Oglala Sioux Tribe of Indians v. Andrus
| Decision Date | 27 July 1979 |
| Docket Number | Nos. 79-1029,79-1116,s. 79-1029 |
| Citation | 603 F.2d 707 |
| Parties | CA 79-2797 The OGLALA SIOUX TRIBE OF INDIANS, and Elijah Whirlwind Horse, President of the Oglala Sioux Tribe of Indians Anthony Whirlwind Horse, Appellant, v. Cecil D. ANDRUS, Secretary of the Interior, Forrest Gerard, Assistant Secretary of the Interior, Indian Affairs, George V. Goodwin, Deputy Assistant Secretary of the Interior, Indian Affairs, Appellees. The OGLALA SIOUX TRIBE OF INDIANS, Appellant, and Elijah Whirlwind Horse, President of the Oglala Sioux Tribe of Indians v. Cecil D. ANDRUS, Secretary of the Interior, Forrest Gerard, Assistant Secretary of the Interior, Indian Affairs, George V. Goodwin, Deputy Assistant Secretary of the Interior, Indian Affairs, Appellees. Anthony Whirlwind Horse, Plaintiff-Intervenor. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mario Gonzalez, Martin, S. D., for appellant, A. Whirlwind Horse.
Marvin Amiotte, Oglala Sioux Tribal Legal Services, Pine Ridge Indian Reservation, Pine Ridge, S. D., for appellant, Oglala Sioux Tribe.
Gail Osherenko, Atty., Land & Natural Resources Division, Appellate Section, U. S. Dept. of Justice, Washington, D. C. (argued), for appellees, James W. Moorman, Asst. Atty. Gen., Washington, D. C., Robert D. Hiaring, U. S. Atty., Jeffrey L. Viken and Shelley M. Stump, Asst. U. S. Attys., Sioux Falls, S. D., Steve Herman and Dirk D. Snel, Attys., and Anne Crichton, Atty., Dept. of the Interior, Washington, D. C., on brief.
Joseph Little, Albuquerque, N. M., filed brief of amicus curiae, All Indian Pueblo Council, Inc.
Before LAY, HEANEY and McMILLIAN, Circuit Judges.
The Oglala Sioux Tribe of Indians, Elijah Whirlwind Horse, President of the Tribe, and Anthony Whirlwind Horse, Superintendent of the Pine Ridge Agency of the Bureau of Indian Affairs (BIA), appeal from an order of the District Court which denied their request for permanent injunctive and declaratory relief, preventing the reassignment of Anthony Whirlwind Horse to the BIA's Area Office in Aberdeen, South Dakota. We reverse and remand.
Anthony Whirlwind Horse is an employee of BIA and has served as the Superintendent of the Bureau's Pine Ridge Agency since October 10, 1976. He was appointed to this position after BIA officials consulted with members of the Oglala Sioux Tribe, and after he was recommended for the position by a majority vote of the Oglala Sioux Tribal Council. As Superintendent of the Pine Ridge Agency, Anthony Whirlwind Horse is the highest-ranking official of the BIA located on the Reservation. He is the first full-blooded, Lakota-speaking person to hold this position. The District Court found, and the defendants do not dispute, that he has done an excellent job while serving in this capacity.
In early November, 1977, Elijah Whirlwind Horse, the brother of Anthony Whirlwind Horse, requested permission from the BIA to run for the office of Tribal President. At the time of this request, Elijah was employed by the Bureau as Principal of the Wanblee School which is located on the Reservation. Several days later, Albert Trimble, the then-President of the Tribe, wrote to Forrest Gerard, Assistant Secretary of the Interior, inquiring whether Elijah could maintain his status as a BIA employee and run for tribal office. Trimble was informed by the Bureau that an employee was not prohibited from seeking tribal office. John Combs, Chief of the Employee and Labor Relations Branch of the BIA, testified that after being informed of Elijah's inquiry, Bureau officials discussed whether Elijah's election to the office of Tribal President would create a conflict-of-interest situation as long as his brother held the post of Agency Superintendent. Neither brother was informed of the discussion.
Trimble again wrote to Assistant Secretary Gerard on November 21, 1977, raising the issue as to whether Anthony Whirlwind Horse could remain in his position of Agency Superintendent if his brother were elected. Bureau officials apparently did not answer Trimble's inquiry at that time. However, in late January, 1978, a telegram was sent from the Bureau's Washington, D. C., office to the Aberdeen Area Director, instructing him to begin considering what the Bureau should do in the event that Elijah Whirlwind Horse was elected.
Elijah Whirlwind Horse defeated Trimble in the election for the office of Tribal President in March, 1978. Rumors immediately began to circulate concerning the possible transfer of Anthony Whirlwind Horse to a position off the reservation. In response to these rumors, the Oglala Sioux Tribal Council overwhelmingly adopted a resolution supporting the retention of Anthony Whirlwind Horse on April 25, 1978.
