Opposition Brief — Tonasket v. Thompson

etre

Page

Opinions Below 1

n,n eT Ee 2

Question Presented ..............-. 2

Constitutional Provisions, Statutes, and

Regulations Involved 2

Statement of the Case ...... 2

1. The Thompson Case ........... 2

©, Them Cee CO cs ecescescrcerestencesernsinssncnssnnnssesonsosidons 5

Reasons Writs Should Be Denied ..................-s-s000+-0es-0+ 6

1. Under Rule 19 of the Rules of the United States

Supreme Court, There is No Good Reason Now to

Grant a Writ of Certiorari on This Issue, Since All

Final Lower Court Cases to Date Have Been

Unanimous in Accepting Jurisdiction, and There

is No Pressing Need to Settle the Question............ 6

. If Federal Courts Are Deemed to Lack Jurisdic-

tion, Then Eatorcement of the Statute Will be

Left in the Hands of Those Whom It Was Passed

Oi ID aiiccnsscssutrstnnnssbatdnnninttincsaisieainadlebasigeiinninens 8

. The Doctrine of Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968), Holds That 28 U.S.C. § 1343

(4), Gives Jurisdiction to a Federal Court to Hear

Civil Rights Cases Even Where the Statute Pro-

viding the Civil Right Does Not Explicitly Grant

Jurisdiction to Federal Courts 10

. Congress Specifically Did Mean to Curtail the

Sovereign Immunity of Indian Tribal Authorities

When That Sovereign Immunity Clashed with |

Certain Fundamental Human Rights...................... 12

. The Explicit Grant of Habeas Corpus Jurisdiction

in 25 U.S.C. § 1303 Was Not Meant to, by Impli-

cation, Deny Jurisdiction in Non-Criminal Cases

but Rather Was Only Meant to Remedy a Defect

in the General Habeas Corpus Statute, 28 U.S.C.

§§ 2241(c)(1)-(5) . 13

Page

Conclusion .......... 13

Appendices:

Appendix A. ccccsccsssee A-l

Appendix B .......... i i

Appendix C ..... ao = . A-15

TABLES OF AUTHORITY

Table of Cases

Afroyim v. Rusk, 387 U.S. 253, 87 S. Ct. 1660,

18 L. Ed. 2d 757 1967) 3, 4

Dodge v. Nakai, 298 F. Supp. 17 (D. Ariz. 1968) ......... 10

Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971) .. 7

J. L. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct.

555, 12 L. Ed. 2d 423 (1964) ul

Johnson v. Lower Elwha Tribal Community of

Lower Elwha Indian Reservation, Washington,

484 F.2d 200 (9th Cir. 1973) . 7,9, 15

Jones v. Alfred H. Mayer Co., 392 U.S. 409,

88 S. Ct. 379, 19 L. Ed. 2d 407 (1968) ................ 10, 11

Loncaisson v. Leekity, 334 F. Supp.

370 (D. N.M. 1971) 5

Luxon v. Rosebud Sioux Tribe of South Dakota,

455 F.2d 698 (8th Cir. 1972) a 7, 89

McCurdy v. Steele,

353 F. Supp. 629 (D. Utah 1973) ............ 7, 8, 10, 12, 13

Perez v. Brownell, 356 U.S. 44, 78 S. Ct. 568,

2 L. Ed. 2d 603 (1958) 3

Seneca Constitutional Rights Organization v. George,

348 F. Supp. 48 (W.D. N.Y. 1972)

Slattery v. Arapahoe Tribal Council,

453 F.2d 278 (10th Cir. 1971) . 7

Solomon v. La Rose, 335 F. Supp. 715 (D. Neb. 1971) 13

iii

Page

White Eagle v. One Feather,

478 F.2d 1311 (8th Cir. 1973) sf

Wyandotte Transportation Co. v. United States,

389 U.S. 191, 88 S. Ct. 2186, 20 L. Ed. 1189 (1967).. 11

Constitutional Provisions

Article VII of the Constitution and By-Laws of the

Confederated Tribes of the Colville Indian Reserva-

tion, Washington . 2

Statutes

8 U.S.C. § 1481(a) (5) 3,4

25 U.S.C. §§ 1301-03 (Indian Bill of Rights) ................ 2

25 U.S.C. § 1302 .... 5, €, 8

25 U.S.C. § 1302(8) 4,6

25 U.S.C. § 1303 13

28 U.S.C. § 2154(1) ... 2

28 U.S.C. § 1343(4) .... 2, 4, 5, 7, 10, 11

28 U.S.C. § 2241(c) (1)-5) 13

42 U.S.C. § 1982 . ll

Textbooks

82 Harv. L. Rev. 1343 (1968) ...2.--..0.---cccececeeeeeee 9-10, 12

Other Authority

U.S. Supreme Court Rule 19 ........--.-cseseeseeeneseeeneesnereneees 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-1281

MEL TONASKET, et al.,

Petitioners,

Vv.

Auice M. THOMPSON,

Respondent.

NanrcIssE NICHOLSON, JR., et al.,

Petitioners,

v.

June Karen LARAMIE, et al.,

BRIEF IN OPPOSITION TO PETITION FOR

WRITS OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

OPINIONS BELOW

The opinions of the Ninth Circuit Court of Appeals are

reported as Thompson v. Tonasket, 487 F.2d 316 (9th Cir.

1973), and Laramie v. Nicholson, 487 F.2d 315 (9th Cir.

1973).

2

JURISDICTION

The jurisdiction of the United States Supreme Court was

invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

The sole question presented by the Petitioner is, whether

federal courts have jurisdiction to decide cases arising

under the Indian Civil Rights Act of 1968, 25 U.S.C. §§

1301-03; where it is alleged that a plaintiff has been denied

equal protection of Tribal Law or has been deprived of

property without due process of its law?

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

The Indian Civil Rights Act of 1968, 25 U.S.C. §§

1301-03.

28 U.S.C. § 1343(4).

Rule 19 of the Rules of the United States Supreme Court.

Article VII oi the Constitution and By-Laws of the Con-

1-4erated Tribes of the Colville Indian Reservation, Wash-

ington.

Resolution 1967-186 of the Colville Business Council.

Resolution 1969-349 of the Colville Business Council.

STATEMENT OF THE CASE

1. The Thompson Case

Mrs. Thompson, plaintiff in the district court, was born

August 25, 1911, in Okanogan County, Washington, as an

American citizen. She has always retained her rights as ar:

American citizen, and she is married to an American citi-

3

zen. She is 5 degree Colville Indian blood. Plaintiff has

consistently kept up her contact with the Colville Confed-

erated Tribes, and is not a member of any other Indian

tribe. Her great uncle was Chief Nespelem George, chief

of the Colville Tribe and San Poil Tribes, and Chief Jim

James, who was the chief of the Colville Tribes, was also

known to her as her uncle. (Tr. 3, 51, 52)

Mrs. Thompson was enrolled in the Colville Indian Tribe

on November 2, 1911, and given an allotment on the Col-

ville Reservation. She remained enrolled on the Colville

rolls from the time she was placed thereon up to 1952,

when her name was improperly stricken from the rolls by

the governing body of the Colville Confederated Tribes.

