O'NEAL v. Cheyenne River Sioux Tribe

• Decision Date: 24 July 1973
• Docket Number: No. 73-1031.,73-1031.
• Citation: 482 F.2d 1140
• Parties: Charles O'NEAL and Leo O'Neal, Appellants, v. CHEYENNE RIVER SIOUX TRIBE et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

482 F.2d 1140 (1973)

Charles O'NEAL and Leo O'Neal, Appellants, v. CHEYENNE RIVER SIOUX TRIBE et al., Appellees.

No. 73-1031.

United States Court of Appeals, Eighth Circuit.

Submitted June 14, 1973.

Decided July 24, 1973.

Rehearing Denied August 20, 1973.

David L. Bergren, Fort Pierre, S. D., for appellants.

William J. Janklow, Pierre, S. D., for appellees.

Before MATTHES, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and ROSS, Circuit Judge.

ROSS, Circuit Judge.

The principal issue on this appeal is whether individual Indian plaintiffs, who fail to exhaust tribal remedies in civil disputes with the tribe, are prohibited from bringing suit in federal court on an action predicated essentially upon the Indian Bill of Rights. 25 U.S.C. § 1302. In this case the trial court held that such Indian plaintiffs must first exhaust their tribal remedies and dismissed the action. We affirm with modifications.

The plaintiffs are enrolled members of the Cheyenne River Sioux Tribe (hereafter CRST). They operate a ranch on the CRST reservation, and graze cattle on a "grazing unit" which is owned by the CRST, but leased to the plaintiffs.

In 1966 the plaintiffs borrowed $28,000.00 from the Farmers Home Administration and also borrowed some $8,221.96 from the CRST to purchase 80 calves. In 1967, the plaintiffs secured a $13,000.00 loan from the bank, which was guaranteed by the CRST. By 1970 the plaintiffs had paid off some $24,000.00 of the FHA loan. The plaintiffs claim they were encouraged to "pay the FHA in advance and let the Tribe go". The encouragement purportedly came from the Tribal Rehabilitation Committee and its manager.

On January 27, 1970, the plaintiffs were notified by letter that the Tribal Rehabilitation Committee had ordered foreclosure of "the loan." The letter indicated that if the plaintiffs requested a hearing, the manager of the Committee was to be notified the next day. It appears that the plaintiffs did so, as there was a meeting between the Committee and the plaintiffs the next day. On January 29, 1970, the plaintiffs were served with a tribal court order, obtained ex parte, signed by a judge of the "Junior Court of the Cheyenne River Sioux Tribe." The order authorized the Committee to take possession of cattle, a gas tank, and a tractor which evidently secured "the loan." The order stated, in part :

"You are further ordered that within three (3) days from the date this order is served on you, unless you have made an appearance in this Court and an extension granted to have gathered all livestock, equipment and other items covered by this order at your ranch headquarters . . . ."

Although the order appeared to give the plaintiffs three days to seek an extension of time in the Junior Court, the next day, January 30, 1970, more than 100 head of cattle were taken from the plaintiffs' land. On February 26, 1970, the plaintiffs "received an accounting which they cannot understand . . . ."

Sometime between January 24 and 30, with knowledge of the foreclosure order, the plaintiffs purchased 250 head of cattle. Sometime between January 24 and March 2 the plaintiffs orally learned that their grazing unit was being offered for lease. Although they made reapplication for the unit, they were told that they did not own 50% of the cattle grazing on the unit and hence were not entitled to lease the grazing unit. A CRST resolution provided that "Indian operators must prove ownership of enough livestock to equal 50% of the carrying capacity of the range unit." On March 2, 1970, the plaintiffs were notified that the grazing unit permit was revoked, and that the plaintiffs had 30 days to move from the grazing unit.

On April 10, 1970, this action was filed. The complaint was based upon 25 U.S.C. § 1302 (Constitutional Rights of Indians), 28 U.S.C. § 1346 (the United States as a defendant), the respective Constitutions of the United States and South Dakota, and the Law and Order Code of the CRST, against the present Indian defendants, together with the United States and some of its officers.

The substance of the complaint was that some of the defendants had wrongfully taken the above-mentioned cattle, and wrongfully threatened eviction from the grazing unit. The plaintiffs prayed for the following relief :

1. For an immediate Temporary Restraining Order restraining the Defendants from taking any further action concerning the attempted foreclosure of Plaintiffs\' loans and attempted revocation of Plaintiffs\' grazing permit and impending eviction from the grazing unit pending a determination of the rights of the parties to this action.

