{"id":23406,"date":"2016-04-13T08:07:16","date_gmt":"2016-04-13T15:07:16","guid":{"rendered":"http:\/\/spijue.wpengine.com\/news\/civil-case-filed-metlakatla-election-complaint\/"},"modified":"2016-04-13T08:07:16","modified_gmt":"2016-04-13T15:07:16","slug":"civil-case-filed-metlakatla-election-complaint","status":"publish","type":"post","link":"https:\/\/www.juneauempire.com\/news\/civil-case-filed-metlakatla-election-complaint\/","title":{"rendered":"Civil case filed: Metlakatla election complaint"},"content":{"rendered":"

KETCHIKAN \u2014<\/strong> Two Metlakatla residents who ran in that community\u2019s 2015 general election are alleging that the Metlakatla Indian Community and multiple officials violated both their civil rights and the Indian Civil Rights Act.<\/p>\n

Jim Scudero and Michele Gunyah, who ran for MIC mayor and secretary respectively, filed a complaint under the Civil Rights Act on April 1 in the U.S. District Court in Ketchikan.<\/p>\n

MIC Mayor Audrey Hudson was re-elected in the 2015 election, receiving 392 votes to Scudero\u2019s 351. Judith Eaton was elected MIC secretary, receiving 415 votes to Gunyah\u2019s 333 votes, according to election information provided by MIC at the time.<\/p>\n

Hudson, multiple MIC council members and MIC itself are named as defendants in the complaint.<\/p>\n

Christopher Lundberg, an attorney with the Portland-based law firm Haglund Kelley LLC, serves as Metlakatla Indian Community\u2019s general counsel. In an email sent Friday afternoon, he said he could not comment on pending litigation.<\/p>\n

An employee of the Metlakatla Council Chambers, also Friday afternoon, said that MIC officials had been instructed not to comment on the open case.<\/p>\n

Scudero, in a phone interview Friday afternoon, said that he and Gunyah have asked both Lundberg and the town secretary multiple times over the past five months to see the ballots but have been told that they are confidential.<\/p>\n

Gunyah, in a separate phone call, said she did not have much to say beyond what was in the complaint and that she feels that MIC and its officials are \u201chiding behind\u201d sovereign immunity.<\/p>\n

The federal complaint follows the March 18 dismissal in Metlakatla Tribal Court of a challenge to the election filed in that court.<\/p>\n

The complaint alleges several violations of the U.S. Constitution, Indian Civil Rights Act, the MIC Constitution and election ordinances, including:<\/p>\n

\u2022 The appointment of Council Member Jeff Moran as the lead ballot judge. Moran, who also is the director of the Metlakatla Department of Fish and Wildlife, allegedly selected a fishery opening for the day of the election, which the complaint claims forced the fishing community to file last-minute absentee ballots.<\/p>\n

\u2022 Charging the council chambers secretary \u2014 who allegedly was not appointed an election ballot judge or given the oath of office for a ballot judge \u2014 with handling of absentee ballots.<\/p>\n

\u2022 Not following absentee ballot procedures by allegedly disregarding required signature cards for absentee ballots.<\/p>\n

Scheduling a fishery to open on the same day as the election \u201ccan only be seen as a form of gerrymandering, separating the non-fishing voting public from the fishing voting public,\u201d the complaint alleges.<\/p>\n

\u201cAny one of these acts alone are considered actions outside the scope of the authority of council and the election ballot judge,\u201d the complaint states. \u201cHowever, considered in combination there are considerable irregularities concerning this election.\u201d<\/p>\n

<\/p>\n

The Metlakatla Tribal Court case<\/strong><\/p>\n

The federal complaint also alleges that the ICRA has been violated, specifically Section 8, which reads in part: \u201cNo Indian Tribe in exercising powers of self-government shall … deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property.\u201d<\/p>\n

The Metlakatla Tribal Court case was dismissed using the doctrine of sovereign immunity and judicial jurisdiction, according to the federal complaint.<\/p>\n

\u201cPlaintiffs made an attempt to file an appeal to the courts and were denied and were told that plaintiffs had no grounds for this petition,\u201d the complaint states.<\/p>\n

Randal E. Steckel, chief judge for tribal courts in Washington state, served as the magistrate pro tempore in the tribal court case after Scudero and Gunyah \u201cdemanded the recusal\u201d of William E. Mcintyre, Metlakatla\u2019s chief magistrate, according to the federal complaint.<\/p>\n

Metlakatla Tribal Court Associate Judge Arthur G. Fawcett voluntarily recused himself from the case because he felt \u201cthat the plaintiffs\u2019 due process would be violated as I have already heard all conversations with the Metlakatla Indian Community\u2019s attorney, Christopher Lundberg, concerning the case,\u201d according to documents filed in federal court.<\/p>\n

Steckel, in his opinion dismissing the tribal court case, wrote that he had narrowed the petitioners\u2019 issues down to two: \u201cDoes the tribe have sovereign immunity as asserted?\u201d and \u201cDoes the tribal court have jurisdiction to adjudicate an election dispute within the tribe when the law already provides a remedy to adjudicate an election?\u201d<\/p>\n

