Two Hawk v. Rosebud Sioux Tribe

• Decision Date: 15 September 1975
• Docket Number: No. CIV 75-3023.,CIV 75-3023.
• Citation: 404 F. Supp. 1327
• Parties: Webster TWO HAWK and Leo Cordier v. ROSEBUD SIOUX TRIBE et al.
• Court: U.S. District Court — District of South Dakota

404 F. Supp. 1327

Webster TWO HAWK and Leo Cordier v. ROSEBUD SIOUX TRIBE et al.

No. CIV 75-3023.

United States District Court, D. South Dakota.

September 15, 1975.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Terry L. Pechota, S. D. Legal Services, Anita Remerowski, Mission, S. D., for plaintiffs.

Mario Gonzalez, Martin, S. D., for defendants.

MEMORANDUM OPINION

BOGUE, District Judge.

Plaintiffs bring this action pursuant to 25 U.S.C. § 1302, the 1968 Indian Bill of Rights, seeking injunctive and declaratory relief preventing the defendants from disqualifying Plaintiff Webster Two Hawk as a candidate for President of the Rosebud Sioux Tribe. Plaintiff Webster Two Hawk claims that defendants have violated his constitutional rights of due process and equal protection of the law as guaranteed by 25 U.S.C. § 1302(8). Plaintiff Leo Cordier claims that he is an eligible voter for the office of Tribal President and the defendants' disqualification of Webster Two Hawk as a presidential candidate in violation of 25 U.S.C. § 1302(8) denies him the right to vote for the candidate of his choice. Thus, plaintiffs' complaint properly invokes the jurisdiction of this Court under 28 U.S.C. § 1343(4) and the Indian Civil Rights Act (25 U.S.C. §§ 1301-1303) against the tribe and governmental subdivisions thereof, but not against tribal members acting in their individual capacities. Spotted Eagle v. Blackfeet Tribe, 301 F.Supp. 85, 89-90 (D.Mont.1969). The plain language on the face of the statute that "no Indian tribe in exercising powers of self-government shall . ." engage in the prohibited conduct of paragraphs (1) through (8) makes it clear that Congress intended to constrain only actions of the tribe and tribal bodies. Therefore this Court has no jurisdiction over defendants named as individuals. Means v. Wilson, 383 F.Supp. 378 (D.S.D.1974); 25 U.S.C. § 1302(1)-(8). The remaining named defendants over which this Court has jurisdiction are the Rosebud Sioux Tribe; Robert Burnette, acting in his official capacity as President; the Tribal Election Board; and Alfred Left Hand Bull, Frank Bear Heels, Louis Leader Charge, Justin White Hat and Bernard Flood, acting in their official capacity as members of the Tribal Election Board.

The following factual framework is necessary to an understanding of the present controversy. On June 20, 1975, Plaintiff Two Hawk, who was then employed as a teacher at Vermillion, South Dakota, which is located some distance from the reservation, was selected by the Rosebud Sioux Tribal Council to fill the recently vacated council position of representative from the Horse Creek Community. On July 11, 1975, Plaintiff Two Hawk filed a nominating affidavit for his candidacy for President of the Rosebud Sioux Tribe. On July 30, 1975, Robert Burnette challenged the validity of Webster Two Hawk's candidacy on the grounds that Two Hawk did not in fact meet the requirements of residency. On August 12, 1975, the Tribal Election Board informed Plaintiff Two Hawk that he was disqualified as a presidential candidate. Plaintiffs filed this action on August 15, 1975.

The present controversy swirls around a single question: Does Webster Two Hawk meet the residency standard of candidacy required by Art. III, § 5 of the Constitution of the Rosebud Sioux Tribe and Section 2(3) of the Rosebud Sioux Tribal Election Ordinance R.B. 75-05? This question is for the Rosebud Sioux Tribe to decide without interference from this Court absent a showing that the Tribe, in deciding the question, violated the rights granted plaintiffs under the Indian Civil Rights Act.

In order to end confusion in this case among the parties and their attorneys some initial discussion of the relationship between the Rosebud Sioux Tribe, this Court, and the Indian Civil Rights Act is necessary.

