Oliver v. Rosebud Sioux Tribe
| Decision Date | 17 January 1977 |
| Docket Number | No. CIV76-3049.,CIV76-3049. |
| Citation | 424 F. Supp. 487 |
| Parties | Gerald OLIVER et al., v. ROSEBUD SIOUX TRIBE and Ed Driving Hawk, in his official capacity as president of the Rosebud Sioux Tribal Council. |
| Court | U.S. District Court — District of South Dakota |
Mario Gonzalez, Martin, S. D., for plaintiff.
Dennis H. Hill, Rapid City, S. D., for defendant.
On August 2, 1974, the Rosebud Sioux Tribal Council passed a comprehensive liquor control ordinance regulating the sale and possession of intoxicating beverages on the Rosebud Indian Reservation. Ordinance No. RB74-20. Under this ordinance, an agency of the Rosebud Sioux Tribal government is to be the sole vendor of alcoholic beverages on the Rosebud Reservation. RB74-20, Chapter I, §§ 14, 16. The only exception to this Tribal monopoly is found in Chapter II of RB74-20, which allowed each of the several communities on the Rosebud Indian Reservation to acquire the right to sell low-point beer. In order for any community to acquire that right, that community must have had an election for the purpose of approving the sale of low-point beer before August 2, 1975. RB-74, Chapter II, § 4. In the absence of such a timely election, the ordinance provides that the right to sell beer would reside exclusively in the Tribal government. Id. It may be noted at this point that RB74-20 could be amended or repealed only by a three-fourths vote of the Tribal Council sitting in regular session. RB74-20, Chapter VII, § 4.
On January 29, 1976, the community of Rosebud (one of several communities on the Rosebud Indian Reservation) held an election on the question whether it should be permitted to sell low-point beer as a community. The question was answered by the community electorate in the affirmative, and the Rosebud Community certified the results and passed a resolution urging the Tribal Council to issue it a permanent license for the purpose of selling beer.
On March 10, 1976, the Tribal Council by a vote of thirteen to eight resolved that a beer license should issue to the Rosebud Community. Resolution No. RST76-32. RB74-20 requires, however, that only the Rosebud Sioux Liquor Control Commission may issue liquor licenses. RB74-20, Chapter I, § 12(7). This Commission has yet to be appointed by the Tribal Council.
The Rosebud Community has made several requests of the Tribal Council to appoint a Liquor Control Commission and issue a beer license to the Rosebud Community. The Tribal Council has discussed the matter on at least three occasions, and finally decided to table the request indefinitely. Plaintiffs have sought no relief in Tribal Court, cf. O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1146 (8th Cir. 1973), and have steadfastly urged that full exhaustion of Tribal remedies would be futile in this case. Plaintiffs commenced this action on August 25, 1976 seeking: a declaratory judgment that their civil rights have been violated; and injunctive relief preventing Defendants from allowing liquor to be sold on the Rosebud Reservation in violation of the Tribe's liquor control ordinance and further injunctive relief requiring Defendants to appoint a Rosebud Sioux Liquor Control Commission to enable Plaintiffs to apply for a beer license from that body. An application for a Temporary Restraining Order restraining the temporary sale of beer at a weekend fair and rodeo was denied by this Court August 26, 1976. The matter came on for hearing before this Court on September 28, 1976. That hearing constituted the trial of this matter on the merits, since the hearings on both the preliminary and permanent injunctions were consolidated, together with the hearing on a Motion to Dismiss filed by the Defendants.
Plaintiffs' allegations can be generally summarized as follows: 1) Resolution No. RST76-32 () is in effect a de facto amendment to the comprehensive liquor ordinance RB74-20 which deletes the requirement that community option elections be held by August 2, 1975; 2) Resolution No. RST76-32 constitutes an implied waiver of the community's failure to have a timely election and thus validates the election; and 3) because other communities have received temporary permits to sell beer at fairs and celebrations, the denial of Plaintiffs' request for a permanent beer license constitutes a deprivation of Plaintiffs' right to equal protection of Tribal laws.
Initially, this Court finds that Plaintiffs have effectively exhausted their Tribal administrative remedies.
Plaintiffs contend that exhaustion of Tribal judicial remedies would be futile for five reasons: 1) the present Tribal administration has set up a Criminal Justice Commission which is apparently empowered to hire and fire tribal judges in contravention of the Rosebud Sioux Revised Law and Order Code; 2) the present Tribal Chief Judge allegedly conducted a trial in a manner adverse to the rights of one of the Plaintiffs' relatives; 3) the present Tribal Chief Judge is a member of the Criminal Justice Commission referred to above; 4) the current Tribal executive officer unsuccessfully attempted to influence one judicial decision (although it is unclear to what degree and in what manner this attempt was made); and 5) the Tribal Council is immune from suit.
Since Plaintiffs have not requested a waiver of sovereign immunity, the possible existence of Tribal Council immunity from suit does not...
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