Opposition Brief — Middlemist v. Babbitt

ee a ee

Supreme Court, U.S,

No. 92-1757 FILED |

ees MAY 27 1993

Supreme Court of the United tates

October Term, 1992

a 4 ainnceinneD

ROSS MIDDLEMIST, WAYNE W. MAUGHAN,

FLATHEAD JOINT BOARD OF CONTROL,

Petitioners,

VS.

SECRETARY OF THE UNITED STATES DEPARTMENT OF

INTERIOR, Bruce Babbitt; DIRECTOR OF THE BUREAU OF

INDIAN AFFAIRS, PORTLAND AREA, Stanley M. Speaks;

SUPERINTENDENT OF THE BIA, FLATHEAD AGENCY,

Ernest Moran, in their capacities; MEMBERS OF THE TRIBAL

COUNCIL OF THE CONFEDERATED SALISH AND

KOOTENAI TRIBES, Michael Pablo, Chairman, Sonny

Morigeau, Secretary Treasurer, Joseph Felsman, Louis Adams,

Hank Baylor, Tony Incashola, John Lozeau, Lloyd Irvine,

Patrick Lefthand, Laurence Kenmille; DIRECTOR OF THE

DEPARTMENT OF NATURAL RESOURCES OF THE

CONFEDERATED SALISH AND KOOTENAI TRIBES, Rhonda

R. Swaney; ADMINISTRATOR OF THE SHORELINE

PROTECTION OFFICE OF THE CONFEDERATED SALISH

AND KOOTENAI TRIBES, J. Lloyd Jackson; MEMBERS OF

THE SHORELINE PROTECTION BOARD OF THE

CONFEDERATED SALISH AND KOOTENAI TRIBES, Joseph

Schneider, Gem Mercer, Al Hewankorn, Donald Lucas,

Thurman Trosper, and Henry Normandeau,

Respondents.

— ¢— —

On Petition For Writ Of Certioari To The

United States Court Of Appeals For The Ninth Circuit

e —

BRIEF FOR TRIBAL RESPONDENTS IN OPPOSITION

3 ——

JOHN CARTER

Counsel of Record

The Confederated Salish and

Kootenai Tribes

Tribal Legal Department

P.O. Box 278

Pablo, Montana 59855

(406) 675-2700

Attorney for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a petition for certiorari pursuant to Supreme

Court Rule 11 should be denied because Petitioners chose

not to exhaust Tribal remedies, in contradiction to this

Court’s express rule to the contrary expressed in National

Farmers Union Insurance Company v. Crow Tribe, 471 U.S.

845 (1985).

TABLE OF CONTENTS

Page

TAs I FAT EC eee 0 ote Sa ance se haeeann ee iii

eo it Pre err rye re ay 2

STATEMENT OF THE CASE......... a ace ae one 2

SUMMARY OF ARGUMENT. .... 0... 5005 veseseess 4

pu ek | 2) en enero wy meen arr er mira 45°? 7

1. This Case Does Not Satisfy The Requirements

oe Bi eerreeee reer er eer ee ee 7

2. Tribal Jurisdiction Is Not Patently Violative Of

Any Portion Of The Constitution............. 9

3. Because The JBC Has Prosecuted This Case In

Such A Manner As To Preclude Any Forum

From Making Findings Of Fact Or Conclusions

Of Law, It’s Not Possible To Ascertain The

Jurisdictional Limit, Of ALCO................ 10

ee Et rE errr rr re Te re eer ed. 15

iil

TABLE OF AUTHORITIES

Page

CASES

Baker v. Carr, 369 U.S. 186 (1962)............... -... 10

Brendale v. Confederated Tribes and Bands of the

Yakima Nation, 492 U.S. 408 (1989)........ 12

Brown v. Board of Education, 347 U.S. 483 (1954) ....6, 8

Brown v. Board of Education, 344 U.S. 1, 141, 891

ee yc eh eras cscs sacess sees wee

Burlington Northern Railroad v. Crow Tribal Councii,

924 F.2d 899 (9th Cir. 1991)............00.0 005. 5

California v. Cabazon Band of Mission Indians, 480

JS 2) 4g Jee . y

Confederated Salish and Kootenai Tribes v. Namen,

665 F.2d 951, 964-965 (9th Cir. 1982), cert. denied,

ene a oy 2

Crawford v. Genuine Parts, 947 F.2d 1405 (9th Cir.

ee eee

Duro v. Reina, 495 U.S. 676 (1990)....... ri Ae iz, 13

FMC v. Shoshone-Bannock Tribe, 905 F.2d 1311 (9th

Cir. 1990), cert. denied 111 S.Ct. 1404 (1991)... 5

Iowa Mutual Insurance Company v. LaPlante, 480

9 A ae COE .... passim

Joint Board of Control v. United States and Confeder-

ated Salish and Koctenai Tribes, 832 F.2d 1127 (9th

Cir. 1987), cert. denied, 486 U.S. 1007 (1988) .....3, 11

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).....9

Montana v. United States, 450 U.S. 544 (1981)...... 9 13

TABLE OF AUTHORITIES — Continued

Page

National Farmers Union Insurance Company v. Crow

svtme, 471 U.S. BED (IGGS) «occ een nese .... passim

Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978)...12, 13

Santa Clara Pueblo v. Marrinez, 436 U.S. 349 (1978) .. 9

South Dakota v. Bourland, 949 F.2d 984 (8th Cir

NR ree eee 14

South Dakota v. Bourland, No. 91-2051 (U.S. Sup

Ct. argued March 2, 1993)........ Pe re ry ere i

Stock West v. Taylor, 942 F.2d 655 (9th Cir. 1991)

