McCurdy v. Steele, C 206-72.

• Decision Date: 02 January 1973
• Docket Number: No. C 206-72.,C 206-72.
• Citation: 353 F. Supp. 629
• Parties: Molley McCURDY et al., Plaintiffs, v. Hubert STEELE et al., Defendants.
• Court: U.S. District Court — District of Utah

353 F. Supp. 629

Molley McCURDY et al., Plaintiffs, v. Hubert STEELE et al., Defendants.

No. C 206-72.

United States District Court, D. Utah, Central Division.

Heard September 19, 1972.

Decided January 2, 1973.

COPYRIGHT MATERIAL OMITTED

Thomas E. Luebben, Jr., Native American Legal Defense and Education Fund, Albuquerque, N. M., for plaintiffs.

H. Ralph Klemm, Asst. U. S. Atty., Salt Lake City, Utah, for defendants Zuni, Garmon, Secakuku and Stevens.

Stephen G. Boyden, Boyden and Kennedy, Salt Lake City, Utah, for defendants Hubert Steele, Jim Steele, Bob Steele, Henry Pete, Leo Pete, Lillie Pete, Cynthia Keoke and Raymond Tom.

OPINION

ALDON J. ANDERSON, District Judge.

Plaintiffs seek official recognition as the governing business council of the Confederated Tribes of the Goshute Reservation. They are confronted by defendants' motions to dismiss.

The complaint alleges that in early April, 1972, defendants Jim Steele, Hubert Steele, Leo Pete and Henry Pete constituted the business council. In the face of a recall petition, submitted pursuant to the Goshute Constitution, this business council declared a new election and appointed an election board, containing Jim Steele, Hubert Steele and Henry Pete, to supervise the election, also pursuant to the Goshute Constitution. Plaintiffs were the only persons to file as candidates in this election under the procedure described in Art. 5, § 5 of the Goshute Constitution. However, after the votes were counted, it appeared that write-in candidates, including the three members of the election board, had outpolled the plaintiffs. Subsequently, the election board refused to certify anyone as having won the election although Art. 5, § 6 of the Goshute Constitution allegedly requires the board to do so and although certification was demanded in an election protest petition submitted by plaintiffs. Ultimately, plaintiffs allege, the defendants who had previously sat on the business council and continued to act as its members determined to schedule another election and appoint a new election board, containing defendants Lillie Pete, Cynthia Keoke and Raymond Tom. Defendants Jose A. Zuni, Alph H. Secakuku, Jim Stevens, Nyal Garmon and Bob Steele are employees of The Bureau of Indian Affairs (hereinafter sometimes the "Bureau"). They have refused to deal with plaintiffs, have continued to recognize the defendants acting as the business council and have conspired to deprive the plaintiffs of their office. Finally, plaintiffs allege that, pursuant to 25 C.F.R. § 2, they appealed to the Area Director the decision of the defendant Bureau employees not to recognize their office but were informed that such an appeal cannot be considered until the election board certifies the winning candidates. No appeal from this decision was taken.

Plaintiffs claim violations of Title II of the Civil Rights Act of 1968, 25 U.S. C.A. §§ 1301-03 (Supp.1972) (hereinafter, the "Indian Civil Rights Act"), the Fifth Amendment and 42 U.S.C.A. § 1985(3). Jurisdiction is invoked pursuant to 5 U.S.C.A. §§ 701-06 and 28 U.S.C.A. §§ 1331, 1343(1), (4) and 1361. Plaintiffs ask the court for mandamus and equitable relief which would install them as the sole members of the business council, require their recognition as such, and void the actions of defendants inconsistent with plaintiffs' office and recognition.

I The Indian Civil Rights Act

The federal courts have traditionally avoided involvement in intratribal controversies. This policy is consistent with the present federal objective of preserving the Indian tribes as self-governing, culturally autonomous units.¹ The Indian Civil Rights Act appears to have been tailored by Congress to the purpose of enhancing the civil liberties of individual Indians without unduly undermining Indian self-government and cultural autonomy.² The law incorporates guarantees found in the Bill of Rights with regard to certain basic liberties including due process, equal protection, free exercise of religion, freedom of speech and safeguards during criminal proceedings.³ But the Senate committee deleted restrictions contained in the proposed statute upon the establishment of religion and the use of racial voting classifications when it appeared that the first restriction would undermine Indian theocracies and the second would undermine tribal cultural autonomy generally.⁴ Furthermore, the record suggests some concern at least that those guarantees incorporated by the Indian Civil Rights Act not be unduly disruptive of tribal culture.⁵ It would thus appear that the Indian Civil Rights Act is properly considered in the context of federal concern for Indian self-government and cultural autonomy:⁶ Its guarantees of individual rights should, where possible, be harmonized with tribal cultural and governmental autonomy.

