Petition — Wilson v. Means

auc On &

{

MICHABL RODAK, JR., CLERK

aR AE EET IEEE EER Dt TE ILE LS,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No. 75°-65 -

Dick WILSON, et al,

Petitioners,

Vv.

RUSSELL MEANS, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

RICHARD SCHIFTER

JAY R. KRAEMER

Suite 1000

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

DENNIS H. HILL

704 St. Joseph Street

200 Security Building

P.O. Box 290

Rapid City, South Dakota

57701

November 3, 1975 Counsel for Petitioners.

Washington, D.C. + THIEL PRESS + (202) 638.4521

(1)

Page

TABLE OF CONTENTS

Ge PPP TT TITTLE UL CCT l

DEE oh oer e sche reer eseeroeseeesecs 2

GP SSD WUMU EEE c cc ccc cc eccesececeeeseess 2

STATUTORY PROVISIONS INVOLVED .............. 2

STATEMENT OF THE CASE ..... cc ccccccccccccces 3

REASONS FOR GRANTING THE WRIT

I. The Decision Below Raised Important and Contin-

uing Problems Relating to Abuse in the Invocation

OS Ge Wes Gs SE 6 Ke eee cdeescscecsses 5

Il. The Decision Below Conflicts With Statements of

Another Court of Appeals and with a Decision of

this Court as to the Proper Interpretation of 42

Cee GOR, SHEEP cc ces oct eccaceseesncses 11

GUE we cee sc eeeeerececosceneceseeeees 15

APPENDIX A — Opinion and Judgment of Court of

| PPT Tree TTT ETT la

APPENDIX B — Opinion and Judgment of District

Court for the District of South Dakota, West-

GU TD ccc eee ese cececcceeeceseseoes lb

TABLE OF AUTHORITIES

Cases:

Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) ...... 9-10

Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973),

cert. denied, 415 U.S. 984 (1974) ............... 8, 9

Arnold v. Tiffany, 359 F. Supp. 1034 (C.D. Cal. 1973)..... 8

Azar v. Conley, 456 F.2d 1386 (6th Cir. 1972).......... 6

Baker v. Stuart Broadcasting Company, 505 F.2d 181

See Gs OE 6 © ceecceens rrr rrerrrirT es 10, 12

Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th

Se SE 6 oh 0660 bbs Oe 0 oee onsets eee eeeenss 9

(#)

Cases, continued: Page

Bellamy v. Mason’s Stores, Inc., 368 F. Supp. 1025

See TU BONE Gos Seseceaceseronseeseceseee 12

Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert.

Gomi, GO GB GE CRS vc ccc ccesccacsece 11, 12

Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973)....... 6, 11

Collins v. Hardyman, 341 U.S. 651 (1950) .......... 13, 14

Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.

GEPED coc cacceeretceseeseecccuasvesceced 9, 10

Glasson v. City of Louisville, 518 F.2d 899 (6th Cir.

_, BPPPUTTEPTETECTITPTTLELEr LLL. 6

Griffin v. Breckenridge, 403 U.S. 88 (1971)

seueeeesnnens 5, 6, 7, 10, 12, 13, 14

Hahn v. Sargent, 388 F. Supp. 445 (D. Mass. 1975) ...... 12

Harrison v. Brooks, 446 F.2d 404 (Ist Cir. 1971)......... 6

Hughes v. Ranger Fuel Corp., 467 F.2d 6 (4th Cir.

POST TT TT TTT EET CLIT rere 9

Jacobs v. Industrial Foundation of the Permian Basin,

— ge f— fF |. Serre rerrrerecre 8

Westberry v. Gilman Paper Co., 507 F.2d 206 (5th

GR. FUE cease ce caheceenecstnesscoceeeees 7, 10

Statutes:

BD Wes NED BOS ccc ccc ceesdcceveseeeueeses 3

Bp Wes BOE co ccc cc cccusedncneeseoens 3, 4

> Cs UD BU scene ccccecceseeces eeeeess 3

ee Weuets ENED DEED cc cccececeesennceeesoces 2

ee ND EOE cue ccceescecceensenaccecens 3

Ge We. SOO TEED op ccc cs cccccseteseseees passim

Ge Wee ND TD voc bb ceedes cae desscsecoucs 3

Ge UBA. SOCMGR BUGS cc cc ccc cc ccccscscesceceees 3

(11)

Miscellaneous: _

Friedman, “‘The Motion Picture Rating System of 1968:

A Constitutional Analysis of Self-Regulation by the

Film Industry,” 73 Col. L. Rev. 185 .............. 12

“Note, Federal Civil Remedy Encompassing Private

Conduct in Civil Rights Violence,’”’ 46 Tulane L.

EY © O66 6806645 60606 O OU CERO C HOO Sec eee 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

Dick WILSON, et al.,

Petitioners,

VU.

RUSSELL MEANS, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioners, Richard “Dick” Wilson, Glenn Three

Stars, and Bennie “‘Tote”’ Richards respectfully pray that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Eighth Circuit entered in this proceeding on August 5,

1975.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears as Appendix A hereto. The opinion rendered by

the District Court for the District of South Dakota,

Western Division, reported at 383 F. Supp. 378 (D.S.D.

1974), appears as Appendix B hereto.

l

2

JURISDICTION

The judgment of the Court of Appeals for the Eighth

Circuit was entered on August 5, 1975. This petition for

certiorari was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. Sec.

1254(1).

QUESTION PRESENTED

Whether supporters of a candidate for political office

form a class which is sufficiently discrete so that

allegations of harassment of such supporters, not other-

wise specifically identified, by opponents of the candi-

date, state a claim upon which relief can be granted

pursuant to 42 U.S.C. Sec. 1985(3).

STATUTORY PROVISIONS INVOLVED

United States Code, Title 42:

Sec. 1985(3) Depriving persons of rights or privi-

leges ...

If two or more persons in any State or Territory

conspire or go in disguise on the highway or on the

premises of another, for the purpose of depriving,

either directly or indirectly, any person or class of

persons of the equal protection of the laws, or of

equal privileges and immunities under the laws; or

for the purpose of preventing or hindering the

constituted authorities of any State or Territory

from giving or securing to all persons within such

State or Territory the equal protection of the laws;

or if two or more persons conspire to prevent by

force, intimidation, or threat, any citizen who is

lawfully entitled to vote, from giving his support or

advocacy in a legal manner, toward or in favor of

the election of any lawfully qualified person as an

3

elector for President or Vice President, or as a

Meinber of Congress of the United States; or to

injure any citizen in person or property on account

of such support or advocacy; in any case of

conspiracy set forth in this section, if one or more

persons engaged therein do, or cause to be done, any

act in furtherance of the object of such conspiracy,

whereby another is injured in his person or prop-

erty, or deprived of having and exercising any right

or privilege of a citizen of the United States, the

party so injured or deprived may have an action for

the recovery of damages, occasioned by such injury

or deprivation, against any one or more of the

conspirators.

STATEMENT OF THE CASE

This action was initially brought by respondents, an

unsuccessful candidate for the presidency of the Tribal

Council of the Oglala Sioux Tribe of South Dakota and

twenty-seven of his supporters, invoking the jurisdiction

of the District Court under 25 U.S.C. Sections

1301-1303, 28 U.S.C. Section 1343, and 42 U.S.C.

Sections 1985(3), 1986 and 1988. All the respondents

are members of the Oglala Sioux Tribe of Indians.

Petitioners are Richard “Dick’’ Wilson, the current

President of the Tribal Council of the Oglala Sioux Tribe,

and Glenn Three Stars and Bennie “‘Tote”’ Richards, two

other members of the Tribe.

The dispute leading to the civil action arose during the

Tribal General Election campaign of January and Febru-

ary, 1974 between respondent Means and petitioner

Wilson, which culminated in Wilson’s reelection on

February 7, 1974. The amended complaint alleged that

petitioners, other named defendants, and others not

named in the complaint conspired to commit election

4

irregularities and to intimidate opponents of President

Wilson.

The District Court dismissed the respondents’ com-

plaint for failure to state a claim on which relief could be

granted. That Court also stated that it lacked jurisdiction

over the subject matter.

The Court of Appeals affirmed in large part but

reversed on two grounds, on one of them unanimously

and on another by a divided court. The issue on which

the court divided and which is the only issue raised in this

petition was put by the majority in the following words:

The complaint states that defendants conspired and

did overt acts in furtherance of a conspiracy to

deprive plaintiffs of their right to vote because they

were supporters of plaintiff Means and members of

the American Indian Movement.

* * * * *

The group of Plaintiffs in this case, by their

affirmative acts of supporting plaintiff Means and

the American Indian Movement and attempting to

oust Wilson as their Council President, were a class

against whom, according to the allegations of their

complaint, the defendants discriminated because of

their class membership. This brings their complaint

within the ambit of 42 U.S.C. Sec. 1985(3).

[Footnote omitted.] [Appendix A, pp. 8a-10a.]

The Court of Appeals also found that a claim had been

stated, under the Indian Civil Rights Act, 25 U.S.C. Sec.

1302, against the Tribal Elections Board for allegedly

deliberately failing to provide proper instructions to

other election officials with the intent to insure the

success of other alleged illegal activities carried out by

Wilson and his supporters. Review of that latter portion

of the Court of Appeals decision is not sought by

petitioners.

5

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW RAISES IMPORTANT AND CON.-

TINUING PROBLEMS RELATING TO ABUSE IN THE

INVOCATION OF 42 U.S.C. SEC. 1985(3).

The Eighth Circuit’s opinion in this case reflects one

possible resolution of the crucial questions left unan-

swered by the Supreme Court in Griffin v. Breckenridge,

403 U.S. 88 (1971) concerning the scope of 42 U.S.C.

Sec. 1985(3). The statutory provision, the construction

of which is in issue herein, formed a portion of the Civil

Rights Act of 1871. In Griffin, this Court made clear that

the statute prohibited certain private conspiracies as well

as those involving state action or participation. However,

this Court took some pains to point out that not every

tortious conspiratorial interference with the rights of

others gave rise to a cause of action under Sec. 1985(3).

The Court said of that provision:

The language requiring intent to deprive of equal

protection or equal privileges and immunities, means

that there must be some racial, or perhaps otherwise

class-based, invidiously discriminatory animus be-

hind the conspirators’ action.®

*We need not decide, given the facts of this case,

whether a conspiracy motivated by invidiously

discriminatory intent other than racial bias would

be actionable under the portion of Sec. 1985(3)

before us. ...

Griffin v. Breckenridge, supra, 403 U.S. at 102.

The Court concluded its Griffin opinion by pointing out

that, since the factual situation alleged therein was so

near the “core” of Sec. 1985(3), that is, discrimination

against Black persons because of their race, no aitempt

6

had been made in the decision to illuminate the outer

boundaries of the provision’s scope.

