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(AS ADOPTED ON NOVEMBER 18, 1990)
(AS AMENDED ON MAY 15, 1994)
(AS AMENDED ON MAY 21, 1995)
PREAMBLE ARTICLE I. NAME, TERRITORY, AUTHORITY AND STATUS OF TRIBE Section 1. Name Section 2. Territory Section 3. Authority Section 4. Status of Tribe Section 5. Governmental Entity ARTICLE II. MEMBERSHIP Section 1. Enrolled Members Section 2. Criteria for Enrollment Section 3. Enrollment Section 4. Enrollment Ordinance Section 5. Resignation Section 6. Removal Section 7. Limitation Section 8. Adoption and Honorary Members Section 9. Appeal Rights ARTICLE III. CIVIL RIGHTS Section 1. The Tribal Council, in exercise of its sovereign powers of self-government Section 2. Full Disclosure and Equal Opportunity Section 3. Rights of Members Section 4. Claims ARTICLE IV. GOVERNING BODY Section 1. Council Section 2. Lifetime Positions a. responsibilities Section 3. Subordinate Officers ARTICLE V. TERM OF OFFICE AND ELECTIONS Section 1. Officers Section 2. Tribal Council members Section 3. Continuity of Office Section 4. Election Ordinance Section 5. Voter Qualifications Section 6. Nominations Section 7. Unanimous Consent Section 8. Majority Required Section 9. Secret Ballot Section 10. Resignation Section 11. Vacancies Section 12. Procedure ARTICLE VI. RECALL OF TRIBAL COUNCIL MEMBER Section 1. Recall and Removal a. Petition Procedure b. Time Requirements c. Number of Required Signatures d. Eligibility e. Signature Requirements f. Unsuccessful Recall g. Recall Election h. Recall Election Procedure i. Immunity from Recall j. Successful Recall ARTICLE VII. POWERS Section 1. Delegated Authority Section 2. Referendum Section 3. Chairperson a. Duty to Preside b. Duty to Report c. Duty to Supervise d. Duty to Implement Council Policy e. Duty to Inform the Council f. Duty to Seek Guidance Section 4. Vice Chairperson a. Duty to Act b. Other Duties Section 5. Secretary a. Duty to Act b. Duty to Keep Records c. Duty to Rule on Signatures d. Duty to Provide Information e. Duty to Notify f. Other Duties Section 6. Treasurer a. Duty to Act b. Duty of Keep Financial Records c. Duty to Protect Tribal Funds d. Duty to Provide Information e. Duty to Ensure Audit f. Duty to Report to Council g. Duty to Report to Membership h. Other duties ARTICLE VIII. OPEN MEETINGS Section 1. Open meetings Section 2. Exceptions ARTICLE IX. REGULAR MEMBERSHIP MEETINGS Section 1. General Tribal Membership Meetings Section 2. Notices Section 3. Annual Meetings Section 4. Quorum ARTICLE X. SPECIAL MEMBERSHIP MEETINGS Section 1. Special Meetings of the Tribal Membership a. Place and Time of Special Meetings b. Notice of Special Meetings c. Quorum ARTICLE XI. REGULAR TRIBAL COUNCIL MEETINGS Section 1. Meetings of the Tribal Council Section 2. Changes a. By Chairperson b. By Tribal Council Section 3. Quorum ARTICLE XII. SPECIAL MEETINGS OF TRIBAL COUNCIL Section 1. Special Meetings Section 2. Validity Section 3. Emergency Special Meetings Section 4. Quorum Section 5. Action Without a Meeting ARTICLE XIII. JUDICIARY Section 1. Authority to Establish Section 2. Procedure to Establish Section 3. Jurisdiction ARTICLE XIV. CONTINUITY OF ACTION Section 1. Ratification of prior Tribal Action Section 2. Savings Clause ARTICLE XV. SOVEREIGN IMMUNITY Section 1. Immunity and Waiver Section 2. Exhaustion of Tribal Remedies Section 3. Jurisdiction ARTICLE XVI. AMENDMENTS ARTICLE XVII. REPEAL ARTICLE XVIII. RATIFICATION Section 1. Effective Date Section 2. Eligibility to Vote ARTICLE XIX. FISCAL YEAR ARTICLE XX. ANNUAL REPORT ARTICLE XXI. FREEDOM OF INFORMATION Section 1. Members' Right to Information Section 2. Freedom of Information Act Procedures ARTICLE XXII. SIGNATURES Section 1. Signatures Section 2. Quorum Requirements
PREAMBLEWe, the native Wampanoag people of Aquinnah, in order to sustain and perfect our historic form of tribal government, do proclaim and establish this constitution for the Wampanoag Tribe of Gay Head (Aquinnah).
