King v. Norton

• Decision Date: 29 August 2001
• Docket Number: No. 00-CV-10006-BC.,00-CV-10006-BC.
• Citation: 160 F.Supp.2d 755
• Parties: Gloria KING, Plaintiff, v. Gail NORTON, Secretary of the Interior, and United States Department of the Interior, Bureau of Indian Affairs, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Page 755

160 F.Supp.2d 755

Gloria KING, Plaintiff, v. Gail NORTON, Secretary of the Interior, and United States Department of the Interior, Bureau of Indian Affairs, Defendants.

No. 00-CV-10006-BC.

United States District Court, E.D. Michigan, Northern Division.

August 29, 2001.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

LAWSON, District Judge.

This case comes before the Court on the complaint by Gloria King, a spokesperson for a group of petitioners attempting to amend the constitution of the Saginaw Chippewa Indian Tribe of Michigan. The plaintiff seeks review of a ruling by the Secretary of the Interior, Bureau of Indian Affairs disallowing a petition to amend the Tribal Constitution because the requisite number of signatures was not affixed. The Agency initially approved the petition calling for the election, but later, upon reconsideration, reversed its ruling and determined that the petition was insufficient to require the Secretary to call the election. The parties have filed cross motions for summary judgment and the Court heard oral argument from the parties through their respective counsel in open court. Because the Court finds that the manner in which the Bureau of Indian Affairs (BIA) calculated the requisite number of valid signatures was contrary to law and constituted an abuse of discretion, and that the petitioners in fact gathered the required signatures, the Court will grant the plaintiff's motion for summary judgment and order the Agency to call and hold the election.

I.

The Saginaw Chippewa Indian Tribe of Michigan (Tribe) is an Indian entity that is reorganized under the Indian Reorganization Act (IRA), 25 U.S.C. §§ 476-79, and has adopted a constitution pursuant to federal statute. As such, it is considered a "reorganized tribe." See 25 C.F.R. § 82.1(l).

Sometime prior to June 1997, a group of individuals launched an effort to amend Article III of the Saginaw Chippewa Indian Tribe's Constitution in order to substantially broaden the membership of the Tribe. Article VII of the Tribe's Constitution sets forth a process by which the constitution may be amended. It provides, in relevant part, "It shall be the duty of the Secretary of the Interior to call an election on any proposed amendment upon receipt of a petition signed by one-third of the resident qualified voters in each of the three voting districts."

Before initiating the petition process, plaintiff contacted the Bureau of Indian Affairs unit office in Michigan in November 1998 requesting that the BIA inform her of the number of signatures of eligible voters that she would need to gather for a valid petition. Anne Bolton, the superintendent of the agency, first contacted the Tribal Clerk's office for the number of tribal members who would be 18 years old by the cut-off date of December 31, 1998. Thereafter, Ms. Bolton determined that District 1 would have 518 eligible voters, District 2 would have 47 eligible voters, and District 3 would have 1,373 eligible voters. Although Ms. Bolton equivocated as to the accuracy of her count, on November 23, 1998 she sent a letter to the plaintiff stating that 173 signatures were needed from District 1, 16 from District 2, and 458 from District 3.¹ The figures certified by Ms. Bolton were based upon a cut-off date of December 31, 1998.

On July 15, 1999, plaintiff submitted her petition to the BIA, who sent the petition to Area Director, Larry Morrin, on September 2, 1999. In a September 22, 1999 letter, Morrin acknowledged that applicable regulations required that the BIA thereafter forward the petition to him within 30 days (August 14, 1999) and that the Area Director make a decision on the sufficiency of the petition within 45 days (August 29, 1999). Nevertheless, the Assistant Secretary Indian Affairs had granted the BIA an extension for it to forward the petition no later than September 7 and for the Area Director to make a decision by September 22, 1999. The reasons Morrin cited for requesting the extension were as follows:

1. On July 20, the Agency requested an alphabetical list of tribal members, as well as a list of members who were 18 years of age as of December 31, 1998, and sorted by their district of residence, containing a full name, address, date of birth and enrollment number. On August 2, 1999, Robert Lyttle submitted a list of "tribal member voters" with a district number noted in a column by each name, however, no birth dates or addresses were included. The Tribe did not provide the membership information needed to verify the signatures on the petition until August 6, 1999.