In its ruling in this case, the majority cited as support

the holding of the Sixth Circuit in Cameron v. Brock, 473

F.2d 608, 610 (6th Cir. 1973) that “Sec. 1985(3)’s

protection reaches clearly defined classes, such as sup-

porters of a political candidate.” Cameron involved

alleged violations of the plaintiff’s rights by a sheriff and

his deputies when the plaintiff attempted to distribute

pamphlets supporting the sheriff’s election opponent.

Similarly, the Sixth Circuit has also found that a

conspiracy motivated by an invidiously discriminatory

animus directed at persons carrying signs critical of the

President would give rise to a cause of action under Sec.

1985(3). Glasson v. City of Louisville, 518 F.2d 899 (6th

Cir. 1975). The Sixth Circuit also apparently concluded,

without specific discussion of the issue of the class

agaist which the requisite discriminatory animus was

directed, that a family could constitute a sufficient class.

Azar v. Conley, 456 F.2d 1386 (6th Cir. 1972). In Azar

there was no racial animus alleged; apparently the

defendants there were simply alleged not to like plaintiffs

and to have conspired to harass them.!

The dissenter below, Judge Webster, was not prepared

to go along with the rulings of the Sixth Circuit:

I cannot agree that supporters of a particular

candidate form a sufficiently discrete class upon

which to predicate federal jurisdiction under 42

U.S.C. Sec. 1985(3). Race is not involved in this

\Similarly, a family was the class allegedly discriminated

against in Harrison v. Brooks, 446 F.2d 404 (Ist Cir. 1971).

However, the court in Harrison did not discuss an invidiously

discriminatory animus and did not cite Griffin v. Breckenridge,

which had been handed down only a few weeks before.

7

contest; Indian supporters of one group of political

candidates bring this action against Indian sup-

porters of another. The holding in Part II of the

majority opinion permits a non-insular, mutable,

amorphous group to satisfy the alternative require-

ment in Griffin v. Breckenridge, 403 U.S. 88, 102

(1971), that “‘there must be some racial, or perhaps

otherwise class-based, invidiously discriminatory

animus behind the conspirators’ action.”” (Emphasis

added.)

Taken to its local extension this holding grants

federal jurisdiction to any group of supporters of a

local candidate who claim they were purposefully

victimized by their opponents in state or local

elections. Thus is introduced in our system a

“general federal tort law” feared by Justice Stewart,

author of Griffin, 403 U.S. at 102. [Appendix A,

p- 15a.]

One of the best indicators of the difficulty which most

of the Courts of Appeals are having with the issue of Sec.

1985(3)’s scope is the lengths to which they have gone to

avoid rendering an opinion on it. For example, in

interpreting the class-based discriminatory test of Griffin,

a majority of a panel of the Fifth Circuit held:

There need not necessarily be an organizational

structure of adherents, but there must exist an

identifiable body with which the particular plaintiff

associated himself by some affirmative act. It need

not be an oath of fealty; it need not be an initiation

rite; but at least it must have an intellectual nexus

which has somehow been communicated to, among

and by the members of the group. Westberry v.

Gilman Paper Co., 507 F.2d 206, 215 (5th Cir.

1975).

8

But when the court reheard the case, this time sitting en

banc, the three-judge panel opinion was withdrawn “so

that it [would] spawn no legal precedents” and the cause

was found to be moot. /d., 507 F.2d at 216. The only

logical explanation for this action on the part of the Fifth

Circuit, particularly in light of the fact that the dissenter

on the original panel objected to the panel majority’s

opinion on the single ground that it turned 42 U.S.C. Sec.

1985(3) into a “general federal tort law,” is that there

was a deep division within that Court as to the statute’s

scope. Had the majority of the court been willing to

accept the panel majority’s conclusion on the statute’s

scope, the case could merely have been remanded with

directions to dismiss it as moot but without withdrawing

the original opinion and without specifically expressing

the intent that no precedent spring therefrom. See also

Jacobs v. Industrial Foundation of the Permian Basin,

456 F.2d 259 (5th Cir. 1972) in which the Fifth Circuit

also circumvented the “class” issue.

A somewhat similar attempt to avoid dealing with the

issue of what constitutes a proper class for Sec. 1985(3)

purposes appears in Arnold v. Tiffany, 487 F.2d 216 (9th

Cir. 1973), cert. denied, 415 U.S. 984 (1974). There, the

District Court had dismissed the plaintiffs’ complaint,

holding that Griffin’s use of the phrase “class-based,

invidiously discriminatory animus” had reference only

“to that kind of irrational and odious class discrimination

akin to racial bias—such as discrimination based on

national origin or religion.”” Arnold v. Tiffany, 359

F. Supp. 1034, 1036 (C.D. Cal. 1973). The class allegedly

discriminated against in Arnold was the Los Angeles

Times newspaper dealers. The Court of Appeals affirmed

the District Court’s dismissal, but on the ground that the

Arnold plaintiffs had not alleged injury because of their

9

mere membership in the class alleged (newspaper dealers),

“...but because of their activities in attempting to

maintain a dealer association.’’ Arnold, supra, 487 F.2d

at 218. Having found that the plaintiffs in Arnold had, in

effect, alleged that they were harassed for what they did

rather than what they were, the Court of Appeals

declined to reach the “‘class’’ question which the District

Court had found determinative. Likewise, in Hughes v.

Ranger Fuel Corp., 467 F.2d 6 (4th Cir. 1972), the

Fourth Circuit disposed of an action under Sec. 1985(3)

concluding that plaintiffs had failed to allege that they

were discriminated against due to their membership in a

class (in this case, environmentalists), but rather that the

assault complained of seemed more to spring from what

they did, i.e. taking photographs of defendants violating

the Refuse Act. The Court of Appeals rendered no

opinion as to whether environmentalists were a “class”

for Sec. 1985(3) purposes.

The Fourth Circuit appears to have had a continuing

difficulty with this “‘class’’ problem. In Bellamy ov.

Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974), the

District Court had found that the class composed of

members of the Ku Klux Klan did not meet the “class”

requirements of Sec. 1985(3), but dismissed the com-

plaint on the alternative ground that a non-racially

motivated and purely private conspiracy could not give

rise to a Sec. 1985(3) action. The Fourth Circuit agreed,

stating that at least some “state involvement” was

necessary when a claim under Sec. 1985(3) was not

premised upon the Congress’s power to legislate in

support of the Thirteenth Amendment. In taking that

viewpoint, the Fourth Circuit agreed with the principles

stated in Dombrowski v. Dowling, 459 F.2d 190, 196

(7th Cir. 1972), but disagreed with the holding in Action

10

v. Gannon, 450 F.2d 1227 (8th Cir. 1971) concerning the

necessity of “state action” or “state involvement” where

the class allegedly discriminated against was other than

Black persons. As the original panel indicated in West-

berry, supra, 507 F.2d at 210, “There is no precedential

lighthouse pointing us to a constitutional mooring in this

case.”

Even the Eighth Circuit, prior to ruling in the instant

case, has shown its hesitancy to confront the “‘class”’ issne

head on. In Baker v. Stuart Broadcasting Company, 505

F.2d 181 (8th Cir. 1974), the plaintiff had alleged a

private conspiracy not to hire her because of her sex. The

District Court ruled that Sec. 1985(3) did not reach

beyond racially motivated conspiracies, a position in

accord with the law review commentators. See “Note,

Federal Civil Remedy Encompassing Private Conduct in

Civil Rights Violence,” 46 Tulane L. Rev. 822 (1971).

The Eighth Circuit avoided the issue by holding that no

conspiracy could exist between a corporation and its

officers since only one “person’”’ was involved. Accord,

Dombrowski v. Dowling, supra.

Thus if this Court were to make clear whether Sec.

1985(3) has its ‘‘constitutional mooring” in the Four-

teenth Amendment as well as the Thirteenth, something

it specifically declined to do in Griffin, 403 U.S. at 107,

it would do muck to aid the various Circuits in dealing

with Sec. 1985(3) complaints. But in the absence of

rulings from this Court on both that issue and on what

“classes’”’ Sec. 1985(3) is intended to protect, the issue

presented here, the lower courts are doubly hampered.

11

THE DECISION BELOW CONFLICTS WITH STATE-

MENTS OF ANOTHER COURT OF APPEALS AND WITH

A DECISION OF THIS COURT AS TO THE PROPER

INTERPRETATION OF 42 U.S.C. SEC. 1985(3).

The majority opinion below, over the dissent of Judge

Webster, brings the Eighth Circuit inte accord with the

Sixth Circuit concerning the types of classes the members

and advocates of which are protected by Sec. 1985(3).

Cameron v. Brock, supra. Although none of the other

Courts of Appeals have yet specifically held that the

supporters of a political candidate are not a class

protected by Sec. 1985(3), there is good reason to believe

that at least the First Circuit would so hold if given the

opportunity.

In Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972),

cert. denied, 470 U.S. 930 (1973), the plaintiff would

have alleged, had he been permitted to amend his

complaint, that he was a member of a class of physicians

who had been discriminated against because of their

testimony in malpractice cases. The First Circuit held

that this additional allegation would not have helped the

complaint withstand dismissal since the existence of the

class was not supported by factual allegations. In the

supporting language of its decision, the Court noted:

In the instant case, however, appellant has done no

more than flatly assert his membership in a novel

class which is neither readily recognizable nor

among those traditionally protected by the Cwvil

Rights Act. (Emphasis supplied) /d., 468 F.2d at

1233.

The language is significant because it implies that only

those types of classes described by the First Circuit are

considered by it to qualify for protection under Sec.

12

1985(3). Quite obviously, the supporters of a candidate

for public office do not constitute a class “traditionally

protected” by the Civil Rights Act, nor are such

supporters so immutably attached to their candidate as to

constitute a “readily recognizable”’ class.

It was with the teachings of Bricker in mind that it was

held that a plaintiff, who was the former Republican

Party State Chairman of Massachusetts and who alleged

that he was chosen for harm by the defendants because

of his “militant republicanism,” had not made the

necessary allegation of class-based invidiously discrimina-

tory animus for a Sec. 1985(3) claim. Hahn v. Sargent,

388 F. Supp. 445 (D. Mass. 1975).

It has also been held that Griffin requires that the

protected class be one which is traditionally “‘suspect.”

