Fletcher v. U.S., 95-5208
| Decision Date | 10 June 1997 |
| Docket Number | No. 95-5208,95-5208 |
| Citation | 116 F.3d 1315 |
| Parties | 97 CJ C.A.R. 923 William S. FLETCHER, Individually; Charles A. Pratt, Jr., Individually; Juanita West, Individually; and Betty Woody, Individually; and on Behalf of Themselves and of All Other Persons Similarly Situated, Plaintiffs-Appellees, v. UNITED STATES of America; Bruce Babbitt, Secretary of Interior; Ada E. Deer, Assistant Secretary of Interior for Indian Affairs; Gordon Jackson, Superintendent of the Osage Indian Agency; Osage Tribal Council and each individual member therof; Charles Tillman, Jr., as Principal Chief of the Osage Tribe and Individually; Edward Red Eagle, Sr., as Assistant Principal Chief of the Osage Tribe and Individually, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Karin Johnson Chatfield, Denver, CO, for Plaintiffs-Appellees.
F. Browning Pipestem, F. Browning Pipestem & Associates, Norman, OK (Dena L. Silliman, F. Browning Pipestem & Associates, Norman, OK, and Robert E. Martin, Tulsa, OK, with him on the brief), for Defendants-Appellants Osage Tribal Council; Charles O. Tillman, Jr., Principal Chief of the Osage Tribe; and Edward Red Eagle, Sr., Assistant Principal Chief of the Osage Tribe.
Lois J. Schiffer, Assistant Attorney General, Washington, DC; Steven C. Lewis, United States Attorney, and Phil Pinnel, Assistant United States Attorney, Tulsa, OK; Albert M. Ferlo, Jr., and David C. Shilton, Department of Justice, Washington, DC, on the brief only, for Defendants-Appellants United States; Bruce Babbitt, Secretary of the Interior; Ada E. Deer, Assistant Secretary of the Interior for Indian Affairs; and Gordon Jackson, Superintendent of the Osage Indian Agency.
Tracy A. Labin and K. Jerome Gottschalk of the Native American Rights Fund, Boulder, CO, filed an amicus curiae brief for the Osage National Council.
Before BALDOCK, BRORBY and MURPHY, Circuit Judges.
Four individuals of Osage ancestry, some of whom were not entitled to vote in tribal elections or hold tribal office because they do not own an interest in the Osage mineral estate or headright, brought this suit to challenge the validity of the franchise restriction and for a declaration on the validity of the Osage Constitution of 1881. Rather than reaching the merits of the complaint, the district court ordered (1) the formation of a constitutional commission to rework the form of the Osage government, (2) an expansion of the franchise to all lineal descendants of the 1908 Osage roll, and (3) a referendum in which the expanded electorate adopted a new Osage constitution. Our jurisdiction arises under 28 U.S.C. § 1291. Because the district court proceeded without subject matter jurisdiction in light of the Osage Tribe's sovereign immunity and because the franchise was improperly extended in this case and a federal statute prescribed the form of tribal government for the Osage Tribe, we reverse. 1
Plaintiffs William S. Fletcher, Charles A. Pratt, Jr., Juanita West, and Betty Woody ("Individual Plaintiffs") brought this action. Defendants include the United States; Bruce Babbitt, Secretary of the Interior; Ada E. Deer, Assistant Secretary of the Interior for Indian Affairs; and Gordon Jackson, Superintendent of the Osage Indian Agency ("Federal Defendants"); and the Osage Tribal Council, along with its individual members; Charles O. Tillman, Jr., Principal Chief of the Osage Tribe; and Edward Red Eagle, Sr., Assistant Principal Chief of the Osage Tribe ("Tribal Defendants").
In 1881, the Osage people adopted a constitution which established a tribal government loosely patterned after the United States government. See H.R.Rep. No. 92-963, at 7 (1972). This government operated until 1900, when the Secretary of the Interior purportedly abolished it. Id. However, one division of the government, consisting of a principal chief, an assistant principal chief, and a 15-member council, refused to dissolve. Id.
