NEWS RELEASE
SAULT STE. MARIE
TRIBE OF
CHIPPEWA INDIANS
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Bouschor’s appeal to become candidate denied
SAULT STE. MARIE, MI – (March 7) – The Sault Tribe Court of Appeals issued a ruling today denying former tribal chairman Bernard Bouschor’s appeal on the election committee’s ruling that according to a specific tribal law, Mr. Bouschor and other defendants in an ongoing lawsuit are not eligible to be a candidate for elected office until such litigation has been resolved.
The appellate court ruled: “It is ordered and adjudged that 10.110 (2) (of the tribal code and as summarized above) is constitutional on its face and as applied … It is further ordered and adjudged that the rights of the petitioners have not been abridged in contravention (of) the equal protection clause … It is further ordered and adjudged that the petition in this matter is denied.”
Bouschor’s argument was that the tribal law, which was enacted by a vote of the tribal membership, violated his rights under the federal and tribal constitution as well as the Indians Civil Rights Act.
Bouschor’s appeal was filed on February 28. Oral arguments took place on March 3.
It should be noted that the tribal code requires the court to take extremely swift action should a complaint be filed under the election code.
The tribal court waived the time limits on oral arguments due to the complexity of the case in order to hear all the details from both parties.
Section 10.110 (2) of the tribal election code states: “No individual may run for election to office, who is currently a defendant in Chippewa County Circuit Court Case No: 04-7606-CC, in which the tribe is pursuing civil litigation against the defendants, including claims involving fraud, breach of lawful authority, breach of fiduciary duties owed to the tribe, and conversion of over $2.6 million, until such litigation has been finally resolved.”
The law was enacted on January 25, 2006.
Tribal court determined: “The right to vote is a fundamental right whereas the affirmative right to be a candidate is not. The petitioner (Bouschor) failed to the same extent in demonstrating that the petitioner (Bouschor) is a protected class of citizen … As such, this court may only invalidate the ordinance in question on the grounds of violating the equal protection clause of the Constitution if the discrimination has no rational basis.”
The court further determined: “… the bare fact is the tribe stated its rationale. There was a concern with fiduciary responsibility tainted by inevitable personal conflict arising from a 2.6 million dollar claim creating the potential for personal exposure … The court finds that the tribe was attempting to have elected officials who would not be personally conflicted. That is rational.”
The tribal court cited language taken from the resolution proposing the new law that plainly stated the tribe’s motives behind the law.
The resolution stated: “…it is inherent in the position of the chairperson and director that each owes certain fiduciary responsibilities to the tribe including duties of care and loyalty.”
According to court records, the court questioned Bouschor’s attorney Paul Shagan as to his thoughts regarding the fiduciary duty owed by elected officials to the tribe.
Mr. Shagan responded by indicating he did not think a “corporate concept” like fiduciary obligation is applicable to elected tribal officials.
The court further determined: “The point is that tribal voters decided for themselves that this was an appropriate restriction. The court also notes that the restriction is conditioned upon the Chippewa County case not being resolved. The parties would not be in their respective positions today of the lawsuit were resolved.”
The court elaborated further by describing the law as “an attempt to avoid the dilution of fiduciary duty by inevitable conflict with self interest. In fact, the proposal and approval of resolution 2006-114 can be seen as another example of the tribe attempting to refine lawful expectation from its elected officials who serve on the board of directors and are also employed by the tribe.”
Turtle Talk 