Response To Motion To Lift Stay Of Judiciary Election [UPDATE]

Following the Tribal Secretary Office’s receipt of a GTC Petition on the morning of Thursday August 28, 2014 regarding the exclusion of the Southeastern Oneida Tribal Services (SEOTS) polling site in Milwaukee from the inaugural election of the Oneida Tribal Judiciary, the Oneida Business Committee held an Emergency Meeting at 1:30 p.m. to discuss “Election Litigation” regarding the Stay that the Appeals Commission placed on the Judicary election as a form of Relief due to the Appeal filed by five Tribe members on August 22, 2014.

At that Emergency Meeting eight BC members voted unanimously to pass BC Resolution 08-24-14-A which says that the BC – out of the kindness and generosity of their hearts (snort) – was willing to make an “exception” and include the SEOTS polling site in the Special Election for the Judiciary which was supposed to have taken place during the July 12, 2014 General Election and would have included the SEOTS polling site.

The Oneida Tribe of Indians of Wisconsin’s Judiciary election was postponed to a Special Election due to screwups by (on?) the Judiciary Transition Team, the Legislative Review Office and the Legislative Operating Committee, the latter of which five BC members were a part of, including LOC Chair Melinda J. Danforth who is now BC Vice-Chair.

On Friday August 29, 2014 Tribal Attorney Patricia Stevens-Garvey filed a Motion to lift the Stay of the Special Election with the Appeals Commission on the basis of that BC Resolution, as well as asking Lead Judicial Officer Winnifred Thomas to grant “an exception to the 10 day requirement for a response”:

On Tuesday September 2, 2014 Appellants filed a Response:

From pages 1-2:

On Thursday August 28, 2014 the [BC] unanimously passed BC Resolution 08-28-14-A which cites BC Resolution 03-13-02-O (Exhibit A) which states that “the Oneida Constitution reflects an intent to promote the widest possible participation of Oneida people in their governance,” and that “the use of [a SEOTS] polling site is likely to increase participation in tribal elections.” So why would the Respondents ever exclude the SEOTS polling site in any elections?

[Footnote: The Oneida Law Office’s March 7, 2002 ‘Statement of Effect’ regarding BC Resolution 03-13-02-O, included in Exhibit A, states that the “resolution (a) designates a facility in Milwaukee be chosen in accordance with the Oneida Election Law, as a second polling site for the July 2002 and future Oneida elections,” but does not mention anything about the Respondents’ ability to selectively exclude or include the SEOTS polling site regarding Special Elections as opposed to General Elections.]

As demonstrated by the case now before the Court, decisions by “Oneida people in their governance” are determined not only via triennial General Elections but also via Special Elections. Therefore, Appellants ask again that the Court issue a Declaratory Ruling (as a form of relief sought in the Appellants’ Brief at the Trial Court level in this case, yet ignored in the Trial Court’s Decision) to address whether, in order to protect the “intent” of the Oneida Constitution by “promot[ing] the widest possible participation,” the SEOTS polling site should be included in all Tribal elections and not be excluded based on arbitrary and/or capricious decisions of the Election Board, the Business Committee nor the Appeals Commission.

The Respondents state in their Motion to lift the Stay of the Special Election that they’ll include the SEOTS polling site as an “exception” made at their discretion, underscoring the arbitrary and/or capricious nature of their theory about the inclusion of the SEOTS polling site in elections and demonstrating their belief that, despite their mandate and ability to abide by the Constitution’s intent to “promote the widest possible participation of Oneida people,” they chose not to without explanation or justification. Appellants suspect this suggests that ulterior motives were at play in the Respondents’ decisions based on their concerns regarding the impact the SEOTS polling site could have on election results, if not merely resulting from a lack of competence and/or disinterest in protecting and promoting the voting rights of all Tribe members.

BC Resolutions cannot trump the Election Law passed by GTC which states at 2.12.-10, “All Special Elecctions shall follow rules established for all other elections. …”

The Appellants’ Response goes on to say on pages 3-5:

BC Resolution 08-28-14-A states, “further delay of election for the new Judiciary until the Appellate Court of the Oneida Appeals Commission rules on the merits of the case would make it impossible to train new Judges and have them ready by the November 1, 2014 deadline[,]”

This sudden concern for meeting a ‘deadline’ stands in stark contract with the BC’s lax actions regarding other GTC directives, mandates and ‘deadlines’ that the BC has failed, and is failing to abide by.

As an example, BC Resolution 08-02-00-B states that the following be resolved: “[OBC]…recognizes a need, expressed by [GTC], that the Oneida Tribe should and must be restructured to meet the needs of the membership today and on a long term basis, and…[OBC] shall continue its efforts to bring back a restructuring plan that meets those needs and shall schedule a meeting during which restructuring plans, including the December 18, 1999 restructuring plan, can be properly introduced and lawfully adopted by [GTC].”  Yet, fourteen years later the BC has not brought a plan back to GTC for their lawful adoption.

