Petition — Fort Belknap Indian Community v. District Court of the Twelfth Judicial District

FILFD ,

JAN 3 1977

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OcToBER TERM, 1976

No.7 we-Q919 a

THE Fort BELKNAP INDIAN COMMUNITY OF THE Fort

BELKNAP INDIAN RESERVATION, Montana, Peti-

tioner, ¥,

TxHeE District Court oF THE TWELFTH JUDICIAL Dis-

TRICT OF THE STATE OF MONTANA, IN AND FOr THE

CouNTY OF BLAINE, AND THE HONORABLE BERNARD

W. Tuomas, District Court Jupar, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MONTANA

—_-_—_— —-—~-——

Pui Roy

FRANK LAMEBULL

P.O. Box 849

Browning, Montana 59417

DANTEL H. IsrRaEn

NATIVE AMERICAN RicHTs Funp

1506 Broadway

Boulder, Colorado 80302

Counsel for Petitioner

Press or Byron S. ADAMS PrInTING, INc., WasutncTon, D. C.

a eat PP I igi a A a

TABLE OF CONTENTS

Page

NR hs ie i ddd aeubunenee 1

PE ng a ee eek caer cay 2

I UII 5 ek idnon 0nedecdecnccssecsees 2

SY CINE igo cc cca see audseae eabekeeeee 2

STATEMENT OF THE CASE ... 2... ccc cccccccccccccccees 5

Reasons For Grantinc THe WRIT .............0005- 8

I. This Case Presents an Unresolved Issue of

Great Importance to the 180 American Indian

Tribes Which Have Accepted the Indian Re-

IN BON. 5.6 05 605 900050506060 asas ee 8

II. The Political and Business Development Provi-

sions of the Indian Reorganization Act are

Separate and Distinct. ..............ceeeees 12

III. The Montana Construction of the Indian Re-

organization Act is Fundamentally Inconsis-

tent with Concepts of Tribal Sovereign Immu-

nity Long Recognized by This Court ......... 16

SES ic asdenacdocdcdadacuecaucedananccdeunes 19

NS in 660i Kon KA Shh ae nindinededdweeweunset la

TABLE OF AUTHORITIES

CasEs:

Bryan v. Itasca County, .... U.S. , 48 L.Ed.2d

710, 96 S.Ct. 2102 (1976) eh Sade athe Una ah eae 12, 16

Cherokee Nation v. State of Oklahoma, 461 F.2d 674

ed ie ee inden ieee ee le ak 10

Edelman v. Jordan, 415 U.S, 651 (1974) ............ 9,18

Fisher v. District Court, 424 U.S. 382 (1976) ..8, 12, 14, 20

Fitzpatrick v. Bitzer, .... U.S. ...., 49 L.Eid.2d 614,

ee: Se ED cc. oncuxiosedcdtadandecsnwes 9

il Table of Authorities Continued

Page

Great Northern Life Insurance Co v. Read, 322 U.S.

GT CEBGBD cc cccccvcaccccccccscevurcscsccase 9, 17,18

Haile v. Saunooke, 246 F.2d 293 (4th Cir. 1957), cert.

denied, 355 U.S. 893 (1957) .......cceececccees

Hamilton v. Nakai, 453 F.2d 152 (9th Cir. 1972) .... 10

Keifer v. Reconstruction Finance Corp., 306 U.S, 381

CBIED). cccccccnssccccnsscccvsesesccccseecssess 18

Kennerly v. District Court, 400 U.S. 423 (1971) .... 20

Land v, Dollar, 330 U.S. 731 (1947) ..........00 eee 9,17

Larson v. Domestic and Foreign Commerce Corp., 337

I, GE GRID ncccscccccsnnencdesccceseosses 9,17

Madruga v. Superior Court, 346 U.S, 556, (1954) .... 8

Martinez v. Southern Ute Tribe, 374 P.2d 691 (Colo.

CIEE nc pvccccvsdsesitocesvestvscseedsceoncees 11,15

Maryland Casualty Co. v. Citizens National Bank of

West Hollywood, 361 F.2d 517 (5th Cir, 1966),

cert. denied 385 U.S. 918 (1967) ..........eeeee- 15

Mesealero Apache Tribe v. Jones, 411 U.S, 145 (1973) 138

Monaco v. Mississippi, 292 U.S. 313 (19384) ......... 9,18

Morgan v. Colorado River Indian Tribe, 443 P.2d

421 (Ariz. 1968) .....ccccccccccccccccccccseces 10

Namekagon Development Co. v. Bois Forte Reserva-

tion Housing Authority, 395 F. Supp. 23 (D. Minn.

1974), aff’d 517 F.2d 508 (8th Cir. 1975) ........ 11,14

New York v. United States, 326 U.S, 572 (1946).... 8,9

Ohio v. Helvering, 292 U.S. 360 (1934) ...........46- 9

Parden v. Terminal Ry. of the Alabama State Docks

Dept., 387 U.S. 184 (1964) ......... eee eee reer 9

Turner v. United. States, 248 U.S. 354 (1919) ...... 17

Twin Cities Chippewa Tribal Council v. Minnesota

Chippewa Tribe, 870 F.2d 529 (8th Cir, 1967) .. 10

United States v. Mazurie, 419 U.S. 544 (1975) ...... 14, 19

United States v. Shaw, 309 U.S. 495 (1940) .......... 17

United States v. United States Fidelity & Guaranty

Ce.. 300 UE. GES CIDA) .ncccccccccevces 9, 16, 17,18

Williams v. Lee, 358 U.S. 217 (1959) .......-..0. eee 14

Table of Authorities Continued iii

P

STATUTES AND CopEs: _

11 Stat. 657, Treaty of October 17, 1855 ............ 5

18 Stat. 28, Act of April 15, 1874 ................... 5

25 Stat. 113, Act of May 1, 1888 .................... 5

48 Stat. 984, 25 U.S.C. § 461, the Indian Reorganization

Ee oe ee rere Pere e oy rrr er 2, 4, 13

82 Stat. 77, 25 U.S.C. § 1302, the Indian Civil Rights

MN 6 0c4 eeu heeaesn ta cade Mak eues be chateeies sce 19

86 Stat. 1176, 28 U.S.C. § 2409a; Act of October 25

Ree aa ee Oy "18

88 Stat. 77, 25 U.S.C. $1451, et seq., the Indian Fi-

memo Bot of ISTE 2... cc ccccccescccccccnesves 12,15

88 Stat. 2203, 25 U.S.C. $450, et seq., the Indian Self-

Determination and Edueation Assistance Act of

Sy 65d deen duahs kee Ube rabeeeaeee cnn deees 12, 15, 16

et oe ee 20

EE a 15, 16

iP Wein: GET 6640 bee cnccedscacvciacds 2, 3, 6, 8, 13

ee Ny EE oo Gon acayneee ao Obs ccbancacilan 2,8

INTER!OR OPINIONS:

Solicitor’s Opinion M-36119, 61 ID. 8 (Feb. 14,1952) .. 10

Solicitor’s Opinion M-36515, 65 1.D. 483 (Nov. 20,1958) 10

Solicitor’s Op‘nion, 55 I.D. 14, (1934) ............... 14

Solicitor’s Opinion, 69 I.D. 483 (1958) ............. 12,13

LecisLaTive History:

S.Rep. 3645, 73d Cong., 2d Sess. (1934) ..........5. 10

iv Table of Authorities Continued

Page

Oruer AUTHORITIES:

