The Mohegan Tribe of Indians of Connecticut v. The Mohegan Tribal Court, (2009)

• Decision Date: 03 August 2009
• Docket Number: COE-1-2009
• Citation: The Mohegan Tribe of Indians of Connecticut v. The Mohegan Tribal Court, 1 M.C.O.E. 1, COE-1-2009 (Mohegan Council of Elders Aug 03, 2009)
• Parties: THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT, Petitioner v. THE MOHEGAN TRIBAL COURT, Respondent and concerning WILLIAM BAUER, Real Party in Interest
• Court: Mohegan Council of Elders

1 M.C.O.E. 1

THE MOHEGAN TRIBE OF INDIANS OF CONNECTICUT, Petitioner v. THE MOHEGAN TRIBAL COURT, Respondent and concerning WILLIAM BAUER, Real Party in Interest

No. COE-1-2009

Mohegan Council of Elders

August 3, 2009

Summary: Action was brought by Petitioner Mohegan Tribe for entry of a writ of superintending control to vacate an order entered by the Mohegan Tribal Court dated May 6, 2009 in Bauer v Mohegan Council of Elders and Mohegan Tribe of Indians of Connecticut,No. CV-08-0138, and to enjoin any further proceedings in that matter.The Council of Elders held that 1) the Mohegan Court System Ordinance does not divest the Council of Elders of jurisdiction in this matter, in that the Ordinance is inconsistent with the provisions of Article X Sections 1and2, which define the jurisdiction of the Council of Elders; and 2) the Mohegan Tribal Court abused its discretion in not acknowledging the Determination of the Council of Elders entered in the Bauer Good Standing matter as dispositive Mohegan law concerning the Article XI claims raised in Bauer v. Mohegan Council of Elders and Mohegan Tribe of Indians of Connecticut.

The petition for writ of superintending control is GRANTED.

Helga Woods, Attorney General, for Petitioner

The Respondent Mohegan Tribal Court has not entered an appearance in this matter.

William Bauer, Pro Se, for the Real Party in Interest

Before the Council of Elders of the Mohegan Tribe

Chief Justice Robert F. Soper delivered the opinion of the Council of Elders, in which all members of the Council of Elders joined.

OPINION

Robert F. Soper Chief Justice.

I.Procedural History

This matter arises out of a Request for Good Standing Determination ("Request") filed with the Council of Elders("COE") on December 3, 2008 concerning William Bauer.The Request alleged that Mr. Bauer posted private Tribal information on his publicly-accessible website (known as "Brokenwing Editorials"), and in so doing, caused harm or detriment to the Tribe (hereinafter "Tribe") and violated Tribal law and/or policy.Mr. Bauer received appropriate notice of the Request in accordance with Mohegan law and was advised of his right to request a hearing.Mr. Bauer then filed a lawsuit in the Mohegan Tribal Court on December 22, 2008(No. CV-08-0138) alleging that the Good Standing proceedings initiated through the filing of the Request violated the Mohegan Constitution and the Mohegan Court System Ordinance and further alleging that the Good Standing provisions of the Membership Ordinance are unconstitutional.On December 17, 2008 Mr. Bauer requested injunctive relief from the Tribal Court to prevent the COE from conducting the Good Standing proceedings and the Tribal Court issued an Order to Show Cause to the Tribe and COE on December 24, 2008.Mr. Bauer requested a hearing in the Good Standing matter on January 8, 2009.

Following a hearing, the Mohegan Tribal Court denied Mr. Bauer's request for injunction on February 6, 2009.A pre-trial conference was held on February 19, 2009, in which the parties agreed to a stay of the Tribal Court proceedings pending completion of the initial Good Standing hearing before the Hearing Panel and any appeal to the COE.

Consistent with the Enrollment and Membership Office Rules and Procedures("Rules"), Mr. Bauer received a hearing before the Good Standing Hearing Panel("Panel") of the COE.While Mr. Bauer did not contest the facts regarding the conduct he was alleged to have engaged in, he did contest the constitutionality of the Good Standing proceedings, the Good Standing provisions of the Membership Ordinance, and the Rules.^[1] Mr. Bauer's constitutional claims were essentially the same as those set forth in the matter pending in the Tribal Court in No. CV-08-0138, i.e., that the good standing provisions of the Tribe's Membership Ordinance violated his rights to due process pursuant to the Indian Civil Rights Act,25 U.S.C. Sections 1301, et seq., as codified in the Mohegan Constitution at Article XI.The Panel issued a Recommendation to the COE on March 20, 2009, which included analysis of Mr. Bauer's constitutional claims in addition to addressing the merits of the Good Standing matter itself.