Similarly, GTC voted on June 16, 2014 for a Land Use Plan to come before GTC for a vote no later than October 31, 2014 and for Community Meetings to be held prior to GTC being presented that plan for approval, yet no Community Meetings regarding the Land Use Plan have been announced and no October 2014 GTC Special Meeting date has been scheduled by the BC, despite the GTC’s approved ‘deadline.’

At the August 13, [2014] BC Regular Meeting the BC voted to cancel the September 22, 2014 GTC Meeting about the Tribal budget saying that the newly-elected BC needed more time to study the Tribal budget before presenting it to GTC for approval, but as of yet no GTC Meeting to address the Tribal budget has been scheduled despite the fact that GTC’s decisions at that not-yet-scheduled GTC Meeting could significantly impact the ability of the BC to implement the Judiciary by November 1, 2014.

Appellants argue that, likewise, GTC should be given more time to reconsider the practicality of the November 1, 2014 date for implementation of the Judiciary based on factors including their assessment of the ways in which the BC has implemented the Judiciary Transition Plan, scheduled the Judiciary caucus, and planned the Judiciary election, as well as serious budgetary concerns, in order to make certain that such an endeavor proceeds with the “widest possible participation of the Oneida people in their governance.”

Just as the BC exercised their ability on June 16, 2014 to come before GTC to request (1) a re-caucus of the Judiciary candidates due to errors made by the Legislative Operating Committee…, and (2) to postpone the election of the Judiciary from a General Election to a Special Election from which the SEOTS polling site was inexplicably excluded…, the BC now has the opportunity to schedule a GTC Special Meeting to apologize to GTC for delaying the Transition process by excluding the SEOTS polling site from the Special Election for the Judiciary and to request that GTC allow the BC to delay implementation of the Judiciary in order to guarantee the widest participation of  Tribe members in decisions regarding the election and implementation of the Judiciary.  Appellants maintain that this also includes the need for GTC to be able to consider whether to once again re-caucus Judiciary candidates. …

Whether the receipt of [the Appellants’ August 28, 2014] Petition had an impact on the Respondents’ decision later that same day to file the Motion to lift the Stay on the Special Election of the Judiciary by offering to make an “exception” and include the SEOTS polling site is uncertain, but the Petition was submitted in sufficient time for the Enrollments Office to certify the signatures in order for the Business Committee to be able to place the item on the September 10, 2014 BC Regular Meeting Agenda, as will be requested of the BC by Appellants. …

Appellants further maintain Respondents will suffer no harm (other than perhaps losing face) in being denied their Motion to lift the Stay of the Judiciary election and are instead required to take these matters before GTC for their consideration, whereas Appellants as a class and GTC as a whole will suffer harm by being denied the possiblity to delay implementation of the Judiciary due to actions by the Respondents and to decide whether to hold a new caucus, as well as how to notice and when to hold both a new caucus (if approved by GTC) and the Judiciary election, just as they did for the July 12, 2014 General Election.

On page 8 Appellants also point out a dire possibility if the Appeals Commission were to lift the Stay of the Judiciary elections:

Alarmingly, Section B., 2.12-8 of the Election Law states, “In the event of an emergency, the Election Board may reschedule the election, provided that no less than twenty-four (24) hours notice of the rescheduled election date is given to the voters, by posting notices in the prominent locations.”

Appellants are very concerned that if the Court grants the Respondents’ Motion to lift the Stay and allows the Election Board to make the decision as to when to reschedule the Judiciary election, the Election Board will likely claim that, due to the November 1, 2014 ‘deadline,’ the delay of the vote caused by the Court’s Stay meets their definition of what constitutes an “emergency” and they will choose to hold the election with very short notice, thereby causing harm to Tribe members by not “promoting the widest possible participation.”

The Oneida Tribe of Indians of Wisconsin’s Appellate Court has until Monday September 8, 2014 to issue a decision on the Respondents’ Motion to lift the Stay of the Judiciary Election, after which Appellants have five days to file a Reply to the Appellate Court’s decision.

UPDATE: At 8 a.m. this morning the Tribe’s Communications Dept. emailed Tribal employees a lame attempt at a PR spin piece dated September 2, 2014 which says,  “In order to implement General Tribal Council (GTC) directives for Oneida’s new Judiciary, the Business Committee (BC) designated a second polling site in Milwaukee for the Special Judiciary Election and asked the Election Board to recommend a new date in the near future.”

