Appendix — Shortbull v. Looking Elk

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 81-1280

Thomas Shortbull, *

Appellant, *

% * Appeal from the United

Stanley Looking Elk, Elijsh * orenmmen

Whirlwind Horse, James

Mousseau, Ivan Bettelyoun,

Marvin Amiotte, Gerald ‘*‘ Jump’’

Big Crow, Lyman Red Cloud,

Delores Whitehead, Edgar High

Whiteman, Gilbert Mathews, .

Dave Brewer, and Jerry Matthews

*

e

Appellees.’

Submitted: December 16, 1981

Filed: May 3, 1982

Before BRIGHT and ROSS, Circuit Judges, and LAR-

SON. Senior District Judge.”

2a

Thomas Shortbul! brings this appeal challenging the

district court’s order granting summary judgment against

him. We affirm.

The facts are set out fully in the district court’s

memorandum opinion. See Thomas Shortbull v. Stanley

ing Elk, et al., No. 80-5035 (D. S.D., filed February

19, 1981). Appellant Thomas Shortbull is a non-enrolled

member of the Oglala Sioux Tribe.

A member of the Tribe is defined in the Tribal Con-

stitution as follows:

Section | -- The membership of the Oglala Sioux

Tribe shall consist as follows:

(a) All persons whose names appear on the of-

ficial census roll of the Oglala Sioux Tribe of the

Pine Ridge Reservation as of April 1, 1935, pro-

vided, that correction may be made in said rolls

within five years from the adoption and approval

of this constitution by the tribal council subject

to the approval of the Secretary of Interior.

(b) All children born to any member of the tribe

who is a resident of the reservation at the time of

the birth of said children.

Section 2 -- The tribal council shall propose by-

laws covering future membership and the adop-

tion of new members.

*Earl R. Larson, United States Senior District Judge, District of

Minnesota, sitting by designation.

3a

An enrolled member is a person on the 1935 census roll of

the Pine Ridge Reservation or the child of any tribe

member who was a resident of the reservation at the time

of the child’s birth. Shortbull is a non-enrolled nember,

or N.E., because although his father is a member of the

Tribe, Shortbull was born off the reservation in Igloo,

South Dakota, where his father was employed.

The controversy involved in the present suit arose when

Shortbull filed nominating petitions to have his name plac-

ed on the ballot for the January 1980 primary election for

the office of President of the Oglala Sioux Tribe on the

Pine Ridge Reservation. Shortbull’s nominating petitions

were rejected by the Tribal Election Board because the

tribal ordinances required that the President be an enroll-

ed member. Shortbull then sought permission to run in

the primary election from the Tribal Council. On January

24, the Council enacted Tribal Resolution 80-12, which

provided:

BE IT RESOLVED that the Oglala Sioux Tribal

Election Board is hereby directed and authorized

to forthwith accept the petition of Thomas

Shortbull to run for Tribal President and certify

him as a candidate in the upcoming election.

The resolution indicated that the Tribe had experienced

difficulty in providing a procedure whereby memberships

in the Tribe could be processed, and had enacted or-

dinances providing for enrollment that had not been im-

plemented' . On January 29, the Council passed a subse-

‘Tribal Ordinance 79-08 established the following procedures for

enrolling tribal members born since 1935:

4a

quent resolution that stated: ‘Tribal Council body to

uphold the Constitution and By-laws and Election Or-

dinance, and also uphold any decisions of the Election

Board.’’ Appellees asserted that this January 29 resolu-

tion rescinded Resolution 80-12, but on January 30 Chief

Tribal Court Judge H. Clyde Red Shirt disagreed, and

ordered the Election Board to certify Shortbull as a can-

didate and place his name on the ballot pursuant to the

Council’s January 24 resolution.

Footnote | continued

Section 201. Publication of Preliminary List. The Depart-

ment of Enrollment shall at the earliest possible opportuni-

ty publish a preliminary list of all enrolled members of the

Oglala Sioux Tribe, listing names, date of birth, and

degree of tribal ancestry. A copy of that list shall be

available for inspection at the office of the Oglala Sioux

Tribe during regular business hours and at such other con-

spicuous [sic] public places throughout the Pine Ridge In-

dian Reservation as the Department of Enrollment may

direct.

