Petition — Susenkewa v. Kleppe

IN THE MCAAEL RODAK, JR_CLERK |

Supreme Court of the Rnited States

OcToBER TERM, 1975

75-844

No. 75-

EMERSON SUSENKEWA, ET AL., Petitioners,

, 4

THomas S. Kiepps, Secretary of the Interior, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Rosert 8. PELCYGER

JoHN E, EcHoHAWK

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Counsel for Petitioners

Pauses or Brrow S. Apams Punrrinc, Inc., Wasurveron, D. C.

— =

TABLE OF CONTENTS

Page

Ce S66 C655 ci so bb abs Obes cabks behets cae 2

ee ae eeeaseeecaee ke ate 2

QUESTIONS PRESENTED ......... csc ccccccccccccces - 38

SraTuTEs AND RULES INVOLVED ..........02cccccccees 3

i he ck tence s aeen’ 7

Bi, TE 05.0.6 iG kc tnccesanedeceneadst< 7

ek Sy I I 6 oon ncn cendeusn séeece 9

C. Description of This Litigation ................ 12

i A BD hires Jai con bbedncseosdciven 16

Reasons For GRANTING THE WRIT ................2.-; 17

I. The Absence Of A Party Who Cannot Be Joined

Should Not Deprive An Aggrieved Person Of His

**Right’’ To Judicial Review Under The Admin-

Sees PS NO gas 6 kc et se bckeecesbece 19

A. The Decisions Below Conflict With National

SN i a a ea ee AE ee 19

B. The Decisions Below Discriminate Against

RR IE BPE. FOS PE ESE 23

C. There Is a Conflict in the Circuits ........... 25

II. Sovereign Immunity Does Not Preclude The

Joinder Of The Hopi Tribal Council ............ 28

A. The Denial of the Joinder Motions Conflicts

With Decisions of This Court and the Courts

FP EE ono ob cbccabebcewondetessedeas ci 28

B. Sovereign Immunity Does Not Apply to Al-

leged Ultra Vires Actions of Tribal Officials ;

the Decision Below Conflicts With Another

Court of Appeals Decision .................. 29

ii Table of Contents Continued

Page

III. The Hopi Tribe Is Not An Indispensable Party .. 30

A. An Indian Tribe Is Not an Indispensable Party

When Its Interests Are Being Fully and Ade-

quately Represented by the United States or

Se SY 0.9 0 04n9 5050 bane tdcaaenndsonmebas 30

B. This Court’s Leading Decision Interpreting

the 1966 Amendments to Rule 19 Was Ignored

by the Court Below; All Four Rule 19(b) Fac-

tors Plus Other Considerations Support a

Finding of Non-Indispensability ............ 31

ae OE gc tcciddedns cidesetecues 31

eee Ge ED Wkds cécicutécdcckucades 33

3. The fourth and first factors .............. 34

4. Other factors militate against dismissal .... 37

COONS vn orks eh cn cdntacdadsdadiacciseenetauss 39

TABLE OF AUTHORITIES

CasEs:

Abbott Laboratories v. Gardner, 387 U.S. 137 (1967) .. 23

Barlow v. Collins, 397 U.S. 159 (1970) .............. 23, 38

Bell v. Hood, 327 U.S. 678 (1946) .........ccccvccees 18

Bennie v. Pastor, 393 F.2d 1 (10th Cir. 1968) ........ 35

Bourdieu v. Pacific Western Oil Co., 299 U.S. 65 (1936)

33, 34, 38

Broussard vy. Columbia Gulf Transmission Co., 398 F.2d

eee Ge ME oc cé.b0 ad incbsakedacecsesakian 35

Cady v. Morton, — F.2d — (9th Cir. No. 74-1984, June -

Ek SE aks wits da wdenaibce<caant suduinkockenel 26, 27

Cheyenne River Sioux Tribe of Indians v. United

States, 338 F.2d 906 (8th Cir. 1964), cert. denied,

ee ey He ED ididené cus ectbeedeccléstauce 30

Choctaw and Chickasaw Nations v. Seitz, 193 F.2d 456

(10th Cir. 1951), cert. denied, 343 U.S. 919 (1952) 28

Citizens to Preserve Overtow Park v. Volpe, 401 U.S.

We SEE octsinceck” chek eben sdewwtadre dt 20, 22, 23

Czaplicki v. S.S. Hoegh Silvercloud, 351 U.S. 526 (1956) 17

Table of Contents Continued iii

Page

Davis v. Morton, 469 F.2d 593 (10th Cir. 1972)

25, 26, 27, 33, 36, 37

Dodd v. Spokane County, Wash., 393 F.2d 330 (9th Cir. -

FTE TES TOE PETE LETS § Fs RES YF 2 SERA

Dugan ogee aie EF) eres 29

Ex Parte Republic of Peru, 318 U.S. 578 (1943) . .18, 28, 39

Ex Parte Young, 209 U.S. 123 (1908) ............... 29

Federal Trade Commission v. Flotill Products, 389 U.S.

BOS CHEE dv die Cd cedcetiddecegtdus eeicdse sees: 15

Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970) .... 35

Gulf Ins. Co. v. Lane, 53 F.R.D. 107 (W.D. Okla. 1971) 35

Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962),

ee ee ee PE AEEEED bacwasvecdbereekevenes 16

Heckman v. United States, 224 U.S. 413 (1912)

18, 30, 31, 39

J. I. Case Co. v. Borak, 377 U.S. 426 (1964) ......... 18

Kennerly v. District Court, 400 U.S. 423 (1971) ...... 24

Kerrison v. Stewart, 93 U.S. 155 (1876) ............. 30

Larson v. Domestic & Foreign Commerce Corp., 337

ee in 0nd bo be6b Ode rde'ee gees 06d e's 29

Levin v. Mississippi River Corp., 289 F. Supp. 353

Ss ME evs cciksacpisiubedesibe vices

Tittell v. Morton, 445 F.2d 1207 (4th Cir. 1971), re-

versing Littell v. Hickel, 314 F.Supp. 1176 (D. Md.

1970) ; same case on remand, 369 F.Supp. 411 (D.

Md. 1974), aff’d 519 F.2d 1399 (4th Cir. 1975)

18, 25, 26, 27, 33, 40

McClanahan v. Arizona Tax Commission, 411 U.S. 164

DE ken ctrl ake che Ness dane cheba kee scites 24

Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) ....18, 30, 40

Morrissey v. Brewer, 408 U.S. 471 (1972) ............ 17

Morton v. Ruiz, 415 U.S. 199 (1974) ................ 24

Mott v. United States, 283 U.S. 747 (1931) .......... 14

National Licorice Co. v. National Labor Relations

Board, 309 U.S. 350 (1940) ............ 18, 19, 20, 21,

22, 31, 38, 39

Natural Resources Defense Council v. Morton, 458 F.2d

3S Re Oe eee oe 36

Natural Resources Defense Council v. Tennessee Valley

Authority, 340 F. Supp. 400 (S.D.N.Y. 1971), rev’d

on other grounds, 459 F.2d 255 (2d Cir. 1972) .... 32

EO e§GCOOoOr.T.TTT,Ll

iv Table of Contents Continued

Page

Owatonna Manufacturing Co. v. Melroe Co., 301 F.

Supp. 1296 (D. Minn. 1969) ............-02- 32, 35, 38

Pan American Petroleum Corp. v. Udall, 192 F. Supp.

638 (D.UAC. TEER) «xcs ccs 40s shnneeeeeeeeees

Petrol Shipping Corp. v. Kingdom of Greece, Ministry

of Commerce, 360 F.2d 103 (2d Cir. 1966), cert.

denied, 385 U.S. 981 (1967) 2... ccccccccccccsese 19, 28

Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968) .... 14

Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1966) ..... 17

Provident Tradesmens Bank & Trust Co. v. Patterson,

300 U.S. 208 (IBGR) ..cccccceces 7, 18, 31, 32, 33, 35, 39

Pueblo of Santa Rosa v. Fall, 273 U.S. 316 (1927) ... 24

Rush & Halloran, Inc. v. Delaware Valley Financial

Corp., 180 F. Supp. 63 (E.D. Pa. 1960) .......... 34

Scheuer v. Rhodes, 416 U.S. 232 (1974) .............. 29

Seminole Nation v. United States, 316 U.S. 286 (1942) 24

Shields v. Barrow, 58 U.S. (17 How.) 130 (1855) . .21, 22, 30

Sierra Club v. Morton, 405 U.S. 727 (1972) .......... 23

Smith v. American Federation of Musicians of U.S. &

_ Can., 47 F.R.D. 152 (S.D.N.Y. 1969) ............32, 35

Stumpf v. Fidelity Gas Co., 294 F.2d 886 (9th Cir. 1961) 34

Tewa Tesuque v. Morton, 498 F.2d 240 (10th Cir. 1974),

cert. denied, 420 U.S. 962 (1975) ................ 26

Tooahnippah v. Hickel, 397 U.S. 598 (1970) ........ 20, 38

United States v. Winans, 198 U.S. 371 (1905) ........ 39

White Mountain Apache Indian Tribe v. Shelley, 107

Ariz. 4, 480 P.2d 654 (1971) (en banc) .......... 18, 30

Wilderness Society v. Morton, 479 F.2d 842 (D.C. Cir.