aff'd in part and vacated in part 964 F.2d 912

‘ge AB, ; ) nn Crna, Port BBS oe rn Ay 5, 8

United States v. Mazurie, 419 U.S. 544 (1978)..... Yy

United States v. Montana, 450 U.S. 544 (1981)... 11

United States v. Nixon, 418 U.S. 683 (1974)..... 7, 8

United States v. Ryan, 402 U.S. 530 (1971)........ 8

United States v. United Mine Workers, 330 U.S. 258

4 (4 eae ere ernest SS enh. ie ere |

United States v. Wheeler, 435 U.S. 313 (1978) ...... 12, 13

Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S.

SEW CNWORS 6 6 se 54 6ake VOR Re ee ee ee 7

Williams v. Lee, 358 U.S. 217 (1959)............ 1]

TREATY

Treaty of Hellgate, July 16, 1855 (12 Stat. 975)........ 2

TABLE OF AUTHORITIES Continued

Page

STATUTES

25 U.S.C. § 1301 }

28 U.S.C. § 1331 5

28 U.S.C. § 1332 .

28 U.S.C. & 2201

No. 92-1757

¢

In The

Supreme Court of the United States

October Term, 1992

—————— o——____

ROSS MIDDLEMIST, WAYNE W. MAUGHAN,

FLATHEAD JOINT BOARD OF CONTROL,

Petitioners,

V5.

SECRETARY OF THE UNITED STATES DEPARTMENT OF

INTERIOR, Bruce Babbitt; DIRECTOR OF THE BUREAU OF

INDIAN AFFAIRS, PORTLAND AREA, Stanley M. Speaks;

SUPERINTENDENT OF THE BIA, FLATHEAD AGENCY,

Ernest Moran, in their capacities; MEMBERS OF THE TRIBAL

COUNCIL OF THE CONFEDERATED SALISH AND

KOOTENAI TRIBES, Michael Pablo, Chairman, Sonny

Morigeau, Secretary Treasurer, Joseph Felsman, Louis Adams,

Hank Baylor, Tony Incashola, John Lozeau, Lloyd Irvine,

Patrick Lefthand, Laurence Kenmille: DIRECTOR OF THE

DEPARTMENT OF NATURAL RESOURCES OF THE

CONFEDERATED SALISH AND KOOTENAI TRIBES, Rhonda

R. Swaney; ADMINISTRATOR OF THE SHORELINE

PROTECTION OFFICE OF THE CONFEDERATED SALISH

AND KOOTENAI TRIBES, J. Lloyd Jackson; MEMBERS OF

THE SHORELINE PROTECTION BOARD OF THE

CONFEDERATED SALISH AND KOOTENAI TRIBES, Joseph

Schneider, Gem Mercer, Al Hewankorn, Donald Lucas,

Thurman Trosper, and Henry Normandeau,

Respondents

e a

On Petition For Writ Of Certioari To The

United States Court Of Appeals For The Ninth Circuit

*

BRIEF FOR TRIBAL RESPONDENTS IN OPPOSITION

.

OPINION BELOW

The unreported District Court decision dismissing

this action is printed in Petitioner’s Appendix at A-1

through A-15. Petitioner filed a notice of appeal to the

Ninth Circuit Court of Appeals on March 3, 1993. Tribal

Appellees filed a motion for summary affirmance to the

Ninth Circuit on April 30, 1993. On May 3, 1993, Tribal

Respondents received the petition for Writ of Certiorari.

Petitioners filed a motion to stay the Ninth Circuit appeal

on May 7, 1993. The Ninth Circuit denied Petitioner’s

motion to stay, as well as the Tribal motion for affir-

mance, by Order dated May 17, 1993. (Appendix p. 1,

hereafter “App.”)

STATEMENT OF THE CASE

This case involves the extraordinary efforts of Peti-

tioners (collectively referred to as “JBC”) to circumvent

established appellate practice. They challenge the validity

of the exercise by the Confederated Salish and Kootenai

Tribes of the Flathead Indian Reservation (hereafter

“Tribes”) of civil jurisdiction regulating an aspect of the

Reservation environment as that law effects the activities

of non-Indians. The Tribal law in question is the Aquatic

Lands Conservation Ordinance (“ALCO”), App. 2-13, a

civil regulatory ordinance “designed to effectuate the

Tribal and federal goals of protecting the quality of Reser-

vation aquatic habitat” upon which the Tribes’ treaty-

reserved fish and wildlife resources depend. (Petitioner’s

Appendix A-2; App. 14 (Treaty of Hellgate, July 16, 1855,

12 Stat. 975, Article III.) See also, Confederated Salish and

Kootenai Tribes v. Namen, 665 F.2d 951, 964-965 (9th Cir.

