Howlett v. Salish and Kootenai Tribes of Flathead Reservation, Montana

• Decision Date: 22 January 1976
• Docket Number: No. 75--1478,75--1478
• Citation: 529 F.2d 233
• Parties: Kevin HOWLETT et al., Plaintiffs-Appellants, v. The SALISH AND KOOTENAL TRIBES OF the FLATHEAD RESERVATION, MONTANA et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 233

529 F.2d 233

Kevin HOWLETT et al., Plaintiffs-Appellants, v. The SALISH AND KOOTENAL TRIBES OF the FLATHEAD RESERVATION MONTANA et al., Defendants-Appellees.

No. 75--1478.

United States Court of Appeals Ninth Circuit.

Jan. 22, 1976.

Paul B. Smith, of Kimble & Smith, Missoula, Mont., for plaintiffs-appellants.

Victor F. Valgenti, Missoula, Mont., Richard A. Baenen, of Wilkinson, Cragun & Barker, Washington, D.C., for defendants-appellees.

OPINION

Before BARNES, SNEED and KENNEDY, Circuit Judges.

BARNES, Senior Circuit Judge:

This appeal involves two plaintiffs, Kevin Howlett and Bernard Clairmont, members of the Salish and Kootenai Tribes of the Flathead Reservation, Montana (herein Tribes) who contend that the refusal of the Tribes to declare them eligible candidates for tribal council membership deprived them of their right to travel and their right to run for office in violation of Section 1302(8) of the Indian Civil Rights Act (25 U.S.C. § 1302(8) (1968)). Plaintiffs' ineligibility was based upon their failure to satisfy the residency requirements for candidates seeking office under the Tribes' Constitution. Howlett and Clairmont ask this Court to grant them the following relief: (1) that the tribal election held December 15, 1973, for council membership be declared invalid, (2) that the Court order and direct the Tribal Council to conduct a special election according to guidelines established by the Court permitting plaintiffs to be candidates in that election, (3) that the Court declare invalid as violative of the Constitutional rights of Indians Article III, Sections 6 and 7 of the Constitution of the Confederated Salish and Kootenai Tribes, and (4) that the plaintiffs be awarded whatever other relief the Court deems just and reasonable.

In an unpublished Opinion and Order of January 7, 1975 (C.T. 202), the district Judge denied plaintiffs all relief on the merits. Defendants, however, urged that the trial judge lacked jurisdiction and thus should not have reached the merits. On appeal, defendants continue to maintain that the district judge lacked jurisdiction due to several reasons, namely that Indian Tribes are quasi-sovereign entities which may not be sued without express Congressional consent, that no Federal Statute exists which grants jurisdiction in this particular area involving tribal elections, and that the plaintiffs did not exhaust their tribal remedies.

I. Jurisdiction

In the district court, jurisdiction was allegedly based on 25 U.S.C. § 1302(8) and 28 U.S.C. § 1343(4). If the district judge properly found jurisdiction, we then consider the issues raised by plaintiffs on this appeal. (28 U.S.C. § 1291). In finding jurisdiction, the district judge concluded:

The court is of the opinion that any action charging a violation of the Indian Civil Rights Act, 25 U.S.C. §§ 1301--03, 1311--12, 1321--26, 1331, 1341, is within the jurisdiction of the court by virtue of the provisions of 28 U.S.C. § 1343(4). That what was done may not violate the Indian Civil Rights Act is not material. The court has jurisdiction to determine whether it did or not. (C.T. 202--03)

25 U.S.C. § 1302(8) states:

No Indian tribe in exercising powers of self-government shall--(8) 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.

28 U.S.C. § 1343(4) provides:

The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (4) To recover damages or to secure equitable or other relief under any Act of Congress for the protection of civil rights, including the right to vote.

In Johnson v. Lower Elwha Tribal Community, Etc., Wash., 484 F.2d 200 (9th Cir. 1973), the defendant-appellee similarly argued that the district judge improperly entertained jurisdiction under 25 U.S.C. § 1302(8) and 28 U.S.C. § 1343(4). In holding that the district judge ruled correctly, Circuit Judge Trask stated:

We are persuaded that the Indian Civil Rights Act provides a jurisdictional basis for the federal district court because the Act evidences a Congressional exception to the general policy of immunity of Indian tribes from suit. . . . The alleged conduct of the tribe . . . falls within § 1302(8). . . . Appellee contends that the Act by itself is not jurisdictional. However, the pre-existing grant of jurisdiction under 28 U.S.C. § 1343(4) serves as a basis upon which to enforce alleged violations of provisions of the Indian Civil Rights Act which would, if appellee's argument were accepted, be unenforceable and thus almost meaningless. (cases cited) The rationale behind these cases, with which we agree, is that the Indian Civil Rights Act creates a substantive body of rights, patterned in part on the Bill of Rights, to 'extricate the individual Indian' from decisions holding that a controversy between an Indian and his trial (sic--'tribal') government was an internal controversy. . . . This legislation at least by implication has waived whatever immunity Indian tribes had in this area prior to its enactment. 484 F.2d at 202--03. Accord, Thompson v. Tonasket, 487 F.2d 316 (9th Cir. 1973); Laramie v. Nicholson, 487 F.2d 315 (9th Cir. 1973); see generally Settler v. Lameer, 419 F.2d 1311 (9th Cir. 1969).

