Tillett v. Lujan

• Decision Date: 23 April 1991
• Docket Number: No. 90-6088,90-6088
• Citation: 931 F.2d 636
• Parties: Alinda TILLETT, Plaintiff-Appellant, v. Manuel LUJAN, Jr., as the United States Secretary of the Interior; Clem E. Cearley, Superintendent U.S. Bureau of Indian Affairs, Anadarko Agency; Walter Mills, Anadarko Area Director, U.S. Bureau of Indian Affairs; Phil Dupoint, also known as Joe Fish, alleged Vice Chairman of the Kiowa Tribe; Philip Lujan, Chief Magistrate of the Code of Federal Regulations BIA Court of Indian Offenses, for the Anadarko, Oklahoma Area, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 636

931 F.2d 636

Alinda TILLETT, Plaintiff-Appellant, v. Manuel LUJAN, Jr., as the United States Secretary of the

Interior; Clem E. Cearley, Superintendent U.S. Bureau of

Indian Affairs, Anadarko Agency; Walter Mills, Anadarko

Area Director, U.S. Bureau of Indian Affairs; Phil Dupoint,

also known as Joe Fish, alleged Vice Chairman of the Kiowa

Tribe; Philip Lujan, Chief Magistrate of the Code of

Federal Regulations BIA Court of Indian Offenses, for the

Anadarko, Oklahoma Area, Defendants-Appellees.

No. 90-6088.

United States Court of Appeals, Tenth Circuit.

April 23, 1991.

Alinda Tillett, pro se.

Richard B. Stewart, Asst. Atty. Gen., Timothy D. Leonard, U.S. Atty., M. Kent Anderson, Asst. U.S. Atty., Oklahoma City, Okl., Edward J. Shawaker and Dirk D. Snel, Attorneys, Dept. of Justice, Washington, D.C. (Alan Woodcock, Office of the Regional Solicitor, U.S. Dept. of the Interior, Tulsa, Okl., of counsel) for defendants-appellees.

Before LOGAN, MOORE, and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Alinda Tillett appeals the district court's grant of summary judgment to defendant federal officials and Kiowa Tribe members and dismissal of her action "to allow adjudication in the appropriate forum, the Court of Indian Offenses." Tillett v. Hodel, 730 F.Supp. 381, 384 (W.D.Okla.1990). We affirm. ¹

This action arose out of a suit commenced in the Court of Indian Offenses for the Anadarko Area by the Kiowa Business Committee (KBC) and the Kiowa Tribe of Oklahoma against Tillett and others, who are enrolled members of the tribe. Courts of Indian Offenses are established pursuant to regulations promulgated by the Bureau of Indian Affairs (BIA), 25 C.F.R. Secs. 11.1-11.32C, the purpose of which is "to provide adequate machinery of law enforcement for those Indian tribes in which traditional agencies for the enforcement of tribal law and custom have broken down for which no adequate substitute has been provided under Federal or State law," id. at Sec. 11.1(b). Because the courts are established and governed by regulations published in the Code of Federal Regulations, they are commonly referred to as "CFR courts." The regulations establishing CFR courts apply to the Anadarko Area Tribes in Western Oklahoma. Id. at Sec. 11.1(a)(19). CFR courts have jurisdiction over all civil suits "wherein the defendant is a member of the tribe or tribes within their jurisdiction, and [over] all other suits between members and nonmembers which are brought before the courts by stipulation of both parties." Id. at Sec. 11.22.

The KBC's complaint in the CFR court against Tillett alleged that she and other named individuals had been representing themselves as agents of the tribe and interfering with the daily business operations of the tribe. It sought a temporary restraining order (TRO) preventing the named individuals from continuing the alleged interference and misrepresentations. Phil R. Dupoint, a named defendant in the present action, signed and verified the complaint in his capacity as Vice-Chairman of the Kiowa Tribe of Oklahoma.

In response to the complaint and request for TRO, Tillett asserted that the plaintiffs had filed the action in retaliation for her having participated in various actions to recall the plaintiffs for violating the Kiowa Tribal Constitution. Tillett moved to dismiss the complaint on the grounds that the action was retaliatory and that the CFR court lacked jurisdiction over the action because it was not brought by the Kiowa Indian Tribe, but by individual members of the tribe who had been recalled and, therefore, did not represent the tribe in any official capacity.

Judge Philip Lujan, a judge for the CFR court in the Anadarko Area, entered a minute order granting the TRO as to Tillett and certain other defendants, who apparently appeared in court during the morning but left without being excused and failed to appear when the case was called. Tillett did not thereafter ask the CFR court to set aside the TRO. See Rule 2.54(c) of the Court Rules, Court of Indian Offenses, Anadarko Area Office Jurisdiction. I R. tab 28, ex. 6. Instead, she filed the present action in federal district court against various federal and tribal officials.