_ 1973) (en banc), cert. den*-d, 411 U.S. 917 (1973) 36

Young v. United Steelworkers of America, 49 F.R.D.

14 (ED. Pa. WG) ..cccccecneeseeunae 35

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1908) ......sccucseveeneueuneenelelaaannnn 37

STATUTES AND RULEs:

3 UBC. §S0Gs ..cccccsccekseuunnel 5, 12, 13, 14, 37

25 UB.C. ¢ O61 of e0@. ..00csecnccscduccenneeneee 7,8

DS UBL. $6 2... ccccsecescceneuneal 4, 7, 22, 24

28 UBC. 6 1956 ........000s0u0nneun senna 2

Table of Contents Continued Vv

Page

Administrative Procedure Act, 5 U.S.C. §§ 701-706

3, 12, 13, 19, 20,

23, 25, 26, 35

err 33

Fep. R. Crv. Proc. Rule 19 ...............- , -D, 6, 19, 28, 31,

33, 34, 35, 37, 38

ED . «8 6s os co cceseueeeoceees 33

Lecis.aTive History:

S. Rep. No. 1992, 87th Cong. 2d Sess., reprinted at 1962

U.S. Code Cong. & Admin. News 2784 ........... 23

OTHER AUTHORITIES:

Advisory Committee’s Notes to the 1966 Revision of

i ML Mec bc ccveecetecesscsns 32, 33, 37

‘‘The Indian: The Forgotten American,’’ 81 Harv. L.

Te ieee eee dedeecasecteccoess 23

Hopi Constitution and By-laws ................-. Passim

Proclamation of the Secretary of Interior, December

4 FOF eer yerrrer ee 11, 12

IN THE

Supreme Court of the Anited States

OctToBEeR TERM, 1975

No. 75-

EMERSON SUSENKEWA, ET AL., Petitioners,

v.

Tuomas S. Kiepre, Secretary of the Interior, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Emerson Susenkewa and sixty (60) other Hopi

Indians petition for a writ of certiorari to review

1 This case was filed sub nom. Lomayaktewa v. Morton. It was de-

cided in the court of appeals sub nom. Lomayaktewa v. Hathaway.

As noted by the court of appeals (App. 2a), Starlie Lomayaktewa,

originally the first named of the 62 Hopi Indian plaintiffs, dis-

missed his appeal prior to oral argument. Hence, Emerson Susen-

kewa, the second named Hopi plaintiff, is the lead petitioner here.

We have substituted the new Secretary of the Interior, Thomas S.

Kleppe, for the former Secretary Hathaway in accordance with

Rule 48(3) of Supreme Court Rules.

2

the judgment of the United States Court of Appeals

for the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. la-6a) ?

is reported at 520 F.2d 1324 (9th Cir. 1975). The dis-

trict court’s ‘Order of Dismissal’’ (App. 7a-9a) is not

reported.

JURISDICTION

The judgment of the court of appeals was entered on

July 25, 1975. A timely petition for rehearing was

denied on September 18, 1975 (App. 6a). The juris-

diction of this Court is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1, Should an Indian tribe be regarded as an indis-

pensable party in an Administrative Procedure Act

suit brought by individual Indians invoking rights

under the tribal constitution that challenges the legality

of the Secretary of the Interior’s approval of a mining

lease between the tribe and a coal company ?

2. Does sovereign immunity preclude joinder of

sovereign entities before sovereign immunity has been

raised a& a defense? .

3. Does sovereign immunity preclude judicial review

of the actions of tribal officials or tribal entities that

are allegedly in excess of their authority under the

tribal constitution ?

?“*App.”’ refers to the separately bound appendix to the peti-

tion for a writ of certiorari.

3

STATUTES AND RULES INVOLVED

Administrative Procedure Act

The relevant portions of the Administrative Pro-

cedure Act, 5 U.S.C. §§ 702 and 706, provide:

5 U.S.C. § 702. Right of review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by

agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.

5 U.S.C. § 706. Scope of review

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant questions of law, interpret constitutional

and statutory provisions, and determine the mean-

ing or licability of the terms of an agency

action. The reviewing court shall—

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of dis-

eretion, or otherwise not in accordance with

law;

(C) in excess of statutory jurisdiction, au-

thority, or limitations, or short of statutory

right;

(D) without observance of procedure re-

quired by law;

+ ; n 5

Indian Reorganization Act of all appropriation estimates or Federal pro-

Section 16 of the Indian Reorganization Act, Act of —_ hn Hage —— vow a to 7

June 18, 1934, 48 Stat. 984, 987, codified at 25 U.S.C. the Bu ies vu oh ten +o eee

§ 476, provides: es

Organization of Indian tribes; constitution and Indian Mineral Leasing Act

by-laws; special election

Any Indian tribe, or tribes, residing on the

same reservation, shall have the right to organ-

ize for its common welfare, and may adopt an

appropriate constitution and bylaws, which shall

become effective when ratified by a majority

vote of the adult members of the tribe, or of the

adult Indians residing on such reservation, as

the case may be, at a special election authorized

and called by the Secretary of the Interior under

such rules and regulations as he may prescribe.

Such constitution and by-laws, when ratihed as

aforesaid and approved by the Secretary of the

Interior, shall be revocable by an election open

to the same voters and conducted in the same

manner as hereinabove provided. Amendments

to the constitution and by-laws may be ratified

and approved by the Secretary in the same man-

ner as the original constitution and by-laws.

In addition to all powers vested in any Indian

tribe or tribal council by existing law, the consti-

tution adopted by said tribe shall also vest in

such tribe or its tribal council the following

rights and powers: To employ legal counsel, the

choice of counsel and fixing of fees to be subject

to the approval of the Secretary of the Interior;

to prevent the sale, disposition, lease, or encum-

brance of tribal] lands, interests in lands, or other

tribal assets without the consent of the tribe;

and to negotiate with the Federal, State, and

local Governments. The Secretary of the Inter-

ior shall advise such tribe or its tribal council

25 U.S.C. § 396a. Leases of unallotted lands for min-

ing purposes; duration of leases

On and after May 11, 1938 unallotte. sands

within any Indian reservation or lands owned

by any tribe, group, or band of Indians under

ederal jurisdiction, except those specifically

excepted from the provisions of this section by

section 396f of this title, may, with the approval

of the Secretary of the Interior, be leased for

mining p , by authority of the tribal

council or other authorized spokesmen for such

Indians, for terms not to exceed ten years and

as long thereafter as minerals are produced in

paying quantities.

Rule 19, Fed. R. Civ. P.

Rule 19 of the Federal Rules of Civil Procedure, as

amended effective July 1, 1966, provides:

Rule 19. Joinder of Persons Needed for Just Ad-

judication

(a) PERsoNS TO BE JOINED IF FEASIBLE. A

person who is subject to service of process and

whose joinder will not deprive the court of juris-

diction over the subject matter of the action shall

be joined as a party in the action if (1) in his

absence complete relief cannot be accorded among

those already parties, or (2) he claims an interest

relating to the subject of the action and is so situ-

ated that the disposition of the action in his absence

6

may (i) as a practical matter impair or impede

his ability to protect that interest or (ii) leave any

of the persons already parties subject to a sub-

stantial risk of incurring double, multiple, or other-

wise inconsistent obligations by reason of his

claimed interest. If he has not been so joined, the

court shall order that he be made a party. If he

should join as a plaintiff but refuses to do so, he

may be made a defendant, or, in a proper case, an

involuntary plaintiff. If the joined party objects

to venue and his joinder would render the venue

of the action improper, he shall be dismissed from

the action.

(b) DETERMINATION BY CouURT WHENEVER

JoINDER Not Frastste. If a person as described

in subdivision (a) (1)-(2) hereof cannot be made

a party, the court shall determine whether in equity

and good conscience the action should proceed

among the parties before it, or should be dismissed,

the absent person being thus regarded as indis-

pensable. The factors to be considered by the court

include: first, to what extent a judgment rendered

in the person’s absence might be prejudicial to him

or those already parties; second, the extent to

which, by protective provisions in the judgment,

by the shaping of relief, or other measures, the

prejudice can be lessened or avoided ; third, wheth-

er a judgment rendered in the person’s absence will

be adequate ; fourth, whether the plaintiff will have

an adequate remedy if the action is dismissed for

nonjoinder.

(ec) PLEaDING Reasons FOR NONJOINDER. A

pleading asserting a claim for relief shall state the

names, if known to the pleader, of any persons

described in subdivision (a) (1)-(2) hereof who

are not joined, and the reasons why they are not

joined.

(d) Exception or Crass Actions. This rule

is subject to the provisions of Rule 23.

7

Hopi Constitution and By-laws

The Hopi Constitution and By-laws are reprinted in

the separately bound Appendix to this petition at pp.

30a-45a. The particular provisions that are most rele-

vant to this proceeding are cited, described or quoted

infra at pp. 9-14. The Constitution has a higher status

than Departmental regulations and was specifically

made binding on all officers and employees of the In-

terior Department. (App. 45a.) It can be amended

only by a majority vote of the adult members of the

Hopi Tribe. 25 U.S.C. § 476.

