2010 SMTCA 2 March 15, 2010 Loren Miller, Petitioner-Appellant, vs. Human Resources Department and John Miller, Respondent-Appellee.

¶6 In a letter dated July 20, 2009 from the Petitioner to Tribal Chairman Robert Chicks, the Petitioner states; The response I received from Human Resource on 7/10/09 to the questioned hiring of a Non-Tribal person over a qualified enrolled member would seem in disregard to the established Tribal policy specific to Tribal Preference in employment. The statement by HR that the hiring process complied with Tribal Law and policy is an unreasonable and inadequate explanation, showing improper handling of acceptable hiring practice, that enhance enrolled members chances of being hired to Tribal employment if job qualifications are met. Tribal Ordinance-Chapter 54 Titled, Employee preference policy ordinance - states the purpose of this ordinance is to provide maximum employment opportunity and preference in hiring and lay-off to the people of the Stockbridge-Munsee Community. See: sub. Sec. 54.2, Establishing Preference Sec. 54.2, Establishing Preference (enclosed). It appears that the HR dept. has willfully violated a good faith effort to reach agreement on an applicant whose selection complies with this ordinance3.

¶7 On October 26, 2009 the Petitioner filed a civil complaint with the Stockbridge-Munsee Tribal Court asking the Court to hear his complaint against HR and Director John Miller regarding his not being hired for the LP Lead Driver position.

¶8 The trial court held a hearing on December 30, 2009 and found the following:

1. The case was filed on October 26, 2009 by the Plaintiff, pro se, against the Defendants.

2. The case was filed as employee preference case under Chapter 54 of the Tribal Ordinances.

3. The Plaintiff was not offered employment by the Stockbridge-Munsee Community in a letter dated June 26, 2009.

4. The case was not filed within the 5-day Statute of Limitations established in Section 54.8(C) and therefore can not (sic) be heard.

5. The named Defendants share the Stockbridge-Munsee Community's sovereign immunity as a department and employee of the Tribe.

¶9 The trial court then dismissed this case with prejudice in an order dated December 30, 2009 and filed with the Court on January 5, 2010. January 20, 2010, the Petitioner-Appellant files an appeal of the trial court's decision. We now review the trial court's decision.

Issue

¶10 The issue is whether the trial court erred, as a matter of law, when it dismissed the Petitioner's petition on the grounds that the Petitioner failed to timely file his request for review of the HR Department's decision not to hire Petitioner for the LP Lead Driver position.

Applicable Law

¶11 Chapter 54-Employee Preference Policy Ordinance of the Stockbridge-Munsee Tribal Code was established for the purpose of providing optimum employment in the Stockbridge-Munsee Community for Tribal members, as well as those who live in the Community as spouses or direct descendants. It is a critical element to building self-sufficiency, sovereignty and an economy that combats poverty and social ills, and assures that the Stockbridge-Munsee Community receives the maximum benefits generated by its entities and enterprises.

¶12 If there are violations or non-compliance with this ordinance, the Tribe has provided remedies and a limited waiver of sovereign immunity for purposes of enforcement. Section 54.8 provides the following:

(A) In order to enforce the provisions of this ordinance, the Stockbridge-Munsee Community shall be subject to suit in the Stockbridge-Munsee Tribal Courts by employees or applicants in accordance with the limitations of this section.

(B) Money damages shall not be available in any suit brought under this ordinance. The sole remedy available to the aggrieved party shall be the appointment to the job, promotion, transfer, or interim appointment that was denied as a result of a violation of this ordinance. The complainant may also be awarded a similar unfilled position if one is available.

(C) Any complaint brought under this Ordinance must be filed in Tribal Court within 5 business days of receipt of notice that the complaining applicant did not receive the position. Complaints brought more than 5 days after notification shall not be heard.

¶13 In order to decide the issue of whether the Petitioner timely filed his request for review, this Court looks at Section 54.8(C) in its analysis.

Analysis

¶14 Section 54.8(C) is very specific. It states that any complaint brought under this Ordinance must be filed in Tribal Court within 5 business days of receipt of notice that the complaining applicant did not receive the position.4 This brings into question as to whether or not the undated letter from the Petitioner to the Stockbridge-Munsee Human Resource Department stating; With this letter I am appealing the hiring of the LP Lead Driver position......... constitutes a filing under 54.8(C).5 In this letter the Petitioner states; I have made several attempts by phone to reach the number provided in the letter of 6/26/09 with no answer or call back. The Petitioner, at the December 30, 2009 hearing, again refers to his attempts to call HR.6 Do attempted phone calls to HR constitute notice of appeal? This Court finds that they do not as the applicable law is very specific stating that it must be filed in Tribal Court.

¶15 In Stockbridge-Munsee Community -v- Joseph Miller, the Stockbridge-Munsee Tribal Court of Appeals set a bare requirements standard for Notice of Appeal.7 In that case the Director of Tribal Services issued an Inter-Office Memorandum to the Interim Manager of Human Resources requesting an appeal of the Employee Mediation Panel's (EMP's) decision. Specifically, the memo referred to the subject as an "Appeal to Tribal Court for Joe Miller Grievance" and further stated "I do not agree with the panels (sic) response. Please foreward (sic) this to the Tribal Court...... The Interim Manager filed the memo with the Tribal Court within the statute of limitations. However the formal Petition for Review was not filed with the Tribal Court until sometime after the statute of limitations had run. The trial court dismissed the case because it was untimely filed. The Stockbridge-Munsee Tribal Court of Appeals disagreed and overturned the trial court stating:

We.... conclude that the memo does constitute a Notice of Appeal. We recognize, however, that the February 18, 1997 memo meets the bare requirements for Notice of Appeal. ........ We do so with the express finding that the request was timely filed in this case.

