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IN THE TRIBAL COURT OF THE CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON
Case No. TC 09-04

LISA BROWN, Petitioner,
MOTION FOR REVOCATION OF
TRIBAL COUNCIL RESOLUTION 2009-136;
MOTION FOR REVOCATION OF ONE-YEAR BAR
BY THE SILETZ TRIBAL GAMING COMMISSION

vs.

CONFEDERATED TRIBES OF SILETZ
INDIANS OF OREGON, SILETZ TRIBAL
COUNCIL, Respondents.

Comes now Petitioner, Lisa L. Brown, to submit this final response requesting relief from the Court in the form of a revocation of Siletz Tribal Council Resolution 2009-136 that expelled Petitioner from the Siletz Tribal Council, and the revocation of the one-year bar against Petitioner enacted by the Siletz Tribal Gaming Commission.

Introduction

At issue are the flawed nature of the expulsion proceeding, the absence of procedural due process, and a conspiracy conducted by Respondents, two tribal attorneys, and Jim Kikumoto to remove Lisa Brown from the Siletz Tribal Council as quickly as possible, and without cause. Given the severity of the penalty, a lifetime ban on Petitioner’s right to run for tribal office, careful adherence to tribal ordinances regarding expulsion, as well as adherence to federal, state, and tribal standards enacted to protect due process were the onus of Respondents throughout the expulsion proceeding. Such careful adherence was non-existent.

Expulsion Proceeding

The expulsion proceeding was flawed in the following manner:

At 8:54 am on February 8, 2009, Lisa Brown posted an email that made reference to Jim Kikumoto, then General Manager of Chinook Winds casino (tab 2, pages 1-3 of the evidentiary notebook presented at hearing, hereinafter referred to as “the notebook.”) On February 9th at 10:28 am, less than 22 hours after Ms. Brown was sworn in as a Tribal Council member, Siletz Tribal Staff Attorney Cathern Tufts sent an email (tab 4, page 9) to Council Chairman Delores Pigsley claiming that Ms. Brown’s email comment was “racist,” “appalling,” and, “creates liability for the tribe.” Ms. Tufts is employed as a program attorney, a position paid through indirect funds, and as such she can officially comment and be involved in programmatic issues only. Yet Ms. Tufts’ email was sent from her workstation and in her official capacity as staff attorney, as shown by her comment, “My ‘professional’ reaction is that this is terrible” and “that statement would be Exhibit A in a discrimination suit!” In 1994, the Civil Rights Commission of the State of Hawaii upheld the use of a three-pronged test to establish whether racial harassment has occurred (Tseu v. Volcano Island Farms.) This test was created, in part, on rules regarding harassment based on ancestry. The test requires that the harassing conduct be regarded as intimidating, hostile, or offensive, and sufficiently severe or pervasive to alter the conditions of employment. In a 2004 Eighth Circuit Appellate case, Bainbridge v. Loffredo Gardens, Inc., the Court found:

“To be actionable under Title VII, the work environment must have been both objectively and subjectively offensive. Id. To decide whether a work environment is objectively

offensive, that is, one which a reasonable person would find hostile or abusive, we

examine all the circumstances, including the frequency of the discriminatory conduct,

its severity, whether it is physically threatening or humiliating or a mere offensive

utterance, and whether the conduct unreasonably interfered with the employee’s work

performance. Id. To constitute an objectively offensive work environment, the

discriminatory conduct must be so severe or pervasive that it alters the conditions of

the plaintiff’s employment. Id. A hostile work environment exists when the

workplace is dominated by racial slurs, but not when the offensive conduct consists

of offhand comments and isolated incidents. Id. at 794.”

On March 27, 2009, at a special Tribal Council meeting held the day before Petitioner’s final expulsion hearing, Petitioner and her spokesman personally presented to the eight Tribal Council members present a document (attachment A) titled Request for a Motion to Dismiss. This request, under heading 1. (a) informs Tribal Council that an objective standard, such as the standards cited above, was not met for the charge against Plaintiff of “Making racist comments.” The Council’s lack of the use of any objective criteria whatsoever also nullifies the charges “Acting in a manner inconsistent with the supervision of an employee” and “Jeopardizing the assets of the Tribe.” Ms. Brown’s comment referring to Jim Kikumoto merely meets the standard of an offhand comment, or an offensive utterance, according to the law. Further, Petitioner quickly arranged for the removal of her allegedly offensive email, as proven by a request sent by a tribal member who was searching for it on February 18, 2009 and couldn’t find it (tab 4, page 1.)