STATEMENT OF THE CASE

A longer than usual description of this case is neces-

sary because of the cursory and inaccurate treatment it

received in both opinions below. As this Court em-

phasized in its leading Rule 19 case following the 1966

amendments, Provident Tradesmens Bank & Trust Co.

v. Patterson, 390 U.S. 102 (1968), application of Rule

19(b)’s ‘‘equity and good conscience’’ test requires

careful scrutiny of the circumstances of each case.

A. Background

The setting of this case starts with conditions when

the Indian Reorganization Act (IRA) was enacted in

1934. The IRA, 25 U.S.C. §§ 461 et seq., explicitly re-

pealed the then discredited allotment policy and was in-

tended to rejuvenate Indian tribal governments, many

of which had been destroyed by prior federal policy

and the effects of allotment. Section 16 of the Act, 25

U.S.C. § 476, provided a mechanism for tribes to adopt

a constitution and by-laws under the auspices and sub-

ject to the approval of the Secretary of the Interior.

Of all the nation’s Indian tribes, the Hopis probably

had the least need for the IRA. The Hopi Reserva-

8

tion, set aside by Executive Order in 1882, had never

been allotted. Spared of allotment, insulated from

most contact with whites, surrounded by Navajos, and

tied together by their incredibly strong and all-perva-

sive religious way of life, the Hopis remained then

and still remain the least assimilated of all American

Indians. (App. 60a.) They have always maintained

their traditional governmental structure under which

authority was exercised by the religious leaders of the

self-governing villages, comparable in some respects to

the city-states of ancient Greece. Prior to 1936, there

had never been any central entity corresponding to the

Hopi Tribal Council.

Nonetheless, exemplifying the perversity that

threads its way through so much federal Indian policy

and law, it was the Hopis’ fate to become a test case

for the new policy. If the Hopis could be convinced to

adopt the IRA, according to the reasoning in official

circles, so could all of the other Indian tribes.

Mr. Oliver LaFarge, an official of the Bureau of

Indian Affairs from Washington who later founded the

Association on American Indian Affairs, was assigned

the delicate task of negotiating the contents of the new,

written constitution with the Hopis. After several

weeks on the Reservation, on August 28, 1936, he wrote

a memorandum to the Commissioner of Indian Affairs

which accompanied and explained a draft of the pro-

posed constitution (App. 52a-60a.) This communica-

tion is vitally important because it forms the backdrop

to this litigation. Mr. LaFarge wrote (App. 52a-53a) :

About 80% of these Indians follow the Hopi re-

ligious and civil establishment today, and desire

to continue so doing. They will accept nothing

which goes contrary to it. Hence it is necessary

9

so to write the document that the old Hopi organi-

zation is recognized and protected, and at the same

time, so that when the various villages reach the

point at which their majorities will wish to take up

more modern methods, they will be free to do so.

Mr. LaFarge went on to say:

In the experience of these Indians, the white

man is hostile to the Hopi culture and all that goes

with it. Ultimate adoption or rejection of the pro-

posed Constitution will depend on whether it is

clearly not inconsistent with that culture. When

it is returned from Washington, it will be very

earefully examined for changes. The white man,

they say, ‘‘talks very cleverly to the Hopis. Then

he goes back to bby omay and does just the other

way. Every time the Hopis lose something and the

promise is broken.’’

B. The Hopi Constitution

With minor modification, the constitution proposed

by Mr. LaF arge was presented to the Hopis and, follow-

ing a disputed election in October 1936, its adoption

was certified and approved by the Secretary of the

Interior. All of the plaintiffs’ claims are founded upon

its provisions which, as we shall now show, were care-

fully drafted to safeguard the traditional Hopi way of

life until the people of the villages should vote af-

firmatively to replace the traditional governments with

more modern forms of organization.

Article ITI, section 1 of the Constitution provides

that the ‘‘Hopi Tribe is a union of self-governing vil-

lages sharing common interests and working for the

common benefit of all’’ and then lists the nine Hopi vil-

lages. (App. 32a.) Article III, section 2, specifically

preserves certain powers of the villages. Sections 3

10

and 4 of Article III are critical to the issues presented

in this case. Section 3 provides that each village shall

determine its own form of organization but that until

it decides to organize in another manner it ‘‘shall be

considered as being under the traditional Hopi organi-

zation, and the Kikmongwi of such village shall be re-

cognized as its leader.’’* (App. 32a.) Section 4 sets

forth the procedure by which, as Mr. LaFarge had put

it, the villages could elect to take up more modern

methods. Proposed village constitutions could be

drawn up, circulated and made known to the members

of the village, and then voted upon at the request of

the village Kikmongwi or 25% of the village’s voting

members. The constitution would be deemed adopted

if not less than half of the voting members of the vil-

lage cast their votes and a majority of those voting

accepted it. Section 4 goes on to say: ‘‘The village Con-

stitution shall clearly say how the Council representa-

tives and other village officials shall be chosen, as well

as the official who shall perform the duties placed upon

the Kikmongwi in this Constitution.’’ (App. 33a.)

In the 39 years that the Hopi Constitution has been in

effect_only one of the Hopi villages, Upper Moencopi,

has opted to replace the traditional form of government

through the procedure set forth in Article III, section

4. (R.O.A., Vol. 3, pp. 558 and 750.) *

Article IV of the Hopi Constitution defines the

makeup of the Council. The Council is to consist of

’ The Kikmongwi is the traditional religious leader of the village

whose position is inherited. See App. 54a.

***R.0.A."’ refers to the four volume record on appeal which we

have requested the clerk of the Ninth Circuit Court of Appeals to

certify and transmit to this Court. The fifth volume, consisting of

two transcripts of proceedings, has not been included.

11

representatives of the various villages. Demonstrat-

ing again the deference to and protection of the tradi-

tional «ay of life, Article IV, section 4 provides that

‘‘Trjepresentatives shall be recognized by the Council

only if they are certified by the Kikmongwi of their

respective villages.’’ (App. 34a.)

Article VI (App. 35a) deals with the powers of the

Tribal Council. In a contemporaneous (1937) opinion

declaring invalid one of the first ordinances enacted

by the Hopi Tribal Council, the Solicitor of the Inter-

ior Department stated that the powers of the new

Council were to be ‘‘as close to the legal minimum as

possible.’”’ (App. 50a.) Under Article VI, section 4

of the Hopi Constitution, all rights and powers of the

Hopi Tribe which are not expressly delegated to the

Tribal Council are retained by the Tribe and may be

exercised through the adoption of appropriate by laws

and amendments. (App. 38a.) Article VI, section 3

provides that the Tribal Council may exercise such

further powers as might in the future be delegated to

it by the members of the Tribe, or by the Secretary of

the Interior, ‘‘or any other duly authorized official or

agency of the State or Federal Government.’’ (App.

38a.)

Secretary of the Interior Harold L. Ickes approved

the Hopi Constitution and By-laws by a proclamation

dated December 19, 1936. (App. 45a.) Secretary

Tckes directed that:

All rules and regulation heretofore promulgated

by the Interior Department or by the Office of

Indian Affairs, so far as they may be incompatible

with any of the provisions of the said Constitution

and By-laws are hereby declared inapplicable

to these Indians.

0

12

All officers and employees of the Interior De-

partment are ordered to abide by the provisions

of the said Constitution and By-laws.

The constitution remained in its original form until

certain amendments, not material to this action, were

adopted in 1969. (App. 46a-49a.)

C. Description of this Litigation

Plaintiffs originally brought suit in the United States

District Court for the District of Columbia against

the Secretary of the Interior and the Peabody Coal

Company seeking to set aside the Secretary’s approval

of a 1966 lease (hereinafter referred to as ‘‘the Black

Mesa lease’’) entered into between the Hopi Tribal

Council and defendant Peabody’s predecessor in in-

terest.© (The complaint, together with its exhibits, is

reproduced at pp. 10a-5la of the separately bound Ap-

pendix to this Petition.) The Secretary’s approval of

the lease is required by statute, 25 U.S.C. § 396a. Speci-

tically invoking the judicial review provisions of the

Administrative Procedure Act, 5 U.S.C. §§ 701 et seq.,

the plaintiffs claimed that the Secretary’s approval

was arbitrary, capricious, an abuse of discretion, not

in accordance with law and in excess of his statutory

authority. No specific relief was sought against de-

fendant Peabody. The intervenors are six power com-

5 The United States District Court for the District of Columbia

ordered this case transferred to the Federal District Court in

Arizona. Plaintiffs’ petitions to the United States Court of Ap-

peals for the District of Columbia Cireuit and to this Court seek-

ing to reverse this transfer order were unsuccessful. 409 U.S.

843.

13

panies who have contracted with defendant Peabody

for Black Mesa coal.*

The plaintiffs are approximately 60 members of the

Hopi Tribe, who include the Kikmongwis and other

religious leaders from all of the Hopi villages.’ Their

complaint sets forth three causes of action, all of which

are predicated upon provisions of the Hopi Constitu-

tion designed to protect the traditional Hopi way of

life. None of the rights asserted by the plaintiffs

arises out of, or is in any way affected by or dependent

on, the terms or provisions of the lease.