(Tr. 2, 52) In 1952, the Tribe ceased to pay her the annual

per capita payments due her, and in 1958, she received

her Patent in Fee to her allotment. (Tr. 2)

At one time, when she was residing in Canada, she

voted in a Provincial election for a candidate. She was not

registered as a Canadian citizen to vote, and she did not at

any time register to vote in this election. (Tr. 50) Her

name was stricken from the Colville rolls because she had

voted in a foreign election, and by so doing, had lost her

American citizenship. It was the contention that her cit-

izenship was lost under 8 U.S.C. § 1481(2)(5) and under

the ruling of Perez v. Brownell, 356 U.S. 44 (1958), hold-

ing that the last quoted section of the law was constitu:

tional. This section of the law was declared unconstitu-

tional, in the case of Afroyim v. Rusk, 387 U.S. 253 (1967),

and the Brownell case was overruled. She thereafter peti-

tioned the Colville Business Council to be reenrolled as a

member of the Colville Tribe. Mrs. Thompson contended

that the Enrollment Committee, in disenrolling her, did not

4

have the authority to determine that she, as a tribal mem-

ber, would lose her nationality by voting in a foreign elec-

tion. She further contended they did not have the authority

to declare that she had lost her citizenship, and thereby

lost her right to remain a member of the Colville Tribe,

because she had voted in a foreign election.

Her petition was based upon the Afroyim case in 1967,

declaring 8 U.S.C. § 1481(a)(5) unconstitutional. (Tr. 3, 4)

Mrs. Thompson made repeated requests for reenrollment.

but the Colville Enrollment Committee and Business Coun-

cil refused to reenroll her or take any action on her request.

She met all of the requirements for membership in the Col-

ville Confederated Tribes at all times.

The complaint alleged, among other things, that the

action of the governing body of the tribe was arbitrary,

capricious, and discriminatory and that Mrs. Thompson

had been denied equal protection of its law and deprived

of her property without due process of law under the

Indian Bill of Rights, 25 U.S.C. § 1302(8).

Mrs. Thompson prayed in her complaint to be reinstated

and reenrolled as a member of the Tribe, and that her

name be placed retroactively upon the rolls, effective as of

the date of her disenrollment in 1952. Mrs. Thompson

asked that she receive the back per capita payments that

had been improperly withheld from her, plus interest

thereon and a reasonable attorney’s fee. (Tr. 6, 7)

Defendants attacked the jurisdiction of the court, and

argument was held on the matter. The court entered an

order dismissing Mrs. Thompson's complaint for lack of

subject matter jurisdiction. (Tr. 54, 55)

—_

5

On December 17, 1971, Mrs. Thompson filed a Notice

of Appeal to the Ninth Circuit Court of Appeals and on

November 2, 1973, the Ninth Circuit Court of Appeals

entered judgment reversing the dismissal and remanding

the case to the district court for further proceedings.

The merits of Mrs. Thompson’s claim are not before this

court. Rather, the issue is whether, under the Indian Bill

of Rights, 25 U.S.C. § 1302, and 28 U.S.C. 1343(4), the

district court has jurisdiction to hear her claim.

2. The Laramie Case

The Laramie children, plaintiffs in the district court,

were all minors when this action began. Patricia Mae

Laramie was born May 23, 1956; Constance Susan Lara-

mie was born January 7, 1958; and June Karen Laramie

was born September 11, 1954. They are all United Scates

citizens and are also half-blooded Cclville incieas. On

January 22, 1968, a written application wes made on their

behalf to the Colville Business Council for their enrollment

in the Colville Confederated Tribe as members. Their

mother, Evelyn A. Laramie, is a member of the tribe. Mrs.

Laramie was advised that before the minors could be en-

rolled, they had to meet certain requirements. These re-

quirements were: (1) That they be citizens of the United

States; (2) That they have one-quarter Indian blood; (3)

That they not be members of any other tribe; (4) That

they had not been members of any other tribe.

The minors met the first three requirements. There are

a number of disputes on the merits as to: whether factually,

they met the fourth requirement; whether the fourth re-

quirement actually existed at the time of their application;

whether, by reason of an arrangement with the Bureau of

6

Indian Affairs, a decision by the Commissioner of Indian

Affairs would be final and binding on both parties (the

dispute was submitted to the Commissioner, who did rule

for the children; his decision was, however, ignored by the

Enrollment Committee and Business Council ); and finally,

whether, the fourth requirement has been applied in a

discriminatory fashion to these children, in that in the case

of other individuals similarly situated, the fourth require-

ment was not invoked to deny them membership in the

tribe. This last claim is based on, among other things, the

equal protection and due process clauses of the Indian

Bill of Rights, 25 U.S.C. § 1302(8).

None of these questions is before this Court. The issue

rather, whether the district court, under the Indian Bill

of Rights, 25 U.S.C. § 1302, and 28 U.S.C. § 1343(4), has

jurisdiction to hear these claims.

The Laramie children brought this action on July 22,

1970. On January 18, 1972, the district court dismissed the

complaint for lack of subiet matter jurisdiction. On Janu-

ary 24, 1972, the chilesen filed a Notice of Appeal to the

Ninth Circuit Court cf Appeals and on October 9, 1973,

the Ninth Circuit Court of Apyeals entered judgment re-

versing the dismissal and remanding the case to the district

court for further proceedings.

REASONS WRITS SHOULD BE DENIED

1. Under Rule 19 of the Rules of the United States

Supreme Court, There Is No Good Reason Now to

Grant a Writ of Certiorari on This Issue, Since All

Final Lower Court Cases to Date Have Been Unan-

imous in Accepting Jurisdiction, and There Is No

Pressing Need to Settle the Question

ge

7

Every Circuit Court of Appeals that has faced the in-

stant question has found in favor of jurisdiction and

against tribal sovereign immunity. No unreversed district

court decision has been reported to the contrary. See

Groundhog v. Keeler, 442. F.2d 674 (10th Cir. 1971); Slat-

tery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir.

1971) [The Tenth Circuit cannot be said to have held that

federal courts have jurisdiction over Indian Bill of Rights

claims, but, while specifically avoiding the issue in Slattery,

the court indicated by its language; its citation of a Har-

vard note cited below; and the general tone of its opinion

that it felt that there probably was jurisdiction. 453 F.2d

at 281. Further, a district court in the Tenth Circuit has

held that federal courts have jurisdiction, under 28 U.S.C.

§ 1343(4), to enforce the provisions of the Indian Bill of

Rights. McCurdy v. Steele, 353 F. Supp. 629 (D. Utah

1973).]; Luxon v. Rosebud Sioux Tribe of South Dakota,

455 F.2d 698 (8th Cir. 1972); White Eagle v. One Feather,

478 F.2d 1311 (8th Cir. 1973); Johnson v. Lower Elwha

Tribal — of Lower Elwha Indian Reservation,

484 F.2d 200 (Sih Cir. 1973); and Seneca Constitutional

Rights Organization v. George, 348 F. Supp. 48 (W.D.

N.Y. 1972).

Under Rule 19 of the Rules of the United States Su-

preme Court, the only possible consideration for granting

certiorari in this case is that,

a court of appeals . . . has decided an important ques-

tion of federal law which has not been, but should be,

settled by this Court.

The operative words are “should be.” Presumably the cri-

terion of that “should be” is that the law is unclear and

should be clarified speedily, without waiting for a split in

-— AD OR OPI EE DOOD wit! Tn nga

8

the circuit courts of appeal. But here, the law is clear. At

least four different courts—three courts of appeal and one

district court—have rendered final decisions on the issue,

and these decisions have been unanimous. There is no

need at this time for a Supreme Court decision on the issue.

2. If Federal Courts Are Deemed to Lack Jurisdiction,

Then Enforcement of the Statute Will be Left in the

Hands of Those Whom It Was Passed to Restrain

The Indian Bill of Rights provides:

No Indian tribe in exercising powers of self-govern-

ment shall— ies

(8) deny to any person within its jurisdiction the

protection of the laws or deprive any person of

liberty or property without due process of law.

25 U.S.C. § 1302.

The act was passed to prevent Indian tribes from depriv-

ing Indians of certain fundamental rights. It would not

have been passed if Congress felt that Indian tribes were

i not violating these rights.

