“Significant Further Proceedings”

The decision Tribal Council insiders refer to as the “second Kotelly decision” was a response to a renewed motion to intervene by Edward Smoke, Carol Herne, Erma White-Moore, and Barbara Lazore. The U.S. Court of Appeals had determined that their motion to intervene was not untimely and had remanded it back to the U.S. District Court. In her memorandum of opinion rendered March 18, 2002, Judge Colleen Kollar-Kotelly denied their motion:

…the Court concludes that Proposed Intervenors do not have a right to intervene for the limited purpose of appealing this Court’s Order of September 30, 1999.279

In the process of wiping away the last of the Constitutional Government’s legal appeals, Kollar-Kotelly inadvertently gave them a much-needed window of opportunity to keep their case alive. As part of her decision, she stated the following:

…this Court concludes that its grant of summary judgment in favor of the Plaintiffs and implicit remand to the agency reserved “significant further proceedings” for the BIA and the IBIA. Pueblo of Sandia, 231 F 3d at 880. The Court’s Memorandum Opinion and Order concluded that the BIA and IBIA had “acted arbitrarily, capriciously, and contrary to law in refusing to review for themselves the intensely disputed tribal procedures surrounding the adoption of the tribal constitution.” Ransom, No. 98-1422, slip op. at 2 (D.D.C. September 30, 1999) In so concluding, the Court signaled that any proceedings subsequent to the Court’s ruling on the pending cross-motions must involve a review, by the BIA and/or IBIA for themselves, of the procedures surrounding the adoption of the tribal constitution. The Court did not expressly order the BIA to recognize the Three Chief System of government, nor did the Court identify, in the event of such recognition, which three Chiefs should be recognized. As a result, in this Court’s view, there remained…more than the mere “ministerial” implementation of this Court’s ruling.280

Within days of this decision, the Constitutional Government’s lawyer, Michael Rhodes-Devey, Esq., wrote a letter to Franklin Keel requesting that the issue of recognition of the tribal government be revisited based on Kollar-Kotelly’s “clarification.” On June 5, 2002, Department of the Interior Assistant Secretary for Indian Affairs Neal McCaleb denied reconsideration of the agency’s earlier decision:

In a letter dated April 2, 2002, to Assistant Secretary Neal McCaleb, seven officials of the Constitutional Government seized upon the quoted language above insisting the District Court was mandating in its memorandum opinion that the Bureau now undertake a substantive examination of the tribal constitution election in 1995. We do not read the decision to require substantive proceedings now.

As the quoted language made clear, the remand for further proceedings occurred in the past upon issuances of the court’s decision of September 30, 1999. As the procedural history recited above and traced in the Court’s memorandum opinion clearly shows, those “further proceedings” at the agency level did occur and resulted in a final departmental decision by IBIA that was not appealed under the Administrative Procedures Act. The officials of the Constitutional Government had the opportunity to press the merits of their position on remand to the Bureau. However, they did not, being satisfied to object to the election of Three Chief Government officials on pre-constitutional tribal law grounds. When these officials represented to IBIA that they did not seek to contradict the Ransom decision, they implicitly accepted the notion that the Bureau had acted in an arbitrary and capricious manner when it recognized the Constitutional Government. Whatever mistake was made by the Bureau has been corrected by the Court, exposed on remand to further agency proceedings initiated by these same officials of the Constitutional Government, and mooted by the general tribal election of June 2000.

The Constitutional Government officials have not brought anything to our attention which would cause the Department to undertake the extraordinary action of reconsidering the Regional Director’s decision to recognize the Three Chief Government. Accordingly, the request for reconsideration is denied.

This decision constitutes the final agency decision for the Department. No further administrative appeals within the Department are available on this matter.281

With administrative remedies exhausted, supporters of the tribal constitution went to court seeking judicial review of the actions of the BIA and IBIA that recognized the Three Chief System as the rightful government of the St. Regis Mohawk Tribe. By this time an entirely new set of chiefs had been elected to that form of government.

U.S. Magistrate Judge David E. Peebles heard the case in the United States District Court for the Northern District of New York. His 56-page decision came down on February 11, 2004:

In sum, Judge Kollar-Kotelly’s decision in Ransom I suggests - and her subsequent decision in Ransom II confirms - the court’s expectation that the agency would conduct a review of the matter to determine for itself in the first instance whether the Constitutional Government should be recognized. It is equally true that instead of following the mandate by engaging in proceedings reasonably calculated to address and resolve the ultimate issue of whether the Constitution was properly adopted by the Tribe and, if so, later rescinded by subsequent referenda, the BIA mistakenly interpreted the court’s decision as a directive that the agency recognize the legitimacy of the Three Chiefs Government, even while at the same time voicing reservations over the defensibility of that result. Under these circumstances, I find that the actions of the agency were arbitrary and capricious, and thus must be set aside.282

Judge Peebles’ Summary and Order expanded upon this:

The question of Indian governance is a matter properly entrusted to each particular tribe and, to the extent that they may exist, the tribal courts. Despite this indisputable core precept, however, the question of who the federal government should recognize for purposes of its dealings with the tribe as duly authorized leaders is properly within the province of the BIA.