In Craig Dorsay’s May 12th Response to Motion for Appeal, he expands on Tribal Council’s reasoning in regard to its determination that it was necessary to immediately expel Petitioner. Costs related to Jim Kikumoto’s resignation, which he based on Petitioner’s comment, the search for his replacement, and an alleged impending boycott of Chinook Winds by the Portland Asian community, are presented as primary reasons. However, Mr. Dorsay fails to include evidence that Mr. Kikumoto had already stated, one week prior to the February 7th election, that he would resign when and if Ms. Brown was elected to Tribal Council. Petitioner will provide sworn testimony regarding Mr. Kikumoto’s statement for the Court’s consideration during hearing on May 18th. After Cathern Tufts implied that Council member Brown’s email was racist, Delores Pigsley quickly enlisted a handful of members of her family and inner circle to follow Ms. Tufts’ lead and send in letters and emails of their own, a direct contradiction of the Tribal Council Rules of Procedure, Sec. 2.100 that requires a newly elected Council member receive orientation. The mildly offensive comment made by Petitioner was easily remedied through orientation, training, or mentoring, as was every charge against her, but Ms. Pigsley chose instead to violate the Tribal Council Ethics Ordinance Sec. 2.201 that requires she “maintain high standards of honesty, integrity, fairness and impartiality.” In fact, Ms. Pigsley’s decisions throughout the expulsion proceeding violated Sec. 2.201 of the Tribal Council Ethics Ordinance which states, “Tribal Council members shall take action in the best interest of the Siletz Tribe and the tribal membership, not in their personal interest.” Ms. Pigsley’s decisions were based soley on her own personal interest to remove a duly elected Council member whom she did not like personally.

Based on an unauthorized financial agreement with Council Chairman Delores Pigsley, Mr. Kikumoto decided that he would instead resign his position as General Manager of Chinook Winds casino based on a claim of a hostile work environment. Petitioner will submit subpoenas for details of this arrangement for the Court’s review, as well as provide sworn testimony that the deal was not authorized by the Siletz Tribal Council. Mr. Kikumoto failed to file a formal complaint alleging a hostile work environment, nor did he present any evidence to support this claim, and such a claim was not processed, nor proven, in any administrative hearing or court proceeding. The bizarre claim that Ms. Brown’s offensive utterance was “racist,” beyond the reasonable doubt of anyone but the members of the conspiracy, is the driving force behind her expulsion from Tribal Council, as well as Mr. Kikumoto’s resignation. His subsequent monetary award, or “golden parachute” was paid from tribally-owned assets of the Siletz Tribe, not Ms. Pigsley’s bank account, and was based on a highly suspect, unproven, and extremely subjective determination of the damage he suffered, if he indeed suffered at all. This is a violation of Section IV of the Siletz Constitution that delineates the authority of the Tribal Council “to prevent the sale, disposition, lease or encumbrance of tribal lands, interests in tribal lands, or other tribal assets without the consent of the tribe.” Petitioner maintains Mr. Kikumoto did not properly file a discrimination claim because the claim could not be proven; the comment made by Petitioner was not severe, it was not pervasive, it occurred one time, it was not physically threatening or abusive, nor did it alter Mr. Kikumoto’s work environment. Ms. Brown’s comment could not be proven to be both subjectively and objectively offensive in any administrative or court hearing. In fact, Mr. Kikumoto’s exemption from the casino’s standard discrimination claim procedure is indicative of his involvement in the conspiracy to expel Council member Brown based on his pre-existing, personal animus toward her. Further, if Tribal Council wants to make the claim that casino revenue is at risk, financial reports must indicate such a decline, and it must be proven that the decline is the direct result of Petitioner’s allegedly “racist” remark. The evidentiary notebook used by Respondents at hearing contains one (1) email, (tab 2, page 8) written by a casino employee, that identifies one individual, Scott Sakamoto, hinting that the Asian community will no longer support Chinook Winds. There is no direct email or letter from Mr. Sakamoto himself, stating that he considered Ms. Brown’s comment racist; no sworn affidavit, nor any written proof from Mr. Sakamoto that a boycott was imminent. There is no flyer or email addressed to the Asian community announcing a boycott of Chinook Winds. In other words, there is no direct evidence that tribal assets were at risk. There are however, two statements that indicate Mr. Sakamoto is a close personal friend of Jim Kikumoto. Tab 2, page 8 “He and Jim are friends,” and tab 2, page 7 describing Mr. Kikumoto as “a personal friend” of Mr. Sakamoto. Further, tab 2, page 7 describes Mr. Sakamoto as “representative for the Asian community in Portland, OR” but no written or direct evidence of his title was provided by him, or by Respondents. There is no direct evidence that Mr. Sakamoto is an officer of an Asian organization, or any other proof that Mr. Sakamoto represents the Asian community. Petitioner hereby maintains that Siletz tribal members are entitled to an accounting of tribally-owned funds, in compliance with the Siletz Constitution, in the matter of the monetary award to Jim Kikumoto upon his resignation.