Petitioners’ argument is that Congress meant to give

virtually exclusive jurisdiction to those Indian tribal courts

and councils which were, in fact, the object of the legisla-

tion. Neglected, is the basis of the statute which was to

prevent such courts and councils from violating certain

basic rights. Petitioners’ interpretation of the statute would

make the rights it guarantees mere paper rights, depend-

ent on the good faith and respect for law of those very

authorities Congress has found too often lacking in that

respect. See Loncassion v. Leekity, 334 F. Supp. 370, 373

(D. N.M. 1971); McCurdy v. Steele, 353 F. Supp. 629, 635

(D. Utah 1973); Luxon v. Rosebud Sioux Tribe of South

;

4

4

4

‘

.

Pirtere esicaresennamt se adest nec rtonareant Be WE SSN

9

Dakota, 455 F.2d 698, 700 (8th Cir. 1972); Johnson v.

Lower Elwha Tribal Community of the Lower Elwha

Indian Reservation, 484 F.2d 200, 203 (9th Cir. 1973).

Federal courts must have jurisdiction here, if the will of

Congress in restraining the excesses of tribal cour’s and

councils is to be respected and given effect.

An influential commentary on the Indian Bill of Rights

notes:

The Indian Bill of Rights contains the following pro-

vision: “The privilege of the writ of habeas corpus

shall be available to any person, in a court of the

United States, to test the legality of his detention by

order of an Indian tribe.” No other remedy for en-

forcing the rights guaranteed by the s‘atute is men-

tioned. The —- arises whether this is the only

remedy to enforce the statutory restrictions on tribal

governments.

rights were effectively anteed to criminal defend-

ants. The committee did not want to abolish tribal

courts; ar appeal would be ineffectual because

there woul pep Se eS ee

pro to wi is problem, 5. guaran-

PO ight to appeal to the federal district courts

for a de novo trial with the right to a jury. This was

— into the habeas corpus guarantee, which ac-

complished a game protection of pro-

cedural rights. Also Senate committee, in its re-

port listing habeas corpus araidst the other guarantees,

seems to ve regarded habeas corpus not simply as

geen: Boh nag te Seliger fy ao

provision for not

ps i ices atiker puanoilies wae nenied Sik

av:

If no remedy other than habeas corpus were avail-

able, a large portion of the rights guaranteed by the

10

statute—all those which might be infringed without

“detention by order of an Indian tribe’—would be

unprotected and therefore ineffectual. For instance,

exclusion of members from the reservation or revoca-

tion of tribal membership rights, discriminatory allo-

cation of communal resources, prevention of religious

practices on the reservation and the taking of private

— = blic use withoui just compensation

would infrin ents of rights declared by the

statute that w receive little or no protection from

the habeas provision. Lack of other remedies

would clearly defeat congressional purpose. The fed-

eral courts, in situations similar to this, have implied

the appropriate remedies in order to effectuate the

purposes of Congress.

Note, “The Indian Bill of Rights and the Constitutional

Status of Tribal Governments,” 82 Harv. L. Rev. 1343,

1-72 (1968) (footnotes omitted). The note concludes

jurisdiction to enforce the statute can be found in

U.S.C. § 1343(4), which provides jurisdiction for “re-

lief, under any Act of Congress providing for the protec-

tion of civil rights.” All courts which have rendered final

decisions on the issue of jurisdiction have similarly held.

3. The Doctrine of Jones v. Alfred H. Mayer Co., 392

U.S. 409 (1968), Holds That 28 U.S.C. § 1343(4),

Gives Jurisdiction to a Federal Court to Hear Civil

Rights Cases Even Where the Statute Providing the

Civil Right Does Not Explicitly Grant Jurisdiction to

Federal Courts

This issue is ruled by Jones v. Alfred H. Mayer Co., 392

U.S. 409 (1968). See Dodge v. Nakai, 298 F. Supp. 17, 25

(D. Ariz. 1968); McCurdy v. Steele, 353 F. Supp. 629,

635-36 (D. Utah 1973), which have so held. In Jones, a

Negro who had been deprived of the right to buy private

or

11

property, by the act of a private individual, was given the

right to enforce the provisions of 42 U.S.C. § 1982.

The court noted, in footnoie i of the opinion, that

jurisdiction was based upon 28 U.S.C. § 1343(4). The

court further stated:

The fact that 42 U.S.C. § 1982 is couched in dec-

laratory terms and provides no explicit method of

enforcement does not, of course, prevent a f

court from fashioning an effective equitable remedy.

392 U.S. 409, n. 13.

Jones is quite similar to the instant case. Jurisdiction to

enforce § 1982 was not explicitly given to federal courts,

and so it had to be based on § 1343(4). Jurisdiction could

have been limited to state courts, but § 1982, like the other

Reconstruction civil rights acts, was aimed at correcting

and curbing abuses of and by state institutions. To leave

sole jurisdiction to administer § 1982 in the hands of the

state courts would have been to gut the act. Similarly, to

leave the administration of the Indian Bill of Rights solely

in the hands of Indian councils and courts is to gut the act.

Other cases implying remedies in similar situations are

Wyandotte Transportation Co. v. United States, 389 U.S.

191 (1967) (violation of section 15 of the Rivers and Har-

bors Act of 1899); and J. I. Case Co. v. Borak, 377 U.S.

426 (1964) (violation of section 14(a) of the Securities

Exchange Act of 1934).

The Indian Bill of Rights is a “civil rights” statute. No

explicit jurisdictional provision is established. On the au-

thority of Jones, however, federal courts would have juris-

diction under § 1343(4).

12

4. Congress Specifically Did Mean to Curtail the Sov-

ereign Immunity of Indian Tribal Authorities When

That Sovereign Immunity Clashed With Certain Fun-

damental Human Rights

The sovereign immunity of Indian tribes is curtailed

by the statute. It was meant to be curtailed by the statute.

Congress felt that the loss of certain very fundamental

rights was too high a price for the individual Indian to

pay for his tribe’s sovereign immunity.

Puzzlement may be given as to what rights are lost by

allowing federal jurisdiction. What “rights” are taken away

by this statute? To what extent is Indian self-realization

and cultural autonomy undermined? The only “right”

lost is a right to deny individual Indians equal protection,

or due process of law, or a jury in certaia cases, or a limi-

ted right of free speech, among other rights. The statute

merely guarantees certain fundamental civil liberties. It

is hardly a gross abridgment of Indiaw :ights to self-

realization, but is instead a guarantee that the Indian

shall share, not in fundamental Anglo-American liberties,

but in what Congress has deemed to be rights funda-

mental to any civilization to be humane and just. The

statute,

appeazs to have been tailored by Congress to the

purpose of enhancing the civil liberties of individual

Indians without unduly undermining Indian self-gov-

ernment and cultural autonomy.

McCurdy v. Steele, supra, 353 F. Supp. at 632. See also

Note, “The Indian Bill of Rights and the Constitutional

Status of Tribal Governments,” 82 Harv. L. Rev. 1343,

1359-60 (1968).

epee eet me nn ee ee

13

Finally, the language of the statute itself indicates a

specific Congressional intent to limit the remaining sov-

ereignty of Indian governments: “No Indian tribe in exer-

cising powers of self-government shall . . . ” abridge the

listed rights. No more definite language could be de-

manded. See Johnson v. Lower Elwha Tribal Community

of the Lower Elwha Indian Reservation, 484 F.2d 200,

202 (9th Cir. 1973).

5. The Explicit Grant of Habeas Corpus Jurisdiction in

25 U.S.C. § 1303 Was Not Meant to, by Implica‘ion,

Deny Jurisdiction in Non-criminal Cases but Rather

Was Meant Only to Remedy a Defect in the General

Hebeas Corpus Staiute, 28 U.S.C. §§ 2241 (e) (1)-(5)

The reason for the explicit grant of habeas corpus juris-

diction was not to deny jurisdiction over the non-criminal

rights given by the statute, but rather to overcome the

explicit wording of the habeas corpus statute, 28 U.S.C.