In the well-written decision of Martinez v. Romney, 402 F.Supp. 5 (D.N.Mex.1975), the authorities collected and discussed there establish that "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory," Worchester v. Georgia, 6 Pet. 31 U.S. 515, 557, 8 L.Ed. 483 (1832), and tribal immunity is based on the sovereignty of the tribe, Worchester, supra, at 559; they are "a separate people" possessing "the power of regulating their internal and social relations . . ." United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886); McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 173, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975). This sovereign power, however, is subject to limitation by Congress and as a practical matter Indian tribes are sovereign only to the extent Congress has allowed them to remain so. Worchester v. Georgia, supra; Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965); Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971); Seneca Constitutional Rights v. George, 348 F.Supp. 51 (W.D.N.Y.1972); United States v. Blackfeet Tribe of Blackfeet Indian Reservation, 364 F. Supp. 192 (D.Mont.1973); Lohnes v. Cloud, 366 F.Supp. 619 (D.N.D.1973). Under the Indian Commerce Clause Congress has plenary authority over Indians. U.S.Const. Art. I, § 8, Means v. Wilson, 74-1841, 522 F.2d 833 (8th Cir. 1975). The United States Constitution and the amendments thereto do not limit the powers of tribal government. Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896); Wounded Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d 1079 (8th Cir. 1975); Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553 (8th Cir. 1958), cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959). In order to remedy this situation and give persons subject to tribal authority enforceable rights, Congress used its plenary authority to enact the Indian Civil Rights Act. Through enactment of the Indian Civil Rights Act, 25 U.S.C. § 1302, and to the extent of the limitations contained therein, Congress abrogated historical tribal immunity from suit. Daly v. United States, 483 F.2d 700, 705 (8th Cir. 1973); Luxon v. Rosebud Sioux Tribe, 455 F.2d 698, 700 (8th Cir. 1972) (per curiam). Jurisdiction over claims presented under the Indian Civil Rights Act is conferred upon the federal courts by 28 U.S.C. § 1343(4). Daly, supra; Luxon, supra; White Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973) (per curiam); Johnson v. Lower Elwha Tribal Community, 484 F.2d 200 (9th Cir. 1973); Means v. Wilson, 74-1841, 522 F.2d 833 (8th Cir. 1975).

The above principles of law as applied to this case simply mean that the Rosebud Sioux Tribe has the duty to decide, and is free to decide without outside interference, the question of whether Webster Two Hawk in fact meets the residency standard of candidacy required by Art. III § 5, of the Constitution of the Rosebud Sioux Tribe and Section 2(3) of the Rosebud Sioux Tribal Election Ordinance, R.B. 75-05. Tribal sovereignty, in light of the Indian Civil Rights Act, means that the Rosebud Sioux Tribe can make and enforce its decisions without regard to whether the Federal Courts consider those decisions wise. Martinez v. Romney, 5 F.Supp. 402 (D.N.Mex.1975). This Court has the power to intervene in the tribal self-governing process only when it is shown in a proper case that the tribe or a governmental subdivision thereof has violated one or more of the rights guaranteed by the Indian Civil Rights Act. Even in a proper case that invokes federal jurisdiction, this Court in Clark v. Land and Forestry Committee of Cheyenne River Sioux Tribual Council, D.C., 380 F.Supp. 201 (1974), and the Eighth Circuit Court of Appeals in O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140 (8th Cir. 1973), made it very clear that normally the plaintiff must make every effort to exhaust available administrative and judicial tribal remedies. This Court agrees with the Eighth Circuit Court of Appeals that:

A general exhaustion requirement in cases such as this will do much to strengthen tribal governments, including tribal courts, and, thereby aid the reservation Indian in maintaining a distinct cultural identity. O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1148 (8th Cir. 1973).

Thus, the general exhaustion requirement allows the tribe to complete, within the tribal system of government, an ongoing process of deciding an issue initially, and deciding that issue again on rehearing or on appeal, and allows the tribe to reach a final decision without premature intrusion by outside authority.

In the judgment of this Court, Plaintiff Two Hawk has now completely exhausted all tribal remedies available to him. On August 12, 1975, the Tribal Election Board provided Plaintiff Two Hawk with an opportunity to be heard. On August 12, 1975, the Election Board entered their written decision that Two Hawk did not meet the residency requirements and was therefore disqualified as a candidate. On August 14, 1975, Plaintiff Two Hawk filed suit in Rosebud Tribal Court. Tribal Judge Cecil Scott dismissed the action on the ground that the tribe cannot be sued in tribal court without its consent. Rosebud Revised Law and Order Code, ch. 2 § 2. Although the Rosebud Code provides in ch. 1, § 6 for a Court of Appeals and in ch. 1, § 6.1 for a right of appeal, in the judgment of this Court exhaustion of this tribal appellate remedy would be futile. Evidence was adduced before this Court that primarily due to lack of funds the Court of Appeals has not heard a case in fifteen years. At the hearing to determine plaintiff's request for a temporary restraining order before this Court on August 20, 1975, and after evidence was offered by both plaintiff and defendant, all parties agreed in writing that the Tribal Election Board would give Plaintiff...