Fort Belknap Indian Community Corporate Charter.. 4,5

Comment, Tribal Self-Government in the Indian Re-

organization Act of 1934, 70 Mich.L.Rev. 955,

ty | rrr re 11

1972 U.S. Code Congressional & Administrative News

GOGE nccccusvvessescensenee neuen 18

Executive Order of July 5, 1873, I Kapp. 855, 856 (2d

ION 5

IN THE

Supreme Court of the United States

OcToBer TERM, 1976

No. 76-

Tue Fort BeLKNAP INDIAN COMMUNITY OF THE Fort

BELKNAP INDIAN RESERVATION, Montana, Peti-

tioner, -

Tue District Court oF THE TWELFTH JUDICIAL Dts-

TRICT OF THE STATE OF MONTANA, IN AND FOr THE

CounTY OF BLAINE, AND THE HONORABLE BERNARD

W. Tuomas, District Court Jupace, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MONTANA

The Fort Belknap Indian Community of the Tort

Belknap Indian Reservation in Montana petitions for

a writ of certiorari to review the judgment of the Su-

preme Court of the State of Montana.

OPINIONS BELOW

The judgment of the Montana Supreme Court (App.

p. la) is reported at 554 P.2d 1115 (Mont. 1976). The

state district court’s order (App. p. 2a) is not reported.

2

JURISDICTION

The judgment of the Supreme Court of the State of

Montana was entered on October 7, 1976. Jurisdiction

of this court is invoked under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Did Congress in the Indian Reorganization Act

the Act of June 18, 1934, 48 Stat. 984, 25 U.S.C. § 461

et seq.. Waive the immunity from suit of the Fort Bel-

knap Indian Community in a tort aetion involving the

conduct of a tribal police officer ?

STATUTES INVOLVED

INDIAN REORGANIZATION ACT

Section 16 of the Indian Reorganization A

codified at 25 U.S.C. § 476 provides: , i: *

Organization of Indian tribes; constitution and

by laws; special election

Any Indian tribe, or tribes, residing on the

same reservation, shall have the right to organize

for its common welfare, and may adopt an ap-

propriate constitution and bylaws, which shall

heeome 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 ease

may be, at a special election authorized and ealled

by the Secretary of the Interior under such rules

and regulations as he may preseribe. Such consti-

tution and by-laws, when ratified as aforesaid and

approved by the Secretary of the Interior, shall

he revocable by an election open to the same voters

and conducted in the same manner as hereinabove -

previded. Amendments to the constitution and

by-laws may be ratified and approved by the See-

retary in the same manner as the original consti-

tution and by-laws.

3

In addition to all powers vested in any Indian

tribe or tribal council by existing law, the con-

stitution 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 ap-

proval of the Secretary of the Interior; to pre-

vent the sale, disposition, lease, or encumbrance

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 Gov-

ernments. The Secretary of the Interior shall ad-

vise such tribe or its tribal council of all appropria-

tion estimates or Federal projects for the benetit

of the tribe prior to the submission of such esti-

mates to the Bureau of the Budget and the Con-

gress.

Section 17 of the Indian Reorganization Act, codi-

fied at 25 U.S.C. § 477, provides:

The Secretary of the Interior may, upon petition

by at least one-third of the adult Indians, issue a

charter of incorporation to such tribe: provided,

That such charter shall not become operative until

ratified at a special election by a majority vote of

the adult Indians living on the reservation. Such

charter may convey to the incorporated tribe the

power to purchase, take by gift, or bequest, or

otherwise, own, hold, manage, operate, and dispose

of property of every description, real and personal,

including the power to purchase restricted Indian

lands and to issue in exchange therefor interests in

corporate property, and such further powers as

may be incidental to the conduct of corporate bus-

iness, not inconsistent with law, but no authority

shall be granted to sell, mortgage, or lease for a

period exceeding ten years any of the land included

in the limits of the reservation. Any charter so is-

sued shall not be revoked or surrendered except

by Act of Congress.

4

Fort BELKNAP INDIAN COMMUNITY CORPORATE CHARTER

Whereas, the Fort Belknap Indian Community

of the Fort Belknap Reservation in Montana con-

stitutes a recognized Indian Community organized

under a constitution and by-laws ratified by the

Gros Ventre and Assiniboine Tribes of the Fort

Belknap Indian Reservation on October 19, 1935,

and approved by the Secretary of the Interior on

December 13, 1935, pursuant to Section 16 of the

Act of June 18, 1994 (48 Stat. 984), as amended

by the Act of June 15, 1935 (49 Stat. 378); and

Whereas, more than one-third of the adult Ind-

ians on the Fort Belknap Indian Reservation who

are members of the Gros Ventre and Assiniboine

Tribes have petitioned that a charter of incorpora-

tion be granted to such community, subject to rati-

fication by vote of said Indians living on said re-

servation;

Now, therefore, 1, Charles West, Acting See-

retary of the Interior, by virtue of the authority

conferred upon me by the said Act of June 18, 1934

(48 Stat. 984), do hereby issue and submit this

charter of ineorporation to the Fort Belknap Ind-

ian Community of the Fort Belknap Reservation

to be effective from and after such time as it may

be ratified by a majority vote of the adu't Indians

living on the reservation, at an election in which

at least thirty percent of the eligible voters vote.

1. Corporate Existence. In order to further the

economie development of the Fort Belknap Indian

Community of the Fort Belknap Reservation in

Montana by conferring wpon the said community

certain corporate rights, powers, privileges and im-

munities; to secure for the members of the Com-

munity an assured economie Independence; and to

provide for the proper exercise by the Community

of various functions heretofore performed by the

Department of the Interior, the aforesaid com-

<<

5

munity is hereby chartered as a body politic and

corporate of the United States of America, under

the corporate name ‘‘The Fort Belknap Indian

Community”’. . .

5. Corporate Powers. The Community, subject

to any restrictions contained in the Constitution

and laws of the United States, or in the Constitu-

tion and By-laws of the said community, or in this

Charter, shall have the following corporate

powers:...

(i) To sue and to be sued in courts of competent

jurisdiction within the United States ; but the grant

or exercise of such power to sue and to be sued shall

not be deemed a consent by the Community or by

the United States to the levy of any judgment,

lien or attachment upon the property of the Com-

munity other than income or chattels specially

pledged or assigned.

(j) To exercise such further incidental powers

not inconsistent with Jaw, as may be necessary to

the conduct of corporate business.*

STATEMENT OF THE CASE

Petitioner, the Fort Belknap Indian Community of

the Fort Belknap Indian Reservation is a federally

recognized Indian Community. The Community is

made up of the Gros Ventre and Assiniboine Tribes

and its occupies a reservation in the State of Montana.

By the Treaty of October 17, 1855, 11 Stat. 657, the

Act of April 15, 1874, 18 Stat. 28, the Act of May 1,

1888, 25 Stat. 113, and the Executive Order of July 5,

1873, the United States set aside an Indian reservation

for the use and occupancy of the Fort Belknap Indian

* The Corporate Charter is set out in its entirety in the Appen-

dix. (App. pp. 5a-13a).

