Sac & Fox Tribe v. Bureau of Indian Affairs

• Decision Date: 03 March 2006
• Docket Number: No. 05-2106.,05-2106.
• Citation: 439 F.3d 832
• Parties: SAC & FOX TRIBE OF THE MISSISSIPPI IN IOWA, ELECTION BOARD, Appellant, v. BUREAU OF INDIAN AFFAIRS; Midwest Regional Director, and Office of the Assistant Secretary — Indian Affairs; Aurene M. Martin; First Assistant & Principal Advisor; Sac & Fox Tribe of the Mississippi in Iowa, Tribal Council, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 832

439 F.3d 832

SAC & FOX TRIBE OF THE MISSISSIPPI IN IOWA, ELECTION BOARD, Appellant, v. BUREAU OF INDIAN AFFAIRS; Midwest Regional Director, and Office of the Assistant Secretary — Indian Affairs; Aurene M. Martin; First Assistant & Principal Advisor; Sac & Fox Tribe of the Mississippi in Iowa, Tribal Council, Appellees.

No. 05-2106.

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2006.

Filed: March 3, 2006.

Fred L. Dorr, argued, West Des Moines, IA (Michael D. Mason of Portland, Oregon, on the brief), for appellant.

Elizabeth Ann Peterson, argued, U.S. Department Of Justice, Washington, D.C. (Robert M. Butler, AUSA, Cedar Rapids, IA; and William B. Lazarus and David C. Shilton with USDOJ, Washington, DC., on the brief), for appellees.

Steven F. Olson, argued, Bloomington, MN (Jeffrey S. Rasmussen of Bloomington MN, on the brief), for Sac and Fox Tribe.

Before WOLLMAN, LAY, and ARNOLD, Circuit Judges.

WOLLMAN, Circuit Judge.

Sac & Fox Tribe of the Mississippi River in Iowa Election Board (Peters Election Board) appeals the district court's¹ dismissal of its case for lack of federal jurisdiction. We affirm.

I.

The Sac and Fox Tribe of the Mississippi in Iowa (Tribe) is a federally recognized Indian tribe that operates the Meskwaki Casino•Bingo•Hotel (Casino). The Tribe's constitution provides that a tribal council is to govern the Tribe and an election board is to conduct and supervise tribal elections. At the time the events underlying this action began, Alex Walker, Jr., led the tribal council (Walker Elected Council) and Leo Dean Peters led the election board (Peters Election Board).

In the fall of 2002, members of the Tribe who were dissatisfied with the conduct of the Walker Elected Council circulated petitions to seek a special election to recall the entire council. The tribal constitution mandates a recall procedure when thirty percent of the eligible voters sign such a petition. The petitioners submitted more than the requisite number of signatures, but the Walker Elected Council refused to conduct a recall election, alleging forgeries and irregularities in the petitions. The Walker Elected Council did not claim to have conducted an investigation, but stated only that it was satisfied that the irregularities were sufficient to warrant not holding a recall election.

Under the tribal constitution, the elected council's responsibilities include dispute resolution and the duty to call special elections. At the time the petition was submitted, the elected council provided the only avenue of appeal for the dissatisfied tribal members; the Tribe did not have a tribal court. On March 3, 2003, the hereditary chief of the Tribe, Charlie Old Bear, appointed a new tribal council led by Homer Bear, Jr. (Bear Appointed Council). The Bear Appointed Council claimed authority to govern the Tribe based on the traditional form of tribal government that predated the tribal constitution.

The members of the Bear Appointed Council, who previously led the recall petition effort, did not seek assistance from the Bureau of Indian Affairs (BIA) in securing the recall election before claiming authority to govern the Tribe. When the Bear Appointed Council sought BIA recognition as the new government of the tribe, the BIA refused to involve itself in what it characterized as an internal tribal matter. In late March 2003, the Bear Appointed Council seized control of the Casino, the tribal center, other tribal facilities, and some of the Tribe's finances.