The first cause of action (App. 19a-2la) alleges,

in substance, that the Secretary of the Interior’s ap-

proval of the Black Mesa strip mining lease is invalid

and must be set aside because the Hopi Tribal Council

*The court of appeals incorrectly states (App. 2a) that this

action was brought to void the lease. It is an action under the

Administrative Procedure Act (that vital fact is not mentioned

in the decision below) to set aside the Secretary’s approval of

the lease. No relief is sought with regard to the underlying lease.

The court of appeals also erred in describing the term of the

lease as ten years. (App. 2a.) The statute, 25 U.S.C. § 396a,

supra, p. 4, authorizes leases of tribal lands ‘‘for terms not to

exceed ten years and as long thereafter as minerals are produced

in paying quantities.’’ The lease tracks the statutory language.

(R.0.A., vol. 2, p. 402.) It is now anticipated that coal will be

extracted for at least 35 years from 1971, or until 2006. (R.O.A.,

vol. 1, pp. 208-209.)

™ The court of appeals gratuitously and somewhat hostilely com-

ments that the plaintiffs number 62 of a tribe of more than 5,000

Hopi Indians. (App. 2a.) We do not know of any rule that

requires the Hopi plaintiffs, or anyone else, to seek out, identify

and name as co-plaintiffs all individuals or entities that agree with

their position. Indeed, plaintiffs thought that by going to the

trouble of identifying and naming some 62 plaintiffs, when one

would have sufficed, they would have demonstrated that a substan-

tial portion of the Hopi Tribe shares their views.

rE

14

did not have the authority to enter into the lease on

behalf of the Hopi Tribe. The plaintiffs rely on the

Hopi Constitution and By-laws which, they claim,

specifically withheld the power to lease or dispose of

Hopi lands.

Both the Secretary of the Interior and the Tribal

council also coneluded that the Tribal Council had not

been delegated leasing authority from the Tribe (App.

6la-66a). However, invoking Article VI, section 3

(App. 38a supra, p. 11) of the Hopi Constitution and

at the Council’s request, the Secretary purported to

delegate authority to enter into mineral leases to the

Hopi Tribal Council. (App. 63a-66a.) The validity

of the Secretary’s approval of the Black Mesa lease

thus turns on the validity of this purported delega-

tion." This purported delegation demonstrates that

the Secretary was not a passive observer merely

rubber-stamping his approval of the lease. The Sec-

retary’s role was pivotal. Without the purported

delegation, there would not have been a Black Mesa

lease.

In their second cause of action (App. 21a-23a) plain-

tiffs contend that when the Black Mesa lease was au-

* It is clear that the Secretary committed a gross error. Article

VI, section 4 of the Hopi Constitution specifically provides that the

Hopi Tribe retains all powers not ‘‘erpressly’’ delegated to the

Tribal Coune,!. Pursuant to Article VI, section 3 the Tribal Coun-

cil is authorized to exercise such further powers as may in the

future be delegated to it by the Secretary, the Tribe or anyone

else. his provision obviously contemplates that these persons

or entities could delegate his ur its powers to the Council. But

the Secretary does not have the power to lease tribal lands in the

first instance. 25 U.S.C. § 3962; Poafpybitty v. Skelly Oil Co.,

390 U.S. 365 (1968); Mott v. United States, 283 U.S. 747 (1931).

Obviously, the Secretary could not validly delegate to the Council

a power that he could not validly exercise himself.

15

thorized by the Council, several of its members had not

been certified by the Kikmongwis of their respective

villages as required by Article IV, section 4. Of the

18 Council seats, only 11 were filled and of these only

6 or 7 were properly certified.* Therefore, at the time

the Black Mesa lease was authorized by the Council,

there was no quorum as defined by Article IV, section

6 of the Hopi Constitution and the Secretary of the

Interior acted illegally in approving any actions taken

at that meeting.

The complaint’s third cause of action (App. 24a-

25a) alleges in general that the Secretary acted arbi-

trarily, capriciously and abused his discretion in the

manner in which he has administered Hopi affairs

and his obligations to the plaintiffs under the Unuted

States and Hopi Constitutions and that he has engaged

in a pattern and practice of discriminating against

one faction of Hopis in favor of another. It is further

alleged that the Secretary’s arbitrary and capricious

conduct has resulted in the execution and approval of

the Black Mesa strip mining lease. This cause of action

is the least developed in terms of documentation and

discovery of relevant records. It obviously draws in

part on the substantiated allegations of the first and

second causes of action.

- —

® Most of these allegations have been admitted by the Secretary

of the Interior in discovery conducted prior to the district court’s

dismissal. See R.O.A., vol. 3, pp. 558-560, 750 and 751.

1 Article IV, section 6 provides: ‘‘No business shall be done

unless at least a majority of the members are present.’’ This

means that if there are 18 seats on the Council, a majority, or 10,

is required to conduct business. See Federal Trade Commission

v. Flotill Products, 389 U.S. 179 (1967).

16

D. Procedural History

The defendants and the intervenors moved to dismiss

this case on several grounds (R.O.A., vol. 1, pp. 111

et seq., 166 et seq., and vol 2, pp. 338 et seg.) while the

plaintiffs moved for summary judgment on their first

cause of action. (R.O.A., vol. 2, pp. 358 et seq.) Upon

the motion of defendant Peabody (R.0.A., vol. 4, pp.

859 et seq.), the court ordered a briefing schedule and

hearing limited to the motion to dismiss the complaint

for failure to join the Navajo and Hopi Indian Tribes

and the United States as indispensable parties (R.O.A.,

vol. 4, p. 1018). The plaintiffs then moved to join the

United States and the Hopi Tribal Council as parties

defendant and also moved to join the Navajo Tribe as

a party, or, in the alternative, to give notice of the

pendency of this action to the Navajo Tribe (App.

67a-T1a)."" The plaintiffs’ joinder notions, which

were not mentioned by the court of appeals, alleged

that the Hopi and Navajo Tribes and the United States

were not indispensable parties. The plaintiffs requested

that the joinder order provide that the action would

proceed in the absence of the Hopi and Navajo Tribes

and the United States if they were unwilling to join.

On February 16, 1973, the District Court entered its

order (App. 7a-9a) denying the plaintiffs’ motion to

™! The interest of the Navajo Tribe arises by vi its joi

ownership with the Hopi Tribe of the area ad ee fe

Mesa lease. See Healing v. Jones, 210 F.Supp 125 (D. Ariz. 1962)

af'’d 373 U.S. 758 (1963). The Navajos executed a separate lease

with Peabody's predecessor which is not at issue in this litigation.

17

join and dismissing the complaint for failure to join

indispensable parties. ”

On appeal, the Court of Appeals for the Ninth Cir-

cuit affirmed, holding that the Hopi Tribe was an

indispensable party which could not be joined because

of its sovereign immunity. It specifically declined to

reach the alleged indispensability and sovereign im-

munity of the Navajo Tribe and the United States.

(App. 2a.)

REASONS FOR GRANTING THE WRIT

The Hopi Tribal Council was supposed to be the

servant of the Hopi Indians, but by the distorted rea-

soning of the courts below, it has been transformed into

their absolute master. The lower courts held, though

their opinions do not even acknowledge it, that the

rights granted, recognized or protected by the Hopi

Constitution are as fragile as the paper on which they

are written for they can be violated with impunity by

12 Thovgh it is far from clear, the district court’s order may

also have been based on the alternitive ground of laches. (App

8a-9a.) Laches had not been raised in any of the defendants’ or

intervenors’ motions to dismiss and the court had issued an order

that specifically limited the briefing and the hearing on the motion

to dismiss to the indispensable party issue. Consequently, the dis-

trict court’s finding the plaintiffs guilty of laches clearly consti-

tuted a denial of due process of law. Morrissey v. Brewer, 408

U.S. 471 (1972) ; Dodd v. Spokane County, Wash., 393 F.2d 330

(9th Cir. 1968). This is especially true since the very nature of

the laches defense clearly requires an opportunity for an evi-

dentiary hearing. Czaplicki v. 8.S. Hoegh Silvercloud, 351 U.S.

525 (1956) ; Powell v. Zuckert, 366 F.2d 634 (D.C. Cir. 1966).

18 Hence ,the only questions raised in this petition concern the

alleged indispensabilty and sovereign immunity of the Hopi Tribe.

If this Court should grant the petition for a writ of certiorari and

reverse, the Ninth Circuit would then be called upon to rule on

the issues that it left undecided, including laches.

18

the Hopi Tribal Council. The decisions below must

also be taken to hold, again sub silentio, that though

the Secretary exceeded his authority in approving the

lease and violated the plaintiffs’ rights in the process,

there is no judicial remedy. It is as if American courts

were powerless to grant relief to American citizens

when the federal government ignores the Bill of Rights.

Needless to say, concluding that Congress created

remediless rights is not a result that is easily reached. “

The decision of the district court and the court of

appeals are inconsistent with no fewer than four deci-

sions of this Court, none of which was even mentioned

in either opinion. National Licorice Co. v. National

Labor Relations Board, 309 U.S. 350 (1940); Provi-

dent Tradesmens Bank & Trust Co. v. Patterson, 390

U.S. 102 (1968); Heckman v. United States, 224 U.S.

