Pinnow v. Shoshone Tribal Council

• Decision Date: 22 July 1970
• Docket Number: 5405.,Civ. No. 5401
• Citation: 314 F. Supp. 1157
• Parties: Barbara M. PINNOW, for herself and as parent, natural guardian, and next of friend of Elmer Hans Pinnow, Shareen Rachael Marie Pinnow, Robert Gerald Joseph Pinnow, Melbalea Thea Dora Pinnow, Cheryle Ina Pinnow, Ramona Kathleen Pinnow, Helena Marylain Pinnow, Walter Levi Pinnow, Donald Waynewright Pinnow, Sandra Kay Pinnow and Everette Wayne Pinnow, her minor children, Plaintiff, v. SHOSHONE TRIBAL COUNCIL, also known as Shoshone Business Council, and U. S. Secretary of the Interior, Walter J. Hickel, Defendants. Sarah Jean Chamberlain SLATTERY, for herself and as parent, natural guardian, and next of friend of Billy Byron Slattery and Kenneth Kurt Slattery, her minor sons, Plaintiff, v. ARAPAHOE TRIBAL COUNCIL, also known as Arapahoe Business Council, and U. S. Secretary of the Interior, Walter J. Hickel, Defendants.
• Court: U.S. District Court — District of Wyoming

314 F. Supp. 1157

Barbara M. PINNOW, for herself and as parent, natural guardian, and next of friend of Elmer Hans Pinnow, Shareen Rachael Marie Pinnow, Robert Gerald Joseph Pinnow, Melbalea Thea Dora Pinnow, Cheryle Ina Pinnow, Ramona Kathleen Pinnow, Helena Marylain Pinnow, Walter Levi Pinnow, Donald Waynewright Pinnow, Sandra Kay Pinnow and Everette Wayne Pinnow, her minor children, Plaintiff, v. SHOSHONE TRIBAL COUNCIL, also known as Shoshone Business Council, and U. S. Secretary of the Interior, Walter J. Hickel, Defendants.

Sarah Jean Chamberlain SLATTERY, for herself and as parent, natural guardian, and next of friend of Billy Byron Slattery and Kenneth Kurt Slattery, her minor sons, Plaintiff, v. ARAPAHOE TRIBAL COUNCIL, also known as Arapahoe Business Council, and U. S. Secretary of the Interior, Walter J. Hickel, Defendants.

Civ. Nos. 5401, 5405.

United States District Court, D. Wyoming.

July 22, 1970.

Barbara M. Pinnow, pro se, and Ernest Wilkerson, Casper, Wyo., for plaintiff.

Richard V. Thomas, U. S. Atty., Cheyenne, Wyo., Marvin J. Sonosky, Washington, D. C., and Teno Roncalio, Cheyenne, Wyo., for defendants Shoshone Tribal Council and others.

Sarah Jean Chamberlain Slattery, pro se, and Ernest Wilkerson, Casper, Wyo., for plaintiff.

Richard V. Thomas, U. S. Atty., Cheyenne, Wyo., Teno Roncalio, Cheyenne, Wyo., and Wilkinson, Cragun & Barker, Washington, D. C., for defendants Arapahoe Tribal Council and others.

Judge's Memorandum

KERR, District Judge.

Upon stipulation of counsel, the above entitled matters were consolidated for the purpose of hearing and determining the following motions:

1. Motion of defendant Shoshone Business Council for summary judgment and motion to dismiss filed on behalf of Walter J. Hickel, Secretary of the Interior, in Civil case No. 5401.

2. Motion to dismiss amended complaint filed on behalf of the Arapahoe Tribe of Indians and Arapahoe Business Council, and motion to dismiss filed on behalf of Walter J. Hickel, Secretary of the Interior, in Civil case No. 5405.

