Saginaw Chippewa Tribal Appeals judges have ruled that several members can be removed from membership rolls, but the attorney representing those people said Tribal officials have more work to do before that can happen.
Paula Fisher, who is representing 233 living and deceased Tribal members facing disenrollment, said their cases will be remanded to the Tribal office of administrative hearings and that “the Tribe will have the burden of proving by clear and convincing evidence that each of these Tribal members received their membership as a result of a mistake which is defined as willful, wanton or reckless disregard of a known risk of harm.”
“The Tribe still has a lot of work to do before a single one of these long-standing Tribal members can lose Tribal membership,” Fisher said. “Many of these members trace in a lineal manner and the Tribe has been presented with that evidence and ignored it.”
Fisher was referring to an appeals court ruling in 2013 that said conclusively that only lineal tracing is allowed for membership, as opposed to collateral tracing.
On the decision, filed in Tribal Appeals Court earlier this week, the judges said the plaintiffs did not cite a “specific provision of the Saginaw Chippewa Constitution, but variously argue that (a section of the document is unconstitutional, or at least inapplicable to them, on the grounds that the Saginaw Chippewa Tribal Council does not possess the authority to enact retroactive legislation; that the 209 dismissal of their cases with prejudice was conclusive and binding on the tribe; that reopening the proceedings at (the office of administrative hearings) is barred by principles of res judicata and collateral estoppel; and that the amendment and reopening of proceedings violates the Appellants’ substantive due process rights because they are being singled out as a class.”
While Fisher argued that reopening the disenrollment cases after they were dismissed is “tantamount to breach of contract,” appeals judges said in the four-page opinion that the failure to show a violation of the Tribal Constitution or law “is fatal to their case.”