3 NICS App. 242, Kowalski v. Lower Elwha Tribal Council (February 1993)

IN THE LOWER ELWHA KLALLAM TRIBAL COURT OF APPEALS

LOWER ELWHA KLALLAM INDIAN RESERVATION

PORT ANGELES, WASHINGTON

Kowalski v. Lower Elwha Tribal Council

No. LOW-CIV-8/92-112 (February 1, 1993)

SUMMARY

Appeal of Trial Court dismissal of Appellants' complaint challenging removal as officers of Tribal Business Committee. Trial Court dismissed complaint on grounds that is lack jurisdiction to review "council actions." The Tribe's Court Procedures Ordinance does not provide for Court jurisdiction to review "council actions."

Court of Appeals remanded the case to the Trial Court for fact-finding to determine whether removal of Appellants was "council action" within the meaning of the ordinance.

FULL TEXT

Before:            Chief Justice Elbridge Coochise, Justice John L. Roe and Justice Douglas Hutchinson.

Appearances:  Lane J. Wolfley, appearing for appellants, Rachel Kowalski and David Charles; Craig Ritchie, appearing for respondents, Carla J. Elofson and Elwha Tribal Council.

NATURE OF THE ACTION

Appellants were duly-elected officers of the tribe's Business Committee. Appellants were removed from office after an alleged "community council meeting and, subsequently, filed suit against respondents in Lower Elwha Tribal Court. The Trial Court dismissed the suit pursuant to the Lower Elwha Constitution and Bylaws, stating that it lacked jurisdiction over "tribal council actions." Appellants appeal the Trial Court order.

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FACTS

Appellants, Rachel Kowalski and David Charles, were duly elected as officers of the Business Committee. Following an alleged "Community Council" meeting they were removed from their positions. The facts are in dispute. The appellants filed suit in the Lower Elwha Tribal Court, naming Carla J. Elofson and the Lower Elwha Tribal Community Council as defendants. Oral argument was not considered at the trial hearing. The trial court dismissed on grounds of lack of jurisdiction over decisions of the Tribal Community Council. The trial court found that the complaint involved a decision of the Tribal Community Council and that the trial court did not have the power of judicial review of tribal council actions. Order of Dismissal, lines 11-15. The appellants filed this appeal.

DISCUSSION

The Court Procedures Ordinance does not provide for judicial review of Community Council actions. However, without a determination of whether the meeting removing appellants from office was, in fact, a Community Council meeting, there can be no determination of whether there is jurisdiction over this matter.

The Lower Elwha Court Procedures Ordinance, Section 4, addressing the powers of the court, states:

The Lower Elwha Tribal Council shall have only those powers granted to it by the Tribal Council in this and other tribal laws. The Tribal Court shall not have powers of judicial review of Tribal or general council actions . . .

Sec. B.1. further states:

The Tribal Court shall not have the power to ...[d]eclare actions of the tribal or General Council, to be contrary to the Tribal Constitution, or determine the power, authority or legality of actions of the Tribal or General Council.

The trial court refused to allow oral argument addressing jurisdiction. There was no offer of proof addressing whether the meeting resulting in appellants' dismissal from office was in fact a Community Council meeting. There were no findings of fact as to whether a quorum was present, whether the meeting was properly called, when it took place, how it was conducted, who was required to attend, who was actually in attendance, and whether there was a fair hearing.

The Constitution and Bylaws of the Lower Elwha Tribal Community restricts the Community Council's powers:

The Lower Elwha Community Council shall have the following powers to the extent that it can legally exercise them to administer the affairs of the Lower

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Elwha Reservation subject to any limitations imposed by applicable State laws, statutes of the United States, or published regulations of the Secretary of the Interior, Section 1.

The Constitution limits the scope of the Community Council's power and subjects them to not only their own prescribed limitations, but also to state laws, federal statutes and BIA regulations. In addition, Article VII of the Bill of Rights provides in part, "[n]o member shall be denied any of the rights or guarantees enjoyed by citizens under the Constitution of the United States, including but not limited to, . . . the right to petition for action or the redress of grievances, and due process of law." Constitution of the Lower Elwha Tribal Community.

The Court Procedures Ordinance expressly prohibits judicial review of council actions. However, there is no other forum provided for the review of petitions for action or the redress of grievances consistent with the Constitution of the Lower Elwha Tribal Community or the Indian Civil Rights Act.

The Indian Civil Rights Act, 25 U.S.C.A. Sec. 1301 provides,"[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person with its jurisdiction the equal protection of its laws or deprive any person or liberty or property without due process of law . . ." Sec. 1302(8). The purpose of the Indian Civil Rights Act was to "'secur[e] for the American Indian the broad constitutional rights afforded to other Americans,' and thereby to 'protect individual Indians from arbitrary and unjust actions of tribal governments." Martinez, supra, at 61, citing S. Rep. No. 841, 90th Cong., 1st Sess., 506 (1967).

Martinez noted the competing interests in the purposes of the Indian Civil Rights Act and stated "[i]n addition to its objective of strengthening the position of individual tribal members vis-a-vis the tribe, Congress also intended to promote the well-established federal 'policy of furthering Indian self-government.'" Id. at 62, citing Morton v. Mancari, 417 U.S. 535, 551 (1974); see, Fisher v. District Court, 424 U.S. at 391. Martinez stated that the goal of tribal self-determination was deliberate. The Indian Civil Rights Act does not contain all of the provisions provided for in the Bill of Rights but rather selectively incorporated and modified some of the safeguards within the Bill or Rights "to fit the unique political, cultural, and economic needs of tribal governments." Id. See, also, n. 13.

Although Martinez addressed the question of Indian tribe's immunity from Federal and State court and not from Tribal court, they found that Indian tribes have the right to make laws and enforce their laws in their own forums. Id. at 55, 65. "Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians." Id. at 65. See, e.g., Fisher v. District Court, 242 U.S. 382 (1976); Williams v. Lee, 358 U.S. (1959).

While due process is mandated in the Lower Elwha Constitution, it does not automatically provide for separation of powers or judicial review of Community Council actions. Although Martinez addressed equal protection under the Indian Civil Rights Act and not due process, the

3 NICS App. 242, Kowalski v. Lower Elwha Tribal Council (February 1993) p. 245

Supreme Court found it was up to the tribe to enforce their own laws for the promotion of self-government. The Lower Elwha Community Council may prescribe the appropriate forum addressing petitions for the right to redress grievances.

ORDER

IT IS HEREBY ORDERED, there being no findings of fact as to whether there was a Community Council action, that this Court must reverse and remand to the trial court for a determination of jurisdiction.