The “Kotelly Decision”

Followers of Ahkwesáhsne politics refer to the outcome of Ransom v. Babbitt as the “Kotelly decision,” after Colleen Kollar-Kotelly, the US District Court Judge who heard the case. Her decision would become just as controversial as the tribal constitution at the heart of the case, because it ultimately threw out the government it created and replaced it with the Three Chief System.

Kollar-Kotelly issued her decision on September 30, 1999, a day that will live in infamy for the supporters of the constitution. The Defendants, the Bureau of Indian Affairs and the Interior Board of Indian Appeals, were criticized for their handling of the leadership dispute at St. Regis:

The Court finds that Defendants acted arbitrarily, capriciously, and contrary to law in refusing to review for themselves the intensely disputed tribal procedures surrounding the adoption of a tribal constitution, in crediting unreasonable decisions of a seemingly invalid tribal court, and in refusing to grant official recognition to the clear will of the Tribe’s people with regard to their government.245

Kollar-Kotelly accepted the Plaintiff’s argument that the constitution did not receive the required 51% approval of voters:

Based on the simple application of mathematics, it seems readily apparent that the Tribe never ratified the Constitution that lies at the heart of this dispute.246

She also rejected the decision of the Tribal Court Judge Christine Deom that the three tribal chiefs at the time had properly certified the vote as having passed:

Aside from the simple fact that 51% of the voters in the Tribal referendum did not choose to adopt the Constitution, the very language of the Tribal Court decisions should have given Defendants pause before they adopted that Court’s findings as federal policy. Judge Deom wrote that “[r]epeals in whole or in part of a Constitution must be clear and unmistakable and can never be implied or inferred…It always must be clear and specific and narrowly interpreted. As fundamental law, Constitutions are never amended or repealed by implication of any kind.” Lazore I; A.R. at vol. I, tab 12. Perhaps most damningly of all, she pronounced that “[c]ertification of the adopted tribal constitution is a special confirming act of the will of the people. Lazore II; at vol. I tab 29.

Judge Deom’s logic here is faulty to the extent that certification of the adoption of the Constitution, an act of the people to discontinue a governmental system that had existed for almost two hundred years and to implement in its place an entirely new and different paradigm of Tribal government, warrants the same degree of scrutiny as the does amendment of such a document. Defendants cannot deem to be reasonable the Tribal Court’s determination that the tribe unequivocally adopted the Constitution. While the Tribal Court spoke eloquently of the need to adhere to the strict language of the document when amending or appealing it, it utterly disregarded the ambiguities surrounding the Constitution’s adoption mechanism. The plain language of the Constitution indicates that 51% of the voters had to approve it. Unlike the word “majority,” a term explicitly replaced by the Tribe, “51%” is as clear and plain an electoral benchmark as the Tribe could create. Although the Constitution in question is not a federal statute, the Court notes that federal courts have limited the construction of words to their clear meaning when to do otherwise would intrude upon tribal sovereignty. See Utah v. Babbitt, 830 F. Supp. At 596.

Moreover, an incongruity exists when a court rules on the validity of a document by which itself was created.247

Kollar-Kotelly went on to dissect the decisions and actions of the defendants, the Bureau of Indian Affairs and the Interior Board of Appeals. First, she took exception to the BIA’s refusal to recognize the results of the June 1, 1996 referendum in which voters rejected the validity of the constitution. Then she cited the BIA’s refusal to recognize the results of the June 29 1996 “clean slate” election won by Alma Ransom, Hilda Smoke, and Paul Thompson in favor of the Constitutional Government headed by Edward Smoke. Defendant Franklin Keel, then the Acting Eastern Area Director of the BIA, had deferred to the decision of Tribal Court Judge Christine Deom, who found the June 1 referendum “unconstitutional” and the subsequent election “null and void.” The People’s Government appealed this decision to the IBIA but were unsuccessful. Since the federal government was continuing to rely on Tribal Court decisions to justify their recognition of the Constitutional Government, the People’s Government held yet another referendum on November 30, 1996, wherein they asked the community, “Did the Judiciary of the Saint Regis Mohawk Tribe act under valid Tribal authority?” In spite of the fact that 394 voted no and only 17 voted yes, the BIA—through New York Field Representative Dean White—continued to affirm the Constitutional Government as the rightful leaders of the St. Regis Mohawk Tribe…and continued to defend that position through yet another unsuccessful appeal by the People’s Government. As Kollar-Kotelly noted:

