Lohnes v. Cloud

• Decision Date: 23 November 1973
• Docket Number: Civ. No. 4778.
• Citation: 366 F. Supp. 619
• Parties: David LOHNES, Jr., by his Guardian Ad Litem, Ruth Ann Lohnes, Plaintiff, v. Aloysius CLOUD, Defendant.
• Court: U.S. District Court — District of South Dakota

366 F. Supp. 619

David LOHNES, Jr., by his Guardian Ad Litem, Ruth Ann Lohnes, Plaintiff, v. Aloysius CLOUD, Defendant.

Civ. No. 4778.

United States District Court, D. North Dakota, Northeastern Division.

November 23, 1973.

Neil Thompson, Foughty, Christianson & Thompson, Devils Lake, N. D., for plaintiff.

John M. Olson, Sp. Asst. Atty. Gen., Unsatisfied Judgment Fund, Bismarck, N. D., for defendant.

MEMORANDUM OF DECISION

BENSON, Chief Judge.

Plaintiff brought this action for damages resulting from an automobile accident. The Attorney General for the State of North Dakota, representing the North Dakota Unsatisfied Judgment Fund, has moved in behalf of the Defendant, to dismiss the action.¹

The facts relevant to a determination of the issues raised by the Defendant's motion are not in dispute. The Plaintiff and Defendant are Indians, and are both enrolled members of the Devils Lake Sioux Tribe, located on the Fort Totten Indian Reservation in North Dakota. The accident occurred within the boundaries of the Reservation, and at the time of the accident, both were residents of the Reservation. Section 1.2(c) of the Devils Lake Sioux Tribal Code of Justice provides:

"The (Tribal) Court shall have jurisdiction (1) over all civil matters where all parties are Indians within the jurisdiction of the court . . .."

On his motion to dismiss, Defendant asserts in substance:

1. There is no diversity of citizenship and no federal question has been raised.

2. The North Dakota Supreme Court in Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973), has held that the state court has no jurisdiction, and therefore this court would have no jurisdiction.²

3. Jurisdiction remains exclusively with the Devils Lake Sioux Tribe.

Plaintiff's response is "that the Tribal Court, as it is instituted, relative to civil proceedings, is unconstitutional in that it violates the due process provisions of the Indian Bill of Rights, 25 U.S.C. § 1302(8)³, and of the Constitution of the United States under the due process clause as specified in the 5th and 14th Amendment". Plaintiff also calls attention to Section 11.4 of the Devils Lake Sioux Tribe which reads: "All trials shall be before the court without a jury except in criminal cases . . .." Plaintiff presumably relies upon the Seventh Amendment in asserting that Section 11.4 is unconstitutional.

Diversity jurisdiction is obviously not present in this case. Therefore, the issue on the motion to dismiss is whether a federal question has been raised. Prior to the passage of 25 U.S.C. § 1302, the Indian Bill of Rights, the United States Constitution imposed few, if any, limitations upon the scope of action that a tribal government could take with respect to individual Indians. Twin City Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967); Barta v. Oglala Sioux Tribe, 259 F.2d 553 (8th Cir. 1958); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959). The basis for the non-application of United States Constitution to tribal institutions is founded upon the concept of tribal sovereignty. This concept was succinctly defined by the Eighth Circuit in Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956), as follows:

"It would seem clear that the Constitution, as construed by the Supreme Court, acknowledges the paramount authority of the United States with regard to Indian Tribes as quasi sovereign entities possessing all the inherent rights of sovereignty except where restrictions have been placed thereon by the United States itself."

Hearings on the Indian Bill of Rights produced three fundamental principles governing judicial inquiry into tribal government structure:

"The whole course of judicial decision on the nature of the Indian tribal powers is marked by adherence to three fundamental principles:

`(1) The Indian tribe possesses, in the first instance, all the powers of any sovereign state.

`(2) Conquest renders a tribe subject to the legislative power of the United States, and, in substance, terminates the external powers of sovereignty of the tribe, e. g. its power to enter into treaties with foreign nations, but does not, by itself, affect the internal sovereignty of the tribe; that is, its power of local self-government.