In these two cases, plaintiffs seek a review of the enrollment procedures of the Shoshone and Arapahoe Tribes of Indians. Plaintiffs complain that defendants have engaged in discriminatory, unfair and inequitable practices in direct contravention of plaintiffs' rights as set forth in 25 U.S.C. § 1302, sometimes called the Indian Civil Rights Act. Plaintiffs seek an order in the nature of a writ of mandamus directing the Shoshone and Arapahoe Business Councils to institute and implement fair, just and legal Tribal ordinances, laws and rulings whereunder fair and impartial treatment shall be given to all Shoshone and Arapahoe Indians within the jurisdiction of defendant Councils, and under which order the defendant Secretary of the Interior shall, through his deputy, the Commissioner of Indian Affairs, assure and supervise such action on the part of defendant Councils. Jurisdiction over the Tribal Councils is predicated upon 25 U.S.C. § 345, Acts, Aug. 15, 1894, c. 290, § 1, 28 Stat. 305; Feb. 6, 1901, c. 217, § 1, 31 Stat. 760; Mar. 3, 1911, c. 231, § 291, 36 Stat. 1167.

Plaintiffs do not question the standards for enrollment in the Shoshone and Arapahoe Tribes. They do, however, challenge the application of those standards to members of the class which they represent, which members, they claim, have been denied enrollment arbitrarily and capriciously in such a manner as to amount to exogamous discrimination practiced by defendant Councils. Plaintiffs specifically attack the application of the enrollment provisions which require that application for enrollment be made within two years from date of birth and that the applicant must possess at least one-fourth degree of Shoshone or Arapahoe blood as the case may be.¹ Plaintiffs contend that their children have been arbitrarily denied enrollment by the discriminatory application of these enrollment requirements. Affidavits have been filed by the plaintiffs wherein they purport to demonstrate inconsistent application of these requirements.

Defendants, on the other hand, have moved to dismiss the actions and take the position that the Court lacks jurisdiction to hear the matters as set forth above. Defendants base their argument upon a long line of established cases wherein the Courts have consistently held a lack of jurisdiction to hear intra-tribal controversies. Defendant Secretary of the Interior contends that his role is supervisory and discretionary in the approval of Tribal ordinances and therefore this is not a proper occasion for the issuance of a writ of mandamus.

Indian Tribes have been traditionally exempt from direct suit without Congressional authorization. United States v. United States Fidelity Co., et al., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940); Twin Cities Chippewa Tribal Council, v. The Minnesota Chippewa Tribe, et al., 370 F.2d 529 (8th Cir., 1967). Federal courts have recognized the quasi sovereignty of Indian nations in holding that they possessed sovereign exemption from suit. Iron Crow, et al. v. Oglala Sioux Tribe of Pine Ridge Reservation, et al., 231 F.2d 89 (8th Cir. 1956). Federal jurisdiction does not lie in a matter of dispute between Indians and their tribes unless jurisdiction is expressly authorized by Congress. Dicke, et al. v. Cheyenne-Arapaho Tribes, Inc., et al., 304 F.2d 113 (10th Cir., 1962). More recently the Tenth Circuit Court of Appeals has held that a Federal court has no jurisdiction over an intra-tribal controversy over tribal government. Prairie Band of Pottawatomie Tribe of Indians, et al. v. Mage N. Puckkee, et al., 321 F.2d 767 (10 Cir., 1963); Motah v. United States, 402 F.2d 1 (10 Cir., 1968). More specifically, the Tenth Circuit Court of Appeals has held that "a tribe has the complete authority to determine all questions of its own membership, as a political entity". Martinez v. Southern Ute Tribe of Southern Ute Reservation, et al., 249 F.2d 915 (10 Cir., 1957). In the Martinez case, supra, the plaintiff sued the Southern Ute Tribe and individual members of the governing body of that tribe. Plaintiff alleged she was a duly enrolled member of the tribe but that her privileges as a member had been wrongfully denied to her. The District Court dismissed the suit as not involving a substantial federal question. The Court of Appeals for the Tenth Circuit regarded the suit as "a private one, unique only in its background of Indian origin". In the landmark case of Gully, State Tax Collector, v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936), the Supreme Court set...