Washington, we have a problem…
As many of you know, controversy has swirled around the 2009 election process like a putrid miasma. Accusations have been made about the conduct of the Election Committee and other responsible parties on that election day. Because of the nature of the claimed electoral irregularities that propelled the present regime into power, a lawsuit was brought in Tribal Court by a candidate in that election, Nellie Hicks Ramos. In a April 3, 2012 motion to dismiss filed by the firm of Todd & Weld (you remember our former governor Bill Weld, don’t you?), they cite the doctrine of Sovereign Immunity in an attempted end run, to keep the case out of Tribal court.
What is sovereign immunity?
Sovereign immunity is a legal doctrine specifying that governmental entities are immune from lawsuit or criminal prosecution without their consent. The doctrine also extends to government officials and employees in the performance of their duties. Sovereign immunity, as its name may suggest, derives from the idea that “the king can do no wrong,” or the “divine right of kings.” The sovereign’s power and responsibility are granted by the deity and not the people. It was supposed that an errant king would be ultimately be disciplined by the supreme being. I guess Charles I of England and Louis XV of France were unaware of that.
Sovereign immunity today remains much the same, but more enlightened in some respects. The doctrine is not so absolute, having been moderated somewhat by laws such as the Federal Tort Claims Act, the Freedom of Information Act, and the Tucker Act, the former of which allow lawsuits when a federal official or employee commits a tortious act, i.e., an action or lack of action that injures another party. Governmental entities also waive Sovereign Immunity in contracts and government-to-government agreements.
How does Sovereign Immunity apply to Indian tribes?
Indian tribes have been granted essentially the same Sovereign Immunity as other governments, though the federal government may under some circumstances abrogate the tribes rights. Logic will point to the following reasons for Indian tribes having Sovereign Immunity:
- To protect tribal reservation lands and natural resources.
- To protect tribal enterprises.
- To insure that Indian Tribes are not bankrupted by lawsuits.
- To protect the cultural heritage and survival of Indian tribes.
- To provide a way for Indian Tribes to enter into partnerships and agreements with other governmental entities.
I am sure that there are others, but you should get the idea.
What Sovereign Immunity does not, in my opinion , provide for, is an “impermeable shield” against prosecution or impeachment for corruption or criminality, rather, it is like an umbrella that protects those who remain under its shelter and do not stray outside it. Sovereign Immunity protects those who faithfully and conscientiously, without favoritism or prejudice, perform their appointed duties. Is this the case with the 2009 election? I think not.
What do Todd & Weld say?
“Sovereign Immunity and separation of powers principles preclude Ms. Ramos complaint because Ms. Ramos did not file an appeal in accordance with the only appeal that was available to her under Tribal Law.”
I think that Todd & Weld are unaware that Nellie was not able to file a complaint with the Elders because Cromwell closed down the Tribal offices until the Wednesday after the election, beyond the one day requirement for such an appeal. Furthermore, Cromwell had illegally removed the chairman of the Elder’s Judiciary Committee, which had by ordinance been granted all judiciary powers until the establishment of a Tribal court.
“…there is no factual allegation in the Complaint to support the bald, conclusory accusations that there was anything irregular about the February 2009 election… a politically motivated fishing expedition…”
I beg to differ. Witnesses will swear to it. Ms. Keli’inui ran off to celebrate with the Cromwell team without securing the ballots or turning over the sign-in sheets to the genealogy department as had been done in previous elections. Ms. Keli’inui is now a council member. Furthermore, patrolman Kevin Frye, Mashpee PD, a tribe member who was the officer on duty, deserted his post because he had to “go to his son’s ballgame,” without providing any security at all. The ballots and sign-in sheets were left to the care of who-knows-who. We have no idea of their location or condition.
What’s all this then?
It should be obvious to all interested parties that there was and is some skulduggery afoot. Cedric Cromwell after his “election” considered himself analogous to Barack Hussein Obama, but I would compare him to Richard Milhous Nixon. You see, Nixon would have handily won the 1972 presidential election without the Watergate break-in, but will always be under a cloud. Similarly, Cedric Cromwell may well have won the 2009 Tribal election without packing the tribal rolls or stuffing the ballot box. Now he will live under a cloud forever. The only he can clear his name is not to use the Tribes money and lawyers to stifle dissent and prevent a fair hearing of this matter. I think that Cromwell & Co. are afraid of what would come out of a fair hearing, perhaps evidence of corruption and criminality?
I call upon the Tribal Council and the Judiciary to set this straight. The future of our Tribe is at stake. The Tribe was at the time of the election under construction, and still is in many ways, let’s not let it go down to destruction
