MEMORANDUM

TO:Aaron Payment, Tribal Chairperson
Board of Directors

FR:John Wernet
General Counsel

RE:

What powers and authority does the Chairperson retain following the rescission of Resolution 2012-146?

DA:December 18, 2016

I have been asked to provide a legal opinion outlining the powers and authority retained by the Tribal Chairperson following the action of the Board on Tuesday, December 13, rescinding Resolution 2012-146. That resolution, adopted on July 20, 2012, delegated to the Chairperson the authority to manage and direct the day-to-day operations of the tribe, including but not limited to certain specific authorities listed in that resolution. The exercise of that delegated day-to-day management authority by the Chairperson was made subject to the specific direction and review of the Board of Directors.

On Tuesday, December 13, the Board of Directors voted to rescind Resolution 2012-146. By a separate resolution, 2016-290, the Board delegated day-to-day management of the Tribe to the Tribe’s Executive Director.

As will be set forth in more detail below, it is my opinion that the rescinding of Resolution 2012-146 eliminated the authority delegated to the Chairperson by that resolution to manage the day-to-day operations of the Tribe. It did not rescind powers and authority vested in the Chairperson by the Tribal Code or granted to the Chairperson by prior resolutions dealing with specific projects or circumstances. Nor, of course, did it remove any express or inherent authority vested in the Chairperson by the Constitution by virtue of his office as Chairperson and as a member of the Board of Directors.

Background:

The Constitution of the Sault Ste. Marie Tribe of Chippewa Indians includes a set of By-Laws adopted as part of that Constitution. As originally adopted, Art II, sec 1 of those By-Laws described the duties of the Tribal Chairperson as follows:

“The Chairperson shall preside over all meetings of the board of directors, perform all duties consistent with the office as chief executive officer of the tribe, and exercise any other lawful authority delegated the chairperson by the board of directors. The chairperson shall vote only in case of a tie unless otherwise provided in the tribe's constitution and bylaws.”

Emphasis added.

A constitutional amendment was subsequently approved on April 7, 2010, striking the language in Art II, section 1 of the By-Laws that assigned the Chairperson to act as chief executive officer of the tribe. This change eliminated the direct constitutional grant of authority to the Chairperson and left the authority to direct the day-to-day operations of the Tribe vested exclusively in the Board of Directors under Article VII of the Constitution.

On July 20, 2012, the Board of Directors adopted Resolution 2012-146. In that resolution, relying on the express authority vested in the Board by Article VII, section 1(n) to delegate its powers, the Board delegated the day-to-day management of the Tribe to the Chairperson. However, unlike the direct assignment of “CEO” authority under the original Constitution and By-Laws, this new delegation was specifically subject to the authority of the Board “to review, approve, modify, or rescind any such action.”

On December 13, 2016, the Board acted to rescind Resolution 2012-146 and instead adopted a new resolution, 2016-290, delegating day-to-day management of the Tribe to the Tribe’s Executive Director, subject to the direction and control of the Board. That resolution further specified that it “amends any previously adopted Resolution regarding this matter.”

Discussion:

In my view, it is clear that the sole effect accomplished by rescinding Resolution 2012-146 was to remove from the Chairperson those powers delegated by that Resolution, i.e., the power “to manage and direct the day-to-day operations of the Tribe.” It did not rescind powers and authority vested in the Chairperson by the Tribal Code or those granted to the Chairperson by prior resolutions dealing with specific projects or circumstances. Nor, of course, did it remove any express or inherent authority vested in the Chairperson by the Constitution by virtue of his office as Chairperson and as a member of the Board of Directors.

1. Tribal Code

Numerous provisions of the Tribal Code specifically impose duties or authority upon the Tribal Chairperson. Examples of such provisions include: Chapter 11: Membership Ordinance, § 11.103(4) (“It shall be the responsibility of the Registrar and Tribal Chairperson to sign all membership cards issued by the Special Needs/Enrollment Committee, or the Board of Directors on appeal;” Chapter 20: Treaty Fishing Rules and Regulations, §102(1) “A tribal license shall be evidenced by a Treaty Fishing Identification Card authorized by the Chairman,” §102(3) (“Licenses shall be issued under the supervision of the Tribal Chairman,” §102(13) (approval of transfer of license), §103 (suspension of a license), §107(4) (waiver of fee for subsistence license), 107(5) (designation of non-snagging areas for subsistence fishers); Chapter 42: Gaming Ordinance, §404 (“The Chairman of the Board of Directors shall serve as Chairman of the Tribal Gaming Commission;” and Chapter 94: Gaming Authority (“The Chairperson of the Board of Directors shall also serve as Chairperson of the Management Board”). These examples, and similar delegations of authority found in code, can be amended only by formal amendment of the affected codes and are unaffected by either the delegation of authority contained in Resolution 2016-146 or by the rescinding of that Resolution.