Section 202. Claims for Enroliment. (a) Any person born

prior to the date of publication of the preliminary list of

enrolled members who does not appear on the list and for

whom a claim for enrollment is made, may apply for

enrollment to the Department of Enrollment, either in per-

son, in in the case of a minor or a person non compos men-

tis through a parent, guardian, or next friend. Such ap-

plication shall be made on such form as the Department

shall prescribe and shall be filed within six months of the

date of publication of the preliminary list.

(b) The names of all applicants for enrollment under

subsection (b) shall be posted on the public bulletin board

of the Oglala Sioux Tribe and at such other conspicuous

public places through the Pine Ridge Indian Reservation as

the Department of Enrollment may direct, for at least

Sa

Footnote | continued

fourteen days before any application may be acted on by

the Department.

Residency Requirements: (a) A person who leaves the

Resevation for service in the armed forces of the United

States or for any other employement with the United States

Government or for attendance at an educational institu-

tion shall be considered to be a resident of the reservation

for as long as such service, employment or attendance con-

tinues and for an additional six months.

(b) A person who left the reservation for the purpose

of employement during the period December 7, 1941

through August 14 , 1945, and returned to reside on the

reservation on or before December 31, 1945, shall be con-

sidered to be a resident of the reservation during the period

of such absence.

(c) A person who resided within the former Pine

Ridge Aerial Gunnery Range and left the reservation

following or in anticipation of the taking of the Gunnery

Range by the United States Government, and returned to

reside on the Reservation on or before December 31, 1945,

shall be considered a resident of the reservation during

such absence.

(d) A person who leaves the reservation for the pur-

pose of employement shall be considered a resident of the

reservation during such absence if: (1) he or she continues

to own an interest (legal or beneficial) in land within the

reservation, or (2) he or she returns to reside on the reser-

vation within five years.

(e) A person who leaves the reservation and thereby

ceases to be a resident shall be considered to have re-

established residence on the reservation if such person

maintains his or her permanent residence on the reserva-

tion for a period of one year.

This ordinance has not been implemented, but Shortbull’s attorney

argued to the Tribal Council that Shortbull met the residency re-

quirements of provisions (a), (d) and (e) of the ordinance.

Footnote | continued

The January 24 resolution (Resolution 80-12) provided in full:

RESOLUTION DIRECTING THE OGLALA SIOUX

TRIBAL ELECTION BOARD TO CERTIFY THOMAS

SHORTBULL AS A CANDIDATE FOR TRIBAL

PRESIDENT.

WHEREAS, the Oglala Sioux Tribe has experienced

considerable difficulty in providing for a procedure to pro-

cess applications for men -rship in the Tribe and nothing

definitive about such procedure has been accomplished for

a great many years, and

WHEREAS, certain ordinances passed by the Tribe

governing enroliment have not been implemented in time

for various persons to vote and run for Tribal Office, and

WHEREAS, previously, non-enrolled members of the

Tribe have been frustrated in their attempts to participate

in Tribal Government to the full extent even though they

were entitled to membership by [sic] have been unable to

vote or run for office, with few expections [sic], and

WHEREAS, Thomas Shortbull, who is registered as

N.E. presented his sufficient petitions to run for Tribal

President to the Tribal Election Board prior to the deadline

on January 9, 1980 and even though he also presented his

documentation to said Board, it has refused to act on these

petitions and to certify him as a candidate in the upcoming

election, and

WHEREBRAS, time is of the essence and unless the

Council takes action to certify him as a candidate, he will

be prevented from running in the upcoming election, now

THEREFORE, BE IT RESOLVED that the Oglala

Sioux Tribal Election Board is hereby directed and

authorized to forthwith accept the petition of Thomas

Shortbull to run the Tribal President and certify him as a

candidate in the upcoming election.

7a

On February 1, Chief Judge Red Shirt held certain

tribal officials in contempt for failing to place Shortbull’s

name on the ballot, but because of this action, the Tribal

Executive Committee suspended Judge Red Shirt’ and

replaced him with Judge Whitehead. Judge Whitehead

quashed Judge Red Shirt’s orders, and the Election Board

notified Shortbull that he was not eligible to run for Tribal

President. On February 4, Judge Red Shirt ruled that he

was still Chief Judge and had arrest warrants issued for

those persons he had held in contempt of court on

February 1. He also ordered the postponement of the

February 5 primary election. Judge Whitehead im-

mediately quashed the arrest warrants and ordered that

the February | contempt citations be purged from the

records. The primary election was held February 5, and

Shortbull did not participate as a candidate.