Bellamy v. Mason’s Stores Inc., 368 F.Supp. 1025

(E.D.Va. 1973), aff'd on other grounds, 508 F.2d 504

(4th Cir. 1974). In Bellamy, the District Court viewed

Sec. 1985(3) as requiring a protected class to possess

“discrete, insular and immutable characteristics compara-

ble to those characterizing classes such as race, national

origin and sex’? and held that a distinction could be

drawn between a political organization and a racial or

similar class. 368 F. Supp. at 1028. The District Court in

Baker, supra, took an even more restrictive view of the

classes protected by Sec. 1985(3). See also Friedman,

“The Motion Picture Rating System of 1968: A Constitu-

tional Analysis of Self-Regulation by the Film Industry,”

73 Col. L. Rev. 185, 238-239, indicating that Sec.

1985(3) could probably not be expanded to protect even

so clearly defined a class as those persons between the

ages of 18 and 21.

13

More importantly, the decision below is not in accord

with the continuing validity of this Court’s opinion in

Collins v. Hardyman, 341 U.S. 651 (1950).? In Collins,

ihe plaintiffs, members of a political club, had organized

a meeting to petition the Government for the redress of

their grievances. They alleged that the defendants con-

spired to attend the meeting and break it up with threats

and violence because defendants opposed their political

views. The Court described the essence of the complaint

in Collins as “...a case of a lawless political brawl,

precipitated by a handful of white citizens against other

white citizens.” 341 U.S. at 662. The Court held the

complaint correctly dismissed.

The allegations in the instant case are much closer to

these in Collins than in Griffin. What is alleged here is

that one group of Indians threatened, did violence to, and

generally harassed another group of Indians of the same

tribe because of the latter’s support of a particular

candidate for Tribal President and their opposition to

another candidate. The sole question which petitioners

seek to bring before this Court is whether such an

amorphous political group is a protected class under Sec.

1985(3).

As this Court recognized in Griffin, the requirement of

an invidiously discriminatory motivation is the only

attribute which keeps Sec. 1985(3) from becoming a

general federal tort law. Certainly the provision’s drafts-

men had no broader intent. The most expansive interpre-

tation of the legislation, that by Senator Edmunds cited

2It is important to note that Collins was not overruled by

Griffin. The Court in Griffin made it clear that it was expressing no

opinion as to the correctness of Collins on its own facts. 403 U.S.

at 95.

14 15

in the Court’s Griffin opinion, mentioned only such CONCLUSION

clear-cut classes as Catholics, Methodists, and Vermonters For these reasons, a writ of certiorari should issue to

(Cong. Globe, 42d Cong., Ist Sess. 567 (1871)) as classes | review the judgment and opinion of the Eighth Circuit.

protected by the statute. No such formless and ever-

— bmitted,

changing classes as political supporters were discussed by Respectfully submitted

the draftsmen. One does not need a particularly vivid RICHARD SCHIFTER

imagination to recognize the burde. on the Federal JAY R. KRAEMER

courts which would result if every purported supporter of Suite 1000

a candidate challenging an incumbent in, for example, a 600 New Hampshire Ave., N.W.

state-wide election could devise a complaint capable of Washington, D.C. 20037

surviving a motion to dismiss merely by alleging that any DENNIS H. HILL

adverse action taken by any person against him was part 704 St. Joseph Street

of a conspiracy and due to his political position. Most 200 Security Building

surely, the decision below brings the “political brawl” P. O. Box 290

within the scope of Sec. 1985(3). Little wonder, then, ' Rapid City, S. D. 57701

that Judge Webster objected to that decision as the | _

creation of a general federal tort law. The failure of the Counsel for Petitioners

Eighth Circuit to heed the remaining teachings of Collins, November 3, 1975

the precedent it has set for broadening the sweep of

federal protection under Sec. 1985(3), and the lack of

clarity on this issue in the decision of the lower Federal

courts justify the grant of certiorari to review the

judgment below.

16

CERTIFICATE OF 77) or

I hereby certify that on this . day of November,

1975, three copies of the Petition for Writ of Certiorari

were mailed, air mail, postage prepaid, to Steven J.

Trecker, Esq., 17 Bulkley #3, Sausalito, California 94965,

Counsel for the Respondents. I further certify that all

parties required to be served have been served.

Richard Schifter

Suite 1000

600 New Hampshire Ave., N.W.

Washington, D.C. 20037

Counsel for Petitioner.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 74-1841

Russell Means, et al.,

Appellants,

V.

Dick Wilson, et al.,

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH DAKOTA, WESTERN DIVISION

Submitted: May 12, 1975

Filed: August 5, 1975

Before LAY. ROSS and WEBSTER, Circuit Judges.

ROSS, Circuit Judge.

This is an appeal from the dismissal of a complaint

which grew out of an Indian election dispute in the

District of South Dakota. The facts are set out fully in

the district court opinion. Means v. Wilson, 383 F.Supp.

378 (D.S.D. 1974). Appellants, who were plaintiffs

below, are Russell Means, an unsuccessful candidate for

president of the Oglala Sioux Tribal Council in the

February, 1974 election, and a group of his political

supporters. They are all enrolled members of the Oglala

Sioux Tribe residing on the Pine Ridge Indian Reserva-

tion in South Dakota. The appellees are Richard “Dick”

2a

Wilson, who was elected president of the Council in the

aforementioned election, a number of tribe members who

supported him, the Tribal Council and certain members

thereof and the Tribal Election Board. Some of the

appellants are sued individually and in their capacities as

officials of the Tribe. They are also enrolled Oglala Sioux,

residents of Pine Ridge Reservation.!

The action was brought under 28 U.S.C. § 1343,” the

Indian Civil Rights Act (25 U.S.C. § § 1301-1303) and 42

The original complaint named as additional defendants the

U.S. Department of the Interior, the Bureau of Indian Affairs, the

Commissioner of Indian Affairs and the Department of Justice.

These defendants were deleted from the amended complaint,

although plaintiffs allege participation by federal officers and

agencies in the conspiracy which is the basis of their action.

298 U.S.C. § 1343 provides:

The district court shall have original jurisdiction

of any civil action authorized by law to be commenced

by any person:

(1) To recover damages for injury to his person

or property, or because of the deprivation of any right

or privilege of a citizen of the United States, by any act

done in furtherance of any conspiracy in section 1985

of Title 42;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for

the protection of civil rights, including the right to

vote.

Section 1343(4) gives the courts jurisdiction to redress

violations of the substantive rights set forth in the Indian Bill of

Rights, 25 U.S.C. §1301 et seg. Luxon v. Rosebud Sioux Tribe,

455 F.2d 698, 700 (1972).

Since a violation of substantive law is a condition precedent

to assumption of jurisdiction under section 1343(1) or (4), for the

sake of brevity we will refer to the issue of whether there is

jurisdiction under 42 U.S.C. §1985(3) or 25 U.S.C. $1302, even

though 28 U.S.C. §1343 is the statute which actually gives the

court jurisdiction to redress violations of the substantive statutes

named.

3a

U.S.C. §§1985(3), 1986 and 1988. The district court

found that there was no jurisdiction given by either 42

U.S.C. § 1985 or 25 U.S.C. §1302, but rested its decision

on the section 1302 claim on the determination that no

claim was alleged under that section. We agree with the

court below except in certain respects mentioned herein,

and affirm in part and reverse in part.

I. Exhaustion of Tribal Remedies.

Although the trial court did not rely on its conclusion

that the Means supporters failed to exhaust tribal

remedies in dismissing their complaint, it found that

there was such a failure and that this also would have

barred plaintiffs from maintaining an action under 25

U.S.C. § 1302 for lack of jurisdiction. We express no view

of whether exhaustion of tribal remedies is a prerequisite

to federal relief under the Indian Civil Rights Act or 42

U.S.C. §1985(3) in this particular case, because we find

that the plaintiffs made every reasonable attempt to

exhaust their tribal remedies.

Plaintiffs originally filed suit on February 11, 1974.

On February 19, 1974, plaintiffs moved for a continu-

ance in order to allow them to pursue a formal election

contest filed on February 15 in accordance with Tribal

Ordinance 85G. Section 12 of the ordinance provides

that election contests shall be filed with the election

board within three days of certification of the election.

The election was certified on February 13, 1974, and one

of the plaintiffs, on behalf of Means and all other tribe

members, filed a formal contest with a member of the

election board at 8:00 p.m. on February 15. The election

board is required to act on the contest and make

recommendations thereon to the Tribal Council within

five days after the contest is filed. Apparently the board

4a _

denied relief on February 20, 1974. Within five days after

the election board has made its determination, Ordinance

85G requires the Tribal Council to render a decision on

the contest. The ordinance provides that: “The decision

of the Council on a contest shall be final.’’ However, the

Council did not issue a decision on the plaintiffs’ election

contest within five days and has still not ruled on the

contest. Plaintiffs waited for a final decision on the

contest until March 29, 1974, before filing their amended

complaint, over a month after the Tribal Council, headed

by defendant Wilson, had failed to meet the five day

deadline imposed by Tribal Ordinance 85G. We find that

plaintiffs have done all they could to exhaust tribal

remedies in this case, but their tribal right to appeal the

election has been frustrated by inaction of the Tribal

Council. “The plaintiffs sought relief [through tribal

channels] and were denied an effective timely remedy.”

Brown v. United States, 486 F.2d 658, 661 (8th Cir.

1973).

Il. 42 U.S.C. §1985(3).°

In considering the Means faction’s section 1985(3)

claim, the district court first held that that section did

342 U.S.C. §1985(3)

Depriving persons of rights or privileges

(3) If two or more persons in any State or

Territory conspire or go in disguise on the highway or

on the premises of another, for the purpose of

depriving, either directly or indirectly, any person or

class of persons of the equal protection of the laws, or

of equal privileges and immunities under the laws; or

for the purpose of preventing or hindering the consti-

tuted authorities of any State or Territory from giving

or securing to all persons within such State or Territory

[footnote continued]

5a

not affect the Oglala Sioux Tribe’s historic immunity

from suit. With this we agree. Twin Cities Chippewa

Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d

529, 531-532 (8th Cir. 1967); Native American Church v.

Navajo Tribal Council, 272 F.2d 131, 134-135 (10th Cir.

1959). But the district court erred in concluding that this

same reasoning applied to suits against individual Indians.

Tribal immunity is based on the sovereignty of the tribe,

Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832),

and does not protect a tribal subject from suit. Seneca

Constitutional Rights Organization v. George, 348

F.Supp. 48, 49 (W.D.N.Y. 1972). Therefore we must

look further than the tribal immunity doctrine to

determine whether there is jurisdiction over individual

defendants under 42 U.S.C. §1985(3) and 28 U.S.C.

§ 1343(4).

