Boe v. Fort Belknap Indian Community of Fort Belknap Reservation

• Decision Date: 16 March 1981
• Docket Number: No. 78-3367,78-3367
• Citation: 642 F.2d 276
• Parties: Tennyson BOE, William Bradley, Edward Filesteel, Vera Garmann, Warren Matte, Pete Tucker, Plaintiffs-Appellants, v. FORT BELKNAP INDIAN COMMUNITY OF FORT BELKNAP RESERVATION, Charles D. Plumage, John Allen, Donovan Archambault, Frank Cuts the Rope, Randy Perez, in their official capacities as members of the Community Council of the Fort Belknap Indian Community, Michael V. Campbell, Loretta Bell, Delmar J. Bigby, * Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 276

642 F.2d 276

Tennyson BOE, William Bradley, Edward Filesteel, Vera Garmann, Warren Matte, Pete Tucker, Plaintiffs-Appellants, v. FORT BELKNAP INDIAN COMMUNITY OF FORT BELKNAP RESERVATION Charles D. Plumage, John Allen, Donovan Archambault, Frank Cuts the Rope, Randy Perez, in their official capacities as members of the Community Council of the Fort Belknap Indian Community, Michael V. Campbell, Loretta Bell, Delmar J Bigby, ^* Defendants-Appellees.

No. 78-3367.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 14, 1980.

Decided March 16, 1981.

James W. Zion, Helena, Mont., on brief; James W. Spangelo, Havre, Mont., argued, for plaintiffs-appellants.

Francis X. Lamebull, Harlem, Mont., for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before WRIGHT and ANDERSON, Circuit Judges, and PECKHAM, ^** District Judge.

J. BLAINE ANDERSON, Circuit Judge:

In this case, we must decide whether federal courts are empowered to grant relief in civil cases for the alleged violation of various tribal laws. The district court below answered this question in the negative. Boe v. Fort Belknap Indian Community, 455 F.Supp. 462 (D.Mont.1978). We affirm.

I. BACKGROUND

In 1935, the Gros Ventre and Assiniboine Indians residing on the Fort Belknap Indian Reservation in Montana organized as Indian tribes under the name "Fort Belknap Indian Community," and adopted a constitution and bylaws pursuant to the provisions of section 16 of the Indian Reorganization Act of June 18, 1934, 25 U.S.C. § 476. In 1937, the Fort Belknap Indian Community organized as a corporation under the same name and was issued a charter of incorporation by the Secretary of the Interior pursuant to the provisions of section 17 of the same Act, 25 U.S.C. § 477. ¹

The Fort Belknap Community Council (council) functions both as the governing body of the tribal organization, and as the managing body of the corporate organization. Of particular significance to this case is the council's responsibility for conducting elections to determine the membership of that council. Under the constitution, bylaws, and ordinances of the tribal organization, the council acts as an election board. In that capacity it exercises executive powers over the electoral process, including the certification of candidates, certification of election results, and settlement of election disputes.

On September 27, 1977, the council, in its capacity as the election board, certified the eligibility of the candidates for the upcoming November election. On November 1, 1977, the election was held and five of the plaintiffs and defendant Plumage were elected. On the following day, the election board certified the election. No protest was ever filed with the election board. Instead, an action was filed in the tribal court on November 8, 1977, seeking to void the election on the ground that an ineligible person had run. That action aborted. On November 25, 1977, the council adopted a resolution sustaining the validity of the election. After the plaintiffs had assumed office on January 1, 1978, a second action was filed in the tribal court. The tribal court declared the election of all six members void, declared six vacancies on the council, and ordered a new election. The basis for the decision was that an ineligible person had run, and although he was not elected, he had received some votes.

The plaintiffs then initiated this action in the federal district court, naming as defendants the tribe, the tribal court, and five members of the council in their official capacities. They sought injunctive and declaratory relief, and damages for the alleged violation of various tribal laws. Specifically, their complaint alleges that the tribal court's decision, and the actions taken pursuant thereto, are in violation of the following:

(1) Tribal Ordinance No. 5-67 § 4(b)(2) which provides in pertinent part:

"Upon receipt of a certificate of intent of the candidate for office, the Secretary shall refer it to the Election Board which shall determine the qualification of candidates as required by Article 2 of the By-Laws. ²

"The decision of the Election Board on the eligibility of a candidate shall be final."

