Means v. Wilson

• Decision Date: 05 August 1975
• Docket Number: No. 74-1841,74-1841
• Citation: 522 F.2d 833
• Parties: Russell MEANS et al., Appellants, v. Dick WILSON et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 833

522 F.2d 833

Russell MEANS et al., Appellants, v. Dick WILSON et al., Appellees.

No. 74-1841.

United States Court of Appeals Eighth Circuit.

Submitted May 12, 1975.

Decided Aug. 5, 1975.

Steven J. Trecker, Sausalito, Cal., for appellants.

Dennis H. Hill, Rapid City, for appellee.

Before LAY, ROSS and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from the dismissal of a complaint which grew out of an Indian election dispute in the District of South Dakota. The facts are set out fully in the district court opinion. Means v. Wilson, 383 F.Supp. 378 (D.S.D.1974). Appellants, who were plaintiffs below, are Russell Means, an unsuccessful candidate for president of the Oglala Sioux Tribal Council in the February, 1974 election, and a group of his political supporters. They are all enrolled members of the Oglala Sioux Tribe residing on the Pine Ridge Indian Reservation in South Dakota. The appellees are Richard "Dick" Wilson, who was elected president of the Council in the aforementioned election, a number of tribe members who supported him, the Tribal Council and certain members thereof and the Tribal Election Board. Some of the appellants are sued individually and in their capacities as officials of the Tribe. They are also enrolled Oglala Sioux, residents of Pine Ridge Reservation. ¹

The action was brought under 28 U.S.C. § 1343, ² the Indian Civil Rights Act (25 U.S.C. §§ 1301-1303) and 42 U.S.C. §§ 1985(3), 1986 and 1988. The district court found that there was no jurisdiction given by either 42 U.S.C. § 1985 or 25 U.S.C. § 1302, but rested its decision on the section 1302 claim on the determination that no claim was alleged under that section. We agree with the court below except in certain respects mentioned herein, and affirm in part and reverse in part.

I. Exhaustion of Tribal Remedies.

Although the trial court did not rely on its conclusion that the Means supporters failed to exhaust tribal remedies in dismissing their complaint, it found that there was such a failure and that this also would have barred plaintiffs from maintaining an action under 25 U.S.C. § 1302 for lack of jurisdiction. We express no view of whether exhaustion of tribal remedies is a prerequisite to federal relief under the Indian Civil Rights Act or 42 U.S.C. § 1985(3) in this particular case, because we find that the plaintiffs made every reasonable attempt to exhaust their tribal remedies.

Plaintiffs originally filed suit on February 11, 1974. On February 19, 1974, plaintiffs moved for a continuance in order to allow them to pursue a formal election contest filed on February 15 in accordance with Tribal Ordinance 85G. Section 12 of the ordinance provides that election contests shall be filed with the election board within three days of certification of the election. The election was certified on February 13, 1974, and one of the plaintiffs, on behalf of Means and all other tribe members, filed a formal contest with a member of the election board at 8:00 p. m. on February 15. The election board is required to act on the contest and make recommendations thereon to the Tribal Council within five days after the contest is filed. Apparently the board denied relief on February 20, 1974. Within five days after the election board has made its determination, Ordinance 85G requires the Tribal Council to render a decision on the contest. The ordinance provides that: "The decision of the Council on a contest shall be final." However, the Council did not issue a decision on the plaintiffs' election contest within five days and has still not ruled on the contest. Plaintiffs waited for a final decision on the contest until March 29, 1974, before filing their amended complaint, over a month after the Tribal Council, headed by defendant Wilson, had failed to meet the five day deadline imposed by Tribal Ordinance 85G. We find that plaintiffs have done all they could to exhaust tribal remedies in this case, but their tribal right to appeal the election has been frustrated by inaction of the Tribal Council. "The plaintiffs sought relief (through tribal channels) and were denied an effective timely remedy." Brown v. United States, 486 F.2d 658, 661 (8th Cir. 1973).

II. 42 U.S.C. § 1985(3). ³

In considering the Means faction's section 1985(3) claim, the district court first held that that section did not affect the Oglala Sioux Tribe's historic immunity from suit. With this we agree. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 531-532 (8th Cir. 1967); Native American Church v. Navajo Tribal Council,272 F.2d 131, 134-135 (10th Cir. 1959). But the district court erred in concluding that this same reasoning applied to suits against individual Indians. Tribal immunity is based on the sovereignty of the tribe, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832), and does not protect a tribal subject from suit. Seneca Constitutional Rights Organization v. George, 348 F.Supp. 48, 49 (W.D.N.Y.1972). Therefore we must look further than the tribal immunity doctrine to determine whether there is jurisdiction over individual defendants under 42 U.S.C. § 1985(3) and 28 U.S.C. § 1343(4).

