Runs After v. U.S.

• Citation: 766 F.2d 347
• Decision Date: 27 June 1985
• Docket Number: 85-1029,Nos. 84-2123,s. 84-2123
• Parties: Clarence RUNS AFTER, Edith Traversie, Dean Garreaux, Genevieve Swift Bird, Andrea Robideaux, Leslie Ducheneaux, Bertha Chasing Hawk, Gilbert LeBeau, Joan LeBeau, Walter Woods, and Grady Claymore, on behalf of themselves and all other similarly situated voters of the Cheyenne River Indian Reservation, Appellants, v. UNITED STATES of America, Bureau of Indian Affairs, Ken Smith, Jerry Jaeger, Donald Whitener, Eagle Hunter, Percy Marrowbone, Keith Jewett, Carl Makes Him First, Jerome White Horse, Germaine Means, Raymond Uses The Knife, and Robert Smith, individually and in their official capacities, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 347

766 F.2d 347

Clarence RUNS AFTER, Edith Traversie, Dean Garreaux,

Genevieve Swift Bird, Andrea Robideaux, Leslie Ducheneaux,

Bertha Chasing Hawk, Gilbert LeBeau, Joan LeBeau, Walter

Woods, and Grady Claymore, on behalf of themselves and all

other similarly situated voters of the Cheyenne River Indian

Reservation, Appellants, v. UNITED STATES of America, Bureau of Indian Affairs, Ken

Smith, Jerry Jaeger, Donald Whitener, Eagle Hunter, Percy

Marrowbone, Keith Jewett, Carl Makes Him First, Jerome White

Horse, Germaine Means, Raymond Uses The Knife, and Robert

Smith, individually and in their official capacities, Appellees.

Nos. 84-2123, 85-1029.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 10, 1984.

Decided June 27, 1985.

Terry Pechota, Rapid City, S.D., for appellants.

W. Richard West, Jr., Washington, D.C., for appellees.

Before McMILLIAN, ARNOLD and FAGG, Circuit Judges.

McMILLIAN, Circuit Judge.

These appeals involve the same underlying factual and legal dispute. At issue is the validity of two tribal resolutions. Appeal No. 84-2123 is an appeal from the district court order denying appellants' motion for preliminary injunctive relief. While the appeal from the denial of preliminary injunctive relief was pending, the district court ¹ dismissed the underlying action and a second appeal, No. 85-1029, was filed. We have consolidated the cases for purposes of appeal. For the reasons discussed below, we affirm the district court order dismissing the action and accordingly dismiss as moot the appeal from the denial of preliminary injunctive relief.

The dispute underlying these appeals historically dates from 1972 when the Cheyenne River Sioux Reservation was reapportioned from fifteen into six election districts for purposes of the election of Tribal Council representatives. See Brown v. United States (Cheyenne River Sioux Tribal Council), 486 F.2d 658 (8th Cir.1973). In June 1981 a resolution was presented to the Tribal Council to reapportion the reservation into thirteen election districts. That resolution was not adopted by the Tribal Council. Later a petition to reapportion the reservation into thirteen election districts was circulated and signed by the required number of eligible voters. A majority of the voters approved reapportionment in a referendum election held in December 1981. However, the Tribal Council refused to acknowledge or implement the results of the referendum election. In May 1982 an action was filed in tribal court to enforce the reapportionment of the reservation. In June 1982 the tribal court upheld the reapportionment and ordered all future tribal elections to be held in thirteen reapportioned election districts.

The next day, however, the Tribal Council terminated the tribal court judge, allegedly because of the decision enforcing the reapportionment, rescinded the tribal court order directing elections to be held in thirteen election districts, and appointed a new tribal court judge. In July 1982 the new tribal court judge held that the resolution was invalid because the referendum election was invalid. In August 1982 a Tribal Council primary election was held using six election districts. Also in August 1982 one of the appellants, then Tribal Council member Joan LeBeau, wrote to the Bureau of Indian Affairs (BIA) to request a BIA investigation of the legality of the August 1982 primary election because it had not been conducted in thirteen reapportioned election districts. It appears that no action was taken by the BIA and in September 1982 the general election was held using six election districts.

In February 1983 a complaint was filed in federal district court by three named individuals, including appellant Joan LeBeau, and an organization of Cheyenne River Sioux tribal members called the "Committee to Save Our Constitution." Named as defendants in that action were the United States, the Department of the Interior, the BIA, and several individual government officials. The complaint alleged that the defendants erred in recognizing the Tribal Council elected in 1982 because the election had been improperly conducted in six election districts and also sought judicial review of the BIA's final decision to refuse to intervene in the 1982 tribal election dispute. In April 1983 the BIA recognized the Tribal Council elected in the 1982 election. The district court granted summary judgment in favor of the defendants, holding as a matter of law that the BIA's final decision recognizing the Tribal Council elected in 1982 from six election districts was correct because it followed the July 1982 decision of the tribal court. Committee to Save Our Constitution v. United States, No. CIV-83-3011, slip op. at 4 (D.S.D. Feb. 27, 1984). The district court judgment was not appealed.

