Luxon v. Rosebud Sioux Tribe of South Dakota

• Decision Date: 09 February 1972
• Docket Number: No. 71-1606.,71-1606.
• Citation: 455 F.2d 698
• Parties: Ann LUXON, Appellant, v. ROSEBUD SIOUX TRIBE OF SOUTH DAKOTA et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

455 F.2d 698 (1972)

Ann LUXON, Appellant, v. ROSEBUD SIOUX TRIBE OF SOUTH DAKOTA et al., Appellees.

No. 71-1606.

United States Court of Appeals, Eighth Circuit.

February 9, 1972.

Stephen L. Pevar, Rosebud, S. D., for appellant.

Peter R. Steenland, Atty., Dept. of Justice, Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Jacques B. Gelin, Attys., Dept. of Justice, Washington, D. C., for appellees.

Before BRIGHT and ROSS, Circuit Judges, and WANGELIN, District Judge.

PER CURIAM.

The sole question before this Court is whether the district court correctly dismissed appellant's prayer for declaratory and injunctive relief for want of jurisdiction. We find that it did not correctly do so and remand for a determination in accordance with this opinion.

The facts, as stipulated, are that appellant, an enrolled member of the Rosebud Sioux Tribe, sought to run for election to the tribal council. She was disqualified as a candidate, however, because of her employment at the Public Health Service Hospital in Rosebud, South Dakota as an X-ray technician.

The Rosebud Sioux Tribe Constitution, Article III, Section 5, as amended, which is incorporated in the tribal ordinances, provides in pertinent part as follows: "Any member of the tribe . . . who . . . is not an employee of either the Department of the Interior or of the Public Health Service shall be qualified to seek and hold membership on the tribal council. . . ." On this basis, and even though she met all other qualifications, appellant was refused qualification as a candidate. Thereupon, after exhausting all administrative remedies, appellant instituted this action.

The district court refused injunctive relief and dismissed the action on the ground that it lacked jurisdiction "to hear intratribal controversies." This certainly was true prior to the passage, in 1968, of the Indian Bill of Rights, 25 U.S.C. §§ 1302-03. See e. g. Prairie Band of Pottawatomie Tribe of Indians v. Puckkee, 321 F.2d 767, 770 (10th Cir. 1963). However, since the enactment of these constitutional safeguards, as part of the Civil Rights Act of 1968, that conclusion does not necessarily follow.

Alleging jurisdiction pursuant to 28 U.S.C. § 1343(4), appellant sought to have the district court declare the applicable provision of the Rosebud Sioux Tribe Constitution unconstitutional as being in conflict with the First and Fifth Amendments of the United States Constitution and the Indian Bill of Rights, which in pertinent part states:

"§ 1302. Constitutional Rights

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; . . ."

Because there is no express provision for federal jurisdiction in the Indian Bill of Rights, except for the right to the writ of habeas corpus, 25 U.S.C. § 1303, the trial court concluded that it must refrain from assuming jurisdiction. It cited as support for this determination the decision of Pinnow v. Shoshone Tribal Council, 314 F.Supp. 1157 (D.Wyo.1970). However, the Tenth Circuit, in affirming Pinnow on appeal (subsequent to the district court's decision in this case) recognized that certain tribal practices may be subject to the statutory requirements of 25 U.S.C. § 1302(8). Slattery v. Arapahoe Tribal Council, 453 F.2d 278, 281 (10th Cir. 1971). The Tenth Circuit based its affirmance upon the trial court's finding that the complaints, themselves, failed to state facts which showed a denial of due process or equal...