6

Community. The Fort Belknap Indian Community

has adopted a constitution and by-laws in accordance

with Section 16 of the Indian Reorganization Act (the

“TRA”’) authorizing it to exercise official governmental

powers as a federally recognized Indian tribe, The

constitution and by-laws were approved by the Seere-

tary of the Interior on December 13, 1935. In addition,

the Fort Belknap Indian Community has adopted pur-

suant to Section 17 of the IRA a corporate charter as a

federal Indian corporation authorizing it to transact

_corporate business to further the economic development

’ of the Fort Belknap Reservation. The corporate chart-

er was issued by the Seeretary of the Interior on July

29, 1937. Respvondents are the District Court of the

Twelfth Judicial District for the State of Montana in

and for the County of Blaine and the Honorable Bern-

ard W. Thomas, District Court Judge.

On September 18, 1975, one James W. Gardipee

filed suit in the District Court of the Twelfth Judicial

District seeking $75,000 for general damages, $5,000 for

special damages and $100,000 for punitive damages

against the Fort Belknap Indian Community for an

alleged intentional and malicious tort committed by

Leon Martinez, a police officer employed by the Fort

Belknap Indian Comunity. Martinez was not named

as a defendant. On November 20, 1975, Gardipee filed

an amended complaint in the same court seeking $75,-

000 for general damages, and $5,000 for special dam-

ages against the Fort Belknap Indian Comunity for

wanton and malicious assault by Martinez or, in the

alternative, for negligent conduet by Martinez.’ lw

es

1A copy of the Amended Complaint is reproduced in the Ap-

pendix to this Petition (App. pp. 3a-5a).

aw

7

the amended complaint, Gardipee alleged that he was

arrested by Leon Martinez who was acting in the per-

formance of his duties as Chief of Police of the Fort

Belknap Indian Community fer driving without a valid

Montana operator’s license on the Fort Belknap Reser-

vation. Because Gardipee did not post bond at the

time of his arrest, he was transported by the police

officer off the reservation to the Blaine County Jail in

Chinook, Montana for incarceration pending the post-

ing of a bond, pursuant to a working agreement be-

tween the Fort Belknap Indian Community and Blaine

County. The amended complaint further alleged that

during the trip Gardipee requested and received per-

inission to leave the automobile and the custody of

Leon Martinez, and that subsequently, a dispute arose

with the result that Martinez shot Gardipee and in-

jured his leg.

On December 11, 1975, the Fort Belknap Indian

Community moved to dismiss the amended complaint.

On February 23, 1976, the District Court of the Twelfth

Judicial District by Judge A. W. Thomas denied the

motion to dismiss finding both subject matter jurisdie-

tion over the alleged tort beeause it occurred off the

reservation, and personal jurisdiction over the Fort

Belknap Indian Community because of the inelusion

in the corporate charter of the community of language

authorizing the Indian corporation to sue and to be

sued. ‘i

On May 11, 1976, the Fort Belknap Indian Com-

munity filed a Petition for Writ of Supervisory Con-

trol or Other Appropriate Writ in the Montana Su-

preme Court seeking a reversal of the February 23,

1976 jurisdictional order of the state district court.

On May 18, 1976, the Montana Supreme Court denied

8

the petition without prejudice and requested clarifica-

tion as to whether the alleged tortious conduct of the

tribal police officer occurred on or off the Fort Belknap

Indian Reservation. On July 8, 1976, the Fort Bel-

knap Indian Community filed a sceond Petition for

Writ of Supervisory Control or Other Appropriate

Writ in the Montana Supreme Court once again seek-

ing to have a reversal of the distriet court’s Jurisdic-

tional order. On October 7, 1976, the Supreme Court

of the State of Montana entered a final order denying

the petition.’

REASONS FOR GRANTING THE WRIT

I

This Case Presents an Unresolved Issue of Great Importance

to the 180 American Indian Tribes Which Have Accepted the

Indian Reorganization Act.

The Fort Belknap Indian Community seeks to have

this Court reselve the question of whether Congress,

in enacting 25 U.S.C. §477 authorizing Indian tribes

to incorporate as federal business corporations, effect-

ed a waiver of sovereign immunity over the official

governmental actions of America’s Indian tribes. The

issue is of great importance to American Indians. The

Montana decision, which finds a broad waiver of sover-

eign immunity extending beyond tribal business trans-

actions to official governmental aetions, is fundamen-

tally at odds with this Court’s decisions on waivers of

sovereign immunity. Cf. New York v. United States,

2The October 7, 1976 Order of the Montana Supreme Court

denying the Petition for Writ of Supervisory Control or Other

Appropriate Writ filed by the Fort Belknap Indian Community

is a final judgment within the jurisdiction of 28 U.S.C, § 1257(3).

See Fisher v. District Court, 424 U.S. 382, 385, n. 7 (1976);

Madruga v. Superior Court, 346 U.S. 556, 557 (1954).

9

326 U.S. 572, 579 (1946) ; Ohio v. Helvering, 292 US.

360, 369 (1934).

This Court has held that sovereign immunity pro-

tects the treasures aid official authorities of govern-

ments from judicial intervention except in narrowly

defined circumstances. In the case of the United States,

sovereign immunity is derived by implication, Monaco

v. Mississippi, 292 U.S. 313 (1934). State sovereign

immunity is secured by the Eleventh Amendment,

Edelman vy. Jordan, 415 U.S. 651 (1974). Similarly,

the sovereign immunity of federal Indian tribes arises

because of their unique status as dependent sovereign

nations, United States v. United States Fidelity and

Guaranty Co., 309 U.S. 506 (1940).

The nature and extent of sovereign immunity has

been clarified by this Court in a number of significant

decisions. Each holding preserves intact the right of

governments to be immune from those suits whose

judgments would result in either a raid on the govern-

ment’s treasury or interference with the administration

of the government’s official operations. Larson v.

Domestic and Foreign Commerce Corp., 337 U.S. 682

(1949) ; Land vy. Dollar, 330 U.S. 731 (1947). Each

decision confirms that a waiver of sovereign immunity

requires explicit sovereign action. Great Northern

Life Insurance Co. v. Read, 322 U.S. 47, 53-55 (1943) ;

Parden v. Terminal R. Co., 377 U.S. 184, 186 (1964) ;

Fitzpatrick v Bitzer, — U.S. —-, 49 L.Ed.2d 614, 96

S.Ct. 2666 (1976). These important principles are

swept aside by the Mentana decision.

The Montana couris read the Fort Belknap Indian

Comunity’s corporate charter provision ‘‘to sue and

to be sued”’ to effect a waiver of sovereign immunity

10

for official tribal governmental actions rather than

simply tribal business transactions. The Montana

holding ignores Congress’ plan in the Indian Reorgani-

zation Act to create both tribal governmental entities

with their sovereign immunity intact, and separate and

distinet corporate business entities with the authority

to waive their sovereign immunity for specifically

identified business transactions. See, e.g., S. Rep.

3645, 73d Cong., 2d Sess. (1934); Solicitor’s Opin-

ion M-36515, 65 I.D. 483 (Nov. 20, 1958); Solicitor’s

Opinion M-36119, 61 1.D. 8 (Feb. 14, 1952). Similarly,

the lower courts’ holding frustrates the scheme of the

Fort Belknap Indian Community, a sovereign Indian

government, to maintain separate tribal governmental

and business entities through the adoption of a econ-

stitution (without the language ‘‘to sue and to be

sued’’) and the acceptance of a separate corporate

charter (with the language ‘‘to sue and to be sued’’).

