Sas & Fox Tribe of Mississippi in Iowa v. U.S.
| Decision Date | 22 May 2003 |
| Docket Number | No. C03-50-LRR.,No. C03-52-LRR.,C03-50-LRR.,C03-52-LRR. |
| Citation | 264 F.Supp.2d 830 |
| Parties | SAC & FOX TRIBE OF THE MISSISSIPPI IN IOWA, a federally recognized Indian tribe; Homer Bear, Jr., individually and as Chairman of the appointed Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, individually and as the Acting General Manager and Casino Manager of Meskwaki Bingo•Casino•Hotel, a subordinate enterprise of the Sac & Fox Tribe of the Mississippi in Iowa, Plaintiffs, v. The UNITED STATES of America and Philip N. Hogen, individually and as Chairperson of the National Indian Gaming Commission, Defendants, Sac & Fox Tribe of the Mississippi in Iowa, a federally recognized Indian tribe; the Federally Recognized Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa; and Alexander Walker, Jr., as Chairman of the Federally Recognized Tribal Council of the Sac & Fox Tribe of the Mississippi in Iowa, Intervenors, v. Homer Bear, Jr.; Wayne Pushetonequa; Harvey Davenport, Jr.; Ray A. Young Bear, Frank Black Cloud; Keith Davenport; and Deron Ward, Cross-claim Defendants. United States of America, for the National Indian Gaming Commission, Plaintiff, v. Alexander Walker, Jr.; Homer Bear, Jr.; Sac & Fox Tribe of the Mississippi in Iowa; and Renetta Plander, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Robert M. Butler, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiffs.
Angela Ellen Dralle, Dennis Wayne Johnson, Dorsey & Whitney, Des Moines, IA, for Intervenors.
Charles E. Gribble, Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles & Gribble, LLP, Des Moines, IA, Brad S. Jolly, Steven F. Olson, BlueDog, Olson & Small, PLLP, Minneapolis, MN, Wilford H. Stone, Lynch, Dallas, Small & Harmon, PC, Cedar Rapids, IA, for Defendants.
This matter is before the Court pursuant to Plaintiffs' Motion for Temporary Restraining Order (docket no. 5) and Defendants' Motion to Dismiss (docket no. 11) in Case No. 03-50 and the United States' Motion for Temporary Restraining Order (docket no. 2) in Case No. 03-52. The Court held a hearing on May 19, 2003. The attorneys of record were present.
I. FACTS
The Sac and Fox Tribe of the Mississippi in Iowa (the "Tribe"), a federally recognized Indian tribe, operates, among other things, the Meskwaki Bingo•Casino•Hotel near Tama, Iowa pursuant to a gaming ordinance granted to it on February 9, 1995 by the National Indian Gaming Commission (the "NIGC"). The Tribe is headquartered at the Meskwaki Settlement at Tama, Iowa. The governing body of the Tribe is the Sac and Fox Tribal Council (the "Tribal Council"). As of the date of the hearing, Alexander Walker, Jr., Frank Wanatee, Jr., Lyle Walker, Aaron Walker, Calvin Johnson, Sr., Vern Jefferson and Talbert Davenport, Sr., are the elected Tribal Council of the Sac and Fox Tribe (the "Elected Tribal Council"). Pursuant to the Tribe's Constitution, the members of the Elected Tribal Council were each elected to four-year terms which had not yet expired as of the time of the hearing.
On or about Fall 2002, several tribal members circulated petitions to recall each of the seven members of the Elected Tribal Council claiming alleged illegal acts by certain members of the Elected Tribal Council. Article XII of the Tribe's Constitution authorizes recall petitions. Under Article XII, if a recall petition is signed by no less than thirty percent of the eligible voters at the last general election, a recall election must be held. A recall petition was submitted to the Elected Tribal Council. The Elected Tribal Council refused to conduct a recall election, in disregard of the advice of its legal counsel and arguably in violation of the Tribal Constitution. The Elected Tribal Council contended they did not hold a recall election because they questioned the validity of the recall petition. The Court notes that the Tribe's Constitution does not create tribal courts. The Tribe's Constitution grants dispute resolution power to the Tribal Council.
After the Elected Tribal Council refused to hold a recall election, the hereditary chief of the Tribe, in accordance with the traditional governance of the Tribe, appointed Homer Bear, Jr., Wayne Pushetonequa, Harvey Davenport, Jr., Ray A. Young Bear, Frank Black Cloud, Keith Davenport and Deron Ward to the Tribal Council (the "Appointed Tribal Council").
On approximately March 26, 2003, the Appointed Tribal Council seized control of the tribal center and other tribal facilities, including the casino, over the objection of the Elected Tribal Counsel. The Appointed Tribal Council excluded the Elected Tribal Council from the casino as well as persons acting under the direction of Alexander Walker, Jr., Elected Tribal Council Chairman.
