Appellants’ Rebuttal to Respondents’ Brief, Docket No. 14-AC-012

The Respondents’ Brief starts off its Argument by saying:

“This is a challenge to the Judiciary Election.”

Actually, the Appellants’ action is a challenge to the unjust discrepancy between the standards by which General Tribal Council (GTC) intended for the election of the Oneida Tribal Judiciary to be conducted during the 2014 General Election, which would have included the Southeastern Oneida Tribal Services (SEOTS) polling site in Milwaukee, as opposed to the way in which the Respondents intended to conduct the Special Election of the Judiciary on August 23, 2014, which would have unnecessarily and unfairly excluded the SEOTS polling site.

The Appellants’ action is based on the Oneida Tribal Constitution’s intent as affirmed by BC Resolution 03-13-02-O, Milwaukee Polling Site [Exhibit A], which states:

“[T]he Oneida Constitution reflects an intent to promote the widest possible participation of Oneida people in their governance, and… the use of [the SEOTS] polling site is likely to increase participation in tribal elections [and] an approved facility in compliance with the Oneida Election Law, 2.8-0, Section B, located in Milwaukee, Wisconsin, is hereby designated as a second polling site for Oneida triennial elections, beginning with the July, 2002, election[.]”

GTC defended utilizing the SEOTS polling site for elections which affect the governance of the Oneida people by a majority vote at the October 27, 2013, GTC Meeting in rejecting a petition filed by Trust/Enrollment Chair Carole Liggins and signed by members of the Election Board which called for a “Resolution for the Dissolution of the second Polling site for [2014] triannual [sic] election to be on the next GTC Mtg. agenda, Semiannual or Special” [Exhibit B].

Instead of eliminating the SEOTS polling site as petitioned, the GTC Action Report for the October 27, 2013, GTC Meeting [Exhibit C] shows that GTC took the following action

“Motion by Madelyn Genskow to allow the voting process in Milwaukee to continue, seconded by Mike Debraska. Motion approved by a show of hands.”

GTC’s clear intent was for the election of the Judiciary to be conducted in accordance with the conduct of the 2014 General Election, as evidenced by GTC Resolution 01-07-13-B, Adoption of the Judiciary Law [Exhibit D], which stated that the election of the Judiciary would take place during the 2014 General Election that would include the SEOTS polling site per GTC’s adoption of the October 27, 2013, motion.

The Respondents’ official affirmation of the Tribal Constitution’s intent, the intent expressed by GTC in its insistence on including the SEOTS polling site in the 2014 General Election, and the intent expressed by GTC to include the Judiciary election in the 2014 General Election in its adoption of the Judiciary Law, all stand in stark contrast to the arbitrary and capricious decision of the Respondents to unnecessarily and unjustly exclude the SEOTS polling site from the delayed Judiciary election.

The withdrawal of the Judiciary election from the 2014 General Election and its delay to a Special Election was demonstrably due to Respondents’ actions as admitted by Oneida Business Committee (OBC) Council member (now OBC Vice-Chair) Melinda J. Danforth in the draft Transcript of June 16, 2014, GTC Meeting [Exhibit E; Page 9, Lines 464-473]:

“Therefore, the BC, the LRO, my staff, parts of the judiciary team that were responsible for legislation went back and looked through all the documents. …At that time, the GTC intent was that there were 2 sets of qualifications that were distinctly different for chief judges and non-chief judges. The March 26, 2014 action by the BC was nullified this morning by the BC. However, because it would potentially, negatively impact affect the applicants and the candidates that had applied and those who may have applied, it is the recommendation that we motion to withdraw from this election all of the judges positions and that they be rescheduled to a new special election. That would be fair to all the applicants, it would be fair to the GTC and it unfortunately it is a mistake and an oversight, we’ll take responsibility for that.”

Unfortunately, the Respondents’ desire to be “fair” did not extend to the way in which they planned to conduct the Judiciary election after GTC agreed to allow its delay in that, by excluding the SEOTS polling site, the Special Election scheduled for August 23, 2014, it would not have conformed to the standards of the 2014 General Election, which GTC had a reasonable expectation of due to the fact that there was no mention by the Respondents at the June 16, 2014 GTC Special Meeting that it was their intent to exclude the SEOTS polling site from the delayed Judiciary election.