§§ 2241(c)(1)-(5), which clearly denied jurisdiction over

tribal councils and courts. See Solomon v. La Rose, 335

F. Supp. 715, 721 (D. Neb. 1971); McCurdy o. Steele,

353 F. Supp. at 635.

CONCLUSION

For the reasons stated above, respondents respectfully

request that Writs of Certiorari not issue, and that the

judgments of the United States Court of Appeals for the

Ninth Circuit in Thompson v. Tonasket, 487 F.2d 316 (9th

Cir. 1973), Laramie v. Nicholson, 487 F.2d 315 (9th Cir.

1973), be left undisturbed, or be summarily affirmed.

Respectfully submitted,

Keiiy Hancocx, P.S.

Attorney for Respondents

March 28, 1974

(Presse eer eres Perry Ere ERR PE ote ERE rm 8 RSI RET TE ONT TNT

A-l

APPENDIX A

OPINIONS BELOW

THOMPSON v. TONASKET

ALICE M. THOMPSON,

Plaintiff-Appellant,

Vi

MEL TONASKE7 et al., as members of the Colville Business

Council of The Colville Confederated Tribe,

and The Colville Confederated Tribe,

Defendants-Appellees.

No. 72-1193

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

November 2, 1973

PER CurRIAM:

This case presents the same jurisdictional question as

was presented in the case of Laramie V. Nicholson, 9 Cir.,

1973, 487 F.2d 315. As in that case, the trial judge held

that he had no jurisdiction and dismissed the action. The

judgment is reversed on the authority of Laramie v. Nich-

olson, supra, and of Johnson v. The Lower Elwha Tribal

Community, 9 Cir., 1973, 484 F.2d 200.

As in the Laramie case, we express no opinion on the

merits of the case because the trial court did not reach that

question. The judgment is reversed and the case is re-

manded for further proceedings.

eer FOES IE ME SOF Coy

A-2

LARAMIE v. NICHOLSON

June Karen Laramie et al.,

Plaintiffs-Appellants,

v.

NaRCIssE NICHOLSON, JR., et al.,

Defendants-Appellees.

No. 72-1264

UNITED STATES COURT OF APPEALS,

NINTH CIRCUIT

October 9, 1973

Duniway, Circuit Judge:

The appealing plaintiffs are chiidren whose mother is

a member of the Colville Confederated Tribe of Indians.

They seek to be enrolled as members of the tribe. The

trial judge dismissed their action for want of jurisdiction,

relying on our decision in Fondahn v. Native Village of

Tyonek, 9 Cir. 1971, 450 F.2d 520. We reversed and re-

mand.

Although plaintiffs met all other requirements for en-

rollment in the tribe, they were refused enrollment by the

Business Council of the tribe because they had previously

been enrolled members of another tribe. Council Resolu-

tion 1967-186, Section 4 provided:

“If the applicant is already a duly enrolled mem-

ber of another recognized tribe, this will deem the

applicant automatically ineligible for adoption in the

Colville Confederated Tribes, regardless of whether

the applicant offers to relinquish his or her rights with

the other tribe.

This requirement was amended in 1969, by Resolution

1969-349, adopted after the action by the Council in the

present case, to disqualify also those who had in the past

been members of another tribe.

A-3

Plaintiffs allege that the Colville Business Council agreed

to enroll them if the Commissioner of Indian Affairs of

the Department of the Interior ruled that this was not

prohibited by Resolution 1967-186. They say that the Com-

missioner so ruled, but that the Council still refused to take

further action, even though other individuals having the

same supposed disqualification were enrolled in the tribe.

This is the factual basis for plaintiffs’ claim of a denial of

the equal protection of tribal law.

Plaintiffs claim that violation of the so-cailed Indian Billi

of Rights, 25 U.S.C. §§ 1301-1303, enacted in 1968 (82

Stat. 77), gives rise to a civil action and that 28 U.S.C. §

1343(4) convers jurisdiction on the District Court. We

agree. We have recently so held. Johnson v. Lower Elwha

—— ama ve SAE

Tribal Community, 9 Cir. 1973, 484 F.2d 200 (1973).

In that case, the claim was that the plaintiff had been

deprived of due process of law in violation of 25 U.S.C.

§ 1302(8). In this case, the claim is that the plaintiffs

have been deprived of the same section. We see no differ-

ence in principle that distinguishes our Johnson case from

this case.

Our decision in Fondahn, supra, is not to the contrary.

It is true that the case was decided in 1971, more than

three years after the enactment of the Indian Bill of

Rights on April 11, 1968. But it is also true that the statute

was not brought to our attention, and we did not even pur-

port to decide what its effect upon jurisdiction might be.

Instead, we followed pre 1968 law, adopting and applying

the reasoning of the Tenth Circuit in Martinez v. Southern

Ute Tribe, 10 Cir., 1957, 249 F.2d 915. The Tenth Circuit

has indicated that Martinez may no longer be good law.

rs fre Het IPMN en

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A-4 “

In Slattery v. Arapahoe Tribal Council, 10 Cir., 1971, 453

F.2d 278, 281, the Tenth Circuit, in dictum, and after

citing Martinez, said:

“It may well be that tribal enrollment practices

are now subject to the statutory requirements of equal

protection and due process as provided in 25 U.S.C.

§ 1302(8). See the Indian Bill of Rights and the Con-

stitutional Statute (sic) of Tribal! Government, 82

Harv.L.Rev. 1343 [1372-73] (1969). However, the ex-

istence of such restraint and the extent thereof need

not here be decided.” 453 F.2d at 281.

The case was decided on the ground that noviolation of

the statute was shown. We conclude that Fondahn, supra,

does not control this case.

We do not consider the merits of the plaintiffs’ claim;

that is a matter for the district court in the first instance.

We only hold that the court did have jurisdiction under

28 U.S.C. § 1343(4) and 25 U.S.C. § 1302(8). >

The judgment is reversed and the case is remanded for

further proceedings.

A-5

APPENDIX 8

CONSTITUTIONAL PROVISIONS,

STATUTES AND REGULATIONS INVOLVED

UNITED STATES CONSTITUTIONAL PROVISION:

UNITED STATES CONSTITUTION, ART. 1 § 8, cl. Z

LPIA PRED SP ENA RA TN, I

qr et MTT

The Congress shall have Power . . . to regulate coramerce

with foreign Nations, and among the several Siates, and

with the Indian Tribes;

UNITED STATES STATUTES:

25 U.S.C. §§ 1301-03.

§ 1301. Definitions.

Tee, ae te

SP Teehd HE ee

For purposes of this subchapter, the temm—

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

of Indians subject to the jurisdiction of the United States

and recognized as possessing powers of self-government;

(2) “powers of self-government” means and includes

all governmental powers possessed by an Indian tribe,

executive, legislative, and judicial, and all offices, bodies,

and tribunals by and through which they are executed,

including courts of Indian offenses; and

(3) “Indian court” means any Indian tribal court or

court of Indian offense. (Pub. L. 90-284, title II, § 201,

Apr. 11, 1968, 82 Stat. 77.)

§ 1302. Constitutional rights.