On March 17, 1980, Shortbull brought the present ac-

tion in Federal court under 42 U.S.C. § 1985 (c)’ against

defendents Judge Whitehead, the Tribal President, two

tribal attorneys, and various other tribal officials, in-

cluding the members of the Tribal Election Board and the

members of the Tribal Executive Committee. In his com-

plaint Shortbull alleged that these individuals conspired to

deprive him of his right--as determined by Judge Red Shirt

and the Tribal Council resolution--to have his name placed

on the ballot for the primary election. District Judge An-

drew Bogue ruled against the appellees’ motion to dismiss

*Shortbull alleged that this suspension was illegal since Judge Red

Shirt was not given a hearing and the Executive Committee gave no

reasons for the suspension, although just cause is required by tribal

ordinance.

and against Shortbull’s motion to disqualify appellees’ at-

torney, but after presenting the district court with Short-

bull’s deposition and accompanying exhibits, the appellees

renewed their motion to dismiss and asked the district

court to consider it a motion for summary judgement pur-

suant to Rule 12 (b) of the Federal Rules of Civil Pro-

cedure. On February 19, 1981, the district court granted

appellees’ motion, and Shortbull has appealed.

In reviewing Judge Bogue’s decision to grant sum-

mary judgment, we apply the same standard as the district

court. Summary judgment may only be granted if there is

no genuine issue of material fact: there may be no con-

troversy that the appellees in this case have established

their right to judgment. Summary judgment may not be

granted if appellant Shortbull is entitled to recover under

any circumstances, and the facts must be viewed in the

light most favorable to him. See Vette Co. v. Aetna

‘42 U.S.C. § 1985 (c) was codified as § 1985 (3) prior to 1976.

This statute provides in part:

If two or more persons in any State or Territory con-

spire or go in disguise on the highway or on the premises of

another, for the purpose of depriving, either directly or in-

directly, any person or class of persons of the equal protec-

tion of the laws, or of equal privileges and immunities

under the laws . . . in any case of conspiracy set forth in

this section , if one or more persons engaged therein do, or

cause to be done, any act in furtherance of the object of

such conspiracy, whereby another is injured in his person

or property, or deprived of having and exercising any right

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

injured or deprived may have an action for the recovery of

damages, occasioned by such injury or deprivation,

against any one or more of the conspirators.

9a

Casualty & Surety Co., 612 F. 2d 1076, 1077 (8th Cir.

1980); Penne v. Greater Minneapolis Area Board of

Realtors, 604 F. 2d 1143, 1148 (8th Cir. 1979); Butler v,

MFA Life Insurance Co., 591 F. 2d 448, 451 (8th Cir.

1979).

In Griffin v, Breckenridge, 403 U.S. 88, 91 S. Ct.

1790, 29 L. Ed. 2d 338 (1971), the Supreme Court set forth

the four basic elements necessary to state a cause of action

under 42 U.S.C. § 1985 (c): (1) a conspiracy, (2) for the

purpose of depriving any person or class of persons of the

equal protection of the laws, (3) an act in furtherance of

the conspiracy, and (4) resulting injury or the deprivation

of any right or privilege of a citizen of the United States.

Id. at 102-03. The Court in Griffin indicated that the se-

cond requirement ‘‘means that there must be some racial,

or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators’ action.’’

Id. at 102 (footnote omitted). In granting summary judg-

ment the district court found that Shortbull had raised a

factual issue as to the first, third, and fourth requirements

established by Griffin, but determined that there was no

conceivable set of facts that could support recovery as to

the second element of the Griffen test. Shortbull’s com-

plaint in this regard alleged:

Defendants’ actions were motivated by an in-

vidious discriminatory animus towards plaintiff,

because of his membership in the class of people

classified as ‘‘N.E.’’ on the official B.1.A. Cen-

sus rolls and his political opposition to said

defendants.

The district court held that Shortbull’s claim that he was

discriminated against because of his individual political

opposition to the appellees was not a class-based claim,

10a

and his claim that he was discriminated against because of

his status as an N.E. was not actionable under § 1985 (c)

because the criteria defining the N.E. class were not in-

vidious.

In Griffin, the Supreme Court ruled that a racially

discriminatory conspiracy was actionable, see Griffin v.

