Vizenor v. Babbitt

• Decision Date: 09 April 1996
• Docket Number: Civil No. 6-95-230,5-95-256.
• Citation: 927 F. Supp. 1193
• Parties: Erma J. VIZENOR, Joseph B. LaGarde, Larry Cloud-Morgan, John L. Sullivan, Raymond J. Bellecourt, Gary E. Blair, and Marvin J. Manypenny, individually, and as Enrollees of the White Earth Indian Reservation, and all other members of the White Earth Indian Reservation similarly situated, Plaintiffs, v. Bruce BABBITT, Secretary of the Interior; Ada Deer, Director, Bureau of Indian Affairs; and Denise Homer, Acting Director, Bureau of Indian Affairs, Minnesota Office, Defendants. Roxanne LaROSE and Kenneth L. Mitchell individually, and as Enrollees of the Leech Lake Indian Reservation, and all other members of the Leech Lake Indian Reservation similarly situated, Plaintiffs, v. Bruce BABBITT, Secretary of the Interior; Ada Deer, Director, Bureau of Indian Affairs; and Denise Homer, Acting Director, Bureau of Indian Affairs, Minnesota Office, Defendants.
• Court: U.S. District Court — District of Minnesota

927 F. Supp. 1193

Erma J. VIZENOR, Joseph B. LaGarde, Larry Cloud-Morgan, John L. Sullivan, Raymond J. Bellecourt, Gary E. Blair, and Marvin J. Manypenny, individually, and as Enrollees of the White Earth Indian Reservation, and all other members of the White Earth Indian Reservation similarly situated, Plaintiffs, v. Bruce BABBITT, Secretary of the Interior; Ada Deer, Director, Bureau of Indian Affairs; and Denise Homer, Acting Director, Bureau of Indian Affairs, Minnesota Office, Defendants.

Roxanne LaROSE and Kenneth L. Mitchell individually, and as Enrollees of the Leech Lake Indian Reservation, and all other members of the Leech Lake Indian Reservation similarly situated, Plaintiffs, v. Bruce BABBITT, Secretary of the Interior; Ada Deer, Director, Bureau of Indian Affairs; and Denise Homer, Acting Director, Bureau of Indian Affairs, Minnesota Office, Defendants.

Civil Nos. 6-95-230, 5-95-256.

United States District Court, D. Minnesota, Fifth and Sixth Divisions.

April 9, 1996.

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Zenas Baer, Zenas Baer & Associates, Hawley, Minnesota, Miles W. Lord, Miles W. Lord & Associates, Chanhassen, Minnesota, and Wayne Faris, Faris & Faris, Minneapolis, Minnesota, for Plaintiffs in Civ. No. 6-95-230.

Roxanne LaRose, pro se, Cass Lake, Minnesota, and Kenneth L. Mitchell, pro se, Cass Lake, Minnesota, for Plaintiffs in Civ. No. 5-95-256.

Robert M. Small, Assistant United States Attorney, Minneapolis, Minnesota, and Marcia Kimball, Office of the Field Solicitor, Department of the Interior, Fort Snelling, Minnesota, of counsel, for Defendants in both actions.

MEMORANDUM OPINION AND ORDER

KYLE, District Judge.

Introduction

Plaintiffs have filed two separate Complaints requesting that this Court order Defendants to appoint an independent trustee to oversee the operations of the White Earth and Leech Lake Bands of Chippewa Indians, with the authority to recapture all monies obtained unlawfully by members of their respective Reservation Business Committees, and the power to supervise the Bands' business matters and upcoming tribal elections. Defendants have filed Motions to Dismiss in both proceedings, on the grounds that: 1) this Court lacks subject matter jurisdiction, as Plaintiffs do not present a federal question; 2) Plaintiffs have failed to exhaust their tribal remedies; 3) Plaintiffs have failed to join indispensable parties; and 4) Plaintiffs have failed to state a claim upon which relief can be granted. While the above-captioned cases have not been consolidated, they present the same legal questions; the Court will address both cases in this opinion. For the reasons set forth below, Defendants' Motions will be granted in both cases and the Complaints will be dismissed without prejudice.

Background

I. White Earth Band

The White Earth Band of Chippewa Indians is governed by a Reservation Business Committee, also known as a Reservation Tribal Council, which is composed of a Tribal Chairman, Secretary/Treasurer, and three additional district committee members, each of whom is an agent of the Band. Vizenor Compl. ¶ 22. Tribal Council members are elected to four-year terms, and must be enrolled members of the tribe who reside on the White Earth Indian Reservation. Id. ¶ 23. Each of the individual Plaintiffs is a member of the Band. Id. ¶¶ 1-7.

Defendants are officials of the Department of the Interior, an agency of the United States, and Defendants Deer and Homer are officials of the Bureau of Indian Affairs ("BIA"), which is an agency under the direction of the Department of the Interior. Id. ¶¶ 8-10, 24-25. The Secretary of the Interior, Defendant Babbitt, has the authority to manage all Indian affairs and all matters arising out of Indian relations. 25 U.S.C. §§ 1a, 2 (1994).

