Judge Issues Decision in Chairman vs. Attorney General Court Case

By Joe Morey

News Editor

A decision has been made by LCO Chief Judge Elaine Smith in the court hearing held on May 31 based on Tribal Chairman Louis Taylor's Petition Seeking Declaratory Judgment and Supplementary Injunctive Remedies and authoritative opinion of Art. V - Powers of the Governing Board, in the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin.

The Judge’s decision supports the petition of Chairman Taylor that no one individual tribal council member has authority to spend tribal funds, and that the body of the tribal governing board has that power, with a majority vote of 4 members.

Read the original story here for background

Judge Smith’s decision starts off explaining the issue, which is “the undated memorandum regarding ‘Constitutional Authority’ authored by Attorney General James H. Schlender which opined that an individual elected official has a ‘fiduciary right’ to distribute tribal funds and which also raised the question of the legality of LCOTCL § MCC.1.1.010 et seq or the ‘Tribal Government Code of Conduct.’”

The Judge listed seven parts to her decision:

I. The spending of tribal funds shall be made "in accord with a previously approved budget, and the amount so paid shall be a matter of public record at all times." See, Art. V, Section I(j) of the Constitution. Pursuant to the LCO Constitution, all spending shall be in accordance with an approved budget. No payment of expenditures shall be made unless such payment conforms with a duly approved Tribal budget.

2. The disbursement of tribal funds shall be by majority vote of the Governing Body pursuant to the LCO Constitution and Bylaws and derive from approved budgeted funds. A majority vote is defined as four (4) elected officials of the Governing Board.

3. The Secretary/Treasurer holds enumerated or express powers derived from the LCO Constitution and Bylaws and, as such, is obligated with the responsibility for oversight of all Tribal funds. The Secretary/Treasurer shall receive a statement or an accounting of the names, dates of payment, and dollar amounts for all items in the Donations line item (identified as 7107) in the 143 - LCO Donation Account of the 1000-General Fund and for whatever time period is requested by him.

4. If necessary, the Secretary/Treasurer shall meet with the Tribe's bank to discontinue the Tribal credit card and request a replacement credit card if he is unable to gain receipt of the Tribal credit card currently used. The new credit card shall be limited to the budgeted amount and not be open ended. The Tribe's credit card shall be in the possession of the Secretary/Treasurer, or in the possession of his representative, until a formal process or policy is adopted by the Governing Board for the handling of all donation line items e.g. name, confirmation of tribal membership, number of approved donations in the last 12 months, and reason for request. Such policy must also comply with the Internal Revenue Service's general guidelines for Indian Tribes.

5. The Attorney General shall assist the Secretary/Treasurer and Tribal Chajrman with an investigation of the Accounting Office to determine whether it was due to mistake or whether insubordination occurred when accounting staff refused to honor the constitutional authority of the Secretary/Treasurer by refusing to give an accounting of donations for hotel rooms/gas vouchers and refused to turn over to him the Tribal credit card.

6. LCOTCL § MCC.1.1.010 et seq entitled “Tribal Government Code of Conduct of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians" is a legally binding Tribal Code and was duly authorized and approved by the six (6) members of the Tribal Governing Board via Tribal Resolution 17-87. Further, § MCC.1.5.040 limits the authority of the individual elected official by requiring four (4) signatures of the Governing Board in the awarding of monetary benefits. Similar to other Tribal codes passed by Tribal resolution and without comment period, LCOTCL § MCC.1.1.010 et seq is a valid and binding law.

7. The Tribe and Attorney General shall seek the hiring of a tax attorney who specializes in tax and federal Indian Law to assist the AG in the investigation of the Accounting Office and for the preparation of a legal opinion for the Tribal Governing Board regarding the Tribe's exposure to possible tax liability for failing to adhere to any of the general tax guidelines for Indian Tribes including the Tribal General Welfare Exclusion Act of 2014.