In Griffin v. Breckenridge, 403 U.S. 88, 101-102

(1971), the Court held that 42 U.S.C. § 1985(3) provided

the equal protection of the laws; or if two or more

persons conspire to prevent by force, intimidation, or

threat, any citizen wh is lawfully entitled to vote,

from giving his support or advocacy in a legal manner,

toward or in favor of the election of any lawfully

qualified person as an elector for President or Vice

President, or as a Member of Congress of the United

States; or to injure any citizen in person or property on

account of such support or advocacy; in any case of

conspiracy set forth in this section, if one or more

persons engaged therein do, or cause to be done, any

act in furtherance of the object of such conspiracy,

whereby another is injured in his person or property,

or deprived of having and exercising any right or

privilege of a citizen of the United States, the party so

injured or deprived may have an action for the

recovery of damages, occasioned by such injury or

deprivation, against any one or more of the conspira-

tors.

6a

a cause of action against private conspiracies, i.e. those

not involving state action, to deprive citizens of equal

protection of the law or of equal privileges and immuni-

ties. In each section 1985 case it must be determined

whether there is a constitutional source of congressional

power to reach the private conspiracy alleged in the

complaint. Griffin v. Breckenridge, supra, 403 U.S. at

104; Action v. Gannon, 450 F.2d 1227, 1233 (8th Cir.

1971). In Griffin the Supreme Court identified two such

sources of congressional power; the thirteenth amend-

ment and the right of interstate travel. Supra, 403 U.S. at

105-106. This latter right was characterized as one of the

rights of national citizenship which Congress has the

power to protect by appropriate legislation. Supra, 403

U.S. at 106. In this context several cases were cited as

exemplary of other “rights of national citizenship;”

among them were United States v. Classic, 313 U.S. 299,

314-315 (1941) and Ex Parte Yarbrough, 110 U.S. 651,

658-662 (1884). Classic and Yarbrough were both prose-

cutions under criminal statutes analogous to 42 U.S.C.

§1985(3), based on alleged interference with voting

rights in national elections. It is thus apparent that the

right to vote in federal elections is a right of national

citizenship protected from conspiratorial interference by

42 U.S.C. §1985(3). Griffin v. Breckenridge, supra, 403

U.S. at 106. The Sixth Circuit has held, and we agree,

that the right to cast a ballot in a state election is also

protected from interference from private conspiracies by

the federal Constitution. Cameron v. Brock, 473 F.2d

608, 610 (6th Cir. 1973); see also Reynolds v. Sims, 377

U.S. 533, 554 (1964); Smith v. Cherry, 489 F.2d 1098,

1100-1101 (7th Cir. 1973).

The right to vote is fundamental to representative

government. As a right of national citizenship, it is a

7a

source of constitutional power, and Congress has the

power to guarantee that right by statute. Griffin v.

Breckenridge, supra, 403 U.S. at 106. We have previously

held that Congress has guaranteed the right to vote in

tribal elections against interference from Indian tribes by

enactment of the Indian Civil Rights Act, 25 U.S.C.

§1301 et. seg. Brown v. United States, 486 F.2d 658,

661 (8th Cir. 1973); Daly v. United States, 483 F.2d 700,

704-705 (8th Cir. 1973); White Eagle v. One Feather, 478

F.2d 1311, 1314 (8th Cir. 1973); White Eagle v. One

Feather, 478 F.2d 1311, 1314 (8th Cir. 1973). These

cases established that where Indian tribes have adopted

Anglo-Saxon democratic processes for selection of tribal

representatives, equal protection concepts applicable to

the tribes by virtue of the Indian Civil Rights Act

required adherence to the one man one vote principle as a

necessary concomitant of the election process. White

Eagle v. One Feather, supra, 478 F.2d at 1314. Today we

hold that 42 U.S.C. §1985(3) protects the right to vote

in tribal elections against interference from private

conspiracies as well.

Under the Indian Commerce Clause* Congress has

plenary authority over Indians. Worcester v. Georgia,

supra, 31 U.S. (6 Pet.) at 559. Although the clause speaks

of “Indian Tribes” the authority to legislate concerning

individual Indians is necessarily included within the

sweeping grant of congressional power. UNITED

STATES DEPARTMENT OF THE INTERIOR, FED-

ERAL INDIAN LAW 22, n.6 (1958) (hereinafter, FED-

ERAL INDIAN LAW). In 1924, Congress granted citizen-

ship to all American Indians who had not previously

enjoyed that status, including many Oglala Sioux. Act of

+The Congress shall have Power...To regulate Com-

merce ... with the Indian Tribes... .”” U.S. CONST. ART. I, §8.

8a

June 2, 1924, ch. 233, 43 Stat. 253; Iron Crow v. Oglala

Sioux Tribe, 231 F.2d 89, 97 (8th Cir. 1956). At that

time certainly, if not before, Indians became endowed

with the fundamental rights cf national citizenship,

including the right to vote. FEDERAL INDIAN LAW,

530.

The Pine Ridge Reservation, the tribal constitution

which sets forth election procedures and the organization

of the Oglala Sioux Tribe all exist pursuant to federal

law, Act of Mar. 2, 1889, ch. 405, §1, 25 Stat. 888; 25

U.S.C. §§476, 477; see Iron Crow v. Ogallala Sioux

Tribe, 129 F.Supp. 15, 18-20 (D.S.D. 1955), aff'd, 231

F.2d 89 (8th Cir. 1956). The Oglala Sioux have estab-

lished their system of representative government under

the authority of these statutes, which in turn were

enacted by Congress under the authority contained in the

Indian Commerce Clause. In this way Congress has

encouraged the development of democratic processes for

the self-government of the Oglala Sioux, and extended to

them the benefits of national citizenship. Since the right

to vote in a system of representative government is one of

the essential trappings of citizenship protected by the

Constitution, we hold that Congress has necessarily

granted it to the plaintiffs, and in a proper case,

interference with the right to vote in a tribal election may

be vindicated under 42 U.S.C. § 1985(3) as a deprivation

of equal protection of the laws or equal privileges and

immunities under the law.

The plaintiffs in this case have thus alleged facts to

bring this case and some of the defendants within the

jurisdiction of the federal courts. The complaint states

that defendants conspired and did overt acts in further-

ance of a conspiracy to deprive the plaintiffs of their

right to vote because they were supporters of plaintiff

9a

Means and members of the American Indian Movement.

In Griffin the court emphasized that in order to show a

deprivation of equal protection or equal privileges and

immunities which may be redressed under 42 U.S.C.

§ 1985(3), it must be shown that the conspirators were

motivated by an invidiously discriminatory animus to-

ward a racial group or perhaps another type of class.

Supra, 403 U.S. at 102. In interpreting this class-based

discrimination test the Fifth Circuit has said:

There need not necessarily be an organizational

structure of adherents, but there must exist an

identifiable body with which the particular plaintiff

associated himself by some affirmative act. It need

not be an oath of fealty; it need not be an initiation

rite; but at least it must have an intellectual nexus

which has somehow been communicated to, among

and by the members of the group.

Westberry v. Gilman Paper Co., 507 F.2d 206, 215 (5th

Cir. 1975). This opinion was later withdrawn by the Fifth

Circuit sitting en banc and the cause remanded with

directions to dismiss it as moot, “‘so that it will spawn no

legal precedents.” Supra, 507 F.2d at 216. However, in

our opinion, the reasoning above quoted was and is valid

in the light of Griffin. The group of plaintiffs in this case,

by their affirmative acts of supporting plaintiff Means

and the American Indian Movement and attempting to

oust Wilson as their Council President, were a class

against whom, according to the allegations of their

complaint, the defendants discriminated because of their

class membership.° This brings their complaint within the

5This case differs from those in which there was not a clearly

defined class, e.g., Ward v. St. Anthony Hosp., 476 F.2d 671, 676

(10th Cir. 1973); Bricker v. Crane, 468 F.2d 1228, 1233 (1st Cir.

| footnote continued]

10a

ambit of 42 U.S.C. §1985(3). Cameron v. Brock, 473

F.2d 608, 610 (6th Cir. 1973). We must now examine the

complaint more closely to determine whether it states a

claim under the statute as to any of the named

defendants.

Under FED. R. CIV. P. 8, technical niceties of pleading

are not required. Rather, a short and plain summary of

the facts sufficient to give fair notice of the claim

asserted is sufficient. Conley v. Gibson, 355 U.S. 41, 47

(1957). Many of the plaintiffs’ allegations fail to meet

this test. At a minimum, the complaint must state some

way in which the named defendants participated in the

1972), cert. denied, 410 U.S. 930 (1973), or those in which there

was a class, but the alleged conspiratiorial discrimination was not

motivated by plaintiffs’ class membership. E£.g., Arnold v. Tiffany,

487 F.2d 216, 218 (9th Cir. 1973), cert. denied, 415 US. 984

(1974); Hughes v. Ranger Fuel Corp., 467 F.2d 6, 10 (4th Cir.

1972). 42 U.S.C. §1985(3) does not reach every injury suffered by

an individual; that would be tantamount to a general federal tort

law, which Congress does not have the power to enact.

The constitutional shoals that would lie in the path of

interpeting §1985(3) as a general federal tort law can

be avoided . .. by requiring, as an element of the cause

of action, the kind of invidiously discriminatory

motivation stressed by the sponsors of the limiting

amendment. ... The language requiring intent to de-

prive of equal protection, or equal privileges and

immunities, means that there must be some racial, or

perhaps otherwise class-based, invidiously discrimina-

tory animus behind the conspirators’ action. The

conspiracy, in other words, must aim at a deprivation

of the equal enjoyment of rights secured by the law to

all.

Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (footnotes

omitted). In this case, where the complaint alleges a conspiracy

motivated by intent to deprive plaintiffs qua Means supporters of

their right to vote, the “constitutional shoals” of interpreting the

statute as a general federal tort law have been circumnavigated.

lia

alleged conspiracy to take away the election rights of the

plaintiffs. Smallwood v. United States, 358 F.Supp. 398,

408 (E.D. Mo.), aff'd mem., 486 F.2d 1407 (8th Cir.

1973); see Ellingburg v. King, 490 F.2d 1270, 1271 (8th

Cir. 1974). In addition a complaint under 42 U.S.C.

§ 1985(3) must allege facts to show that intentional or

invidious discrimination was the object of the conspiracy.

Griffin v. Breckenridge, supra, 403 U.S. at 102-103;

Snowden v. Hughes, 321 U.S. 1,7, 10 (1944).

Most of the allegations against defendants as individ-

uals either fail to identify any of the named defendants as

a conspirator or fail to allege the required animus. The

only possible adequate allegation of a conspiracy under

42 U.S.C. §1985(3) which appears in the complaint is

that defendant Wilson conspired with private individuals

to insure his reelection by illegal means, and in further-

ance of this conspiracy a private, unauthorized police

force known as the “Goon Squad,” was maintained by

Wilson which harassed and threatened those who opposed

the Wilson administration. Defendant Glenn Three Stars

is identified as leader of the force and another defendant,

Bennie “Tote” Richards, is alleged to be a member. As to

these two defendants and defendant Richard “Dick”

Wilson we hold that the complaint very inartfully states a

claim under 42 U.S.C. § 1985(3).