Petitioner claims that Council member Robert Kentta also exhibited a pre-existing personal animus toward her, which resulted in a biased and prejudiced expulsion proceeding. In an email (attachment B) to tribal member Lynette Warren, Mr. Kentta describes Ms. Brown as a screamer, a finger pointer, and challenges her to air “her own dirty laundry.” The question Mr. Kentta was responding to during this email exchange was in regard to the Siletz Tribal Business Corporation, of which he is the Board Chairman. On March 6, 2009, tribal member Delores Riding In approached Mr. Kentta at work and asked him why he made the motion to expel Ms. Brown. Mr. Kentta’s response was revealed to Tribal Council in a letter sent by Ms. Riding In on April 3, 2009 by registered mail (attachment C.) Not one member of the six-member quorum that voted for expulsion, or their attorneys, made any move to prevent Robert Kentta from voting on the expulsion of Lisa Brown, a violation of the Tribal Council Ethics Ordinance, Sec. 2.201 which states, “Tribal Council members shall carry out their duties and responsibilities in the highest ethical manner,” and “shall maintain high standards of honesty, integrity, fairness, and impartiality in their conduct as Tribal Council members. . . ” By not removing himself from discussion and vote, Mr. Kentta violated Sec. 2.204 of the Ethics Ordinance that forbids him to act in his own personal interest. He also became subject to Sec. 2.204 (b) of the Tribal Council Ethics Ordinance that states, “When a conflict of interest exists for a Tribal Council member with regard to a particular issue, the member shall not participate in any discussion or action with regard to such matter.” In addition, Sec. 2.106 (a) of the Tribal Council Rules of Procedure reads, “No Tribal Council member shall vote on any matter or take any other action as a member of the Tribal Council where such action or vote would violate that member’s ethical obligations under the Tribal Council Ethics Ordinance.” Through their failure to hold Mr. Kentta accountable to these tribal ordinances, the six-member quorum of Tribal Council that voted to expel Ms. Brown remain in violation of the Tribal Council Ethics Ordinance.

Violations of due process

At the beginning of the March 19th expulsion hearing, Petitioner was handed a notebook of evidence against her. Neither Ms. Brown, nor any member of Tribal Council, was ever served or had ever previously seen this notebook. Ms. Brown was then expected to construct a defense before the end of the hearing, at which time a final decision on whether to expel her was set to occur. This was a violation of Ms. Brown’s right to discovery, right to a fair trial, right to participate in her own defense, and right to face her accusers. Also at the beginning of this hearing, Mr. Dorsay declared that the issues addressed would be limited to the 13-day period Lisa Brown acted as a sitting Tribal Council member. He then proceeded to read “evidence” from the year 2007 into the record. Every Tribal Council member, at their swearing-in ceremony, swears an oath to uphold the U.S. Constitution. Petitioner argues here that this sworn oath includes the right to due process guaranteed by the 14th Amendment. Federal law, at 25 U.S.C. Section 1302 (8) expressly prohibits the Siletz tribe from denying “. . . to any person within its jurisdiction the equal protection of its laws. ” The Siletz Tribal Code Sec. 3.200, the TORTS AND INDIAN CIVIL RIGHTS ACT at Section 3.219 reads, “The Tribe is subject to actions for violations of an individual’s rights by the Tribe . . . under the Indian Civil Rights Act.” Ironically, the culmination of the many ethical and due process violations committed by the Tribal Council, with the exception of Council members Lillie and Reggie Butler, meets the exact criteria for their own expulsion, as described by the Tribal Council Ethics Ordinance, Sec. 2.201 which states, “Violation of this ordinance may constitute “neglect of duty” or “gross misconduct” as those terms are defined at Article VII, Section 4 of the Siletz Constitution.” Near the end of the March 19, 2009 expulsion hearing, Chairman Pigsley stated that complaints need to be written and signed in order for Tribal Council to respond to them, and that she has been telling this to tribal members for years. The evidentiary notebook handed to Lisa Brown that day contained one (1) written complaint about Ms.Brown that included a signature, that of Delores Pigsley’s sister. One of these letters does not contain the last name of the author (tab 4, page 7) and another does not have a date (tab 4, page 12.)