Breckenridge, 403 U.S. at 102 n. 9, 103, and the Court has

implicitly held that discrimination on the basis of sex is

sufficient under the statute, see Great American Federal

Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 389 n. 6,

99 S. Ct. 2345, 60 L. Ed. (1979), but beyond these

two cases, there is significant confusion over what classes

are protected under § 1985 (c). See Note, The Class-Based

Animus of 42 U.S.C. § 1985 (c): A ted Approach,

64 Minn. L. Rev. 635, ao cae courts have ex-

tended protection to other suspect-like classes, such as

those based on religion, see, e.g., Ward v. Connor, 657 F.

2d 45 (4th Cir. 1981) (appeal | pending); Marlowe v. Fisher

Body, 489 F. 2d 1057 (6th Cir. 1973); Action v. Gannon,

450 F. 2d 1227 (8th Cir. 1971); Baer v. Baer, 45] F. Supp.

481 (N.D. Cal. 1978), or those defined by ideology or the

exercise of a fundamental right. See, e.g., Philadel

Yearly Meeting of the Religious Society of Friends v. ate,

519 F. 2d 1335 (3d Cir. 1975); Glasson v. City of

Louisville, 518 F. 2d 899 (6th Cir.), cert. denied, 423 U.S.

930 96 S. Ct. 280, 46 L. Ed. 2d 258 (1975); Cameron v.

Brock, 473 F. 2d 608 (6th Cir. 1973); Puentes v. Sullivan

425 F. Supp. 249 (W.D. Tex. 1977). The ultimate test, vs

course, is whether the classification is sufficiently ‘‘i

a, so as to fall within the statute’s ambit. See Har Har.

v. Brooks, 519 F. 2d 1358, 1359-60 (Ist Cir. 1975).

In Meaus v. Wilson, 522 F. 2d 833 (8th Cir.), cert

denied, 424 U.S. 958, 96 S. Ct. 1436, 47 L. Ed. 2d 364

(1975), this Court was confronted with another § 1985 (c)

complaint arising from an election dispute on the Pine

Ridge Reservation. In Means, we reversed the dismissal of

the complaint filed by Russell Means, an unsuccessful can-

didate for President of the Oglala Sioux Tribe, and a

group of his political supporters. All of the plaintiffs in

Means were enrolled members of the Tribe, and we found

that their complaint alleged a cause of action under § 1985

(c) because it stated that ‘‘defendants conspired and did

overt acts in furtherance of a conspiracy to deprive the

plaintiffs of their right to vote because they were sup-

porters of plaintiff Means and members of the American

Indian Movement.’’ Jd. at 839. We held that “‘[t}he

group of plaintiffs in this case, by their affirmative acts of

supporting plaintiff Means and the American Indian

Movement and attempting to oust Wilson as their Council

President, were a class against whom, according to the

allegations of their complaint, the defendants

discriminated against because of their class membership.”’

Id. at 840 (footnote omitted).

We agree with the district court’s assessment that

Shortbull’s allegations are distinguishable from those

made by the plaintiffs in Means. Shortbull’s suggestion

that he was discriminated against because of ‘‘his political

opposition to said defendants’’ does not apper to raise a

include personal animus, see Duff v. Sherlock, 432 F

Supp. 423, 429 (E.D. Pa. 1977) and cases cited therein,

and Shortbull’s allegation that appellees discriminated

against him because of his individual political opposition

to them is not actionable under § 1985 (c). See Lessman v.

McCormick, 591 F. 2d 605, 608 (10th Cir. 1979) (no

animus against anyone other than individual plaintiff deb-

tor); McNally v. Pulitzer Publishing Co., 532 F. 2d 69, 75

12a

(8th Cir.), cert. denied, 429 U.S. 855, 97 S. Ct. 150, 50 L.

Ed. 2d 131 (1976) (citing McLellan v. Mississippi Power &

Light Co., 526 F. 2d 870, 878 (Sth Cir. 1976), aff'd

vacated in part, 545 F. 2d 919 (Sth Cir. 1977);

v. Korman Corp., 456 F. Supp. 730, 734 (E.D. Pa. 1978),

cert. denied, 444 U.S. 898, 100 S. Ct. 205, 62 L. Ed. 2d

133 (1979) (‘‘there must be a discriminatory animus

toward a class, not toward an individual qua individual’).

Indeed, Shortbull does not appear to question this deter-

mination on appeal.