Our tribal government shall be dedicated to the conservation and careful development of our tribal land and other resources, to promote the economic well-being of all tribal members, to provide educational opportunities for ourselves and our posterity, and to promote the social and cultural well-being of our people.
This constitution supersedes the by-laws of the Wampanoag Tribal Council of Gay Head, Inc., a non-profit state chartered corporation of Massachusetts. All authority previously exercised by the Wampanoag Tribal Council of Gay Head, Inc. on behalf of the tribe shall cease as of the effective date of this constitution and any responsibility undertaken by the Wampanoag Tribal Council of Gay Head, Inc. shall hereinafter be the sole responsibility of the tribe as organized pursuant to this constitution.
NAME, TERRITORY, AUTHORITY and STATUS OF TRIBE
Section 1. Name: The name of this Tribe shall be the Wampanoag Tribe of Gay Head (Aquinnah) [tribe].Section 2. Territory: The territory and jurisdiction of the Tribe shall extend to the settlement lands as that term is defined in 25 U.S. C. 1771 f. (8) of the act entitled "Wampanoag Tribal Council of Gay Head, Inc. , Indian Claims Settlement Act of 1987" (settlement act) , and to such other lands as may hereafter be acquired by the tribe or held in trust for the use and benefit of the tribe by the United States.
Section 3. Authority: The Wampanoag Tribe of Gay Head (Aquinnah) has been acknowledged as an Indian tribe by the United States since February 10, 1987 (Fed. Reg. 4193).
Section 4. Status of Tribe: As a Tribe which has existed from prehistoric-historic times to the present, the Wampanoag Tribe of Gay Head (Aquinnah) shall, at its option, exercise such authority as is inherent in any federal tribe except to the extent that such authority has been expressly limited by this constitution, by the federal settlement legislation or any other federal legislation which limits the authority of federal Indian tribes generally.
Section 5. Governmental Entity: The elected body of government responsible for ensuring the maintenance of the government to government relationship and preserving the of sovereignty as defined in these Articles on- behalf of the general membership of the Wampanoag Tribe of Gay Head (Aquinnah), shall be known as the Tribal Council.
MEMBERSHIPThe membership of the Tribe shall consist of the following:
Section 1. Enrolled members: All persons whose names appear on the list of members submitted by the Wampanoag Tribal Council of Gay Head, Inc. (WTCGH) in its petition for federal acknowledgment as an Indian tribe pursuant to 25 CFR Part 54 (1978) who met the membership criteria specified in the petition and those 91 individuals who have had their names added to the membership list since acknowledgment as evidenced by a certified letter sent to the BIA dated October 22, 1990.
Section 2. Criteria for Enrollment: Any person who can document their direct descent from a specifically identified Gay Head Wampanoag Indian on the 1870 census roil of the tribe compiled by Richard L. Pease and included in a report submitted to the State of Massachusetts on May 22, 1871 pursuant to an act of the General Assembly (Ch. 67, 1866) shall be eligible for enrollment in the tribe.
Section 3. Enrollment: The Tribal Council shall have the sole authority to accept an applicant for membership in the tribe.
Section 4. Enrollment Ordinance: The Tribal Council shall enact ordinances which will specify the procedures which must be followed by any person who is applying for tribal membership. Upon initial adoption of a membership ordinance, no subsequent membership ordinance adoption or amendment shall be effective unless it is approved by a three-fourths majority of the general membership in attendance at a regularly called membership meeting.
Section 5. Resignation: The tribal council may develop a tribal ordinance which provides for the resignation of tribal members. No such ordinance shall he effective unless it is approved by a three-fourths majority at a regularly called membership meeting.
Section 6. Limitation: No person shall qualify for membership in the tribe who is a member of any other organized tribe, band or Indian community which is either recognized by the Secretary of the Interior or not, unless he or she has relinquished in writing his or her membership in such tribe, band or community.
Section 7. Adoption and Honorary Members: No person may become a member of the tribe through adoption or honorary membership.
Section 8. Appeal Rights: Any decision of the tribal council with respect to any issue of membership is final and is notsubject to judicial review by any tribal, state or federal court or agency.
CIVIL RIGHTSSection 1. The Tribal Council, in exercise of its sovereign powers of self-government, shall not:
Section 2. Full Disclosure and Equal Opportunity The members of the Wampanoag Tribe of Gay Head (Aquinnah) are guaranteed full disclosure of information concerning the governance of the tribe and an equal opportunity to participate in all tribal programs and business activities. This Article shall be interpreted liberally and shall favor disclosure.
