Berry v. Arapahoe and Shoshone Tribes

• Decision Date: 08 October 1976
• Docket Number: No. C75-164-B.,C75-164-B.
• Parties: Keith BERRY et al., Plaintiffs, v. ARAPAHOE AND SHOSHONE TRIBES and the Joint Business Council of the Arapahoe and Shoshone Tribes, Defendants.
• Court: U.S. District Court — District of Wyoming

420 F. Supp. 934

Keith BERRY et al., Plaintiffs, v. ARAPAHOE AND SHOSHONE TRIBES and the Joint Business Council of the Arapahoe and Shoshone Tribes, Defendants.

No. C75-164-B.

United States District Court, D. Wyoming.

October 8, 1976.

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John R. Hursh and Christopher A. Crofts, Riverton, Wyo., for plaintiffs.

Marvin J. Sonosky, Washington, D.C., for defendant Shoshone Tribe.

R. Anthony Rogers, Washington, D.C., for defendant Arapahoe Tribe.

George F. Guy, Cheyenne, Wyo., for defendants Shoshone and Arapahoe Tribes.

MEMORANDUM OPINION

BRIMMER, District Judge.

Early in 1974, Keith and Karen Berry, the plaintiffs herein, became interested in a piece of property known as the Bull Lake Lodge. Bull Lake Lodge sits upon approximately twenty-three (23) acres of deeded land along U.S. Highways Nos. 26-287 in Fremont County, Wyoming, within the exterior boundaries of the Wind River Indian Reservation. The complex consists of a lodge, cafe, and a number of cabins designed primarily to provide services for tourists who travel in the area during the summer months. The lodge has been in existence for a number of years but its profitability as a business venture has been marginal.

The Berrys were advised, when they expressed an interest in the place, to investigate the possibilities of obtaining liquor licenses in order to enhance the potential of the business. Thereafter, the Berrys in the summer of 1974 proceeded to obtain the necessary application forms from the county commissioners of Fremont County for a county liquor permit. However, prior to submitting an application to the county commissioners, the Berrys approached the Joint Business Council of the defendant tribes to discuss the possibility of obtaining a tribal liquor license for the lodge. The Berrys were advised by the Joint Business Council of the defendant tribes to wait before filing their application for the county liquor license until matters raised by the dispute in United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), had been finally determined. The plaintiffs also discussed their interest in a tribal liquor license with at least one member of the business council who indicated no impediment to issuance of such license.

In the spring of 1975, the Berrys acquired a county liquor license from the Fremont County commissioners and applied for a tribal liquor license. On May 2, 1975, plaintiffs appeared before the Joint Business Council of the Shoshone and Arapahoe tribes at which time they presented their application for a tribal liquor license. The hearing was conducted in a rather informal manner. Mr. Berry was asked to present his position and to answer questions posed to him by members of the Joint Business Council. At the conclusion of his presentation, the chairman excused Mr. Berry from the meeting. Testimony as to this matter is in conflict, with Mr. Berry contending that he was being excused from the presence of the council and not just from giving further testimony. In any event, Mr. and Mrs. Berry left the chambers while the Joint Business Council heard protests against the granting of their application. Although the Berrys were not present during the time in which protests were heard, the rest of the hearing was recorded and transcribed and subsequently made available to them. The transcript reveals that the protests were not directed against the Berrys personally or against the Bull Lake Lodge location; rather, the basis for the protest was a general concern among members of the tribes and the council with the issuance of any additional licenses because of the alcohol abuse problems present on the reservation.

As a result of the hearing, the Berrys' application for a tribal liquor license was denied, and the Berrys were notified, by letter dated May 5th, 1975, of the Joint Business Council's action. On June 19, 1975, Mr. Berry requested in writing a rehearing before the Joint Business Council. The request was denied on July 11th, 1975, and this lawsuit followed.

