KYKOTSMOVI, Ariz. - Hopi and Tewa villages have the authority to remove, recall or decertify their duly certified Tribal Council representatives during their two-year terms in office by "whatever process the village selects," the Appellate Court of the Hopi Tribe says in a unanimous opinion.
The three-judge panel said it based its Feb. 11 finding on "both the (Hopi) Constitution and Hopi custom and tradition." The opinion differs with the official position of the Tribal Council which this past December affirmed that it had the exclusive power to remove council representatives, and voted to make that position known to the Appellate Court.
The Tribal Council, through its attorneys, based its response on Article V of the Constitution and By-Laws of the Hopi Tribe, which says in part: "Any officer or representative may be removed from office for serious neglect of duty, by a vote of not less than two-thirds of the council, after the officer to be so removed has been given full opportunity to hear the charges against him and to defend himself before the council."
The court unanimously said that another way of expressing what Article V says is that it "constitutes a power expressly delegated to (the Tribal Council) without diminishing inherent village authority over the same matter."
"There are good reasons to believe that the granting of removal authority to the Tribal Council was not meant to preclude retention of removal, recall and decertification authority in the Hopi and Tewa villages," according to the opinion. "Since nothing in the Constitution suggests that the pre-existing sovereign power of the Hopi and Tewa villages to remove, recall or decertify their representatives was removed from them or exclusively delegated to the Tribal Council by Article V...this court finds that the villages continue to retain that authority under the Hopi Constitution."
In some cases, the opinion states, villages "will be in a superior position to the Tribal Council in knowing whether any particular Tribal Council representative is fully performing his or her job...Thus, the villages need the continuing ability to remove, recall or decertify Tribal Council representatives who fail...in their actions and votes...to fully and fairly represent the views and interests of their village."
The issue arose in 2007 when the Village of Bacavi told the Tribal Council it wanted to withdraw the village's representatives on the council. The council did not act on Bacavi's request, and the representatives remained.
In January 2008, Bacavi took the matter to the appellate court, which has the authority to answer questions regarding Hopi tribal law, asking it to decide whether villages may remove members from the Tribal Council.
In April 2008, the appellate court issued an "interim" answer, saying that the villages had standing to ask the question, but found that the Tribal Council has the sole power to remove representatives, according to the Hopi Constitution.
Since then, the court has been reconstituted, and because the new members had not heard original arguments in the case and some villages had not presented their views, the matter was reset for this past December. The court heard from a number of villages besides Bacavi, as well as a former tribal chairman and a former tribal judge. The court also invited the Tribal Council to file a written brief stating its position, which it accepted.
Reacting to the Appellate Court opinion, Mike Puhuyesva, one of three Bacavi representatives on the Tribal Council, said it was "too soon for anybody to comment," since council members had just learned of the court's action. He added that the council probably would discuss the opinion when it meets next month.
Dale Sinquah, a council representative from First Mesa, said he needed "time to digest (the opinion) and talk to people with different points of view."
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