¶16 This Court finds that neither the attempted phone calls to HR or the undated letter to HR with cc: to Tribal Council, Attn: Pres. Bob Chicks meets this bare requirement standard. There is no indication of the Court being notified of any appeal in this letter. Even if a copy of the undated letter was filed with the Court it would have been filed beyond the five day statute of limitations based on the Petitioner's acknowledgement that he drafted the letter on July 8, 2009 (footnote 4).

¶17 In his appeal, the Petitioner states; The petitioner who has no legal training attempted to exercise his rights as a Tribal member by filing his grievance/appeal with the HR department. He also states; The response from HR indicated willful disregard of established Tribal policy. The next step follow-up was established by written notification of improper hiring to president Chicks, as council representative and direct admin. Supervisor of HR. This Court finds that neither of these actions constitutes an exercise of Petitioner's rights as provided under 54.8(C) in which the Stockbridge-Munsee Tribal Council provided clear and specific provisions for remedies if there were violations of Tribal policy.

¶18 The Petitioner references, what he considers, a disturbing comment made by defense council during the December 30, 2009 hearing that ignorance of the law is no excuse. Although the Petitioner finds this comment disturbing, ignorance of the law is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content. The rationale of the doctrine is that if ignorance were an excuse, a person charged with criminal offenses or a subject of a civil lawsuit, as in this present case, could merely claim that he or she is unaware of the law in question to avoid liability, even though the person really knows what the law in question is. The doctrine assumes that the law in question has been properly posted and distributed. It may be printed in a government newspaper, available over the internet or printed and available for sale at affordable prices. In the case at hand, this Court acknowledges that all Stockbridge-Munsee ordinances are available over the internet at Mohican.com.

¶19 At the December 30, 2009 trial court hearing, Doug Miller, advocating for the Petitioner, states "I am aware that there have been other parties that have used have used (sic) the preference and have filed within the five days limitation and I think you know that the fact that the case that I'm aware of is where the plaintiff was an attorney with an aunt that was a judge."8

¶20 Although the Petitioner may have become aware of this information during preparation for the December 30, 2009 hearing, this Court finds that the Petitioner did have knowledge of and access to the information regarding the Stockbridge-Munsee ordinances that protected his rights to appeal.

¶21 The Petitioner states, "You wrote the law, the attorney wrote the law and now they hide behind the law."9 Although it may be true that the attorney wrote the law, it is the Tribal Council who passes and enacts the law. Generally, statutes of limitations are enacted by the legislature as in this case by the Tribal Council. The Tribal Council may either extend or reduce the time limits, subject to certain restrictions, but the court cannot extend the time period unless the statute provides such authority. If the Petitioner feels that the law should be changed to extend the time period, he should approach the Tribal Council on this matter. This Court finds no statutory authority exists for it to extend the statute of limitations.

¶22 In the Petitioner's Appellate Brief in Support of Appeal Court Action, he states; It appears that the legal dept. has willfully created laws and conditions that restrict and prohibit the protection of Tribal preference laws enacted and mandated in Chapter 54. As stated above, it is the Tribal Council that enacts laws, not the legal department.

¶23 In stating his grounds for appeal, the Petitioner states; The Tribal court failed to consider, in its order to dismiss, the fundamental issue that guarantees the legal fairness of protected rights. In viewing this statement, this Court finds that the guarantees of the legal fairness of protected rights is a duty of the Court, but also finds that these guarantees apply to all parties of the case, not merely the Petitioner. The Petitioner, on numerous occasions in his motion to appeal and during the December 30, 2009 court hearing, references that HR failed to inform him of a five day period in which he could appeal the denial of his hiring. He states; This is a case where HR is not following it's (sic) policies and they're hurting their people.10 Although such a policy may have merit, this Court can find no current tribal policy requiring HR to provide appellate information when it does not hire a person for employment with the tribe. In his motion to appeal, the Petitioner states; The court in its decision did not address a critical issue of Tribal law that mandates Tribal preference in hiring.11 This Court agrees. The trial court did not address a critical issue of Tribal law that mandates Tribal preference hiring. However, it is the Petitioner's own lack of action that barred the trial court from addressing that issue as the ordinance states;

Any complaint brought under this Ordinance must be filed in Tribal Court within 5 business days of receipt of notice that the complaining applicant did not receive the position. Complaints brought more than 5 days after notification shall not he heard.

Conclusion

¶24 In reviewing this case de novo, it is the conclusion of this Court that the trial court did not abuse its discretion nor did it not err in dismissing this case because it was not filed within the 5-day statute of limitations.

Decision

¶25 The decision of Stockbridge-Munsee trial court is hereby affirmed. This decision is final.

Dated this 15th day of March, 2010

By the Court

David D. Raasch, Appellate Judge