In re Sac & Fox Tribe of Mississippi Iowa/Meskwaki

Decision Date27 August 2003
Docket NumberNo. 03-2329.,No. 03-2355.,No. 03-2393.,No. 03-2392.,No. 03-2357.,No. 03-2390.,03-2329.,03-2355.,03-2357.,03-2390.,03-2392.,03-2393.
Citation340 F.3d 749
PartiesIn re: SAC & FOX TRIBE OF THE MISSISSIPPI IN IOWA / MESKWAKI CASINO LITIGATION
CourtU.S. Court of Appeals — Eighth Circuit

Dennis W. Johnson, argued, Des Moines, IA, for appellant in No. 03-2329.

Charles E. Gribble, argued, Des Moines, IA, for appellees in No. 03-2329.

Steven F. Olson, argued, Bloomington, MN, for appellant in Nos. 03-2355, 03-2357, 03-2390, 03-2392, 03-2393.

Dennis W. Johnson, argued, Des Moines, IA, argued, for appellees Bear, et al.

David C. Shilton, argued, U.S. DOJ Washington, DC, for appellee U.S.

Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

These consolidated appeals involve the intersection of an issue that is subject to federal regulation, namely, the operation of Class III gaming on Indian lands, with an issue that is subject to tribal control, namely, the right of a limited sovereign to interpret its own constitution and select its own leaders. As to the gaming issue, we affirm the district court's grant of a preliminary injunction enforcing a temporary closure order from the Chairman of the National Indian Gaming Commission (the "NIGC") and the district court's dismissal of a premature challenge to the temporary closure order. We reverse, however, the district court's dismissal of a claim by the federally recognized tribal council to enjoin illegal gaming under 25 U.S.C. § 2710(d)(7)(A)(ii). As to the issue of tribal leadership, we affirm the district court's dismissal of the federally recognized tribal council's action for broader injunctive and declaratory relief.

I. Background

The Sac & Fox Tribe of the Mississippi in Iowa (the "Tribe"), a federally recognized Indian tribe, operates the Meskwaki Casino•Bingo•Hotel under a state-tribal compact with the State of Iowa as authorized by the Indian Gaming Regulatory Act ("IGRA"). 25 U.S.C. § 2710(d)(1). A Tribal Constitution approved by the Secretary of the Interior in 1937 provides that the Tribe is to be governed by an elected Tribal Council. Alex Walker, Jr., leads the current, elected Tribal Council (the "Elected Council"). The Elected Council refers to itself throughout these proceedings as the federally recognized Tribal Council. The Tribal Constitution vests broad power in the Tribal Council, including dispute resolution powers, and does not establish an independent Tribal Court.

In the fall of 2002, members of the Tribe who were dissatisfied with the conduct of the Elected Council alleged illegal conduct by the Elected Council and circulated petitions to seek a special election to recall the entire council. Article XII of the Tribal Constitution expressly provides for such a recall procedure:

Upon a petition signed by not less than thirty percent of the eligible voters of the Tribe, enumerated at the last general election, the Tribal Council shall call a special election to ratify or reject any action by the Tribal Council or to recall any member of the Tribal Council.

The petitioners needed 243 signatures and collected 283. The Elected Council, however, rejected the petition as invalid due to alleged irregularities and refused to call a special election. The Elected Council claims that some of the signatures were forged. The Elected Council does not claim to have conducted an investigation to determine if there were 243 valid signatures, nor does the Elected Council provide any further explanation of the alleged irregularities. Rather, the Elected Council states only that it was satisfied that the irregularities were sufficient not to warrant a recall election.

Because the Tribal Constitution grants to the Tribal Council dispute resolution powers and the duty to call a special election, there is no separate Tribal body to which the petitioners may appeal the Elected Council's action other than the Elected Council itself. On March 3, 2003, faced with the Elected Council's ongoing refusal to call a special election, members of the Tribe chose to pursue a self-help remedy not provided under the Tribal Constitution. Charlie Old Bear, the hereditary Chief of the Tribe, appointed a group led by Homer Bear, Jr., as an interim council (the "Appointed Council"). The Appointed Council claimed authority to govern the Tribe alleging a traditional form of Tribal government that predated the 1937 Tribal Constitution.

