Unelected Micmac Chief Cancels Elections – Again

Unelected Micmac Chief Cancels Elections – Again

Gale Courey Toensing
5/16/11

BIA is silent; members are determined to elect their government

For members of the Aroostook Band of Micmac Indians, it was déjà vu all over again. Two weeks after they conducted a successful nominations meeting, the tribe’s unelected “chief” pulled the rug out from under them – again – and canceled elections scheduled for early May.

Micmac elections are supposed to happen every two years, but Victoria Higgins, the current seated “chief” and seven council members – all of whom lost the May 2007 election – have managed to remain in office since 2005 and thwart multiple attempts by tribal citizens to hold new elections. An investigation of the scandal-racked elections by the Interior Department’s Inspector General (IG) found the Bureau of Indian Affairs’ regional director backed Higgins, refused to recognize the woman and tribal council members who actually won the election, and did not insist that a new election promised for July 2007 take place.

Perhaps the most symbolic representation of tribe’s condition appears on the tribal government page of its website: The only thing on the page is a picture of Victoria Higgins.

More than 80 Micmac citizens attended the tribe’s annual meeting on April 3 and nominated several candidates to run as chief and more than 20 candidates to run for council. On April 15, however, Higgins wrote to tribal citizens cancelling the scheduled May 10 elections. She claimed that an election could not be held until the members voted on an amendment to a section of the tribe’s bylaws dealing with the Elders Council. Higgins claims that members “failed or refused to consider the proposed amendment” and the tribal council decided that an election can’t be held until the bylaw amendment is “considered” by the members. But according to the handwritten minutes of the meeting, members did indeed consider the amendment: They passed a motion to table it by a vote of 76-0, according to the handwritten minutes, which appear to record four no votes and no abstentions.

Several members said Higgins is “holding the election hostage” by using the specious argument that an election can’t be held until the members approve the bylaws amendment. “The community doesn’t want to vote for the amendment because it’s not the amendment we want,” said Barbara Hunt, one of the candidates nominated for council. The tribe received a $54,000 grant from the BIA to help amend the bylaws and Higgins hired attorney Gregory Dorr of the Bangor-based firm of Farrell, Rosenblatt & Russell Dorr to help with drafting the amendment. Several elders met with him and drafted the amendment they wanted, but when the draft came back to them months later, it had been changed, Hunt said. “She (Higgins) had him put in amendments that would take away the power of the Elders Council and leave all the final power with herself.”

Higgins based her decision to cancel the May 10 election on a recommendation from Dorr, who said in an April 13 letter to Higgins that, based on his review of the minutes of the meeting and on “information” he claimed to have received from unnamed tribal members, “there were several serious irregularities including the failure to strictly adhere to the tribe’s organizational documents,” a failure to follow Roberts Rules, and other alleged “irregularities.”

Member Fred Getchell scoffed at Dorr’s attempts to prop up Higgins. “Dorr should not even be reviewing our internal matters, but his letter actually supports our position that the bylaws should be followed,” Getchell said. Higgins was appointed chief on August 13, 2006, by a handwritten note from then Chief William Phillips, according to the IG’s investigation report issued in 2009. The note was notarized on September 27, 2006 and backdated to July 19, 2006, the report says, noting that the tribe’s bylaws do not provide for such a delegation of authority, but only for a vice chief to take over if the chief is incapable of performing his or her duties.

“So we have this ‘chief’ that’s been sitting there based on a hand written piece of paper,” Getchell said. “She’s never even been vice chief, she’s never been elected, and it’s clear in our bylaws that a chief has to be elected. So if he’s going to start quoting our bylaws and talking about things like Roberts Rules that aren’t even mentioned in our bylaws, maybe he should start with the fact that there’s no provision in our bylaws to have an unelected acting chief sit on power on the basis of a hand-written note,” Getchell said.

Neither Higgins nor Dorr responded to requests seeking comments for this story.

Higgins recently sent out an undated agenda for another nominations meeting on June 5, but members are leery. They said Higgins is planning to undermine the elections again.

“I don’t take anything she does at face value,” Hunt said. “She’s going to do anything she can every single time to stay in power.” Without going into details, Hunt said she is working hard to assure that members will have the opportunity to democratically elect their government.

Richard Dyer, an elder, former housing director and one of the candidates nominated for tribal council, said he expects a repeat of April 3. “I really do,” he said. “She is firmly ensconced in her little niche there and she doesn’t want to be removed and she knows if she allows an election to go through she’s going to be removed by popular vote. People don’t want her in there. They’re willing to accept anybody but her. That’s how bad it’s gotten.”

Dyer noted that Higgins has once again placed the bylaw amendment as the first item on the agenda before nominations. “That’s going to get her in trouble again. People are going to either table it again or vote no. It’s rubbish; there’s nothing in the bylaws that requires us to amend the bylaws before we can have an election.” Furthermore, Dyer said, bylaw amendments are supposed to be approved by a two-thirds vote of a tribal council of 11 members, including the chief and vice chief, before being presented to the general membership. But the council cannot legally approve anything because – apart from not being elected – it’s not legally constituted, Dyer said. Currently, there is no vice chief and only eight members, including Higgins who can vote only to break a tie.