1982), cert. denied, 486 U.S. 1007 (1988) (“Namen”); Joint

Board of Control v. United States and Confederated Salish and

Kootenai Tribes, 832 F.2d 1127 (9th Cir. 1987), cert. denied,

486 U.S. 1007 (1988).!

ALCO establishes administrative permitting pro-

cesses for persons who wish to engage in activities that

have the potential to impact adversely Reservation

aquatic lands. Proposed projects are reviewed by an inter-

disciplinary team of professionals in fisheries, wildlife,

hydrology, engineering, and other appropriate disci-

plines. Only after that review is conducted can the deter-

mination be made by the SPB whether ALCO applies to a

Proposed undertaking, and if so, whether to approve,

approve with modification, or deny a project. Since

implementation in 1987, hundreds of private, state, fed-

eral and Tribal undertakings have been processed under

ALCO.

Of note, ALCO establishes Tribal administrative and

judicial review process for all persons who either

' After the Secretary of Interior approved ALCO in accor-

dance with the Tribes’ Constitution, the Tribes solicited

region-wide public comment and held a public hearing on pro-

posed implementing regulations, as required under the Tribal

Administrative Procedures Ordinance, another Secretarily-

approved Tribal law. (Petitioner’s Appendix A-2). ALCO is

administered by the Shoreline Protection Board (“SPB”) recog-

nized in Namen, supra, as possessing civil jurisdiction over

Indians and non-Indians on the Flathead Indian Reservation. In

keeping with the Tribes’ practice, the SPB, a Tribal govern-

mental agency, is comprised of Indians and non-Indians, includ-

ing a state municipal court judge.

allegedly violate ALCO or feel aggrieved by a decision of

the SPB. (App. 10-11). JBC ignored completely the Tribal

processes.

SUMMARY OF ARGUMENT

The JBC attempts to evade the rule of exhaustion of

Tribal remedies enunciated in National Farmers Union

Insurance Company v. Crow Tribe, 471 U.S. 845 (1985)

(“National Farmers”) and perfected in lowa Mutual Insur-

ance Company v. LaPlante, 480 U.S. 9 (1987) (“lowa

Mutual”).2 These cases set a rule that “civil jurisdiction

over such activities presumptively lies in the tribal courts

unless affirmatively limited by specific treaty provisions

or federal statutes.” Jowa Mutual at 18 (emphasis added).

Instead, JBC chose to circumvent the exhaustion rule by

filing for declaratory relief in federal district court, claim-

ing Tribal jurisdiction to be “patently unconstitutional

and violative of the limits of tribal jurisdiction estab-

lished by this Court’s decisions.” (Petition, p. 11). The

appropriate Tribal administrative and judicial forums

were, therefore, deprived of the opportunity to interpret

and apply Tribal law to the facts in this case. Providing a

Tribal court the “full opportunity to determine its own

jurisdiction” is one of the central reasons this Court has

directed that exhaustion occur prior to attempting federal

2 The rule of law from this Court, and as applied by the

Ninth Circuit, addresses exhaustion of Tribal remedies. Accord-

ingly, the JBC misleads when it suggests that this is an absten-

tion case.

court review. lowa Mutual at 16, 18; National Farmers at

857.3

The Tribes and the United States moved for dismissal

under Rule 12b(6) of the Federal Rules of Civil Procedure

for failure to exhaust Tribal remedies, as well as on issues

of ripeness, standing, capacity to sue, and sovereign

immunity. The district court granted the motion and

issued a well-reasoned opinion applying this Court’s

exhaustion rule.* JBC filed a notice of appeal to the Ninth

Circuit Court of Appeals. However, rather than perfect

that appeal and enable the Ninth Circuit to review the

3 In National Farmers, petitioners sought to defeat Tribal

exhaustion by asserting that 28 U.S.C. § 1331 afforded a basis for

federal jurisdiction independent of the exhaustion requirement.

In lowa Mutual, the same argument was based on 28 U.S.C.

§ 1332. In each case this Court refused to accept that end run,

reasoning that

Regardless of the basis for jurisdiction, the federal

policy supporting tribal self-government directs a

federal court to stay its hand in order to give the tribal

court a “full opportunity to determine its own juris-

diction.” (quoting National Farmers)

lowa Mutual, p. 16.

The JBC argues that 28 U.S.C. § 2201 provides an independent

Congressional exception to exhaustion (Petition, p. 23). That

argument fails under the reasoning quoted above.

4 The Ninth Circuit has repeatedly applied the rule and

exceptions in National Farmers and lowa Mutual and is the proper

forum to resolve this case under normal appellate practice. See,

Burlington Northern Railroad v. Crow Tribal Council, 924 F.2d 899

(9th Cir. 1991); Crawford v. Genuine Parts, 947 F.2d 1405 (9th Cir.

1991); Stock West v. Taylor, 942 F.2d 655 (9th Cir. 1991) aff’d in

part and vacated in part 964 F.2d 912 (9th Cir. 1991); FMC v.

Shoshone-Bannock Tribe, 905 F.2d 1311 (9th Cir. 1990), cert. denied,

111 S.Ct. 1404 (1991).

district court decision and consider other grounds for

dismissal, if necessary, JBC has taken this extreme

approach of attempting to circumvent the Ninth Circuit

as well as the Tribal forums.

