ROSEBUD SIOUX TRIBE OF SO. DAKOTA v. Driving Hawk

• Citation: 407 F. Supp. 1191
• Decision Date: 23 January 1976
• Docket Number: Civ. A. No. 75-3031.
• Parties: ROSEBUD SIOUX TRIBE OF SOUTH DAKOTA et al., Plaintiffs, v. Ed DRIVING HAWK et al., Defendants.
• Court: U.S. District Court — District of South Dakota

407 F. Supp. 1191

ROSEBUD SIOUX TRIBE OF SOUTH DAKOTA et al., Plaintiffs, v. Ed DRIVING HAWK et al., Defendants.

Civ. A. No. 75-3031.

United States District Court, D. South Dakota, C. D.

January 23, 1976.

Mario Gonzalez, Martin, S. D., for plaintiffs.

Dennis H. Hill, Rapid City, S. D., for defendants.

MEMORANDUM

MERHIGE, District Judge.

This action arises out of a tribal election controversy on the Rosebud Reservation in Rosebud, South Dakota. The Plaintiff, the Rosebud Sioux Tribe of South Dakota, Robert Burnette in his official capacity as President of the Rosebud Sioux Tribe, and five members of the Rosebud Sioux Tribal Election Board,¹ bring this action for injunctive and declaratory relief to prohibit the defendants, Ed Driving Hawk, Abraham Bordeaux, Sr., John King, Jr., Morris Thompson in his official capacity as Commissioner of Indian Affairs, Harley Zepher in his official capacity as Aberdeen Area Director of the Bureau of Indian Affairs, Simon Stevens in his official capacity as Acting Superintendent of the Rosebud Agency, Pat Yotto in his official capacity as Captain of the Rosebud Sioux Tribal Police Department, and the United States of America, from interfering with or otherwise obstructing the plaintiffs in the performance of their official duties as officers of the Rosebud Sioux Tribe.² Two of the defendants, Ed Driving Hawk and John King, Jr., counterclaimed, alleging that the actions of the Rosebud Sioux Tribal Council and its President, Robert Burnette, in conducting an investigation and ordering a new election and the actions of the Tribal Election Board in refusing to certify the election and recommending to the Tribal Council that a new election be held (1) deny the counterclaimants their right to vote and to have their vote counted, and their right to hold elective office, (2) violate the By-laws, Ordinances, and Constitution of the Rosebud Sioux Tribe, and (3) deprive the counterclaimants of property and liberty without notice or an opportunity to be heard in violation of their right to due process of law.³, ⁴ The plaintiffs alleged that jurisdiction over their complaint was vested in the Court under 28 U.S.C. §§ 1331, 1361, and 1362. The counterclaimants allege an independent basis for jurisdiction under 42 U.S.C. §§ 1985-86, 25 U.S.C. §§ 1301-02 (The Indian Civil Rights Act), and 28 U.S.C. § 1343.⁵ The plaintiffs, as such and as counterclaim defendants, seeking to return the controversy to the tribal adjudicatory processes now move the Court to dismiss the complaint and the counterclaim for a lack of jurisdiction.⁶ Fed.R.Civ.P. 12(b)(3). The matter has been fully briefed and argued before the Court, all evidence tendered by any of the parties has been received and considered, and the cause is ripe for determination.

In determining whether jurisdiction over the controversy vests in this Court, the allegations of the pleadings, buttressed, if necessary, by facts introduced in evidence, are considered and the burden is always upon a plaintiff to demonstrate that the case is within the cognizance of the Court. See KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936), McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936), Hedberg v. State Farm Mutual Auto Insurance Company, 350 F.2d 924, 929 (8th Cir. 1965). The essence of the original complaint is the allegation that the defendants acted in defiance of the Tribal Constitution and Ordinances governing the election process of the Rosebud Sioux Tribe. Such matters, involving intra-tribal controversies based on rights allegedly secured by Tribal law, are not properly the concern of the federal courts. 28 U.S.C. § 1361 provides for a mandamus remedy to compel federal officers or employees to perform duties owed the plaintiffs, but, although several federal officers have been named as defendants,⁷ the remedy would not be appropriate in the instant case. An award of mandamus relief directed against the federal officers served in the case would not substantially rectify the alleged violations. The thrust of the original action is aimed at preventing Mr. Driving Hawk and his supporters, all private parties, from gaining allegedly unlawful control of the Tribal government. The federal officials in the suit are allegedly participants in a general scheme to insert Mr. Driving Hawk in the Presidency of the Rosebud Sioux Tribe.⁸ Although federal officials may, if it is appropriate, be directed to refrain from interfering with properly enacted Tribal election procedures, such directions would not directly operate to keep Mr. Driving Hawk and his supporters from assuming the reins of the Tribal government. Mandamus has long been considered an extraordinary remedy to be awarded only in the exercise of sound judicial discretion, see e. g., Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364, 367 (10th Cir. 1966), and the Court finds that it would be inappropriate in the instant case.