Not only were Tribal Court mechanisms disputed, and ultimately, non-functional, but when the Tribe sought to resolve these questions through referenda, the IBIA refused to accord recognition to these efforts toward resolution. The IBIA merely repeated the rhetoric of tribal exhaustion and federal non-interference with tribal affairs. By not determining for themselves whether or not the Constitution was valid, Defendants were derelict in their responsibility to ensure that the Tribe make its own determination about its government consistent with the will of the Tribe and the principles of tribal sovereignty.248

She also took exception with the pressure being put on the Tribe to embrace a constitutional system:

In a final affront to Tribal self-government prior to this litigation, the IBIA dismissed the Three Chiefs Government’s final appeals as moot because the Three Chiefs were elected to, and comprised, a functioning majority of the Constitutional Government offices. See Smoke III, 31 IBIA at 99. But the fact that Plaintiffs took on that label does not signal an abandonment of their pleas for the vindication of their right to self-determination. Because the BIA refused to acknowledge the will of the Tribe, thus holding up critical federal funds, the Three Chiefs maintained a façade of operating under the Constitutional Government. See Pls.’ Status Rep. at 3. In essence, Plaintiffs perceived a fiscal coercion that belied the tribal sovereignty and self-determination which Defendants profess to respect.

Finally, the record suggests that the BIA wanted the Tribe to embrace a constitutional form of government. In a November 18, 1996 fax from the Bureau’s New York Field Officer, Dean White, to Defendant Franklin Keel, White stated that “[w]e do have a collateral interest [in this dispute] as the Constitution and the tribal court were developed under Bureau funding.” A. R. at vol. III. On March 28, 1997, the Bureau responded to an inquiry about the tribal dispute from the Honorable John McHugh, the United States Representative for the congressional district in which the Saint Regis Mohawk Tribe is located. See A.R. at vol. I, tab 62. In its response, the Bureau noted that “over the years we have provided the St. Regis Mohawk Tribe with grants, contracts, and other financial assistance in order that the tribe might establish its own written governing documents…” Id.

In addition, the BIA took steps to frustrate the will of the Tribe and to support the Constitutional regime. In his fax to Defendant Keel, Dean White wrote of a plan to appoint a Three Chiefs Government member to fill a vacancy in the Constitutional Government. See A.R. at vol. III. Of the plan, White commented that “the idea to coopt the unrecognized council, which seems to have popular support, with the recognized governmental forum.” Id. While Dean White approved of the plan, he noted that Phil Tarbell, a proponent and key member of the Constitutional Government “balked at the idea.” See id.

The IBIA instructed the Tribe to pursue the question of Judge Deom’s authority and the validity of her rulings within the Tribal Court system, but the Tribe replied that the trial-level Court was non-functional. See, e.g., Smoke II, 30 IBIA at 90. Following the IBIA’s mandate that the Tribe decide these issues in a different tribal forum, the Tribe turned to the ultimate tribal forum—a referendum. See id. at 91; A.R. at vol. I, tab 43. When the referendum results made clear that the Tribal Court had no authority, the BIA and IBIA simply ignored the results. See A.R. at vol. I, tab 55. Defendants’ rhetoric endorsing the principles of self government and tribal sovereignty ultimately rings hollow here. The essence of tribal self-determination is the Tribe’s ability to choose for itself how its government will operate. For Defendants to refuse to acknowledge that choice because they disagree with it, or to actively seek to institute the form of government that they prefer, turns that notion on its head. Defendants’ repeated refusal to recognize the Tribe’s earnest efforts to undo its contentious certification of the Constitution, couched in the language of respect for tribal sovereignty, is disingenuous at best. Upon review, Defendants’ actions reveal themselves to be arbitrary, capricious, and contrary to law. For this reason, Plaintiffs are entitled to summary judgment. See 5 U.S.C. § 706(2)(A).249

Although her words were fairly damning to the Bureau of Indian Affairs’ handling of the constitutional debate, Kollar-Kotelly would eventually be called upon to clarify her decision and its implications for the future of governance of the St. Regis Mohawk Tribe. For the time being, however, the decision was hailed as a major victory for the People’s Government and the Three Chief System.

245  Chief Alma Ransom, Chief Hilda Smoke, and Chief Paul Thompson, Plaintiffs, v. Bruce Babbitt, et al., Defendants. 69 F. Supp. 2d 141 (D.D.C. 1999) (mem.). Memorandum Opinion, US District Court Judge Colleen Kollar-Kotelly, Civil Action No. 98-1422 (CKK), September 30, 1999, p. 2. Index #TC—III—5.
246  Ibid., p. 19.
247  Ibid., p. 20-21.
248  Ibid., p. 23-24.
249  Ibid., p. 26-27.

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