Regardless of what challenges are outlined in the Election Law, the Oneida Tribal Judicial System (OTJS) has jurisdiction to hear cases regarding the Respondents’ violation of the Constitution’s intent by voluntarily, unnecessarily, and unjustly disenfranchising Tribe members with regard to an election that GTC directed the Respondents to include in the 2014 General Election which included utilization of the SEOTS polling site.

The Respondents’ OBC Resolution 08-28-14-A, Authorizing an Exception to Conducting the Special Election to Elect Judges for new Judiciary To Include Polling Places in Both Oneida and Milwaukee [Exhibit F], claims the ability to make a “one-time exception to the conduct of the Special Election [to] include polling sites in Oneida and Milwaukee[.]”

The Respondents are essentially arguing that the intent of the Constitution and the GTC Resolution to include the SEOTS polling site in the election of the Judiciary is somehow subordinate to the ability of the Respondents to arbitrarily and capriciously exclude the SEOTS polling site from an election which involves the governance of the Oneida people as long as there is nothing in the Election Law that specifically requires them to act otherwise.

Appellants also argue that the Respondents’ own official recognition of the Constitutional intent compels them to act faithfully and consistently with that intent to the degree that doing so is practicable, as does the GTC Resolution which included the SEOTS polling site in the Judiciary election, and that BC Resolution 08-28-14-A demonstrated that the inclusion of the SEOTS polling site was in fact reasonable.

The Respondents have not demonstrated that there was any distinguishable burden which prevented them from including the SEOTS polling site in the Judiciary election, nor that any harm would result from doing so, nor that there are any Tribal laws which required them to exclude the SEOTS polling site from the Special Election of the Judiciary, nor from any other Tribal election for that matter.

If any such laws did exist it would be within the jurisdiction of the OTJS to overturn such laws, just as it is within the jurisdiction of the OTJS to act with regard to the central question of this case:

Given the Respondents’ official recognition of the importance of including the SEOTS polling site in order to facilitate the Tribal Constitution’s intent and the conformity of the utilization of the SEOTS polling site to the Oneida Election Law, plus the undisputed fact that all Tribal elections involve the governance of the Oneida people, why would the Respondents ever opt to exclude the SEOTS polling site from any election involving the governance of the Oneida people if not for arbitrary and capricious reasons, especially an election in which it was the express intent of GTC to include the SEOTS polling site through the adoption of GTC Resolution 01-07-13-B and GTC’s rejection of a petition to exclude the SEOTS polling site from the 2014 General Election?

Notably, the Election Law, even after being amended in 2008 and 2010, says nothing regarding the SEOTS polling site despite the twelve year existence of BC Resolution 03-13-02-O authorizing the inclusion of the SEOTS polling site in Tribal elections, and no legislation nor amendments regarding the Election Board’s policies of including the SEOTS polling site have been forwarded to GTC by Respondents in keeping with Oneida Election Law, 2.2-2, which says:

“Actions of the Election Board regarding amendments to this law and policies adopted regarding implementation of this law are to be presented to the Business Committee who shall then adopt or forward action(s) to the General Tribal Council for adoption.”

Respondents state on page 4 of their Brief:

“The Trial Court went on to distinguish the Petitioner’s claim from the Oneida Election Law recognizing section 2.12 section B as the Business Committee’s authority for setting Special Elections.”

However, “the Business Committee’s authority for setting Special Elections” is not absolute as recently demonstrated by the Respondents being required to comply with the Tribal Constitution and to allow GTC to determine at the October 26, 2014, GTC Meeting if or when to set the date for a Special Election to address an OBC vacancy.

Chief Counsel Jo Anne House stated in her September 15, 2014, Opinion [Exhibit J]:

“Based on the litigation regarding the Special Election for the Judiciary positions, and consistent with electing Oneida Business Committee members, it is recommended that if a Special Election is called that polling places be scheduled on the Reservation as well as in Milwaukee.”

Appellants argue that the election of the Judiciary is of equal importance to the election of an OBC Council member with regard to the governance of the Oneida people, and it is the assertion of the Appellants that consideration of the inclusion of the SEOTS polling site for a Special Election of OBC as acknowledged by Chief Counsel Jo Anne House should have been extended by the Respondents to any Special Election for the Judiciary, as was the original intent of GTC in adopting GTC Resolution 01-07-13-B, as well as to all Tribal elections since they all involve the governance of the Oneida people.

