Solomon v. LaRose

• Decision Date: 10 November 1971
• Docket Number: No. CV71-L-326.,CV71-L-326.
• Citation: 335 F. Supp. 715
• Parties: Cora SOLOMON et al., Plaintiffs, v. Louis LaROSE et al., Defendants.
• Court: U.S. District Court — District of Nebraska

335 F. Supp. 715

Cora SOLOMON et al., Plaintiffs, v. Louis LaROSE et al., Defendants.

No. CV71-L-326.

United States District Court, D. Nebraska.

November 10, 1971.

James M. Kelley, Kelley & Thorough, Lincoln, Neb., for plaintiffs.

Jeffre P. Cheuvront, Lincoln, Neb., and Neil McCluhan, Winnebago, Neb., for defendants.

MEMORANDUM REGARDING TEMPORARY INJUNCTION

URBOM, District Judge.

This action was commenced on October 22, 1971, by five members of the Winnebago Indian Tribe of Nebraska against the Tribal Council of the Winnebago Tribe of Nebraska and each member of the Council. The legal dispute concerns the October 5, 1971, Tribal Council election which resulted in the election of plaintiffs Solomon, Mallory and Cleveland to the Tribal Council. On October 10, 1971, they were sworn in as members of the Tribal Council by a representative of the Bureau of Indian Affairs, However, within two days following the election a petition had been circulated among members of the Winnebago Tribe. The petition, which was ultimately signed by 72 members of the Winnebago Tribe, challenged the election results because of certain alleged irregularities, specifically: (1) that persons under the influence of intoxicants were permitted to vote; (2) that elderly persons should have been assisted in their voting by two persons rather than just one; and (3) that the Sergeant at Arms permitted drunks into the voting place. On October 13, 1971, a reorganizational meeting was conducted by the Tribal Council, as it existed prior to the October 5 election, and the Tribal Council voted to deny the seating of Solomon, Cleveland and Mallory. The Tribal Council in effect invalidated the October 5 election and scheduled a new election for October 26, 1971. The plaintiffs LaRose and Snake, members of the Tribal Council, are also named as defendants. As to these plaintiffs, it is claimed that a second election would deprive them of the result of the October 5 election since they would be unable to form an intra-council election with the other plaintiffs. On October 22, 1971, this court issued a temporary restraining order to enjoin the Tribal Council from conducting a second election which had been set for October 26, 1971, and to enjoin the Tribal Council from seating plaintiffs Solomon, Cleveland and Mallory. Apparently, the second election was held on October 26, since the Tribal Council was not properly served with notice of the proceedings in this court until after the second election. Notwithstanding this second election, the Tribal Council has complied with this court's temporary restraining order to the extent that it prevents the Tribal Council's denying Solomon, Cleveland and Mallory their Tribal Council seats.

JURISDICTION

Perhaps the most troublesome issue before this court is whether the federal district court has subject matter jurisdiction to adjudicate a dispute existing between a member of an Indian tribe and his tribal government. The jurisdictional foundation presented to the court is 28 U.S.C. § 1343(4) and 28 U.S.C. § 1362. As to the latter statute, it is clear that it does not apply to actions brought by an individual Indian against the tribe. See Scholder v. United States, 298 F.Supp. 1282 (U.S.D.C.S. D.Cal.1969) and Quinault Tribe of Indians v. Gallagher, 368 F.2d 648 (C.A. 9th Cir. 1966).

Consequently, the determination of subject matter jurisdiction turns upon this court's interpretation of Section 1343(4)¹ in conjunction with Title II of the Civil Rights Act of 1968, 25 U.S.C. § 1301 et seq.,² referred to as the Indian Civil Rights Act. At present two district courts have held that § 1343(4) does provide a jurisdictional basis to protect the substantive rights guaranteed by the Indian Civil Rights Act, Dodge v. Nakai, 298 F.Supp. 26 (U.S.D. C.Ariz.1969) and Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Res., 301 F.Supp. 85, 89 (U.S.D.C.Mont. 1969), and one district court has held by implication that this section is insufficient to form a jurisdictional basis, Pinnow v. Shoshone Tribal Council, 314 F. Supp. 1157 (U.S.D.C.Wyo.1970).