No Indian tribe in exercising powers of self-government

shall—

(1) make or enforce any law prohibiting the free exei-

cise cf religion, or abridging the freedom of speech, or of

BEL RD SRW: bib Soy aa OR a

eee F's

Baisiairciiasin

A-6

the press, or the right of the people peaceably to assemble

and to petition for a redress of grievances;

(2) violate the right of the people to be secure in their

persons, houses, papers, and effects against unreasonable

search and seizures, nor issue warrants, but upon probable

cause, supported by oath or affirmation, and particularly

describing the place to be searched and the person or

thing to be seized;

(3) subject any person for the same offense to be twice

put in jeopardy;

(4) compel any person in any criminal case to be a wit-

ness against himself;

(5) take any privaie property for a public use without

just compensation;

(6) deny to any person in a criminal proceeding the

right to a speedy and public trial, to be informed of the

nature and cause of the accusation, to be confronted with

the witness against hin, to have compulsory process for

obtaining witnesses in his favor, and at his own expense

to have the assistance of counsel for his defense;

(7) require excessive bail, impose excessive fines, in-

flict cruel and unusual punishments, and in no event

impose for conviction of any one offense any penalty or

punishment greater than imprisonment for a term of six

months or a fine of $500, or both;

(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;

(9) pass any bill of attainder or ex post facto law; or

i

A-7

(10) deay to any person accused of an offense punish-

able by imprisonment the right, upon request, to a trial

by jury of not less than six persons.

(Pub. L. 90-284, title 11, § 202, Apr. 11, 1968, 82 Stat. 77.)

§ 1303. Habeas corpus.

The privilege of the writ of habeas corpus shall be avail-

able to any persun, in a court of the United States, to test

the legality of his detention by order of an Indian tribe.

(Pub. L. 90-284, title II, § 203, Apr. 11, 1968, 82 Stat. 78.)

28 U.S.C. § 1343(4).

The district courts shall have original jurisdiction of any

civil action authorized by law to be commenced by any

person:

co cod co]

(4) to recover damages or to secure equitable or other

relief under any Act of Congress providing for the protec-

tion of civil riglits, including the right to vote. As amended

Sept. 3, 1954, c. 1263, § 42, 68 Stat. 1241; Sept. 9, 1957,

Pub. L. 85-315, Part III, § 121, 71 Stat. 637.

RULES OF COURT

Rule 19 of the Rules of the United States Supreme Court.

Considerations governing Review on Certiorari.

1. A review on writ of certiorari is not a matter of right,

but of sound judicial discretion, and will be granted only

where there are special and important reasons therefor.

The following, while neither coatrolling nor fully measur-

ing the court’s discretion, indicate the character of reasons

which will be considered:

(a) Where « state court has decided a federal question

FEELS ME ROL ROE LE ARTA TN NT NBSP TT MRI IR IE OF Pa RIE RANEY TNT?

ibaa aaa dattscs acini rceisr-neerntd Prisca canada

A-8

of substance not theretofore determined by this court, or

has decided it in a way probably not in accord with ap-

plicable decisions of this court.

(b) Where a court of appeals has rendered a decision

in conflict with the decision of another court of appeals

on the same matter; or has decided an important state or

territorial question in a way in conflict with applicable state

or territorial law; or has decided an important question of

federal law which has not been, but should be, settled by

this court; or has decided a federal question in a way in

conflict with applicable decisions of this court; or has so

far departed from the accepted and usual course of judicial

proceedings, or so far sanctioned such a departure by a

lower court, as to call for an exercise of this court’s power

of supervision.

2. The same general considerations outlined above will

control in respect of petitions for writs of certiorari to re-

view judgments of the Court of Claims, of the Court of

Customs and Patent Appeals, or of any other court whose

determinations are by law reviewable on writ of certiorari.

TRIBAL CONSTITUTIONAL PROVISIONS

ARTICLE VII OF THE CONSTITUTION

AND BY-LAWS OF THE COLVILLE

CONFEDERATED TRIBES

ARTICLE V, MEMBERSHIP OF THE CONFEDER-

ATED TRIBES OF THE COLVILLE RESERVATION.

—There shall be added a new provision governing mem-

bership of the Confederated Tribes of the Colville Reser-

vation which shall read as follows:

A-9

Section i.—The membership of the Confederated Tribes

of the Colville Reservation shall consist of the following:

(a) All persons of Indian blood whose names appear as

members of the Confederated Tribes on the official census

of the Indians of the Colville Reservation as of January 1,

1937, provided that, subject to the approval of the Secretary

of the Interior corrections may be made in said roll within

two years from the adoption and approval of this amend-

ment.

(b) All children possessing one-fourth or more Indian

blood, born after January 1, 1937, to any member of the

Confederated Tribes of the Colville Reservation maintain-

ing a permanent residence on the Colville Indian Reser-

vation.

(c) All children possessing one-fourth or more Indian

blood, born after January 1, 1937, to any member of the

Confederated Tribes of the Colville Reservation maintain-

ing residence elsewhere in the continental United States,

provided that the parent or guardian of the child indicate

a willingness to maintain tribal relations and tv participate

in tribal affairs. To indicate such willingness to maintain

tribal affiliation, the parent or guardian shall, within six

months after the birth of the child submit a written appli-

cation to have the child enrolled. The application shall be

accompanied by the child’s birth certificate together with

any other evidence as to the eligibility of the child for

enrollment in the Confederated Tribes of the Colville

Reservation. If the certificate and application are not filed

within the designated time, the child will not be enrolled.

Diiences itera sanctions writer eae Sic ativliline

A-i0

Section 2. The Business Council of the Confederated

Tribes shall have power to prescribe rules and regulations

governing future membership in the tribes, including the

adoption of members and loss of membership, provided:

(a) That such rules and regulations shall be subject to

the approval of the Secretary of the Interior.

(b) Tha no person shall be adopted who possesses less

than one-fourth degree Indian blood.

(c) That any member who takes up permanent resi-

dence or is enrolled with a tribe, band or community of

foreign Indians shall lose his iuembership in the Colville

Tribes.

Alien Indians may be deleted from the rolls after they

have been given an opportunity to be heard in their own

behali. The tribe shall also take appropriate action to cor-

rect the existing tribal roll and, if necessary, delete from

the rolls alien Indians whose names appear on the rolls

of the Confederated Tribes and who have abandoned tribal

relations. The Colville Confederated Tribes shall not de-

prive anyone of vested property rights, such as allotments

or inherited interests. (Adopted by Confederated Tribes

May 20, 1949. Approved by Commissioner of Indian Affairs

April 14, 1950.)

Section 3. After July 1, 1959, no person shall be ad-

mitted to merbership in the Confederated Tribes of the

Colville Reservation unless such person possesses at least

one-fourth (44) degree blood of the tribes which constitute

the Confederated Tribes of the Colville Reservation.

(Adopted by the Colville Confederated Tribes on May 9,

1959. Approved by the Acting Commissioner of Indian

Affairs July 2, 1959.)

A-1l

TRIBAL RESOLUTIONS

RESOLUTION NO. 1967-186

BE IT HEREBY RESOLVED, by the Colville Business

Council, governing body of the Confederated Tribes of the

Colville Reservation, meeting in Special Session at the Col-

ville Indian Sub-Agency, Nespelem, Washington, acting

for and on behalf of the Colville Confederated Tribes this

2nd day of June, 1967, that Colville Resolution No. 1966-

393 is hereby rescinded in its entirety and the following

rules for membership, by adoption, in the Colville Con-

federated Tribes are hereby established:

Section 1—Applicants must be citizens of the United

States and subscribe to the Constitution thereof and

to the Constitution and By-Laws of the Confederated

Tribes of the Colville Reservation.

Section 2—Applicants must possess at least one-fourth

(44) degree of Indian blood of the tribes which con-

stitute the Confederated Tribes of the Colville Reser-

vation, and such blood must be computed from docu-

mentary evidence obtained from sources acceptable

and recognized by the Colville Business Council and

er with the January 1, 1937 Basic Membership

Roll.

Section 3—At least one of the applicant's parents must

be a duly enrolled member of the Confederated Tribes

of the Colville Reservation.

