Daly v. United States
| Decision Date | 23 August 1973 |
| Docket Number | No. 73-1248.,73-1248. |
| Citation | 483 F.2d 700 |
| Parties | Mary DALY et al., Appellees, v. UNITED STATES of America et al., Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
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Keith A. Tidball, Pierre, S. D., for appellants.
Mark V. Meierhenry, Rosebud, S. D., for appellees.
Before CLARK, Associate Justice, Retired,* and HEANEY and BRIGHT, Circuit Judges.
This class action was brought on February 22, 1972, by three enrolled members of the Crow Creek Sioux Tribe against the Tribe, the incumbent Tribal Council members, the United States of America, the Secretary of the Interior and the Commissioner of the Bureau of Indian Affairs. The plaintiffs complained that the Tribal Council was malapportioned and that they, and those they sought to represent, were underrepresented on the Council. They urged that the alleged malapportionment violated the one-man, one-vote principle and, thus, denied to them equal protection of the laws as guaranteed by the Indian Civil Rights Act, 25 U.S.C. § 1302(8).
The Crow Creek Tribe adopted a Constitution and By-Laws in 1949. The provisions set forth below are those which were in effect at the time this action was initiated. The Constitution provided for a six-member Tribal Council. It was to be the governing body of the Tribe. Two councilmen were to be elected from each of three districts — Crow Creek, Big Bend and Ft. Thompson. The Constitution provided that Council members elected after the first election were to have staggered two-year terms, with one of the two members from each district elected in each annual election. A chairman and other officers were to be elected by the Tribal Council from its own number. Resident members of the Tribe of at least eighteen years of age at the time of election were eligible to vote. Membership in the Tribe1 and eligibility for office2 were restricted by blood quantum requirements. The eligibility requirement was designed to insure that at least one of the two members from each district would be of one-half, or more, Indian blood. No amendments relevant to the issues raised here have been enacted.
The plaintiffs alleged that the number of eligible voters in each district was: Crow Creek, 75; Big Bend, 47; Ft. Thompson, 350. As residents of Ft. Thompson, the plaintiffs maintained that they were under-represented on the Council and that the districts were malapportioned. They brought this action under the Indian Civil Rights Act, 25 U.S.C. § 1302(8), and sought: (1) a temporary injunction restraining the defendants from conducting the annual tribal election for members of the Tribal Council during the pendency of the action; (2) a declaratory judgment that the districts, as then constituted, denied the plaintiffs equal protection of the laws; and (3) a permanent injunction prohibiting any future elections under the then existing procedures, coupled with a mandatory injunction requiring the defendants to submit to the District Court a new apportionment plan for the Reservation which would provide the plaintiffs with fair representation on the Tribal Council.
On April 14, 1972, the District Court ruled that it had jurisdiction over the action. It held that the existing districts were malapportioned and deprived the plaintiffs of equal protection of the laws. It denied the request for a preliminary injunction and ordered that the election, scheduled for April 20, 1972, should be held as scheduled, but that it should be at-large, rather than by districts. The court gave the Tribal Council six months to submit an acceptable and reasonable apportionment plan which would comport with the spirit of the one-man, one-vote doctrine.
The Tribal Council submitted an apportionment plan to the District Court on September 29, 1972. The plan was in the form of proposed amendments to the Constitution, the amendments to be submitted to the people of the Tribe for ratification after approval by the court. The plan provided for an at-large election of the Tribal Council Chairman, with five councilmen being elected from the three existing districts. The Big Bend and Crow Creek districts were to each have one councilman and the Ft. Thompson district was to have three councilmen. The Chairman and at least one councilman from each district were required to be of one-half, or more, Indian blood. The plan also provided for a primary election to be held prior to the general election.