In a March 6, 2009 memo (attachment D) to Tribal Council members, Mr. Dorsay writes, “There is no requirement that there be strict standards on the use or admission of any evidence.” As the legal representative of the Siletz Tribe, paid through tribally-owned funds, Mr. Dorsay IS indeed bound to strict standards related to due process that are upheld, protected and demanded by the Tribe under Article III of the Siletz Constitution, the Federal Indian Civil Rights Act, and the TORTS AND INDIAN CIVIL RIGHTS ACT of the Siletz Tribe, as well as his own sworn oath as a member of the Oregon State Bar to uphold the 14th Amendment of the U.S. Constitution. Under bullet point #6 of his memo, Mr. Dorsay decides, “Hearsay evidence should be allowed, so long as the Council determines it is relevant and reliable.” At this point, Mr. Dorsay is acting as a judge, ruling ahead on the validity of evidence, and authorizing Tribal Council to make such rulings. At the two expulsion hearings, no sworn affidavits were presented, nor were witnesses called to support Tribal Council’s case. The evidentiary notebook contained written complaints from eight (8) tribal members who considered Petitioner’s comment about Mr. Kikumoto racially offensive. These seven tribal members represent .0035 of the 2,263 registered voters of the Siletz Tribe, or approximately three-tenths of ONE percent. The actions described in this Motion clearly establish Ms. Tuft’s and Mr. Dorsay’s involvement in a conspiracy, with six members of Tribal Council and Mr. Kikumoto, to remove Petitioner from Tribal Council immediately, and at any cost.

Mr. Dorsay’s April 6, 2009 Response to Petition states, “The Tribal Council’s authority to expel a member pursuant to this provision should not be unduly limited or constrained.” Mr. Dorsay’s claim means that the Siletz Tribal Council enjoys an authority greater than the Civil Rights Commission of the State of Hawaii, and the Eighth Circuit Court of the United States. It means that members of the Siletz Tribal Council are somehow exempt from ethical standards of conduct described by the Tribal Council Ethics Ordinance, and the Tribal Council Rules of Procedure. Mr. Dorsay claims that gross misconduct “is conduct that is out of all measure, beyond allowance, flagrant, shameful, or such conduct as is not to be excused.” Petitioner’s response is that her email comment of February 8, 2009, upon which six members of Tribal Council’s entire expulsion case is anchored, does NOT meet Mr. Dorsay’s definition of gross misconduct, nor his claim that her comment “was racist in character. . . beyond dispute.” In reality, it consisted of 12 words that were quickly removed from a public forum and never repeated. The comment was not spoken in Mr. Kikumoto’s presence, or at his worksite, two elements that would be required to prove a claim of a hostile work environment according to the law. Petitioner also disputes Mr. Dorsay’s claim that “The STGC independently sanctioned petitioner . . .” in support of Council’s position that her email comment falls within the sanctioning authority of both Tribal Council and the STGC. During the special tribal council meeting on March 27, 2009, under questioning by Petitioner’s spokesman, Delores Pigsley stated on the record that she is responsible for sending the letters and emails complaining about Ms. Brown’s allegedly “racist” comment to Shawna Gray, the Executive Director of the STGC. On March 6, 2009 (exhibit E) Robert Kentta wrote, “I believe the Chair has a responsibility to report allegations of misconduct to the head of the STGC – when those become known to her. . .” The Siletz Tribal Code Sec. 2.200, the Tribal Council Ethics Ordinance, at Section 2.206, titled CONFIDENTIALITY reads, “Tribal Council members, or complainant. . . or any other person involved with investigation or review of an ethical violation, shall keep all information obtained in the review investigation process confidential, until a final ruling by Tribal Council, or otherwise ordered by a court of competent jurisdiction. Violation of this section shall be a violation of this ordinance for Tribal Council members. . .” Petitioner hereby claims that her right to confidentiality was violated by Council Chairman Delores Pigsley, which resulted in the initiation of an STGC investigation that began on February 23, 2009.