Moreover, the Montana decision for which review is

sought contradicts the teachings of all prior decisions

which have considere1 the nature and scope of tribal

sovereign immunity. See, e.g., Haile v. Saunooke, 246

F.2d 293 (4th Cir. 1957), cert. denied, 355 U.S. 893

(1957) ; Twin Cities Chippewa Tribal Council vy. Min-

nesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967) ;

Cherokee Nation vy. State of Oklahoma, 461 F.2d 674

(10th Cir. 1972); Hamilton v. Nakai, 453 F.2d 152

(9th Cir. 1972); Morgan v. Colorado River Indian

Tribe, 443 P.2d 421 (Ariz. 1968). In addition, the

Montana decision conflicts with prior decisions hold-

ing that the waiver of sovereign immunity accom-

plished by the language ‘‘to sue and to be sued”’ con-

tained in the corporate charters of Indian tribes or-

ganized under the IRA is restricted to specifically

11

identified business transactions where the tribe has

expressly waived its severeign immunity. JJaryland

Casualty Co. v. Citizens National Bank of West Holly-

wood, 361 F.2d 517 (5th Cir. 1966), cert. denied, 385

U.S. 918 (1967); Martinez v. Southern Ute Tribe, 374

P.2d 691 (Colo. 1962). Cf., Namekagon Dev. Co. v.

Bois Forte Res. llouse Au., 895 F. Supp. 23 (D. Minn.

1974), aff'd, 517 F.2d 508 (Sth Cir. 1975).

Beeause the holding of the Montana courts is at

odds with basic principles of sovereign immunity, and

because it presents the first judicial determination

that the waiver of sovereign immunity provided for

in the corporate charters of Indian tribes organized

under the IRA affects not only specifically identified

corporate business transactions, but also official tribal

governmental actions, the 131 tribes with corporate

charters similar to that of the Fort Belknap Indian

Community * require a clarification from this Court

as to the precise nature and scope of the waiver of

sovereign immunity contained in their federally ap-

proved charters.

In the absence of review by this Court, the Montana

decision poses a direct threat to the sovereign author-

itv of these tribes. Since the Montana suit seeks

signifieant monetary damages against the Fort Bel-

knap Community for official actions of a tribal police

officer, it has caused a serious chilling effect on the

exercise of Fort Belknap tribal self-government. The

Fort Belknap Indian Community must now take steps

to limit its liabilitv in order to proteet searee tribal

funds. The level of tribal services may have to be sig-

3 See, Comment, Tribal Self-Government in the Indian Reor-

ganization Act of 1934, 70 Mich.L.Rev. 955, 972 (1972).

12

nificantly reduced. Other tribes will soon be forced to

take similar steps. Unless this Court reviews the

Montana decision tribal self-government, strengthened

by recent congressional enactments * and important

rulings of this Court, ° will be seriously undermined.

II

The Political and Business Development Provisions of the

Indian Reorganization Act Are Separate and Distinct.

The critical mistake of the Montana decision lies

in its assumption that Congress intended the [RA to

waive the immunity from suit of tribes for their offi-

cial governmental actions. To the contrary, a review

of the Act and its purposes reveals that Congress in-

tended the IRA to strengthen the authority of tribal

governments on one hand, while at the same time to

permit tribal business corporations to enter into reser-

vation development transactions. This dual purpose

was carefully explained by the Solicitor of the Depart-

ment of the Interior:

The purposes of Congress in enacting section 16

of the Indian Reorganization Act was to facilitate

and to stabilize the tribal organization of Indians

residing on the same reservation, for their com-

mon welfare. It povided their political organi-

zation. The purpcese of Congress in enacting sec-

tion 17 of the Indian Ree ganization Aet was to

empower the Secretary to issue a charter of busi-

ness incorporation to such tribes to enable them to

eonduct business through this modern device,

4F.q.. Indian Financing Act of 1974, 88 Stat. 77, 25 U.S.C.

$1451 ef sea. Ind'an Self-Determination and Edueation <Assis*-

anee Act of 1975, 88 Stat. 2203, 25 U.S.C. § 450 ef seq..

5 Fisher v. District Court 421 U.S. 382 (1976): Brvan ©. Ttasea

County, — U.S. —, 48 L.E1.2d 710, 96 S.Ct. 2102 (1976).

13

which charter cannot be revoked or surrendered

except by act of Congress. This corporation, «al-

though composed of the same members as the po-

litical body, is to be a separate entity, and thus

more capable of obtaining credit and otherwise

expediting the business of the tribe, while remov-

ing the possibility of federal liability for activi-

ties of that nature. As a result, the powers, priv-

ileges and responsibilities of these tribal organiza-

tions materially differ. (emphasis supplied.)

69 1.D. 483, 484 (1958). That Congress intended to

create separate governmental and corporate business

bodies for tribes accepting the IRA has also been ree-

ognized by this Court. Mescalero Apache Tribe y.

Jones, 411 U.S. 145, 151 (1973).

In Section 17 of the IRA, Congress provided the

tribes with federal charters which granted them the

power to manage, operate and dispose of property,

and in addition ‘‘such further powers as may be inci-

dental to the conduct of corporate business not incon-

sistent with law.”? 25 U.S.C. § 477. Based on this

conferral of ‘‘further incidental powers,’’ the Seere-

tary of the Interior issued over one hundred corporate

charters each of which contains a separate provision

allowing the corporations to sue and to be sued. The

Fort Belknap Indian Community’s federal corporate

charter confers upon the Community certain corporate

rights, powers, privileges, and immunities designed to

further the economic development of the Fort Belknap

Indian Reservation. The Community has utilized its

corporate charter to establish numerous reservation

businesses, ineluding a 2,800 acre wheat farm.

In enacting Section 16 of the TRA, Congress eon-

firmed the inherent sovereign powers of the Indian

14

tribes.© These powers of self-government have been

often upheld by this Court. Williams v. Lee, 358 U.S.

217 (1959); United States v. Mazurie, 419 U.S. 544

(1975); Fisher v. District Court, 424 U.S. 382 (1976).

In accordance with its powers of self-government, the

Fort Belknap Indian Community has adopted a con-

stitution and by-laws authorizing it to govern the terri-

tory of the Fort Belknap Indian Reservation. In-

cluded in its constitution are provisions authorizing

the Community to undertake a program of law en-

forcement on the reservation. Pursuant to that au-

thority the Fort Belknap Indian Community has

established a law and order code,’ and has employed

several law enforcement officials, including Leon Mar-

tinez, the police officer whose actions formed the basis

of Gardipee’s complaint in this ease.

The courts which have construed the waiver of sov-

ereign immunity contained in the sue and to be sued

provisions in tribal corporate charters issued under

the IRA have honored Congress’ scheme. They have

held that any waiver must be strictly limited to corpo-

rate business transactions where chattels and income

have been specifically pledged. Namekagon Dev. Co.

v. Bois Forte Res. House Au., 395 F. Supp. 23 (D.

6 The Solicitor of the Department of the Interior in a contem-

poraneous opinion issued a comprehensive analysis of the tribal

governmental powers of IRA tribes. The tribal powers were

characterized as inherent powers of a limited sovereignty which

have never been extinguished. Tneluded in the powers enumerated

in the Solicitor’s Opinion is the right of a tribe to maintain law

and order on its reservation, 55 LL.D. 14, 48-64 (1934).

