Ordinance 59 Ass'n v. Babbitt, 96-CV-0327-J.

• Decision Date: 11 July 1997
• Docket Number: No. 96-CV-0327-J.,96-CV-0327-J.
• Citation: 970 F.Supp. 914
• Parties: ORDINANCE 59 ASSOCIATION, Plaintiff, v. Bruce BABBITT, Secretary of United States Department of Interior; The Bureau of Indian Affairs; Eastern Shoshone Tribe Business Council, and its members in their individual and official capacities, John Washakie, Vernon Hill, Bud McAdams, Mike LaJeunesse, Ivan Posey, and John Wadda, Defendants.
• Court: U.S. District Court — District of Wyoming

Page 914

970 F.Supp. 914

ORDINANCE 59 ASSOCIATION, Plaintiff, v. Bruce BABBITT, Secretary of United States Department of Interior; The Bureau of Indian Affairs; Eastern Shoshone Tribe Business Council, and its members in their individual and official capacities, John Washakie, Vernon Hill, Bud McAdams, Mike LaJeunesse, Ivan Posey, and John Wadda, Defendants.

No. 96-CV-0327-J.

United States District Court, D. Wyoming.

July 11, 1997.

COPYRIGHT MATERIAL OMITTED

Charles E. Graves, Timothy C. Kingston, Charles E. Graves & Associates, Cheyenne, WY, for plaintiff.

Nicholas Vassallo, U.S. Attorney's Office, Cheyenne, WY, John C. Schumacher, David R. Martin, Law Office of John Schumacher, Fort Washakie, WY, for defendants.

ORDER GRANTING FEDERAL DEFENDANTS' MOTIONS TO DISMISS, GRANTING TRIBAL DEFENDANTS' MOTION TO DISMISS, AND DISMISSING AMENDED COMPLAINT

ALAN B. JOHNSON, Chief Judge.

This matter came before the Court on June 27, 1997, for hearing on the Motions to Dismiss filed by defendants Babbitt and the Bureau of Indian Affairs ("Federal Defendants") and by the Eastern Shoshone Tribal Business Council, its members in their individual and official capacities, John Washakie, Vernon Hill, Bud McAdams, Mike LaJeunesse, Ivan Posey and John Wadda ("Tribal Defendants").

I. INTRODUCTION

Plaintiff, Ordinance 59 Association, is an organization composed of 43 individuals who applied for membership in the Eastern Shoshone Tribe under Enrollment Ordinance No. 59, enacted in 1988 and repealed in 1989. In its Amended Complaint, plaintiff organization contends that defendant Eastern Shoshone Tribal Business Council, the individual council members and the Bureau of Indian Affairs ("BIA") have all improperly failed to enroll its members as members of the Eastern Shoshone Tribe pursuant to the Tribe's now-repealed Enrollment Ordinance No. 59. Plaintiff contends that the failure is in violation of its members' rights under a duly enacted ordinance of the Tribe and under the orders of the Tribal Courts, which ordered that the Shoshone Business Council enroll plaintiff's members and later declared that plaintiff's members are enrolled members of the Tribe pursuant to Ordinance No. 59. Plaintiff requests that this court compel either the Eastern Shoshone Tribe Business Council or the BIA to enroll its members pursuant to Enrollment Ordinance No. 59 under a mandatory injunction or by a declaration of this court that plaintiff's members are enrolled members of the Eastern Shoshone Tribe.

Defendants move to dismiss the action. The Tribal Defendants move to dismiss under Fed.R.Civ.P. 12(b) contending that this court lacks personal and subject matter jurisdiction and that plaintiff fails to state a cause of action for which relief can be granted. The Federal Defendants move to dismiss under Fed.R.Civ.P. 12(b) for lack of subject matter jurisdiction over all claims, failure to state a claim upon which relief can be granted and lack of standing.

II. STANDARD FOR MOTION TO DISMISS

As a preliminary matter the court will address the proper standard for consideration of the Motions to Dismiss.

Written documents that are attached to the complaint as an exhibit are considered part of the complaint and may therefore be considered in connection with a motion to dismiss under Rule 12(b). Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.1991) (citing Fed.R.Civ.P. 10(c)).

A motion to dismiss for failure to state a claim is brought under Fed.R.Civ.P. 12(b)(6); a motion to dismiss for lack of subject matter jurisdiction is brought only under Fed. R.Civ.P. 12(b)(1). State Farm Mutual Automobile Ins. Co. v. Dyer, 19 F.3d 514, 518 n. 8 (10th Cir.1994). A dismissal for "lack of subject matter jurisdiction is not on the merits [and] its res judicata effect is limited to the question of jurisdiction." Id.

