Civil case filed: Metlakatla election complaint

KETCHIKAN — Two Metlakatla residents who ran in that community’s 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 on April 1 in the U.S. District Court in Ketchikan.

MIC Mayor Audrey Hudson was re-elected in the 2015 election, receiving 392 votes to Scudero’s 351. Judith Eaton was elected MIC secretary, receiving 415 votes to Gunyah’s 333 votes, according to election information provided by MIC at the time.

Hudson, multiple MIC council members and MIC itself are named as defendants in the complaint.

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

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

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.

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 “hiding behind” sovereign immunity.

The federal complaint follows the March 18 dismissal in Metlakatla Tribal Court of a challenge to the election filed in that court.

The complaint alleges several violations of the U.S. Constitution, Indian Civil Rights Act, the MIC Constitution and election ordinances, including:

• 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.

• Charging the council chambers secretary — who allegedly was not appointed an election ballot judge or given the oath of office for a ballot judge — with handling of absentee ballots.

• Not following absentee ballot procedures by allegedly disregarding required signature cards for absentee ballots.

Scheduling a fishery to open on the same day as the election “can only be seen as a form of gerrymandering, separating the non-fishing voting public from the fishing voting public,” the complaint alleges.

“Any one of these acts alone are considered actions outside the scope of the authority of council and the election ballot judge,” the complaint states. “However, considered in combination there are considerable irregularities concerning this election.”

The Metlakatla Tribal Court case

The federal complaint also alleges that the ICRA has been violated, specifically Section 8, which reads in part: “No 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.”

The Metlakatla Tribal Court case was dismissed using the doctrine of sovereign immunity and judicial jurisdiction, according to the federal complaint.

“Plaintiffs made an attempt to file an appeal to the courts and were denied and were told that plaintiffs had no grounds for this petition,” the complaint states.

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 “demanded the recusal” of William E. Mcintyre, Metlakatla’s chief magistrate, according to the federal complaint.

Metlakatla Tribal Court Associate Judge Arthur G. Fawcett voluntarily recused himself from the case because he felt “that the plaintiffs’ due process would be violated as I have already heard all conversations with the Metlakatla Indian Community’s attorney, Christopher Lundberg, concerning the case,” according to documents filed in federal court.

Steckel, in his opinion dismissing the tribal court case, wrote that he had narrowed the petitioners’ issues down to two: “Does the tribe have sovereign immunity as asserted?” and “Does the tribal court have jurisdiction to adjudicate an election dispute within the tribe when the law already provides a remedy to adjudicate an election?”

In the first issue, Steckel wrote in part that: “In 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.

“The 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,” according to Steckel’s opinion, which was filed as part of the federal complaint.

As for the second issue, Steckel’s ruling read in part that: “The 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.

… 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.

“The 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,” the document states.

Scudero and Gunyah, in the federal complaint, allege that a denial of their appeal of Steckel’s 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 “Notice to Appeal” with the Metlakatla Tribal Court, but allegedly were turned away on March 28 and not allowed to file, according to the federal complaint.

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.

Relief being sought

Scudero and Gunyah, in the complaint, are requesting that the U.S. District Court:

• Reverse the Metlakatla Tribal Court’s dismissal of the previous case and award appropriate relief.

• 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.

• Undo the Nov. 3, 2015, election and order MIC to redo the election with an outside independent election moderator.

• Grant any and all legal fees and expenses related to the case.

Lundberg, on Monday, filed a motion in Metlakatla Tribal Court to recover his clients’ 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’s lodging and per diem.

“Further, the community anticipates billing from the Northwest Intertribal Court System for Judge Steckel’s services, along with additional proof of costs,” the motion read. “The Community intends to file a supplemental request for costs once that information is received.”

Scudero, in a second phone interview Friday evening, said he’s 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.

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.

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