On Tuesday, February 14, 2017, the Southern Ute Indian Tribal Election Board presented a petition for referendum to the Southern Ute Indian Tribal Council. The petition requested:
- The remaining of the Sisseton Settlement Funds $45,515,000 be 100% dispersed tax-free immediately to the enrolled members of the Southern Ute Indian Tribe.
- The remaining of the Sisseton Settlement Funds $45,515,000 retained in a restricted account will not be utilized or dispersed on any specific programs in both the Permanent Fund and the Growth Fund.
The Election Board reviewed and confirmed the petition for referendum and verified and certified it as a valid petition. The Election Board submitted a memorandum to Council indicating the following:
- That the Petition had the number of signatures of registered voters required by the Election Code.
- That each page of the Petition “clearly states” the referendum issue to be put to a vote as the following:
Should the remaining of the Sisseton Settlement Funds $45,515,000 be 100% dispersed tax-free immediately to the enrolled members of the Southern Ute Indian Tribe.
- That each person circulating the petition signed the notarized statement required by the Election Code.
The Election Board did not seek legal review of the constitutionality of the Petition before the Election Board issued its verification and certification. The Election Board explained that legal review for compliance with the Constitution should occur once the Petition was presented to the Tribal Council. Tribal Council therefore accepted the Petition and set a tentative election date (March 16, 2017), subject to legal review for compliance with the Constitution and the Election Code.
The Southern Ute Indian Tribal Constitution says that Tribal Members may bring issues to be considered for referendum only if the issue is an “enacted or proposed ordinance or resolution of the tribal council”. (Article VI, Section 1). Except when a referendum addresses an enacted or proposed ordinance, a referendum issue cannot change or limit the powers of the Tribal Council, such as the power to make appropriations, because that would infringe on the Council’s constitutional powers.
Like in 2008, the Petition that was presented last week does not call for an up or down vote on any existing or proposed resolution or ordinance. Council has neither enacted nor proposed any resolution or ordinance appropriating or distributing the funds. Rather, the Petition attempts to legislate how Tribal funds are spent, and those are powers that are exclusively reserved for Tribal Council as stated in the Constitution.Tribal Council addressed a similar issue in 2008, when a “Call for Referendum” was submitted to the Election Board. That Referendum did not successfully pass through the verification and certification process. Among other problems, that Referendum was not addressed at a proposed or pre-existing resolution or ordinance that could be acted upon by the tribal membership through an up or down vote.
Lastly, the Petition has a second defect in that it addressed more than one “particular issue”. The Southern Ute Indian Tribal Election Code restricts referendums to “a particular issue” and cannot be used to address more than one issue. The restriction is designed to prevent confusion when there is more than one issue. For example, in the current Petition, the first issue called for the distribution of the funds to the enrolled members. That issue could be confusing when read with the second issue which calls for holding the funds in a restricted account. The Election Code limits the subject of a referendum to a “particular issue,” and not multiple issues, and the Petition violated that limitation.
For these reasons, the Tribal Council voted today to cancel the referendum election that was tentatively scheduled for March 16, 2017. A motion was carried to offer assistance to the petitioners.
Tribal attorneys prepared a legal memorandum on this issue, and Tribal Council has agreed to make that memorandum available to the membership. Members can request a copy by contacting Lindsay Box, Communications Specialist at 970.563.2313 or lbox@southernute-nsn.gov.
Respectfully,
Southern Ute Indian Tribal Council