many people living in secluded areas of the reservation do not subscribe to newspapers and were unaware of the election.

Belgarde said during the interview Thursday that he believes the results of the secretarial election would have been different had a greater percentage of people been informed about it.

"I think if this was done during the primaries or during the general election in November, it would have been more fair to the people of Rocky Boy," he said. "Off-year elections are not an accurate representation."

BIA regional tribal operations officer Jim Steele declined to comment about the opinion. He said the regional office has not yet approved the secretarial election.

"We're reviewing the process and reviewing the results," he said.

Tribal chair Alvin Windy Boy Sr. could not be reached for comment today. Vice chair Bruce Sunchild did not return phone calls seeking comment.

Voters considered five amendments to the tribe's constitution. Voters by a 95-64 margin passed an amendment allowing the tribal council to appoint the chief tribal judge and two associate judges. Those judges are now elected to four-year terms. The amendment also gives the council the authority to appoint a chief appellate court judge, who would appoint an unspecified number of appellate panel judges.

"This appears like it gives too much power to the Business Committee, because in essence, they appoint the court and the appellate court," Belgarde said. "It's not clear if there's any mechanism in there that they would use to select the judges and how long they would serve."

Voters voted 125-31 to adopt an amendment to move the tribal council primaries, now held in June, to October, reducing the lame-duck period for tribal council members from six months to one month.

Another amendment on the ballot, to increase the maximum penalty for misdemeanor convictions in tribal court from six months in jail and a fine of $500 to a year in jail and a fine of $5,000, passed 105-54.

The vote was 137-22 to approve an amendment to prohibit tribal members who have been convicted of a felony in federal or state court from running for tribal office within five years of the end of their sentence. It also applies to people who have been convicted in state, tribal or federal court of the use, possession or sale of illegal drugs.

The fifth amendment passed 106-51. It would delete a provision from the constitution revoking tribal membership if a person has been away from the reservation for 10 years without coming before the tribal council to apply for an extension of his or her membership.