`(3) These powers are subject to qualification by treaties and by express legislation by Congress, but, save as as sic thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.'"⁴

It appears that the impetus for the Indian Bill of Rights was founded in Congressional concern for the protection of individual Indians from a denial of Constitutional rights by tribal action⁵ As such, it has been stated, "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 a legal no man's land . . ." Solomon v. LaRose, 335 F. Supp. 715, 718 (D.Neb.1971). (emphasis added). While § 1302 has indeed encroached upon, and redefined, tribal sovereignty, Daly v. United States, 483 F.2d 700 (8th Cir. 1973), it is clear that the act is not meant to substitute a federal forum for tribal court. This is in essence what this court is asked to do, if we are to grant plaintiff the relief sought. This court cannot find a Congressional intent to impose all the procedural and substantive safeguards of a federal forum upon a tribal court. Indeed, such action would be inconsistent with Congressional adoption of a policy of self-determination concerning the Indian Community.⁶ This policy, set forth in Senate Concurrent Resolution 26, as passed on December 11, 1971, and as is relevant to the issues before this court is stated:

"That it is the sense of Congress that —

(1) our national Indian policy shall give full recognition to and be predicated upon the unique relationship that exists between this group of citizens and the Federal Government and that a governmentwide commitment shall derive from this relationship that will be designed to give Indians the freedom and encouragement to develop their individual, family, and community potential and to determine their own future to the maximum extent possible; . . .

(3) improving the quality and quantity of social and economic development efforts for Indian people and maximizing opportunities for Indian control and self-determination shall be a major goal of our National Indian policy;"

The case at bar presents the conflicting concerns for individual rights and for tribal autonomy, but judicial decisions have rejected the concept that as between a person and an Indian Tribe, § 1302 incorporates all individual rights guaranteed by the Constitution of the United States. Daly v. United States, 483 F.2d 700 (8th Cir. 1973); O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140 (8th Cir. 1973); White Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973); Groundhog v. Keller, 442 F.2d 674 (10th Cir. 1971); Seneca Constitutional Rights Organization v. George, 348 F.Supp. 51 (W.D.N.Y.1972); Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Rservation, 301 F.Supp. 85 (D. Mont.1969).

In answering contentions similar to those presented here, the following language from Groundhog is dispositive:

"Plaintiffs also urge that the due process clause of the Fifth Amendment and the equal protection and due process clauses of the Fourteenth Amendment and the provisions of the Fifteenth Amendment, by the passage of 25 U.S.C. § 1302(8) of the Indian Bill of Rights, have been made applicable to the Cherokee Tribe.

"The provisions of the Constitution of the United States have no application to Indian nations or their governments, except as they are expressly made so by the Constitution (the Commerce Clause), or are made applicable by an Act of Congress.

We think the legislative history of the so-called Indian Bill of Rights refutes the contentions of plaintiffs stated above.

The original bill to provide an Indian Bill of Rights, considered by the Senate Subcommittee, was brief and badly worded. It read as follows:

`* * * any Indian tribe, in exercising its powers of local self-government shall be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the United States Constitution.'

There were many objections to the broad language of the bill at the hearing, particularly as to the Fifteenth Amendment restraints embraced in the original bill.

The Department of the Interior submitted a substitute bill, which, with minor revisions, was introduced in the 90th Congress and eventually enacted into law as the present Indian Bill of Rights.

In its endorsement of the substitute bill, the summary of the report of the Senate Subcommittee on the Judiciary stated:

`The Department of Interior's bill would, in effect, impose upon the Indian governments the same restrictions applicable presently to the Federal and State governments with several notable exceptions, viz., the 15th Amendment, certain of the procedural requirements of the 5th, 6th, and 7th amendments, and, in some respects, the equal protection requirement of the 14th amendment.'

The summary of the report of the Subcommittee was endorsed and adopted by the Senate Committee on the Judiciary. Such report makes it clear that Congress intended that the provisions of the Fifteenth Amendment, certain procedural provisions of the Fifth, Sixth, and Seventh Amendments, and in some respects the equal protection requirement of the Fourteenth Amendment should not be embraced in the Indian Bill of Rights." 442 F.2d at 681, 682.

The Eighth Circuit language in O'Neal is instructive as to the restrictive application of § 1302 to tribal courts, as well as the rationale underlying it.

"Congress clearly did not intend to detract from the continued vitality of the tribal courts by passage

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