413 (1912); and Ex Parte Republic of Peru, 318 U.S.

578 (1943). Further, the decision of the court of

appeals has created a conflict in the circuits on three

important issues: whether federal courts can consider

the merits of challenges to the legality of the Secretary

of the Interior’s action approving or implementing

contracts with Indians despite the absence of the tribal

signatories; ** whether sovereign immunity can insulate

the alleged u/tra vires actions of the tribal officials from

judicial review;"* and whether sovereign immunity

J. I. Case Co. v. Borak, 377 U.S. 426, 433-434 (1964); Bell

v. Hood, 327 U.S. 678, 684 (1946).

1 Compare the decision of the court of appeals below with

Littell v. Morton, 445 F.2d 1207 (4th Cir. 1971) and Davis v.

Morton, 469 F.2d 593 (10th Cir. 1972).

'® Compare the decision below with Means v. Wilson, 522 F.2d

833 (8th Cir. 1975). See also White Mountain Apache Indian

Tribe v. Shelley, 107 Ariz. 4, 480 P.2d 654 (1971) (en banc).

19

precludes the joinder of sovereign entities before that

defense has been raised." It does not properly analyze

three of Rule 19(b)’s four factors. It nullifies virtu-

ally all of the provisions of the Hopi Constitution which

were carefully drafted to preserve traditional Hopi

ways until the Hopis themselves should vote for change.

And it takes away from the Hopis and all other simi-

larly situated American Indians their rights, as ag-

grieved persons, to judicial review of agency actions

when their tribal councils refuse to participate in

litigation.

For the reasons set forth in this Petition, most par-

ticularly the court of appeals’ total disregard of four

controlling decisions of this Court, the decision of the

court of appeals is an apt candidate for summary

reversal.

L

THE ABSENCE OF A PARTY WHO CANNOT BE JOINED

SHOULD NOT DEPRIVE AN AGGRIEVED PERSON OF

HIS “RIGHT” TO JUDICIAL REVIEW UNDER THE

ADMINISTRATIVE PROCEDURE ACT.

A. The Decisions Below Conflict with National Licorice.

The Administrative Procedure Act, 5 U.S.C. § 702,

provides that ‘‘A person suffering legal wrong because

of agency action, or adversely affected or aggrieved

by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.’’ (Em-

phasis added.) We are not aware of any other author-

ity holding that the vital right afforded by this

statute may be extinguished by the impossibility of

17 Compare the decision below with Petrol Shipping Corp. v.

Kingdom of Greece, Ministry of Commerce, 360 F.2d 103, 106 (2d

Cir. 1966), cert. denied, 385 U.S. 931 (1967).

20

obtaining jurisdiction over an absent party. Certainly

this Court has never sanctioned such a result

This Court held in Tooahnippah v. H ickel, 397 U.S.

598 (1970), that the Secretary of the Interior’s ap-

proval of a disposition of Indian property is subject

to judicial review under the Administrative Procedure

Act. Though Tooahnippah involved the Secretary’s

approval of a will, whereas the subject of this case is

his approval of a lease, there is no meaningful distine-

tion between the two functions so far as judicial review

under the Administrative Procedure Act is con-

cerned, **

National Licorice Co. v. NLRB, supra, 309 U.S. 350,

holds that the ordinary rules governing joinder of

parties in private litigation do not apply in suits

brought to protect or enforce public rights. National

Licorice involved an order issued by the National Labor

Relations Board which prohibited an employer from

giving effect to contracts that he had entered into with

his individual employees. This Court held that the

order could be enforced despite the absence of the indi-

vidual employees. The rationale was that absent

parties to a contract are not regarded as indispensable

to a suit to prevent its enforcement where the rights

asserted by the plaintiffs arise independently of the

* In this case, the Secretary admitted that: ‘‘Prior to approv-

ing a lease of Indian tribal lands for mineral or other purposes,

the Secretary of the Interior must be satisfied that the prospective

lessor of tribal lands is an entity or individual with the legal

authority to execute leases of tribal lands.”’ (R.0.A., vol. 2, pp.

557 and 748.) Thus there is manifestly ‘‘law to apply’’ and the

‘“narrow’’ exception to the Administrative Procedure Act for

" agency actions committed to agency discretion by law”? is plainly

inapplicable. Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 410-413 (1971).

21

contract, particularly where they are founded upon the

public laws of the United States.

In a proceeding so narrowly restricted to the

protection and enforcement of public rights, there

is little scope or need for the traditional rules

governing the joinder of parties in litigation de-

termining = rights. Ordinarily where the

rights involved in litigation a a contract,

the parties to the contract if the others are not

before it. [Citing, inter alia, Shields v. Barrow,

08 U.S. (17 How.) 130, 140.] Such a judgment or

decree would be futile if rendered, since the eon-

tract rights asserted by those present in the litiga-

tion could neither be defined, aided nor enforced

by a decree which did not bind those not present.

But different considerations may apply even in

private litigation where the rights asserted arise

independently of any contract which an adverse

party may have made with another, not a party

to the suit, even though their assertion may affect

the ability of the former to fulfill his contract.

The rights asserted in the suit and those arising

upon the contract are distinet and separate, so that

the Court may, in a proper case, proceed to judg-

ment without joining other parties to the con-

tract, shaping its decree in such manner as to

preserve the rights of those not before it [citations

omitted ].

National Licorice Co. v. National Labor Relations

Board, supra, 309 U.S. at 363. As noted, in this pass-

age this Court cited and distinguished the line of cases

originating with Shields vy. Barrow, 58 U.S. (17 How.)

130 (1855), on which the court of appeals rested its

decision in this case.

22

This Court and others have paid unspoken allegiance

to the principle of National Licorice in not applying

strict joinder rules in suits seeking the enforcement of

publie rights. One recent example of this is Citizens

to Preserve Overton Park vy. Volpe, 401 U.S. 402

(1971), in which the City of Memphis was not a party

to a suit challenging the federal government’s approval

of the City’s decision to build a highway through a

City Park.” If all parties who stand to be affected by

the outcome of suits challenging agency actions must

be joined pursuant to Rule 19(a), much of that litiga-

tion would quickly become unmanageable, and if such

parties are deemed indispensable, no single court could

obtain jurisdiction over many such controversies.

The public rights that the plaintiffs seek to enforce

in this action arise under the Hopi Constitution and

By-laws, adopted by the Hopi Tribe and approved by

the Secretary of the Interior pursuant to the Indian

Reorganization Act, 25 U.S.C. § 476. They do not de-

pend upon any provision, actual or potential, of the

lease between the Hopi Tribe and the Peabody Coal

Company or upon any action or failure to act of any

of the parties in the performance of the contract. The

plaintiffs claim that the Secretary exceeded his au-

thority in approving the lease because the Hopi Tribe

has not authorized the Hopi Tribal Council to lease

tribal lands and because the Hopi Tribal Council which

entered into the lease was not properly constituted.

This case so clearly comes within National Licorice’s

qualification to the rule of Shields v. Barrow that sum-

mary reversal is warranted on this basis alone.

The City of Memphis did participate in an amicus curiae

capacity before this Court. See 28 L.Ed.2d at 924.

23

B. The Decisions Below Discriminate Against Indians.

The effect of the decisions below is to carve out a

significant exception to the “‘generous”’ judicial review

provisions of the Administrative Procedure Act.”°

Secretarial approvals of actions taken by Indian tribal

counciis are, under this view, shielded from review, even

where Secretarial approval is required by Congress and

is alleged to have been illegally given, unless the tribe

itself brings the suit or consents to being joined. This

inroad works a particular injustice on reservation

Indians who probably have more need than anyone

else to hold government and tribal officials accountable

for their actions.”

The practical result of the court of appeals’ decision

is to permit the Secretary to hide his illegalities behind

tribal entities, at least as long as they are willing to

play along. But this Court has expressly held to the

*° See Abbott Laboratories vy. Gardner, 387 U.S. 137, 140-1

(1967) ; Barlow v. Collins, 397 U.S. 159, 166-7 (1970) ; and Citizens

to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971). The

decision below runs counter not only to these recent decisions con-

struing the Administrative Procedure Act but also to this Court’s

expansion of the concept of Standing in actions against public

officials to include non-economic injuries, see Sierra Club v. Mor-

ton, 405 U.S. 727, 738 (1972), and to Congress’ efforts ‘‘to facili-

tate review by the Federal Courts of administrative actions.’’

S. Rep. No. 1992, 87th Cong. 2d Sess., reprinted at 1962 U.S.

Code Cong. & Admin. News 2784 at 2785, reporting on the bill,

now 28 U.S.C. §1391(e), that permits federal Officials to be sued

in any federal district court.

