Lawsuit between Crow Executive, Legislative branches comes to a head
Thu, 11/16/2017 - 5:00am admin
Legislative Branch disputes $35,000 charge for contested election
By Andrew Turck / Big Horn County News
A civil case between the Crow Legislative Branch and Chairman Alvin “A.J.” Not Afraid of the Executive Branch was underway last Thursday morning as attorneys for each side presented their arguments at the tribal court building in Crow Agency. Presiding was U.S. Judge Thor Hoyte of Olympia, Wash., who specializes in business and Indian Country-related topics.
Not Afraid is named as a defendant in the lawsuit by the Legislative Branch, along with David “Davey” Turns Plenty and – currently – Levi Yellow Mule. Jessica Old Elk had been named as a defendant in the original complaint, but she has since been dropped.
At issue is a $35,000 charge to the tribe for an Aug. 12 election set up by New Mexico-based Automated Election Services. The legislature, who are in charge of budgeting, believes the election to be illegitimate, Legislative Counsel Dawn Gray said. According to Gray, the tribe should not be responsible for footing the bill.
“If you act outside the enumerated powers [of the Crow Constitution], you’re not covered by that immunity,” she said during the hearing on summary judgment. “If you act outside of your enumerated authority, you’re individually responsible for that behavior.”
If Gray were correct, this would mean the defendants in this case would need to pay for the cost of the election out-of-pocket.
“This court has not reached that conclusion and – I’ll tell you right now – we are hesitant to reach that conclusion,” Hoyte said. “Any court would be hesitant to reach that conclusion without overwhelming evidence.”
Executive Counsel Ron Arneson had two difficulties with the proceedings from the outset. His first – and main – issue, he said, was he didn’t believe a U.S. judge had any jurisdiction to go forward on a tribal matter and any federal decision would be “moot.” He made a motion to discontinue the proceedings altogether, which Hoyte overruled.
“Our contention has been, from the very beginning, that this court does not have the jurisdiction…under Crow law to adjudicate issues like this,” Arneson said. “We believe that’s absolutely prohibited for this court to act in the form it is by inviting external law – that is, in fact, U.S. law – which has no application in Crow Country.
“The law in Crow Country is that generated by the Crow folks.”
Secondly, Arneson informed Hoyte that he would be making a motion to withdraw from his position on the defense counsel, as he also was working as a prosecutor. Hoyte commended him for making a note for the record and said, “the conflict will be cured at some point tomorrow.”
Though proceedings appeared cordial for the most part, Arneson and Hoyte clashed during a discussion on the duties of the Executive and Legislative branches. As Arneson finished the discussion, his cell phone rang for 16 seconds.
Hoyte told Arneson the day, “just devolved into your contempt for my position here.”
“No, that’s not true,” Arneson said, “but I understand what you’re saying and I appreciate it.”
“If that were to happen in my court again – this is your warning – get your checkbook out and go write a check out to the court next time,” Hoyte said, “because that is disrespectful as anything I’ve ever seen in my life.”
“I agree, your honor,” Arneson said. “I’m not challenging at all.”
Gray also broke protocol by speaking out of turn at one point, prompting Hoyte to say, “I just can’t have you talking over each other, because I can’t get a record and it drives me crazy.” This appeared to be the extent of the legislative infractions.
On the ballot, tribal members voted on whether to hold a constitutional convention – the first since 2001 – and whether to reopen negotiations into the Crow Tribe Water Settlement Act of 2010. Results of the election have not yet been revealed.
The day before the vote, Gray emailed a letter to Terry Rainey, president of Automated Election Services, and warned him to “cease and desist your election activity.” That day, Hoyte approved an injunction by the Legislative Branch and ordered the tribe to halt the election.
Voting began regardless of Hoyte’s order. Not Afraid’s senior policy advisor Cedric Black Eagle told the Billings Gazette that Executive officials hadn’t been served the order prior to the vote. In her letter, Gray stated “the defendant’s counsel Mr. Ron Arneson has been eluding service of the attached order; however, [it] has been served within the last couple of hours.”
“This election was initiated by a small interest splinter group with the intention of overthrowing the 2001 Constitution by illegal means,” Gray wrote. “It is not a Crow Tribe sanctioned election and any such results are void on their face.”
“[Y]our services cannot be rendered, nor paid for, as there is no budgetary approval for your status as a vendor,” Gray continued in her letter. “Should you proceed tomorrow, I will have no other choice but to join you in this lawsuit.”
Not Afraid took a different approach on July 28, when he spoke to an applauding crowd during a tribal general council meeting. The federal government, he said, “has no authority to approve the Crow Tribe’s constitution.”
That decision, he continued, is “up to the people.”
Hoyte expects to finish his deliberations before Thanksgiving Day.