Boyer v. Shoshone-Bannock Indian Tribes

• Decision Date: 16 May 1968
• Docket Number: SHOSHONE-BANNOCK,No. 9824,9824
• Citation: 92 Idaho 257,441 P.2d 167
• Parties: Edward BOYER, Plaintiff-Appellant, v. TheINDIAN TRIBES, a Federal Corporation, the Fort Hall Indian Reservation, the Shoshone-Bannock Tribal Business Council, Mary Matte, Kelsey M. Edmo, Layton L. Littlejohn, Herbert LeClair and Alan Tindore, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 167

441 P.2d 167

92 Idaho 257

Edward BOYER, Plaintiff-Appellant, v. The SHOSHONE-BANNOCK INDIAN TRIBES, a Federal Corporation, the Fort Hall Indian Reservation, the Shoshone-Bannock Tribal Business Council, Mary Matte, Kelsey M. Edmo, Layton L. Littlejohn, Herbert LeClair and Alan Tindore, Defendants-Respondents.

No. 9824.

Supreme Court of Idaho.

May 16, 1968.

Robert F. McLaughlin, Mountain Home, for appellant.

Reed J. Bowen, Idaho Falls, for respondents.

SMITH, Chief Justice.

Appellant is a resident of the State of Idaho. He is a member of the Shoshone-Bannock Indian Tribe at the Fort Hall Indian Reservation. May 7, 1965, he commenced the proceeding at bar, a mandamus action, in the district court of seventh (formerly sixth) judicial district of the State of Idaho, in Bingham County. By such action he sought to compel restoration of his office as a member of the Shoshone-Bannock Business Council to which office he alleged he was duly elected in June, 1962, for a two year term, and from which he was illegally ousted by respondents, March 10, 1964. He further alleged that he was again elected to such office on June 1, 1964, to serve for the ensuing two years but that on June 3, 1964, respondents refused to seat him to such office. He also sought recovery of the salary of the office at the rate of $2,000.00 a year.

Appellant also sought the issuance of an order directed to respondents requiring them to show cause why a writ of mandamus should not issue requiring them to restore to appellant his seat as a member of respondent Shoshone-Bannock Tribal Business Council, together with the emoluments of the office, including past due salary.

Prior to issuance of a show cause order respondents moved to dismiss the action upon the ground that the district court lacked jurisdiction over the subject matter of the action.

Respondents also filed an answer in which they again alleged that the court was without jurisdiction over the subject matter of the action. They further alleged that appellant was ousted from the Shoshone-Bannock Business Council pursuant to the provisions of the constitution and by-laws of the Shoshone-Bannock Tribes, upon written charges, after full opportunity for a hearing. They also alleged that the Law and Order Code of the Shoshone-Bannock Tribe as regularly adopted by the Tribal Business Council and approved by the Department of the Interior, specifically provides in Chapter 2, section 1 thereof, as follows:

'The Fort Hall Indian Tribal Court shall have jurisdiction of all suits wherein the defendant is a member of a recognized Indian tribe, residing on an Indian reservation * * *.'

and that the tribal court had jurisdiction in the premises inasmuch as the allegations of appellant's petition showed the controversy to be a civil suit and that the defendants are Indians residing within the boundaries of Fort Hall Indian Reservation.

Respondents also raised the defense that appellant's cause of action was moot inasmuch as the term or terms for which he had been elected to office, had expired.

After having heard and considered respondents' motion to dismiss, the district court ruled that it 'is without jurisdiction in said matter, and has no authority to adjudicate the issues involved,' and thereupon dismissed the action.

Appellant has appealed from the judgment of dismissal, asserting that the district court erred in dismissing the action on the ground of lack of jurisdiction, and in failing to hear the evidence bearing on the issues; also in failing to accord appellant equal protection under the law.

The petition of appellant shows that the term of office to which he alleges he had been elected, has now expired. Whether appellant be considered to have been elected in June, 1962, or on June 1, 1964, or both, his two-year term or terms of office have ended, and he cannot now be restored to such office.

Normally, an appeal will be dismissed where it appears that only a moot question is involved. See Bedford v. GemIrr. Dist., 51 Idaho 105, 4 P.2d 366 (1931); Chicago, M. & St. P. Ry. Co. v. Cardwell, 42 Idaho 25, 242 P. 977 (1926); Graves v. Berry, 35 Idaho 498, 207 P. 718 (1922); see also State ex rel. United Bonding Company of Indianapolis v. Kennedy, Mo.App.,364 S.W.2d 642 (1963); 55 C.J.S. Mandamus § 55, p. 96.