The District Court issued its "Findings of Fact and Conclusions of Law" and "Order" on February 14, 1973. It found that at the time of the April 1972 election, the districts had the following number of eligible voters: Crow Creek, 77; Big Bend, 47; and Ft. Thompson, 355. The court, again, held that the voting districts, as then constituted, were violative of the one-man, one-vote doctrine, and the concept of equal protection of the laws guaranteed by the Indian Civil Rights Act, 25 U.S.C. § 1302(8). The court declared that the plaintiffs did not have an adequate remedy at law and that immediate relief was appropriate. It vacated all six seats on the Tribal Council as of April 19, 1973, and ordered a general election to fill those seats on that date. The court ruled that the districts were to elect the following number of councilmen: Crow Creek, 1; Big Bend, 1; and Ft. Thompson, 4. It further ordered the Superintendent of the Bureau of Indian Affairs to supervise the election, and directed him to apply the Tribal rules regarding qualifications and eligibility of candidates "except that there should be no blood quantum requirement for any enrolled member of the tribe who meets the other qualifications for eligibility as tribal councilman." Finally, the court indicated that its apportionment plan was binding only for the 1973 election, and that the newly-elected Tribal Council could adopt an alternative plan which would comply with one-man, one-vote principles. The court did not discuss the plan submitted by the Tribal Council, but a rejection of the plan is implicit in its order.
On April 5, 1973, the defendant Tribal Council members (those who were in office when the suit was initiated) petitioned the District Court for a rehearing and a stay of execution; both motions were denied by the court in an order of April 12, 1973. On that date, the same defendants filed a Notice of Appeal in the District Court, and also filed a Motion for Stay of Execution with this Court. We denied the latter motion on April 18, 1973, and the election was held on April 19, 1973, as the District Court had ordered.
The only appellants are the defendant Tribal Council members who were in office on the date plaintiffs initiated this action in the District Court. They contend, on this appeal, that the District Court:
(1) was without jurisdiction over the subject matter;
(2) erred by allowing the Tribe and its officials to be sued despite their sovereign immunity;
(3) erred by striking out the blood quantum requirement for membership on the Tribal Council;
(4) erred by extinguishing the terms of the three councilmen who were elected at-large pursuant to its order of April 14, 1972;
(5) ordered implementation of a plan which fails to comply with the one-man, one-vote doctrine; and
(6) erred by summarily denying the appellants' petition for rehearing.
We deal with these contentions in the order raised.
The appellants contend that the District Court was without subject matter jurisdiction for three reasons. First, the equal protection clause in the Indian Civil Rights Act, 25 U.S.C. § 1302(8), does not extend the one-man, one-vote doctrine to tribal council elections. That position was rejected in Melvin White Eagle, etc., et al. v. Philomene One Feather et al., 478 F.2d 1311 (8th Cir. 1973). In One Feather, we held that where a tribe has adopted election procedures analogous to those found in Anglo-American culture, the equal protection clause of the Indian Civil Rights Act required that the election procedures comply with the one-man, one-vote principle established by Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962), and its progeny. We follow One Feather here and hold the District Court was correct in assuming jurisdiction:
"* * * Once the applicability of Section 1302(8) is established as comprehending the one-man, one-vote principle * * * the cause of action * * * is clearly within the jurisdiction of the District Court * * * under 28 U.S.C. § 1343(4) * * *." (Citation omitted.)
Melvin White Eagle, etc., et al. v. Philomene One Feather, et al., supra, 478 F. 2d at 1314.
Second, the District Court lacked jurisdiction because the Tribe did not consent to the Indian Reorganization Act of 1934, 25 U.S.C. § 461, et seq. There is no merit to this argument. This action was brought under the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303, and the provisions of that Act apply to all Indian tribes subject to the jurisdiction of the United States which possess powers of self-government. See, 25 U.S.C. §§ 1301-1302. The Crow Creek Sioux Tribe possesses these powers and its consent to the 1934 Act is unnecessary.
Third, the District Court was without subject matter jurisdiction because the plaintiffs failed to show that they had exhausted their tribal remedies.3 The plaintiffs, in short, reply that there were no tribal remedies available for them to exhaust. We are satisfied that the plaintiffs' position is accurate and, accordingly, the District Court properly assumed jurisdiction. See, e. g., McCurdy v. Steele, 353 F. Supp. 629, 636 (D.Utah 1973).
The appellants contend that the Crow Creek Sioux Tribe and, hence, the Council members, have sovereign immunity and may not be sued absent Congressional authorization. We disagree. While the Indian Civil Rights Act does not abrogate the sovereign immunity of Indian tribes by specific language, we read the Act to...
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