Thomas v. U.S.

• Court: U.S. District Court — Western District of Wisconsin
• Writing for the Court: Crabb
• Citation: Thomas v. U.S., 141 F.Supp.2d 1185 (W.D. Wis. 2001)
• Decision Date: 25 April 2001
• Docket Number: No. 96-C-828-C.,96-C-828-C.
• Parties: Sandra THOMAS, Tina Thomas, Robert E. Sander, and Estate of Michael Nalewaja, by his Personal Representative, Beverly Nalewaja, Plaintiffs, v. UNITED STATES; U.S. Department of Interior, Bureau of Indian Affairs; Gale A. Norton, Secretary of the Interior, in her official capacity; and M. Sharon Blackwell, Deputy Commissioner of the Bureau of Indian Affairs, in her official capacity, Defendants.

141 F.Supp.2d 1185

Sandra THOMAS, Tina Thomas, Robert E. Sander, and Estate of Michael Nalewaja, by his Personal Representative, Beverly Nalewaja, Plaintiffs, v. UNITED STATES; U.S. Department of Interior, Bureau of Indian Affairs; Gale A. Norton, Secretary of the Interior, in her official capacity; and M. Sharon Blackwell, Deputy Commissioner of the Bureau of Indian Affairs, in her official capacity, Defendants.

No. 96-C-828-C.

United States District Court, W.D. Wisconsin.

April 25, 2001.

Tracey Schwalbe, Duxstad, Vale, Bestful & Gartzke, New Glarus, WI, for Beverly Nalewaja, Michael Nalewaja, Robert E. Sander, Sandra Thomas, Tina Thomas.

Richard D. Humphrey, Assist. U.S. Atty., Madison, WI, for Bruce Babbitt, Sharon Blackwell, Eddie F. Brown, Bureau of Indian Affairs, Ada E. Deer, Kevin Gover, David J. Matheson, Gale A. Norton, U.S. Dept. of Interior, U.S.

Michael C. Hager, Larry Leventhal & Associates, Minneapolis, MN, for Eugene Begay, Donald E. Carley, Constance Corbine, Margaret Diamond, Gaiashkibos, Michael Isham, Jr., Alfred Trepania, Tribal Governing Bd. of LCO.

Larry B. Leventhal, Larry Leventhal & Assoc., Minneapolis, MN, for Lac Courte Oreilles Band of Lake.

OPINION AND ORDER

CRABB, District Judge.

This is a civil action for declaratory, injunctive and monetary relief that is before the court on remand from the Court of Appeals for the Seventh Circuit. Pursuant to 25 U.S.C. § 476(d)(2), plaintiffs are asking the court to declare approval of certain amendments to the Constitution of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians voted upon by the tribal membership in the Secretarial election sponsored by the United States Secretary of the Interior on February 1, 1992. In their original complaint, plaintiffs alleged four causes of action: 1) for declaratory and injunctive relief pursuant to 25 U.S.C. § 476(d)(2), requiring that the government defendants declare the 1992 amendments valid and enforceable; 2) for declaratory and injunctive relief pursuant to 5 U.S.C. § 706 for the Secretary's alleged arbitrary and capricious action; 3) for compensatory damages from former Assistant Secretary of the Interior for Indian Affairs Eddie Brown and former Deputy Commissioner of the Bureau of Indian Affairs David Matheson in their individual capacities for alleged violations of plaintiffs' constitutional rights; and 4) for compensatory damages for the government's alleged breach of its trust responsibility to the tribe.

In an order entered on October 14, 1997, I dismissed plaintiffs' third cause of action on the ground that the court lacked personal jurisdiction over former defendants Brown and Matheson in their individual capacities; plaintiffs did not appeal this decision. In the same order, I held that the tribal governing board was a necessary party to the litigation because the proposed amendments dealt with matters of fundamental importance to the tribe; the governing board might refuse again to enforce the amendments even if the Secretary approved the election results as a consequence of this suit; and the Bureau of Indian Affairs might be exposed to additional litigation over the same election if it approved the election results and the governing board sued for a reversal of the decision. In an order entered on March 27, 1998, I dismissed the entire case because I believed that the tribal governing board was an indispensable party to the litigation; it refused to join the suit voluntarily; and it could not be joined against its will because it was immune from suit. On appeal, this decision was reversed and the case was remanded. See Thomas v. United States, 189 F.3d 662 (7th Cir.1999). Proceedings in this court were stayed pending disposition of plaintiffs' request for a writ of certiorari from the United States Supreme Court, which was denied in October 2000. See Tribal Governing Board of Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Thomas, 531 U.S. 811, 121 S.Ct. 33, 148 L.Ed.2d 13 (2000). In an order entered January 8, 2001, I denied the motion to intervene filed by the tribal governing board of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and individual board members Gaiashkibos, Michael Isham, Jr., Donald E. Carley, Alfred Trepania, Margaret Diamond, Constance Corbine and Eugene Begay, individually and in their official capacities, concluding that the motion was untimely and that granting it would cause prejudice to plaintiffs as well as delay in the eventual resolution of the case. In that order, I allowed the proposed intervenors to submit briefs as amicus curiae in this case.

