Thomas v. USA.

Citation189 F.3d 662
Decision Date07 September 1999
Docket NumberNo. 98-2329,98-2329
Parties(7th Cir. 1999) Sandra Thomas, et al., Plaintiffs-Appellants, v. United States of America, et al., Defendants-Appellees
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Western District of Wisconsin. No. 96-C-828-C--Barbara B. Crabb, Judge. [Copyrighted Material Omitted] Before Coffey, Rovner, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

Indian tribes enjoy important attributes of sovereignty, but in some key respects they are under the control of the federal government. Such is the case with elections to adopt, revoke, or amend tribal constitutions. Although these elections lay the very foundation for tribal self-governance, they must be called, held, and approved by the United States Secretary of the Interior. 25 U.S.C. sec. 476.

In February 1992, the Secretary conducted such an election to ratify two amendments to the tribal constitution of the Lac Courte Oreilles ("LCO") Band of Lake Superior Chippewa Indians. Both amendments were approved overwhelmingly, and initial challenges to the results were unsuccessful. Later, however, at the instigation of the losing faction, federal officials overturned the election results. That led to this lawsuit by four LCO members and ancillary members who supported the amendments. Their complaint contested the legality of the federal officials' actions under the Indian Reorganization Act ("IRA"), 25 U.S.C. sec. 461 et seq., and the judicial review portion of the Administrative Procedure Act ("APA"), 5 U.S.C. sec. 701 et seq. The district court, believing that the tribal government was a party without whose presence the case could not go forward under the standards of Federal Rule of Civil Procedure 19, dismissed the action when the tribal governing board refused to join the suit voluntarily and asserted its sovereign immunity to ward off involuntary joinder. We find, to the contrary, that Rule 19 does not compel the governing board's presence, and we therefore reverse.

I

In the late 1980s, some LCO members began considering possible amendments to their tribal constitution that would alter the standards for tribal membership as well as the structure of tribal government. In 1988, plaintiff Sandra Thomas (an LCO member who lives on the reservation, with at least 9/32 LCO blood) was named chairperson of a committee formed to explore these issues. This committee eventually drafted four proposals, which were circulated among the LCO membership and sent to the Bureau of Indian Affairs ("BIA"), the responsible division within the Department of the Interior, to begin the amendment ratification process.

The procedures for calling and approving an election to amend a tribal constitution are codified at 25 U.S.C. sec. 476 and are relatively straightforward. Once the Secretary receives a qualifying request to hold an election to ratify proposed amendments, the Secretary reviews the legality of the proposed amendments and calls an election within 90 days. 25 U.S.C. sec. 476(c)(1)(B); 25 C.F.R. sec. 81.5(d). The election results are not binding until the Secretary approves them, and any qualified voter may contest the results to the Secretary within three days of the election. 25 C.F.R. sec. 81.22. The Secretary has 45 days to resolve these election contests, conduct an independent review, and approve or disapprove the election. 25 U.S.C. sec. 476 (d)(1). This section of the IRA also provides a private right of action to enforce the statutory scheme in federal district court. 25 U.S.C. sec. 476(d)(2).

On November 5, 1991, the BIA approved two of the petitions submitted by Sandra Thomas in her capacity as "Spokesman for the petitioners" pursuant to 25 C.F.R. sec. 82.1(o), and called an election. Proposed Amendment A redefined tribal membership in terms of lineal descendancy rather than blood quantums; Proposed Amendment B lengthened the terms of office for elected tribal officials. The election took place on February 1, 1992, and both amendments passed handily: Amendment A carried by a margin of 542 to 105, and Amendment B by a margin of 373 to 274. Following the statutory procedure, LCO member Odric Baker and Tribal Governing Board Chairman Gaiashkibos both filed challenges to the election results within the permitted three-day window, but they were unsuccessful. On February 10, 1992, Michael A. Fairbanks, the Acting Area Director for the BIA, formally approved the amendments to the LCO tribal constitution.