Previous to enactment of the Indian Civil Rights Act, the federal courts invoked the doctrine of "internal controversy" to label their finding of no subject matter jurisdiction. This early judicial attitude is exemplified in Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (C.A. 8th Cir. 1967). In the Twin Cities case a suit was commenced by individual members of the Minnesota Chippewa Tribe against the Tribe to invalidate an Indian tribal election. One of the jurisdictional allegations by the plaintiffs rested upon the due process clause to the Fifth and Fourteenth Amendments. Judge Mehaffy, speaking for the court, in rejecting the claim of jurisdiction on this ground held:

". . . Lastly, plaintiffs assert that defendants' actions have deprived plaintiffs of rights guaranteed by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. This argument ignores one of the most basic tenets of American constitutional law. The guarantees of the Due Process Clause relate solely to action by a state government, Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70, 75 S.Ct. 614, 99 L.Ed. 897 (1955); Watkins v. Oaklawn Jockey Club, 183 F.2d 440 (8th Cir. 1950), and have no application to actions of Indian tribes, acting as such. See Barta v. Oglala Sioux Tribe of Pine Ridge Res., 259 F.2d 553 (8th Cir. 1958), cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959). Here, neither the State of Minnesota nor any other state acted in any wise to affect plaintiffs. All plaintiffs' complaints are directed toward the Minnesota Chippewa Tribe, a federal corporation, and the agents of the United States Department of the Interior."

Also see Martinez v. Southern Ute Tribe of Southern Ute Reservation, 249 F.2d 915 (C.A. 10th Cir. 1957) cert. denied 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed. 2d 1067 and Native American Church v. Navajo Tribal Council, 272 F.2d 131 (C. A. 10th Cir. 1959).

Until the passage of the Indian Civil Rights Act in 1968, only the United States Court of Appeals for the Ninth Circuit in Colliflower v. Garland, 342 F.2d 369 (C.A. 9th Cir. 1965) had held that the Bill of Rights of the United States Constitution imposed a limitation on the scope of action that a tribal government could take in respect to individual Indians. It is this court's opinion that it was the intent of Congress in enacting the Indian Civil Rights Act to create sui generis a body of substantive rights, patterned in part on the federal Bill of Rights, to extricate the individual Indian from the legal no man's land resulting from decisions like Twin Cities.³

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I cannot agree with the result reached by Judge Kerr in Pinnow for two reasons. First, all the federal cases cited for the proposition that subject matter jurisdiction did not exist, with the exception of Motah v. United States, 402 F.2d 1 (C.A. 10th Cir. 1968), were decided before the enacting of the Indian Civil Rights Act. The Motah case did not involve a dispute arising under that Act. Second, Congress in addition to providing a body of substantive rights, also created habeas corpus jurisdiction in the federal district courts by 25 U.S.C. § 1303 to enforce these rights. It does not follow that Congress intended § 1303 to be the exclusive jurisdictional basis for enforcement. Such a finding would render nugatory the rights secured by provisions (1), (5) and (8) of § 1302. The reason for Congress' enacting a habeas corpus remedial statute lies in the explicit wording of 28 U.S.C. § 2241(c) (1)-(5),⁴ which palpably indicates that tribal courts or councils would not be subject to jurisdiction. Therefore, Congress felt compelled to enact a special jurisdictional statute for habeas corpus relief in the federal courts.⁵

In contrast, there existed no need to provide a special jurisdictional statute to enforce provisions (1), (5) and (8) of § 1302, since a basis of jurisdiction was already present—28 U.S.C. § 1343(4).

It is the conclusion of this court that subject matter jurisdiction exists by virtue of allegations within the scope of 25 U.S.C. § 1302(8) and it is properly enforceable through 28 U.S.C. § 1343(4).

BASIS FOR TEMPORARY INJUNCTION

Judge Bazelon in Perry v. Perry, 88 U.S.App.D.C. 337, 190 F.2d 601 (1951) succinctly enumerates the relevant considerations which bear upon the issuance of a temporary injunction:

". . . When a motion for preliminary injunction is presented to a court in advance of hearing on the merits, it is called upon to exercise its discretion `upon the basis of a series of estimates: the relative importance of the rights asserted and the acts sought to be enjoined, the irreparable nature of the injury allegedly flowing from denial of preliminary relief, the probability of the ultimate success or failure of the suit, the balancing of damage and convenience generally. A mere listing of the guiding considerations demonstrates their intangible nature, especially when no attempt is made at this stage to decide finally the questions raised.'"

A. The Rights Asserted and Acts Enjoined.

The Winnebago Indian Tribe operates pursuant to Article VI of the tribal constitution which prescribes the removal power of the tribal council⁶ and in Article II of the bylaws of the tribe which prescribe the qualification of officers of the tribal council.⁷ In essence the plaintiffs Solomon, Cleveland and Mallory seek to enjoin what they allege to be illegal acts of exclusion under the Winnebago Constitution. The right asserted by these plaintiffs is a right to fundamental due process in its most basic sense.⁸ Both the right asserted and the acts sought to be enjoined clearly balance in favor of these three plaintiffs.

B. Irreparable Nature of the Injury.

The denial⁹ of these plaintiffs of their seats on the Tribal...