JBC would have this Court believe that this case

satisfies the provisions of Supreme Court Rule 11, and

does so with a citation to the progeny of Brown v. Board of

Education, 347 U.S. 403 (1954). (Petition, p. 14). The effort

to elevate their complaint to the level of “imperative

public importance” found in Brown is fatuous and

unavailing.

The District Court decision comports with the United

States Constitution and decisions of this Court. JBC’s

efforts to elevate their allegations of impaired Constitu-

tional rights to the “imperative public importance”

required under Rule 11 pales in comparison to the over-

whelming federal governmental policy to support Tribal

self-government and Tribal self-determination that form

the basis for exhaustion in National Farmers and lowa

Mutual. This case does not satisfy the Rule 11 require-

ment of such importance as to mandate immediate settle-

ment in this Court.

ARGUMENT

THE DECISION OF THE DISTRICT COURT IS COR-

RECT AND ADDRESSES NO ISSUE OF IMPERATIVE

PUBLIC IMPORTANCE SUFFICIENT TO REQUIRE

IMMEDIATE SETTLEMENT IN THIS COURT

1. This Case Does Not Satisfy The Requirements

of Rule 11.

The JBC assert that ALCO is “patently unconstitu-

tional and violative of the limits of tribal jurisdiction

established by this Court’s decisions.” (Petition, p. 11)

They assert that this conclusory remark satisfies the

requirements of Rule 11. Rule 11 provides an extraordin-

ary avenue to bypass established appellate practice in

exceptional circumstances. No challenge to Tribal juris-

diction has satisfied the requirements of Rule 11. The

Rule is used sparingly and only when issues of national

significance mandate an immediate, prejudgment writ

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

(1952) (President Truman ordered federal takeover of the

Nation’s steel mills to avoid jeopardizing the national

defense); United States v. United Mine Workers, 330 US

258 (1947) (the United States sued to block a strike that

effectively halted bituminous coal production nation-

wide); Brown v. Board of Education, 344 U.S. 1, 141, 891

(1952); 347 U.S. 482 (1954) (nationwide desegregation of

public schools); United States v. Nixon, 418 U.S. 683 (1974)

(a claim of Presidential privilege as a defense to a court

order to divulge the Watergate tapes)

The Nixon opinion is demonstrative of the high

threshold necessary to satisfy Rule 11. A Rule 11 peti-

tioner must demonstrate that its claim falls within the

“limited class of cases where denial of immediate review

would render impossible any review whatsoever of an

individual’s claims.” Nixon at 691 (quoting United States v.

Ryan, 402 U.S. 530, 533 (1971)). There is, of course, no

such immediacy or exigency here. There is no national

defense issue at stake. An entire industry has not gone on

strike. A President is not threatened with impeachment.

Rather, several Reservation farmers simply do not like

Tribal jurisdiction over “reservation affairs” (as that term

is used in lowa Mutual at 15, and Stock West v. Taylor, supra

at 661) and do not want to follow the rule of exhaustion

in National Farmers and lowa Mutual.

In a deceptive string cite, devoid of legal analysis, the

JBC attempts to cloak its petition in the progeny of Brown

v. Board of Education, supra. The effort fails for many

reasons, including, (1) the fact that in Brown the actions of

state government ailowing racial segregation of public

facilities were challenged under the Fourteenth Amend-

ment, (2) Brown was the focal point of a large number of

related challenges to a suspect classification based upon

race from throughout the Nation then pending before the

Court, (3) reams of findings, studies and analysis of the

challenged actions were available to the Court, and (4)

the Court’s finding that “education is perhaps the most

important function of state and local governments” (344

U.S. at 493) clearly recognized the “imperative public

importance” of that issue to the nation.® No such impera-

tive exists. Established trial and appellate practice will

allow full review of the claims.

2. Tribal Jurisdiction Is Not Patently Violative Of

Any Portion Of The Constitution.

As this Court has noted, “Indian Tribes occupy a

”

unique status under our law.” National Farmers at 851. For

example, the Bill of Rights does not apply to the actions

of tribal government, though the analogous protections

contained in the Indian Civil Rights Act (25 U.S.C. 1301 et

seq.) do apply. Santa Clara Pueblo v. Martinez, 436 U.S. 349

(1978). It is JBC’s refusal to accept this fact of life that

gives rise to their allegations of Constitutional infirmity

here. They allege that ALCO deprives them of a Constitu

tional right to full and equal participation in tribal gov

ernment and of civil rights and liberties, as well as the

right to republican form of government

Tribal civil jurisdiction over non-Indians is not per se

a violation of these rights. United States Mazurie, 419

U.S. 544 (1975); California v. Cabazon Ban .

Indians, 480 U.S. 202 (1987); Merrion v. Jicanilla Apach

Tribe, 455 U.S. 130 (1982); Montana v. United States, 45

U.S. 544 (1981); Namen, at 964 n.31. Furthermore, claims

founded upon the guarantee of a republican form ot

government (which applies to states, not tribes), present

> JBC also attempts to invoke Rule 11 at footnote 14 on page

14 of the Petition, with a similar string cite to cases interpreting

challenges to Acts of Congress. The JBC petition challenges this

Court’s exhaustion rule and Tribal law, not an Act of Congress

10

no justiciable question. Baker v. Carr, 369 U.S. 186, 224

(1962).

