Jacobson v. Forest County Potawatomi Community

• Decision Date: 27 December 1974
• Docket Number: No. 74-C-408.,74-C-408.
• Citation: 389 F. Supp. 994
• Parties: Virginia JACOBSON, Plaintiff, v. FOREST COUNTY POTAWATOMI COMMUNITY et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

389 F. Supp. 994

Virginia JACOBSON, Plaintiff, v. FOREST COUNTY POTAWATOMI COMMUNITY et al., Defendants.

No. 74-C-408.

United States District Court, E. D. Wisconsin.

December 27, 1974.

Charlton, Greco, Welcenbach & Stanich by Earl Charlton, Milwaukee, Wis., for plaintiff.

Edwards, Edwards & Bodin by James F. Bodin, Duluth, Minn., for Forest County.

James W. Clute and Philip S. Fuoco, Dept. of Justice, Washington, D. C., for Indian Rights.

William J. Mulligan, U. S. Atty. by Joseph P. Stadtmueller, Asst. U. S. Atty., Milwaukee, Wis., for Secretary.

DECISION AND ORDER

MYRON L. GORDON, District Judge.

The plaintiff is a member of the Forest County Potowatomi Community. She challenges the constitutionality of those sections of tribal constitution and bylaws which (1) exclude women from holding office in the tribal council; (2) extend the franchise only to those tribe members who are 21 years of age or over; and (3) provide for allegedly inadequate notice of special meetings of the general tribal council. Jurisdiction is purported to exist under the Indian Civil Rights Act, 25 U.S.C. § 1302.

On September 20, 1974, I granted the plaintiff's motion for an order temporarily restraining the defendants Daniels, Shawno and Thunder from being installed as officers of the tribal council. The validity of their elections to such offices is challenged insofar as it was conducted pursuant to the challenged provisions of the tribal constitution.

The plaintiff now seeks a preliminary injunction. Meanwhile, the defendants have filed motions to dismiss. Briefs and affidavits have been submitted and oral arguments were entertained by this court at hearings on November 1, 1974, and December 18, 1974. I conclude that the September 20, 1974, temporary restraining order should be vacated and that the plaintiff's motion for a preliminary injunction should be denied. In addition, I conclude that the defendants' motions to dismiss should be granted. Sovereign immunity, failure to exhaust tribal remedies and the doctrine of internal controversy operate to deprive this court of jurisdiction in this matter.

The United States Constitution does not apply to any Indian tribe. Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896). However, the doctrine of internal controversy has been eroded to the extent that 28 U.S.C. § 1343(4) provides federal courts a jurisdictional basis to protect those itemized, substantive right guaranteed by the Indian Civil Rights Act, 25 U.S.C. § 1302, which was enacted in 1968. By such legislation, Congress imposed upon tribal governments a list of specific restraints consisting almost entirely of language copied verbatim from the United States Constitution, mainly from the Bill of Rights.

However, the Indian Civil Rights Act enumerates only some of the governmental restraints that are included in the United States Constitution. For example, the first proposed draft of this statute would have imposed the substantive requirements of nonestablishment of religion and the fifteenth amendment prohibition on racial classification in voting. When an objection was raised in the Senate hearings on that legislation, charging that the first requirement would threaten the survival of theocratic tribes and that the second requirement would be inconsistent with the cultural autonomy of all the tribes, the committee changed the bill to omit these requirements. See Note, "The Indian Bill of Rights and the Constitutional Status of Tribal Governments," 82 Harv.L.Rev. 1343, 1359 (1969). It is clear, therefore, that the doctrine of internal controversies still operates to deprive federal courts of subject matter jurisdiction, except in those areas specifically provided for in the Indian Civil Rights Act.

Significantly, the Indian Civil Rights Act contains no requirement that tribes have a republican form of government. U.S.Const. art. IV, § 4. Congress realized that the leadership of some tribes rests entirely in the hands of a nonelected group of elders. Meanwhile, first amendment protections were incorporated in the Indian Civil Rights Act in order to make tribal government and culture responsive and open to change from within 82 Harv.L.Rev. at 1363.

While the plaintiff has invoked the Indian Civil Rights Act and, presumably, 28 U.S.C. § 1343(4) as the basis for this court's jurisdiction, no provisions of such act correspond to either her 19th or 26th amendment type claims. Meanwhile, it is noted that no...