Stands Over Bull v. Bureau of Indian Affairs

• Decision Date: 06 December 1977
• Docket Number: No. CV-77-98-BLG.,CV-77-98-BLG.
• Citation: 442 F. Supp. 360
• Parties: Pat STANDS OVER BULL, Plaintiff, v. BUREAU OF INDIAN AFFAIRS, and its Area Director, James Canan, the Crow Tribe of Indians of Montana, the Crow Indian Tribal Council, and Forrest Horn, acting Chairman of the Crow Tribal Council, Defendants.
• Court: U.S. District Court — District of Montana

442 F. Supp. 360

Pat STANDS OVER BULL, Plaintiff, v. BUREAU OF INDIAN AFFAIRS, and its Area Director, James Canan, the Crow Tribe of Indians of Montana, the Crow Indian Tribal Council, and Forrest Horn, acting Chairman of the Crow Tribal Council, Defendants.

No. CV-77-98-BLG.

United States District Court, D. Montana, Billings Division.

December 6, 1977.

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Robert L. Stephens, Jr., Billings, Mont., for plaintiff.

Robert L. Zimmerman, Asst. U. S. Atty., Billings, Mont., for federal defendants.

Thomas J. Lynaugh and Thomas K. Schoppert, Lynaugh, Fitzgerald, Schoppert, Skaggs & Essman, Billings, Mont., for Crow Tribe of Indians, and other Indian defendants.

MEMORANDUM AND ORDER

BATTIN, District Judge.

Pat Stands Over Bull was removed as Tribal Chairman of the Crow Tribal Council at a regular meeting¹ which convened at Crow Agency, Montana, on July 9, 1977. Stands Over Bull, as an enrolled member of the Crow Tribe of Indians, was duly elected as chairman of the Crow Tribal Council for a term of two years, commencing on July 1, 1976. Following his removal, the plaintiff, Pat Stands Over Bull, filed this complaint on July 28, 1977. He seeks to invoke the equitable powers of this Court in order to gain his reinstatement, with back pay, as Tribal Chairman.

The defendant Indian Tribe and the defendant Crow Tribal Council and the Acting Chairman, have filed consolidated motions to dismiss. The federal defendants, the Bureau of Indian Affairs and its Area Director, James Canan, have filed a separate motion to dismiss. Additionally, the plaintiff has filed a motion to strike the affidavit of Bud Fritzler and certain exhibits attached thereto. All the motions have been briefed and have been submitted to the Court for decision. I find that the motion of the federal defendants to dismiss for want of subject matter jurisdiction should be granted and that the motion to strike and the motion for a judgment on the pleadings should be denied. I further find that the motion to dismiss of the Crow tribal defendants should be treated as a motion for summary judgment, the Court having considered matters outside the pleadings, and as such it should be granted. Rule 12(b) and Rule 56, F.R.Civ.P.

I. THE COMPLAINT

This is an action seeking a permanent injunction and a declaratory judgment. The plaintiff alleges that jurisdiction rests with this Court by virtue of 28 U.S.C. § 1343(4)² in that the suit is one to secure equitable and other relief under an Act of Congress providing for the protection of civil rights. The plaintiff claims that the rights he seeks to redress are rights guaranteed to him by the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302(8),³ and the Fourteenth Amendment to the United States Constitution.

The essence of plaintiff's complaint is that he was denied due process of law when he was removed as Tribal Chairman of the Crow Tribe of Indians. The allegations of the complaint may be summarized as follows:

1. The resolution calling for the plaintiff's impeachment, together with the thirteen articles of impeachment, operated to deny the plaintiff his "fundamental rights" under the Indian Civil Rights Act and the Fourteenth Amendment because:

a. The articles of impeachment failed to provide for the introduction of any sworn testimony or other legal or lawful evidence upon which an impeachment proceeding could be based;

b. The articles failed to allege any cause or grounds recognized under the Constitution or By-laws of the Crow Tribe, specifically Article V,⁴ for the removal of tribal officers;

c. The impeachment resolution purports to amend the Tribal By-laws and Constitution contrary to the requirements of Resolution No. 62-11⁵ by the inclusion and adoption of Paragraph XI⁶ of the impeachment resolution, the savings clause of that resolution.

2. The impeachment procedures were "unconstitutional" and violated the due process clause of the Indian Civil Rights Act by denying the plaintiff:

a. The right to proper and adequate notice of the allegations in the impeachment resolution;

b. The right to a reasonable time within which to respond to the allegations brought against him;

c. The right to prepare a defense and to obtain the effective assistance of counsel;

d. The right to be free of the "Kangaroo-Court" atmosphere within which the proceedings transpired.

