Garvin v. Ho-Chunk Nation ("HCN") Election Board

6 Am. Tribal Law 239
CourtHo-Chunk Nation Trial Court
DecidedNovember 2, 2005
DocketNos. CV 05-90, CV 05-93
StatusPublished

This text of 6 Am. Tribal Law 239 (Garvin v. Ho-Chunk Nation ("HCN") Election Board) is published on Counsel Stack Legal Research, covering Ho-Chunk Nation Trial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garvin v. Ho-Chunk Nation ("HCN") Election Board, 6 Am. Tribal Law 239 (hochunkct 2005).

Opinion

ORDER (Denying Preliminary Injunction)

TINA F. GOUTY-YELLOW, Associate Judge.

INTRODUCTION

On September 17, 2005, the Ho-Chunk Nation General Council enacted General Council Resolution “O” providing for the recall of plaintiff, Ona Garvin, from her office as a member of the Ho-Chunk Nation Legislature.1 On September 17, 2005, the Ho-Chunk Nation General Council enacted General Council Resolution “N” pro[241]*241viding for the recall of plaintiff, Dallas White Wing from his office as a member of the Ho-Chunk Nation Legislature. Both plaintiffs seek a Preliminary Injunction to enjoin the defendants from acting in furtherance of the General Council resolution(s). The Court denies the request for a Preliminary Injunction.

PROCEDURAL HISTORY

Plaintiff Ona Garvin filed her Complaint on October 14, 2005. Consequently, the Court issued a Summons accompanied by the above-mentioned pleading on October 17, 2005, and delivered the documents by personal service to the defendants’ governmental representative, Ho-Chunk Nation Department of Justice (hereinafter DOJ).2 Plaintiff, Dallas White Wing filed his Complaint on October 21, 2005. Consequently, the Court issued a Summons on October 21, 2005, and delivered the documents by personal service to the governmental defendants’ representative, Ho-Chunk Nation DOJ. The Summons, in both actions, informed the defendants of the right to file an Answer within twenty (20) days of the issuance of the Summons pursuant to HCN R. Civ. P. 5(A)(2). The Summons also cautioned the defendants that a Default Judgment could result from failure to file within the prescribed time period.

The defendants, by and through DOJ Attorney Michael P. Murphy, filed their Defendants’ Response to Plaintiffs Request for Declaratory Judgment and In-junctive Relief on October 24, 2005 in regards to the Ona Garvin case.

The Court convened the Preliminary Injunction Hearing on October 24, 2004 at 1:30 P.M. CST. The following parties appeared at the Preliminary Injunction Hearing: Dallas White Wing did not personally appear, his attorney, Glenn C. Reynolds appeared telephonically; DOJ Attorney Michael P. Murphy, the election board defendants’ counsel along with Mary Ellen Dumas and Wilma Thompson appeared in proper person and Ona Garvin did not personally appear, her attorney, Richard Monette appeared in person on her behalf.

APPLICABLE LAW

CONSTITUTION OF THE HO-CHUNK NATION

ARTICLE III—ORGANIZATION OF THE GOVERNMENT

Section 1. Sovereignty. The Ho-Chunk Nation possesses inherent sovereign powers by virtue of self-government and democracy.

Section 2. Branches of Government. The government of the Ho-Chunk Nation shall be composed of four (4) branches: General Council, Legislature, Executive, and Judiciary.

Section 3. Separation of Functions. No branch of the government shall exercise the powers and functions delegated to another branch.

Section 4. Supremacy Clause. This Constitution shall be the supreme law over all territory and persons within the jurisdiction of the Ho-Chunk Nation.

ARTICLE IV—GENERAL COUNCIL

Section 1. Powers of the General Council. The People of the Ho-Chunk Nation hereby grant all inherent sovereign powers to the General Council. All eligible voters of the Ho-Chunk Nation are [242]*242entitled to participate in General Council.

Section 2. Delegation of Authority.

The General Council hereby authorizes the legislative branch to make laws and appropriate funds in accordance with Article VI. The General Council hereby authorizes the judicial branch to interpret and apply the laws and Constitution of the Nation in accordance with Article VII.

Section 3. Powers Retained by the General Council.

a. The General Council retains the power to set policy for the Nation.

b. The General Council retains the power to review and reverse actions of the Legislature except those enumerated in Section 4 of this Article. The General Council shall return such reversals to the Legislature for reconsideration consistent with the action of the General Council. The General Council retains the power to review and reverse decisions of the Judiciary which interpret actions of the Legislature. The General Council does not retain the power to review and reverse decisions of the Judiciary which interpret this Constitution.

c. The General Council retains the power to propose amendments in accordance with Article XIII, including those which reverse decisions of the Judiciary interpreting this Constitution.

d. The General Council retains the power to establish its own procedures in accordance with this Constitution. ; :

e. The General Council retains the power to call a Special Election.

f. Actions by the General Council shall be binding.

Section 4. Excepted Powers. The General Council does not retain, the power to review actions relating to the hiring or firing of personnel.

Section 5. Annual Meetings. The People shall meet in General Council at least one time each year, which shall be called by the President, and at other times as provided in Section 6 of this Article. Notice shall be provided by the President for all Annual Meetings of the General Council.

Section 6. Special Meetings. Special Meetings of the General Council shall be called by the President upon petition by twenty (20) percent of the eligible voters, or upon written request of a majority of the Legislature, or when deemed necessary by the President. Notice shall be provided by the President for all Special Meetings of the General Council.

Section 7. Procedures. Twenty (20) percent of the eligible voters of the Nation present in General Council shall constitute a quorum. Each action of the General Council shall require the presence of a quorum. The President shall call all Annual and Special General Council Meetings, except those meetings called pursuant to Article IX, Section 2. When a quorum is attained, the General Council shall elect either the President or another person to conduct the meeting. A secretary shall be appointed to record the minutes of all General Council meetings, including any votes taken. The secretary shall transmit the minutes of General Council meetings to the Legislature.

ARTICLE VII—IUDIC1ARY

Section 5. Jurisdiction of the Judiciary.

a. The Trial Court shall have original jurisdiction over all cases and con[243]*243troversies, both criminal and civil, in law or in equity, arising under the Constitution, laws, customs and traditions of the Ho-Chunk Nation, including cases in which the Ho-Chunk Nation, or its officials and employees, shall be a party. Any such case or controversy arising within the jurisdiction of the Ho-Chunk Nation shall be filed in Trial Court, before it is filed in any other court. This grant of jurisdiction by the General Council shall not be construed to be a waiver of the Nation’s sovereign immunity.

Section 6. Powers of the Tribal Court.

a.

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6 Am. Tribal Law 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garvin-v-ho-chunk-nation-hcn-election-board-hochunkct-2005.