*1 See, e.g., Note, ‘‘The Indian: The Forgotten American,”’ 81

Harv, L. Rev. 1818 at 1820 (1968): ‘‘[A]lthough the normal ex-

pectation in American Society is that a private individual or group

may do anything unless it is specifically prohibited by the gov-

ernment, it might be said that the normal expectation on the reser-

vation is that the Indians may not do anything unless it is speci-

fically permitted by the government. ”’

24

contrary. The actions of tribal officials cannot insulate

responsible government officials from being held ac-

countable for violating their obligations to individual

Indians. Seminole Nation y. United States, 316 U.S.

286, 295-301 (1942). In another context, this Court

has not hesitated to declare invalid the ultra vires

actions of an Indian tribal council which resulted in in-

dividual Indians illegally being subjected to state court

jurisdiction. Kennerly v. District Court, 400 U.S. 423

(1971). See also Pueblo of Santa Rosa v. Fall, 273

U.S. 316 (1927). And this Court has recently empha-

sized that the rights of individual Indians, no less than

tribal rights, must be protected and enforced. McClan-

ahan v. Arizona Tax Commission, 411 U.S. 164, 181

(1972). See also Morton vy. Ruiz, 415 U.S. 199, 236

(1974). Absolute deference to Indian tribal councils

is particularly inappropriate where, as here, (1) the

plaintiffs invoked specifie provisions of their tribal

constitution designed to protect them against possible

excesses by their tribal council, (2) the federal govern-

ment, acting through the Department of the Interior.

specifically undertook to guarantee the plaintiffs’

rights as set forth in the constitution (App. 45a), and

(3) the alleged illegal actions resulted in the aliena-

tion of tribal property in which all tribal members

have an undivided interest. Such deference and the

resulting absence of accountability is particularly un-

justified and unwarranted here. The effect of the

challenged action of the Secretary was to amend uni-

laterally the Hopi Constitution by purporting to dele-

gate to the Tribal Council leasing authority that was re-

tained by the Tribe (supra, p. 14). The Secretary

usurped the power that was specifically reserved to

tribal members. (App. 38a, 40a-41a and 25 U.S.C.

§ 476.) If the Secretary of the Interior and Indian

25

tribal councils can collaborate in this way to repeal

tribal constitutions, the protections that they afford

to individual tribal members are worthless.

C. There Is a Conflict in the Circuits.

The decision of the Court of Appeals for the Ninth

Circuit in this case conflicts with holdings of two other

circuits in Littell vy. Morton, 445 F.2d 1207 (4th Cir.

1971), reversing Littell vy. Hickel, 314 F, Supp. 1176

(D. Md. 1970), and Davis v. M orton, 469 F.2d 593 (10th

Cir. 1972). Both Littell and Davis held that federal

courts could consider the merits of challenges to the

legality of the Secretary of the Interior’s actions ap-

proving or implementing contracts with Indians des-

pite the absence of the tribal signatories.

Inttell v. Morton, supra, was a suit by the former

attorney of the Navajo Tribe against the Secretary of

the Interior. Invoking the judicial review provisions

of the Administrative Procedure Act, Mr. Littell chal-

lenged the Secretary’s refusal to make certain pay-

ments claimed to be owed under the attorney’s contract

with the Tribe. The Court of Appeals for the Fourth

Circuit reversed the district court’s dismissal.

Littell presents a far more compelling case for a

finding of indispensability than this case because (a)

the rights sought to be enforced were private rather

than public in nature; they arose under the contract

between the Navajo Tribe and its attorney; (b) the

suit necessarily involved an interpretation of the terms

and provisions of that contract ; and (c) the judgment

would be satisfied out of tribal funds. Nevertheless,

the suit proceeded in the absence of the N avajo Tribe

and Mr. Littell was eventually successful. Littell vy.

26

Morton, 369 F. Supp. 411 (D. Md. 1974), aff’d, 519

F.2d 1399 (4th Cir. 1975).

Davis v. Morton, supra, was a suit, also brought by

non-Indians, to set aside the Secretary’s approval of

a lease between an Indian tribe and a development

company, Sangre de Cristo. Neither the Indian lessor

nor the non-Indian lessee was joined; yet the court of

appeals ordered the district court to grant the relief

sought on the grounds that the Secretary acted illegally

in failing to comply with the National Environmental

Policy Act. See also Cady v. Morton, —— F.24 ——

(9th Cir. No. 74-1984, June 19, 1975). The indispens-

ability and sovereign immunity issues were not speci-

fieally addressed in Davis.”

The only possible basis for distinguishing this case

from Littell and Davis is that this case was brought by

Indian plaintiffs, members of the Hopi Tribe, whereas

72 Tewa Tesuque v. Morton, 498 F.2d 240 (10th Cir. 1974),

cert. denied, 420 U.S. 962 (1975), is not to the contrary, for, unlike

this case, it specifically reached the merits and held that the chal-

lenged actions of the federal officials ‘‘are within the outer perim-

eter of their authority.’’ 498 F.2d at 243. Tewa Tesuque is there-

fore consistent with Littell and Davis in holding that the lawful-

ness of the Secretary of the Interior’s approval or implementation

of contracts or leases with Indan tribes can be reviewed under the

Administrative Procedure Act in the absence of the tribal signa-

tory. With regard to indispensability, Tewa Tesnque holds that

the tribal lessor is an indispensable party to an action to eancel a

tribal lease that is predicated on the specifie terms and provisions

of the lease or the performance (or lack thereof) under the lease.

i.e., When it is based on private contractual rights rather than

public rghts. Petitioners have no quarrel with that holding though

it appears to be inconsistent with Littell. Tewa Tesuque, unlike

this case, did not involve any claim that the tribal officials had

exceeded their authority as defined under the tribal constitution.

And this action, unlike Tewa Tesuque, does not seek cancellation

of the underlying lease.

27

Littell and Davis were initiated by non-Indians. We

fail to see any possible bearing of this racial distine-

tion. It is true that the Hopi plaintiffs theoretically

have available non-judicial tribal remedies, convincing

the Tribal Council to change its ways and admit its

errors or replacing its members at the next election.

But non-Indians have similar remedies. The courts

have not told environmental organizations to elect a

new President or a new Congress or to replace the

Governor of California or to convince the Secretary of

tye Interior to change his mind when they complain

that state or federal officials are not complying with

existing law. The Hopi Constitution can no more be

discarded in favor of electoral or political reform than

can the Bill of Rights, the Civil Rights Acts or the

National Environmental Policy Act. Indians are citi-

zens. They are entitled to the same judicial treatment

as non-Indians.

Unless this conflict in the circuits is resolved, tribes

and their counsel will be placed in an impossible quan-

dry. If tribes are not indispensable in suits against

the Secretary of the Interior, they probably would be

well advised to participate voluntarily in litigation in

order to insure that their interests are protected. That

was the choice of the Crow Tribe in Cady v. Morton,

supra, —— F.2d ——. On the other hand, if they can

ofeat the court’s jurisdiction by remaining outside the

litigation, they might choose that course. With the

existing confusion and conflict, tribes are at a loss to

know how their interests can best be protected.

I.

SOVEREIGN IMMUNITY DOES NOT PRECLUDE THE

JOINDER OF THE HOPI TRIBAL COUNCIL.

A. The Denial of the Joinder Motions Conflicts with Decisions

of This Court and the Courts of Appeals.

As noted in our Statement of the Case, the plaintiffs

moved to join the Hopi Tribal Council and the United

States and the Navajo Tribe but the motions were

denied by the district court. The court of appeals af-

firmed this disposition sub silentio without even men-

tioning that joinder had been sought.

The district court’s denial of the joinder motion was

clear error. Rule 19(a) requires (it uses the word

‘‘shall’’) the joinder of persons who meet the require-

ments of the rule, are subject to service of process, and

whose joinder will not deprive the court of jurisdiction.

Sovereign immunity does not preclude joinder any

more than it bars service of process. Once a sovereign

entity is joined, it may properly raise the sovereign

immunity defense, but it must be pleaded and it can be

waived. Sovereign immunity can only be considered

after the party is ordered joined and it has been raised

as a defense. This Court so held in Ez parte Republic

of Peru, 318 U.S. 578, 587-588 (1943), and several

courts of appeals have followed suit. Petrol Shipping

Corp. v. Kingdom of Greece, Ministry of Commerce,

360 F.2d 103, 106 (2d Cir. 1966), cert. denied, 385 U.S.

931 (1967) ; Choctaw and Chickasaw Nations v. Seitz,

193 F.2d 456 (10th Cir. 1951), cert. denied, 343 U.S. 919

(1952).

The district court’s denial of the motion to join the

Hopi Tribal Council, affirmed sub silentio by the court

of appeals, is clearly and flatly inconsistent with these

authorities. Since the Tribal Council could and should

have been joined, the dismissal] predicated on the fail-

ure to join was plain error that must be reversed.