2. The Tribal Council passed the Redistricting Act of 1999 [on March 11, 1999] after the first signatures were taken on the petition, changing the boundaries of the Isabella District and therefore changing the number of signatures need [sic] for that District and District 3.

3. We are waiting for an opinion from the Field Solicitor as to which district boundaries we must use for our review.

A.R. at 84-85, Letter from Area Director Morrin to Gloria King, Sept. 22, 1999.

The Field Solicitor issued an opinion on August 11, 1999 that the voting districts in place at the commencement of the petitioning process should be used by the BIA for its evaluation. The Tribe then furnished another list of voters on August 23, 1999 sorted according to the original district boundaries. Based on the August 1999 list, the BIA determined that there were 634 qualified voters in District 1, 42 in District 2, and 1,385 in District 3. This census was different than the one certified by Superintendent Bolton in November 1998. The Area Director thus concluded that the plaintiff needed to collect 211 signatures from District 1, 14 from District 2, and 462 from District 3. After deducting from the petition duplicate signatures, individuals not listed on the August 23 roll, names in which there was no signature accompanying the printed name, names in which the collector could not be identified as an eligible voter, and signatures without corresponding printed names, Area Director Morrin stated in a September 22, 1999 letter that the 211 signatures gathered from District 1, 20 from District 2, and 549 from District 3 were sufficient. A.R. at 85.

Two days later, on September 24, 1999, the Tribal Council requested that Morrin reconsider his decision. The Tribal Council argued that one-third of 634 is 211.33 and that therefore 212 signatures were needed from District 1. A subsequent elaboration of the arguments in favor of reconsideration was sent to Morrin on September 29, 1999. Thereafter, on October 20, 1999, Shirley VanAstine, an Acting Regional Director of the BIA, granted the Tribal Council's request for reconsideration and rescinded the BIA's decision that the petitioners had submitted a sufficient number of signatures. She based her recommendation on the September 30, 1999 decision in Ransom v. Babbitt, 69 F.Supp.2d 141 (D.D.C.1999). In that case, the tribe's constitution required a vote of 51% of the tribe to ratify any constitutional amendments. In the referendum at issue, 50.935093% of the tribe voted to ratify the constitutional amendment. The Court found that the percentage was insufficient and that the BIA had acted unreasonably in finding otherwise. Id. at 151-52.

In her October 20, 1999 letter, Acting Regional Director VanAstine invited interested parties to submit legal arguments and any new materials on the question of whether Ransom should be adopted in this case. After receiving the parties' responses, Morrin issued a December 28, 1999 decision that the petition lacked the number of signatures necessary to call a secretarial election. Although Morrin relied primarily on the Ransom case, he also cited an October 6, 1999 Tribal Council resolution in which it was stated that for the purposes of interpreting Article VII of the Constitution,

[W]hen the number of resident qualified voters in a district is such that exactly one-third is numerically impossible, then the number of voters who must sign shall be that number which equals the next higher number that is at least one-third of the voters in that district.

Morrin stated that there were numerous cases that required the BIA to defer to tribal interpretations of Constitutional language. A.R. at 3.

After the December 28, 1999 final decision, plaintiff filed suit in this Court seeking review of the BIA's decision and requesting a writ of mandamus. On June 14, 2000, this Court's predecessor, the Honorable Victoria A. Roberts, heard oral argument from the parties through their counsel and denied the motion for a writ of mandamus on the record. The Court further directed that the matter proceed to a review of the validity of the BIA's determination in accordance with the Administrative Procedures Act, 5 U.S.C. § 706. The Court entered an order denying the motion for writ of mandamus on June 16, 2000. Thereafter, the parties filed cross-motions for summary judgment on the administrative record in accordance with the schedule established by Judge Roberts, and this Court subsequently entertained oral argument by counsel for the parties in open court.

II.

Review of actions by an administrative agency is generally conducted under the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. According to section 706 of the Act, a federal court must "hold unlawful and set aside agency action, findings and conclusions found to be ... arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A).² See GTE Midwest, Inc. v. Fed. Communications Comm'n, 233 F.3d 341, 344 (6th Cir.2000). "The scope of review under the `arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1...