Clark v. LAND & FOR. COM., CHEYENNE RIVER SIOUX TRIBAL COUN.

• Decision Date: 09 August 1974
• Docket Number: Civ. No. 74-3021.
• Citation: 380 F. Supp. 201
• Parties: Dorothy CLARK et al. v. The LAND AND FORESTRY COMMITTEE OF the CHEYENNE RIVER SIOUX TRIBAL COUNCIL et al.
• Court: U.S. District Court — District of South Dakota

380 F. Supp. 201

Dorothy CLARK et al. v. The LAND AND FORESTRY COMMITTEE OF the CHEYENNE RIVER SIOUX TRIBAL COUNCIL et al.

Civ. No. 74-3021.

United States District Court, D. South Dakota.

August 9, 1974.

David L. Bergren, Fort Pierre, S.D., for plaintiff.

Donald J. Coleman, Dupree, S.D., for Tribal Council.

Michael Carter and H. Richard Churchwell, Legal Services Committee, Eagle Butte, S.D., for defendant Eldred Fast Horse.

MEMORANDUM OPINION

BOGUE, District Judge.

The above matter has come before this Court pursuant to defendants' motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for an order dissolving the temporary restraining order and remanding the case to the Land and Forestry Committee of the Cheyenne River Sioux Tribal Council. A hearing was held on this matter to the Court in Rapid City, South Dakota on August 1, 1974.

The facts of this case are, with minor exceptions, not in dispute. On December 7, 1973, the Cheyenne River Sioux Tribal Council (hereinafter Tribal Council) awarded a grazing permit to the plaintiff. The permit included the land designated as Sections 23 and 24, Township 11 N., Range 28E, Dewey County. This land is owned by the Cheyenne River Sioux Tribe and is within the exterior boundaries of the Cheyenne River Indian Reservation. Sometime later in December, the Land and Forestry Committee of the Cheyenne River Sioux Tribal Council (hereinafter Committee) recommended to the Tribal Council that defendant Fast Horse's application for a grazing permit for these same sections be approved. During early January, 1974, the Tribal Council approved a list of applications for grazing permits which included the application of defendant Fast Horse. On June 11, 1974, the Tribal Council affirmed this approval and rescinded their award of a permit to the plaintiff. On or about June 3, 1974, the plaintiff appeared before the Committee to inquire as to the status of the two sections of land, but received no satisfactory answers. In late June, 1974, the plaintiff went before the Tribal Council to ask for an explanation of the Council's action, but was referred back to the Committee. On July 17, 1974, a complaint which the plaintiff had filed in Tribal Court against the tribe was dismissed with prejudice for lack of jurisdiction.

This matter presents several interesting questions of law and procedure to the Court. Because of the reestablishment of the Indian reservations within South Dakota to their original boundaries as set by treaty in the latter half of the nineteenth century, this case is also of great importance in regard to future civil litigation arising on the reservations. More specifically, we must determine whether the federal district courts will be courts of original jurisdiction for civil claims arising on the reservations or, whether we will recognize, encourage, and support the vitality and sovereignty of Indian judicial and administrative processes. For reasons to be set out below, we adopt the latter approach.

Our discussion of the question before us is best begun by a detailed examination of the controlling Eighth Circuit Court of Appeals opinion. This case is O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140 (8th Cir. 1973). In O'Neal, the plaintiffs were enrolled Indians grazing cattle on tribal land under leases called grazing permits. The plaintiffs borrowed money from the federal government, a local bank, and the tribe to purchase cattle for grazing on the leased land. The plaintiffs alleged that they were encouraged by some tribal officials to pay the government first and let the tribal loan go. The tribe then foreclosed their loan and repossessed plaintiffs' cattle. The complaint alleged that some of the defendants had wrongfully taken the cattle and wrongfully threatened eviction from the grazing unit. O'Neal, p. 1142. The Court stated at page 1141 that the principal issue before them was "whether individual Indian plaintiffs, who fail to exhaust tribal remedies in civil disputes with the tribe, are prohibited from bringing suit in federal court on an action predicated essentially upon the Indian Bill of Rights." The Court answered that individual Indian plaintiffs must, with few exceptions, exhaust their tribal remedies, and affirmed the district court's dismissal of the action with a modification.

At page 1143, the Court established three questions to be answered so as to determine if dismissal is proper in cases of this kind. "(1) What, if any, tribal remedies existed? (2) Should an exhaustion requirement generally be applied in cases such as this? (3) If exhaustion is generally required, is it appropriate to require exhaustion in this case?" The Court quickly determined that two tribal remedies did exist which had not been utilized. Also, in an excellent and learned discussion, they found that an exhaustion requirement should generally be applied. Citing White Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973); Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Luxon v. Rosebud Sioux Tribe of South Dakota, 455 F.2d 698 (8th Cir. 1972); Dodge v. Nakai, 298 F.Supp. 17 (D.C. 1968); McCurdy v. Steele, 353 F.Supp. 629 (D.C.1973). At page 1144 of 482 F.2d, the Court stated, "it is clear to us that Congress wished to protect and preserve individual rights of the Indian peoples, with the realization that this goal is best achieved by maintaining the unique Indian culture and necessarily strengthening tribal governments." The Court did recognize some exceptions to the exhaustion requirement and discussed two of them. In Dodge, supra, exhaustion was not necessary due to the presence of some defendants not amenable to tribal court jurisdiction; in McCurdy, supra, the only tribal forum was the tribal council being challenged by the plaintiffs. However, in that case, the council had specifically refused to deal with the plaintiffs at all. The O'Neal court stated, as a general test for the application of the exhaustion requirement, that the need to preserve the cultural identity of the tribe by strengthening the tribal courts must be weighed with the need to immediately adjudicate alleged deprivations of individual rights. The Eighth Circuit, in O'Neal, held that the exhaustion requirement was appropriate in the case before them. They stated: "it would not be an undue burden to require the plaintiffs to seek consent from the tribe in the event the plaintiffs are required to maintain a separate action in the Superior Court of the CRST." O'Neal, p. 1146. They also declared, "We do not believe that the judicial system of the CRST has been demonstrated to be lacking in integrity." O'Neal, p. 1147. In closing, on page 1148, the Court held:

"In sum, we can find no persuasive reason

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