On April 27, 1978, a staff employee of the Senate Select Committee on Indian Affairs sent a letter to the Bureau's Washington, D. C., office, inquiring as to whether an actual or apparent conflict of interest affected the two brothers in their respective posts. This letter was apparently prompted by an approach made by defeated candidate Trimble to members of Congress, and it requested that the BIA make its response directly to ex-President Trimble.
In view of the persistent rumors concerning the removal of Anthony Whirlwind Horse, the Oglala Sioux Tribal Council instructed two of its members, Melvin Cummings and Enos Poorbear, to meet with BIA officials in Washington. This meeting was held on May 10, 1978. At this meeting, the tribal delegates were informed that the Bureau was considering a transfer of Anthony Whirlwind Horse from his position as Superintendent of the Pine Ridge Agency because of a potential conflict of interest created by the election of his brother to the position of Tribal President, in violation of 43 C.F.R. § 20.735-32(d). Assistant Secretary Gerard acknowledged at trial that a decision to remove Anthony from the Superintendent's position had already been made prior to this meeting by Deputy Assistant Secretary of the Interior George Goodwin. On the day of the meeting, the Oglala Sioux Tribal Council unanimously passed a second resolution requesting the retention of Anthony Whirlwind Horse as Agency Superintendent. A third such resolution was passed by the Oglala Sioux Tribal Council on May 23, 1978.
On June 15, 1978, a letter was sent from the BIA's Washington office to Albert Trimble, informing him that the decision to remove Anthony Whirlwind Horse from his position as Agency Superintendent had been made. On the same day, instructions were issued by Deputy Assistant Secretary Goodwin to the area office in Aberdeen to arrange for Anthony's transfer. Anthony also received official notification of his transfer by a letter dated June 15, 1978.
On June 23, 1978, the Tribe appealed the BIA's decision to transfer Anthony Whirlwind Horse to the Secretary of the Interior. When no satisfaction was received, a tribal delegation traveled to Washington on July 7, 1978. After this delegation brought their complaint to White House officials and to the Office of the Secretary of the Interior, they were granted another meeting with Assistant Secretary Gerard. At that meeting, Gerard agreed to reconsider the transfer decision.
On August 24, 1978, Gerard reiterated his decision to remove Anthony Whirlwind Horse from the Superintendent's position. On August 25, 1978, the Area Director issued a memorandum to the Superintendent, confirming his reassignment. The decision of August 25, 1978, was considered to be a final agency action by the District Court. 1
The Oglala Sioux Tribe and Elijah Whirlwind Horse, as President of the Tribe, filed a motion in federal District Court on September 21, 1978, seeking a temporary restraining order and a preliminary injunction against the transfer of Anthony Whirlwind Horse. The Tribe claimed that the pending reassignment violated its right to be consulted prior to the removal of an Agency Superintendent, as guaranteed by the provisions of a consultation policy adopted by the BIA on May 5, 1972, and by the provisions of the Indian Self-Determination Act, 25 U.S.C. § 450 Et seq. The Tribe also claimed that the decision to remove the incumbent Superintendent violated the Tribe's right to freely choose its elected officials, and was arbitrary, capricious and an abuse of the Agency's discretion, as set forth in the Administrative Procedure Act, 5 U.S.C. § 706.
The District Court treated the Tribe's motion as the filing of a formal complaint and, on September 25, 1978, it issued a temporary restraining order, prohibiting the transfer for ten days. The order was later extended by the court.
A motion to intervene was filed by Anthony Whirlwind Horse on October 5, 1978. An amended complaint in intervention was filed eleven days later. The District Court granted the motion to intervene, although it limited its consideration of the claims raised by the intervenor to those which were substantially the same as those previously raised by the Tribe. 2 Those claims alleged that the reassignment decision was not rationally based, and that it violated the spirit of the Indian Reorganization Act, 25 U.S.C. § 461 Et seq., and of the Indian Self-Determination Act, 25 U.S.C. § 450 Et seq.
Trial was held on November 21 and 22, 1978. In an order issued on December 29, 1978, the District Court concluded that the Bureau had not violated its consultation policy since that policy applies only to the initial selection and not to the transfer of an agency superintendent. The court concluded that the BIA has broad discretion under 5 C.F.R. § 335.102 to transfer its employees, and that its decision to transfer Anthony Whirlwind Horse on the basis of an apparent conflict of interest was not arbitrary, capricious or an abuse of discretion. The court found that although there have been no reported conflicts of interest between Anthony and Elijah Whirlwind Horse, the possibility for conflicts exists and the appearance of...
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