In August 1995, a federal grand jury indicted three governing members of the White Earth Band's Reservation Business Committee: Darrell "Chip" Wadena, Tribal Chairman; Jerry Rawley, Secretary-Treasurer; and Rick Clark, District I Committeeman. Vizenor Compl. ¶ 26. The indictment alleges that Wadena, Rawley, and Clark conspired to steal and misappropriate tribal funds. Id. ¶¶ 26-43. The Complaint further alleges that Rawley and Clark perpetrated election fraud during the 1994 tribal elections to ensure that they would remain in office. Id. ¶¶ 51-54.

Plaintiffs allege that they are beneficiaries of the "trust responsibility" imposed upon the federal government, and that Defendants have a positive duty to protect their rights. Id. ¶¶ 62-63. Plaintiffs request that this Court appoint an independent trustee to oversee the operation of the Band pending the outcome of the criminal indictments, whose duties would include the recapture of all monies allegedly misappropriated by Wadena, Rawley, and Clark; the supervision of the tribal government and its business ventures; and the supervision of the upcoming tribal elections in June 1996. Id.

II. Leech Lake Band

The Leech Lake Band of Chippewa Indians is also governed by a Reservation Business Committee, composed of a Tribal Chairman, Secretary/Treasurer, and three additional district committee members, each of whom is an agent of the Band. LaRose Compl. ¶ 17. Members of this committee must be enrolled members of the tribe who reside on the Leech Lake Indian Reservation, and are elected to four-year terms of office. Id. ¶ 18. Each of the individual Plaintiffs is a member of the Leech Lake Band, id. ¶¶ 1-2, and the Defendants are the same as those enumerated in the Vizenor Complaint, id. ¶¶ 3-5.

The Complaint states that a grand jury recently indicted two current members of the Leech Lake Reservation Business Committee (also known as the Reservation Tribal Council) and the Band's legal counsel: Alfred "Tig" Pemberton, Chairperson; Daniel Brown, Secretary-Treasurer; and Harold "Skip" Finn, legal counsel. Id. ¶ 19. The twenty-six-count indictment alleges that Finn, Pemberton, and Brown conspired to commit and did commit criminal offenses against the United States, stole and misapplied tribal funds, laundered money, and defrauded the Leech Lake Band. Id. ¶¶ 20-107.

Plaintiffs request the same relief, with respect to the Leech Lake Band, as the Vizenor Plaintiffs, alleging that if Pemberton, Brown, and Finn are left "in charge," they will perpetrate fraud in the upcoming June 1996 elections. Id. ¶ 111. Plaintiffs also charge that, if Pemberton and Brown retain control over tribal funds and resources pending the outcome of their criminal indictments, they will continue to commit waste. Id. ¶ 112.

III. Defendants' Motion

Defendants have moved to dismiss the Complaints under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, and have put forth four separate grounds for dismissal: first, Defendants argue that the Court lacks subject matter jurisdiction over the Complaints, as no federal question is involved; second, Plaintiffs have failed to exhaust the remedies available to them under the Minnesota Chippewa Tribe Constitution before filing suit in federal court and Defendants contend that this failure merits dismissal; third, the Minnesota Chippewa Tribe and the Bands, through their governments, are indispensable to this case, and that this lawsuit cannot fairly proceed without them; and fourth, no "trust responsibility" is involved in this situation, so that the Complaints fail to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). See Defs.' Mem. in Supp. of Mot. to Dismiss 2.

Discussion

I. Standards on a Motion to Dismiss

On a motion to dismiss for failure to state a claim, the pleadings are construed in the light most favorable to the plaintiff, and the allegations in the complaint must be taken as true. Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 445 (8th Cir. 1995) (citing Ruge v. City of Bellevue, 892 F.2d 738, 739 (8th Cir.1989)); see also Ossman v. Diana Corp., 825 F.Supp. 870, 879-80 (D.Minn.1993) (and cases cited therein). This Court must resolve any ambiguities concerning the sufficiency of the claims in favor of Plaintiffs, and give them the benefit of "every reasonable inference" drawn from the "well-pleaded" facts and allegations in the Complaints. Ossman, 825 F.Supp. at 880 (quoting Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. 6, 83 S.Ct. 1461, 1465 n. 6, 10 L.Ed.2d 678 (1963)). Moreover, the Court may only dismiss counts of the Complaints if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. (quoting Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir.1982)).

However, if material outside of the pleadings is presented and not excluded by the Court on a 12(b)(6) motion, the motion shall be treated as one for summary judgment under Federal Rule of Civil Procedure 56. Fed.R.Civ.P. 12(b). In order to properly examine Defendants' claim that tribal remedies have not been exhausted, the Minnesota Chippewa Tribe Constitution must be examined. Both Complaints refer to the document, and rely on it as a primary, substantive source of their rights, although it is attached to neither. Defendants attached it as the sole exhibit to their Motion to Dismiss. "When plaintiff fails to introduce a pertinent document as part of his pleading, defendant may introduce the exhibit as part of his motion attacking the pleading." 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1327, at 762-63 (2d ed. 1990) (citing Sinclair Refining Co. v. Stevens, 123 F.2d 186, 189 (8th Cir.1941), cert. denied, 315 U.S. 804, 62 S.Ct. 632, 86 L.Ed. 1203 (1942)). See also Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), cert. denied, ___ U.S. ___, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n. 3 (1st Cir.1991). The Court will consider the tribal Constitution only in relation to Defendants' 12(b)(6) charge.¹ Moreover,...