Slattery v. Arapahoe Tribal Council, 583-70
| Citation | 453 F.2d 278 |
| Decision Date | 30 December 1971 |
| Docket Number | 584-70.,No. 583-70,583-70 |
| Parties | 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, Appellant, v. ARAPAHOE TRIBAL COUNCIL, also known as Arapahoe Business Council, and U. S. Secretary of the Interior, Walter J. Hickel, Appellees. Barbara M. PINNOW, for herself and as parent, natural guardian, and next of friend of Elmer Hans Pinnow, et al., Appellant, v. SHOSHONE TRIBAL COUNCIL, also known as Shoshone Business Council, and U. S. Secretary of the Interior, Walter J. Hickel, Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Ernest Wilkerson, Casper, Wyo., for appellants.
Marvin J. Sonosky, Washington, D. C., for appellee Shoshone Business Council.
Richard A. Baenen, Washington, D. C. (Glen A. Wilkinson, of Wilkinson, Cragun & Barker, and R. Anthony Rogers, Washington, D. C., of counsel, on the brief), for appellee Arapahoe Business Council.
Dirk D. Snel, Atty., Dept. of Justice (Shiro Kashiwa, Asst. Atty. Gen., Richard V. Thomas, U. S. Atty., and Jacques B. Gelin, Atty., Dept. of Justice, on the brief), for appellee Secretary of the Interior, Walter J. Hickel.
Before SETH, HOLLOWAY and McWILLIAMS, Circuit Judges.
The issue here to be resolved is whether the United States District Court for the District of Wyoming has jurisdiction to hear a controversy pertaining to certain tribal enrollment practices of the Arapahoe and Shoshone Tribes. The trial court held it did not have such jurisdiction. Pinnow v. Shoshone Tribal Council, D.C., 314 F.Supp. 1157 (1970). We agree that the trial court did not have jurisdiction to hear the particular controversy sought to be presented to the court.
Whether the trial court had jurisdiction over the subject matter of the two complaints here under consideration is to be determined from the facts alleged in the complaints, without regard to any conclusory allegations of jurisdiction. Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971). We shall first summarize the allegations in the Slattery complaint.
Sarah Jean Chamberlain Slattery instituted an action for herself and her two minor sons, Billy Byron, age 12 and Kenneth Kurt, age 10, and alleges that she is an enrolled member in the Arapahoe Tribe and resides on the Wind River Indian Reservation in Fremont County, Wyoming. The action is directed against the Arapahoe Tribal Council and the then Secretary of the Interior, Walter J. Hickel. The gist of the complaint is the conclusory allegation that the Council rejected "arbitrarily and without just cause" the applications made by Mrs. Slattery to enroll her two sons in violation of the so-called Indian Bill of Rights, 25 U.S.C. §§ 1301, 1302 and 1303.
From the complaint we learn that the Arapahoe tribal enrollment ordinance requires, inter alia, that in order to become an enrolled member of the tribe the application for enrollment, together with a birth certificate, be made within two years from the date of birth of the person sought to be enrolled and that the applicant possess at least one-quarter degree of Indian blood. From the four corners of the complaint we do not know the precise basis for rejection by the Council of the applications made on behalf of Billy Byron and Kenneth Kurt, though, as above indicated, there is conclusory allegation that the applications were rejected arbitrarily and without just cause. The relief prayed for was the issuance of a writ in the nature of mandamus directing and requiring the tribal council to "institute and implement fair, just, and legal Tribal ordinances, laws and rulings whereunder fair and impartial treatment shall be given to all * * *."
In response to the Slattery complaint the defendants filed a motion to dismiss and in support thereof filed certain affidavits. From the latter we learn that the application for tribal enrollment in behalf of Billy Byron was rejected because he did not meet the requirement that he possess one-quarter degree Indian blood, his mother possessing one-quarter degree Indian blood and his father possessing no Indian blood. And for the same reason Kenneth Kurt was also ineligible for tribal enrollment. There was no counter affidavit concerning the degree of Indian blood possessed by Billy Byron or Kenneth Kurt and the case is presented to us on the basis that both possess only one-eighth degree of Indian blood.
The Pinnow complaint parallels in all essentials the one filed by Slattery. Barbara Pinnow is an enrolled member of the Shoshone Tribe and resides on the reservation in Wyoming. She sought tribal enrollment for her eleven children and alleged that all such applications were rejected arbitrarily and without cause in violation of rights guaranteed by the Indian Bill of Rights. Again, from the complaint itself, we are not advised as to the reason why these applications were denied. However, from the affidavits attached to the defendants' motion to dismiss we are advised that each of the eleven applications was denied for two reasons: (1) None was filed within two years from the date of the applicant's birth as required by Shoshone tribal enrollment ordinances; and (2) none of the applicants possessed one-quarter degree Indian blood as also required by tribal ordinance, Mrs. Pinnow possessing one-quarter degree Shoshone blood and her husband, the father of the applicants, possessing no Indian blood. There are no counter affidavits challenging the basis upon which the Pinnow applications were denied.
The pleadings then disclose the following facts: (1) Both the Arapahoe and Shoshone Tribes have promulgated tribal enrollment ordinances approved by the Secretary of the Interior which require that one who would be an enrolled tribal member must, inter alia, possess one-quarter degree of Indian blood and the application for enrollment must be made within two years from the date of birth of the individual sought to be enrolled; (2) none of the children of Mrs. Slattery and Mrs. Pinnow possess one-quarter degree Indian blood and the applications...
To continue reading
Request your trial
-
Poodry v. Tonawanda Band of Seneca Indians
...federal jurisdiction is unavailable absent express congressional authority), aff'd on other grounds sub nom. Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir.1971); Luxon v. Rosebud Sioux Tribe of South Dakota, 337 F.Supp. 243 (D.S.D.1971) (same), rev'd per curiam, 455 F.2d 698 (......
-
Dry Creek Lodge, Inc. v. U.S.
...6 Our court has had this general question before it on three occasions, but has not reached the present issue. Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir. 1971) and Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971). It was held in Groundhog that there were insufficient jur......
-
McCurdy v. Steele
...§ 1302(8), have been denied. The present dispute is not controlled by the leading cases in this circuit of Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir. 1971), and Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971). In Slattery, 453 F.2d at 281, it was claimed that "tribal en......
-
Crowe v. Eastern Band of Cherokee Indians, Inc.
...controversy. Motah v. United States, 402 F.2d 1 (10 Cir. 1968); Pinnow v. Shoshone Tribal Council, D.C., 314 F.Supp. 1157, aff'd, 453 F.2d 278 (10 Cir. 1971). While the district judge recognized this quasi-immunity of an Indian tribe, he held that since the plaintiff was asserting rights gu......