Congress subsequently adopted the Act of June 28, 1906, 45 Stat. 539, which accomplished several important things. The 1906 Act called for the creation of a tribal membership roll, 2 allotted Osage lands, set aside a trust fund consisting of proceeds from the sale of Osage lands in Kansas and income from the Osage mineral estate, and prescribed a tribal government. See H.R.Rep. No. 92-963, at 8. Each Osage whose name appeared on the roll received one "headright" in the tribal mineral estate. Id. at 8-9. Osages who own an interest in a headright are known as "allotted" members of the Osage Tribe and have traditionally enjoyed the right to vote in tribal elections, hold tribal office, and receive a share in quarterly distributions of tribal income. Id. Osages born after the closing of the 1908 roll and who have not acquired a headright interest are known as "unallotted" Osages and have not enjoyed the right to vote in tribal elections or hold tribal office. Id. By the 1970's, many persons of Osage ancestry did not own headrights and could not vote in tribal elections. See id. at 9; Felix S. Cohen's Handbook of Federal Indian Law 791 (Rennard Strickland, ed.1982). At various times, persons of Osage descent have sought, to no avail, the assistance of Congress and the federal bureaucracy to extend the franchise to include Osages owning no headright interests.
In the 1970's, seven enrolled members of the Osage Tribe filed suit in federal district court seeking a declaration limiting the powers of the Osage Tribal Council. See Logan v. Andrus, 640 F.2d 269 (10th Cir.1981). The disposition of the case, which was unfavorable to the seven tribal members, left open the issues of the validity of the restriction of the franchise to headright owners and the validity of the 1881 Constitution. Id. at 270-71.
Taking up where Logan left off, Individual Plaintiffs filed this suit in federal district court in March, 1990. They alleged that some of them do not own headrights and do not enjoy the right to vote in tribal elections. According to their second amended complaint, they sought a declaration on the validity of the 1881 Constitution and claimed that the restriction of the right to vote to headright owners who are 18 years of age violated the due process clause of the Fifth Amendment and the equal protection clause of Title II of the Civil Rights Act of 1968, 25 U.S.C. § 1302(8). 3
In August, 1990, Tribal Defendants moved to dismiss the complaint for lack of subject matter jurisdiction, contending that the case was barred by the tribe's sovereign immunity. Federal Defendants joined Tribal Defendants' motion to dismiss.
Ignoring repeated requests for a ruling on the motion to dismiss, the district court set about for over five years to resolve what it perceived to be the voting rights issue. The district court established a commission to propose reforms for the Osage constitution and system of government. The commission proposed a new constitution, which provided for an Osage president, vice president, and a national council. The district court eventually ordered a referendum, and on February 4, 1994, a majority of a greatly expanded Osage electorate voted to adopt the Constitution of the Osage Nation ("1994 Constitution"). Later that year, a president, vice president, and a national council were selected in separate elections. Subsequently, the Bureau of Indian Affairs acknowledged the Osage Nation of Oklahoma by publication in the Federal Register. 4
On September 8, 1995, the district court issued a final order, which among other things, declared moot Tribal Defendants' motion to dismiss on the ground of sovereign immunity. Not only did the district court not reach the merits of the sovereign immunity defense, it also did not reach the merits of the claims of Individual Plaintiffs.
In light of the franchise expansion, the referendum, and the election of new Osage officials under the 1994 Constitution, the district court ruled that the issues raised by the pleadings of Individual Plaintiffs as well as the sovereignty issue raised by Tribal Defendants were moot under both the constitutional and prudential mootness doctrines discussed in Building and Construction Dept. v. Rockwell Int'l Corp., 7 F.3d 1487 (10th Cir.1993). With respect to the sovereign immunity issue, the district court simply stated that Tribal Defendants' continued assertion of the defense was inappropriate "gamesmanship" and that "[T]he jurisdiction of the Court did not interfere with the sovereignty of the Osage Tribe." 5 Individual Plaintiffs and Federal Defendants assert the reasoning of the district court with the additional contention that Tribal Defendants lack standing to take an appeal from the district court proceedings because they were not aggrieved by the district court's final order. 6
The constitutional mootness question is a threshold inquiry because a live case or controversy is a constitutional prerequisite to federal jurisdiction. In re Texas Int'l Corp., 974 F.2d 1246, 1247 (10th Cir.1992). Our review of this question is de novo. Id.
Because the doctrine of prudential mootness is concerned with the court's discretion to exercise its power to provide relief, see Penthouse Int'l Ltd. v. Meese, 939 F.2d 1011, 1019-20 (D.C.Cir.1991), 7 however, we review the district court's determination of prudential mootness for an abuse of discretion.
Under the constitutional mootness doctrine, the suit must present a real and substantial controversy with respect to which specific relief may be fashioned. Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). Also, the controversy must remain alive at the trial and appellate stages of the litigation. Id. at 477-78, 110 S.Ct. at 1253-54.
We agree with Tribal Defendants that this case is not moot under the constitutional mootness doctrine. The district court's reasoning with...
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