3. The procedure which was followed during the course of the proceedings deprived the plaintiff of the opportunity to confront and cross-examine his accusers and further prevented the plaintiff from presenting any legal evidence or sworn testimony from non-members of the Crow Tribe of Indians;

4. The plaintiff was not afforded an impartial tribunal to hear evidence and rule on procedural questions as required by the Indian Civil Rights Act;

5. The controversy involved here is a political controversy concerning the impact of coal development on the Crow Tribe of Indians and does not relate to any wrongdoing or unlawful conduct allegedly perpetrated by the Chairman;

6. The impeachment of the plaintiff has thrown the Tribal government into a state of chaos and confusion, placing the self-determination and future of the Crow Tribe in jeopardy; and

7. The Bureau of Indian Affairs and its agents have wrongfully recognized the defendant Forrest Horn as Chairman of the Crow Tribal Council.

It is against these claims that any rights the plaintiff possesses must be measured.

II. JURISDICTION

A. Fourteenth Amendment Clause

This Court may not entertain claims made by an Indian person against an Indian tribal government when such claims are predicated on rights allegedly secured to the individual tribal member under the Fourteenth Amendment.⁷ It is axiomatic that

"In the Indian relationship with the tribe the Fourteenth Amendment provides no rights. It is directed at the states and an Indian tribe is not a state." Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Reservation, 301 F.Supp. 85, 88 (D.Mont. 1969).

The doctrine of internal controversies still operates to deprive federal courts of subject matter jurisdiction except in those areas specifically provided for in the Indian Civil Rights Act. Jacobson v. Forest County Potawatomi Community, et al., 389 F.Supp. 994, 995 (E.D.Wis.1974). The motions of the tribal defendants to dismiss are well taken with respect to the claims which are premised on the Fourteenth Amendment set forth in Counts VIII, IX, X, XII, and XV of the complaint.

B. Claims Against the Federal Defendants.

Neither does the Court have jurisdiction to entertain the claims made here against the federal defendants. It is well settled that the United States may not be sued without its consent. See, e. g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

Stating a cause of action under 25 U.S.C. § 1302(8) permits the invocation of federal jurisdiction under the provisions of 28 U.S.C. § 1343(4), regardless of the amount in controversy. Spotted Eagle v. Blackfeet Tribe, supra at 89. However, § 1302(8) does not permit claims against Federal defendants and confers no rights on tribal members against the United States. Instead, it applies only to self-governing Indian tribes. Cf. Jacobson v. Forest County Potawatomi Community, supra at 995. As the District Court in Jacobson, supra, noted:

"With respect to the federal defendants, there exists no statutory authority for this court to exercise judicial control in this matter. The principle that the United States, as sovereign, is immune from suit save as it consents to be sued, is not affected by the fact that the government has voluntarily undertaken a trustee relationship with respect to Indians. Citations omitted. Facts have not been alleged which, if proved, would show that the federal defendants have acted ultra vires or unconstitutionally." Jacobson v. Forest County Potawatomi Community, supra at 996.

There is no allegation that the federal officials named in this suit participated in any way in the removal proceedings against this plaintiff. As such, they cannot be sued by virtue of the protections afforded the plaintiff under § 1302(8). Dry Creek Lodge v. United States, 515 F.2d 926 (10th Cir. 1975). There is insufficient federal involvement extant here to find that the United States has waived sovereign immunity. See, Yellowtail v. Pat Stands Over Bull, CV-76-93-BLG (D.Mont.1977). There is no subject matter jurisdiction in this Court over the Bureau of Indian Affairs or James Canan, its Area Director. The federal defendants' motion to dismiss should thus be granted.

C. Jurisdiction Over the Tribal Defendants.

Title 28 U.S.C. § 1343(4)⁸ grants original jurisdiction to the federal district courts in civil rights actions wherein the plaintiff seeks equitable or monetary relief. Spotted Eagle v. Blackfeet Tribe, supra at 89. The Ninth Circuit has determined

". . . that the Indian Civil Rights Act provides a jurisdictional basis for the federal district court because the Act evidences a Congressional exception to the general policy of immunity of Indian tribes from suit." Johnson v. Lower Elwha Tribal Community, 484 F.2d 200, 202 (9th Cir. 1973).

The rationale of the cases reveals that the Indian Civil Rights Act creates a substantive body of rights, patterned in part on the Bill of Rights, to protect the individual Indian from the excesses of tribal authority.⁹ Johnson v. Lower Elwha Tribal Community, supra at 203. At the same time, however, it must be remembered that the Indian Civil Rights Act is not coextensive with the Bill of Rights or the Fourteenth Amendment. See, e. g., Howlett v. Salish and Kootenai Tribes of the Flathead Reservation, 529 F.2d 233, 237 (9th Cir. 1976); Wounded Head v. Tribal Council of the Oglala Sioux Tribe, 507 F.2d 1079, 1082 (8th Cir. 1975); Spotted Eagle v. Blackfeet Tribe, supra at 88. Suits under the Indian Civil Rights Act...