Council is breaking tribal law in George case

The United States Constitution secures to the American people certain inalienable rights:

·   The Right to Bear Arms (2nd Amendment)

·   The Right to be Free from Unreasonable Searches and Seizures (4th Amendment)

·   The Right to not be Deprived of Life, Liberty and Property without Due Process of Law (5th Amendment)

·   The Right to a Speedy and Public Trial by an Impartial Jury, to be Informed of the Nature and Cause of the Accusation, to Confront Witnesses and to be Represented by Counsel (6th Amendment) to name but a few.

These privileges contained in the Bill of Rights were intended to protect the American people from the misconstruction and abuse of power of the governing body and ensure confidence in the Government. In Indian Country, the United States Constitution and the Bill of Rights do not apply to tribal governments. Any rights reserved to the tribal people must be contained within the laws adopted by the tribal governing body itself, and for the tribal people within the Colville Reservation there is no Bill of Rights contained within the Colville Tribal Constitution. Instead, the Colville Business Council in 1988 adopted the Colville Tribal Civil Rights Code, Colville Tribal Code Chapter 1-5. Under the Colville Tribal Civil Rights Code the following rights are reserved to the people living within the Colville Reservation:

·   1-5-2 Civil Rights of Persons Within Tribal Jurisdiction: The Confederated Tribes of the Colville Reservation in exercising powers of self-government shall not:

o (a) Make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;

o (b) Violate the right of people within its jurisdiction to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

o (c) Subject any person for the same Tribal offense to be twice put in jeopardy;

o (d) Compel any person in any criminal case to be a witness against himself;

o (e) Take any private property for a public use without just compensation;

o (f) Deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;

o (g) Require excessive bail, impose excessive fines, inflict cruel and unusual punishments;

o (h) Deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;

o (i) Pass any bill of attainder or ex post facto law; or

o (j) Deny to any person accused of an offense punishable by imprisonment the right, upon request, to a Tribal jury of not less than six persons.

As a former ORA attorney, tribal prosecutor, public defender and now judge, I believe in these rights. They are a large part of the reason I became an attorney. It was something I believed that every person had a right to and that I fought to ensure they were granted. However, as a Colville Tribal member I now see that our governing body does not hold these same rights as sacred to our people. I have seen with my own eyes this truth. Last week, I represented Councilwoman George in her Ethics Hearing. I agreed to take the case because I could see that the Colville Business Council was violating the laws of the Colville Tribe. The proceedings were flawed from the start and I will outline a few:

1.  The original complaint was made in September 2018. This complaint was not in writing and it was not notarized as required by the code. There have been numerous complaints made against other council people that have been dismissed because they were not in writing and were not notarized.

2.  The Rules Committee tried to bootstrap the above complaint by having Councilman Kheel file the same complaint but without any facts, just citations to the code. This is problematic on two fronts – 1) he is not the injured party and thus has no standing, and 2) since the complaint did not allege any facts it must be dismissed under 1-8-30(c). Still they proceeded.

3.  The Rules Committee failed to give proper notice of the proceedings (code requires at least 10-days advance notice of the hearing so a person has time to prepare a defense); Councilwoman George was given less than a week notice. Still they proceeded.

4.  Failed to follow the code by having the hearing after the 60-day time limit outlined in the code, which they tried to get around by again bootstrapping the original complaint by having Councilman Kheel file the same complaint even though he was not the alleged injured party. The 60-day requirement is a jurisdictional issue, which means the Committee cannot proceed if they do not act timely. There have been numerous complaints that have been dismissed because the hearing was not held within the 60-day timeline. Still they proceeded.

5.  Denying Councilwoman George the right to be represented by Counsel during the proceedings by kicking me out 20 minutes into the hearing because they didn’t like my line of questioning. When I tried to object and explain that my line of questioning was part of my defense they told me no, when I continued to object they still wouldn’t listen and then they kicked me out. Still they proceeded.

6.  Generally in these proceedings, the person that files the complaint has the burden to prove their allegations. They are the ones to call in the witnesses, ask questions and present their evidence. The Rules Committee is just supposed to impartially hear the evidence and make a ruling, much like a judge. When I pointed this out before I was asked to leave the person that chaired the “hearing” responded that this wasn’t tribal court and he could make this ruling as he saw fit. I heard this repeatedly. No one had the burden of proof, Marvin Kheel did not present his evidence, he sat on the Committee as a member of the Committee. Still they proceeded.

7.  Under 1-8-30(g) any person that cannot be impartial must be disqualified. The above violations and the conduct of some members of CBC since Councilwoman George was sworn-in show such clear bias that most of the Rules Committee should have recused themselves; no one did.

The only members of the Rules Committee that tried to raise the above issues were Susie Allen, Andy Joseph, Jr., Norma Sanchez, Karen Condon, and Margie Hutchinson. However, their voices were not heard either and the violations though numerous was never put to a vote. This was not a Rules Committee acting within its lawful authority. It makes me wonder why these violations continue to happen. What do Ricky Gabriel, Melissa Louis and now Councilwoman George know that makes them such a threat, and what can be done? The Colville Civil Rights Act allows for a right of action in Colville Tribal Court under 1-5-3 and 1-5-8, but ORA continues to seek legal barriers to this explicit remedy under tribal law. So if the Court agrees with ORA, what can be done? You cannot have a Right without a Remedy, so what should we do? We must ask ourselves whether we believe in the rights stated above, and in addition, we must demand that those we elect to leadership positions believe and uphold these very same truths. Otherwise we invite corruption and tyranny into our government. Isn’t it time for this to end?

Theresa Thin Elk

Colville Tribal Member