7™The Fort Belknap Law and Order Code established tribal

courts, rules for civil and criminal procedure, a code defining

criminal offenses, juvenile offenses and domestie relations; and

adopted the Montana traffic laws for reservation highways.

mn tee Mens

Oe ee keer ene +

15

Minn. 1974), aff'd, 517 F.2d 508 (8th Cir. 1975);

Maryland Casuality Co. vy. Citizens National Bank of

West Hollywood, 361 F.2d 517 (Sth Cir. 1966), cert.

denied 385 U.S. 918 (1967). See also, Martinez vy.

Southern Ute Tribe, 374 P.2d 691 (Colo. 1962). In

each of these cases the court limited the waiver of

sovereign immunity to corporate business assets, and

in so doing acknowledged that the IRA preserved the

sovereign immunity of the tribal governments.

The congressional scheme found in the [IRA as well

as the official governmental and business policies of over

one hundred tribes with IRA constitutions and charters

are threatened by the Montana decision. Furthermore,

current federal policies designed to strengthen tribal

self-government such as the Indian Financing Act of

1974, 88 Stat. 77, 25 U.S.C. § 451, et seq., and the In-

dian Self-Determination and Edueation Assistance Act

of 1975, 88 Stat. 2203, 25 U.S.C. § 450, ct seq., are

frustrated by the Montana decision, particularly the

express 'anguage in the Indian Self-Determination

and Edueation Assistance Act which provides that

nothing in its provisions shall be construed as impair-

ing the sovereign immunity from suit enjoyed by the

tribes. 25 U.S.C. §450n.* In addition, the Montana

*The primary purpose of the Indian Self-Determination and

Edueation Assistance Act of 1975 is to have tribes take over many

governmental services historically provided by the Bureau of In-

dian Affairs. Thus, in 1976, tribes bevan sharing with the Bureau

of Indian Affairs over $287,306,000 in congressionally appropri-

ated funds for reservation social services, law enforcement, hous-

ing, management of tribal governments, school operations, and

road maintenance. Similarly, in 1976, the Fort Belknap Indian

Community shared with the Bureau of Indian Affairs $652,914 in

congressionally appropriated funds allocated for reservation serv-

ices. [Figures obtained from the Office of Budget, Bureau of

Indian Affairs, Washington, D.C. and Billings, Montana.] If liti-

16

decision undermines a recent decision of this Court

which held inter alia that Congress did not consent to

have tribes be subject to state court jurisdiction when

it enacted Publie Law 280, 28 U.S.C. § 1360, to allow

reservation Indians to utilize state courts to resolve

their private disputes. Bryan vy. Ttasea County, — U.S.

—, 48 L.Fd.2d 710, 721, 96 S.Ct. 2102 (1976). This

Court in Bryan v. Itasca County, supra, acknowledged

the need to protect tribal sovereignty and reservation

resourees from intrusions not expressly authorized by

Congress, to keep tribes from becoming little more

than ‘‘ private voluntary organizations.’’ 48 L.Ed.2d at

721. The Montana decision thus ignores both recent acts

of Congress and recent decisions of this Court. It opens

the door for unlimited erosion of tribal treasuries. It

must, therefore, be reviewed by this Court.

III

The Montana Construction of the Indian Reorganization Act

Is Fundamentally Inconsistent with Concepts of Tribal Sov-

ereign Immunity Long Recognized by This Court.

The decision of the Montana courts is fundamentally

in conflict with holdings of this Court which strictly

construe any waiver of sovereign immunity of an

American Indian tribe. In United States v. United

States Fidelity and Guaranty Co., 309 U.S. 509

(1940), this Court prohibited a cross-claim against a

gauts can obtain money judgments against tribes for events aris-

ing out of official governmental activities, federal funds obtained

by the tribes by contract under the Indian Self-Determination and

Education Assistance Act as well as tribal funds derived from

taxes and reservation development, may be seized to satisfy the

judgments, and Congress’ express directive in 25 U.S.C. § 450n

will be violated. :

el Bg Sas 6 Sa Wot poe

17

tribe in a suit by the United States on behalf of the

Choctaw and Chickasaw Nations:

No statutory authority granted jurisdiction to the

Missouri Court to adjudicate a cross-claim against

the United States. The publie policy which exempt-

ed the defendant as well as the dominant sover-

eignties from suit without consent continues this

immunity even after dissolution of the tribal gov-

ernment. These Indian Nations are exempt from

suit without congressional authorization. It is as

though the immunity which was theirs as sovereign

passed to the United States for their benefit, as

their tribal properties did. Possessing this immu-

nity from direct suit, we are of the opinion it

possesses a similar immunity from cross-suit. This

seems necessarily to follow if the publie policy

which protects a quasi-sovereignty from judicial

attack is to be made effective. (Emphasis sup-

plied. )

309 U.S. at 512, 513. This Court has recognized that

Congress must authorize any waiver of sovereign im-

munity for Indian tribes, Turner v. United States, 248

U.S. 354 (1919). Furthermore, the terms of any waiver

should be express as to persons, courts, and procedures.

See, e.g., Great Northern Life Insurance Co. v. Read,

322 U.S. 47, 53-54 (1943); United States vy. Shaw, 309

U.S. 495, 500-501 (1940). The principles of sovereign

immunity which apply to Indian tribes are no different

from the concepts of sovereign immunity which have

long been recognized for the United States and the

states. Each of these governments is immune from those

suits whose judgments will either raid the public trea-

sury or interfere with the administration of official

government functions. Larson v. Domestic and Foreign

Commerce Corp., 337 U.S. 682 (1949) ; Land v. Dollar,

330 U.S. 731 (1947); Great Northern Life Insurance

18

Co. v. Read, 322 U.S. 47, 53-54 (1943) ; Monaco v. Mis-

sissippi, 292 U.S. 313 (1934) ; Edelman v. Jordan, 415

U.S. 651 (1974).

Because Congress did not select express language to

waive the sovereign immunity of tribal corporations, °

any waiver of sovereign immunity effeeted by the corp-

orate charter of the Fort Belknap Indian Community

should be narrowly construed. United States v. United

States Fidelity and Guaranty Co., 309 U.S. 506 (1940) ;

Great Northern Life Insurance Co, v. Read, 322 U.S. 47

(1943) ; Monaco v. Mississippi, 292 U.S. 313 (1934)."°

Thus. to the extent that any waiver was accomplished

by reason of the adoption of the language *‘to sue and to

he sued”’ in the corporate charter of the Fort Belknap

Indian Community, it is limited to proprietary and

corporate business activities. Further, it is limited to a

waiver with respect to income or chattels specially

® The language ‘‘sue and to be sued’’ was not used in the TRA,

but rather was inserted into the corporate charters issued pur-

suant to the Act. In this respect, the IRA which merely pro-

vided that tribal corporations were to be granted ‘‘such further

powers as may be incidental to the conduct of corporate business

not ineonsistent with law’’ utilized less explicit language than

found in other congressional waivers. See, e.g., the acts creating

non-Indian federal corporations which invariably use the phrase,

‘‘sne and to be sued,’’ enumerated in Keifer v. Reconstruction

Finanee Corp., 306 U.S. 381, 390, n. 3 (1939).