The STGC investigation is a biased, unilateral affair that does not contain an interview with Petitioner that allows her to respond to, and refute, rumors and hearsay. As an example of hearsay, Petitioner recognized and chatted with a Chinook Winds vendor at a Fred Meyer store. Upon learning of the conversation from a Chinook Winds buyer, the casino’s Purchasing Manager, Christine Danner, contacted the vendor directly because he could not identify the person that he met in the store. Ms. Danner asked the vendor to go online and view pictures of Tribal Council members. The vendor could not identify Petitioner from her picture. Ms. Danner then reported the incident to the Finance Director, Angie Calkins, who informed Mr. Kikumoto. The result was an email from Jim Kikumoto to Delores Pigsley in which Mr. Kikumoto states (about the vendor) “his statement was he was stopped by Lisa Brown today” which is false. The vendor never identified Petitioner, and his statement was steadfast that he couldn’t name her. This series of emails, however, were used as “evidence” against Petitioner at hearing. Petitioner is appalled that false statements such as Mr. Kikumoto’s, are what the Siletz Tribal Council considers proof of “gross misconduct.” In a March 9, 2009 memo from STGC Executive Director Shawna Gray to tribal attorney Craig Dorsay (tab 2, page 4) Ms. Gray states, “If in fact Ms. Brown were expelled, we would consider the issues/violations to be resolved.” Ms. Gray then backtracks and imposes a one-year “bar” against Petitioner entering Chinook Winds property on March 23, 2009, although no new evidence was presented. Ms. Gray’s false statement of March 9th is typical of the mean-spirited, personal nature of the vendetta against her. Petitioner hereby claims that the Siletz Tribal Gaming Commission does NOT have the authority to violate her Constitutional right to equal opportunity to participate in the economic resources of the Siletz Tribe, which includes Chinook Winds casino. The STGC bar was enacted prior to the final decision by Tribal Council to expel Petitioner, therefore, the STGC bar was based on unsubstantiated and unproven allegations. Mr. Dorsay’s claim that the STGC investigation was “independent” is false. The STGC’s bar, and demand for Ms. Brown’s badge, was a deliberate, preemptive and prejudicial subversion of, and interference with the tribal governmental process, and the protection of rights guaranteed to Lisa Brown by the Siletz Constitution. Petitioner requests the Siletz Tribal Court revoke the one-year bar currently in force against Petitioner based on the fact that the STGC had no grounds to enact such a penalty.

Conclusion

Petitioner maintains that the conduct described in this Motion by six members of the Siletz Tribal Council, Mr. Dorsay, Mr. Kikumoto, and Ms. Tufts does meet the standard of gross misconduct described by Mr. Dorsay, the Siletz Constitution, and the Tribal Council Ethics Ordinance. Ethical standards were ignored, especially by Robert Kentta; Tribal Council Rules of Procedure were ignored; civil rights that include due process were violated; an unauthorized and illegal arrangement to transfer tribal funds to Mr. Kikumoto was conducted; and the Siletz and U.S. Constitutions were rendered meaningless.

Based on the foregoing evidence, Petitioner prays for the following relief from the Siletz Tribal Court: that the Motion for Revocation of Tribal Council Resolution 2009-136, and the revocation of the Siletz Tribal Gaming Commission’s bar against Petitioner entering Chinook Winds property be granted.

Signed this ______ day of __________, 2009.

__________________________, Petitioner

By a predictable 6-2-1 vote, Lisa Brown was expelled from the Tribal Council today.

Those voting to expel were:
Dee Pigsley
Bud Lane
Robert Kentta
Tina Retasket
Jessie Davis
and Loraine Butler

Lillie Butler and Reggie Butler voted no on the expulsion. Lisa Brown abstained, as required.

Chairman Delores Pigsley will appoint someone to fill Brown's seat, presumably within the next few days. I've been informed that Phil Rilatos had already been asked if he was interested in taking over Lisa's seat prior to the February 21st meeting when expulsion procedures began. It remains to be seen, however, who Dee Pigsley will pick to take Lisa Brown's place.