McCurdy v. Steele, 73-1794

• Decision Date: 10 January 1975
• Docket Number: No. 73-1794,73-1794
• Citation: 506 F.2d 653
• Parties: MOLLEY MCCURDY et al., Appellees, v. Hubert STEELE et al., Appellants. ,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 653

506 F.2d 653

MOLLEY MCCURDY et al., Appellees, v. Hubert STEELE et al., Appellants.

No. 73-1794,

United States Court of Appeals, Tenth Circuit.

Argued July 9, 1974.

Decided Oct. 18, 1974, Rehearing Denied Jan. 10, 1975.

John Paul Kennedy, Salt Lake City, Utah (John S. Boyden, Stephen G. Boyden, and Scott C. Pugsley, Salt Lake City, Utah, with him on the brief), for appellants.

Thomas E. Luebben, Jr., Native American Legal Defense & Ed. Fund, Inc., Albuquerque, N.M., for appellees.

Before SETH and HOLLOWAY, Circuit Judges, and TALBOT SMITH, Senior District Judge. ¹

SETH, Circuit Judge.

This action was commenced by the appellees who are members of an Indian Tribe and whose names appeared on the ballot at the tribal election of members of the Business Council for the Tribe. The suit challenges the validity of the votes cast for the write-in candidates at the election asserting a violation of their rights under the tribal constitution and under the equal protection and due process clauses of the Indian Civil Rights Act (25 U.S.C. 1302(8)). An earlier reported opinion from the district court, in which appellants' motion to dismiss was denied, appears sub nom. McCurdy v. Steele, 353 F.Supp. 629 (D.Utah). Thereafter the case proceeded to final judgment on the merits, and the appellees were granted injunctive relief in the manner requested, which relief included certification of their election to the Business Council, and an injunction restraining appellants, Hubert Steele, Jim Steele, and Henry Pete (who were the write-in candidates), and Leo Pete, from purporting to act on behalf of the Confederated Tribes as its Business Council. The order of the district court has been stayed pending this appeal.

The Confederated Tribes of the Goshute Reservation organized themselves in 1940 under the provisions of the Indian Reorganization Act (25 U.S.C. 476), and adopted a Constitution and Bylaws. Under its Constitution the principal tribal governing body is the Business Council consisting of five members elected to three-year terms. Article V, Section 5 of the Goshute Constitution provides that any qualified voter may become a candidate for the Business Council, and that 'he shall file notice of his candidacy with the Secretary of the Business Council at least fifteen days prior to the election.' The dispute as to whether write-in candidates are permitted centers upon this provision.

In early 1972 the members of the Business Council then in office were recalled, and an election of a new Council was scheduled for April 29, 1972. Members of the recalled Council included the appellants, Hubert Steele, Jim Steele, Henry Pete, and Leo Pete. A threemember Election Board consisting of Hubert Steele, Jim Steele, and Henry Pete was appointed by the outgoing Council.

The appellees (Molley McCurdy, Buster McCurdy, Earl Baker, Willie Murphy, and Arthur Johnson) were the only Council candidates who filed notice of their candidacies in accordance with Article V of the Goshute Constitution, and were thus the only candidates whose names appeared on the election ballot. In an unusual turn of events, however, the appellees were not victorious in the election. Hubert Steele, Jim Steele, Henry Pete, and two other persons were able to wage a successful write-in campaign among the small number of Goshute voters and received the largest number of the votes at the election.

Since the election, the Election Board has not certified any candidates as being duly elected, and thus officially has taken no position on the write-in issue. The Goshute Constitution requires such a certification within five days after an election. In June 8, 1972, Hubert Steele, Jim Steele, Henry Pete, and Leo Pete held a purported Business Council meeting at which they scheduled a new Council election and appointed a new Election Board. The new Election Board also has not certified any candidates as elected in the April 29th election, nor has the second election ever been held. The four members of the recalled Council have continued to hold over and to function as the Business Council throughout these proceedings.

In addition to petitioning the Election Board for certification as winning candidates, the appellees, prior to bringing this action, attempted to secure recognition from the Bureau of Indian Affairs as the duly elected members of the Business Council. Their attempt ended at the Phoenix Area Office, however, with a ruling from the Area Director that their appeal was premature in view of the fact that no winners had been certified by the Election Board. Although Department of the Interior Regulations provide for additional appeals to the Commissioner of Indian Affairs and the Secretary of the Interior (25 C.F.R. 2.1 et seq.), the appellees chose not to pursue them.

We have noted in earlier cases that the Indian Civil Rights Act was directed primarily to the administration of justice by tribal authority, rather than to tribal governmental structure, officeholding, or elections. Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir.). The rights mentioned in the Act were created between tribal authority and members of the tribe. The Act commences by stating that: 'No Indian tribe in exercising power of self-government shall . . ..' The Act tracks to some extent the language of the United States Constitution, but this does not necessarily mean that the terms 'due process' or 'equal protection' as used in the Act carry their full constitutional impact. As we observed in Groundhog v. Keeler, 442 F.2d 674 (10th Cir.), which was a case in which the manner of selection of the Principal Chief of the Cherokee Nation was challenged, the legislative history of the Act makes it clear that the provisions of the Fifteenth Amendment and certain procedural provisions of the Fifth, Sixth, and Seventh Amendments as well as some aspects of Fourteenth Amendment equal protection were not meant to be included among the enumerated rights. But we do not reach the question of the application of the Indian Civil Rights Act because the availability of any remedy in the federal courts has certain prerequisites which the trial court did not here require the parties to meet. This we must hold to be error.

The plaintiffs have asked the courts in effect to make the initial decision as to a detail, albeit an important one, in the mechanics of a tribal election. Whether or not write-in candidates should be permitted to run at the election of the Business Council would seem to be a question well within internal tribal matters, political matters, and upon which the Goshute Tribe should make a decision before intervention by the federal courts. The resort to the courts under the circumstances before us was premature, especially in view of the presumption against intervention in tribal election matters. It is obvious that individual members of the Tribe have recourse to the courts at the proper time if they can allege a cause of action. The plaintiffs here have not demonstrated that this is the proper time for the reason stated above-- that the Tribe has not yet really decided the question sought to be brought before the court, and this litigation has forestalled further consideration by tribal officials. The matter sought to be brought before the court prior to a final tribal decision does not present a controversy in justiciable form. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. The court cannot or should not make a decision in the absence of a clear case or controversy. See Grand Canyon Dorries, Inc. v. Walker, filed August 20, 1974, 500 F.2d 588 (10th Cir.). See also United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476, and Rescue Army v. Municipal Court, 331 U.S. 549, 67 S.Ct. 1409, 91 L.Ed. 1666....