Conroy v. Conroy

• Decision Date: 20 April 1978
• Docket Number: No. 77-1343,77-1343
• Citation: 575 F.2d 175
• Parties: Gerry CONROY, Appellant, v. Evelyn Sybil CONROY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 175

575 F.2d 175

Gerry CONROY, Appellant, v. Evelyn Sybil CONROY, Appellee.

No. 77-1343.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 17, 1977.

Decided April 20, 1978.

Charles H. Whiting, Rapid City, S. D., for appellant.

Mario Gonzalez, Martin, S. D., for appellee.

Maryann Walsh, Atty., Dept. of Justice, Washington, D. C., for amicus curiae, United States; James W. Moorman, Acting Asst. Atty. Gen., Edmund B. Clark, Jacques B. Gelin, Attys., Dept. of Justice, Washington, D. C., on the brief.

Richard Schifter and Jay R. Kraemer of Fried, Frank, Harris, Shriver & Kampelman, Washington, D. C., filed brief of amicus curiae, Oglala Sioux Tribe.

Before WEBSTER ^* and HENLEY, Circuit Judges, and TALBOT SMITH, ^** Senior District Judge.

TALBOT SMITH, Senior District Judge.

The matter before us is an appeal, upon certification, of an interlocutory order granting partial summary judgment in favor of the plaintiff. ¹ Finding no merit in any of the issues raised, we affirm the judgment of the District Court and remand.

This case had its origins in a divorce action filed in the Oglala Sioux Tribal Court of the Pine Ridge Indian Reservation some eight years ago. Both husband and wife are members of the Oglala Sioux Tribe. The Tribal Judge, Special Judge Harold R. Hanley, found

That by the joint toil, work, effort, and forbearance of both Plaintiff and Defendant during 32 years of marriage they accumulated approximately 1,700 acres of land which at the present time is held in trust by the United States of America in the name of Gerry Conroy, Defendant herein.

That by the joint toil, work, effort, and forbearance of both Plaintiff and Defendant during 32 years of marriage they accumulated 92 head of cattle. ²

Upon a finding of abuse by the husband, plaintiff-wife was granted a divorce and was awarded roughly half of the land ³ and cattle accumulated through their joint efforts. Unable to enforce the decree in her favor because, allegedly, of violation of her civil rights, she sought the aid of the District Court. We affirm the ruling ⁴ of the District Court ⁵ in her favor.

First, as to jurisdiction. The District Court found, and we agree, that plaintiff properly alleged a cause of action under 42 U.S.C. § 1985(3), charging a conspiracy directed against her because of her race and sex. The allegations as to conspiracy are both specific and substantial, Hagans v. Lavine, 415 U.S. 528, 534-38, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), and jurisdiction exists under 28 U.S.C. § 1343, with pendent jurisdiction as to the tribal cause of action under the teachings of Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) and related cases. We do not act as an appellate tribunal for a tribal divorce court. The District Court correctly ruled that "(t)his Court lacks any general power to review and oversee the Tribal Courts in their resolution of questions concerning the authority and power of Tribal Courts." Conroy v. Frizzell, 429 F.Supp. 918, 925 (D.S.D.1977). ⁶

It is argued, also, that the District Court lacks jurisdiction because the United States, a necessary party, has not consented to be sued.

Under Rule 19(b), Fed.R.Civ.P., the basic test for indispensability is one of "equity and good conscience," criteria which obviously will vary from case to case, depending upon the circumstances thereof. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968); Fetzer v. Cities Service Oil Co., 572 F.2d 1250 (8th Cir. 1978); Helzberg's Diamond Shops, Inc. v. Valley West Des Moines Shopping Center, Inc., 564 F.2d 816 (8th Cir. 1977). ⁷

Among the factors to be considered by the court, listed in Rule 19(b), ⁸ we find none mandating joinder upon such facts as those before us. Particularly appropriate to this case is the fourth factor of Rule 19(b), namely, "Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder." Here the plaintiff has had a valid decree for many years from a court of competent jurisdiction, yet she has been unable to realize the benefits of her decree and, in fact, is subsisting on public welfare. If there is still another remedy beyond the one she is asserting its adequacy is not made clear to us. ⁹

We find no indispensability of the United States upon these facts, ¹⁰ nor other defect as to jurisdiction.

A resume of the procedural background of the case before us is necessary to an understanding of the issues here presented.