III. The Indian Civil Rights Act.

We agree with the district court’s conclusion that 25

U.S.C. §1302® provides rights only against the tribe and

©The specific provision with which we are concerned here is

25 U.S.C. §1302(8):

25 U.S.C. § 1302. Constitutional Rights

No Indian tribe in exercising powers of self-

vernment shall ——

g° [footnote continued |

12a

governmental subdivisions thereof, and not against tribe

members acting in their individual capacities. Spotted

Eagle v. Blackfeet Tribe, 301 F.Supp. 85, 89-90 (D.

Mont. 1969). The statute provides that: “No Indian tribe

in exercising powers of self-government shall . . .” engage

in the prohibited conduct. 25 U.S.C. §1302. “Indian

tribe” and “powers of self-government” are defined in 25

U.S.C. §1301(1) and (2).” When sections 1301 and 1302

are read together it is plain that only actions of the tribe

and tribal bodies are constrained.

To some extent then, the historic immunity from suit

has been abrogated by the Indian Civil Rights Act. 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). Therefore, even though tribal immunity

prevents suit against the tribe or its governmental arms

under 42 U.S.C. § 1985(3), the Means supporters can still

sue these bodies under 25 U.S.C. $1302.

Subsection 8 of 25 U.S.C. §1302 is modeled closely

after the equal protection clause of the federal Constitu-

(8) deny to any person within its jurisdiction the

equal protection of its laws or deprive any person of

liberty or property without due process of law... .

795 U.S.C. §1301. Definitions

For purposes of this subchapter, the term ——

(1) “Indian tribe” means any tribe, band, or

other group of Indians subject to the jurisdiction of the

United States and recognized as possessing powers of

self-government;

(2) ‘powers of self-government” means and in-

cludes all governmental powers possessed by an Indian

tribe, executive, legislative, and judicial, and all offices,

bodies, and tribunals by and through which they are

executed, including courts of Indian offenses. . . .

13a

tion. Federal courts have refused to decide election

contests based on equal protection arguments in the

absence of allegations of intentional deprivation of the

right to vote. See Snowden v. Hughes, 321 U.S. 1, 11

(1944); Smith v. Cherry, 489 F.2d 1098, 1102-1 103 (7th

Cir. 1974); Cameron v. Brock, 473 F.2d 608, 610 (6th

Cir. 1973). Thus, in Pettengill v. Putnam County R-1

School District, 472 F.2d 121, 122 (8th Cir. 1973) we

refused to decide a school bond election contest based on

a contention that administrative errors had diluted

plaintiffs’ votes.

The district court correctly concluded that the stand-

ard for setting aside a tribal election must be at least as

restrictive as that applied in non-Indian local election

cases under the Constitution. We agree that there are no

allegations of fact in the complaint to show that the

Oglala Sioux Tribe or the Tribal Council has intentionally

deprived Means supporters of equal protection of the law,

nor that they have attempted to do so.

We note, however, that a claim of intentional interfer-

ence with plaintiffs’ voting rights is stated against the

Tribal Election Board. Numerous election errors and

irregularities allegedly affected the result of the election.

In addition, the complaint states: “The three-person

Election Board failed to provide proper instructions to

election judges and clerks in a deliberate attempt to

confuse the situation to insure the success of the illegal

practices.” This is alleged to be part of a conspiracy

between Wilson and “other tribal officers’’ to insure

Wilson’s election. Although it seems to us that such an

allegation would be difficult to prove, it would be

sufficient to state a claim for denial of equal protection if

this were alleged against a local government in a

non-Indian case.

l4a

Additional considerations of the desirability of preser-

vation of unique tribal cultures and continued vitality of

tribal governments underlie the Indian Civil Rights Act,

however, and these considerations counsel great caution

in applying traditional constitutional principles to Indian

tribal governments. O’Neal v. Cheyenne River Sioux

Tribe, 482 F.2d 1140, 1144 (8th Cir. 1973); Note, The

Indian Bill of Rights and the Constitutional Status of

Tribal Governments, 82 HARV. L. REV. 1343, 1368

(1969). In this case, the alleged interference with

plaintiffs’ voting rights is not founded in tribal custom or

governmental purpose which would justify modification

of traditional equal protection concepts. Rather, the

complaint alleges an intentional interference by the

Election Board with tribal members’ rights to participate

in their government, which are granted them by the

Oglala Sioux Constitution. We believe this alleged viola-

tion falls within the protection of 25 U.S.C. §1302(8),

and the Election Board is an “Indian tribe” exercising

powers of self-government as defincd by 25 U.S.C.

§1301(1) and (2). Therefore it was error to dismiss the

complaint against the defendant, the Oglala Sioux Tribe

Election Board.

The order of the district court is reversed with respect

to dismissal of the complaint against Richard “Dick”

Wilson, Glenn Three Stars, Bennie “‘Tote”’ Richards, and

the Oglala Sioux Election Board; dismissal of the com-

plaint against the other defendants is affirmed. The case

is remanded to the district court for further proceedings

consistent with this opinion.

15a

WEBSTER, Circuit Judge, concurring in part and dissent-

ing in part.

I concur in Parts I and III of the opinion, but I

respectfully dissent from the holding in Part II.

I cannot agree that supporters of 2 particular candidate

form a sufficiently discrete class upon which to predicate

federal jurisdiction under 42 U.S.C. §1985(3). Race is

not involved in this contest; Indian supporters of one

group of political candidates bring this action against

Indian supporters of another. The holding in Part II of

the majority opinion permits a non-insular, mutable,

amorphous group to satisfy the alternative requirement in

Griffin v. Breckenridge, 403 U.S. 88, 102 (1971), that

“there must be some racial, or perhaps otherwise class-

based, invidiously discriminatory animus behind the

conspirators’ action.” (Emphasis added.)

Taken to its local extension this holding grants federal

jurisdiction to any group of supporters of a local

candidate who claim they were purposefully victimized

by their opponents in state or local elections. Thus is

introduced into our system a “general federal tort law”

feared by Justice Stewart, author of Griffin, 403 U.S. at

102.

[378]

[380]

lb

APPENDIX B

Russell MEANS et al.

v.

Dick WILSON et al.

No. CIV 74-5010.

United States District Court,

LD. South Dakota.

Sept. 20, 1974.

* * *

Stephen L. Pevar, Mission, S. D., Ste-

ven Trecker, Sioux Falls, S. D., for

plaintiffs.

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

defendants.

MEMORANDUM OPINION

BOGUE, District Judge.

Twenty-eight plaintiffs, American In-

dians and residents of the Pine Ridge In-

dian Reservation, brought this action to

set aside the Oglala Sioux Tribal elec-

tion held on February 7, 1974. The

plaintiffs claim that certain alleged elec-

tion irregularities deprived them of their

right to a fundamentally fair election.

The plaintiffs further claim that various

fraudulent and criminal acts alleged to

have been committed by the defendants

during the election period violated their

right to vote. The plaintiffs’ claims,

therefore, can be divided into two cate-

gories: (1) alleged administrative elec-

tion irregularities, and (2) alleged fraud-

ulent conduct in supervising the election.

2b

The plaintiffs urge their cause of ac-

tion under 18 U.S.C.A. §§ 241, 245; 42

U.S.C.A. §§ 1985(3), 1986, 1988; and

under 25 U.S.C.A. §§ 1301, 1302, 1303,

the Indian Civil Rights Act of 1968.

The United States Department of the

Interior, the Bureau of Indian Affairs,

the Commissioner of Indian Affairs, the

Department of Justice, and the Judges of

the Oglala Sioux Tribal Government were

named in the original complaint as de-

fendants but were dismissed by the

plaintiffs on March 29, 1974, and now are

not parties to this litigation. The re-

maining defendants in this case are all

American Indians and residents of the

Pine Ridge Indian Reservation. Twenty

of the defendants are named parties both

as individuals, and in their official ca-

pacity as officers and employees of the

Oglala Sioux Tribe, and other defend-

ants are named parties solely as _ indi-

viduals.

The plaintiffs request injunctive relief

to prevent the tampering with or the

destruction of official election ballots,

voter registration lists, and affidavits

of residency used during the February

7th election. The plaintiffs request in-

junctive relief to prevent candidates cer-

tified by the Election Board as elected

in the February 7th election from being

inaugurated into office, and they also

request injunctive relief to prevent the

defendants, who would continue to hold

office if newly-elected officials were pre-

vented from taking office, from exercis-

ing all governmental authority except

authority to perform ministerial func-

tions necessary for day to day manage-

[381]

3b

ment of tribal affairs. The plaintiffs

further request that this Court declare

the February 7th election to be null and

void and order the Tribal Council to

conduct a new election. In addition to

the relief prayed for above, the plaintiffs

request an award of $15,000.00 in actual

and punitive damages to compensate for

alleged violations of their civil rights.

Upon motion, order to show cause, and

hearing this Court granted a Temporary

Restraining Order on February 11, 1974,

to prevent the tampering with cr the de-

struction of the February 7th election

documents. On February 13, 1974, this

Court ordered the United States Mar-

shal’s Service to take protective custody

of the election documents. A hearing

was held on April 4, 1974, upon the plain-

tiffs’ motion to enjoin the installation

of officers and officials elected at the

February 7th election, aid good cause

having been shown, this Court denied

the motion and allowed the newly-elected

officials to continue to function as the

new Ogiala Sioux Tribal Government.

The plaintiffs were allowed to amend

their complaint twice, the defendants

answered the complaint on May 11, 1974,

and a pretrial was held on July 8, 1974.

Pursuant to stipulation between all par-

ties to this case, that the documentary

evidence be presented to the Court in a

bifurcated trial, the trial commenced on

July 15, 1974.

On May 11, 1974, the defendants

moved this Court, pursuant to Rule 12

(b)(6) of the Federal Rules of Civil

Procedure, to dismiss the complaint for

failure te state a claim upon which re-

4b

lief can be granted. This motion is now

before the Court for consideration. In

considering this motion, matters that

have been presented outside the plead-

ings are excluded by the Court. Fed.R.

Civ.P. 12(b).

In accordance with Rule 12(h)(3) of

the Federal Rules of Civil Procedure,

that “whenever it appears by suggestion

of the parties or otherwise that the court

lacks jurisdiction of the subject matter,

the court shall dismiss the action,” this

Court of its own motion and upon de-

fendants’ urging that this case does not

come within the applicable grant of stat-

utory authority, recessed the trial on

July 17, 1974, and moved to dismiss for

lack of subject matter jurisdiction. A

briefing schedule was set on both pend-

ing motions, and on September 3rd, the

final reply brief was submitted to the

Court.