Plaintiffs claim that the provisions of the Goshute Constitution with respect to the qualification of candidates, certification of election results and the procedures for removal from office have been violated by the defendants acting as business council and election boards. As a result, according to plaintiffs, their rights to equal protection of tribal law and due process under the Indian Civil Rights Act, 25 U.S.C.A. § 1302(8), have been denied.

The present dispute is not controlled by the leading cases in this circuit of Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir. 1971), and Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971). In Slattery, 453 F.2d at 281, it was claimed that "tribal enrollment ordinances had not been applied to others with the same vigor" as they had been applied to plaintiffs. However, the pleadings revealed that plaintiffs had in fact not met the enrollment requirements and further showed no arbitrary application of the requirements in plaintiffs' case. On this record, the court dismissed for lack of jurisdiction noting:

It may well be that tribal enrollment practices are now subject to the statutory requirements of equal protection and due process as provided in 25 U.S.C. § 1302(8). (Citation omitted.) However, the existence of such restraint and the extent thereof need not here be decided. Rather, the instant controversy is resolved by our determination that the amended complaints of Slattery and Pinnow, together with the affidavits filed in support of and in opposition to the complaints, fail to disclose any denial of due process or equal protection. In this regard the trial court specifically held that the pleadings failed to disclose such denial, and we agree.

Slattery v. Arapahoe Tribal Council, supra, 453 F.2d at 281-282.

In Groundhog, the court properly rejected plaintiffs' attack upon certain basic Cherokee election laws involving racial restrictions, noting that the Indian Civil Rights Act was not intended to impose Fifteenth Amendment standards upon Indian tribes.⁷ The court further noted that plaintiffs failed to allege procedural infirmities, such as failure of notice, in the Cherokee elections and concluded that the equal protection clause of Indian Civil Rights Act had not been violated since "the allegations of the complaint do not show a denial to the plaintiffs of the equal protection of any of the Cherokee laws." Groundhog v. Keeler, supra, 442 F.2d at 682-683. The present dispute, in contrast to Slattery and Groundhog, centers on adequately pleaded claims of unequal application of tribal procedural laws.

Under 25 U.S.C.A. § 1302: "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." The alleged conduct complained of here squarely offends the usual meaning of equal protection and due process. See e. g., Hadnott v. Amos, 394 U.S. 358, 361-364, 89 S.Ct. 1101, 22 L.Ed.2d 336 (1969); Briscoe v. Kusper, 435 F.2d 1046, 1054-1056, 1058 (7th Cir. 1970); cf. e. g., Bluth v. Laird, 435 F.2d 1065, 1071 (4th Cir. 1970). The usual meaning of these terms may be modified in the present context in light of the federal concern for tribal cultural and governmental autonomy. Thus, for instance, usual standards of equal protection and due process may be modified where their imposition otherwise would threaten basic tribal interests.⁸ Where, as here, plaintiffs seek compliance with existing tribal procedures, application of flexible equal protection and due process safeguards of the Indian Civil Rights Act appears appropriate. See e. g., Solomon v. La Rose, 335 F.Supp. 715, 722-723 (D.Neb.1971) (due process safeguards of the Indian Civil Rights Act applied to violations of tribal constitution by tribal council which allegedly expelled or excluded certain of its elected members, invalidated an election and scheduled a new election).

However, defendants suggest other, more drastic modifications of traditional due process and equal protection which would remove the impact of these concepts from the present dispute. It is first argued that Congress in the Indian Civil Rights Act limited these concepts to criminal proceedings only. This suggestion may stem from the accurate observation in Slattery that the Indian Civil Rights Act "was concerned primarily with tribal administration of justice and the imposition of tribal penalties . . . and not with the specifics of tribal structure or officeholding." Slattery v. Arapahoe Tribal Council, supra, 453 F.2d at 282, citing Groundhog v. Keeler, supra, 442 F.2d at 682. However, there is no indication that this "primary" emphasis was intended to be exclusive. Indeed, as noted above, the Slattery court, 453 F.2d at 281, suggested that tribal enrollment practices may now be subject to equal protection and due process standards. Certainly the congressional hearings on the statute reveal a concern for matters other than criminal. E. g., Hearings on H.R. 15419, 15122, S. 1843 Before a Subcomm. of Indian Affairs of the...