Construing the corporate charter waiver narrowly is con-

sistent with how Congress has carefully preserved the immunity

of Indian property from suit even when the immunity of federal

property from suit is waived. Thus, in the Act of October 25,

1972, 86 Stat. 1176, 28 U.S.C. § 2409a, which waives the sovereign

immunity of the United States for quiet title actions, Congress

stated, ‘‘This section does not apply to trust or restricted Indian

lands.’’ The exemption was founded on the federal government’s

poliey to avoid ‘‘abridging the historic relationship between the

Federal Government and the Indians without the consent of the

Indians.’’ 1972 U.S. Code Congressional and Administrative

News 4547, 4556-4557.

———

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19

pledged or assigned which are necessary to the conduct

of corporate business not inconsistent with law. The al-

leged tortious conduct involved in the present dispute

obviously involves no proprietary or corporate business

activity of the Fort Belknap Indian Community. Nor

is there involved any specific pledge of income or chat-

tels. There is no basis, therefore, for contending that

the Fort Belknap Indian Community impliedly waived

its sovereign immunity from suit for the alleged tort-

ious conduct of one of its police officials when it adopted

a corporate charter."

CONCLUSION

The holding of the Montana courts subjecting the

Fort Belknap Indian Community to suit in a state

tort action constitutes yet another unwarranted and

unauthorized interference by the Montana state courts

into the lives of federally protected Montana Indian

tribes. The decision is in conflict with the rulings of

this Court respecting waivers of sovereign immunity

and is inconsistent with the rulings of other courts

which have limited the waiver of sovereign immunity

consented to in tribal corporate charters to suits in-

volving tribal business activities as opposed to official

tribal governmental actions. Moreover, the holding

below will significantly affect the level of governmental

services currently rendered by the 131 Indian tribes

with IRA corporate charters. These tribes have only

very limited financial resources. They cannot run the

risk of exposing their tribal treasuries to a myriad of

"' Aggrieved persons may obtain relief against arbitrary tribal

actions which cause deprivations of civil rights in federal court un-

der the provisions of the Indian Civil Rights Act, 82 Stat. 77, 25

U.S.C. § 1302, et seq. See, United States v. Mazurie, 419 U.S. 544,

558, n. 12 (1975). However, that alternative has not been at-

tempted by Gardipee, and it is therefore not an issue in this case.

20

private damage suits.” As a result, badly needed tribal

law enforcement, health, and welfare activities will be

eurtailed. Federal services may have to be increased

to offset the loss of tribal programs.

The question of the scope of the waiver of sovereign

immunity in the Indian Reorganization Act is of great

importance to both Indian tribes and the federal gov-

ernment. This Court on two recent occasions has

granted certiorari to assure that long standing federal

Indian policies are not ignored and swept aside in

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

(1971); Fisher v. District Court, 424 U.S. 382 (1976).

Petitioner requests this Court once again to exercise

its powers of review and to grant a writ of certiorari

to review the decision of the Supreme Court of the

State of Montana.

Respectfully submitted,

Putt Roy

FRANK LAMEBULL

P.O. Box 849

Browning, Montana 59417

Dante. H. Israrn

NATIVE AMERICAN RIGHTS FuND

1506 Broadway

Boulder, Colorado 80302

Counsel for Petitioner

Pecember 30, 1976

'? The poliey of protecting government treasuries from suit con-

tinues to be a primary concern of Congress. In Public Law 94-

574, October 21, 1976, Congress recently amended the Administra-

tive Procedure Act, 5 U.S.C. § 702, to eliminate the defense of

overeion immunity of the United States with respect to any

ation in a court of the Unite’ States seeking relief ofher than

moncy damages based on the assertion of unlawfal offie'al action

by a Federal officer or employee. The United States can now be

named as a party defendant in Administrative Procedure Act

cases but its treasury remains protected from judgment.

APPENDIX

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SUPREME COURT OF MONTANA

Oct. 7, 1976.

No. 13443.

Tue State or Montana ex rel. Tue Fort Betknap Inpian

ComMunIrty or THE Fort Betknap [npian Reservation,

Montana, Relator,

Vv.

Tue District Court or THE Twetrru Jupiciat District or

THE STATE OF MONTANA, IN AND FOR THE CoUNTY OF

Buarng, and the Honoraste Bernarp W. Tuomas,

Respondents.

554 P.2d 1115

Philip E. Roy, Browning, presented ex parte argument.

Order

Per CurIAM:

In this original proceeding relator seeks an appropriate

writ to require the district court of the twelfth judicial

district, in and for the County of Blaine, to reverse and

set aside its order of February 25, 1976, denying a motion

to dismiss the cause entitled James W. Gardipee, Plaintiff,

vs. Fort Belknap Indian Community of the Fort Belknap

Reservation, Montana, Defendants, now pending in said

court,

Counsel were heard in ex parte presentation and the

matter taken under advisement.

The Court now being advised denies the petition and this

proceeding is ordered dismissed.

2a

IN THE DISTRICT COURT OF THE TWELFTH JUDICTAL DiSTRICT

OF THE STATE OF MONTANA, IN AND FOR THE COUNTY

OF BLAINE

James W. Garoirer, Plaintiff,

-V8-

Fort BeLknap InpIAN ComMuNITY oF THE Fort BELKNAP

Reservation, Montana, Defendants.

(Filed February 24, 1976)

Order Denying Motion to Dismiss

Defendant’s motion to dismiss plaintiff’s complaint on

the ground that the Court lacks jurisdiction of the subject

matter of the action and of the defendant, has been sub-

mitted to the Court on the briefs of counsel. Now, it ap-

pearing to the Court that (1) the action is based on acts

alleged to have occurred outside the exterior boundaries of

the Fort Belknap Indian Reservation, and (2) although

defendant may have immunity from suit, it has waived

such immunity in its corporate charter, (without consenting

to the levy of any judgment, lien or attachment upon the

property of the community other than income or chattels

specifically pledged or assigned.) the Court concludes that

it has jurisdiction of the subject matter of the action and

of defendant, subject to the limitations expressed in the

charter.

It is, therefore, hereby Orpverep that the motion to dis-

miss be and it is hereby denied. Defendant is allowed

twenty (20) days from this date in which to further plead.

Daren this 2nd day of February, 1976.

/s/ B. W. THomas

Judge of the District Court

Si coe

5

:

3a

(Caption Omitted in Printing)

Amended Complaint

(Filed Nov. 20, 1975)

Comes Now, the above plaintiff and alleges:

For plaintiff’s First Cause of Action:

1. That the defendant, Fort Belknap Indian Commun-

ity of the Fort Belknap Reservation, Montana, is a federal

corporation chartered under the Act of June 18, 1934, of

the United States Congress.

2. That the management and affairs of such defendant

corporation are conducted by the Community Council.

3. That defendant’s corporate charter contains a pro-

vision whereby it consents to be sued in courts of com-

petent jurisdiction in the United States and that by reason

of such consent, this Court has jurisdiction over the de-

fendant with respect to the matters at issue herein.

4. The Leon Martinez, at all times herein mentioned,

was employed by and acting under and within the scope

of his employment as the Chief of Police for the said de-

fendant, Fort Belknap Indian Community of the Fort

Belknap Reservation, Montana, and as such was acting

in ‘he performance of his duties.

5. That on or about the 4th day of October, 1974, the

said Leon Martinez claims to have arrested plaintiff for

driving a motor vehicle on the Fort Belknap Indian Reser-

vation without a valid Montana vehicle operator’s license.