Moreover, there is nothing in 2.12, Section B of the Election Law regarding the ability of OBC to exclude the SEOTS polling site from Special Elections nor the basis to the Respondents’ claim regarding their ability to arbitrarily and capriciously exclude the SEOTS polling site solely on their interpretation of BC Resolution 03-13-02-O which by now should have been presented to GTC for adoption in keeping with 2.2-2.

What could motivate the Respondents to keep the permanent inclusion of the SEOTS polling site in all Tribal elections in limbo other than their desire to be able to exclude that polling site arbitrarily and capriciously for political reasons, or perhaps their shared intention to try to eliminate the SEOTS polling site as was futilely advocated by members of the Trust/Enrollment Committee and the Election Board?

As for the Respondents’ argument that the Petitioners/Appellants did not include “a complete copy of the Rule/Ordinance in question…in the Petition for a declaratory ruling,” Appellants do so now by including a complete copy of the Oneida Election Law with this Rebuttal [Exhibit G].

The Respondents also state on page 4:

“…[T]he disenfranchisement issue [was] resolved in the decision. The issue of a Milwaukee Polling site for all General Elections and Judicial Elections may be moot as the new Judiciary terms are tri-annual [sic], i.e., at three (3) or six (6) years.”

The Respondents meant ‘triennial’ (once every three years, as opposed to ‘triannual,’ three times per year). Nevertheless their argument has been demonstrated to be faulty by the recent OBC vacancy which may or may not result in a Special Election, as might any vacancies occurring in the Judiciary.

For the Trial Court to find that there was “no disenfranchisement” when the Respondents arbitrarily and capriciously excluded the SEOTS polling site from the Judiciary election delayed by the Respondents’ own actions, despite the intent expressed in GTC’s rejection of the petition to permanently dissolve the GTC polling site plus GTC’s adoption of GTC Resolution 01-07-13-B and despite the Respondents’ own assessment that the SEOTS polling site “is likely to increase participation…in elections” in keeping with the Tribal Constitution[’s] intent to “promote the widest possible participation of Oneida people in their governance,” would be laughable, if it weren’t so treacherous and treasonous against the supreme governing body of the Oneida Tribe of Indians of Wisconsin.

The Respondents’ October 24, 2014, Brief states on page 4:

“The proper vehicle to consider the adoption of the Milwaukee polling site for all elections including Special Elections is by present [sic] the issue to the Oneida Legislative reference office to consider amending the Oneida Election Law or by presentation of a petition to the GTC. Under the Oneida Election Law §2.2-2, the Law may be amended by the BC or the GTC. Amendments or actions brought by the Election Board are presented to the BC for adoption or the BC can forward to the GTC for adoption.”

First, a petition would not have been able to achieve a Stay on the Judiciary election. Secondly, on Thursday, August 28, 2014, the Appellants did submit a petition with 68 signatures [Exhibit H] to the OBC Secretary’s office, which has been accepted by the Respondents [Exhibit I], with the intention that:

“…all Tribal elections include the SEOTS polling site, including the inaugural Judiciary Election as was GTC’s intent by voting to include the Judiciary in the 2014 General Election[.]”

Yet, the Respondents have failed to act on the Appellants’ petition by voluntarily adopting or proposing amendments to the Election Law to permanently include the SEOTS polling site in all elections given the fact that all elections impact the governance of Oneida people.

That is one of the reasons why Appellants have not rescinded this case from the Appellate Court, and why they hereby reiterate their request that the Appellate Court issue a Declaratory Ruling regarding the inclusion of the SEOTS polling site in all Tribal elections in keeping with the Respondents’ official assessment in BC Resolution 03-13-02-O that:

“[T]he Oneida Constitution reflects an intent to promote the widest possible participation of Oneida people in their governance, and… the use of [the SEOTS] polling site is likely to increase participation in the elections [and] that an approved facility in compliance with the Oneida Election Law, 2.8-0, Section B, located in Milwaukee, Wisconsin, is hereby designated as a second polling site[.]”

 


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