Section 4—If the applicant is already a duly enrolled

member of another recognized tribe, this will deem

the applicant automatically ineligible for adoption

in the Colville Confederated Tribes, regardless of

whether the applicant offers to relinquish his or her

rights with the other tribe.

Section 5—Applicants must possess good character

and otherwise be acceptable to the Business Council

as a tribal member. Applicants must state under oath

that he or she has not been convicted of any offense

involving dishonesty during the preceding five years.

NE CURRY

LIME I FN I eT

PRs ee

A-12

RESOLVED FURTHER, that the Secretary of the In-

terior, or his duly authorized representative, is hereby

requested to give top priority in reviewing this resolution

so that the authority to approve tribal adoption cases will

again be delegated to the Colville Business Council, there-

by preventing any undue delay in the processing of tribal

adoption cases.

The foregoing was duly enacted by the Colville Business

Council by a vote of 6 FOR and 4 AGAINST, under author-

ity contained in Article V, Section 1(a) of the Constitution

and By-Laws of the Confederated Tribes of the Colville

Reservation, ratified by the Colville Indians on February

26, 1938 and approved by the Commissioner of Indian

Affairs on April 19, 1938; and under further authority con-

tained in Article VII, Section 2 of the Constitution and

By-Laws, adopted by the Confederated Tribes on May 20,

1949 and approved by the Commissioner of Indian Affairs

on April 14, 1950.

ATTEST:

Narcisse Nicholson, Jr.

Narcisee Nicholson, Jr., Chairman

Colville Business Council

RESOLUTION NO. 1969-349

WHEREAS, by enactment of Resolution 1967-18€, dated

June 2, 1967, the Business Council established rules for

membership by adoption; and

WHEREAS, the above cited resolution was approved by

the Deputy Assistant Commissioner of Indian Affairs on

August 2, 1967; and

SAE SSRI e REPS

A-13

WHEREAS, Section 4 and 5, of Resolution 1967-186

are not clear as to their meaning; and

WHEREAS, it is the recommendation of the Enrollment

Committee to amend Sections 4 end 5 of Resolution

1967-186.

NOW, THEREFORE, IT IS HEREBY RESOLVED,

that we, the Colville Business Council, meeting in Special

Session at the Colville Indian Sub-Agency, Nespelem,

Washington, acting for and on behalf of the Colville Con-

federated Tribes this 22nd day of September, 1969, do

hereby approve the recommendation of the Enroliment

Committee. Sections 4 and 5 shall be amended to read

as follows:

“Section 4—If the applicant is already a duly enrolled

member, or has in the past been a duly enrolled mem-

ber of another recognized Indian tribe, this will deem

the applicant ineligible for adoption in the Colville

Confederated Tribes, regardiess of whether the appli-

cant offers to relinquish, or has relinquished, his or

her rights with the other tribe.”

“Section 5—Applicants must possess good character

and otherwise be acceptable to the Business Council

at a tribal member. Applicants, excluding minors, must

state under oath that he or she has not been convicted

of any offense involving dishonesty during the pre-

ceding five years.”

RESOLVED FURTHER, that the Secretary of the In-

terior, or his duly authorized representative, is hereby

requested to give top priority in reviewing the amendment

to Resolution 1967-186.

The foregoing was duly enacted by the Colville Business

Council by a vote of 11 FOR and 0 AGAINST, under

authority contained in Article V, Section 1(a) of the Con-

PULA RET YT st

ea Pr

Pen gUte emp ae

AST Oe 1 aR

See

Preece eg eects:

A-14

stitution and By-Laws of the Confederated Tribes of the

Colville Reservation, ratified by the Colville Indians on

February 26, 1938, and approved by the Commissioner

of Indian Affairs on April 19, 1938.

ATTEST:

Narcisse Nicholson, Jr.

Somer eee eee reer ee eemeneeeseeee

Narcisse Nicholson, Jr., Chairman

Colville Business Council

ee ee ee AT ASD

«

A-15

APPENDIX C

COMPLAINTS

THOMPSON COMPLAINT

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON

NORHERN DIVISION

|

ALICE M. THOMPSON,

Plaintiff,

V.

MeL TONASKET, CLARENCE DESAUTEL,

Lucy CovincTon, BARBARA MARCHAND,

CHARLES QuINTASKET, GABE MOsSEs,

SHIRLEY PALMER, ANDY JOSEPH, Civil No. 3540

BARNEY RICKARD, AL AUBERTIN, - COMPLAINT

ALICE LAWRENCE, Roy SEYLOR,

GeorcE Meusy, JOE KOHLER,

as members of the CoLviLLE

Business Councix of the Colville

Confederated Tribe, and THE

CoLVILLE CONFEDERATED TRIBE,

Defendants.

Comes now the Plaintiff above named and for cause

of action against the Defendants alleges and shows the

Court as follows:

IL.

That at all times herein mentioned the following were

the members of the Colville Business Council of the Col-

ville Confederated Tribe: Mel Tonasket, Clarence Desau-

tel, Lucy Covington, Barbara Marchand, Charles Quin-

tasket, Gabe Muses, Shirley Palmer, Andy Joseph, Barney

Rickard, Al Avbertin. Alice Lawrence, Roy Seylor, George

Meusy and Joe Kohler.

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A-16

II.

That at all times herein mentioned the Colville Con-

federated Tribe was a tribe of Indians, with its holdings

and main place of business located within Okanogan and

Ferry Counties, State of Washington.

Ill.

That at all times herein mentioned the Colville Busi-

ness Council was composed of members of the Colville

Confederated Tribes, with their principal place of busi-

ness in Nespelem, Washington, and Coulee Dam, Wash-

ington.

IV.

That at all times herein mentioned, the Plaintiff herein

Alice M. Thompson, was also known as Alice Margaret

McDonald.

V.

That the Plaintiff was born August 25, 1911, near Oro-

ville, Okanogan County, Washington, and that her place

of birth was recorded September 2, 1911, with the Regis-

trar of Births in Olympia, Washington.

VI.

That the Plaintiff is an American citizen by birth, and

has always retained her rights as an American citizen

and has never in any manner given up such rights.

VI.

That the Plaintiff is married to Louis Raymond Thomp-

son, an American citizen born in Sprague, Washington,

who has always retained his rights as an American citizen.

A-17

VIII.

That the Plaintiff was enrolled on the Colville Indian

rolls on or about November 2, 1911; that the Plaintiff

remained on the Colville rolls from the time she was

placed thereon, and had an allotment on the Colville Res-

ervation up to the date of approximately 1953; that the

Plaintiff received her per capita payments and all pay-

ments given to other members of the Colville Tribe up

through the year of 1952.

IX.

That on or about the year of 1953, the Plaintiff was im-

properly stricken from the rolls of the Colville Confed-

erated Tribe and deleted therefrom as a member; that on

or about the year of 1958 the Plaintiff received her Patent

in Fee to her allotment.

X.

That the alleged reason that the Plaintiff was stricken

from the rolls of the Colville Confederated Tribes by an

action of the tribal council and/or the Colville Business

Council of the Colville Confederated Tribes; that the al-

leged reason she was stricken from the rolls was based

upon the claim that the Plaintiff was a Canadian and not

an American citizen; that in truth and fact, this was not

so, and the Plaintiff at all times has been an American

citizen and was not a Canadian Indian.

That at the time the Plaintiff was improperly stricken

from the rolls of the Colville Confederated Tribe, she pro-

tested this, but had no control by which to stop her name

being deleted from the rolls, and such action was taken,

which the Plaintiff alleges was not a proper act in any

respect; that the action was taken without the Plaintiff

Bitessiichinkse orice dior:

A-18

having full right of representation at the hearing and

without her having full right to present her evidence to

the council or to the proper authorities.