It is also alleged, in the primary complaint, that jurisdiction over that complaint is conferred on the Court by 28 U.S.C. §§ 1331, 1362. Both sections, however, require that the matter in controversy arise "under the Constitution, laws, or treaties of the United States." While the drafting of the Rosebud Constitution and the functioning of a local Rosebud governing unit is authorized by federal law, see The Indian Reorganization Act of June 18, 1934, c. 576, 48 Stat. 984, as amended, 25 U.S.C. § 476, it is designed to provide for virtual self-government of the Rosebud Sioux people.⁹ The Rosebud Constitution, as approved by a vote of the Rosebud people, provides for the election of a president, vice president and Tribal Council. The Tribal Council, pursuant to its constitutional authority, has promulgated Ordinance No. 75-05 to establish orderly procedures for the nomination and election of candidates to tribal office. The complaint alleges that this and other Tribal laws have been violated by the defendants; no federal law or treaty provision is alleged as directly material to the controversy. Questions of election procedure are properly the concern of the Tribal Courts, the Tribal Council, and ultimately the Rosebud Sioux people who may, by voting, amend the Constitution and elect the Tribal officers. Accordingly, the complaint cannot be said to assert a federal question cognizable under either § 1331 or § 1362. Cf. Motah v. United States, 402 F.2d 1, 2 (10th Cir. 1968); Ware v. Richardson, 347 F.Supp. 344, 347 (W.D.Okl.1972).

The counterclaim, however, contains claims distinguishable from the main complaint, and is supported with independent allegations of jurisdiction under 42 U.S.C. § 1985(3), 25 U.S.C. § 1302 and 28 U.S.C. § 1343. The counterclaiming parties allege, in effect, that the counterclaim defendants, although acting overtly with Tribal procedures, have enforced and are seeking to enforce Tribal ordinances in a manner that effectuate a denial of their right to vote, to have their vote counted, and their right to hold elective office. The United States Court of Appeals for the Eighth Circuit has recently held that 42 U.S.C. § 1985(3), in conjunction with 28 U.S.C. § 1343(4), protects an individual's right to vote in tribal elections against interference from private conspiracies if it can be shown that the conspirators are motivated by an invidiously discriminatory animus toward the claimants because of the claimants' association with an identifiable class. Means v. Wilson, 522 F.2d 833, 839 (8th Cir. 1975). The counterclaimants have alleged facts that bring the case, and those individuals sued in their individual capacities within the jurisdiction of this Court. The facts alleged in the counterclaim, as amended, assert that members of the Tribal Election Board and the Tribal Council conspired and performed overt acts in furtherance of a conspiracy to deprive the counterclaimants of their right to vote and hold elective office because they were associated with a rival political faction.¹⁰ The Court in the Means case (supra) also held that 25 U.S.C. § 1302 will support a claim of intentional interference with the right to vote as against an Indian tribe and its governmental subdivisions, specifically an election board. See Means v. Wilson, supra, 522 F.2d 833, at 841. Accordingly, the counterclaimants' allegations that the Tribal Council and the Tribal Election Board are acting to defeat their right to have their votes counted, and their right to hold elective office are cognizable in this Court.

Finally, the plaintiffs contend that the counterclaimants have not exhausted their tribal remedies, and that exhaustion is a necessary prerequisite to federal court relief. We need not reach the question of whether exhaustion is a legal requisite to relief under § 1302 and § 1985, however, for, from the evidence adduced, the Court concludes that returning the counterclaimants to their tribal remedies would create an irreparable injustice.

Under the applicable tribal statute, the incoming Tribal Council must make a decision on whether a re-election is appropriate upon recommendation from the Tribal Election Board. Ordinance No. 75-05-24. Furthermore, the Tribal Council is empowered by Tribal Constitution with adjudicative responsibilities. The Tribal Courts are created by and, therefore, serve at the pleasure of the Tribal Council, effectively making the Tribal Council the supreme judicial authority.¹¹ Rosebud Sioux Tribe Const. Art. IV, Sec. 1, Subsec. (K). The Court notes however that past actions have made a return to tribal procedures inappropriate. First, the existing Tribal Council, in closed session, without having properly notified Mr. Driving Hawk or permitting him to be heard on the matter, adopted Resolution 75-125, publicly and definitively proclaiming that Mr. Driving Hawk and his supporters are culpable of election irregularities. The Ordinance also...