This court cannot grant a motion to dismiss under Fed.R.Civ.P. 12(b)(6) unless it appears beyond doubt the plaintiff could prove no set of facts supporting the claim which would entitle plaintiff to relief. In other words, the court assesses whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted. Bintner v. Burlington Northern, Inc., 857 F.Supp. 1484, 1487 (D.Wyo.1994). The court presumes the complaint's allegations are true and construes them most favorably to plaintiff. Id.

Recently the Tenth Circuit has noted that in a case where an Indian tribe has sovereign immunity, the federal district court lacks subject matter jurisdiction over the case, which means that the motion to dismiss on the basis of the Tribe's sovereign immunity is a Rule 12(b)(1) matter. Fletcher v. United States, 116 F.3d 1315, 1319-20 (10th Cir.1997) cf. Union Pacific Railroad Co. v. Burton, 949 F.Supp. 1546, 1552 (D.Wyo.1996) (motion to dismiss on the basis of Eleventh Amendment immunity may be under various procedural mechanisms, including a motion under Fed.R.Civ.P. 12(b)(1)).

The standards for a trial court's consideration of matters under Rule 12(b)(1) has been fully explained in Holt v. U.S., 46 F.3d 1000 (10th Cir.1995).

Generally Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.

Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

However, a court is required to convert a Rule 12(b)(1) motion to dismiss into a Rule 56 motion when resolution of the jurisdictional question is intertwined with the merits of the case.

Id. at 1002-03 (citations omitted).

Plaintiff urges this court to hold an evidentiary hearing on numerous matters that it contends are important factual issues that are relevant to deciding the motions to dismiss.

This court finds that an evidentiary hearing is unnecessary on the issues of sovereign immunity and lack of subject matter jurisdiction. Although the defendants attach various exhibits to their motions to dismiss, the court does not construe the motions as relying on matters outside of the complaint and the exhibits thereto. The defendants' exhibits are generally aimed at showing there is another side to the conflict over membership pursuant to Ordinance No. 59, but are not necessary to the court's decision on the motions to dismiss. What is important is that defendants do not dispute the complaint's factual allegations which are dispositive for the motions to dismiss.

Accordingly, the court will base its decision on the facts as alleged in the Amended Complaint and in the exhibits attached to the Complaint and the Amended Complaint. The court presumes those allegations to be true for the purposes of these motions only.

III. FACTUAL ALLEGATIONS

The Ordinance 59 Association is comprised of 43 individuals who applied for membership in the Eastern Shoshone Tribe under Enrollment Ordinance No. 59, enacted in September, 1988. Amended Complaint, ¶ 1 and Ex. A.

Ordinance No. 59 was enacted by the Shoshone General Council, the supreme governing body of the Tribe. The Shoshone General Council is comprised of all members of the Tribe who are over 18 years of age. The daily business of the Tribe is conducted by the Eastern Shoshone Tribe Business Council ("Business Council"), a body of six members. All of the named defendants in this case are elected members of the Business Council. Under Ordinance No. 59, the Business Council was charged with the responsibility of reviewing all enrollment applications and making a preliminary determination about enrollment. Under Ordinance No. 59 the Business Council could preliminarily decide to accept, reject, or table any application. That decision would then be posted for 30 days during which time any enrolled member of the Tribe could submit a written protest. Ordinance No. 59 § I(B)(5). Ordinance No. 59 expressly provides for a right of appeal as follows:

Appeal Process. An applicant for enrollment ... shall have the right to appeal any action for the Shoshone Business Council that is adverse to the applicant. Exclusive jurisdiction over such appeals shall lie with the General Council of the Shoshone Indian Tribe. The decision of the General Council shall be final.

Id. § I(C)(4).

By late 1988, 82 individuals had completed the application process under Ordinance No. 59. Amended Complaint, ¶¶ 9 and 10. In addition, approximately 382 other applications were in various stages of consideration under the ordinance. Id. ¶ 11. Although the Business Council had initially approved the applications, in December of 1998 the Business Council voted to table action on all pending applications. Id. ¶ 12.

On February 17, 1989, the General Council, by referendum vote, repealed Enrollment Ordinance No. 59. Complaint Ex. I (attached application at 1, ¶ 2). On March 31, 1989, the General Council repealed Ordinance No. 59 and reinstated an earlier enrollment ordinance, Ordinance No. 8. Id.

In September of 1989, an action seeking an order to compel the Business Council and the BIA to enroll eligible applicants under Ordinance No. 59 was brought before the Shoshone and Arapaho Tribal Court ("Tribal Court"). Amended Complaint, ¶ 15. The Tribal Court ordered enrollment of the tabled applicants pursuant to repealed Ordinance No. 59. Id. ¶ 16. The Business Council appealed...