In Griffin v. Breckenridge, 403 U.S. 88, 101-102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Court held that 42 U.S.C. § 1985(3) provided a cause of action against private conspiracies, i. e. those not involving state action, to deprive citizens of equal protection of the law or of equal privileges and immunities. In each section 1985 case it must be determined whether there is a constitutional source of congressional power to reach the private conspiracy alleged in the complaint. Griffin v. Breckenridge, supra, 403 U.S. at 104, 91 S.Ct. 1790; Action v. Gannon,450 F.2d 1227, 1233 (8th Cir. 1971). In Griffin the Supreme Court identified two such sources of congressional power; the thirteenth amendment and the right of interstate travel. Supra, 403 U.S. at 105-106, 91 S.Ct. 1790. This latter right was characterized as one of the rights of national citizenship which Congress has the power to protect by appropriate legislation. Supra,403 U.S. at 106, 91 S.Ct. 1790. In this context several cases were cited as exemplary of other "rights of national citizenship;" among them were United States v. Classic, 313 U.S. 299, 314-315, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) and Ex Parte Yarbrough, 110 U.S. 651, 658-662, 4 S.Ct. 152, 28 L.Ed. 274 (1884). Classic and Yarbrough were both prosecutions under criminal statutes analogous to 42 U.S.C. § 1985(3), based on alleged interference with voting rights in National elections. It is thus apparent that the right to vote in federal elections is a right of national citizenship protected from conspiratorial interference by 42 U.S.C. § 1985(3). Griffin v. Breckenridge, supra, 403 U.S. at 106, 91 S.Ct. 1790. The Sixth Circuit has held, and we agree, that the right to cast a ballot in a state election is also protected from interference from private conspiracies by the federal Constitution. Cameron v. Brock, 473 F.2d 608, 610 (6th Cir. 1973); See also Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Smith v. Cherry, 489 F.2d 1098, 1100-1101 (7th Cir. 1973).

The right to vote is fundamental to representative government. As a right of national citizenship, it is a source of constitutional power, and Congress has the power to guarantee that right by statute. Griffin v. Breckenridge, supra, 403 U.S. at 106, 91 S.Ct. 1790. We have previously held that Congress has guaranteed the right to vote in tribal elections against interference from Indian tribes by enactment of the Indian Civil Rights Act, 25 U.S.C. § 1301 Et seq. Brown v. United States, 486 F.2d 658, 661 (8th Cir. 1973); Daly v. United States, 483 F.2d 700, 704-705 (8th Cir. 1973); White Eagle v. One Feather,478 F.2d 1311, 1314 (8th Cir. 1973). These cases established that where Indian tribes have adopted Anglo-Saxon democratic processes for selection of tribal representatives, equal protection concepts applicable to the tribes by virtue of the Indian Civil Rights Act required adherence to the one man one vote principle as a necessary concomitant of the election process. White Eagle v. One Feather, supra, 478 F.2d at 1314. Today we hold that 42 U.S.C. § 1985(3) protects the right to vote in tribal elections against interference from private conspiracies as well.

Under the Indian Commerce Clause ⁴ Congress has plenary authority over Indians. Worcester v. Georgia, supra, 31 U.S. (6 Pet.) at 559. Although the clause speaks of "Indian Tribes" the authority to legislate concerning individual Indians is necessarily included within the sweeping grant of congressional power. United States Department of the Interior, Federal Indian Law 22, n. 6 (1958) (hereinafter, Federal Indian Law). In 1924, Congress granted citizenship to all American Indians who had not previously enjoyed that status, including many Oglala Sioux. Act of June 2, 1924, ch. 233, 43 Stat. 253; Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89, 97 (8th Cir. 1956). At that time certainly, if not before, Indians became endowed with the fundamental rights of national citizenship, including the right to vote. Federal Indian Law, 530.

The Pine Ridge Reservation, the tribal constitution which sets forth election procedures and the organization of the Oglala Sioux Tribe all exist pursuant to federal law, Act of Mar. 2, 1889, ch. 405, § 1, 25 Stat. 888; 25 U.S.C. §§ 476, 477; See Iron Crow v. Oglala Sioux Tribe, 129 F.Supp. 15, 18-20 (D.S.D.1955), Aff'd, 231 F.2d 89 (8th Cir. 1956). The Oglala Sioux have established their system of representative government under the authority of these statutes, which in turn were enacted by Congress under the authority contained in the Indian Commerce Clause. In this way Congress has encouraged the development of democratic processes for the self-government of the Oglala Sioux, and extended to them the...