The issue at hand is not “Can Paul Brooks run for Lumbee tribal Chairman?” The issue is ‘Are we as a people going to follow our Constitution?’
Community Activist, Eric Locklear has brought forth a petition to the Lumbee Supreme Court against Mr. Brooks running again. It is our belief the petition to the Supreme Court is in error and should not be heard or ruled on.
According to Article IX Sec 2 of the Lumbee Tribe of NC Constitution state, Federal common law applies when there is no Lumbee custom, ordinance or tradition pertaining to the situation. Based on common Federal law, one must have legal standing to bring an action in court. Standing, or locus standi, is capacity of a party to bring suit in court. At the heart of these statutes is the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redress able. For example, Gary wrecks his vehicle and damages Billy’s car. Joe can’t bring suit against Gary because he has no legal standing. He has no right to expect Gary to do anything.
At the Federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes. Only those with enough direct stake in an action or law have “standing” to challenge it. A decision that a party does not have sufficient stake to sue will commonly be put in terms of the party’s lacking “standing. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44 (1991), Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993) and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
One may challenge a law or policy on constitutional grounds if he can show that enforcement of the law or implementation of the policy infringes on an individual constitutional right, such as Freedom of Speech. For example, in TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), high school officials in Des Moines, Iowa, had suspended students for wearing black armbands to school to protest U.S. involvement in the Vietnam War. There was no question that the parents of the students had standing to challenge the restrictions on the wearing of armbands. Mere ideological opposition to a particular government policy, such as the Vietnam War, however, is not sufficient grounds to challenge that policy in court.
Once a federal court determines that a real case or controversy exists, it must then ascertain whether the parties to the litigation have standing. Basically, a plaintiff must have suffered some direct or substantial injury or be likely to suffer such an injury if a particular wrong is not redressed. A defendant must be the party responsible for perpetrating the alleged legal wrong.
The standing doctrine is derived from the U.S. Constitution’s Article III provision that federal courts have the power to hear “cases” arising under federal law and “controversies” involving certain types of parties. In the most fundamental application of the philosophy of judicial restraint, the U.S. Supreme Court has interpreted this language to forbid the rendering of ADVISORY OPINIONS.
The Lumbee Tribal Supreme Court is based on the US Supreme court. It is important to note that the Court does not have to respond to every case brought before it. Every year, the US Supreme Court receives about 10,000 petitions for certiorari, but only hears about 80 of them. There are several factors to consider when deciding what cases to hear:
1. The Court will Hear Cases to Resolve a Conflict of Law: The U.S. judicial system consists of 13 federal circuits and 50 state supreme courts. When a number of these courts reach different conclusions about an issue of federal or constitutional law, the Supreme Court may step in and decide the law so that all areas of the country can then operate under the same law.
2. The Court will Hear Cases that are Important: Sometimes the Court will consider a highly unusual case such as U.S. v Nixon (concerning the Watergate tapes) or Bush v. Gore (concerning the extremely close election in 2000), or a case with an important social issue, such as abortion in Roe v. Wade.
3. The Court will Sometimes Hear Cases that Speak to the Justices’ Interests: Sometimes Justices give preference to cases that decide an issue in their favorite area of law.
4. The Court hears Cases when Lower Courts
Disregard past Supreme Court decisions: If a lower court blatantly disregards a past Supreme Court decision, the court may hear the case to correct the lower court, or alternatively, simply overrule the case without comment
If Paul Brooks decides to run, then the question as to if he has served two terms according to the constitution can be asked. If he doesn’t attempt to run there is no question for the court to consider. The court should not hear this. To do so enables the courts to set policy. That is not the role of the court system within our government.
We have three separate branches of government. Each has its place. The judicial branch cannot make policy. The legislative branch, known as the tribal council does that. The tribal council should never give up that part of their constitutional power. The court should choose to not review Mr. Locklear’s petition. To do so will set a precedent that allows the judicial branch the same power as the legislative branch. The tribal council should enact legislation that clearly defines the limits for terms regardless of the circumstances.
There three separate and distinct branches of government. Article III sec 3 of the Lumbee Tribe of NC constitution states.” The powers delegated to the legislative, executive and judicial branches shall be separate and distinct and no branch shall exercise the powers delegated herein to another branch, except for the office of vice-chairman.” Each with its own power and ability .The court can’t decide a legislative question and vice versa. “The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment” The Federalist 47, February 1, 1788.
According to Article XII Sec. 1 the Tribal Council has legislative power. That is the power to enact ordinances, laws and legislation according to the needs of the tribe. No other branch of our government can do so. As Alexander Hamilton stated in the Federalist Paper, February 8, 1788; “But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
The Lumbee Tribe of NC Supreme Court must follow our constitution and must refuse to hear the petition of Eric Locklear for these reasons. The future of our government as a sovereign nation is at stake.