PEMBROKE — The Lumbee Tribe Supreme Court ruled Sunday that an ordinance passed earlier this month by Tribal Council which declares clean drinking water a fundamental right for the Lumbee people will become effective unless a majority of the tribal public votes to rescind it in a referendum.
The decision was announced on Sunday after the case was heard on Thursday evening. It addressed two constitutional issues: whether or not Article VIII contained a scrivener’s error, and the interpretation the referendum process outlined in Article VI.
Tribal member Allana Nicole Jackson filed the petition, and the Lumbee Tribal Council, Tribal Chairperson and Elections Board were respondents. The court’s decision was delivered and signed by Chief Justice Ronette Sutton. Eric Freeman, Emily Deese, Tona Jacobs and Edward Brooks are the other justices on the Tribe’s Supreme Court.
Article VIII, Section 1b of the Tribal Constitution says that any ordinance which affects fundamental rights or interests of the tribe shall be certified for referendum by the Tribal Chairperson, repeatedly using the word referendum; its last sentence, however, says such a referendum should “be conducted in accordance with Article V of the Constitution.” Article V concerns the initiative process, while Article VI concerns the referendum process.
The court ruled this to be an error and that the intent of the writers of the constitution was for it to say Article VI. The court cited previous drafts of the Tribal Constitution, dated Aug. 19, 2001 and Oct. 1, 2001, which did refer to Article VI; additionally, no evidence was presented that any modification to Article VIII was considered in any subsequent Tribal Council meeting before the Constitution was approved by public vote on Nov. 6, 2001.
The court also said that certification of the ordinance for referendum is a “ministerial” duty of the Tribal Chairperson and “does not authorize the Chairperson to withhold certification based on disagreement with the ordinance, its policy or the referendum process.”
Once the ordinance does advance to referendum, the court’s interpretation of the Tribal Constitution is that the ordinance will be enacted unless it is rescinded by a majority of those voting in the referendum.
“If (the clean water ordinance) is rescinded through that process, it shall not become effective,” the court’s decision said. “If it is not rescinded, it shall become effective upon certification of the referendum results, unless the ordinance prescribes a later lawful date.”
Additionally, the decision states that “the general membership shall receive the constitutionally required opportunity to vote on (the clean water ordinance) before the ordinance becomes effective.”
In addition to the requirement for a majority of those voting to vote to rescind an ordinance, Article VI of the Tribal Constitution does also state that at least 30% of eligible voters must participate in the referendum election for the ordinance to be rescinded, though this detail was not mentioned in the court’s decision.
The court also ruled that Tribal Chairman John Lowery should receive 10 full days from the date of the court decision to fulfill certification of the ordinance for referendum. While 10 days passed from Tribal Council’s passage of the ordinance until the court’s decision was announced, the court ruled that the pending legal case was sufficient reason to delay that certification, saying it would have come “under an unresolved constitutional framework.”
The case was heard after the Lumbee Tribal Council passed an ordinance on Sept. 17 which declares clean drinking water as a fundamental right for the Lumbee people. This is the first fundamental-right ordinance passed by the Lumbee Tribal Council since the Tribal Constitution went into effect in 2001.
The court heard the case as “the parties hold adverse or potentially adverse legal positions concerning the constitutional procedure that must be followed before the ordinance can become effective.” Both parties made a joint motion for an expedited/emergency hearing and agreed to waive the two-week hearing-notice that is typically required, so that the matter could be resolved quickly.
The court stated that its decision is simply an interpretation of the constitution and does not amend the constitution or give an endorsement for or against the contents of the clean water ordinance.
While this case does not directly involve the gaming ordinance that is currently in draft form before Tribal Council, the same sections of Articles VI and VIII of the Tribal Constitution outline the process for that ordinance as well. Thus, Sunday’s decision could potentially become relevant precedent should Tribal Council pass the gaming ordinance and/or if a case on the gaming ordinance goes before the Lumbee Tribe Supreme Court. Tribal Council and the Tribal Chairman filed a request for the court to provide interpretation on Articles VI and VIII of the constitution on Aug. 7; the court dismissed that request on Aug. 9, but did not preclude a petition at a later time, such as once the ordinance is passed.
The textual error in Article VIII has been cited by multiple Tribal officials as a reason why the Tribe initially sought to authorize gaming operations through a constitutional amendment earlier this year; the tribal public voted to deny that amendment in a special election on June 23.