2. That this Court adjudge and declare the rights and other legal relations of the parties herein, and order that such declaration shall have the force and effect of a final judgment.

3. That the Court award to the Plaintiffs $50,000.00 actual and $1,000,000.00 punitive damages, and costs and allowances herein.

4. That the Court declare that the repossession of Plaintiffs\' cattle was illegal, null and void and that all cattle taken and subsequently converted be returned to the Plaintiffs or their equivalent.

5. That the Court grant such additional relief as may appear to the Court to be equitable.

On May 25, 1970, a restraining order was granted prohibiting the cancellation of the grazing permit. Upon stipulation of counsel the non-Indian defendants were dismissed from the suit since none of these government defendants performed a discretionary function with regard to the grazing permit. On October 3, 1972, after plaintiffs had presented their case, the action was dismissed without prejudice, for failure to exhaust tribal remedies. The basis for this action was :

"Obviously, he never went to the Superior Court, where he had a right to go. Under Title 4 of the Law and Order Code, Subchapter 3, and Section 9(a), the Superior Court of the Cheyenne River Sioux Tribe has original jurisdiction over all civil actions in which the defendant is an Indian and is found within the territorial jurisdiction and including civil remedies.

. . . . . .

"Now, it seems to me that there was a clear failure on the part of the plaintiff to exhaust his remedies, the main remedies being application by the plaintiff to seek redress in the Tribal Court, especially the Superior Court."

In order to determine whether the district court properly dismissed the action, this Court is required to answer three questions : (1) What, if any, tribal remedies existed? (2) Should an exhaustion requirement generally be applied in cases such as this? (3) If exhaustion is generally required, is it appropriate to require exhaustion in this case ?

An analysis of the Law and Order Code of the CRST (hereinafter Code) leads us to the conclusion that two distinct tribal remedies existed which the plaintiffs concededly did not exhaust.

First, the repossession order, which supplied the legal authority to repossess the cattle in this case, was issued by a judge of the Junior Court of the CRST. It appears that such an order would have been appealable : The Code, in Title 4, Chap. 1, Subchapter 5, § 49, provides:

"Notice of Appeals: Every person aggrieved by any final judgment or other final order of the Junior or Superior Court of the Cheyenne River Sioux Tribal Court except in those criminal cases where no right to appeal exists, must, either at the time of the rendering of judgment or within 5 days after such judgment or order was rendered give notice of appeal or demand a trial by jury."

The Code, in Title 4, Chap. 1, Subchapter 4, § 13, further provides :

"Jurisdiction—Writs or Orders: The Appellate Court shall have power to issue any writs or orders necessary and proper to the complete exercise of its jurisdiction, or to prevent or remedy any act of the Junior or Superior Court beyond such court\'s jurisdiction, or to cause the Junior or Superior Court to act where they unlawfully fail or refuse to act within their jurisdiction."

This last provision is significant because the plaintiffs contended that the Junior Court of the CRST lacked civil jurisdiction as it was primarily a criminal court. This section clearly indicates that the appellate court had jurisdiction to issue a writ to prohibit the Junior Court from acting outside of its jurisdiction.

Second, the plaintiffs could have instituted a separate suit and the Superior Court would have had jurisdiction over most of the original defendants in this action. The Code, in Title 4, Chap. 1, Subchapter 3, §§ 9(A) and 10, provides :

"Jurisdiction—Generally: The Superior Court of the Cheyenne River Sioux Tribe shall have original jurisdiction over :

"Civil Causes of Action: All civil actions in which the defendant is an Indian and is found within its territorial jurisdiction ; and including civil remedies.

. . . . . .

"Jurisdiction—Territorial: The territorial jurisdiction of the Superior Court of the Cheyenne River Sioux Tribe shall embrace all land within the exterior boundaries of the Cheyenne River Sioux Indian Reservation . . . ."

Furthermore, the Code, in Title 4, Chap. 1, Subchapter 3, § 11, provides that "The Superior Court shall have power to issue any writs or orders necessary and proper to its jurisdiction."

This review of the Code clearly indicates that there were two types of tribal remedies which were open to the plaintiffs. It is, therefore, incumbent on this Court to determine whether, as a general rule, exhaustion should be required.

This action, essentially predicated on allegations of due process violations, was primarily based upon 25 U.S.C. § 1302. 25 U.S.C. § 1302 provides in pertinent part :

"No Indian tribe in exercising powers of self-government shall—

. . . . . .

(5) take any private property for a public use without just compensation ;

. . . . . .

(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 ;"

Enacted in 1968, this...