The class-based claim that Shortbull urges on appeal

is that he was discriminated against because of his status as

a non-enrolled member of the Tribe. He asserts that he is

being denied the right to run and vote in tribal elections

solely because of his membership in the class of N.E.s, and

that such discrimination is impermissible and actionable

under § 1985 (c). We must disagree. The Oglala Sioux

have an important interest in setting the standards for who

may vote and run in tribal elections. In Daly v. United

States, 483 F. 2d 700 (8th Cir. 1973), this Court held that

the Crow Creek Sioux Tribe could iniformly require the

Tribal Council members be one-half or more Indian

blood, because ‘‘the Tribe has a sufficient cultural interest

in setting a higher blood quantum requirement to hold of-

fice than for mere membership in the Tribe if it so

desires.” Id. at 705-06 (footnote omitted). The Court

viewed such a standard as similar to the one contained in

the United States Constitution that the President of the

United States be a natural born citizen. See id. at 706 n. 4.

Moreover, ‘‘la] tribe’s right to define its own membership

for tribal purposes has long been recognized as central to

its existence as an independent political community.’’ San-

ta Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.

Ct. 1670, 56 L. Ed. 2d 106 (1978). The right to define who

13a

is eligible to run for office and vote in elections must be

viewed in a similar manner. The policy of promoting In-

dian self-government, see, ¢.g., id. at 62, thus suggests

that requiring presidential candidates to be enrolled

members of the Tribe is a legitimate political determina-

tion that does not create an invidiously discriminatory

classification. Because Shortbull has failed to

demonstrate that the exclusion of non-enrolled members

of the Tribe as a class is invidously discriminatory, the

district court’s grant of summary judgment must be af-

firmed.

We must, however, express serious concern that

Shortbull’s rights under § 1302 of the Indian Civil Rights

Act (ICRA) “may never be vindicated. Shortbull alleges

that the tribal court, Chief Judge Red Shirt, ruled that he

was entitled to run in the primary election because of the

Tribal Council’s January 24 resolution. It appears that

because of this ruling, Judge Red Shirt was removed from

office and was replaced by a judge more sympathetic to

the Tribal Executive Committee, who quashed Judge Red

Shirt’s orders. Such actions raise serious questions under

the Indian Civil Rights Act, but because the Supreme

Court determined in Martinez that there is no private right

‘Section 8 of the Indian Civil Rights Act provides as follows:

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

No Indian tribe in exercising powers of self-government

shall--

(8) deny to any person within its jurisdiction the equal

protection of its laws or deprive any person of liberty

or property without due process of law.

i4a

of action under the ICRA, Shortbull has no rememdy. In-

deed, were we to find that he had alleged sufficient class-

based animus to come within the ambit of § 1985 (c), we

would have to confront the question of the source of

Federal power to reach the private conspiracy under §

1985 (c). There is no question that the Martinez decision

affects such a determination. See Means v. Wilson, 522 F.

2d at 838-39.

We are thus presented with a situation in which Short-

bull has no remedy within the tribal machinery nor with

the tribal officials in whose election he cannot participate,

compare Dry Creek Lodge, Inc. v. Arapahoe & Shoshone

Tribes, 623 F. 2d 682, 685 (10th Cir. 1980), cert. denied,

449 U.S. 1118, 101 S. Ct. 931, 66 L. Ed. 2d 847 (1981),

unless and until Congress provides otherwise. See Santa

Pueblo v. Marti 436 U.S. at 72. We question

whether such a result is justified on the grounds of main-

taining tribal autonomy and self-government: it frustrates

the ICRA’s purpose of ‘‘protect[ing] individual Indians

From arbitrary and unjust actions of tribal governments,’’

and in this case it renders the rights provided by the ICRA

meaningless. Id. at 73, 83 (citations omitted) (J. White,

Because we find that the district court was correct in

its determination that the appellees’ actions in preventing

Shortbull from running for office because he was a non-

enrolled member of the Tribe were not motivated by an in-

vidiously discriminatory animus as required by § 1985 (c),

we need not reach the questions of whether Shortbull fail-

ed to exhaust his administrative remedies or whether ap-

pellees’ attorney should have been disquaiified. The judg-

ment of the district court is accordingly, affirmed.

15a

A true copy.

attest:

CLERK, U.S. COURT OF APPEALS, EIGHT CIRCUIT.