Although appellant's term of office has expired, appellant in his petition for writ of mandamus filed May 7, 1965, prayed not only that respondents be required to restore him to his office, but also that they be required 'to return him all the emoluments of his office which were wrongfully denied, together with his salary from the date of his removal from office in the amount of $2,000.00.' Thus, while a portion of appellant's petition now presents a moot question, another portion presents an issue of damages which may constitute a justiciable controversy. The joinder of causes appears to have been properly effectuated, see I.R.C.P. 18(a). If our courts have jurisdiction to rule upon the issues presented in the first instance, then the district court shall entertain jurisdiction to determine such issues as continue to remain justiciable.

We are thus presented directly with the question whether our Idaho courts have jurisdiction to consider the action at bar.

According to his petition, appellant is a resident of the Fort Hall Indian Reservation, a full-blooded member of the Shoshone-Bannock Tribes and a resident of the State of Idaho. By Act of Congress, June 2, 1924, now appearing as 8 U.S.C.A. sec. 1401(a)(2) he is also a citizen of the United States. As such, he is a citizen of the State of Idaho.

Article I, sec. 18 of the Constitution of the State of Idaho provides that 'Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay, or prejudice.' Section 1 of the same Article provides that 'All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.' The 14th Amendment to the Federal Constitution declares that no state shall deny to any person within its jurisdiction the equal protection of the laws.

Notwithstanding the nature of our state and federal constitutions, the rights of Indians have not always been affected by the provisions of our constitutions and our laws. See Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965); Native American Church of North America v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896); Barta v. Oglala Sioux Tribe of Pine Ridge Reservation of S. D., 259 F.2d 553 (8th Cir. 1958); Toledo v. Pueblo De Jemez, 119 F.Supp. 429 (1954-D.C.N.M.); Cohen's Handbook of Federal Indian Law, 1942, p. 124. It has been long and widely held that Congress has exclusive and plenary power to legislate with reference to the various Indian tribes. See Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Winton v. Amos, 255 U.S. 373, 392, 41 S.Ct. 342, 65 L.Ed. 684 (1921); Worcester v. State of Georgia, 6 Pet. 515, 31 U.S. 515, 8 L.Ed. 483 (1832); 18 U.S.C.A. §§ 1152, 1153; In re Colwash, 57 Wash.2d 196, 356 P.2d 994 (1960); State ex rel. Adams v. Superior Court etc., 57 Wash.2d 181, 356 P.2d 985 (1960); Whyte v. District Court of Montezuma County, 140 Colo. 334, 346 P.2d 1012 (1959); cert. den. 363 U.S. 829, 80 S.Ct. 1600, 4 L.Ed.2d 1524 (1960); In re Long's Estate, 207 Okl. 259, 249 P.2d 103 (1952); Martinez v. Martinez, 49 N.M. 83, 157 P.2d 484 (1945). Such exclusive federal jurisdiction is subject to no diminution by the states in the absence of specific congressional grant of authority to the states to act. See United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938); Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691 (1914); Whyte v. District Court of Montezuma County, supra.

As a corollary to federal sovereignty it is clear that state law has no force and effect, except as granted by federal law, within the territory of an Indian tribe in matters affecting Indians. See Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946); Blanset v. Cardin, 256 U.S. 319, 41 S.Ct. 519, 65 L.Ed. 950 (1921); Patterson v. Council of Seneca Nation, 245 N.Y. 433, 157 N.E. 734 (1927); Oklahoma Land Co. v. Thomas, 34 Okl. 681, 127 P. 8 (1912). Indian tribes have the power, absent some treaty provision or act of congress to the contrary, to enact their own laws for the government of their people, and to establish courts to enforce them. Colliflower v. Garland, supra; Iron Crow v. Oglala Sioux Tribe of Pine Ridge Res., 231 F.2d 89 (8th Cir. 1956); Williams v. Lee, supra. Adoption by a tribe of a law and order code constitutes the code as tribal law, not federal law, Oliver v. Udall, 113 U.S.App.D.C. 212, 306 F.2d 819 (1962), and the fact that all Indians are now citizens does not affect the jurisdiction of tribal courts. See Iron Crow v. Oglala Sioux Tribe of Pine Ridge Res., supra; United States v. Nice, 241 U.S. 591, 598, 36 S.Ct. 696, 60 L.Ed. 1192 (1916); Winton v. Amos, supra. See also F. Horne and M. Hurley, Federal Indian Law, 369 (1958); United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196 (1916). Although the states have no inherent jurisdiction over Indian affairs within the territory of the Indian tribes, Congress has authorized such jurisdiction to be exercised within the states when and if the people of the individual states by affirmative legislative action obligate and bind the state to assumption thereof. In 1953, Congress adopted an enabling Act, 67 Stat. 588, which granted to all states the privilege of qualifying for such jurisdiction in Indian affairs. Section 7 of the Act of August 15, 1953, Public Law...