Section 3. Rights of Members: In furtherance of the basic principles stated in Section 2 of this Article, the Tribal Council shall:
Section 4. Claims: The tribal council shall hear all claims arising under the provisions of this Article unless a tribal court system is adopted as authorized by Article- XIII of this constitution.
GOVERNING BODYSection 1. Council: The governing power of the tribe shall be vested in the Tribal Council. The Tribal Council, acting as one governmental entity, shall be composed of the following positions:
Section 2. Lifetime Positions: There shall be two lifetime positions with the tribe. These shall consist of a Chief and a Medicine Man. Donald Malonson, Chief and Luther Madison, Medicine Man, shall continue to hold these positions under this constitution.a.) Responsibilities: The Chief and Medicine Man may attend meetings of the tribal council and may be called upon to presenttheir advice to the council but they may not vote nor may they be counted in order to achieve a quorum at any council meeting. They may, at the request of the council, represent the tribe at social or official functions where a representative of the tribe is appropriate.
Section 3. Subordinate Officers: The tribal council may, from time to time, establish offices in addition to those designated pursuant to this Article along with such duties' as they may determine.
TERM OF OFFICE AND ELECTIONSSection 1. Officers: officers of the tribal council are elected for a staggered three-year terms or until their resignation or removal from office in a manner provided herein.
Section 2. Tribal Council Members: The seven members of the tribal council are elected for staggered three-year terms.
Section 3. Continuity of Office: The tribal council members who have been elected to serve as members of the Wampanoag Tribal Council of Gay Head, Inc. shall continue as members of the tribal council as established pursuant to this constitution. They shall be required to stand for re-election as their terms would have expired under the previous Articles and by-laws of the Wampanoag Tribal Council of Gay Head, Inc.
Section 4. Election ordinance: The Tribal Council shall enact ordinances which will specify the procedures which must be followed by any tribal member who is a candidate for a position on Tribal Council; whether an officer or council member. Upon initial adoption of an Election Ordinance, no subsequent election ordinance or amendment shall be effective unless it is approved by a three-fourths majority of the general membership in attendance at a regularly called membership meeting.
Section 5. Resignation: Members of the tribal council shall re-main in office until their successors are duly elected and installed. Any member may resign from office by notifying the Chairperson or the secretary in writing. Such retirement shall take effect upon receipt by the Chairperson or secretary.
Section 6. vacancies: vacancies shall be filled by the tribal council at the first regularly scheduled meeting of the tribal council which occurs within thirty consecutive calendar days of the date of the vacancy.
Section 7. Procedure: The Chairperson shall accept nominations from the tribal council to fill such vacancy. All persons nominated must be eligible to vote in the next tribal election. A majority of votes cast shall elect. All votes shall be conducted by secret ballot. The tribal member so elected shall fill the unexpired term of the tribal council member that they replace.
RECALL OF TRIBAL COUNCIL MEMBERSection 1. Recall and Removal: A member of the-tribal council shall be recalled in the following manner:
POWERSSection 1. Delegated Authority: The Tribal Council shall possess and, at their discretion, exercise such inherent sovereign powers as those possessed by any other federally recognized Indian tribe except as specifically limited by the settlement act, this constitution and any laws of the United States which limit the authority of Indian tribes generally. The Tribal Council shallmanage, control and administer the affairs of the tribe and shall determine its policies and procedures. The general tribal membership, however, reserves the right to override any action of the Tribal Council by referendum or by tribal vote at a properly called special or regular meeting of the general tribal membership.
Section 2. Referendum: Upon receipt by the tribal secretary of a petition signed by at least fifty (50) eligible voters, or upon the request of a majority of the members of the Tribal' Council present at a valid meeting, any enacted or proposed ordinance or resolution of the tribal council shall be submitted to popular referendum within ninety consecutive calendar days. The vote of two-thirds of the qualified voters in such a referendum shall be conclusive and binding on the Tribal Council. Once a referendum has been called and the results announced, no new referendum may be called on the same subject for one year from the date of the referendum.
Section 3. Chairperson:
Section 4. Vice-Chairperson:
Section 5. Secretary:
Section 6. Treasurer:
OPEN MEETINGSSection 1. Open Meetings: All meetings of the Tribal Council or its sub-committees or other working groups shall be open to members of the tribe. Non-members of the tribe may attend with the permission of a majority of the members of the sub-committees or working groups or by majority vote of a quorum of the Tribal Council. Tribal members attending any open, special, general, annual committee or council meetings must have in their possession a tribal identification card. The Tribal Council and any of itsappointed committee persons reserve the right to request proof of tribal membership for anyone attending any of the foregoing meetings.