(2) Tribal Ordinance No. 5-67 § 6(b) which provides that:

"The Election Board shall also receive any and all protests to the conduct of the election and shall render that final decision on all such protests. All protests to the election shall be filed with the Election Board within 5 days following the election date. All decisions of the Election Board on such protests shall be final."

(3) The Fort Belknap Law and Order Code § 14.6 which provides that:

"The Court shall have no jurisdiction over any suit brought against the Community without the consent of the Community. Nothing in this Code shall be construed as consent by the Community to be sued."

(4) Article VIII, Section 2 of the Constitution of the Fort Belknap Indian Community, which provides that:

"The council may expel a member for cause by a two-thirds vote, after due notice of charges and allowing an opportunity to be heard."

It is these alleged violations of tribal law that form the basis of the plaintiffs' two alternative theories of federal jurisdiction. First, they contend that the alleged violations of tribal law constitute an infringement upon the rights secured by Title II of the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-1303, which provides in relevant part that "(no) Indian tribe in exercising powers of self-government shall ... 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." § 1302(8). They argue, therefore, that federal jurisdiction is conferred under either 28 U.S.C. § 1343(4), ³ or 28 U.S.C. § 1331(a). ⁴

In like fashion, they assert that the violations of tribal law constitute a deprivation of the benefits conferred by sections 16 and 17 of the Indian Reorganization Act of 1934 (IRA), 25 U.S.C. §§ 476, 477. It is contended that these allegations suffice to state a cause of action which arises under the laws of the United States and, therefore, federal jurisdiction exists under 28 U.S.C. § 1331.

The essence of plaintiffs' argument, as we view it, is that the above- mentioned provisions of the ICRA and the IRA are vehicles through which the federal courts are empowered to grant relief in civil cases arising out of tribal actions taken in connection with the process of tribal self-government. We think the argument must be rejected.

II. DISCUSSION

The only express remedial provision in Title II of the ICRA authorizes federal courts to review tribal action by way of application for habeas corpus relief under 25 U.S.C. § 1303. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the Supreme Court decided whether the Act could be interpreted to authorize the bringing of civil actions in federal courts for other forms of relief. In holding that the Act could not be so read, the Court concluded that:

"Congress retains authority expressly to authorize civil actions for injunctive or other relief to redress violations of § 1302, in the event that the tribes themselves prove deficient in applying and enforcing its substantive provisions. But unless and until Congress makes clear its intention to permit the additional intrusion on tribal sovereignty that adjudication of such actions in a federal forum would represent, we are constrained to find that § 1302 does not impliedly authorize actions for declaratory or injunctive relief against either the tribe or its officers."

Id. at 72, 98 S.Ct. at 1684.

The only avenue available to a party who seeks relief in the federal courts for an alleged violation of the ICRA is through an application for habeas corpus relief under 25 U.S.C. § 1303. Id. at 70, 98 S.Ct. at 1683; Trans-Canada Enterprises, Inc. v. Muckleshoot Indian Tribe, etc., 634 F.2d 474, 476 (9th Cir. 1980). No other private cause of action may be implied from the ICRA. Plaintiffs' claims under the ICRA simply are not cognizable in the federal courts and, therefore, dismissal of them was proper. ⁵

The plaintiffs' claims under the Indian Reorganization Act, 25 U.S.C. §§ 476, 477, ⁶ must also fail. The district court concluded that the plaintiffs did not state a claim for relief which would provide federal question jurisdiction under 28 U.S.C. § 1331(a). We agree.

Plaintiffs argue that the allegations in their complaint of violations of tribal law are sufficient to state a cause of action which "arises under" the laws of the United States since those tribal laws were adopted and promulgated pursuant to and under the authority of the IRA. It is true that 25 U.S.C. §§ 476, 477 provide the authority and procedures whereby Indian tribes may adopt constitutions and bylaws and ratify corporate charters, but that fact alone is insufficient to confer federal question jurisdiction.

"A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law upon the determination of which the result depends."

Littell v. Nakai, 344 F.2d 486, 488 (9th Cir. 1965), cert. denied, 382 U.S. 986, 86 S.Ct. 531, 15 L.Ed.2d 474 (1966), quoting Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205 (1912); see also, Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 532 (8th Cir. 1967). Since plaintiffs' claims do not involve a dispute or controversy respecting the validity, construction,...