The Tribal divorce proceedings which culminated in the March 14, 1975 Decree of Divorce and Findings of Fact and Conclusions of Law were fraught with confusion and disorder. On May 17, 1971 Judge Hanley (had) entered an Order granting Plaintiff the use and possession of approximately 320 acres of land. In late 1971, Defendant Stanley D. Lyman, who was then the Superintendent of the Pine Ridge Agency of the Bureau of Indian Affairs, wrote a letter to Defendant Theodore Tibbetts, who was then Chief Judge of the Oglala Sioux Tribal Court. The letter asserted that Judge Hanley as Special Tribal Judge lacked authority to make an award of the trust land holdings of Gerry Conroy.

Thereafter, Judge Tibbetts apparently entertained a separate divorce action in Tribal Court between Plaintiff and Gerry Conroy, and entered a decree of divorce. On April 30, 1975 Defendant Dorothy Richards, who was then a Judge of the Oglala Sioux Tribal Court, entered an Order which purported to vacate Judge Hanley's decree of March 14, 1975 and uphold Judge Tibbetts' divorce decree. ¹¹

In an attempt to clarify the confusion created by "conflicting and, inconsistent Tribal Court proceedings and orders" ¹² plaintiff initiated an action in the District Court (CIV 75-5033) against the Oglala Sioux Tribal Court and Tribal Judges Theodore Tibbetts and Dorothy Richards. It concluded when

each of the parties to it stipulated that Judge Hanley's Divorce Decree and Findings of Fact and Conclusions of Law entered March 14, 1975 were final Tribal Court Judgments, and that Judge Tibbetts' Divorce Decree and Judge Richards' Order upholding it were withdrawn and set aside. (The District Court) thereupon permanently enjoined the Oglala Sioux Tribe, the Oglala Sioux Tribal Court, Theodore Tibbetts and Dorothy Richards from conducting any further proceedings or filing any further papers in regard to Plaintiff's divorce action in Tribal Court. ¹³

This effort to clarify was unavailing. Despite the foregoing proceedings, Gerry Conroy and the Bureau of Indian Affairs, through its local officers, failed "to recognize any validity in Judge Hanley's order that Gerry Conroy convey trust lands to Plaintiff," ¹⁴ with the result that the action before us was filed.

In view of the previous history of the case the District Court addressed a letter to the parties which pointed out the delays previously encountered and the complexity of the factual and legal issues presented. The letter observed that "a methodical consideration of important points is most difficult in the midst of this complexity" and suggested that the dispute over the trust land involved be resolved before proceeding to other issues in the case. ¹⁵

At the subsequent hearing, the trial court, cutting through collateral issues, described cogently, if inelegantly, the "guts of whole case" in the following terms:

There are actually five major questions that I have spelled out, but they boil down to two: number 1, whether (Judge) Hanley had any authority to do what he did; number two, assuming for the moment that he did have authority, was the BIA obligated to follow what he said should be done?

This isn't the case on the merits. This only goes to a very narrow question. Mr. Hanley heard, I assume, all of these facts and he made his decision. I would have no authority to rank over what Mr. Hanley did, whether he was justified or not justified in coming to the conclusion to give Mrs. Conroy some land. You see, I am not a divorce court.

My only concern right at this point is either approve or disapprove what Mr. Hanley did based on his legal right to do so or make a decision as to the obligation of the BIA to follow Judge Hanley's order as entered. These are the very narrow issues that I am trying to keep us within today. It is not a case on its merits, that is, going into whether or not there was justification for giving Mrs. Conroy a share of that land. ¹⁶

At the hearing the parties stipulated in open court that the issues set out in the Court's previous letter might be "dealt with on a summary judgment basis."

The Court concluded, subsequent to hearing, that the plaintiff had an enforceable property interest in her former husband's land, ordered that

Defendant Gerry Conroy forthwith make and file an application with the Secretary of the Interior, pursuant to 25 C.F.R. § 121.23, for the transfer of the beneficial title in and to the above-described real property to the name of Evelyn Conroy, Plaintiff herein,

and, further, that

the Secretary of the Interior or his duly authorized representative, give full and fair consideration to the above-ordered application under the provisions of 25 C.F.R. §§ 121.23 and 1.21.25(d), with due regard for the Findings of Fact and Conclusions of Law and the Decree of Divorce entered by Special Judge Harold Hanley of the Oglala Sioux Tribal Court, and the Memorandum Opinion of this Court on file herein. ¹⁷

It is to be noted that the above decree does not purport, in and of itself, to order any conveyance of land, but rather to order an application to the Secretary to be made. ¹⁸ Nor does it by its terms, or reasonable construction thereof, purport to affect the title which the United States, as trustee, holds in the real property.

At this point defendant Gerry Conroy filed an application for leave to appeal the Court's interlocutory orders, alleging errors upon two grounds:

(1) The Oglala Sioux Tribe has adopted a...