The holdings in the above cases are supported by authority in other circuits. The Fourth Circuit, relying upon our Johnson decision, concluded that 'section 1343(4) provides a logical and specific basis of jurisdiction and to hold otherwise would render the provisions of the Act unenforceable and an exercise in Congressional futility.' Crowe v. Eastern Bank of Cherokee Indians, Inc., 506 F.2d 1231, 1234 (4th Cir. 1974). In Luxon v. Rosebud Sioux Tribe of South, Dakota, 455 F.2d 698 (8th Cir. 1972), the Eighth Circuit held that '28 U.S.C. § 1343(4) gives the district court jurisdiction to determine, in a proper case, whether an Indian tribe has denied to one of its members any of the rights given to the members under the Indian Bill of Rights.' 455 F.2d at 700. Similarly, in Solomon v. LaRose, 335 F.Supp. 715 (D.Neb.1971), the district judge concluded that 'it was the intent of Congress in enacting the Indian Civil Rights Act to create sui generis a body of substantive rights, patterned in part on the federal Bill of Rights, to extricate the individual Indian from the legal no man's land . . ..' 335 F.Supp. at 718. See Loncassion v. Leekity, 334 F.Supp. 370 (D.N.M.1971); Spotted Eagle v. Blackfeet Tribe, 301 F.Supp. 85 (D.Mont.1969); Dodge v. Nakai, 298 F.Supp. 17 (D.Ariz. 1968); Note, The Indian Bill of Rights and the Constitutional Status of Tribal Governments, 82 Harv.L.Rev. 1343 (1969).

Some courts, however, have expressed doubt whether the federal courts may exercise jurisdiction over tribal elections under 25 U.S.C. § 1302(8). See Groundhog v. Keeler, 442 F.2d 674, 682 (10th Cir. 1971). It is indeed true that 25 U.S.C. § 1302(8) 'is not coextensive with the fourteenth amendment . . ..' Wounded Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d 1079, 1082 (8th Cir. 1975). We noted this principle in our decision in Johnson, observing that '(t)here may be some provisions of the Indian Civil Rights Act that under some circumstances may have a modified meaning because of the special historical nature of particular tribal customs or organization.' 484 F.2d at 202 n. 4. At the same time, in that note 4, we referred to the pertinent legislative history regarding 25 U.S.C. § 1302, which was cited as follows: '. . . any Indian tribe in exercising its powers of local self-government shall, with certain exceptions, be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the Constitution.' Id. The Act's sponsor, Senator Ervin, described the purpose of the bill in the following terms:

'The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians constitutional rights which other Americans enjoy.'

114 Cong.Rec. 5836 (1968).

See also Senator Ervin's remarks concerning the Act in 1968 U.S.Code Cong. & Admin.News, pp. 1863--67.

In White Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973), the Eighth Circuit dealt with a similar and almost identical issue presently before us. In that case concerning the reapportionment of elective districts, the appellants contended that the equal protection clause of 25 U.S.C. § 1302(8) should 'not apply to tribal elections because there was no intent to interfere with tribal elections or office holdings . . .' 478 F.2d at 1314. In the case presently before us, plaintiffs contend that the refusal of the Tribes to declare them eligible candidates for counsel membership deprived them of their right to travel and their right to run for office in violation of the equal protection clause of 25 U.S.C. § 1302(8). In One Feather, the Court concluded:

We need not explore upon this record the degree to which federal courts may assert jurisdiction over tribal elections in all circumstances. Our problem has no such complexities as tribal membership or blood lines. The tribe itself, in the case before us, has established voting procedures precisely paralleling those commonly found in our culture, if not taken verbatim therefrom.

Here, then, we have no problem of enforcing an alien culture, with strange procedures, on this tribe. What the plaintiffs seek is merely a fair compliance with the tribe's own voting procedures in accordance with the principles of Baker v. Carr, supra, and subsequent cases. The language of the equal protection clause in the Act is clear, its meaning (in this context) is clear, its employment subsequent to the decisions in Baker v. Carr, supra, has its own significance, and we can find nothing (and have been cited to nothing) in the legislative history of the Act, or, indeed, the tribal customs and culture manifesting...