3. Because The JBC Has Prosecuted The Case In

Such A Manner As To Preclude Any Forum

From Making Findings Of Fact Or Conclusions

Of Law, It Is Not Possible To Ascertain The

Jurisdictional Limits Of ALCO.

Tribal forums should be afforded “the first oppor-

tunity to evaluate the factual and legal basis for the

challenge” to their jurisdiction, (Jowa Mutual at 16) for

“Tribal Courts play a vital role in tribal self-govern-

ment ... and the Federal Government has consistently

encouraged their development.” (Jowa Mutual at 14-15).

Furthermore, “tribal courts are best qualified to interpret

and apply tribal law.” Id. at 16.6

© To be sure, this Court has structured three exceptions to

the requirement that the JBC must exhaust Tribal remedies prior

to seeking federal court review. They may be invoked only

when the exercise of Tribal jurisdiction is:

motivated by a desire to harass or is conducted in bad

faith, . . . or where the action is patently violative of

express jurisdictional prohibitions, or where exhaus-

tion would be futile because of the lack of an ade-

quate opportunity to challenge the court’s

jurisdiction.

National Farmers, p. 856 note 21.

JBC did not raise the first exception. It materially misrepre-

sented the second exception, as noted by the District Court

(Petitioner’s Appendix A-12), yet still failed to satisfy it. Fur-

thermore, JBC asserted unsubstantiated allegations of bias

against Tribal administrative and judicial institutions and indi-

viduals in an unsuccessful effort to invoke the third exception;

an act condemned by this Court when it “rejected similar

11

The Tribal law at issue provides protection to the

habitat upon which treaty-reserved fish and wildlife

resources depend (Namen, supra, at 964; Joint Board of

Control v. United States and Confederated Salish and Kootenai

Tribes, supra), protects the health and welfare of the Reser-

vation population (United States v. Montana, 450 U.S. 544,

565-566 (1981)), and upholds the political integrity of the

Tribal government (/d.). The jointly held Tribal and fed-

eral interests that control this matter are the federal pol-

icy of upholding and supporting Tribal self-governance

and Tribal self-determination, as well as, the right of the

Tribes to make their own laws for reservation affairs.

Williams v. Lee, 358 U.S. 217, 220 (1959). The JBC interest

lies in its perception that any exercise of Tribal civil

jurisdiction over them is unlawful.

The JBC challenge has deprived the SPB and the trial

and appellate Courts of the Confederated Salish and

Kootenai Tribes of the opportunity to rule on the scope of

ALCO. As this Court has stated:

the existence and extent of a tribal court’s juris-

diction will require a careful examination of

tribal sovereignty, the extent to which that sov-

ereignty has been altered, divested, or dimin-

ished, as well as a detailed study of relevant

statutes, Executive Branch policy as embodied

in treaties and elsewhere, and administrative or

judicial decisions.

attacks on Tribal Court jurisdiction in the past.” (lowa Mutual, p.

19.) The District Court also condemned the JBC for this feeble

effort to invoke the third exception. (Petitioner’s Appendix

A-13).

12

We believe that examination should be con-

ducted in the first instance in the Tribal Court

itself.

National Farmers, pp. 855-856 (footnote omitted, emphasis

added).

JBC asserts that as a matter of established Supreme

Court authority, there is a per se rule that ALCO is

unlawful, therefore exhaustion is inapplicable. They rely

heavily upon the rulings in Oliphant v. Suquamish Tribe,

435 U.S. 191 (1978), United States v. Wheeler, 435 U.S. 313

(1978), and Duro v. Reina, 495 U.S. 676 (1990), asserting

that those decisions “cannot be distinguished on any

principled basis. They control the issue and clearly state

that in the factual situation presented here, the Tribal

government has no jurisdiction.”” Petition, pp. 20-21.

7 As noted above, there have been no administrative or

judicial findings of fact. The JBC asserts many unproven and

contested facts in its petition. For example, in an effort to bring

into play the concepts discussed in Brendale v. Confederated Tribes

and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989), the JBC

asserts that the lands at issue are in an “open reservation”

(Petition, p. i), that the lands at issue are in “completely agri-

cultural areas of the reservation” (Petition, pp. 5-6), that 400,000

or more individuals nationwide are similarly deprived of Con-

stitutional rights and “all other civil liberties” by the existence

of ALCO on the Flathead Indian Reservation (Petition, p. 13),

that the Tribes “punish land use by people who are not tribal

members” (Petition, p. 3), numerous allegations regarding the

Reservation population and land status, and that the Maughan

project “will improve water quality” and related allegations

(Petition, p. 8 note 7), as well as the broad spectrum of allega-

tions in the Complaint.

13

Oliphant, Wheeler, and Duro address Tribal criminal

jurisdiction over non-members or non-Indians. This

Court has repeatedly distinguished criminal cases from

challenges to Tribal civil jurisdiction on two principled

reasons. First, should the Court “apply the Oliphant rule

here, it is plain that any exhaustion requirement would be

completely foreclosed because federal courts would

always be the only forums for civil actions” involving

Tribal and non-Indian disputes arising on the reservation.