[1-4] In considering the motion to

dismiss for lack of subject matter juris-

diction we must keep in mind the im-

portant principle that federal courts are

courts of limited jurisdiction. The fed-

eral courts are empowered to hear only

such cases as are within the judicial

power of the United States, as defined

by the United States Constitution, and

only those cases that have been entrusted

to them by a jurisdictional grant by

Congress. The rule is well settled that

the party seeking to invoke the juris-

diction of a federal court must demon-

strate that the case is within the com-

petence of the Court and the presumption

is that the Court lacks jurisdiction in a

[382]

5b

particular case until it has been demon-

strated that jurisdiction over the subject

matter exists, Wright and Miller, Federal

Practice and Procedure, section 1206;

Turner v. President, Directors and Com-

pany of the Bank of North America, 4

Dall. 8, 1 L.Ed. 718 (1799); Rock Island

Millwork Co. v. Hedges Gough Lumber

Co., 337 F.2d 24 (8th Cir. 1964). To

rebut this presumption against jurisdic-

tion, the facts that disclose the existence

of jurisdiction must be affirmatively al-

leged. Smith v. McCullough, 270 US.

456, 46 S.Ct. 338, 70 L.Ed. 682 (1926);

Bowman v. White, 388 F.2d 756 (4th

Cir. 1968); Joyce v. United States, 474

F.2d 215 (3rd Cir. 1973). Ordinarily

the allegations of jurisdiction in the

pleadings are enough, but when jurisdic-

tion is challenged, the burden is on the

plaintiff to establish its existence. Rose-

mound Sand & Gravel Co. v. Lambert

Sand & Gravel Co., 469 F.2d 416 (5th

Cir. 1972). When the question of ju-

risdiction depends upon the same facts

that are involved in the disposition of

the merits, the Court will retain the case

and determine the issue, as it always has

jurisdiction to determine its jurisdiction.

Nestor v. Hershey, 138 U.S.App.D.C.

73, 425 F.2d 504 (1970).

[5] The defendants challenged juris-

diction at the preliminary injunction

hearing on April 4, 1974, and again on

May 11, 1974. In considering the ques-

tion whether this Court has jurisdiction

of the action, it is important to realize

that Indian tribes enjoy a quasi-sov-

ereign immunity which exempts them

from suit without the consent of Con-

6b

gress. United States v. United States

F. & G. Co., 309 U.S. 506, 512, 60 S.Ct.

653, 84 L.Ed. 894 (1940); Twin Cities

Chippewa Tribal Council v. Minnesota

Chippewa Tribe, 370 F.2d 529, 532 (8th

Cir. 1967). The immunity may not be

evaded by suing tribal officers. Adams

v. Murphy, 165 F. 304 (8th Cir. 1908) ;

Haile v. Saunoke, 246 F.2d 293 (4th Cir.

1957).

[6] The facts alleged and the plain-

tiffs’ claims under 18 U.S.C.A. §§ 241

and 245, and 42 U.S.C.A. §§ 1985, 1986,

1988 do not provide this Court with a

proper jurisdictional base. The plain-

tiffs allege violations of their civil

rights but do not claim any discrimina-

tion because of race. This is a civil

suit. It is also clear that plaintiffs’

claim is concerned only with civil rights

of Indians in their relationships with

the Indian tribe, officers of the tribe,

and with other individual Indians. It

is not concerned with Indians in their

relationship to whites or to the state or

federal governments.

The plaintiffs’ claims under 18 U.S.

C.A. $§ 241 and 245 border on the frivo-

lous and are completely without merit.

This section provides criminal sanctions

for violations of civil rights laws. 18

U.S.C.A. §§ 241 and 245 create no civil

liability. Colliflower v. Garland, 342

F.2d 369 (9th Cir. 1965); Spotted Eagle

v. Blackfeet Tribe of the Blackfeet In-

dian Reservation, 301 F.Supp. 85 (D.C.

1969).

The plaintiffs’ claims under 42 U.S.

C.A. $$ 1985, 1986 and 1988 are also

without merit and fail to provide this

7b

Court with a proper jurisdictional base.

In Spotted Eagle v. Blackfeet Tribe of

Blackfeet Indian Reservation, 301 F.

Supp. 85 (1969), the Court after careful

review of the legislative history, held

that 42 U.S.C.A. § 1985 does not pro-

vide any rights to the Indian in his re-

lationship with his tribal government.

Citing Elk v. Wilkins, 112 U.S. 94, 5

S.Ct. 41, 28 L.Ed. 643 (1884), and Col-

lins v. Hardyman, 341 U.S. 651, 71 S.Ct.

937, 95 L.Ed. 1253 (1951), the Court

concluded that § 1985 was a post Civil

War measure concerned with the rights

of recently liberated Negroes, and the

statute when given the circa 1870 mean-

ing, excludes Indians. Another case that

dealt with the rights of an Indian against

his tribe under 42 U.S.C.A. § 1981 et seq.

is Seneca Constitutional Rights Organ-

ization v. George, 348 F.Supp. 48 (D.C.

1972), which held that:

The court has been directed to nothing,

and has found nothing, in the language

of 42 U.S.C. §§ 1981 to 1987 or in the

cases thereunder which indicates that

by enacting the provisions Congress

intended to strip Indian tribes of their

quasi-sovereign immunity and to con-

sent to suits against the tribes. It

therefore holds that Indian tribes are

immune to suits alleging violations of

these sections. Jd. at 50.

It is clear from the legislative history

and from the case law that the plaintiffs

have no cause of action against the

Oglala Sioux Tribe, its agencies or of-

ficers under 42 U.S.C.A. §§ 1985, 1986,

1988, and the Court lacks a proper juris-

dictional basis to proceed under these

[383

8b

claims. Post v. Payton, 323 F.Supp. 799

(E.D.N.Y.1971).

The result is the same when we con-

sider the claim under 42 U.S.C.A. §§

1985, 1986, 1988 against the defendants

named as individuals. Although neither

Spotted Eagle, supra, nor Seneca, supra,

dealt specifically with this question, a

helpful analogy can be drawn between

suits against the tribe and suits against

individuals. If 42 U.S.C.A. §§ 1985,

1986, 1988 provide no rights in the first

instance because of their Civi] War

history and purpose, then it follows that

the same reasons would render these

sections inapplicable in the second in-

stance. We therefore hold that 42 U.S.

C.A. §§ 1985, 1986, 1988 provide no

cause of action to the plaintiffs as

against the Indian defendants named as

individuals, and that this Court lacks

jurisdiction to proceed under those

claims.

We conclude that plaintiffs’ only claim

in this case that could possibly come

within the jurisdiction of this Court

is the claim under 28 U.S.C.A. § 1343

‘4) and 25 U.S.C.A. § 1302(1), (8).

Immunity from suit would bar jurisdic-

tion in this case unless the Indian Civil

Rights Act applies. Cherokee Nation

vy. State of Oklahoma, 461 F.2d 674, 681

10th Cir. 1972); Iron Crow v. Oglala

Sioux Tribe, 231 F.2d 89, 94 (8th Cir.

1956): Luxon v. Rosebud Sioux Tribe,

155 F.2d 698, 699 (8th Cir. 1972).

The plaintiffs in this case have al-

ieged that jurisdiction over the subject

matter of the complaint rests in 28 U.S.

(.A. § 1343/4) which states:

te tee

“9b

The district courts shall have original

jurisdiction of any civil action autho-

rized by law to be commenced by any

person:

(4) To recover damages or to secure

equitable or other relief under any

Act of Congress providing for the

protection of civil rights, including

the right to vote.

The plaintiffs have claimed violations

of 25 U.S.C.A. § 1302(1) and (8) which

provide that:

No Indian tribe in exercising powers

of self-government shall—

(1) make or enforce any law prohib-

iting the free exercise of religion, or

abridging the freedom of speech, or

of the press, or the right of the

people peaceably to assemble and to

petition for a redress of grievances;

(8) deny to any person within its

jurisdiction the equal protection of

its laws or deprive any person of

liberty or property without due pro-

cess of law.

The plaintiffs claim that administrative

election irregularities and fraud allegedly

committed by defendants have violated

their protected rights under § 1302(1),

(8) and they rely on McCurdy v. Steele,

353 F.Supp. 629 (D.C.1973) for juris-

dictional support and urge that case as

controlling here. McCurdy is inapplica-

ble here and is not controlling because

that case involved parties other than

Indians including the Bureau of Indian

Affairs, and because the disputed conduct

occurred in Nevada and not on an

Indian reservation. McCurdy v. Steele,

10b

353 F.Supp. 629, 638 n. 15 (1973).

This Court did, however, take guidance

from Luxon v. Rosebud Sioux Tribe of

South Dakota, 455 F.2d 698 (8th Cir.

1972), and Bell v. Hood, 327 U.S. 678,

66 S.Ct. 773, 90 L.Ed. 939 (1946), cited

therein, and ruled on April 4, 1974, that

jurisdiction existed at least temporarily

to prevent irreparable injury and to de-

termine jurisdiction. In Luzon, the

Eighth Circuit Court of Appeals 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 to one of

its members any of the rights given to

the members under the Indian Bill of

Rights. (Emphasis added.)

The difficulty here is in determining

whether or not the plaintiffs have

brought before this Court a “proper

case.”

[7,8] The federal courts, in order

to avoid unduly disrupting tribal govern-

ment, have traditionally avoided involve-

ment in intratribal controversies. This

policy of federal judicial restraint is

consistent with the present federal ob-

jective of preserving the Indian tribes as

self-governing, culturally autonomous

units. Kills Crow v. United States, 451

F.2d 323, 326-327 (8th Cir. 1971); note,

The Indian Bill of Rights and the Con-

stitutional Status of Tribal Govern-

ments, 82 Harv.L.Rev. 1343, 1359-60 and

hearings cited (1969). The Indian Civil

Rights Act appears to have been drafted

by Congress to enhance the civil liberties

of individual Indians without unduly

undermining Indian _ self-government

[384]

llb

and cultural autonomy. Its guarantees

of individual rights should not operate

to unduly disrupt tribal culture and

should be harmonized with governmental

autonomy. The purpose of the Act and

the principle of federal judicial restraint

dictate that an action involving an in-

ternal controversy among Indians over

tribal government is a subject not with-

in the jurisdiction of a federal court and

not a “proper case” under Luron, supra.

Cornelius v. Moxon, 301 F.Supp. 783

(D.C.1969); Motah v. United States, 402

F.2d 1 (10th Cir. 1968); Green v. Wil-

son, 331 F.2d 769 (9th Cir. 1964). Asa

prerequisite to federal jurisdiction and

involvement in intratribal government,

the plaintiff must clearly show that the

subject matter involved amounts to a

“proper case”’ under 25 U.S.C.A. § 1302.