Section 2. Exceptions: All meetings of the- Tribal Council or its sub-committees or working groups wherein personnel matters or applications for tribal membership are considered shall be closed to all tribal members. At the request of the sub-committee or other working group, a meeting may be closed if, upon a' showing of good cause, the Tribal Council, by majority vote of a quorum, permits the closed session.
REGULAR MEMBERSHIP MEETINGSSection 1. General Tribal Membership Meetings: The general tribal membership shall hold four quarterly meetings on the third Sunday of February, May, August and November. The November meeting shall be considered the annual meeting of the tribal membership.
Section 2. Notices: Notices of the regular quarterly meetings of the general tribal membership shall be posted at the Tribal Council office and sent to all voting members at least thirty days prior to the regular quarterly meeting.
Section 3. Annual Meetings: At the November annual meeting, elections shall be conducted pursuant to Article V of thisconstitution. A preliminary financial summary of the tribe'sbusiness and program activities shall be presented to the tribal membership at the annual meeting and final audit report of the previous financial year activities will be made at the February General Membership meeting. The Chairperson shall report on the state of the business and program activities of the tribe and shall summarize the future plans of the Tribal Council on behalf of the tribe.
Section 4. Quorum:. A quorum shall consist of at least 50 members who are eligible to vote pursuant to Article V Section 5 of this constitution.
SPECIAL MEMBERSHIP MEETINGSSection 1. Special Meetings of the Tribal Membership-o: The Tribal Council shall hold special meetings of the tribal membership upon the call of the Chairperson, or, in the absence or unwillingness of the Chairperson, by a majority vote of the Tribal Council. The Chairperson shall also call a special meeting of the general tribal membership upon written request thereof, signed by fifty (50) members of the tribe.
a.) Place and Time of Special Meetings: The place and time in which special meetings of the Tribal Council will be held shall bedetermined by the Chairperson or, in the absence or unwillingness of the Chairperson, by a majority of a quorum of the Tribal Council.
REGULAR TRIBAL COUNCIL MEETINGSSection 1. Meetings of the Tribal Council: The Tribal Council shall meet on the first Saturday and third Wednesday of each month. A notice of the time and place of the regular Tribal Council meeting and a proposed agenda shall be posted in a prominent place in the tribal offices at least twenty-four hours before the start of the regular -meeting. A similar notice shall be sent to Tribal Council members at least five (5) consecutive working days prior to the date of the regular meeting.
Section 2. Changes: The regular meeting date of the TribalCouncil can be changed or a special meeting of the Tribal Council may be called by:
Section 3. Quorum:. A majority of voting officers and members shall constitute a quorum for the conduct of business at any regular meeting of members of the Tribal Council.
SPECIAL MEETINGS OF TRIBAL COUNCIL
Section 1. Special meetings: Special meetings may be called by submission of a written request signed by at least four members of the Tribal Council. Such written requests shall be directed to the Chairperson and shall state a date, time, place and subject of the proposed special meeting. The proposed date of the meeting shall be at least seven consecutive working days prior to the date the demand for a special meeting is served on the Chairperson. Upon certification by the secretary that the signatures contained in the demand for a special meeting are genuine, the special meeting shall be called by the Chairperson as proposed. The secretary shall ensure that the notice requirements of this Article are complied with.
Section 2. Validity: Prior to taking action at any meeting of the Tribal Council which is held at a date at variance with the dates established in Article XI Section 1. of this Article and at any special meeting of the Tribal Council, the secretary shall certify that the notice requirements of this Article have been complied with. In the absence of this certification, no action taken by the Tribal Council at that meeting shall have any validity.
Section 3. Emergency Special Meetings: The notice provisions of this section may be waived if immediate action by the TribalCouncil is deemed necessary by the Chairperson, provided that at least eight members of the Tribal Council agree and Provided further that any action taken in emergency session is later ratified at the next regular meeting of the Tribal-Council.
Section 4. Quorum: A majority of voting officers and members shall constitute a quorum for the conduct of business at any special meeting of members of the Tribal Council.
Section 5. Action Without a Meeting: All business of the Tribal Council may be accomplished by mail, telegraph, cable and facsimile machine or telephone provided that a verbal consent of at least eight (8) voting members of the Tribal Council of the proposed manner of taking action.
Section 1. Authority to Establish: The tribe may establish by tribal ordinance a judicial branch of government.
Section 2. Procedure to Establish: The ordinance establishing the judicial branch of government must be approved at a regularly scheduled annual tribal membership meeting held pursuant to Article V of this constitution.
