Yellow Bird v. Oglala Sioux Tribe of South Dakota

• Decision Date: 08 August 1974
• Docket Number: No. Civ. 74-5009.,Civ. 74-5009.
• Citation: 380 F. Supp. 438
• Parties: YELLOW BIRD v. OGLALA SIOUX TRIBE OF SOUTH DAKOTA et al. POURIER v. OGLALA SIOUX TRIBE OF SOUTH DAKOTA et al.
• Court: U.S. District Court — District of South Dakota

380 F. Supp. 438

YELLOW BIRD v. OGLALA SIOUX TRIBE OF SOUTH DAKOTA et al.

POURIER v. OGLALA SIOUX TRIBE OF SOUTH DAKOTA et al.

No. Civ. 74-5009.

United States District Court, D. South Dakota.

August 8, 1974.

William A. Wymann, Rapid City, S. D., Mario Gonzalez, Batesland, S. D., for plaintiffs.

Dennis H. Hill, Rapid City, S. D., for defendants.

MEMORANDUM OPINION

BOGUE, District Judge:

The plaintiffs in the above-entitled action, Harry Yellow Bird and Morton Pourier, have brought this action seeking to declare invalid and enjoin a portion of Article II of the Constitution of the Oglala Sioux Tribe as applied to plaintiffs, and Oglala Sioux Tribal Ordinance 85G.

In the complaint, the plaintiffs make the following factual allegations which are not controverted by the defendants: That pursuant to the Indian Reorganization Act of June 18, 1934, 25 U.S.C. § 461 et seq., the Oglala Sioux Tribe enacted a constitution and bylaws which were approved by the Department of Interior on December 11, 1935.

That Article II of the Oglala Sioux Tribal Constitution reads as follows:

ARTICLE II — MEMBERSHIP

Section I. The membership of the Oglala Sioux Tribe shall consist as follows:

a. All persons whose names appear on the official census roll of the Oglala Sioux Tribe of the Pine Ridge Reservation as of April 1, 1935, provided, that correction may be made in the said roll within five years from the adoption and approval of this constitution by the Tribal Council, subject to the approval of the Secretary of Interior.

b. All children born to any member of the tribe who is a resident of the reservation at the time of the birth of said children.

Section II. The Tribal Council shall propose bylaws covering future membership and the adoption of new members.

Both of the plaintiffs, in their complaint, allege that they sought to run in the Oglala Sioux primary election that was held on January 22, 1974, and that they followed the qualification procedures set forth in the Oglala Sioux Election Ordinance No. 85G, by submitting qualifying petitions with at least the minimum required number of names prior to the deadline for submission of such petitions. That both of the plaintiffs were disqualified from having their names placed on the primary election ballot, and also on the general election ballot, by the Oglala Sioux Tribal election board.

Both of the plaintiffs in this complaint contend that they should be treated as enrolled members of the Oglala Sioux Tribe under the provisions of Article II, section 1, of the Oglala Sioux Tribal Constitution, or under the provisions of the Oglala Sioux Tribal Council resolution 64-43. It does not appear from the complaint, however, that either of the plaintiffs have petitioned the Tribal Council for a determination of their tribal membership status.

The plaintiffs further contend that their classification as non-enrolled members in the Oglala Sioux Tribe, which status does not allow them to run for tribal office, is arbitrary and capricious and has no reasonable relationship to any legitimate purpose of the Oglala Sioux Tribe. The plaintiffs therefore pray that this Court assume jurisdiction of this case under 28 U.S.C. § 1343(4), issue a declaratory judgment finding that Article II of the Oglala Sioux Tribal Constitution and Oglala Sioux Election Ordinance 85G are on their face in violation of plaintiffs' civil rights under 25 U.S.C. § 1302, and invalidate the primary election that was held for the Pine Ridge and Wakpamni communities on January 22, 1974 for the position of councilman.

Before any determination can be made of the plaintiffs' claim, this Court must decide whether or not it has jurisdiction. The plaintiffs in their complaint contend that the District Court has jurisdiction to determine their claims under 28 U.S. C. § 1343(4) and 28 U.S.C. § 1331(a). However, before the plaintiffs may take advantage of either jurisdictional statute, it must be determined whether the equal protection clause in the Indian Civil Rights Act, 25 U.S.C. § 1302(8) extends to the type of injury alleged by the plaintiffs. This determination is not inconsistent with the Eighth Circuit Court of Appeals opinion in Luxon v. Rosebud Sioux Tribe of S. D., 455 F.2d 698 (1972), since the Court there stated:

"In our opinion, 28 U.S.C. § 1343(4) gives the district court jurisdiction to determine in a proper case, whether an Indian tribe has denied one of its members any of the rights given to the members under the Indian Bill of Rights. See, Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Reservation, 301 F.Supp. 85, 89 (D.Mont. 1969); Dodge v. Nakai, 298 F.Supp. 17, 25 (D.Ariz.1968)." (Emphasis added.)

The Eighth Circuit Court of Appeals, subsequent to its decision in Luxon v. Rosebud Sioux Tribe of S. D., has not defined the term "proper case" in regard to when a District Court should assume jurisdiction under the Indian Civil Rights Act. The Eighth Circuit, in various decisions, however, has determined that certain practices of an Indian tribe fall within the scope of the equal protection clause of the Indian Civil Rights Act. In the case of White Eagle v. One Feather, 478 F.2d 1311 (1973), the Court of Appeals held that the one-man, one-vote doctrine of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, applied to tribal elections. In determining whether this doctrine was within the scope and meaning of the equal protection clause of the Indian Civil Rights Act, 25 U.S.C. § 1302(8), the Court gave due regard to the cultural and ethnical background of the Indian tribes. 478 F.2d at 1312.

Such a determination is necessary in determining the scope of the equal protection clause of the Indian Civil Rights Act, since the legislative history of the Act indicates that the Anglo-Saxon definition of equal protection is not to be embraced in its entirety by the Indian Civil Rights Act. The Court of Appeals in the White Eagle case found that the tribe had adopted voting procedures which precisely parallel those commonly found in our culture, and in concluding that the District Court had jurisdiction stated:

"Here, then, we have no problem of forcing an alien culture, with strange procedures, on this tribe. What the plaintiffs seek is merely a fair compliance with the tribe's own voting procedures in accordance with the principles of Baker v. Carr, supra, and subsequent cases. The language of the equal

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