The plaintiffs have alleged three causes of action in their Complaint. The First Cause of Action seeks a declaratory judgment as to the rights and status of the parties, the extent of tribal jurisdiction over Bull Lake Lodge and the plaintiffs, and the authority of the defendants to require a tribal liquor license within the context of 18 U.S.C. Section 1161 and 18 U.S.C. Section 1154(c). The plaintiffs contend that their deeded lands and the population patterns within the surrounding area constitute a "non-Indian community" within the Indian country and place them outside the authority of the tribal government as defined in 18 U.S.C. Section 1154(c). The plaintiffs also contend that the extension of tribal governmental police powers to them as non-Indians and to their deeded lands violate the due process and equal protection requirements under 25 U.S.C. Section 1302(8).

The plaintiffs' Second Cause of Action seeks a review of the record and the proceedings of the May 2nd, 1975 hearing and subsequent denial of the plaintiffs' application for a tribal liquor license. Specifically, the plaintiffs contend that the hearing failed to meet the requirements of due process and equal protection required by 25 U.S.C. Section 1302(8).

The plaintiffs' Third Cause of Action is for damages allegedly incurred as a result of the defendants' failure to accord them due process and equal protection. Plaintiffs contend that as a result of the defendant council's action the fair market value of their property has been reduced from approximately $100,000.00 to approximately $30,000.00. In addition, the plaintiffs contend that the actual, present capitalized loss to the property and business because of the denial of a tribal liquor license is $53,496.00. Finally, the plaintiffs also contend that over a five year period, when reduced to present value, the lodge will incur lost profits in the amount of $39,441.00.

The plaintiffs' three causes of action are based primarily upon the provisions of the so-called Indian Civil Rights Act, 25 U.S.C. Section 1302(8), which reads in pertinent part as follows:

"No Indian tribe in exercising powers of self government shall . . .

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law."

The plaintiffs further contend that this Court has original jurisdiction over this suit under the provisions of 28 U.S.C. Section 1343(4) which grants jurisdiction to the District Court over "any civil action authorized by law to be commenced by any person . . . under any Act of Congress providing for the protection of civil rights."

In their answer the defendants first contend that the Court is without jurisdiction, because the Declaratory Judgment Act under which the plaintiffs seek relief confers no jurisdiction upon the District Courts, the Administrative Procedure Act under which the plaintiffs seek judicial review of the hearing on their application confers no jurisdiction upon the Court, Section 1331, Title 28 U.S.C. confers no jurisdiction upon the Court and Section 1302 confers no jurisdiction upon the Court. The defendants also contend that Section 1302(8) does not permit this suit by non-Indians. The defendants also deny the plaintiffs' contention that Bull Lake Lodge is a non-Indian community within Indian country which is not subject to the requirements of first obtaining a tribal liquor license before selling alcoholic beverages within the exterior boundaries of the reservation.

The defendants deny the plaintiffs' allegation that the council's rejection of their application was a denial of due process and equal protection and assert that the plaintiffs are not entitled to due process or equal protection of the law because they had no initial right to an original license and, thus, had no interest subject to the protection of procedural due process. The defendants also contend that whatever the business was before the application for the license was denied is still there and that the denial did not impair that business. They further contend that, since the business had no liquor license when the Berrys purchased it, the denial of the tribal license resulted in no loss of property to the plaintiffs, since they could not be deprived of what they did not have. Finally, the defendants contend that, assuming the plaintiffs had a property interest, they were, nonetheless, not denied equal protection of the law or due process in that notice of a hearing was given, a hearing was had at which the plaintiffs were allowed to appear and to present their case, and the results of that hearing were duly recorded and transcribed. Moreover, the defendants contend there was no denial of equal protection because, in addition to the Berrys' application, all other applications for initial licenses were denied.

The defendants also deny the plaintiffs' cause of action for damages, contending that the tribes are immune from a money judgment on the general principle that political entities, and officials exercising governmental functions are not liable for money damages even if they have acted wrongly, and also contending that even if the plaintiffs were entitled to damages, they have failed to support that claim through the introduction of competent evidence. Defendants further contend that the plaintiffs are not entitled to damages merely because their expectation of receiving a tribal liquor license was not realized.

Jurisdiction

That this Court has jurisdiction both of the subject matter of this suit and of the parties is well-settled in this circuit. Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir. 1975). The Indian Civil Rights Act, 25 U.S.C. Section 1302, upon which plaintiffs rely primarily for their cause of action furnishes a jurisdictional basis which permits this Court to entertain ...