The issue of Tribal governance for purposes of dealing with the St. Regis Mohawk Tribe is, to be sure, a question that is both complex and controversial, as evidenced by the fact that the agency and courts have been unable to achieve unanimity on the issue. It is also a matter which this court is not empowered to decide, nor is its determination necessary for resolution of the questions raised by plaintiff’s APA challenge.

Critical to the present dispute is my finding that instead of undertaking a detailed factual inquiry, with input from both sides, and determining the issue of Tribal leadership based on those presentations, as contemplated by the court in Ransom I, the BIA instead considered itself bound by Judge Kollar-Kotelly’s decision in that case to recognize the Three Chiefs Government despite the agency’s continued belief that the Constitutional Government had raised legitimate arguments concerning its authority. It is clear, however, that the Ransom I decision did not mandate such a result, and indeed Judge Kollar-Kotelly herself has said as much in a subsequent decision.

It may be that those advocating in favor of the Three Chiefs Government ultimately prevail and convince the BIA of the correctness of their position on this score, particularly in view of intervening referenda and elections seemingly reflecting the will of St. Regis Mohawk people to revert to the Three Chief System. Before adopting this position and rejecting potentially conflicting election results, however, the BIA must allow the matter to be fully aired, and when a decision is made regarding what Tribal leadership is to be recognized, the agency should detail the reasoning employed to arrive at the determination. The agency’s decision to blindly accept the Three Chief Government in light of Ransom I, in lieu of engaging in such a meaningful analysis, cannot withstand judicial review even under the APA’s highly deferential standard. Accordingly, that determination will be set aside.283

The Plaintiffs had also asked the court to review two letters by Philip N. Hogen, Associate Solicitor, Division of Indian Affairs. The first letter, dated June 26, 2002, advised that Department of the Interior did not recognize any official appointed by the Constitutional Government as authorized to act on behalf of the tribe. It also stated that although the Tribal Court System was create by the Judiciary Act of 1994, no person was thereafter appointed or elected by the Three Chief Government to preside over that court. Consequently, the Court has not been recognized as empowered to issue binding “expressions of tribal law.”284

Hogen’s second letter, dated July 12, 2002 offered another rationale for the agency’s refusal to recognize the Tribal Court’s authority: the Judiciary Act of 1994 was rescinded by Tribal Council Resolution 2000-136 in July, 2000, reaffirming that the Tribe did not recognize or authorize the St. Regis Mohawk Tribal Court.285

Peebles addressed these letters in his decision:

Turning to the question of the agency’s position on the Tribal Courts, it appears clear that the Tribe’s judiciary, which was created in 1994 and thus predated the birth of the Constitutional Government, nonetheless depends for its continued authority upon recognition of the Constitutional Government, inasmuch as enactments adopted by the Three Chiefs Government have since abrogated the Courts, and in any event the Three Chiefs Government has never appointed a duly authorized judge to act on behalf of the Courts. Since the propriety of the Hogen letters addressing the authority of the Tribal Courts is therefore entirely dependent upon the soundness of the agency’s position regarding the underlying dispute over Tribal leadership, those letters similarly cannot withstand judicial review.286

Peebles went on to note that the parties in the case had engaged in settlement discussions among themselves prior to oral arguments of the cross-motions of the case:

Ultimately, while those negotiations ultimately failed, it appears based upon the record now before the court that the political gap is being bridged. It is questionable whether this decision will assist in fostering those efforts, or instead be deleterious to that process. Nonetheless, in deciding the issues now presented I cannot overlook the BIA’s stark failure to conduct a meaningful review and determine for itself whether to recognize the Constitutional Government, or instead the traditional Three Chiefs regime, and thus feel constrained to strike down the four agency actions now under challenge.287

In addition to striking down the agency’s actions, Peebles remanded the matter to the Department of the Interior “for further proceedings consistent with this opinion.”

279  Ransom v. Babbitt, Order, March 18, 2002, p. 2.  Index # TC—I—11.
280  Ibid, p. 17.  
281  Assistant Secretary - Indian Affairs Neal McCaleb to Michael Rhodes-Devey, June 5, 2002.  Index # TC—VI—36.
282  Tarbell, p. 44.
283  Ibid, p. 52-53.
284  Ibid, p. 22.
285  Ibid, p. 23.
286  Ibid, p. 53-54.
287  Ibid. p. 55.

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