The members of the Appointed Council — who previously led the recall petition effort — did not seek BIA assistance in securing a recall election before pursuing their self-help remedy. In a letter dated March 13, however, they did seek BIA recognition as the new government of the Tribe. The BIA's Regional Director replied, stating, "[t]here are no provisions in [Tribal Constitution Articles X and XII] for the BIA to intervene in those tribal process[es] nor is there an appeal to the BIA." Quoting a 1996 BIA ruling, Wadena, et al. v. Acting Minneapolis Area Director, IBIA 96-99-A, the Regional Director stated, "the Band, as a sovereign nation, has not only the right, but also the responsibility, to resolve this dispute for itself, without further interference from [the] BIA. As long as the Band's final resolution does not conflict with its governing documents or the Indian Civil Rights Act, 25 U.S.C. § 1302, [the] BIA must defer to the Band's resolution of this intra-tribal dispute."

The Appointed Council subsequently built support among members of the Tribe, and, on March 26, took control of the casino, other Tribal facilities, and some of the Tribe's finances. The Elected Council alleges that the Appointed Council seized the casino by force and placed armed guards in various Tribal buildings. During this time, the casino remained open and continued to operate under the control of the Appointed Council. The Elected Council alleges that the Appointed Council excluded members of the Elected Council from the casino and other Tribal facilities, but permitted members of the Elected Council, like all members of the Tribe, to receive their monthly dividend check. The Appointed Council notified two banks that held gaming proceeds, Wells Fargo Bank Iowa, N.A., and the State Bank of Toledo, that only the Appointed Council possessed authority to act on behalf of the Tribe. Faced with uncertainty over which council possessed authority to act on behalf of the Tribe, the banks froze Tribal accounts.

Facing the Appointed Council's appropriation of power, the Elected Council sought BIA confirmation of continued recognition. In response to a March 27 request from the Elected Council, the Regional Director of the BIA declined to confirm that the Elected Council was the federally recognized governing body for the Tribe and, again, refused to "intervene in this internal matter at this time." In an April 1 letter to Congressman Leonard Boswell, however, the Acting Assistant Secretary of the Interior for Indian Affairs stated that the Department the Interior "continue[d] to recognize the elected Tribal Council ... as the leadership of the Tribe." Since April 1, the BIA has consistently recognized the Elected Council as the leadership of the Tribe.

On April 8, the Elected Council filed suit in the United States District Court for the Northern District of Iowa against the members of the Appointed Council and against the banks that froze Tribal accounts or held deposits made by the Appointed Council. The Elected Council's complaint contained claims for declaratory and injunctive relief. In the claim for declaratory relief, the Elected Council sought a judgment declaring that the Elected Council "has the exclusive right to control the financial assets of the Tribe, with the power to collect, deposit, and disburse those assets and funds for the benefit of the Tribe" and that the members of the Appointed Council have "no legal authority to act on behalf of or bind the Tribe with respect to the gaming revenues described above." In claims for injunctive relief, one of which the Elected Council captioned as a claim under the Racketeering Influenced and Corrupt Organization Act ("RICO"), the Elected Council sought an order (1) requiring the Appointed Council to account for and return all Tribal money and property, (2) prohibiting the Appointed Council from representing themselves as authorized representatives of the Tribe or enforcing any personnel actions against the employees of any Tribal operations, and (3) requiring the defendant banks to honor the Elected Council's instructions regarding Tribal funds.

The district court held a hearing on April 10, and, on April 15, dismissed the Elected Council's action in its entirety for lack of subject matter jurisdiction. The district court characterized the relief sought by the Elected Council as judicial intervention in a non-justiciable, intra-tribal dispute. In reaching this conclusion, the district court examined and rejected three specific bases for federal question jurisdiction. First, the district court found no basis for jurisdiction under the United States' general trust responsibilities because "[c]asino revenues do not constitute property held in trust by the federal government, but are instead tribal property." District Court Order at 5 (citing Smith v. Babbitt, 875 F.Supp. 1353, 1369 (D.Minn. 1995)). The district court next determined that the "IGRA does not provide a general private right of action" and the "relief requested here is not to enforce or to determine compliance with the IGRA, but rather to decide which Tribal Council is properly in place under the Tribe's Constitution." District Court Order at 7-8. Finally, the district court dismissed the Elected Council's RICO action because the underlying acts of the Appointed Counsel, as alleged by the Elected Council, could only qualify as predicate offenses if the court first concluded that the Appointed Council lacked authority under Tribal...

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