B. Sovereign Immunity Does Not Apply to Alleged Ultra Vires

As we have just shown, the district court should have

granted the plaintiffs’ motion to join the Hopi Tribal

Council. Consideration of the sovereign immunity de-

fense was not appropriate until after the Council had

been joined and raised the issue. But that objection

aside, sovereign immunity does not have any applica-

tion to the Hopi Tribe in this case for it cannot be in-

voked where, as here, plaintiffs alleged that the Hopi

Tribal Council’s execution of the Black Mesa lease

was an illegal act, in excess of its authority.

it is, of course, well recognized that ultra vires ac-

tions of state or federal officials are not properly sub-

ject to the sovereign immunity defense. Ez Parte

Young, 209 U.S. 123 (1908); Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682 (1949) ; Dugan

v. Rank, 372 U.S. 609 (1963) ; Scheuer v. Rhodes, 416

U.S. 232 (1974). There is absolutely no reason why

the same rule should not apply to alleged ultra vires

actions of tribal officials. Indeed it must. Actions that

_ exceed an officer’s authority are not actions of the

sovereign. Here the plaintiffs alleged that the Hopi

Tribal Council executed a lease in clear, blatant and

flagrant violation of the restrictions on its delegated

powers contained in the Hopi Constitution and By-

laws. The decisions below mean that sovereign im-

munity insulates the ultra vires actions of tribal offi-

cials from judicial review even though, in the same

circumstances, state and federal officials could and

would be held accountable.

30

Both the Arizona Supreme Court and the Court of

Appeals for the Eighth Circuit have held to the con-

trary. White Mountain Apache Indian Tribe y. Shel-

ley, 107 Ariz. 4, 480 P.2d 654 (1971) (en banc) ; Means

v. Wilson, 522 F.2d 833 (8th Cir. 1975). This issue

and this conflict merit this Court’s attention. The

Nation’s Indians are not favored by a decision which

renders the actions of their tribal officials beyond judi-

cial recourse.

II.

THE HOPI TRIBE IS NOT AN INDISPENSABLE PARTY.

A. An Indian Tribe Is Not an Indispensable Party Whe- Its

Interests Are Being Fully and Adequately Representea by

the United States or Its Officers.

Heckman v. United States, 224 U.S. 413, 444-446

(1912), holds that the Indian beneficial owners of land

are not necessary or indispensable parties when the

United States participates in litigation and fully and

adequately represents their interests. Heckman was a

suit to cancel conveyances executed by members of the

Cherokee Tribe. Once again, the rule of Shields v.

Barrow 58 U.S. (17 How.) 130 (1855), was specifically

distinguished and held inapplicable. 224 U.S. at 444.

The Heckman principle has been consistently followed

in other Indian cases. Cheyenne River Sioux Tribe of

Indians vy. United States, 338 F.2d 906 (8th Cir. 1964),

cert. denied, 382 U.S. 815 (1965); Pan Americai Pet-

roleum Corp, v. Udall, 192 F. Supp. 626 (D.D.C. 1961).

Of course, the same rule applies in non-Indian con-

texts. Where the trustee is capable of fully represent-

ing the interests of the beneficiary, the beneficiary is not

an indispensable party. See Kerrison v. Stewart, 93

U.S. 155 (1876), on which both Heckman and Pan

American Petroleum rely.

31

Here, the answer of the defendant Secretary of the

Interior (R.O.A. vol. 1, pp. 97-104) leaves no doubt

that whatever interest the Hopi Tribe or the Hopi

Tribal Council might have in upholding the validity of

the Secretary’s approval of the Black Mesa lease is

being vigorously asserted by their trustee. Therefore,

under the Heckman rule, the Hopi Tribe is neither a

necessary nor an indispensable party. Indeed, it is all

the more appropriate that this suit be defended by the

trustee since it is the Secretary’s actions that are being

challenged and it is the Secretary’s actions which made

the Black Mesa lease possible.

B. This Court's Leading Decision Interpreting the 1966 Amend-

ments to Rule 19 Was Ignored by the Court Below: All

Four Rule 19(b) Factors Plus Other Considerations Sup-

port a Finding of Non-indispensability.

Perhaps even more remarkable and less excusable

than the court of appeals’ failure even to mention, let

alone attempt to distinguish, National Licorice or

Heckman is its total disregard of the leading case inter-

preting the 1966 amendments to Rule 19, Provident

Tradesmens Bank & Trust Co. v. Patterson, 390 U.S.

102 (1968). In two critical respects, the court of

appeals’ assessment of Rule 19(b)’s factors is directly

at variance with Provident Tradesmens Bank.

1. The second factor.

The opinion of the court of appeals states (App. 5a):

‘“The second factor, ‘the extent to which, by protective

provisions in the judgment, by the shaping of relief,

or other measures, the prejudice can be lessened or

avoided’, is simply not present in this case.”” Yet one

of the means by which prejudice can be lessened or

avoided is by the voluntary appearance by the absent

32

party. This avenue is specifically mentioned in the

Advisory Committee’s Notes to the 1966 revision of

Rule 19:

Sometimes the party is himself able to take mea-

sures to avoid prejudice .... [T]he absentee may

sometimes be able to avert prejudice to himself by

voluntarily appearing in the action or intervening

on an ancillary basis [Citations omitted.] The

court should consider whether this, in turn, would

impose undue hardship on the absentee.”

Provident Tradesmens Bank underlines the import-

ance of the availability of intervention. It teaches

that the ‘‘purpose[ful] bypass[ing] of an adequate

opportunity to intervene’’ should be> counted heavily

against a finding of indispensability because ‘‘any

rights [of the absent party] have been lost by his own

inaction.”’ Provident Tradesmens Bank, supra, 390

U.S. at 114. Consequently, not only is the second

factor present in this case, it strongly supports a find-

ing of non-indispensability.

Following the ‘ads of this Court in Provident

Tradesmens Bank and the Advisory Committee’s

Notes, several lower courts have given considerable

weight to the possibility of intervention in deciding

not to regard the absent party as indispensable. Nat-

ural Resources Defense Council vy. Tennessee V alley

Authority, 340 F. Supp. 400 {S.D.N.Y. 1971), rev’d on

other grounds, 459 F.2d 255 (2d Cir. 1972); Smith v.

American Federation of Musicians of U.S. & Can., 47

F.R.D. 152 (S.D.N.Y. 1969) and Owatonna Manufac-

** Quoted in 3A Moore’s Federal Practice § 19.01 [5.-4] [1974

Ed.], 39 F.R.D. 89 at 92 and 28 U.S.C. Rule 19 at pp. 104, 106-107

{1972 Ed.]}.

33

turing Co. v. Melroe Co., 301 F. Supp. 1296 (D. Minn.

1969). The failure of both lower courts even to con-

sider the possibility of intervention is inexplicable.

2. The third factor.

As this Court noted in Provident Tradesmens Bank,

supra, Rule 19(b)’s third factor, ‘whether a judgment

rendered in the person’s absence will be adequate,’’ is

puzzling. ‘Clearly the plaintiff, who himself chose

the forum and the parties defendant, will not be heard

to complain about the sufficiency of the relief obtain-

able against them.”’ Provident Tradesmens Bank,

supra, 390 U.S. at 111. Moreover, if a court cannot

grant adequate relief with the parties before it, the

action should be dismissed pursuant to Rule 12 or 56,

not Rule 19, and there would be no occasion to reach the

indispensable party issue. Bourdieu v. Pacific Western

Ou Co., 299 U.S. 65 (1936). See Provident Trades-

mens Bank, supra, 390 U.S. at 111, n. 7. For these

reasons, this Court adopted an interpretation of Rule

19(b)’s third factor that is somewhat at variance with

its literal language.

[T] here remains the interest of the courts and the

public in complete, consistent, and efficient settle-

ment of controversies. We read the Rule’s third

criterion, whether the judgment issued in the ab-

sence of the nonjoined person will be ‘adequate,’

to refer to this public stake in settling disputes

by wholes, whenever possible... .

Provident Tradesmens Bank, supra, 390 U.S. at 111

(emphasis added).

The court of appeals and the district court simply

ignored this Court’s analysis of the third factor—

** Here, as both Littell v. Morton, supra, and Davis v. Morton,

supra, demonstrate, a judgment setting aside the Secretary’s ap-

proval of the Black Mesa lease is plainly sufficient from the plain-

tiffs’ standpoint.

34

treating it for all intents and purposes as identical to

the first. Had it asked the correct question, whether

the plaintiffs had done everything possible to settle

this dispute by wholes rather than in parts, it would

surely have answered in the affirmative. The only

thing standing in the way of having all of the parties

to the Black Mesa lease and all those interested in its

performance in the same court at the same time is the

refusal of the Hopi Tribal Council to participate vol-

untarily in this action. Surely that refusal should not

be counted against the plaintiffs who have done every-

thing within their power to bring the Tribal Council

into court to account for its actions.

If the court of appeals had done nothing other than

to consult and apply this Court’s leading case inter-

preting Rule 19(b), it would have found, at a mini-

mum, that three of its four criteria (numbers 2, 3 and

4) clearly support a finding of non-indispensability.

That surely would have been enough to tip the balance

in favor of providing the Hopi plaintiffs their day in

court.

3. The fourth and first factors.

Rule 19(b)’s fourth factor, ‘‘whether the plaintiff

will have an adequate remedy if the action is dismissed

for nonjoinder”’ has been regarded as the single most

important consideration in its ‘‘equity and good con-

science”’ test. Cf. Bourdieu v. Pacific Western Oil Co.,

299 U.S. 65, 71 (1936).* Virtually without exception,

*5**We refer to the rule established by these authorities because

it illustrates the diligence with which courts of equity will seek

a way to adjudicate the merits of a case in the absence of interested

parties that cannot be brought in.’’ Accord: Stumpf v. Fidelity

Gas Co., 294 F.2d 886, 891 (9th Cir. 1961) ; Rush & Halloran, Inc.

v. Delaware Valley Financial Corp., 180 F. Supp. 63, 65-66 (E.D.