{9} We can quickly dispose of one

part of the plaintiffs’ claim under 25

U.S.C.A. § 1302 since it is clear from the

language of the Act, its legislative his-

tory, and the case law that the Indian

Civil Rights Act cannot be held to au-

thorize civil actions for violations of the

acts prescribed therein by individuals.

We agree with the Court in Spotted

Eagle v. Blackfeet Tribe of Blackfeet In-

dian Reservation, 301 F.Supp. 85 (1969),

that:

The Indian Civil Rights Act does not

create rights as against individuals,

and that, hence. within the meaning of

28 U.S.C.A. §$ 1343/4) there is no ac-

tion authorized by law to be com-

menced against individuals. /d. at 90.

We therefore hold that 28 U.S.A &

1343(4) and 25 U.S.C.A. § 1302 provide

12b

no cause of action to the plaintiffs as

against the Indian defendants named as

individuals or as against the officers of

the tribe as individuals and therefore

this Court lacks jurisdiction to proceed

on those claims.

[10,11] The only claims remaining

for our consideration then are plain-

tiffs’ claims against the tribal agencies

and the tribal officers under the Indian

Civil Rights Act of 1968. This Court

finds that it lacks jurisdiction to proceed

on these claims because the available

tribal remedies have not been exhausted.

The plaintiffs acknowledge in their com-

plaint the existence of tribal remedies.

They allege that two election contests

were filed before the Election Board, and

were denied by the Election Board. They

further acknowledge that no action has

béen obtained from the Tribal Council as

is provided for in election ordinance 85g,

and that no action has been filed in Trib-

al Court. The plaintiffs seem to take the

position that failure of the Tribal Coun-

cil to rule on the election contests is suf-

ficient evidence of exhaustion. It could

also be argued that plaintiffs’ activities

in investigating the election and initiat-

ing this action in federal court have had

a disrupting effect on tribal processes

designed to evaluate election disputes.

The Tribe has clearly provided a rea-

sonable process for election complaints,

and the fact that the Tribal Council has

not yet rendered a decision on the com-

plex and numerous claims does not lead

reasonably to the conclusion that resort

to the Council is futile. We agree with

the Eighth Circuit Court of Appeals’ de-

[385]

13b

cision in O'Neal v. Cheyenne River Sioux

Tribe, 482 F.2d 1140 (8th Cir. 1973).

The Court stated at page 1141 that the

principal issue before them was “wheth-

er individual Indian plaintiffs, who fail

to exhaust tribal remedies in civil dis-

putes with the tribe, are prohibited from

bringing suit in federal court on an ac-

tion predicated essentially upon the In-

dian Bill of Rights.” The Court an-

swered that individual Indian plaintiffs

must, with few exceptions, exhaust their

tribal remedies. At page 1443, the Court

established three questions to be an-

swered so as to determine if dismissal

is proper: (1) “What, if any, tribal

remedies existed? (2) Should an ex-

haustion requirement generally be ap-

plied in .cases such as this? (3) If ex-

haustion is generally required, is it ap-

propriate to require exhaustion in this

case?” The Court determined that two

tribal remedies did exist which had not

been utilized, and in a learned discussion

they found that an exhaustion require-

ment should generally be applied and

cited White Eagle v. One Feather, 478

F.2d 1311 (8th Cir. 1973); Williams v.

"ee, 353 U.S. 217, 79 S.Ct. 269, 3 L.Ed.

2d 251 (1959); Luxon v. Rosebud Sioux

Tribe of South Dakota, 455 F.2d 698 (8th

Cir, 1972); Dodge v. Nakai, 298 F.Supp.

17 (D.C.1968); and McCurdy v. Steele,

353 F.Supp. 629 (D.C.1973). The Court

stated:

It is clear to us that Congress wished

to protect and preserve’ individual

rights of the Indian peoples, with the

realization that this goal is best

14b

achieved by maintaining the unique

Indian culture and _ necessarily

strengthening tribal governments. /d.

482 F.2d at 1144.

The Court did recognize and discuss

certain exceptions to the exhaustion re-

auirement. In Dodge, supra, exhaustion

was not necessary due to the presence of

some defendants not subject to tribal

court jurisdiction, and in McCurdy, su-

pra, the only tribal forum was the tribal

council being challenged by the plain-

tiffs. In McCurdy, however, the tribal

council had specifically refused to deal

with the plaintiffs at all. The present

case falls within neither exception. All

plaintiffs are subject to tribal jurisdic-

tion, and although the present Tribal

Council had a direct interest in the le-

gality of the February 7, 1974 election,

there is no reason to assume without

proof to the contrary, that self interest

would determine their decision. If the

decision is adverse to the plaintiffs, they

have the further remedy of Tribal Court.

This Court does not believe that the ju-

dicial system of the Oglala Sioux Tribe,

in intratribal controversies, has been

demonstrated to be lacking in integrity.

The O'Neal court stated, as a genera!

‘est for application of the exhaustion re-

‘Uirement, that the need to preserve the

cultural identity of the tribe by strength-

ening the tribal courts must be weighed

with the need to immediately adjudicate

alleged deprivations of individual rights.

On April 5, 1974, after full hearing and

“Don yood cause having been shown, that

'he plaintiffs were in no danger of suf-

'vring immediate irreparable depriva-

15b

tion of their individual rights, the O'Neal

Court stated:

In sum, we can find no persuasive rea-

sons for not requiring exhaustion in

this case. A general exhaustion re-

quirement in cases such as this will

do much to strengthen tribal govern-

ments, including tribal courts, and,

thereby aid the reservation Indian in

maintaining a distinct cultural iden-

tity. Id. 482 F.2d at 1148.

This Court finds that it is appropriate

to require exhaustion in this case. It is

the function and the affirmative obliga-

tion of the tribe in view of their unique

ethnic and cultural identity to exercise

original jurisdiction in intratribal con-

troversies. This Court finds that be-

cause the plaintiffs have failed to ex-

haust available tribal remedies, this is

not a “proper case” under 28 U.S.C.A.

§ 1343(4) and 25 U.S.C.A. § 1302 and

under Luxon v. Rosebud Sioux Tribe of

South Dakota, 455 F.2d 698 (8th Cir.

1972), O'Neal v. Cheyenne River Sioux

Tribe, 482 F.2d 1140, 1145-1148 (8th

Cir. 1973), and this Court therefore lacks

jurisdiction to proceed.

Although the finding that plaintiffs

have failed to exhaust their administra-

tive remedies would in and of itself dis-

pose of plaintiffs’ claims against the

tribe and its officers under 25 U.S.C.A.

§ 1302, this Court prefers to dismiss the

complaint on defendants’ motion to dis-

miss for failure to state a claim upon

which relief can be granted. Fed.R.Civ.

P. 12(b)(6).

[386]

16b

{12] It is clear that plaintiffs’ claims

under 28 U.S.C.A. § 1343(4) and 25 U.S.

C.A. § 1302(1), (8) are insufficient in

that they fail to state a claim upon which

relief can be granted and the defendants’

motion is hereby granted. The amended

complaint, together with the affidavits

filed in support thereof and made a

part thereto, fail to disclose any violation

of 25 U.S.C.A. § 1302(1), (8). The ju-

risdiction of this Court under § 1302 is

limited to enforcing the provisions con-

tained therein. It does not extend to in-

suring compliance with provisions of

Oglala law, unless failure to comply con-

stitutes a violation of the guarantees

contained therein. In order to state a

claim upon which relief can be granted

the plaintiff must clearly allege facts

that show a violation of the rights em-

bodied in § 1302(1), (8). This the plain-

tiffs failed to do.

[13] This Court agrees with and

adopts the rule laid down by the Eighth

Circuit Court of Appeals that irregu-

larities in the administration of local

elections do not provide a constitutional

basis for a federal court to set aside an

election “in the absence of aggravating

factors such as denying the right of citi-

zens to vote for reasons of race,” or

“fraudulent interference with a free elec-

tion by stuffing of the ballot box,” or

“other unlawful conduct which _ inter-

feres witi: the individual's right to vote.”

Pettengill v. Putnam County, 472 F.2d

121, 122 (8th Cir. 1973).

The Court of Appeals in Pettenyill

indicated the kinds of electoral miscon-

duct which it considered sufficient to

os

a Awe

alte a

-

17b

justify invalidating an election on con-

stitutional grounds by citing United

States v. Saylor, 322 U.S. 385, 64 S.Ct.

1101, 88 L.Ed. 1341 (1944), and 42 U.S.

C.A. § 1985.

Saylor was g criminal case involving

the prosecution of election officers un-

der federal criminal statute for forging

ballots in favor of a particular candidate

“so as to create a false and fictitious re-

turn.” 322 U.S. at 386, 64 S.Ct. at 1102.

See, 18 U.S.C.A. § 241. This is one of

a series of cases in which the courts

have held that stuffing ballot boxes or

falsifying returns is a federal crime un-

der the various statutes which protect

civil rights against willful interference.

For example, in United States +. Claszic,

313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed.

1368 (1941), the defendants were

charged with willfully altering and false-

ly counting and certifying ballots. The

Court held that the right to vote is a

right secured by the Constitution and,

consequently, the intentional deprivation

of that right by falsifying and falsely

counting and certifying ballots is a fed-

eral crime. See, 18 U.S.C.A. §§ 241

and 242. Similarly, in United States v.

Mosley, 238 U.S. 383, 35 S.Ct. 904, 59

L.Ed. 1855 (1913), a conspiracy by elec-

tion officers to falsify returns by will-

fully disregarding the returns of certain

precincts was held to be a federal crime.

The Court held that “. . . the

right to have one’s vote counted is as

open to protection by Congress as the

right to put a ballot in a box.” 238 US.

at 386, 35 S.Ct. at 905.

18b

Thus, the Court of Appeals recognized

in Pettengill that an election may be set

aside where there has been electoral mis-

conduct amounting to a crime under the

federal criminal laws which protect citi-

zens against interference with constitu-

tional or civil rights. The election cases

which have arisen under these laws in-

volved an element of willful and deliber-

ate interference by named defendants

with the right to vote, rather than ad-

ministrative procedural irregularities.

Classic, Saylor and Mosley all involved

a showing of willful criminal activity.