6. That following said claimed arrest, plaintiff was

ordered to accompany the said Leon Martinez in a vehicle

owned by the defendant, Fort Belknap Indian Community

of the Fort Belknap Reservation, Montana, and then and

there being used by Leon Martinez in the performance of

his duties as such defendant’s Chief of Police.

4a

7. That at a point on U.S. Highway No. 2, approxi-

mately 1 mile west of Harlem, in Blaine County, Montana,

plaintiff requested that he be allowed to leave said auto-

mobile and custody of the said Leon Martinez. That in

response to such request Martinez stopped said automobile,

at which time plaintiff departed therefrom and proceeded

to walk back to Harlem via the Burlington Northern Rail-

way right-of-way.

8. That while plaintiff was walking along said Burl-

ington Northern Railway right-of-way as aforesaid, the

said Leon Martinez committed an intentional, wanton, ma-

licious, unlawful, brutal, unnecessary and unprovoked as-

sault and battery upon the plaintiff, by shooting him with a

revolver then and there loaded with bullets, one of which

passed through plaintiff’s left leg.

9. As a proximate result of the aforesaid gunshot

wound received by plaintiff, he was severely injured. Said

injuries have caused plaintiff to suffer excruciating phys-

ical and mental pain and anguish and to cause him to be-

come permanently disabled, to his damage in the sum of

$75,000.00. That plaintiff further suffered a loss of earn-

ings by reason of such injuries amounting to the sum of

$5,000.00.

For a Second, Separate, and Further Cause of Action,

plaintiff incorporates herein with the same force and effect

as though stated verbatim, Paragraphs 1, 2, 3, 4, 5, 6, 7, 9

of plaintiff’s First Cause of Action, and further alleges:

That while plaintiff was walking along said Burlington

Northern Railway right-of-way as aforesaid, the said Leon

Martinez negligently shot plaintiff with a revolver then

and there loaded with bullets, one of which passed through

plaintiff’s left leg.

287 Sowiepai aie Ve . -

5a

Wuererore, plaintiff prays judgment against the defend-

ant as follows:

1. The sum of $75,000.00 general damages.

2. The sum of $5,000.00 for special damages.

3. For costs of suit ineurred herein.

4. For such other and further relief as to this Court

seems proper.

Morrison, rtren & Barron

/s/ By (Illegible)

Attorneys at Law

339 Third Street

P.O. Box 1070

Havre, Montana 59501

Attorneys for Plaintiff

(Certificate of Mailing Omitted in Printing)

------———_ -

Corporate Charter of the Fort Belknap Indian

Community, Montana

[Gros Ventre and Assiniboine]

Ratified August 25, 1937

Whereas, the Fort Belknap Indian Community of the

Fort Belknap Reservation in Montana constitutes a ree-

ognized Indian Community organized under a constitution

and by-laws ratified by the Gros Ventre and Assiniboine

Tribes of the Fort Belknap Indian Reservation on October

19, 1935, and approved by the Secretary of the Interior on

December 13, 1935, pursuant to Section 16 of the Act of

June 18, 1934 (48 Stat. 984), as amended by the Act of

June 15, 1935 (49 Stat. 378); and

Whereas, more than one-third of the adult Indians on

the Fort Belknap Indian Reservation who are members of

6a

the Gros Ventre and Assiniboine Tribes have petitioned

that a charter of incorporation be granted to such com-

munity, subject to ratifieation by vote of said Indians

living on said reservation;

Now, theref> re, T, Charles West, Acting Seeretary of the

Interior, by virtue of the authority conferred upon me by

the said Act of June 18, 1934 (48 Stat. 984), do hereby

issue and submit this charter of incorporation to the Fort

Belknap Indian Community of the Fort Belknap Reserva-

tion to be effective from and after such time as it may be

ratified hy a majority vote of the adult Indians living on

the reservation, at an election in which at least thirty per

cent of the eligible voters vote.

1. Corporate Existence. In order to further the economic

development of the Fort Belknap Indian Community of the

Fort Belknap Reservation in Montana by conferring upon

the said community certain corporate rights, powers, privi-

leges and immunities; to secure for the members of the

Community an assured economic independence; and to pro-

vide for the proper exercise by the Communities of various

functions heretofore performed by the Department of the

Interior, the aforesaid community is hereby chartered as

a body politie and corporate of the United States of

America, under the corporate name ‘The Fort Belknap

Indian Community. ”’

2. Perpetual Succession. The Fort Belknap Indian Com-

munity shall, as a Federal corporation, have perpetual sue-

cession,

3. Membership [as Amended]. The Fort Belknap Indian

Community shall be a membership corporation. Its mem-

bers shall consist of all persons now or hereafter members

of the Community, as provided by its duly ratified and ap-

proved Constitution and By-laws, as amended.

4, Membership [as Amended]. The Fort Belknap Com-

munity Council consisting of six (6) members of the Gros

ae ee. ee ee DAL el Milly % o :

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Ventre Tribe of Indians and six (6) members ef the Assini-

boine Tribe of Indians of the Fort Belkn: p Indian Reser-

vation, elected by all the electors of the Community, shall

exercise all the corporate powers hereinafter enumerated.

5. Corporate Powers. The Community, subject to any

restrictions contained in the Constitution and laws of ‘the

United States, or in the Constitution and By-laws of the

said community, or in this Charter, shall have the follow-

ing corporate powers:

(a) To adopt, use, and alter at its pleasure a corpo-

rate seal.

(b) To purchase, take by gift, bequest, or otherwise,

own, hold, manage, operate, and dispose of property of

every description, real and personal, subject to the fol-

lowing limitations:

(1) No sale or mortgage may be made by the Com-

munity of any land, or interest in land, now or

hereafter held by the Community.

(2) No leases, permits (which terms shall not inelude

land assignments to members of the Community)

or timber sale contracts covering any land or in-

terests in land now or hereafter held by the Com-

munity within the boundaries of the Fort Belknap

Reservation shall be made by the Community for

a longer term than ten years, and all such leases,

permits, or contracts must be approved by the See-

retary of the Interior or by his duly authorized

representative; but oil and gas leases, mineral

leases, or any leases requiring substantial im-

provements of the land may be made for longer

periods when authorizcd by law.

(3) No action shall be taken by or in behalf of the

Community which conflicts with regulations au-

Sa

thorized by Section 6 of the Act of June 18, 1934,

or in any way operates to destroy or injure the

Community grazing lands, timber, or other nat-

ural resources of the Fort Belknap Reservation.

(c) To issue interests in corporate property in ex-

change for restricted Indian land.

(d) To borrow money from the Indian Credit Fund

in accordance with the terms of Section 10 of the Act of

June 18, 1934, (48 Stat. 984), or from any other govern-

mental agency, or from any member or association of mem-

bers of the Community, and to use such funds directly for

productive tribal enterprises, or to loan money thus bor-

rowed to individual members or associations of members

of the Community; Provided, That the amount of indebt-

edness to which the Community may subject itself, aside

from loans from the Indian Credit Fund, shall not exeeed

$2,500, except with the express approval of the Secretary

of the Interior.

(e) To engage in any business that will further the

economic well-being of the members of the Community or

to undertake any activity of any nature whatever, not in-

consistent with law or with any provisions of this Charter.