The federal district court granted summary judgment for defendants and dismissed the action to allow Tillett to bring her case in the Court of Tribal Offenses. On appeal Tillett raises several issues which we now address. First, she argues that any requirement that she submit to the jurisdiction of the CFR court because she is an Indian is a violation of her rights under: (1) the U.S. Constitution because all Kiowa, Comanche, and Arapahoe (KCA) Indians enjoy full U.S. citizenship; (2) the Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. Secs. 1301-1303; (3) the Constitution of the Kiowa Tribe; and (4) the rule of naturalization provided for in the Immigration and Nationality Act, 8 U.S.C. Sec. 1401(b). Second, Tillett complains that the TRO issued by the CFR court deprives her of various First Amendment, due process, and equal protection rights. Third, she challenges the rationality of the BIA's establishment of CFR courts. Fourth, Tillett argues that the members of the KBC were recalled at a meeting of Kiowa General Council members, refused to acknowledge the recall, filed suit against her in retaliation for her participation in the recall, and misused or embezzled tribal funds. Finally, she has requested that a three-judge court be convened to consider the constitutionality of the federal regulations and statutes recognizing and authorizing CFR courts.

Tillett alleges that the district court has jurisdiction over her complaint pursuant to the Administrative Procedure Act (APA), 5 U.S.C. Secs. 702-703; 28 U.S.C. Secs. 1331, 1391; and the ICRA, 25 U.S.C. Sec. 1302(8). Federal defendants argue that: (1) the CFR courts were created pursuant to a valid exercise of Congress' plenary power to legislate for Indian affairs and, therefore, are not unconstitutional; (2) Tillett has failed to exhaust her remedies in the CFR court; and (3) her complaint raised matters constituting internal tribal disputes over which the district court has no jurisdiction.

Tillett later filed a complaint in the CFR court against the members of the KBC and two non-Indians alleging misuse of tribal funds and failure to acknowledge the recall, and seeking a TRO and permanent injunction. Her allegations and documentation in support mirrored the allegations and documentation she pleaded in the federal district court concerning misuse of tribal funds and failure to acknowledge the recall. Tillett also moved to disqualify Judge Lujan. At a hearing on KBC's motion for a permanent injunction against Tillett, Judge Lujan entered a minute order continuing the hearing and passing to another judge Tillett's oral motion to consolidate the KBC's action against her with her action against the KBC.

We review the grant or denial of summary judgment de novo, applying the same standard as the district court under Fed.R.Civ.P. 56(c). Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990). "When applying this standard, we are to examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. However, the nonmoving party may not rest upon his pleadings; the party must set forth specific facts showing that there is a genuine issue for trial." Id. (citations omitted). Tillett argues on appeal that material issues of fact existed which precluded the court from ruling in favor of defendants, but she does not specify what those facts were, nor does our review of the record reveal any disputed material facts.

In response to Tillett's argument that CFR courts are invalid, the district court ruled that "the creation of the Courts of Indian Offenses is a valid exercise of the power of the Secretary of the Interior as delegated to him by the Congress which holds plenary power over Indian tribes." Tillett, 730 F.Supp. at 383. We agree with the district court's conclusion, as well as the rationale it recited in support of its conclusion. Id. at 382-83 (citing express and implicit congressional statutory recognition of Courts of Indian Offenses, as well as Supreme Court acknowledgement of important role of tribal courts); see also Colliflower v. Garland, 342 F.2d 369, 372-74, 378-79 (9th Cir.1965) (discussing the history and jurisdiction of Courts of Indian Offenses in general and the Court of Indian Offenses for the Fort Belknap Indian community in Montana in particular); Treaty between the United States of America and the Kiowa and Commanche Tribes of Indians Oct. 21, 1867, art. VI, 15 Stat. 581, 583 (providing, in part, that the "United States may pass such laws ... on all subjects connected with the government of the said Indians on said reservations, and the internal police thereof, as may be thought proper").

In response to Tillett's argument that the CFR court's exercise of jurisdiction over her was unconstitutional, the district court concluded that "as a matter of comity, federal courts should not entertain a challenge to the jurisdiction of a tribal court until tribal court remedies have been exhausted." Tillett, 730 F.Supp. at 384 (citations omitted). We agree with this conclusion, as well.

Designated CFR courts that have not been supplanted by independent tribal courts pursuant to the provisions of 25 C.F.R. Sec. 11.1(d) retain some characteristics of an agency of the federal government. See United States v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 383 (8th Cir.1987) ("The records of C.F.R. courts are agency records and belong to the United States."), cert. denied, 485 U.S. 935, 108 S.Ct. 1109, 99 L.Ed.2d 270 (1988); Colliflower, 342 F.2d at 378-79 ("[I]t is pure fiction to say that the Indian courts ... are not in part, at least, arms of the federal government."). In general, " '[w]e commit to...