On April 8, 2003, the Elected Tribal Council filed a Complaint for Declaratory Judgment and Injunctive Relief with this Court. In the Complaint, the Elected Tribal Council asked the Court to issue a ruling settling the intra-tribal leadership dispute by declaring which Tribal Council is properly in control of the Tribe, the casino, and the casino revenues. In its April 10, 2003 Order, the Court held that the action involved an intra-tribal dispute over which the Court lacked subject matter jurisdiction.
By letter dated April 1, 2003, Acting Assistant Secretary for Indian Affairs, Aurene Martin, stated that the United States Department of the Interior recognizes the Elected Tribal Council as the leadership of the Tribe. The Bureau of Indian Affairs' determination of the tribal leadership has not been appealed by any party.
On April 14, 2003, the Appointed Tribal Council held a vote regarding the fitness of the members of the Elected Tribal Council to serve on the Council. Of the approximately 450 eligible voting members of the Tribe, 242 members voted. The vast majority of the 242 votes stated that the seven members of the Elected Tribal Council are not fit to hold office. The Elected Tribal Council argues that the April 14 election was not a valid recall election because it was a biased vote and because it did not comply with the Tribe's Constitution.
The Appointed Tribal Council sent a letter to the Bureau of Indian Affairs (the "BIA") on May 9, 2003 requesting that the BIA acknowledge that the members of the Elected Tribal Council were removed from office by the April 14 election. That same date, Terrance L. Virden, United States Department of Interior Deputy Commissioner of Indian Affairs, stated that the BIA "continues to recognize Mr. Alex Walker, Jr. as the elected Chief of the Council and the other elected representatives to the Council as well."1 The Elected Tribal Council is not currently in control of the Tribe's gaming operation and continues to be excluded from the premises by the Appointed Tribal Council. The Appointed Tribal Council represents to the Court that the BIA is considering the Appointed Tribal Council's request to acknowledge the April 14 removal of the Elected Tribal Council.
On April 30, 2003, Philip N. Hogen, the Chairman of the NIGC issued Notice of Violation No. NOV-03-02 based on the following three violations:
(A) The federally recognized tribal government is being deprived of the sole propriety interest in and responsibility for the gaming operation in violation of 25 U.S.C. § 2710(b)(2)(A), 25 C.F.R. § 522.4(b)(1);
(B) the forcible occupation of the gaming operation and tribal offices by Respondent Bear's appointees leaves the federally recognized government unable to regain control without use of force, thereby creating a threat to public safety, thus violating the IGRA, NIGC's regulations, and the Tribe's ordinance which requires that a gaming facility be operated in a manner that does not threaten public safety in violation of 25 U.S.C. § 2710(b)(2)(E), 25 U.S.C. § 522.4(b)(7); and
(C) the forcible occupation of the gaming operation by Respondent Bear's appointees makes impossible the entrance and inspection of the operation by a tribal official who is authorized by the federally recognized tribal council in violation of 25 C.F. R. § 573.6(a)(9).
To correct the violations, the Notice of Violation required the Appointed Tribal Council to "[n]o later than 5:00 p.m., May 2, 2003, allow the federally recognized tribal government access to and control of the Tribe's gaming facility." Because the violations cited in the Notice of Violation were not cured, on May 13, 2003, the Chairman of the NIGC served Temporary Closure Order No. CO-03-02, ordering that the Tribe cease and desist from all gaming activity in the Meskwaki gaming facility. The order was effective immediately. To date, the Appointed Tribal Council has not ceased the Tribe's gaming activities.
Pursuant to federal regulations, the Temporary Closure Order was subject to informal expedited review by the Chairman of the NIGC if review was requested within seven days after service of the order. The order may also be appealed to the full Commission by submitting a notice of appeal within thirty days after service of the order. The only party to request review of the Temporary Closure Order is the Intervenors, who stated at the hearing that they had that morning filed their request.
On May 14, 2003, Homer Bear, Jr. and Renetta Plander, the acting general manager of the Meskwaki Bingo•Casino•Hotel,2 filed in Case No. C03-50-LRR, a Petition for Review of Agency Action (docket no. 1) and a Motion for Temporary Restraining Order or Stay of Administrative Action (docket no. 5), asking that this Court enter an order requiring that the United States refrain from enforcing or attempting to enforce the NIGC's Order of Temporary Closure. The United States has moved to dismiss this action (docket no. 11).
On May 16, 2003, the United States of America, for the National Indian Gaming Commission (the "United States"), filed in Case No. C03-52-LRR, a Complaint for Injunctive Relief (docke...
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