2. Tribal Resolutions

The board has adopted numerous resolutions delegating specific authority to the Chairperson such as resolutions authorizing the Chairperson to sign specific contracts, grants, or other agreements and to take all actions necessary to effectuate the purposes of that agreement. See, for example, Resolution 2012-11 authorizing the Chairperson to sign a Comprehensive Development Agreement with the City of Lansing and which “further authorizes the Chairman or his designee to sign, amend, and execute any documents necessary to effectuate the purposes of this resolution.”

It is a well-established principal of legislative construction that specific provisions of law govern over more general provisions. “[I]t is a commonplace of statutory construction that the specific governs the general.” Morales v Trans World Airlines, Inc, 504 US 374, 384, 112 S Ct 2031, 119 L Ed 2d 157 (1992). In cases where a general provision appears to conflict with a more specific one, the specific provision is construed as an exception to the general one. See, e.g., Morton v Mancari, 417 US 535, 550-551, 94 S Ct 2474, 41 L Ed 2d 290 (1974). Thus, existing resolutions expressly delegating authority to the Chairperson to act in particular matters continue to be operative; they are not affected by either the general delegation of day-to-day management authority contained in Resolution 2016-146 or by the subsequent rescinding of that general management authority.

Furthermore, this conclusion is not affected by Resolution 2016-290 which delegated day-to-day management authority to the Executive Director. It is true that this resolution contains a “catch-all” provision stating that it “amends any previously adopted Resolution regarding this matter.” It has been suggested that this “catch-all” language may be interpreted as rescinding all prior resolutions delegating authority to the Chairperson. But such an interpretation is not sustainable. Resolution 2016-290, by its express terms, merely makes a general delegation of day-to-day management authority to the Executive Director, a delegation markedly more narrow than the prior delegation made to the Chairperson by the now-rescinded Resolution 2012-146. That narrow delegation, as expressed in the first resolve clause of Resolution 2016-290, is the “matter” referred to in the catch-all clause. The plain meaning of that clause, therefore, is simply that any prior resolutions dealing with day-to-day management of the Tribe are deemed modified; that language does not rescind prior resolutions making specific delegations to the Chairperson. Those specific delegations control over the more general delegation. Morales, supra.

3. Constitutional Authority

Finally, it goes without saying that the Board’s action in rescinding its delegation of day-to-day management authority did not and could not diminish the duties vested in the Chairperson by the Constitution. These include, in particular, powers expressly granted by the Constitution such as those specified in Article II, section 1 of the By-Laws: “The chairperson shall preside over all meetings of the board of directors and exercise any other lawful authority delegated the chairperson by the board of directors. The chairperson shall vote only in case of a tie unless otherwise provided by the tribe's constitution and bylaws.” See also Article I, section 2 of the By-Laws (“Special meetings may be called from time to time by the chairperson or by a majority vote of the board of directors.”)

This conclusion extends not only to those powers expressly stated in the Constitution and By-laws but also to those powers that are inherent in the office. One example of such authority is the authority of the Chairperson to serve as a spokesperson for the Tribe. This is manifestly an authority enjoyed and exercised by all members of the Board of Directors, each of whom, from time to time, serves the Tribe by attending conferences, meetings, or other events on behalf of the Tribe and by representing the interests of the Tribe in those settings. In these circumstances, individual Directors certainly do not have the authority to make or determine policy for the Tribe; that authority remains vested in the Board of Directors as a whole. But individual Directors can and do speak for the Tribe, describe and advocate for the policy positions established by the Board, and bring issues back for consideration by the full Board. The Chairperson clearly enjoys at least comparable authority – not to set or determine the policy and position of the Tribe, but to describe and advocate those policies and positions established by the Board.

It has been suggested that the inclusion of such speaking authority in the 2012 delegation to the Chairperson, and the subsequent rescinding of that delegation, may have eliminated the Chairperson’s authority to speak for the Tribe. I disagree. The Board clearly has the authority to authorize persons, including staff or even outside agents such as retained attorneys, to speak or advocate on behalf of the Tribe. When it included this authority in its 2012 delegation to the Chairperson, the Board was exercising that authority and was making it clear that the Chair enjoyed its full support and authority to speak publicly for the Tribe. But that delegation did not limit or cripple the previously existing authority of the Chairperson to speak on behalf of the Tribe; to the contrary, the delegation augmented and underscored that authority. The rescinding of that supplemental authority removes any such augmentation but leaves the basic authority in place.

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