Mr. Bauer appealed the Panel's Recommendation and was granted a hearing with the full COE on April 8, 2009.Mr. Bauer again raised constitutional claims in asserting that the full COE should not adopt the Panel's Recommendation.On April 29, 2009, the COE issued a Determination adopting the Recommendation of the Panel and addressing the constitutional issues raised by Mr. Bauer.

In its Determination, the COE found the allegations against Mr. Bauer to be substantiated and sanctions were imposed.He has been ordered to provide a written apology to the Tribal membership for the publication of private Tribal information on his website.He has been excluded from Tribal meetings and functions for one year.^[2]He retains all of the other rights and privileges of membership, including the rights to vote and to seek elective office, the benefits of housing, healthcare, use of the Tribal gas card, etc., and the privilege of being present on the Mohegan reservation with the exception of tribal meetings and functions.He continues to live on the reservation and receive distributions in accordance with the Tribe's Revenue Allocation Plan as well.He has not been excluded from social functions at the Ft. Hill Elder Housing community where he resides, with the exception of one function specifically hosted by the Council of Elders known as the "Elders' Circle."

Prior to the scheduling of the follow-up pre-trial conference in CV-08-0138, Mr. Bauer filed an Amended Complaint and Request for Injunction with the Tribal Court on May 4, 2009.The Tribal Court then scheduled the pre-trial conference for 10:30 a.m. on May 6, 2009 and scheduled a hearing on Mr. Bauer's Amended Complaint and Request for Injunction at 1:00 p.m. the same day.Immediately following the hearing on May 6, 2009, the Tribal Court issued an injunction, holding that Bauer's due process rights had been violated when he was not allowed to cross-examine witnesses in the Good Standing proceedings.

The Tribal Court's Decision and Order of May 6, 2009:

1. ordered the COE and the Tribe to remove the text of the Council of Elders' Good Standing Determination involving Tribal member William Bauer from the Tribal website (the "Talking Stick");

2. prohibited the COE and the Tribe from posting anything to the Talking Stick concerning William Bauer, including the Good Standing Determination, the Resolution adopting the Good Standing Determination, and the reprimand ordered by the Determination until further order of the Tribal Court;

3. issued a temporary injunction restraining the COE and the Tribe from implementing any penalties arising from the Good Standing Determination, the Resolution, and reprimand until further order of the Tribal Court;

4. found no bond should be required from Mr. Bauer;

5. ordered the Tribe and COE to take steps to prevent publication of matters relating to the Good Standing Determination in Wuskuso; and

6. ordered the Tribe and COE to submit written confirmation to the Court that all materials posted on the Talking Stick have been removed.

On May 8, 2009, the Tribe filed a Petition with the COE for the entry of an Order or Writ of Superintending Control concerning a Decision and Order entered by the Mohegan Tribal Court on May 6, 2009 in CV-08-0138(hereinafter "Petition").The Tribe requested that the Mohegan Tribal Court's Decision and Order be vacated and that all proceedings in CV-08-0138 be dismissed.

Upon the filing of the Petition, the COE issued an Order of Stay with regard to the Tribal Court's Decision and Order of May 6, 2009, pending a hearing.The COE subsequently received a responsive pleading from Real Party in Interest William Bauer; no responsive pleading was received from the Tribal Court.The Tribe filed a Memorandum in Support of Petition for Writ of Superintending Control and in Reply to Response of Real Party in Interest.Mr. Bauer filed a Reply to the Mohegan Tribe's Memorandum; the Tribe filed a Reply to one point contained in Mr. Bauer's reply; and Mr. Bauer objected to the Tribe's final Reply as untimely.^[3] The Council of Elders determined that oral argument would not be required.

Upon motion of the Tribe, the caption of this matter was amended to properly reflect the status of the RespondentCourt and Real Party in Interest by Order of the COE dated May 26, 2009.The change in caption did not affect the substantive rights of any of the parties to this action.

II.Jurisdiction of the COE

In accordance with Article X, Section 1 of the Mohegan Constitution, "all judicial review powers of the Mohegan Tribe not exercised by the Gaming Disputes Court shall be vested in the COE and in such subordinate commissions and/or courts as the Tribal Council may from time to time ordain and establish."

The subject matter jurisdiction of the COE is set forth in Article X, Section 2 of the Mohegan Constitution.The Constitution's grant of jurisdiction extends to "cases and controversies arising under this Constitution and arising under all laws of the Mohegan Tribe."The constitutionally-imposed restraints on this jurisdiction are: 1) a prohibition as to the issuance of advisory opinions; 2) a prohibition as to deciding moot cases; and 3) a further limitation contained in Article XIII.Article XIII, Section 2 provides for the establishment of the Gaming Disputes Court and vests the Gaming Disputes Court with:

exclusive jurisdiction for the Tribe over disputes arising out of or in connection with the Gaming, the actions of the Tribal Gaming Authority, or contracts entered into by The

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