Pa. 1960).

35

in all of the cases that have been dismissed for non-

joinder since the 1966 Amendments to Rule 19 and this

Court’s decision in Provident Tradesmens Bank &

Trust Co. v. Patterson, supra, 390 U.S. 102, there was

a finding that the plaintiff would have a remedy in

another available forum. In such cases, ‘‘dismissal was

really just a form of transfer of the action to a more

appropriate forum.” Ferguson vy. Thomas, 430 F.2d

852, 860 (5th Cir. 1970), commenting on Broussard v.

Columbia Gulf Transmission Co., 398 F.2d 885 (5th

Cir. 1968). Conversely, in virtually all cases decided

since 1966 in which courts have refused to regard the

absent party as indispensable, the lack of an alternate

remedy figured prominently. See, e.g., Bennie vy.

Pastor, 393 F.2d 1 (10th Cir. 1968).

When plaintiffs’ “‘right’’ to judicial review under

the Administrative Procedure Act is coupled with the

absence of an alternate forum, the ability of the Hopi

Tribe to intervene in this litigation, and the active

participation of the trustee acting in behalf of its

beneficiary, we think it is abundantly clear that the

lower courts erred in dismissing for nonjoinder.

The lower courts also erred in their very superficial

and mistaken analysis of the first factor, ‘‘to what

extent a judgment rendered in the person’s absence

might be prejudicial to him or those already parties.”’

Any judgment rendered in this case would not take

away any coal from the Hopi Tribe or preclude the

Hopi Tribe from entering into a lease with defendant

*6 See also Smith v. American Federation of Musicians of U.S.

& Can., 47 F.R.D. 152 (S.D.N.Y. 1969) ; Gulf Ins. Co. vy. Lane, 53

F.R.D. 107 (W.D. Okla. 1971) ; Levin y. Mississippi River Corp.,

289 F. Supp. 353 (S.D.N.Y. 1968) ; Young v. United Steelworkers

of America, 49 F.R.D. 74 (E.D. Pa. 1969) ; and Owatonna Manu-

facturing Co. v. Melroe Co., 301 F. Supp. 1296 (D. Minn. 1969).

36

Peabody or anyone else provided only that the proced-

ures required by the Hopi Constitution are followed.

In this respect this case is similar to, for example,

Natural Resources Defense Council v. Morton, 458

F.2d 827 (D.C. Cir. 1972), enjoining the Department

of the Interior from executing oil and gas leases for

submerged government land pending compliance with

applicable law, the National Environmental Policy

Act of 1969 (NEPA), or Davis v. Morton, supra, 469

F.2d 593 (10th Cir. 1972), setting aside and enjoining

the Secretary’s approval of a major development lease

of Indian lands pending compliance with applicable

law, also NEPA, or Wilderness Society v. Morton,

479 F.2d 842 (1973) (en banc), cert. denied, 411 U.S.

917 (1973), enjoining the Secretary of the Interior from

granting a right of way for the trans-Alaska oil pipe-

line which exceeded the width limitations of the Mineral

Leasing Act of 1920, 30 U.S.C. § 185. These judgments

do not take away the Indians’ or the government’s

land or the anticipated benefits that flow from leasing

the land or granting the right of way. They simply

require compliance with applicable law before the

lease or grant can be given effect. In the case of the

Alaska pipeline, the defect could only be cured by Act

of Congress. It was. Public Law 93-153, 87 Stat. 576.

Properly posed, the first factor requires analyzing

and answering the following question: would a judg-

ment requiring the Hopi Tribal Council to comply

with the Hopi Constitution and By-laws prejudice the

Hopi Tribe when the Tribe could, if it so desired, enter

into a new lease after complying with the provisions

of the Hopi Constitution? We fail to see how a judg-

ment requiring compliance with its own organic govern-

ing document can be prejudicial] to the Hopi Tribe.

And if the plaintiffs should prevail and the Hopi Tribe

37

then refused to amend its constitution or to authorize

a new lease, it would be an absurdity to suggest that

the Tribe had been prejudiced by this action.

The opinon of the court of appeals makes two other

obvious mistakes in its analysis of the first factor.

(App. 5a.) Setting aside the Secretary’s approval of

the lease would not eliminate the employment of many

of the Hopis. We are informed that few, if any, Hopis

are employed at the Black Mesa mine. There is noth-

ing to the contrary in the record on this motion to dis-

miss. And we fail to see how Peabody can be obligated

to make royalty payments under the lease after (and

assuming) the Secretary’s approval is set aside by a

court of competent jurisdiction when the Secretary’s

approval is a statutory prerequisite to the lease’s valid-

ity. 25 U.S.C. §396a. See Davis v. Morton, supra.

The decisions below amount to determinations by the

lower courts that the Black Mesa lease is more im-

portant to the Hopi Tribe than the integrity of its

tribal processes. But there is no reason why the Tribe

cannot lease its coal, if it so desires, in a manner that

complies with the requirements of the Hopi Constitu-

tion. And we are not aware of any other judicial pro-

nouncement to the effect that governing law can be

jettisoned in order to meet what appear to be the

exigencies of the moment. All of the law in this nation

of laws is contra. Y. oungstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579 (1952).

4. Other factors militate agains! dismissal.

The four specific factors enumerated in Rule 19(b)

“‘are not intended to exclude other considerations which

may be applicable in particular situations.”” Advisory

Committee Notes, supra, quoted at 3A Moore’s Federal

a a ee SET NEE Go ee ne are

38

Practice, § 19.01 [5.-4] (1974 Ed.), 39 F.R.D. 89 at 92

and 28 U.S.C. Rule 19, at p. 106 (1972 Ed). There

are several additional considerations that militate very

strongly against dismissal. The plaintiffs have invoked

the jurisdiction of a court of equity, * have alleged the

infringement of public, as opposed to private, rights, *

and have a Congressionally granted ‘‘right’’ to judi-

cial review of the Secretary of the Interior’s approval

of the Black Mesa lease. Further, dismissal for non-

joinder would render the specific, federally guaranteed

protections of the Hopi Constitution a nullity. But

the additional factor that we deem particularly im-

portant is that the absent party’s views and positions

are extremely well represented by the existing parties.

This consideration was also ignored by both lower

courts. The federal government, Peabody, the Na-

tion’s largest coal producer, and six power companies

are straining with all of the considerable resources at

their command to uphold the validity of the Sec-

retary’s approval of the Black Mesa lease." This is

not an instance in which the absent party’s views will

not be adequately presented. Indeed, as previously

shown, the presence of the absent party’s trustee,

standing alone, is a sufficient reason to deny the motion

to dismiss for nonjoinder.

*7 See Bourdieu v. Pacific Western Oil Co., supra, 299 US. at

70-71.

** See National Licorice Co. v. NLRB, supra, 309 U.S. at 363-364.

7° See Tooahnippah v. Hickel, 397 U.S. 598 (1970).

% See Barlow v. Collins, 397 U.S. 159, 167 (1970).

*! See Owatonna Manufacturing Co. v. Melroe Co., 301 F. Supp.

1296, 1305-1306 (D. Minn. 1969).

39

CONCLUSION

The refusal of the Hopi Tribal Council to partici-

pate voluntarily in this litigation must not be allowed

to deprive the plaintiffs of their day in court. That

would make the Council a law unto themselves. That

would certainly be ‘‘an impotent outeome to negotia-

tions . . . which seemed to promise more, and give the

word of the nation for more.”” United States v. Win-

ans, 198 U.S. 371, 380 (1905).

The Hopi Tribe is not an indispensable party in this

litigation. The plaintiffs’ motion to join the Hopi

Tribal Council should have been granted. Sovereign

immunity is not a defense to an action challenging

alleged ultra vires actions of governmental officials.

The decisions below are inconsistent with four deci-

sions of this Court and create three conflicts with deci-

sions of other circuits. For all of these reasons, the

petition for a writ of certiorari should and must be

granted and the decision below reversed.

In view of the multiple egregious errors of the court

of appeals, petitioners respectfully suggest the ap-

propriateness of granting the petition and remanding

the case for reconsideration in light of:

1, National Iicorice Co. v. National Labor Rela-

tions Board, 309 U.S. 350 (1940) ;

2. Provident Tradesmens Bank & Trust Co. Vv.

Patterson, 390 U.S. 102 (1968) ;

3. Heckman v. United States, 224 U.S. 413 (1912) ;

4. Ex Parte Republic of Peru, 318 U.S. 578, 587-

588, 589 (1943) ;

40

5. Inttell v. Morton, 445 F.2d 1207 (4th Cir. 1971) ;

and

6. Means v. Wilson, 522 F.2d 833 (8th Cir. 1975).

Respectfully submitted,

Rosert 8. PELCYGER

JOHN E. EcHOHAWK

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Counsel for Petitioners

December 15, 1975