XI.

That allegedly the reason that Plaintiff was stricken

from the rolls was that she had voted in a foreign election

in Canada, and by so doing, had lost her American citizen-

ship. They contended they were acting under 8 U.S.C.

§ 1481(a)(5) and under the ruling of Perez v. Brownell,

356 U.S. 44 (1958). 8 U.S.C. § 1481(a)(5) was declared

unconstitutional by the case of Afroyim v. Rusk, 387 U.S.

253 (1967), and the Perez v. Brownell case was overruled

by the Afroyim v. Rusk case, and by the unconstitutional

8 U.S.C. § 1481(a)(5).

XII.

The Plaintiff has again petitioned to the Colville Busi-

ness Council to be enrolled as a member of the Colville

Confederated Tribe, and they and the enrollment com-

mittee were advised by the United States Department of

the Interior, Bureau of Indian Affairs, in Washington, D.C.,

that based upon the law that the Council did not have the

authority, and the enrollment committee did not have the

authority, to determine whether a tribal member would

lose their nationality by voting in a foreign election and

did not have the authority to declare that the Plaintiff

herein had lost her right to remain a member of the Col-

ville Confederated Tribe by declaring that she had voted

in a foreign election.

XII.

That even though the Colville Business Council and the

Colville Confederated Tribe and the Enrollment Commit-

Dea Preece

A-19

mittee were advised of this, they still have refused to act

upon the application of the Plaintiff herein to be placed

back on the rolls of the Colville Confederated Tribe.

XIV.

That the Plaintiff meets all of ti.2 requirements for mem-

bership in the Colville Confederated Tribe, and is an

American citizen, and the Defendants had no right what-

soever to strike her from the rolls.

XV.

That although repeated requests were made for the

reenrollment of the Plaintiff, the Tribal Council and the

Enrollment Committee have refused to take any action

thereon.

XVI.

That the actions of the Colville Confederated Tribe, the

Business Council and the Enrollment Committee was arbi-

trary and capricious and illegal and unconstitutional and

in violation of the Plaintiff's constitutional rights as an

American citizen, as they had declared that she no longer

was an American citizen.

XVII.

That many other individuals have been enrolled in the

Colville Confederated Tribe, without having to show all

of the facts that this plaintiff has had to show, and who had

some of the disqualifications that were claimed to exist

against the Plaintiff herein; that the said tribal council

has discriminated against the Plaintiff, contrary to law,

even though she has met all of the requirements to be

re-enrolled in the tribe.

That the said acts of discrimination against the Plaintiff

are contrary to the laws of the United States, being 42

ce See

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A-20

U.S.C.A. 1981 and all pertinent sections under the Civil

Rights Acts under Title 42, and the United States Consti-

tution and all pertinent sections thereof.

That 25 U.S.C.A. § 1302 provides that no Indian tribe

in exercising powers of self government shall deny to any

person within its jurisdiction the equal protections of the

laws, or deprive any person of liberty or property without

process of law.

That by the arbitrary, capricious, and discriminatory

action of the Business Council of the Colville Confederated

Tribe, the Colville Confederated Tribe and the Enrollment

Committee, the Plaintiff has been denied equal protection

of the laws and has been deprived of property without due

process of law.

XVIII.

That a Federal question is involved; that the United

States District Court has jurisdiction of the persons and

subject matter herein.

XIX.

That if the Plaintiff is placed back on the rolls of the

Colville Confederated Tribe, it would mean that she would

have an interest in the Colville Confederated Tribe and

would receive benefits from the Colville Confederated

Tribe.

That certain benefits have been paid to the members

of the Colville Confederated Tribe through per capita

and otherwise, for a number of years, and since 1953, and

that Plaintiff is entitled to have these benefits paid to her

from the date that she was improperly stricken from the

rolls of the Colville Confederated Tribe to the date of

hearing of this Complaint and the decision of the Court,

ELLER LAS LOLA SN IOI EERE I AL IA- TM SAS MCI s AIT

A-21

as such benefits are earned benefits to which the Plaintiff

is entitled, and is being improperly deprived of, without

due process of law; that the exact amount of such benefits

are unknown to the Plaintiff, but will be alleged and ;

testified to at the time of trial, said benefits being for per

capita payments and other payments made to members of

the tribe since 1953.

That the Plaintiff should be allowed a reasonable at-

torney’ss fee against the Defendants for the bringing of

this action, as the Defendants have, without proper au-

thority, discriminated against the Plaintiff, and without

proper authority have stricken the Plaintiff from the tribe’s

rolls, and that a reasonable attorney's fee would be the

sum of $5,000.00.

That the Plaintiff has no other adequate remedy at law.

That the Defendants now refuse to act upon Plaintiff's

petition, even though they have been instructed as to what

the law is and what the rights of the Plaintiff are, and by

so doing, the said Defendants are continuing to deprive

the Plaintiff of her property without due process of law

WHEREFORE, the Plaintiff prays for Judgment against

the Defendants as follows:

1. That the Court decree that the Plaintiff be reinstated

and re-enrolled as a member of the Colville Confederated

Tribe, and that her name be placed retroactively upon the

rolls, effective as of the date of 1952, and that the Court

order and decree that the Colville Business Council and

the Colville Confederated Tribe and the Enrollment Com-

mittee enact the necessary Resolution to approve the ap-

plication of the Plaintiff for the placing of her name back

upon the rolls of the Colville Confederated Tribe, and

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A-22

that her name be placed thereon retroactively as of the

year 1952.

2. That the Court order and direct that said Plaintiff

receive full back per capita payments, and any and all

other payments that have been made to members of the

Colville Confederated Tribe, since the year of 1952 to

the date of Judgment of this Court and that the Colville

Confederated Tribe and the Colville Business Council be

ordered to adopt the necessary resolution for the payment

of said amounts, and if such cannot be done, then, in the

alternative, that the Plaintiff have judgment against the

Colville Confederated Tribe and the Colville Business

Council and the Enrollment Committee of the Colville

Confederated Tribe, and the specific members of the Col-

ville Confederated Tribe, for the amount of said back per

capita pay and any and all other payments made to the

members of the Colville Confederated Tribe since the year

1952, plus interest on said amount at the rate of eight

(8%) per cent per annum from the time said amounts

became due and payable to the date of Judgment.

3. That the Court decree that the Plaintiff have iudg-

ment against the Defendants for attorney fees in the sum

of $5,000.00, plus Plaintiff's court costs herein.

4. For such other and further relief as to the Court may

seem just, equitable and proper.

s/ Ketty Hancock

Attorney for Plaintiff

Box H, Omak,

Washington 98841

STATE OF WASHINGTON \

County of Okanogan

Auice M. Tuompson, being first duly sworn, on oath,

deposes and says: That she is the Plaintiff named in the

A-23

above entitled action; that she has read the foregoing

Complaint, knows the contents thereof and believes the

same to be true.

s/ AticeE M. THOMPSON

Subscribed and sworn to before me this 9th day of August,

1971. [seal]

s/ KeLLy HANcock

Notary Public in and for

the State of Washington,

residing at Omak.

LARAMIE COMPLAINT

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF WASHINGTON

NORTHERN DIVISION

JuNE Karen LARAMIE, PaTRiciA MAE &

LARAMIE and ConNIE SUE LARAMIE,

by and through their Guardians Ad

Litem, Evetyn A. LARAMIE, and

TYRONE W, LARAMIE,

Plaintiffs,

v.