National Farmers, p. 854 (emphasis in original). The sec-

ond principle distinction lies in the fact that Congress

divested Tribes of aspects of criminal jurisdiction over

non-Indians, but “there is no comparable legislation

granting the federal courts jurisdiction over civil disputes

between Indians and non-Indians that arise on an Indian

reservation.” Id. at 854 (footnote omitted). Accordingly, a

Tribal assertion of civil authority “is not automatically

foreclosed, as an extension of Oliphant would require.” Id.

at 855 (footnote omitted); accord. lowa Mutual, 9, 15.

The JBC also relies upon several decisions of this

Court dealing with Tribal civil jurisdiction to support its

allegation that ALCO is “patently unlawful”. The cases

cited do not establish a per se rule. Rather, the JBC’s

central case, Montana v. United States, 450 U.S. 544 (1981)

establishes a general rule that Tribes may have lost cer-

tain aspects of civil jurisdiction over non-Indians on fee

status reservations lands, but also established several

14

clear exceptions to the general rule. Id. at 565-566.8 The

JBC petition is premature.

Until petitioners have exhausted the remedies

available to them in the Tribal Court sys-

tem, ... , it would be premature for a federal

court to consider any relief. Whether the federal

action should be dismissed, or merely held in

abeyance pending the development of further

Tribal Court proceedings, is a question that

should be addressed in the first instance by a

District Court.

National Farmers, at 857.

8 Montana predated the development of the Tribal exhaus-

tion doctrine, which was, therefore, not an issue. Unlike the

present case, the Montana Court was asked to decide the chal-

lenge to tribal jurisdiction over non-Indians on fee lands after an

extensive trial that produced large volumes of evidence, find-

ings of fact, and conclusions of law, followed by appellate pro-

ceedings before the Ninth Circuit.

The JBC also asserts the pending case of State of South

Dakota v. Bourland, No. 91-2051 (U.S. Sup. Ct. argued March 2,

1993) is germane. They are wrong for two reasons. First, exhaus-

tion of Tribal remedies was not an issue in Bourland, but is the

central issue in this case. Second, the focus of Bourland is the

effect of two Congressional acts, specifically limited to the

Cheyenne River Sioux Reservation, on tribal regulatory author-

ity over fish and game on Tribal lands taken by the federal

government for flood control purposes. South Dakota v. Bour-

land, 949 F.2d 984 (8th Cir. 1991).

15

CONCLUSION

For the foregoing reasons, the Confederated Salish

and Kootenai Tribes respectfully request that the Petition

for Writ of Certiorari to the United States Court of

Appeals from the Ninth Circuit be denied.

Dated this 27th day of May, 1993.

Respectfully submitted,

JOHN B. CARTER

The Confederated Salish and

Kootenai Tribes

Tribal Legal Department

P.O. Box 278

Pablo, Montana 59855

(406) 675-2700

Attorney for the Tribes

App. 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROSS MIDDLEMIST, et al., ) No. 93-35315

Maintiffe.. é )

Plaintiffs Appellants, ) DC# CV-91-155-CCL

VS. ) Montana (Missoula)

THE SECRETARY OF —

THE INTERIOR, ) ORDER

Bruce Babbitt, et al., =

) (Filed May 17, 1993)

Defendants-Appellees. )

)

Before: WIGGINS and THOMPSON, Circuit Judges

Appelles’ motion for summary affirmance is denied.

See United States v. Harris, 846 F.2d 50 (9th Cir. 1988)

(motion for summary affirmance should be made only

after appellants’ opening brief has been filed). Appel-

lants’ motion for stay of appellate proceedings is denied

The April 2, 1993 briefing schedule remains in effect

(seal)

App. 2

Ordinance No. 87-A

AQUATIC LANPS CONSERVATION ORDINANCE

BE IT ENACTED BY THE COUNCIL OF THE CONFED-

ERATED SALISH AND KOOTENAI TRIBES that:

PART I

SHORT TITLE, AUTHORITY

Section 1. Short Title.

This Ordinance may be referred to as the Aquatic

Lands Conservation Ordinance or “ALCO”.

Section 2. Authority.

This Ordinance is enacted pursuant to the Constitu-

tion of the Confederated Salish and Kootenai Tribes of the

Flathead Reservation, Article VI, Section 1, Subsections

(a), (I), (n), (t) and (u), approved by the Secretary of the

Interior, October 28, 1935.

PART II

FINDINGS AND POLICY

Section 1. Findings.

The Tribal Council finds that:

a. The self-governing capabilities, political integrity,

health and welfare, and economic security of the Tribes

will be protected and enhanced by Tribal governmental

control, regulation and protection of aquatic lands which

are critical for the perpetuation of Reservation fisheries

App. 3

and wildlife, the preservation of Reservation water qual-

ity, and the maintenance of the health, safety and welfare

of Tribal members and thereby of all persons residing on

the Reservation.

b. The Treaty of Hellgate July 16, 1855 (12 Stat. 975)

reserved to the Confederated Salish and Kootenai Tribes

(hereinafter the “Tribes”) the exclusive right to hunt and

take fish within the exterior boundaries of the Flathead

Reservation. The exclusive Treaty right to hunt and fish

within the Reservation confers upon the Tribes the right,

duty and responsibility to protect those Tribal interests.

c. Reservation population growth and increased

unregulated utilization of aquatic lands are causing

adverse impacts upon the quality of Reservation waters,

fisheries and wildlife habitat, and therefore, there exists

an immediate need to regulate and manage the use of

aquatic lands to preserve and protect them.

