BARAGA - A lawsuit contesting the legality of the Keweenaw Bay Indian Community's referendum process for approving large expenditures, and specifically the tribe's recent vote to purchase the Baraga Lakeside Inn for the home of a new tribal casino, will go before Tribal Court Judge Violet Friisvall Ayres Monday.
Plaintiff and formal Tribal President Fred Dakota says the meeting-style "show of hands" referendum is illegal under the tribe's constitution and could lead to voter coercion.
Defendants Donald Shalifoe Sr., the current Ogimaa or council president, and Treasurer Eddy Edwards not only disagree, but contend the court has no power over the council.
"The court was created by the council, not the constitution," Edwards said, adding that it was given jurisdiction at that time over specific areas that don't include the council's decisions, such as the creation of the meeting-style referendum.
"The court can't issue anything against the council unless the council waives immunity," he added.
Dakota maintains the constitution intends a division of powers similar to that found in United States federal or Michigan state law.
"The council makes the laws, the court enforces the laws," he said. "We have people elected as council and elected as judges. If you make a law on the council you are subject to that law."
He said his legal objection to the meeting-style referendums is also rooted in the constitution, which lays out ground rules for ballot-box elections that maintain a voter's privacy, such as are used in elections for tribal office.
"That's the way it's supposed to be, and it's always been that way," he said.
Edwards said the constitution does not guarantee a secret ballot for this type of election, and "it's a false expectation to believe you have a right to a secret ballot. ... This is not electing council, it's something completely different."
He said the council was considering amending the referendum resolution to provide for privacy, but that doesn't make the previous vote invalid.
"Would that settle this case?" he asked. "Probably not, because it's a political issue."
At a practical level, Dakota said he believes tribal members may not have voted honestly with others watching, out of fear of reprisal against themselves or family members employed by the tribe.
He did acknowledge that the tribe's potential $36 million investment in a new casino was a motivation for his suit. He said that while tribal money earmarked for seniors and other uses was not supposed to be used for the casino, any loans involved would require all tribal savings as collateral.
Edwards, who characterized the casino as "a great investment for the community," said the council's work on the project would continue regardless of the outcome of Monday's hearing, just as the Aug. 2 referendum was held despite a restraining order issued the day before by Ayres, who wrote in her ruling that Dakota's argument had enough merit to delay the vote until after the hearing.
"The court issued an order it couldn't enforce," Edwards said.
Edwards said he and Shalifoe are fighting the suit regardless of the court's jurisdiction. He said he "wasn't necessarily planning on attending" Monday's hearing, but his and Shalifoe's attorney had filed motions to dismiss the suit, and for Ayres to step aside as judge because of a "close personal relationship to the Dakota family."
The tribal court's chief judge is Bradley Dakota, Fred Dakota's son. Bradley Dakota said earlier this week that he would have stepped aside if the case had been his in the court's normal rotation.
Bradley Dakota also said that Shalifoe had called the court after being notified of the suit and threatened to cut off its funding, and Ayres referred to an affidavit from a court employee regarding this call in her ruling on the restraining order.
Shalifoe did not return calls from the Mining Gazette on Friday.
Bradley Dakota also said there is a KBIC tribal appeals court, appointed by the council, that could potentially come into play, and that federal courts could become involved in certain circumstances.
Fred Dakota said he would consider appealing to federal court if all other options were exhausted.