10/20/2009 3:19:00 PM Hopi Council revives appellate court
KYKOTSMOVI, Ariz. - The Hopi Tribal Council has appointed Anna M. Atencio, Paul S. Berman and Robert Clinton to the Hopi Tribal Appellate Court. This action was recommended in conjunction with the Tribal Council Secretary, Mary Felter, Chief Judge Gloria Kindig, and the Law Enforcement Task Team. Each will hold a term of six months.
This appointment allows the Hopi Tribal Appellate Court to move forward on a caseload many feared would only gather more dust.
According to a press release from the Tribal Council, "Council members previously had determined that the appellate court was not fully constituted because two judges were not lawfully appointed and approved of by the council, giving rise to two court vacancies. The remaining appellate judge, Frederick Lomayesva, who had been appointed to an indefinite term in 1994, was not able to carry out the functions of the court alone, the council decided."
On Nov. 12, 2008, the Tribal Council passed Resolution 075-2008, which authorized SWITCA to act as the Hopi Tribal Court of Appeals, granting full appellate jurisdiction to SWITCA according to Hopi Tribal law. It also authorized SWITCA to appoint a panel of three judges to hear these cases, as long as the judges meet the qualifications of Hopi Tribal Ordinance 21, Section 1.2.2.
Section 1.2.2 provides that "any individual who is a graduate of an accredited school of law and who is over the age of 30 years and has never been convicted of a felony shall be eligible to be appointed a judge of the Appellate Court of the Hopi Tribe."
The Council has now withdrawn "all authority and jurisdiction granted by Hopi Tribal Resolution H-078-2009 to Southwest Intertribal Court of Appeals" with the appointment of the three new judges.
Former Chairman Ben Nuvamsa explained in an e-mail released to members of the press that "No one questions the quality of service that SWITCA provides to other tribes." Questions do remain as to whether the Tribal Council has the authority to appoint judges under Ordinance 21.
Gary LaRance describes himself as Chief Judge of the Hopi Tribal Court - in exile.
"I was terminated from my position in a way that violated my rights, and as a result I filed a lawsuit against the Hopi Tribe in May 2006. For over two years, my case still has not been heard," he said.
LaRance described one of the goals he held as Chief Judge. "My goal as an attorney and a judge was to create a strong, viable and fair judicial court system that would operate without fear of political influence and interference," he said.
Nuvamsa, Lomayesva and Alph Secakuku were also among those illegally removed from office, LaRance said.
LaRance described the political and legal struggle that ultimately led to what he believes was an attack by certain members of the tribal council against the Hopi Court of Appeals.
Subsequent actions, including the removal of Lomayesva and the appointment of SWITCA, were illegal according to LaRance.
"Ordinance 21, passed by the Tribal Council in 1972, creates our judicial branch," LaRance said. "This ordinance describes what powers the courts hold, who can appoint judges, the cases the courts have the authority to hear. Ordinances are only secondary to the Hopi Tribal Constitution. The Hopi Tribal Council cannot pass resolutions conflicting with the constitution or its ordinances."
LaRance compared the status of a resolution to a policy statement.
"It is not law," LaRance said. "It is a statement that this is our policy."
LaRance filed a lawsuit against the Hopi Tribe for what he described as improper removal from his seat-he had not been afforded a hearing, the right to call witnesses, to hear and cross-examine witnesses against him, or to defend himself in any way.
Secondly, LaRance contends that the tribal council had no authority to shut down the Hopi Court of Appeals, and stands in violation of Ordinance 21.
Finally, the council transferred appellate court authority to SWITCA in direct violation of Ordinance 21-this action could only be authorized by amendment of that ordinance, LaRance said.
"The Hopi Tribal Council does not have the authority to appoint the new judges," LaRance said. "Under Ordinance 21, the Hopi Tribal Chairman appoints new judges-it's a two part process. The chairman appoints judges, and the Hopi Tribal Council approves. We have no tribal chairman.
"This is the same process that the federal government follows," LaRance continued. "The president appoints judges to the Supreme Court, and the senate approves that appointment. The Supreme Court would never even consider such a violation of executive authority."
In conclusion, LaRance again asserted that his goal is to establish a strong, viable judicial system independent of tribal politics.
"I object to seeing the tribal council trampling over the judicial system," LaRance said. "I feel that the actions taken over the past two years have been an attempt to wipe out Ben and his supporters. I don't want our council to interfere with the function of our judicial branch.
"When a government is allowed to shut down a court, there is no place to turn to for justice," LaRance said. "The only difference between Hopi now and those countries where coups take down elected governments is that over there, they have guns. At Hopi we face tribal resolutions and shutdowns.