On April 8, 2003, the Walker Elected Council filed a declaratory judgment suit in the United States District Court for the Northern District of Iowa, asking the court to determine whether the Bear Appointed Council or the Walker Elected Council was authorized to govern the Tribe and control the Casino. On April 15, 2003, the district court dismissed the action, concluding that it lacked subject matter jurisdiction to decide an intratribal dispute. Sac & Fox Tribe of the Mississippi in Iowa v. Bear, 258 F.Supp.2d 938 (N.D.Iowa 2003).

Because the Walker Elected Council was the federally recognized governing body, but the Bear Appointed Council had control of the Casino and the tribal government, the National Indian Gaming Commission (NIGC) issued a Notice of Violation to both Councils. Ultimately, the disorder led to a lawsuit and the Casino's closure. Sac & Fox Tribe of the Mississippi in Iowa/Meskwaki Casino Litig., 264 F.Supp.2d 830 (N.D.Iowa 2003), aff'd in part, rev'd in part, 340 F.3d 749 (8th Cir. 2003) (Meskwaki Casino Litigation).

On October 21, 2003, the Peters Election Board supervised a tribal council election and a recall election on behalf of the Walker Elected Council. One hundred eighty-one tribal members cast their ballots in that election. The same day, a dissident group that had boycotted the Peters Election Board's election held a separate election on behalf of the Bear Appointed Council. Four hundred two tribal members cast their ballots in that election. On October 24, 2003, Larry Morrin, the BIA Regional Director, acknowledged and combined the results of both elections. Morrin called for the appointment of a new election board and requested that the new election board conduct a special election. On November 4, 2003, a special election was held. On November 7, 2003, Morrin stated that the federal government would recognize the Elected Council of the dissident group, led by Homer Bear, Jr. (Bear Elected Council).

The Peters Election Board appealed Morrin's decision to create a new election board and applied to stay further action by Morrin. Aurene Martin, Principal Deputy Assistant Secretary of Indian Affairs, assumed jurisdiction over the appeal. Although she did not receive any briefing or hear argument from the Peters Election Board, Martin affirmed Morrin's decision to recognize the Bear Elected Council.

II.

The Peters Election Board filed suit against the BIA on January 2, 2004, objecting to the federal recognition of the Bear Elected Council. In Count I, the Peters Election Board sought judicial review of the BIA's decision under the Administrative Procedures Act (the APA), 5 U.S.C. § 702. In Counts II and III, the Peters Election Board sought a declaratory judgment that the BIA had unlawfully interfered with tribal elections and a writ of mandamus requiring the BIA to recognize the tribal council elected at the election administered by the Peters Election Board. The BIA moved to dismiss the complaint for lack of subject matter jurisdiction. On June 10, the district court denied the BIA's motion to dismiss as to Count I, and granted it as to Counts II and III. D. Ct. Order of June 10, 2004, at 12.

On September 15, 2004, the Bear Elected Council appointed a new election board, led by Virginia Eagle (Eagle Election Board). Although not a party to the case before the district court, the Eagle Election Board appeared on October 5, 2004, and moved to dismiss the Peters Election Board's complaint. The Eagle Election Board alleged that, as a matter of tribal law, an election board does not have the power to bring suit in federal court. It further argued that, if tribal law granted that legal authority to an election board, then the Eagle Election Board was the plaintiff. As such, it moved for voluntary dismissal of the case.

The district court concluded that it would necessarily have to recognize the Peters Election Board as the proper plaintiff to reach the merits of the case. Accordingly the district court dismissed the case for lack of subject matter jurisdiction. D. Ct. Order of March 2, 2005, at 13-14.

III.

On appeal, the Peters Election Board argues that the district court had subject matter jurisdiction to review the BIA's recognition of the Bear Elected Council under 28 U.S.C. § 1331, in conjunction with...