In the first issue, Steckel wrote in part that: \u201cIn the case at hand, the plaintiffs have shown no exception to sovereign immunity and the tribe has not explicitly waived its sovereign immunity. In addition, there is no explicit grant from Congress that requires the tribe to waive its sovereign immunity. In addition, it appears to this court that the individuals being sued in their individual capacity were acting in their capacity as tribal officials and are therefore covered by the doctrine of sovereign immunity.<\/p>\n

\u201cThe plaintiffs have raised no issues or law that would overcome sovereign immunity of the tribe. Sovereign immunity acts as both a shield and a sword. The defendants may use sovereign immunity to defend against suits, but this doctrine also acts as a sword that eviscerates any suit brought against them. This may seem fundamentally unfair to the plaintiffs in this action, but it remains the law of the United States,\u201d according to Steckel\u2019s opinion, which was filed as part of the federal complaint.<\/p>\n

As for the second issue, Steckel\u2019s ruling read in part that: \u201cThe Community Constitution grants the community council authority over elections and does not provide for judicial review. Council acted on that authority and enacted the election ordinance and its exclusive procedures for challenging elections. These procedures were followed and the ordinance does not provide for judicial review. There is nothing in the Metlakatla laws that provides for judicial review of election disputes.<\/p>\n

… The decision to declare an election invalid would have been made only after council, by a vote of 3\/4 of its entire membership determined that the election process was conducted in a manner such that the results were subject to serious question. Absent clear and convincing proof of fraud, issues related to campaigns or the conduct of candidates in seeking support shall not be grounds to invalidate an election.<\/p>\n

\u201cThe Metlakatla Tribal Council has heard the evidence and has chosen not to invalidate the results of the election. Unfortunately, this is the only process set out in the tribal code and constitution to address election issues and this court must abide by the laws of the Metlakatla Indian Tribe,\u201d the document states.<\/p>\n

Scudero and Gunyah, in the federal complaint, allege that a denial of their appeal of Steckel\u2019s ruling violated ICRA Section 8, and that they were not informed by Steckel of their right to an appeal in writing after he issued his decision. They also attempted to file a \u201cNotice to Appeal\u201d with the Metlakatla Tribal Court, but allegedly were turned away on March 28 and not allowed to file, according to the federal complaint.<\/p>\n

On Friday, Scudero and Gunyah filed an emergency petition for a writ of prohibition in federal court, requesting that the U.S. District Court prohibit the Metlakatla Tribal Court and any of its magistrates from presiding over any further proceedings involving the tribal court case.<\/p>\n

\n

Relief being sought<\/strong><\/p>\n

Scudero and Gunyah, in the complaint, are requesting that the U.S. District Court:<\/p>\n

\u2022 Reverse the Metlakatla Tribal Court\u2019s dismissal of the previous case and award appropriate relief.<\/p>\n

\u2022 Grant subject matter jurisdiction over the previous case and offer Scudero and MIC membership due process and an opportunity to be heard on the merits of the case.<\/p>\n

\u2022 Undo the Nov. 3, 2015, election and order MIC to redo the election with an outside independent election moderator.<\/p>\n

\u2022 Grant any and all legal fees and expenses related to the case.<\/p>\n

Lundberg, on Monday, filed a motion in Metlakatla Tribal Court to recover his clients\u2019 costs from the tribal court case. The motion claimed $2,355.50 in costs related to bringing Steckel to Metlakatla: $1,059 for his flight, $500 for water shuttle transportation and $796.50 for Steckel\u2019s lodging and per diem.<\/p>\n

\u201cFurther, the community anticipates billing from the Northwest Intertribal Court System for Judge Steckel\u2019s services, along with additional proof of costs,\u201d the motion read. \u201cThe Community intends to file a supplemental request for costs once that information is received.\u201d<\/p>\n

Scudero, in a second phone interview Friday evening, said he\u2019s not looking for a new election, but an election audit. However, if wrongdoing is found during the audit, Scudero wants a full investigation and a new election.<\/p>\n

The case has been assigned to Chief U.S. District Judge Timothy M. Burgess. No court dates have been set, according to online federal court records.<\/p>\n","protected":false},"excerpt":{"rendered":"

KETCHIKAN \u2014 Two Metlakatla residents who ran in that community\u2019s 2015 general election are alleging that the Metlakatla Indian Community and multiple officials violated both their civil rights and the Indian Civil Rights Act. Jim Scudero and Michele Gunyah, who ran for MIC mayor and secretary respectively, filed a complaint under the Civil Rights Act […]<\/p>\n","protected":false},"author":107,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_stopmodifiedupdate":false,"_modified_date":"","wds_primary_category":4,"footnotes":""},"categories":[4],"tags":[75],"yst_prominent_words":[],"class_list":["post-23406","post","type-post","status-publish","format-standard","hentry","category-news","tag-local-news"],"_links":{"self":[{"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/posts\/23406","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/users\/107"}],"replies":[{"embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/comments?post=23406"}],"version-history":[{"count":0,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/posts\/23406\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/media?parent=23406"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/categories?post=23406"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/tags?post=23406"},{"taxonomy":"yst_prominent_words","embeddable":true,"href":"https:\/\/www.juneauempire.com\/wp-json\/wp\/v2\/yst_prominent_words?post=23406"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}