Section 2. Policy.

It is the policy of the Tribal Council to prevent the

degradation of Reservation waters and aquatic lands by

regulating construction or installation of projects upon

aquatic lands whenever such project may cause erosion,

sedimentation, or other distrubances [sic] adversely

affecting the quality of Reservation waters and aquatic

lands.

App. 4

PART III

GENERAL PROVISIONS

Section 1. Definitions.

For the purposes of this Ordinance the following

definitions will apply:

a.

“Adjacent” means bordering, contiguous or neighbor-

ing. Wetlands separated from other Reservation

waters by man-made dikes or barriers, natural river

berms and the like are “adjacent wetlands.”

“Administrator” means the chief executive officer of

the Shoreline Protection Office of the Confederated

Salish and Kootenai Tribes.

“Aquatic Lands” means all land below the mean

annual high water mark of a Reservation water body.

“Board” means the Shoreline Protection Board of the

Confederated Salish and Kootenai Tribes.

“Discharge of dredged material” means any addition

or placement of dredged materials into Reservation

waters or on aquatic lands whether through direct

placement, or by secondary means such as run-off,

Slumping or overflow from a disposal site.

“Discharge of fill material” means any addition or

placement of fill materials into Reservation waters or

onto aquatic lands.

“Dredged material” means material that is excavated,

displaced, or removed from aquatic lands.

“Fill material” means any material used for the pur-

pose of replacing Reservation waters with dry land or

dredged material.

“Mean Annual High Water Mark” means that line on

the shore of Reservation waters established by the

App. 5

fluctuations of water and indicated by physical char-

acteristics such as a clear, naturally occurring line

impressed on the bank; shelving changes in the char-

acter of soil; paucity or lack of terrestrial vegetation;

or the presence of water borne litter or debris.

“Office” means the Shoreline Protection Office of the

Confederated Salish and Kootenai Tribes.

“Person” means any individual, partnership, associa-

tion, corporation, and any other entity composed of

individuals, and governmental entities.

“Project” means a physical alteration of aquatic lands,

wetlands, or Reservation waters, not otherwise

exempted by this Ordinance or implementing regula-

tions, which has the potential to cause a material

change in the condition of such lands or water in

contravention of the policy of this Ordinance, and

includes but is not limited to dredging, filling, unre-

gulated access detrimental to aquatic lands, irrigation

diversions and returns, drainage ditches and con-

struction on aquatic lands, and furthermore, includes

maintenance or repair involving any of the above

activities.

. “Reservation waters” means:

(1) all naturally occurring bodies of water within the

exterior boundaries of the Reservation regardless of

alternation by man, including but not limited to lakes,

rivers, streams (including intermittent streams), mud-

flats, wetlands, sloughs, potholes and ponds from

which fish and wildlife are or could be taken, but

does not include wholely manmade water bodies.

(2) tributaries of waters identified in subpart (1)

above;

(3) wetlands adjacent to Reservation waters.

App. 6

n. “Responsible perosn” means any person who under-

takes a project or causes a project to be undertaken on

aquatic lands.

o. “Tribal Council” means the duly elected governing

body of the Confederated Salish and Kootenai Tribes

of the Flathead Reservation, Montana.

p. “Wetlands” means those areas that are inundated or

saturated by surface or groundwater at a frequency

and duration sufficient to support, and that under

normal circumstances do support, a prevalence of

vegetation typically adapted for life in saturated soil

conditions. Wetlands generally include but are not

limited to swamps, marshes, bogs and similar areas.

Section 2. Administration.

The Shoreline Protection Board of the Tribes, as cre-

ated by Ordinance 64A (Revised), shall have the powers

and duties associated with implementation of this Ordi-

nance and any regulations promulgated hereunder. The

rights, responsibilities and immunities of the Board, and

the Tribal Council, as specified in Ordinance 64A

(Revised) remain unchanged.

Section 3. Water Rights.

This Ordinance shall not be construed to diminish or

divest any existing water uses established in accord with

applicable law.

App. 7

Section 4. Regulations

The Tribal Council may promulgate regulations to

implement the provisions of this Ordinance upon recom-

mendation of the Board. Regulations shall be promul-

gated pursuant to procedures contained in the Tribal

Administrative Procedures Ordinance

PART IV

PERMITS

Section 1. Permit Required.

a. No work may commence on a project until the

responsible person has been issued a permit for the pro-

ject.

b. All work on a project shall be conducted pur-

suant to the terms and conditions of the project permit.

c. A permit shall be prominently displayed at the

project site for the duration of construction activities and

for two weeks thereafter.

Section 2. Permit Fees.

An application for a permit shall be accompanied by

payment of a non-refundable fee to cover some costs

associated with permit issuance and administration. The

amount of the fee shall be fixed from time to time by

regulation, shall take into account the scope of the pro-

posal, and shall be reasonable.

