Hopi Tribal Council approves appeal of trial court decision

KYKOTSMOVI-During its Sept. 10 meeting, the Hopi Tribal Council voted overwhelmingly to appeal the trial court decision of Aug. 27, issued in the Nuvamsa v. Honyaoma case.

That decision purported to nullify the Hopi Tribal Council's adoption of Resolution H-036-2007, which had nullified the special general election of February 2007. The Council adopted the resolution following its receipt of information showing that candidate Benjamin Nuvamsa was not qualified for office, given his failure to meet constitutionally mandated residency requirements.

All decisions of the Hopi Tribal Court are subject to appeal to the Hopi Appellate Court. Every party to a lawsuit who disagrees with the court's decision has the right to appeal that decision to the Hopi Appellate Court.

The council decided to appeal the decision because it believes the court unlawfully asserted authority over the legislative actions of the council and because the decision invites lawsuits against future council actions, regardless of their nature.

Specifically, a majority of the council views the judge's decision as laying the foundation for future unfounded lawsuits not only against the Hopi Tribal Council, as the governing body of the Hopi Tribe, but also against each individual council member in their official and individual capacities.

"The danger in the decision is that it provides an opportunity for anyone-Hopi and non-Hopi alike-to file a lawsuit against the [Hopi] Tribal Council and/or its members anytime an individual is unhappy with a law, resolution or other action adopted by the council," said Vice Chairman Todd Honyaoma Sr.

The council's decision to file the appeal was also based on the fact that if the trial court's decision is allowed to stand, any party could sue the council and overturn its actions, simply by suing individual council members, even though the council itself is not named as a defendant to the suit. According to council member Phillip Quochytewa Sr., "[This] decision will leave every council member vulnerable to a lawsuit each time they vote on any matter coming before the council."

In Nuvamsa's complaint, he named only individual council members, yet [the] ruling nullifies an action taken by a majority vote of council.

"The court's decision was made in direct conflict with Hopi case law that clearly establishes that the council, and its members, may not be sued in any court without their consent," noted former council member and defendant, Jerry Sekayumptewa.

"Thus, under Hopi law, there is absolutely no statutory authority upon which the trial court could rely in finding that the Hopi Tribal Council is not protected by sovereign immunity and may be brought before the Court whenever the Court sees fit to provide a remedy to a complaining party.

"The Court has essentially said that it has jurisdiction over any case that walks in the door, regardless of the sovereign interests of the Hopi Tribe," said Vice Chairman Honyaoma.

"Federal law does not support the Court's decision. Nevertheless, the trial court swept aside the legal issues of sovereign immunity and other jurisdictional questions raised by the defendants and the Hopi Tribe and found that it had the authority to overrule the tribal council at any time, even when council has not been named in the suit. In doing so, the Court is essentially asserting authority over the tribal council," he said.

Based on the Court's failure to follow the clearly established law on the principle of sovereign immunity, any council member can be sued in his or her capacity both as a council member and as an individual for any vote that he or she makes on a particular issue.

The judge's decision has opened the floodgates to any potential claimant and would subject each tribal council member to potential personal liability for their official acts.

Because the Hopi Tribe has always enjoyed the inherent rights of a sovereign, including the protections of sovereign immunity, the Tribe believes an appeal is crucial. Failing to challenge the decision and allow the Appellate Court the opportunity to correct the errors of the Tribal Court might also subject the Hopi Tribe to suit in other courts, including Arizona State and Federal Courts.

Following council's vote authorizing appeals both on behalf of council and the individually named council defendants, Nuvamsa commented that he felt the council had acted illegally and unconstitutionally in voting to appeal the decision. The council and the named defendants are merely following their legally guaranteed right to appeal, as outlined in the Hopi Court rules.

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