The Court finds that Defendants acted arbitrarily, capriciously, and contrary to law in refusing to review for themselves the intensely disputed tribal procedures surrounding the adoption of a tribal constitution, in crediting unreasonable decisions of a seemingly invalid tribal court, and in refusing to grant official recognition to the clear will of the Tribe’s people with regard to their government.245

Based on the simple application of mathematics, it seems readily apparent that the Tribe never ratified the Constitution that lies at the heart of this dispute.246

Aside from the simple fact that 51% of the voters in the Tribal referendum did not choose to adopt the Constitution, the very language of the Tribal Court decisions should have given Defendants pause before they adopted that Court’s findings as federal policy. Judge Deom wrote that “[r]epeals in whole or in part of a Constitution must be clear and unmistakable and can never be implied or inferred…It always must be clear and specific and narrowly interpreted. As fundamental law, Constitutions are never amended or repealed by implication of any kind.” Lazore I; A.R. at vol. I, tab 12. Perhaps most damningly of all, she pronounced that “[c]ertification of the adopted tribal constitution is a special confirming act of the will of the people.” Lazore II; at vol. I tab 29.

Judge Deom’s logic here is faulty to the extent that certification of the adoption of the Constitution, an act of the people to discontinue a governmental system that had existed for almost two hundred years and to implement in its place an entirely new and different paradigm of Tribal government, warrants the same degree of scrutiny as the does amendment of such a document. Defendants cannot deem to be reasonable the Tribal Court’s determination that the tribe unequivocally adopted the Constitution. While the Tribal Court spoke eloquently of the need to adhere to the strict language of the document when amending or appealing it, it utterly disregarded the ambiguities surrounding the Constitution’s adoption mechanism. The plain language of the Constitution indicates that 51% of the voters had to approve it. Unlike the word “majority,” a term explicitly replaced by the Tribe, “51%” is as clear and plain an electoral benchmark as the Tribe could create. Although the Constitution in question is not a federal statute, the Court notes that federal courts have limited the construction of words to their clear meaning when to do otherwise would intrude upon tribal sovereignty. See Utah v. Babbitt, 830 F. Supp. At 596.

Moreover, an incongruity exists when a court rules on the validity of a document by which itself was created.247

Not only were Tribal Court mechanisms disputed, and ultimately, non-functional, but when the Tribe sought to resolve these questions through referenda, the IBIA refused to accord recognition to these efforts toward resolution. The IBIA merely repeated the rhetoric of tribal exhaustion and federal non-interference with tribal affairs. By not determining for themselves whether or not the Constitution was valid, Defendants were derelict in their responsibility to ensure that the Tribe make its own determination about its government consistent with the will of the Tribe and the principles of tribal sovereignty.248

In a final affront to Tribal self-government prior to this litigation, the IBIA dismissed the Three Chiefs Government’s final appeals as moot because the Three Chiefs were elected to, and comprised, a functioning majority of the Constitutional Government offices. See Smoke III, 31 IBIA at 99. But the fact that Plaintiffs took on that label does not signal an abandonment of their pleas for the vindication of their right to self-determination. Because the BIA refused to acknowledge the will of the Tribe, thus holding up critical federal funds, the Three Chiefs maintained a façade of operating under the Constitutional Government. See Pls.’ Status Rep. at 3. In essence, Plaintiffs perceived a fiscal coercion that belied the tribal sovereignty and self-determination which Defendants profess to respect.

Finally, the record suggests that the BIA wanted the Tribe to embrace a constitutional form of government. In a November 18, 1996 fax from the Bureau’s New York Field Officer, Dean White, to Defendant Franklin Keel, White stated that “[w]e do have a collateral interest [in this dispute] as the Constitution and the tribal court were developed under Bureau funding.” A. R. at vol. III. On March 28, 1997, the Bureau responded to an inquiry about the tribal dispute from the Honorable John McHugh, the United States Representative for the congressional district in which the Saint Regis Mohawk Tribe is located. See A.R. at vol. I, tab 62. In its response, the Bureau noted that “over the years we have provided the St. Regis Mohawk Tribe with grants, contracts, and other financial assistance in order that the tribe might establish its own written governing documents…” Id.

In addition, the BIA took steps to frustrate the will of the Tribe and to support the Constitutional regime. In his fax to Defendant Keel, Dean White wrote of a plan to appoint a Three Chiefs Government member to fill a vacancy in the Constitutional Government. See A.R. at vol. III. Of the plan, White commented that “the idea to coopt the unrecognized council, which seems to have popular support, with the recognized governmental forum.” Id. While Dean White approved of the plan, he noted that Phil Tarbell, a proponent and key member of the Constitutional Government “balked at the idea.” See id.

The IBIA instructed the Tribe to pursue the question of Judge Deom’s authority and the validity of her rulings within the Tribal Court system, but the Tribe replied that the trial-level Court was non-functional. See, e.g., Smoke II, 30 IBIA at 90. Following the IBIA’s mandate that the Tribe decide these issues in a different tribal forum, the Tribe turned to the ultimate tribal forum—a referendum. See id. at 91; A.R. at vol. I, tab 43. When the referendum results made clear that the Tribal Court had no authority, the BIA and IBIA simply ignored the results. See A.R. at vol. I, tab 55. Defendants’ rhetoric endorsing the principles of self government and tribal sovereignty ultimately rings hollow here. The essence of tribal self-determination is the Tribe’s ability to choose for itself how its government will operate. For Defendants to refuse to acknowledge that choice because they disagree with it, or to actively seek to institute the form of government that they prefer, turns that notion on its head. Defendants’ repeated refusal to recognize the Tribe’s earnest efforts to undo its contentious certification of the Constitution, couched in the language of respect for tribal sovereignty, is disingenuous at best. Upon review, Defendants’ actions reveal themselves to be arbitrary, capricious, and contrary to law. For this reason, Plaintiffs are entitled to summary judgment. See 5 U.S.C. § 706(2)(A).249