Ib

APPENDIX

United States District Court

District of South Dakota

February 19, 1981

Mr. Ramon Roubideaux

Attorney at Law

P.O. Bos 277

Rapid City, South Dakota 57709

M;. Dennis Hill

Attorney at Law

P.O. Box 290

Rapid City, South Dakota 57709

Re: Thomas Shortbull vs. Stanley Looking Elk, Elijah

Whirlwind Horse, James Mousseau, Ivan Bettelyoun,

Marvin Amiotte, Gerald ‘‘Jump’’ Big Crow, Lyman

Red Cloud, Delores Whitehead, Edgar High

Whiteman, Gilbert Matthews, Dave Brewer, and

Jerry Matthews - CIV80-5035

Gentlemen: MEMORANDUM OPINION

This suit is brought under 42 U.S.C. § 1985 (3)'. Itis

presently before this Court on a motion for summary

judgment made by the Defendants.

‘If two or more persons in any State or Territory conspire or go in

disguise on the highway or on the premises of another for the purpose

2b

The case arises out of a dispute concerning the

primary and general elections for the office of Tribal

President of the Oglala Sioux Tribe. Plaintiff charges that

a conspiracy on the part of the Defendants in violation of

42 U.S.C. § 1985 (3) led to his name not being placed on

the ballot for the primary election. To fully understand

Plaintiff’s allegations it is necessary to trace the facts

leading upto the tribal elections.

On January 9, 1980, Plaintiff Thomas Shortbull filed

his nominating petitions for the office of Tribal President.

Even though Plaintiff’s petitions apparently contained a

sufficient number of names to meet the tribe’s re-

quirements for a presidential candidate, the tribal election

board failed to take any action in regard to Plaintiff;s

nominating petitions after receipt of them. The reason for

Footnote | continued —

of depriving, either directly or indirectly, any person or class of per-

sons of the equal protection of the laws, or of equal privileges and im-

munities under the laws; or for the purpose of preventing or hindering

the constituted authorities of any State or Territory from giving or

securing to all persons within such State or Territory the equal protec-

tion of the laws; or if two or more persons conspire to prevent by

force, intimidation, or threat, any citizen who is lawfully entitled to

vote, from giving his support or advocacy in a legal manner, toward

or in favor of the election of any lawfully qualified person as an elec-

tor for President or Vice President, or as a Member of Congress of the

United States; or to injure any citizen in person or property on ac-

count of such support or advocacy; in any case of conspiracy set forth

in this section, if one or more persons engaged therein do, or cause to

be done, any act in furtherance of the object of such conspiracy,

whereby another is injured in his person or property, or deprived of

having and exercising any right or privilege of a citizen of the United

States, the party so injured or deprived may have an action for the

recovery of damages, occasioned by such injury or deprivation,

against any one or more of the conspirators.

3b

the board’s refusal to certify Plaintiff as a candidate was

that he is not an enrolled member of the Oglala Sioux

Tribe’. After several tribal meetings and pleas by Plain-

tiff that he be certified as a candidate, on January 24,

1980, the Tribal Council adopted a resolution directing the

tribal election board to certify Plaintiff as a candidate for

the upcoming tribal election. However, on January 29,

1980, a resolution was adopted by the Tribal Council

which provided for the ‘‘Tribal Council body to uphold

the Constitution and By-laws and Election Ordinance, and

also uphold any decision of the Election Board.’’

On January 30, 1980, H. Clyde Red Shirt, chief judge

of the Tribal Court, ordered the Election Board to certify

Plaintiff as a candidate and place his name on the

February 5 primary election ballot. On February 1, 1980,

Red Shirt held several tribal officials in contempt for

failure to implement his order regarding the placement of

Plaintiff’s name on the ballot. He ordered these officials

arrested. On this same day, the Tribal Council removed

Judge Red Shirt from office and Judge Delores Whitehead

quashed his previous orders. Furthermore, the Oglala

Sioux Tribal Appeals Court stayed execution of Red

Shirt’s orders of February 1, 1980. Also on February 1,

1980, the election board notified Plaintiff that he was not

eligible to run for tribal president because he was listed on

tribal records as an N.E.

On February 4, 1980, Red Shirt ruled that he was still

Chief Judge and had arrest warrents reissued for those

persons he had held in contempt of court. He also ordered

postponement of the February 5 primary election. On this

*Plaintiff is registered in the tribal records as a non-enrolled

member. Such a person is commonly referred to as an N.E.

4b

same day, Judge Whitehead quashed Red Shirt’s contempt

citations of February 1 be purged. The primary election

was held on February 5 as scheduled without Plaintiff's

name on the ballot.