NarcIssE NICHOLSON, JR., MARY

NICHOLSON, THELMA MARCHAND,

GEORGE SNIDER, ALICE LAWRENCE, | COMPLAINT

Roy SEYLor, DEAN DourGEAU, PAT No. 3402

NuGENT, BARNEY RICKARD, OLIVER

POoOoLER, SHIRLEY PALMER, JIMMY

Ora, Lucy CovincTon, an

VirciniA ANDREWS, as members of

the CoLviLLE Business Counc of

THE COLVILLE CONFEDERATED TRIBE,

and THE CoLviLLE CONFEDERATED

TRIBE,

Defendants.

Come now the Plaintiffs above named and by and

through their Guardians Ad Litem alleges and show the

Court as follows:

go hae Di RII, BLE ee searched

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A-24

/

That Tyrone W. Laramie and Evelyn A. Laramie are

the duly appointed, qualified and acting Guardians Ad

Litem of June Karen Laramie, Patricia May (sic) Lara-

mie and Connie Sue Laramie, the above named minors.

Il. :

That at all times herein mentioned the Defendants

Narcisse Nicholson, Jr., Mary Nicholson, Thelma March-

and, George Snider, Alice Lawrence, Roy Seylor, Dean

Dougeau, Pat Nugent, Barney Rickard, Oliver Pooler,

Shirley Palmer, Lucy Covington, Jimmy Orr and Virginia

Andrews were members of the Colville Business Council

of the Colville Confederated Tribes.

That at all times herein mentioned the Colville Business

Council, acting on behalf of the Colville Confederated

Tribes, acted on the application of the three minor Plain-

tiffs for tribal membership.

That at all times herein mentioned the Colville Business

Council was composed of members of the Colville Confed-

erated Tribes, with their principal place of business at

Nespelem, Washington, and Grand Coulee, Washington.

Ill.

That the said three minor Plaintiffs did apply to the

Colville Business Council to be adopted as members of the

Colville Confederated Tribes.

IV.

That the said Colville Business Council and/or the En-

rollment Committee thereof advised the parents of said

minors that there were certain requirements that they

had to meet and certain evidence that they had to show,

A-25

to wit: That they were citizens of the United States, that

they had the proper degree of Indian »lood to be admitted

to the Colville Confederated Tribe, that they were not

members of any other tribe, and other requirements alleged

to be required by the Colville Confederated Tribes for

enrollment, which requirements had been set up by the

Business Council of the Colville Confederated Tribes.

That all of said requirements were met by the Plaintiffs.

That at the time of the last hearing, the Enrollment

Committee contended that a Resolution had been passed

by the Colville Business Council that prohibited the minors

from being adopted as members of the Colville Confed-

erated Tribe, due to the fact that they and/or their

parents had been enrolled in a Canadian tribe, even

though they had been disenfranchised therefrom, dis-

barred them from becoming adopted. It was stipulated by

the Business Council, however, that if this did not bar

them, then their application for enrollment would be

accepted.

It was stipulated at the hearing that an opinion would

be requested by the Enrollment Committee and/or the

Colville Business Council from the Department of the In-

terior, Bureau of Indian Affairs, Washington, D.C., and

that an opinion would be requested by the attorney repre-

senting the said Plaintiffs.

That the said opinion was requested both by the Colville

Confederated Tribes through their respective business

council, and by the attcrney for the Plaintiffs. That it was

ruled by the Bureau of Indian Affairs of the Department

of Interior, through the Commissioner of Indian Affairs

that the fact that said Plaintiffs and/or their parents, had

YE

[Merce token sy eet Reese

A-26

been enrolled before in a tribe in Canada did not, under

the resolution, disqualify them, since they had been disen-

franchised from that tribe. However, even though such

ruling was made, the said Colville Business Council and

the Colville Enrollment Committee then refused to grant

any further hearing on said adoption petitions by the

Plaintiffs, and refused to take any further action to adopt

said Plaintiffs into the membership of the Colville Con-

federated Tribes.

V.

That the said actions of the Colville Confederated Tribe

by and through the Colville Business Council, and by and

through the Enrollment Committee of the Colville Busi-

ness Council was an action on behalf of said tribe and

governing bodies thereof, and that said tenants (sic, de-

fendants ) discriminated against the said three minor Plain-

tiffs, herein, even though said Plaintiffs met all of the re-

quirements required of them, even though two of the Plain-

tiffs went to the extent of securing the necessary papers to

show that they were United States citizens, and that the

said Colville Confederated Tribe, acting through their re-

spective defendant governing body, improperly, without

authority, did discriminate against the said Plaintiffs con-

trary to the laws of the United States, being USCA “Sec-

tions 1981 and all pertinent sections under the Civil Rights

Act under Title 42, and the United States Constitution and

all pertinent sections thereto.”

That many other individuals have been adopted into

the Colville Confederated Tribe without having to show all

of the facts that these Plaintiffs have had to show, and that

many individuals have been adopted who had some of the

A-27

disqualifications that these Plaintiffs had to show did not

exist, and that the said tribal council has discriminated

against these Plaintiffs contrary to law, because they re-

quired more of them than other individuals who have been

adopted into the Tribe, and that they have been further

discriminated against because even after these require-

ments had been met, the applications of Plaintiffs were

still refused.

VI.

That a Federal question is involved. That the U. S. Dis-

trict Court has jurisdiction of said matter.

That being adopted as members of the Colville Confed-

erated Tribes by said respective Plaintiffs would mean that

they would have an interest in the assets of the Colville

Confederated Tribes, and that they would receive benefits

from the Colville Confederated Tribe in the future.

That certain benefits have been paid to the members of

the Colville Confederated Tribe, through per capita and

otherwise, for a number of years, and that the Plaintiffs

are entitled to have these benefits paid to them from the

date of their application was made to the date of the hear-

ing on this Complaint, as such benefits are earned benefits

which Plaintiffs are entitled to; that the exact amount of

such benefits are unknown to the Plaintiffs, but will be

alleged and testified to at the time of trial.

Vil.

That said Plaintiffs should be allowed a reasonable at-

torney’s fee against the Defendants for the bringing of

this action; that a reasonable attorney's fee would be

$2,500.00, plus Court costs herein.

jel osetds PS

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A-28

VII.

That the Plaintiffs have no other adequate remedy at

law.

WHEREFORE, Plaintiffs pray for Judgment as follows:

1. That the Court decree that the Defendants have im-

properly acted upon the applications for adoptions on be-

half of said minor Plaintiffs, and decree and order that the

Colville Business Council of the Colville Confederated

Tribe pass the necessary resolution to approve the appli-

cations for the petition for adoption by said three minor

Plaintiffs, and that the said Plaintiffs be adopted as mem-

bers of the Colville Confederated Tribe and placed on

the rolls thereof effective as of the dates of their applica-

tions.

2. That the Court order that said three minor Plaintiffs

receive full back per capita payments that have been made

during the time interval since they made application to

the date of this decree.

3. That the Court decree that Plaintiffs have judgment

against the Defendants for attorney fees in the sum of

$2,500.00, plus the Plaintiffs’ Court costs herein.

4. That the Court decree and award such other and

further relief as to the Court seems just and proper.

Hancock & KouLs,

Box H, Omak, Washington

98841

s/Ketty Hancock

Attorneys for Plaintiffs

A-29

State of Washington }

County of Stevens -

TYRONE W. LarAMie and Eve.yn A. LARAMIE, husband

and wife, being first duly sworn, on oath, deposes and says:

That she is the Plaintiff above named and on the duly ap-

pointed, qualified and acting Guardian Ad Litem of June

Karen Laramie, Patricia Mae Laramie and Connie Sue

Laramie, Minors; that she has read the foregoing Com-

plaint, knows the contents thereof and believes the same

to be true.

s/ TyROoNE W. LARAMIE

s/ Evetyn A. LARAMIE

Subscribed and sworn to before me this 26th day of

June, 1970.

s/ [SIGNATURE]

Notary Public in and for

the State of Washington,

residing at Colville, Wash.