Section 3. Jurisdiction: The judicial power of the courts of the tribe shall extend to all cases and matters in law andequity arising under the settlement act, this constitution, and the ordinances of the tribe, subject only to the limitations, restrictions or exceptions imposed by or under authority of the laws of the United States.
CONTINUITY OF ACTION
Section 1. Ratification of Prior Tribal Action: All: action, including but not limited to ordinances, resolutions, enactments, staffing decisions-or any other action taken on behalf of the tribe by the Wampanoag Tribal Council of Gay Head, Inc. adopted before the effective date of this constitution shall continue in effect to the extent that they are consistent with this constitution.
Section 2. Savings Clause: Should any Article or section of this tribal constitution be found to be unconstitutional or in violation of any applicable federal law then the remainder of this constitution shall remain in full force and effect.
Section 1. Immunity and Waiver: The sovereign immunity of the tribe
or any of its programs or business ventures, is hereby preserved except to the
extent it may be specifically limited in the settlement act or in the general
federal law which isapplicable to federal Indian tribes.
The Tribal Council may, upon a vote of eight (8) members of the Tribal Council, provide an explicit written waiver of tribal sovereign immunity. The waiver must state the extent and purposes for which the waiver is granted. Waivers must be construed narrowly.
Section 2. Exhaustion of Tribal Remedies.: In seeking redress of grievances against the tribe, persons subject to tribal jurisdiction shall exhaust all remedies available to them under this constitution and by-laws and the ordinances of the tribe before seeking redress of grievances against the tribe in the courts of the United States or, 'In the extent made specifically available in the settlement act, in the courts of the State of Massachusetts.
Section 3. Jurisdiction: Unless specifically granted in the settlement act or as provided in federal law generally applicable to federal Indian tribes, the state or federal courts shall have no jurisdiction over the tribe, its tribal lands or its membership. The provisions of this section shall be liberally construed in favor of the tribe.
This constitution may be amended by a two-thirds vote of those participating in a referendum election as provided for in Article VII of this constitution.
The Articles and by-laws of the Wampanoag Tribal Council of Gay Head, Inc. (a Massachusetts state chartered corporation) are hereby repealed and superseded by this constitution.
Section 1. Effective Date: This constitution shall be effective upon approval of a majority of tribal members eligible to vote in a special tribal referendum called for the express purpose of ratifying this constitution.
Section 2. Eligibility to Vote: Any tribal member who is at least eighteen years of age at the time of the referendum shall be eligible to vote. No other restrictions shall apply.
The fiscal year of the tribe shall end September 30th.
The Tribal Council shall prepare an annual report each year. The annual report shall be presented to the tribal membership at the annual tribal membership meeting. The annual report shall be available for distribution to tribal members at the annual tribal meeting. The annual report shall contain a balance sheet and income and expense statement of the tribe which shall briefly describe the financial activities of the tribe for the past year, and which shall contain such other material as the Tribal Council shall determine.. It shall be the responsibility of the Chairperson to oversee the production of the annual report.
FREEDOM OF INFORMATION
Section 1. Members' Right to Information: Members of the tribe have an absolute right to review the financial or other business related activities of the tribe. Business records,
financial balance sheets and documents relating to the administration of tribal programs shall be made available for review by tribal members. Copies of documents shall be made available at the expense of the requesting tribal member. Exceptions may be made for information concerning personnel matters, application for tribal membership, health information orbusiness financial information which is of such a sensitive matter that release of the information would jeopardize the financial stability of a tribal enterprise.
Section 2. Freedom of Information Act Procedures. The Tribal Council may adopt a freedom of information ordinance within one year of the effective date of this constitution which fully provides for the procedures that a tribal member must follow in order to obtain financial or other types of program documents or information which concern tribal governmental or business activities.
Section 1. Signatures: Wherever this constitution requires fifty (50) signatures to initiate some action, the number of signatures shall be increased by fifty (50) signatures for every five hundred (500) additional tribal members that are added to the tribal roll after the effective date of this constitution.
Section 2. Quorum Requirements: Wherever this constitution requires the presence of 50 tribal members to establish a quorum that number shall be increased by 50 for every five hundred (500) additional tribal members that are added to the tribal roll afterthe effective date of this constitution.
AS ADOPTED NOVEMBER 18, 1990
AMENDED: MAY 21, 1995
Signatures of the Tribal Council
AS ADOPTED NOVEMBER 18, 1990
AMENDED: MAY 15, 1994Signatures of the Tribal Council
ADOPTED: NOVEMBER 18, 1990
AMENDED: MAY 21, 1995