Plaintiff subsequently filed a suit in this Court on

February 11, 1980. That suit, which named various tribal

officials as defendants, was brought under 42 U.S.C. §

1985 (3) and 42 U.S.C. § 1983. In it, Plaintiff asked for

damages and for this Court to declare the acts of the

Defendants unlawful and to enjoin Defendants from tak-

ing such action in the future. Plaintiff subsequently filed a

motion for a temporary restraining order attempting to

enjoin the tribal general election which was scheduled for

March 11, 1980.

On March 7, 1980, the Honorable Donald J. Porter

denied Plaintiff's motion for a temporary restraining

order and dismissed Plaintiff's complaint’. Judge

Porter’s dismissal of the complaint in the earlier case was

primarily based on two factors. First, Plaintiff had failed

to allege that the Defendant’s alleged illegal acts were car-

ried out in order to further their own cause. See Indian

Political Action Committee v. Tribal Executive Commit-

tee, 416 F. Supp. 655 (D. Minn. 1976). Secondly, the com-

plaint was dismissed because Plaintiff had failed to show

he had exhausted his tribal remedies.

Plaintiff filed the complaint in the instant action on

March 17, 1980. This action names as defendants Judge

Whitehead, the tribal president, the members of the tribal

‘Although the earlier case was filed with this Court, due to

scheduling difficulties, the matter was transferred to the Central Divi-

sion of the District of South Dakota.

Sb

election board, the members of the tribal executive com-

mittee, two tribal appellate judges and two tribal at-

torneys. Plaintiff claims that these Defendants conspired

to deprive him of his right to vote and run for office in

violation of § 1985 (3).

There are numerous similarities between this suit and

Plaintiff’s prior suit, however, Plaintiff made sufficient

changes in his complaint so as to lead this Court to deny

an earlier motion to dismiss filed by the Defendants. After

presenting the Court with Plaintiff's deposition and ac-

companying exhibits, Defendants have renewed their mo-

tion to dismiss and have asked this Court io consider it a

motion for summary judgment pursuant to Rule 12 (b) of

the Federal Rules of Civil Procedure.

After reviewing the pleadings, the memoranda of law

filed by the parties, and Plaintiff’s deposition and the ac-

companying exhibits, it appears to this Court that there

exists no material issues of fact in regard to the question of

Plaintiff’s right to recover under § 1985 (3). Accordingly,

summary judgment will be entered in favor of the Defen-

dants.

In order to state a claim under § 1985 (3) it must be

alleged that (1) the Defendants conspired, (2) for the pur-

pose of depriving any person or class of persons of equal

protection of the laws, or of equal privileges and im-

munities under the laws, that (3) one or more of the con-

spirators did or caused to be done any act in furtherance

of the conspiracy, and (4) as a result, another was injured

in his person or property or deprived of having and exer-

cising any right or privilege of a citizen. Griffin v.

Breckenridge, 403 U.S. 88, 102-03 (1971).

6b

Looking at the facts presented to this Court in a light

most favorable to Plaintiff, it would seem that Plaintiff

has at least raised a factual issue as to whether the acts of

the Defendants fell within elements 1, 3 and 4 of the Grif-

fin test. However, in regard to element 2 of the Griffin

test, there is no conceivable set of facts which could sup- sup-

port a support a recovery for the Plaintiff.

Plaintiff’s complaint alleges the following:

Defendants’ actions were motivated by an

invidious discriminatory animus toward

plaintiff, because of his membership in the

class of people classified as ‘‘N.E.’’ on the

official B.I.A. Census rolls and his political

opposition to said defendants.”’

The second portion of this allegation would seem to be

directed toward Plaintiff’s individual political beliefs.

There is no allegation that he is a member of a political

group opposed to defendants who are being discriminated

against; such existed in Means v. Wilson, 522 F. 2d 833

(8th Cir. 1975). Clearly, the discrimination covered by §

1935 (3) must be class-based‘ and this allegation does not

appear to be so. Therefore, as far as discriminatory

animus against Plaintiff because of his political beliefs is

concerned, no claim under § 1985 (3) is stated.

*“**As we read Griffin's language, the requirement means that

motivating the conspiracy there must be a discriminatory animus

toward a class, not toward an individual qua individual.’’ Carchman

v. Korman Corp., 456 F. Supp. 730, 734 (E.D. Pa. 1978), aff'd 594 F.

2d 354 (3rd Cir. 1979), cert. denied 444 U.S. 898 (1979). See also

Lessman v. McCormick, 591 F. 2d 605, (10th Cir. 1979); McNally v.

