Lefthand v. CROW TRIBAL COUN. OF CROW TR. OF IND. OF MONT.

• Decision Date: 29 March 1971
• Docket Number: Civ. No. 927.
• Citation: 329 F. Supp. 728
• Parties: Frederick V. LEFTHAND, an enrolled member of the Crow Tribe of Indians of Montana, Plaintiff, v. The CROW TRIBAL COUNCIL OF the CROW TRIBE OF INDIANS OF MONTANA et al., Defendants.
• Court: U.S. District Court — District of Montana

329 F. Supp. 728

Frederick V. LEFTHAND, an enrolled member of the Crow Tribe of Indians of Montana, Plaintiff, v. The CROW TRIBAL COUNCIL OF the CROW TRIBE OF INDIANS OF MONTANA et al., Defendants.

Civ. No. 927.

United States District Court, D. Montana, Billings Division.

March 29, 1971.

Gerald J. Neely, Towe, Neely & Ball, Billings, Mont., for plaintiff.

Keith L. Burrowes, Asst. U. S. Atty., Billings, Mont., for defendant, United States.

Stanton, Hovland & Torske, Hardin, Mont., for defendant, Crow Tribal Council.

OPINION AND ORDER

BATTIN, District Judge.

This is an action for a preliminary injunction and a declaratory judgment under Title 28 U.S.C., Section 2201. Plaintiff alleges that jurisdiction is conferred upon this court by the Indian Bill of Rights, specifically Title 25 U.S.C., Section 1302(8). Plaintiff's request for a preliminary injunction was denied after hearing testimony and receiving other evidence on February 23, 1971. Defendants have now moved to dismiss the complaint. Briefs in support of and in opposition to the motion have been filed.

In his complaint, plaintiff sets forth facts to show irregularities in the government of the Crow Tribe. The allegations of the complaint may be summarized as follows:

1. That the Executive Committee was illegally constituted and that it had ten members instead of fourteen as required by the Constitution of the Crow Tribe;

2. That a quorum was not present at an Executive Committee meeting where business was conducted;

3. That proper notices were lacking;

4. That copies of proposed resolutions were not furnished to elected representatives in the required time prior to the Tribal Council meeting;

5. That a voucher for the payment of money was certified in violation of a resolution of the Tribe;

6. That certain resolutions were acted upon by the Tribal Council without having been considered by the Executive Committee in violation of the Constitution of the Crow Tribe;

7. That an unauthorized extract of minutes was drawn by the Chairman and Vice-Secretary; and

8. That, with regard to one item, the Chairman arbitrarily denied the right to secret balloting.

The question raised by the motions to dismiss is whether the complaint sufficiently alleges the claim for relief under Title 25 U.S.C., Section 1302(8). It is the opinion of the court that the complaint does not state a claim for which relief can be granted, and that this court is without jurisdiction over the subject matter of the dispute.

Title 25 U.S.C., Section 1302(8), provides:

"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; * * *"

It must be noted at the outset, under Articles I and III of the Constitution of the Crow Tribe, that the Crow Tribal Council consists of the entire membership of the Crow Tribe and that all enrolled adult members are entitled to participate in the deliberations and voting of the Council. Thus, the legislative body of the Tribe is the entire Tribe. Furthermore, individual members of the Crow Tribe do not have a vested right in Tribal property. The use and disposition of Tribal property is within the exclusive power of the Tribe, subject only to the plenary power and management control of Congress.

Section 1302(8) includes equal protection of the law and due process of the law. Plaintiff alleges he has been denied both constitutional rights. Taking equal protection first, this court is unable to find that plaintiff has been subjected to any "invidious discrimination" which amounts to a denial of due process of law. Beck v. Washington, 369 U. S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962). The governmental irregularities of which plaintiff complains affect him in the same way as they affect all other members of the Crow Tribe. The complaint does not allege that plaintiff, as an individual distinct from any other Tribal member, suffered arbitrary and intentional discrimination.

The lack of an individual deprivation of rights also exists with regard to plaintiff's due process argument. Can it be said that the governmental actions complained of deprived plaintiff of liberty or property without due process of law? Plaintiff does not allege a deprivation of liberty. It cannot be said that he was deprived of property by the actions of the Executive Committee of the Tribal Council, because he has no vested right to any property which can be the subject of Tribal action. The basic rule is stated at 16A C.J.S. Constitutional Law § 599, pages 704 to 705, as follows:

"The constitutional guaranty that no person shall be deprived of his property without due process of law does not apply to public rights or public property; nor do the inhabitants of a political division or entity have any vested property interests in the property of the division or entity which are entitled to the protection of the due process clause."

In contrast to the present case, other cases under the Indian Bill of Rights have dealt with deprivations of individual constitutional rights. In Dodge v. Nakai, 298 F.Supp. 26 (D.Ariz.1969), for example, the exclusion of a non-member from the Reservation because of allegedly contemptuous laughter at an Advisory Committee meeting was held to be lacking in due process and an abridgment of freedom of speech. Likewise, this court has held that an action alleging improper apportionment and denial of the right to vote may be maintained in Federal court under Title 28 U.S.C., Section 1343, and Title 25 U.S.C., Section 1302. St. Marks v. Canan, Civil No. 2928, Havre-Glasgow Division, opinion dated October 23, 1970.

The dispute in the present case arises from governmental irregularities which affect plaintiff only because he is, in...