In 1984 several of the named appellants in the present appeals were dissatisfied with the manner in which the Tribal Council had been conducting tribal affairs and decided to seek election to the Tribal Council. Five of the named appellants, Joan LeBeau, Gib LeBeau, Bertha Chasing Hawk, Grady Claymore, and Walter Woods, filed nominating petitions and were certified as eligible candidates by their respective district council election boards. These five appellants ran in the June 1984 primary election; four (Joan LeBeau, Gib LeBeau, Bertha Chasing Hawk, and Grady Claymore) received sufficient votes to run in the September 1984 general election and were so notified by the Tribal Election Board. Appellant Walter Woods barely lost in the primary election.

However, on July 12, 1984, the Tribal Council passed the two resolutions at issue in these appeals. In Resolution No. 190-84-CR the Tribal Council "forever barred" appellants Gib LeBeau, Joan LeBeau and Walter Woods from holding appointed or elected tribal office because of alleged "past misconduct in office." A second resolution, passed without identifying numbers, disqualified appellants Bertha Chasing Hawk and Grady Claymore from running in the September 1984 general election because of alleged non-residency in the district each sought to represent. As a result of these resolutions, four appellants were precluded from running in the September 1984 general election, and appellant Walter Woods, who would have been eligible to run in the general election following their disqualifications, was also precluded from running in the September 1984 general election.

In late August 1984 appellants Clarence Runs After, Edith Traversie, Dean Garreaux, Genevieve Swift Bird, Andrea Robideaux, Leslie Ducheneaux, Bertha Chasing Hawk, Gilbert LeBeau, Joan LeBeau, Walter Woods, and Grady Claymore, on behalf of themselves and other similarly situated Cheyenne River Sioux Reservation voters, filed this action in federal district court challenging the validity of the July 12 Tribal Council resolutions and seeking declaratory and preliminary injunctive relief, damages, and attorney's fees. Appellants sought to enjoin the general election scheduled to be held on September 4, 1984; if the general election proceeded, to enjoin BIA recognition of and BIA distribution of federal and tribal funds to the 1984 Tribal Council; and to compel the holding of a valid general election in which the names of appellants Gib LeBeau, Joan LeBeau, Bertha Chasing Hawk, and Grady Claymore would be included on the ballot. The complaint named as defendants the eight Tribal Council members who had voted in favor of the July 12 Tribal Council resolutions, the United States, the Assistant Secretary of the Department of the Interior for Indian Affairs (Ken Smith), the Area Director of the Aberdeen Area Office of the BIA (Jerry Jaeger), and the Superintendent of the Cheyenne River Sioux Agency (Don Whitener).

The complaint alleged federal question jurisdiction under 28 U.S.C. Secs. 1331, 1343, the Administrative Procedure Act, 5 U.S.C. Sec. 701 et seq. (APA), and the 1871 Civil Rights Act, 42 U.S.C. Secs. 1985, 1986. Appellants alleged that the tribal defendants violated 42 U.S.C. Sec. 1985 and that the federal defendants knew the Tribal Council resolutions were invalid and had the authority to take appropriate action but failed to do so in violation of 42 U.S.C. Sec. 1986. In particular, appellants alleged that the tribal defendants conspired to bar some of the appellants from holding tribal office in violation of 42 U.S.C. Sec. 1985(1), that the tribal defendants conspired to bar some of the appellants from holding tribal office in retaliation for their earlier involvement in the Committee to Save Our Constitution action in violation of 42 U.S.C. Sec. 1985(2), that the tribal defendants conspired to deny appellants the right to run for tribal office and to vote for qualified candidates in violation of the right to equal protection in violation of 42 U.S.C. Sec. 1985(3), and that the federal defendants failed to take any action to prevent the tribal defendants from violating appellants' rights in violation of 42 U.S.C. Sec. 1986.

The district court denied the motion for preliminary injunctive relief. Runs After v. United States, No. CIV-84-3065 (D.S.D. Aug. 29, 1984). The district court characterized appellants' complaint against the tribal defendants as an intratribal election dispute within the exclusive jurisdiction of the tribal court. Slip op. at 2, citing Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir.1983). The district court also found that because appellants had not taken any administrative appeals, there was no subject matter jurisdiction with respect to the federal defendants to review final agency action pursuant to the APA and 28 U.S.C. Sec. 1331. Slip op. at 3, citing Goodface v. Grassrope, 708 F.2d at 338. Alternatively, the district court held that even if there was subject matter jurisdiction, the existence of federal jurisdiction was sufficiently doubtful and the timing of the motion for preliminary injunctive relief was so close to the date of the...