Pulitzer Publishing Co., 532 F. 2d 69 (8th Cir. 1976); McLellan v.

issi i Power & Light Co., 526 F. 2d 870 (Sth Cir. 1976); Poirer

v. Hodges, 445 F. Supp. 838 (M.D. Fla. 1978).

7b

The class which Plaintiff alleges is being

discriminated against is the so called N.E.s, non-enrolled

tribal members. He claims he is being illegally denied the

right to vote and run for office because he is a member of

this class. The definition of a class under Griffin is not at

all clear. The various courts which have considered the

question have reached numerous anc conflicting results.

See Note, The Scope of Section 1985 (3) since Griffin v,

Breckenridge, 45 George Washington L. Rev., 39 (1977).

There is no question that racially based discrimination is

included within § 1985 (3). The problem arises when at-

tempting to define ‘‘otherwise class-based, invidiously

discriminatory animus.’’ Griffin, supra, at 102.

In regard to the class question, Plaintiff primarily

relies upon Means, supra, which held that supporters of a

candidate for tribal president constituted a class for the

purposes of § 1985 (3). In this case we have an entirely dif-

ferent situation.

The N.E. class is composed of Indian people who for

various reasons are not enrolled as tribal members’. It ap-

pears that generally, over the years, the tribe has not

allowed N.E.s to vote or run for office. This is the reason

Plaintiff was not certified as a candidate for tribal presi-

dent. Plaintiff claims that this violates § 1985 (3).

Plaintiff argues that this Court should let this case go

to trial so it can be determined if the tribe can legally ex-

‘Apparently the reason for Plaintiff being classified as an N.E. is

the tribe’s belief that Plaintiff's parents were living off the reservation

at the time of his birth. Plaintiff argues that he should not be

classified as an N.E., but that is not an issue in this lawsuit.

8b

clude N.E.s from participation in tribal elections. The

right of an Indian tribe to determine its membership was

addressed in the case of Santa Clara Pueblo v. Martinez,

436 U.S. 49 (1978). That case involved an attack upon a

tribal ordinance which denied membership to childrn of

female members who married outside the tribe while ex-

tending membership to children of male members who

married outside the tribe. In determining not to interfere

with the tribe’s right to establish its own rules for member-

ship, the Supreme Court quoted favorably from the

District Court’s opinion:

To abrogate tribal decisions, particularly in the

delicate area of membership, for whatever

‘good’ reasons, is to destroy cultural identity

under the guise of saving it*.

What we have in this case is a similar situation. Plain-

tiff wants this Court to interfere with a tribal decision to

not permit non-enrolled tribal members to vote or run for

office. The Martinez case clearly estalishes the tribe’s

right to decide who will be its members. Certainly,

therefore, the tribe has the right to decide that it does not

want non-enrolled members to vote in its elections or run

for its offices. There is no question the reason Plaintiff

was not certified as a candidate was because of his status

as an N.E. However, in light of Martinez, it appears to

*In addition to determining its own membership, it appears that

Martinez would stand for the proposition that Indian tribes be given

great latitude in regard to the question of eligibility to vote and run for

office. Therefore, it would appear that the Martinez decision raises

serious doubts as to the continued viability of the Eighth Circuit’s un-

fortunate decision in Luxon v. Rosebud Sioux Tribe of South Dakota,

455 F. 2d 698 (8th Cir. 1972).

9b

this Court that the actions of the tribe were not motivated

by an invidiously discriminatory animus against Plaintiff

because of his status as an N.E.

The requirement that the discrimination be

**class-based’”’ is not satisfied by an allegation

that there was a conspiracy which affected the in-

terests of a class of persons similarly situated

with the plaintiffs. Rather, the complaint must

allege facts showing that the defendants con-

spired against the plaintiffs because of their

membership in a class and that the criteria defin-

ing the class were invidious. Harrison v. Brooks,

519 F. 2d 1358 (ist Cir. 1975).

It appears to this Court that there are no facts which

could be presented to prove that the criteria defining the

N.E. class were invidious or that Plaintiff was unlawfully

discriminated against because of his membership in that

class. Based on the foregoing, this Court concludes that

Plaintiff cannot recover under § 1985 (3) and therefore,

Defendants’ motion for summary judgment will be

granted.

There also appears to be a serious doubt as to whether

Plaintiff has exhausted his tribal remedies. However, due

to the foregoing, the issue of exhaustion need not be ad-

dressed in this opinion.

BY THE COURT

ANDREW W. BOGUR, CHIEF JUDGE

UNITED STATES, DISTRICT COURT

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