Oneida Tribe of Indians of Wisconsin Chief Counsel Jo Anne House’s October 27, 2014, Opinion regarding Oneida Appeals Commission Decision 03-AC-030 makes startlingly odd and faulty claims about the various considerations of Tribal laws regarding addressing vacancies on the Oneida Business Committee.
Jo Anne House’s analysis focuses on a 2003 Appeals Commission decision regarding a vacancy on the Appeals Commission but combines that example with an inadequate assessment and application of both the Tribal Constitution and the Oneida Election Law in order to draw the unsupported conclusion that a Special Election to address an OBC vacancy can be conducted in a way that contravenes the Election Law without a 2/3 majority vote by GTC to do so.
Jo Anne House’s analysis correctly acknowledges that the Constitution and By-Laws of the Oneida Tribe of Indians of Wisconsin govern, in part, how an OBC vacancy could be addressed in that the Constitution states in Article III, Section 3, “The General Tribal Council may at any regular [or] special meeting fill any vacancies that occur on the Business Committee for the unexpired term.”
The Constitution’s intent is obviously to convey that only GTC, not OBC nor the Oneida Election Board nor the Appeals Commission, is allowed to decide how to address an OBC vacancy, which is in keeping with the official assessment in BC Resolution 03-13-02-O, Milwaukee Polling Site, which states:
“[T]he Oneida Constitution reflects an intent to promote the widest possible participation of Oneida people in their governance[.]”
However, a very important word in the Constitution’s sentence regarding GTC’s ability to address an OBC vacancy is “may,” meaning that GTC has the option to fill the vacancy at a duly noticed, held, and conducted GTC Meeting in conformity with Tribal laws as adopted and amended by GTC, or GTC may decide to not fill any OBC vacancies which would undoubtedly be in the best financial interests of the Oneida Tribe.
At the October 26, 2014, GTC Meeting to address an OBC vacancy, OBC Vice-Chair Melinda Danforth stated that the six (6) options outlined in the GTC Meeting packet were developed in the presence of, and presumably with assistance and the approval by, OBC’s “legal counsel” which would be members of the Oneida Law Office if not Chief Counsel House herself.
Those six options, labelled A—F in the GTC Meeting packet, include four options (A—D) which propose to address the OBC vacancy via a “Special Election” to be held following the decision by GTC at the GTC Meeting as to how to address the vacancy.
Jo Anne House’s analysis notes that, other than undeniably requiring that the decision of how to address OBC vacancies be made by GTC during a GTC meeting, there are no other specific directives nor restrictions in the Tribal Constitution regarding how OBC vacancies may be addressed.
What Jo Anne House’s October 27, 2014, analysis specifically lacks and fundamentally ignores is GTC’s adoption in 2008 of amendments to the Oneida Election Law regarding all Tribal elections of OBC at-large council member positions, including Special Elections.
GTC Resolution 01-04-10-A, Amendments to the Election Law, clearly states:
“[P]roposed amendments to the [Election] Law were presented to the GTC on October 11, 2008 and GTC approved the amendments that pertained to conducting primary elections[.]”
Following the adoption of those amendments regarding primary elections, the Election Law now reads at 2.12, Elections, Section A, Primary Elections; Business Committee:
“2.12-1. When a primary is required under 2.12-2, it shall be held on a Saturday at least sixty (60) calendar days prior to the election.
“2.12-2. There shall be a primary election for Business Committee positions whenever there are three (3) or more candidates for officer positions or sixteen (16) or more candidates for the at-large positions. …
(b) The fifteen (15) candidates receiving the highest number of votes cast for the at-large council member positions shall be placed on the ballot.
The Election Law does not state anywhere that primaries for the at-large council member positions are only required during General Elections. To the contrary, the Election Law plainly says “whenever.”
“Whenever” undeniably means “every time” an election for the at-large council member positions is held and that obviously encompasses both General Elections and Special Elections, which is further borne out by the Election Law as amended by GTC in 2010 which says in Section D, Initiation of Special Elections:
“2.12-12.All Special Elections shall follow rules established for all other elections. This includes positions for all Boards, Committees and Commissions.
“All” undeniably means “every” and the use of “this includes” clearly means “not limited to” elections which are simply about governance policy rather than about placing people into positions of governance, such as the Business “Committee.”
Chief Counsel House’s analysis must therefore be based on the indefensible theory that Special Elections which GTC mandates to be held to address OBC vacancies during OBC’s three-year term are inexplicably not “Special Elections” (as they are referred to in the October 26, 2014, GTC Meeting packet) but are somehow “Extra-Special Elections” and do not need to conform to the Election Law as approved and amended by GTC which specifically requires that a primary to be held 60 days prior to any election whenever there are sixteen or more candidates for an at-large council member position [2.12-1 & -2] and which also requires that Special Elections be held according to the same rules as General Elections [2.12-12].
GTC has made it abundantly clear via its amendments to the Election Law that it wants primaries to be held to narrow the field of eligible candidates for at-large council members down to fifteen (15) for the triennial General Election and that it wants that same rule to apply to Special Elections.
Deviating from the Election Law’s established requirements regarding the election of at-large OBC council members would unquestionably require GTC to collectively agree to do so by a two-thirds (2/3) majority vote as established by the Ten Day Notice Policy which says:
“III. Procedure:
“1. Any resolution or motion pertaining to due process, or action that would have a direct impact on budgets or operations of the tribe shall be subject to a 10-day notice requirement.
“a. Motions: …
“3. Action to overrule previous motions or resolutions shall require a 2/3 majority vote.”
This is reinforced by Robert’s Rules of Order As Used by the General Tribal Council which says:
“Two-Thirds Vote – used to overturn a previous action as identified in the Ten Day Notice Policy. Requires two-thirds of those voting to take action, excluding those who choose to abstain. The total number of votes, divided by three, multiplied by two. Fragments are included in the ‘yes’ votes as that is where two-thirds of the vote lies.”
IN SUMMARY, the governing documents to determine how to address an OBC vacancy are (1) the Oneida Tribal Constitution which allows for the OBC position to remain vacant at a significant cost savings to the Tribe during its current financial crisis, and (2) the Oneida Election Law as approved and amended by GTC in 2008 and 2010 wherein GTC gave OBC, the Oneida Election Board, and the Oneida Law Office specific direction as to how GTC wants all elections of at-large OBC council members to be conducted (if GTC directs that one is to be conducted) whether that be via a General Election or a Special Election, which is (A) to hold a primary 60 days prior to an election whenever there are 16 or more candidates for at-large OBC council member positions, and (B) that the rules for Special Elections be the same as the rules for General Elections.
For Jo Anne House to falsely claim otherwise demonstrates a total disregard for the law and for the expressed will of the supreme governing body of the Oneida Tribe of Indians of Wisconsin.