(f) To make and perform contracts and agreements of

every description, not inconsistent with law or with any

provisions of this Charter, with any person, association, or

corporation, with any municipality or any county, or with

the United States or the State of Montana, including agree-

ments with the State of Montana for the rendition of pub-

lic services: Provided, That any contracts, other than con-

tracts with the United States, involving payment of money

by the corporation totalling in excess of $2,000 during any

one fiscal year shall be subject to the approval of the Sec-

retary of the Interior or his duly authorized representa-

tive.

ee ee Tet te er eee

9a

(¢) To pledge or assign chattels or future income due

or to become due to the Community under any notes, leases,

or other contracts, or from any other source, whether or

not such notes, leases, or contracts are in existence at the

time: Provided, That such agreement of assignment, other

than agreements with the United States, shall not extend

more than ten years from the date of execution and shall

not cover more than one half the income from any source:

And provided further, That any such agreement shall be

subject to the approval of the Secretary of the Interior or

his duly authorized representative.

(h) To deposit corporate funds, from whatever source

derived, in any national or state bank to the extent that

such funds are insured by the Federal Deposit Insurance

Corporation, or secured by a surety bond, or other security,

approved by the Secretary of the Interior; or to deposit

such funds in the Postal Savings Bank or with a bonded

Disbursing Officer of the United States to the credit of the

community.

(i) To sue and to be sued in courts of competent juris-

diction within the United States; but the grant or exercise

of such power to sue and to be sued shall not be deemed a

consent by the Community or by the United States to the

levy of any judgment, lien or attachment upon the property

of the Community other than income or chattels specially

pledged or assigned.

(j) To exercise such further incidental powers not in-

consistent with law, as may be necessary to the conduct of

corporate business.

6. Termination of Supervisory Powers. Upon the re-

quest of the Communcity Council of the Fort Belknap In-

dian Community for the termination of any supervisory

power reserved to the Secretary of the Interior under See-

tions 5(b) (2), 5(d), 5(f), 5(@), 5(h), and Section 8 of this

Charter, the Secretary of the Interior, if he deems it wise

10a

and expedient to do so, shall thereupon submit the question

of such termination or grant for ratification by the Com-

munity. If the Secretary of the Interior shall approve such

termination it shall be effective upon ratification by a ma-

jority vote of the adult members of the Community resid-

ing on the reservation, at an election in which at least 30

per cent of the eligible voters vote. If the Secretary shall

disapprove such termination, or fail to approve or disap-

prove it within 90 days after its receipt, it may then be

submitted by the Secretary or by the Community Council

to popular referendum of the adult members of the Com-

munity actually living within the reservation, and if ap-

proved by two-thirds of the eligible voters shall be effective.

7. Tribal Rights and Claims. (a) Property rights and

present and future claims of the Gros Ventre and Assini-

boine Tribes of Indians who have entered into a partner-

ship to form the Fort Belknap Indian Community for the

management of their joint affairs, shall not be in any way

impaired by anything contained in this Charter, or in the

Constitution and By-Laws of the Fort Belknap Indian

Community.

(b) Nothing in this Charter, or in the Constitution and

By-Laws of the Fort Belknap Indian Community shall con-

stitute a release or waiver or shall in any way impair any

present or future claims of the Gros Ventre Tribe of In-

dians of the Fort Belknap Indian Reservation, or of the

Assiniboine Tribe of Indians of the Fort Belknap Indian

Reservation, against the United States, against each other,

or against any other tribe or tribes of Indians.

(c) The tribal unallotted lands of the Fort Belknap

Indian Reservation are hereby vested in the Fort Belknap

Indian Community, subject however to the restrictions con-

tained in Section 7, paragraph (b) of this Charter.

(d) The Gros Ventre members of the Community

Council and the Assiniboine members of the Community

Council shall each have sole and exclusive jurisdiction over

all matters concerning the exclusive property rights and

lla

present and future claims of each of their said tribes, and

shall transact the exclusive business policy and administra-

tive affairs of their respective tribes, and shall exercise

their said several powers to the same extent and for the

same purposes as exercised by each of said tribal councils

prior to the ratification of the Fort Belknap Indian Com-

munity Constitution and By-laws and the granting of this

Charter.

(e) That the administration of moneys borrowed by

the Fort Belknap Indian Community and reloaned to mem-

bers of the community or associations of such members

shall be under the jurisdiction of two sub-committees of the

council, one consisting only of Gros Ventre councilmen to

administer all loans to Gros Ventre Indians, and one con-

sisting only of Assiniboine councilmen to administer all

loans to Assiniboine Indians. The amounts allocated to the

two sub-committees shall be equal except in so far as dem-

onstrated differences in population or need warrant any

other equitable division.

8. Corporate Dividends. The Community may issue to

each of its members a nontransferable certificate of mem-

bership evidencing the equal share of each member in the

assets of the Community and may distribute per capita,

among the recognized members of the Community, all in-

come of the Community over and above sums necessary to

defray corporate obligations to members of the Community

or to other persons and over and above all sums which may

be devoted to the establishment of a reserve fund, the con-

struction of public works, the costs of public enterprises,

the expenses of the Community government, the needs of

charity, or other corporate purposes. No such distribution

of profits in any one year amounting to a distribution of

more than one half of the aecrued surplus, shall be made

without the approval of the Secretary of the Interior.

9. Corporate Accounts. The officers of the Community

shall maintain accurate and complete public accounts of

12a

the financial affairs of the Community, which shall clearly

show all credits, debts, pledges, and assignments, and shall

furnish an annual balance sheet and report of the financial

affairs of the Community to the Commissioner of Indian

Affairs. The Secretary Treasurer of the Fort Belknap

Indian Community shall pay out money only in accord-

ance with the orders and resolutions of the Community

Council, and no disbursements shall be made without the

signature or approval of the Seeretary-Treasurer. The

books of the Seeretary-Treasurer shall be audited at the

direction of the Community Council or of the Commissioner

of Indian Affairs, and shall be open to inspection by mem-

bers of the Community or duly authorized representatives

of the Secretary of the Interior at all reasonable times.

10. Amendments. This Charter shall not be revoked or

surrendered except by Act of Congress, but amendments

may be proposed by resolutions of the Community Council

which if approved by the Secretary of the Interior, to be

effective shall be ratified by a majority vote of the adult

members living on the reservation at a popular referendum

in which at least 30 per cent of the eligible voters vote.

11. Ratification. This Charter shall be effective from and

after the date of its ratification by a majority vote of the

adult members of the Fort Belknap Indian Community

living on the Fort Belknap Reservation, provided at least

30 per cent of the eligible voters shall vote; such ratifiea-

tion to be formally certified by the Superintendent of the

Belknap Indian Community.

Submitted by the Acting Secretary of the Interior for

ratification by the Fort Belknap Indian Community in a

popular referendum to be held on August 25, 1937.

Cuaries West

Acting Secretary of the Interior

Washington, D. C., July 29, 1937.

[Seal]

13a

CERTIFICATION

Pursuant to Section 17 of the Act of June 18 1934 (48

Stat. 984), this Charter, issued on July 29, 1937 by the

Acting Secretary of the Interior to the Fort Belknap In-

dian Community of the Fort Belknap Reservation, was

duly submitted for ratification to the adult Indians living

on the Reservation and was on August 25, 1937, duly carried

» Fleas of 277 for and 158 against, in an election in

a Sew eanaied percent of those entitled to vote cast

Ricuarp Kina,

President of the Fort Belknap

Indian Community.

F’. W. Boyp

Superintendent of Fort Belknap A gency.