At this point, Gaiashkibos continued his opposition to the election results through less orthodox methods. On April 16 and April 24, 1992 (well beyond the 3-day time period provided by 25 C.F.R. sec. 81.22 to challenge a Secretarial election, and a month or more after the end of the 45-day period within which the Secretary had to approve or disapprove the election under 25 U.S.C. sec. 476(d)(1)), he sent letters to Dr. Eddie F. Brown, then-Assistant Secretary of the Interior for Indian Affairs, asking that the decision to approve the election results be reviewed and reversed. Gaiashkibos argued that the election procedures had not conformed to the requirements of the tribal constitution and that not all eligible voting members had been informed of the election. On April 18, 1992, the tribal governing board passed a resolution refusing to recognize the new constitutional amendments.

On October 7, 1992, in response to Gaiashkibos's persistent efforts, David Matheson, who was then serving as Deputy Commissioner of the BIA, purported to revoke the Department's prior approval of the election. He noted that the tribal governing board did not have the authority to declare Secretarial election results void, but he agreed that the election was indeed flawed. Matheson explained that elections to amend tribal constitutions had to be conducted in the same manner as the original election to adopt the constitution itself, but that a large percentage of the 1992 LCO voters did not meet the voting criteria for the original LCO constitutional election. Matheson also indicated that a new election would have to be held, in which only LCO members meeting the original voting criteria could vote. (Despite this, a replacement election has yet to take place.)

After various unsuccessful efforts to persuade federal officials and the tribal governing board to reverse course and accept the election results or at least hold a new election, on October 2, 1996, the plaintiffs filed the current action in federal district court. As relevant here, they made three claims: First, they alleged that the federal defendants exceeded their statutory authority under 25 U.S.C. sec. 476(d)(1) when they disapproved the election after the 45-day statutory review period had lapsed. Second, they challenged the Department's action as arbitrary and capricious under the APA. See 5 U.S.C. sec. 706(2). Third, they maintained that the federal defendants had breached the general trust relationship between the United States and the Indian people. See United States v. Mitchell, 463 U.S. 206, 224-26 (1983). (The plaintiffs also brought a Bivens claim against Brown and Matheson, but the district court dismissed that claim for lack of personal jurisdiction and the plaintiffs did not address that determination in their opening brief. The Bivens claim is therefore waived. International Oil, Chem. & Atomic Workers, Local 7-517 v. Uno-Ven Co., 170 F.3d 779, 783 (7th Cir. 1999).) The plaintiffs did not name the LCO tribal governing board as a defendant to their suit.

The federal defendants filed a number of jurisdictional and procedural objections, among them the contention that the tribal governing board was a party "needed for just adjudication," without which the case could not proceed, under Rule 19. In an order issued October 14, 1997, the district court agreed that the board's presence was required under Rule 19(a), but it temporarily denied the defendants' motion to dismiss under Rule 12(b)(7) for failure to join a party under Rule 19. The court noted that the governing board might join the lawsuit as a plaintiff or be named as a defendant, either of which would avoid the need for dismissal. Although Indian tribes possess sovereign immunity, they, like the states, are also free to waive their immunity. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); cf. Wisconsin Dept. of Corrections v. Schacht, 118 S.Ct. 2047, 2052 (1998).

Upon consideration of the matter, the LCO tribal governing board declined to join the suit as a plaintiff. The plaintiffs responded with an amended complaint, filed on November 26, 1997, in which they named the members of the tribal governing board as defendants in both their official and individual capacities. The amended complaint restated all of the claims in the original complaint, added a request for declaratory relief against the tribal defendants in their official capacities under the IRA and individually under the Ex parte Young doctrine, and sought damages from the tribal defendants individually under 42 U.S.C. sec. 1985(3) on the theory that the tribal board members had conspired to deprive them of rights secured by the United States Constitution.

Both the federal defendants and the tribal defendants moved to dismiss, and this time the district court granted the motions on March 27, 1998. The court dismissed any claims against the governing board as barred by its sovereign immunity. It dismissed the IRA and APA claims against the federal defendants for failure to join a party required by Rule 19. Last, it rejected the plaintiffs' IRA and sec. 1985 allegations against the tribal defendants for failure to state a claim.

II

On appeal, the plaintiffs have devoted most of their energy to their attack on the district court's Rule 19 determinations. This court has considered, but not yet decided, whether to review decisions under Rule...

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