The statement also says, “The GTC directed the election of judges to be moved to a special election, which according to the Election Law does not require a second polling site.”

This stupidity is par for the course ‘blame the victim’ bull-diarrhea that Tribe members have learned to expect to dribble out of the Tribe’s Communications Dept. under Director Bobbi Webster, so let’s set the record straight, shall we?:

  1. The Business Committee was happy to exclude the SEOTS polling site UNTIL five Tribe members went to the Appeals Commission to make sure that the election wasn’t held UNLESS the SEOTS polling site was included. Those five lost at the Trial Court level but won a Stay in the Appellate Court. To act like the BC made their decision to include SEOTS without those five Tribe members having to fight for a fair election is shameful & sleazy.
  2. GTC ONLY agreed on June 16, 2014 to move the Judiciary election to a Special Election AFTER the BC voted on March 26, 2014 to pass BC Resolution 03-26-14-B, ‘Emergency Amendments to the Judiciary Law’ due in part to the fact that the Judiciary Law that the BC presented to GTC contained “an error in the draft, and the fields of study were inadvertently left out in section 150.11(b) for the Chief Judges[.]” [See also: Legislative Reference Office Statement of Effect re: Emergency Amendments to the Judiciary Law]
  3. Saying that “the Election Law does not require a second polling site” means that the BC is admitting that they believed they had the option to abide by the intent of the Constitution and GTC to include the SEOTS polling site but they simply chose not to without any explanation or justification as to why they chose to exclude 50% of the Tribe’s polling sites from such an important election.
  4. As Oneida Eye pointed out in our post above, it seems that the BC only takes GTC directives and mandates seriously when it suits the BC’s interests and needs, and ignores those GTC directives and mandates that aren’t helpful for their goal of consolidating power under as few people/families as possible. What about the Restructuring Plan that the BC promised FOURTEEN YEARS AGO to bring to GTC for approval but never did? What about the GTC Meeting to address the Land Use Plan that GTC mandated be held no later than October 31, 2014 following Community Discussions? Knowing the devious ways in which several ghoulish members of the BC have tried to disenfranchise GTC members from attending GTC Meetings, Oneida Eye wouldn’t be surprised if the BC scheduled that Land Use Plan GTC Meeting for Halloween in order to make it difficult for GTC members to attend. Tricks & Treason!
  5. As we stated in our post above, we know exactly what the BC means when they say that they “asked the Election Board to recommend a new date in the near future.” Section B., 2.12-8 of the Election Law states: “In the event of an emergency, the Election Board may reschedule the election, provided that no less than twenty-four (24) hours notice of the rescheduled election date is given to the voters, by posting notices in the prominent locations.” That means that if the Appellate Court lifted the Stay on Thursday, the Election Board could decide to hold the vote on Saturday. How would that kind of short 24 hour notice be fair to Tribe members in the the Milwaukee-area or the Oneida-area? How would that be ‘justice’?

The statement’s feeble attempt at blaming GTC for the LOC/LRO’s mistakes and the BC/Election Board’s choice to disenfranchise voters also includes this punchline: “While we respect the authority of the Oneida Judicial System, the BC is charged with implementing the GTC decisions directing that Tribal judges complete 60 hours of training and the new Judiciary begin serving the Oneida Tribal public on November 1, 2014. Our decision protects the integrity of our Judiciary’s future.”

So the BC’s original plan was – by their own decision – to hold the first-ever election for the Judiciary to the exclusion of the SEOTS polling site without informing GTC until the BC thought it was too late for GTC to do anything about it, and now they’re mad because five Tribe members were successful in standing up for all Tribe members by going to the Appeals Commission to get a Stay against an unfair election, so the BC has finally decided to give in and do what they could have/should have done in the first place, and now the BC is crying around about the need to protect the “integrity” of the Judiciary when they didn’t give two sh¡ts about the integrity of the Judiciary election.

Have you stopped laughing yet?

Then consider this: The BC has already discussed the need to renew Cost Containment measures in the FY2015 Tribal Budget which means that GTC needs to consider whether it can afford to implement the Judiciary during the FY2015 Budget, and what GTC would be sacrificing to make that happen, or whether GTC should delay implementation until the FY2016 Budget. Oneida Eye believes that GTC should be able to vote to decide that at the GTC Tribal Budget Meeting . . . if the BC ever schedules one.

So much for the BC caring about or respecting GTC. All most of them care about is further empowering their cabal at the expense of everyone else.

Be sure to read Oneida Eye’s April 3, 2014 post, Emergency Amendments To Judiciary Law & Transition Plan, and watch the play-by-play from the March 26, 2014 BC Meeting when the BC voted to circumvent the GTC-approved law and force GTC to vote whether to allow the BC to delay the Judiciary election:

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