The second category of circumstances

justifying the invalidation of an election

according to the Pettengill decision is

that in which 42 U.S.C.A. § 1985 would

apply. As discussed earlier, this statute

does not apply to Indians, but the statute

serves here to give some additional in-

sight and meaning into the Pettengill

rule. 42 U.S.C.A. § 1985 authorizes a

civil action for damages in case of in-

jury or deprivation due to unlawful in-

terference with certain federally protect-

ed rights. When, for example, there was

a specific factual allegation that the

named defendant “. . . came to

appellant’s house during the night of

October 17, 1973, called him out and in-

timidated, threatened and coerced appel-

lant against becoming a registered voter

; assailed appellant in the night-

time and threatened to destroy or anni-

hilate appellant, his possessions and his

family . . .” a federal court had

jurisdiction of the civil rights damage

action under 42 U.S.C.A. § 1985. Simi-

larly, in Cameron v. Brock, 473 F.2d 608

(6th Cir. 1973), the named defendant

I atte oC rere

ee ena

[387]

19b

sheriff destroyed the campaign litera-

ture of his opponent and arrested the

distributor of the literature, a clear vio-

lation of rights protected by the First

Amendment of the United States Con-

stitution. Damages were awarded to

the plaintiff, and the Court of Appeals

affirmed:

We hold that § 1985(3)’s protection

reaches clearly defined classes. If a

plaintiff can show that he was denied

the protection of the law because of

the class of which he was a member,

he has an actionable claim under §

1985(3).

{14} Thus the Pettengill rule may

be summarized as follows: Equal pro-

tection and due process provide a juris-

dictional basis for a federal court to set

aside a local election which is infected

with specifically alleged conduct in vio-

lation of federal criminal laws or which

constitutes such unlawful deprivation of

civil rights as to result in a civil lia-

bility under 42 U.S.C.A. § 1985. Pet-

tengill holds that the federal courts

should not become involved in oversee-

ing “the administrative details of a local

election . . . inthe absence of ag-

gravating factors such as denying the

right of citizens to vote for reasons of

race, . . . or fraudulent interfer-

ence with a free election by stuffing of

the ballot box, . . . or other unlaw-

ful conduct which interferes with the

individual’s right to vote per 42 U.S.C.

§$ 1985.” 472 F.2d at 122. This Court

should not set aside a tribal election un-

der the Indian Civil Rights Act in cir-

20b

cumstances in which a non-Indian local

election under the Fourteenth Amend-

ment would not be set aside.

(15] In Pettengill v. Putnam County,

472 F.2d 121 (1973), of the 2,192 votes

cast 1,466 votes were cast for and 726

\otes were cast against the proposition

and the proposition was declared to have

passed by a margin of five votes over

the required two-thirds majority. The

plaintiffs claimed that five electors per-

sonally voting and six electors casting

absentee ballots were not qualified to

vote because they did not satisfy the resi-

dency requirements prescribed by law.

The plaintiffs further claimed that two

electors were not qualified to vote be-

cause they were not of lawful age when

they applied for absentee ballots, that

116 electors cast absentee ballots which

were void since there were irregulari-

ties in the application, delivery or execu-

tion of these ballots. The defendants

were informed of these irregularities

and were requested to hold a hearing on

these 129 irregularities. The defendants

declined to grant a hearing and denied

the requests. The district court dis-

missed the complaint for want of ju-

risdiction and the Eighth Circuit Court

of Appeals affirmed.

The plaintiffs in Pettengill attempted

to posit the existence of federal jurisdic-

tion on the theory that the defendants

diluted their legal votes by counting il-

legally cast votes and that such state ac-

tion amounted to a deprivation of their

civil rights. The Eighth Circuit Court

of Appeals rejected their theory stat-

ing:

des? om | see 208

[388]

21b

Appellants cite no cases. and we have

found none, which authorize a federal

court to be the arbiter of disputes

over whether particular persons were

or were not entitled to vote or over

alleged irregularities in the transmis-

sion and handling of absentee voter

ballots. 472 F.2d at 122.

The Pettengill court cited Powell v. Pow-

er, 436 F.2d 84 (2nd Cir. 1970), where-

in six voters in a congressional primary

election sought the intervention of the

federal court, alleging that state offi-

cials had permitted a number of indi-

viduals to cast ballots in the election,

which individuals were not qualified to

vote under state law. In affirming the

district court’s denial of relief sought

under the Voting Rights Act of 1965

and the Civil Rights Act of 1871, 42

U.S.C.A. § 1983, the Court said:

In the plaintiffs’ view, [these] federal

statutes comprehensively protect their

ballots against dilution by illegal vot-

ing, whether or not the dilution was

willful or knowing. It is appropriate

to note at the outset that the plain-

tiffs do not claim any discrimination

because of race. Thus, they face a

considerable burden of persuasion in

asserting so sweeping and novel a

conception, one apparently never be-

fore asserted, so far as reported cases

reveal. Were we to embrace plain-

tiffs’ theory, this court would hence-

forth be thrust into the details of vir-

tually every election, tinkering with

the state’s election machinery, review-

ing petitions, registration cards, vote

tallies, and certificates of election for

22b

all manner of error and insufficiency

under state and federal law. /d. at 86.

The Eighth Circuit Court of Appeals in

Pettengill adopted and applied the Powell

rationale and stated:

In essence, the appellants’ complaint

asks the federal court te oversee the

administrative details of a local elec-

tion. We find no constitutional basis

for doing so in the absence of aggra-

vating factors such as denying the

right of citizens to vote for reasons

of race, . . . or fraudulent in-

terference with a free election by

stuffing of the ballot box, . . . or

other unlawful conduct which inter-

feres with the individual's right to

vote per 42 U.S.C. § 1985. Jd. 472

F.2d at 122.

We agree with the Eighth Circuit

Court of Appeals and adopt their position

in Pettengill to plaintiffs’ claims here.

The first claim of the Amended Com-

plaint sets out plaintiffs’ belief that in

certain polling places, persons were al-

lowed to vote who were not entitled to

vote, and alleges irregularities in the

transmission and handling of absentee

voter ballots. These claims do not vio-

late 25 U.S.C.A. § 1302(1). The claim

does not violate the free exercise of re-

ligion, or freedom of speech, or of the

press, or the right of the people peace-

ably to assemble and to petition for a

redress of grievances. Similarly, the

claim does not violate 25 U.S.C.A. § 1302

(8) in that it does not offend the usual

meaning of due process of law or of

equal protection of the law. Seneca Con-

ee ee eee -

23b

stitutional Rights Organization vy.

George, 348 F.Supp. 51 (D.C.1972);

White Eagle v. One Feather, 478 F.2d

1311 (8th Cir. 1973).

In view of the principles of Indian

self government and tribal autonomy in

intratribal matters, a clear violation of

one of the protected rights under 25

U.S.C.A. § 1302 must be shown to state

a proper claim. In plaintiffs’ first claim

they have simply alleged irregularities

in election administration. This Court

does not require that Indian tribes

achieve a freedom from error in the ad-

ministration of elections which the states

need not adhere to under Pettengill and

Powell. As the Court stated in Powell

v. Power, 436 F.2d 84, 88 (2nd Cir.

1970):

, we cannot believe that the

framers of our Constitution were so

hypersensitive to ordinary human

frailties as to lay down an unrealistic

requirement that elections be free of

any error. Id. at 88.

[16,17] Plaintiffs’ second claim of

their twice amended complaint sets forth

their belief that threats were made and

action taken against those who did not

support candidate Wilson. This claim

is vague and patently insufficient be-

cause it is not supported by allegations

of specific facts showing a purposeful

deprivation of protected rights under

25 U.S.C. § 1302(1), (8) by defendant

tribe or by defendant tribal officers act-

ing within the scope of their official of-

fice. To state a proper claim under 25

U.S.C.A. § 1302 the assaults or threats

or whatever else claimed, must be tied

[389]

24b

directly to the tribe or its officers act-

ing within the scope of their official

tribal office. The nexus here is not only

unclear, it is nonexistent. While the

plaintiffs make conclusory statements as

to someone’s intent to discriminate

against them, they do not make any fac-

tual allegations indicating “a purposeful

discrimination between persons or class-

es of persons.” Snowden v. Hughes, 321

U.S. 1, 10, 64 S.Ct. 397, 402, 88 L.Ed.

497 (1944). This Court follows the

rule that civil rights complaints which

contain only broad conclusory allega-

tions of violations which are not sup-

ported by specific allegations of fact

showing an intentional and purposeful

deprivation of rights by the defendants,

including direct participation of the de-

fendant official in the alleged depriva-

tion, must be dismissed for failure to

state a claim. Eisman v. Pan American

World Airlines, 336 F.Supp. 543 (E.D.

Pa.1971); Wallach v. City of Pagedale,

359 F.2d 57 (8th Cir. 1966); Mahurin

v. Moss, 313 F.Supp. 1262 (E.D.Mo.

1970); Brooks v. Peters, 322 F.Supp.

1273 (E.D.Wis.1971); Robinson v. Mc-

Corkle, 462 F.2d 111 (3rd Cir. 1972);

Jennings v. Davis, 339 F.Supp. 919 (W.D.

Mo.1972); Sanberg v. Daley, 306 F

Supp. 277 (N.D.II.1969).

Plaintiffs’ third claim and fourth

claim are insufficient in that they are

not supported by allegations of specific

facts showing a purposeful deprivation

of protected rights by the defendant

tribe or defendant tribal officials act-

ing within the scope of their authority.

Seneca Constitutional Rights Organiza-

tion v. George, 348 F.Supp. 51 (D.C.

ee eT eee

a

i ea

25b

1972). As noted earlier, the United

States Government, the Department of

Interior, and the Bureau of Indian

Affairs are not parties to this litigation.

Allegations directed at these nonparties

do not state a claim against the tribe or

its officers under 25 U.S.C.A. § 1302.

The “tribal police force” is described in

the plaintiffs’ fourth claim as an ‘‘auxil-

iary private police force.” Other al-

legations are made against “agents of

the federal government” and “private

individuals.” This Court concludes that

allegations directed against nonparties,

individuals, a private police force, and

unidentified person not linked in any

way to the tribe or its officers, do not

constitute allegations of unlawful con-

duct under § 1302 by the defendant tribe

or its officers acting within the scope

of their offfice.

[18] Some courts have doubted that

the federal courts have jurisdiction over

tribal elections under 25 U.S.C.A. § 1302,

see, Groundhog v. Keeler, 442 F.2d 674,

682 (10th Cir. 1971), but certainly no

jurisdiction exists unless a claim is

complete and supported by well-pleaded

facts including facts which show that

a good faith resort to available tribal

remedies has failed. Solomon v. LaRose,

335 F.Supp. 715 (D.Neb.1971). Here

the complaint states no claim upon which

relief can be granted.

Upon careful consideration and for all

the above reasons, the defendants’ mo-

tion to dismiss is hereby granted and

plaintiffs’ complaint under 25 U.S.C. §

1302(1), (8) against the Oglala Sioux

Tribe and its officers is dismissed for

failure to state a claim upon which relief

can be granted.