Presently before the court are the parties' renewed cross motions for summary judgment. Defendants have filed a motion to supplement their summary judgment materials; plaintiffs have filed supplemental materials as well. Both sides' supplemental submissions will be considered in deciding their cross motions for summary judgment. Plaintiffs' motion for summary judgment will be granted as to their claims that defendants violated the Indian Reorganization Act and Administrative Procedure Act by revoking prior approval of the amendments to LCO's tribal constitution beyond the 45 day limit provided by statute for review and by setting forth the requirement that the appropriate class of voters in Secretarial elections is the class that had voted to adopt LCO's tribal constitution in 1966. Defendants' motion for summary judgment will be granted as to plaintiffs' claim that the United States violated a trust responsibility for which it is liable for monetary damages.

The following undisputed facts are taken from the Joint Proposed Stipulated Facts and each side's proposed additional facts.

UNDISPUTED FACTS

A. The Parties

Plaintiff Sandra Thomas is an LCO member who lives within the LCO reservation. Thomas has 5/16 LCO blood. Plaintiff Tina Thomas is the daughter of plaintiff Sandra Thomas and Jerry Thomas (a non-Indian). She lives within the reservation and is listed on the ancillary roll; she has 5/32 LCO blood. Plaintiff Robert E. Sander is an LCO member and has less than ½ degree LCO blood; he lives outside the reservation. Michael Nalewaja, who is deceased, was an LCO member with ¼ LCO blood and lived outside the reservation. His estate is being represented in this case by his personal representative, Beverly Nalewaja. All plaintiffs reside in the Western District of Wisconsin.

Defendant Bureau of Indian Affairs is an executive agency of the United States Department of Interior and has authority to oversee relations between the United States and the various Indian tribes. Defendant Gale Norton is Secretary of the Department of the Interior; she is named in her official capacity. Defendant M. Sharon Blackwell is the Deputy Commissioner of the Bureau of Indian Affairs; she is named in her official capacity.

B. The Tribe's Organization and Membership

In 1966, the Lac Courte Oreilles Band of Lake Superior Chippewa Indians adopted the LCO Constitution under the Indian Reorganization Act. Several amendments have been made to the tribal constitution since its adoption, but as of 1992 it provided that LCO membership would consist of the following classes of individuals: (1) all persons of LCO blood who were listed on the tribe's 1940 census roll or were eligible to be included on that roll; (2) any lineal descendent of an LCO member who was born prior to 1966; and (3) persons who were born between November 2, 1966 and April 7, 1969 and had at least 1/8 LCO blood and persons who were born after April 7, 1969 who had at least ¼ LCO blood (and applied for membership under the tribal ordinance). As of February 1992, the LCO tribe had 4,378 members, of whom 3,659 were eligible to vote; 1,127 individuals were listed on the tribe's ancillary roll, which is a list of the children of LCO members who do not meet membership requirements.

Article IX of the LCO Constitution provides that

This Constitution and Bylaws may be amended by a majority vote of the qualified voters of the Band voting at an election called for that purpose by the Secretary of the Interior, provided at least 30 percent of those entitled to vote shall vote in such election. No amendment shall become effective until approved by the Secretary of the Interior.

It shall be the duty of the Secretary of the Interior to call an election on any proposed amendment upon request by majority vote of the Lac Courte Oreilles Governing Board or upon petition of at least 75 qualified voters of the Band.

The LCO Constitution defines "qualified voter" as "members of the Band eighteen (18) years of age or over."

C. The Proposed Amendments

In the late 1980s, some LCO members began to consider amending the tribal constitution to change the structure of tribal government and the standards for tribal membership. As vice-chairperson of the LCO Tribal Governing Board and then as chairperson of the Constitutional Revisions Committee, plaintiff Sandra Thomas held meetings of the tribal membership from 1988 to 1991 to discuss amending the constitution. The committee obtained the signatures of hundreds of tribal members on petitions for five proposed amendments. After two years of meetings, on September 17, 1991, plaintiff Sandra Thomas filed four of these petitions for amendments with the Bureau of Indian Affairs for approval; she served as the spokesperson for the petitions. These petitions were submitted by petition of qualified voters, not through the tribal governing board.

In a letter dated September 20, 1991, the Bureau of Indian Affairs Great Lakes Agency Superintendent wrote to Sandra Thomas acknowledging receipt of the petitions. No challenges were made to any of the signatures on the petitions within the 15 days they were available for examination by authorized voters of the tribe.

The Twin Cities Field Solicitor for the Department of the Interior held that two of the four petitions had signatures dating back to 1989...