Last November, members petitioned a community meeting to nominate three council members to fill the seats that have been vacated since the botched 2007 elections. But on Nov. 9 – four days before the meeting was to be held – former council member Blanche Jewel and 57 members of her family were told they couldn’t vote because of questions about their tribal enrollment. Then Higgins canceled the nominations meeting.

Jewell said at the time that she went to the tribal office and found all her membership papers were in order. “They never asked to see my file or contact the membership committee. We need help to get a full council – that is all were asking to do – and I am going to write the president if I need to and ask if he can have someone come and help us with this matter. It is discrimination and harassment to all my family. This is just a hate crime,” Jewel said.

Dyer said at the time that most of the 57 members were on the tribe’s original band list that was required for the tribe’s federal recognition in 1990. “This move is seen by many to have been an under-handed way for Higgins to prevent the community's wishes from being fulfilled, of filling the vacant seats as required by the by-laws; and to keep power in the hands of a minority of council people, some of whom have questionable membership documentation themselves.”

Tribal members tried to have elections in 2009 but the nomination meeting that year failed for lack of a quorum. Members said that Higgins only notified those who supported the seated government of the meeting, but she denied the allegation. Weeks later, Higgins said the council had rejected a petition seeking another nomination meeting and decided instead to stay in office “until the next election cycle in 2011.” Two more petition drives in 2009 by tribal citizens seeking elections were squashed with Higgins and the council claiming that such meetings would “violate the tribe’s bylaws.”

How have Higgins and the electorally-challenged tribal council members managed to stay in power despite losing the 2007 election and against the will of the people? The IG’s investigation report tells the story in detail.

The IG’s investigation was launched in January 2008 by Marilyn Carlton, who handily won the 2007 election for chief over Higgins. The IG’s report, released a year later, found that Carlton and her elected council were never seated because an “Elders Council” that was formed a few days after the election and invalidated the election results was “100 percent conflicted.” Four of the eight members had just been defeated in the election, two were their relations, one publicly disliked Carlton, and the other said she had been invited for tea and had signed the invalidation under false pretenses.

BIA Eastern Regional Director Franklin Keel issued an “Opinion Letter” following the May 2007 elections saying he would recognize the unelected chief and council until July 2007 when new elections were supposed to take place, but they never took place. Higgins and her council have relied on that letter to remain in power.

Keel’s supervisor, Mike Smith, Deputy Bureau Director, Field Operations, said after the IG report came out that the bureau would revisit the election of May 2007, and “see if there is any way that we can assist in clarifying who the leadership is.” Smith said that the option of rescinding Keel’s letter would be part of the discussion and that the BIA would “promote” new elections.

Neither Keel nor Smith responded to an e-mail requesting an update for this story on what the BIA has done since 2009 to "promote" a Micmac election; what plans it has to help the tribe hold an election this year, or lacking the BIA’s help, where tribal members can turn for help to assure their right to a democratic election to vote to elect their leaders.

Both Keel and Smith have referred to the BIA policy of not interfering in “internal tribal matters,” but Dyer said he believes the tribe needs help. “We need intervention from the people who say they have plenary power over the tribes. First they say they have plenary power over Indian tribes and when you ask for their help they look the other way. It’s a question of constitutional rights, too. The Indian Civil rights Act says you shan’t deprive any Indian tribal member of the same constitutional rights accorded to non-Native people and that’s what they’re doing, essentially.”

Roger Pictou, a former chief who was nominated as a candidate for chief in the canceled election, said people are increasingly frustrated by Higgins’ and the council’s inertia.

“People also see that Higgins and the council will do whatever the hell they please and if the BIA doesn’t step in and make them toe the line, what the hell sense is there in even being a tribe? Nobody is getting any benefit out of it other than the people employed there and the council.” Pictou said. The federal Indian Health Service took over the running of the tribe’s health clinic in 2002 because the tribe was mishandling the finances of the clinic. “If it wasn’t for the Indian Health Service jurisdiction right now we wouldn’t even have the health care program that we have,” Pictou said.

But the winds of change are in the air, members said.

“We’re being strong armed to adopt an agenda that we don’t want. The ‘chief’ and council are only in there because the people haven’t got the strength yet to throw them out, to say, ‘You don’t exists, go away, go home. But that strength is coming together. The people are just blindsided by this current action to cancel the election and they don’t like it,” Pictou said. “Come June 5 we’re going to sit down and tell them.”

Getchell said the last nominations meeting demonstrated the growing solidarity among tribal members. “It’s clear that the people worked in harmony,” he said. “We were excited to move forward and we were looking forward to the election and actually having a democratically elected chief and governing body and actually being proud of being Micmac again.”

The only way the ‘chief’ and council have been able to wield power was by exercising a “divide and conquer” strategy, Getchell said. “They created chaos and pitted people against each other and got people mad and fighting and then they said we were violent. We convened at this meeting as a community finally coming together for change and to see people hugging and shaking hands who were totally opposed to each other before was a great thing. The time is coming when these people can’t hold us hostage anymore because we’re not going to fall prey to their language and issues and ploys.”

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