What's a communty to do when chiefless?

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PRO BONO

Dear Tuma:

Our chief just resigned from council. We do not know what to do and wonder, can a chief really resign? Can council reject the resignation? Do we need to have a by-election, as regular elections are not until the fall?

Chiefless in Seattle

Dear Chiefless:

The quick answers to your questions is: Yes, no and maybe. A chief or a councillor can resign from council. It does not happen too often, but it does happen. People resign for many reasons: personal, professional, illness, family obligations or they are just sick and tired of fighting others on the council. Section 78 of the Indian Act says that the office can be vacant when a chief or a councillor resigns, but it does not say how the person should resign.

Can a chief resign verbally or does it have to be written? Does the chief resign to the council or to the people or to the band manager? Since there is nothing written on how a chief should resign, I looked to what the courts have said about this topic.

A chief can resign either verbally or can write a letter of resignation and the courts have said that this has to be done in a "fit manner" Usually, the resignation has to be given to council at a duly conveyed council meeting and is effective the moment it is presented.

Council does not have the power to reject, delay or to table the resignation. To do so would mean that no one can resign without the permission of council. The only thing council can do is to accept the resignation and figure out the next steps.

As for having a byelection, Section 78 also says that if the office becomes vacant three months before the next regular elections, a special election may be held. A number of factors need to be considered. First, the resignation must trigger a loss of quorum of council. Second, who will pay for an accelerated election? The department's policy (I may stand corrected on this) is that without a loss of quorum, Indian Affairs will not pay for a special election. The council may hold a special election but the band will have to pay for it but, of course, each case is different.

Finally, the Indian Act may not apply to a band where they elect under Custom Codes. You may have to look to these codes to see if there are any provisions that state whether a chief or councillor can resign and how they can do this.

Tuma