App. 8

Section 3. Application for Permit.

a. Any person who intends to undertake a project

shall present a written application for the project to the

Office.

b. The application shall be on a form provided by

the Office and shall include, but is not limited to, a

location map, a specific description of the proposed pro-

ject, the purpose and need for the project, practical alter-

native methods of implementing the project, and a plan

specifying the type, quantity and source of materials to

be used, means of access to the project area, the length of

time necessary to complete the project, and the name,

address and telephone number of the responsible person.

Section 4. Evaluation of Proposed Projects.

a. The Administrator of the Office shall review an

application for a permit for adequacy and for project

technical feasibility, shall determine if the proposal con-

stitutes a project, and may make such on-site investiga-

tions as are necessary to perform these duties.

b. If the Administrator determines that the proposal

is not a project the Administrator shall so state in a

written notice to the person responsible for the project

within 14 days of receipt of the application.

c. If the Administrator determines that the proposal

is for a project, the Administrator shall bring the applica-

tion before the Board at the next regularly scheduled

Board meeting or may call a special Board meeting if

circumstances so require.

App. 9

d. The Board shall review all applications. The

Board shall either approve, approve with modifications

or alternatives, or disapprove an application and shall

state its decision in writing to the responsible person.

e. Upon approval or upon approval with modifica-

tion or alternatives, the Administrator shall forward to

the responsible person a permit which shall relate to the

plan for the project approved by the Board, and which

may include provisions for mitigation of adverse impacts

associated with the project.

Section 5. Emergencies.

a. The provisions of this Section do not apply to

emergency actions which are necessary to safeguard life

or property during periods of immediate and substantial

endangerment to life or property. The responsible person

under this Section shall notify the Office in writing of the

emergency undertaking within fifteen (15) days of com-

mencement of such undertaking.

b. The Administrator shall make an on-site inspec-

tion of an action and cause a written report of such

observations to be filed in with the Office and a copy

shall be sent to the responsible person. The report shall

include:

(1) a finding as to whether or not an emergency

situation existed at the time the action was taken;

(2) a finding as to whether or not the action consti-

tutes a project; and

ct

App. 10

(3) if the findings required in subparagraphs (1) and

(2) above are affirmative, and a permanent solution is

feasible, recommend in writing that the responsible per-

son put the solution into effect within a specified reason-

able amount of time pursuant to a duly issued permit.

Failure of the responsible person to put the solution into

effect is not a violation of this Section unless a substan-

tially similar action arises from such failure to act.

Section 6. Modification or Revocation of Permit.

The Board may, upon a finding of non-compliance or

upon a finding of necessity, either modify or revoke a

permit after the responsible person has been afforded

notice and an opportunity to be heard.

PART VI

ENFORCEMENT

Section 1. Inspection.

The Administrator or his duly authorized ageny [sic]

may inspect any project for the purpose of determining

compliance with this Ordinance, its implementing regula-

tions, or permit terms and conditions.

Section 2. Projects in Non-compliance.

a. Except for emergency actions, a project engaged

in by any person without a valid permit or in non-

compliance with the terms of a valid permit shall be

subject to proceedings brought by the Administrator for

immediate abatement of a public nuisance.

App. 11

b. Upona finding that a non-complying project con-

stitutes a public nuisance, the Tribal Court may penalize

the responsible person in an amount not less than twenty

five (25) dollars or more than five hundred (500) dollars

for each day that the responsible person continues to

engage in or maintains a non-conforming project at, in, or

on aquatic lands.

c. In addition to any financial penalty imposed, the

responsible person may be ordered by the Court to

restore at his own expense the damaged lands and waters

within such time as the Court may deem reasonable.

PART VI [sic]

REVIEW, SEVERABILITY, EFFECTIVE DATE

Section 1. Administrative Appeal of Board Action.

A person aggrieved by a final action of the Adminis-

trator or the Board may seek review of such action pur-

Suant to procedures contained in the Tribal

Administrative Procedures Ordinance, Ordinance 86A.

For purposes of administrative review, a decision of the

Board shall constitute final agency action, appealable to

an administrative law judge.

Section 2. Judicial Review.

a. The Tribal Court of the Confederated Salish and

Kootenai Tribe shall have jurisdiction to hear and decide

all causes arising under this Ordinance and implementing

regulations and to hear appeals from agency actions upon

exhaustion of administrative remedies.

App. 12

b. The decision of the Tribal Court shall be final.

Section 3. Severability.

If any provision of this Ordinance or the applicability

thereof is held invalid by any court of competent jurisdic-

tion, the remainder of this Ordinance shall not be affected

thereby.

Section 4. Effective Date.

This Ordinance shall become effective, pursuant to

the terms of Article VI, Section 2 of the Tribes’ Constitu-

tion, upon promulgation of implementing regulations by

the Tribes.

CERTIFICATION

The foregoing ordinance was adopted by the Tribal

Council on December 13, 1985, with a vote of 9 for, 0

opposed, and 0 not voting, pursuant to the authority

vested in it by Article VI, Sections 1(a), (1), (n), (t) and (u)

of the Tribes’ Constitution and Bylaws; said Constitution

adopted and approved under Section 16 of the Act of

June 18, 1934, (48 Stat. 984), as amended.

/s/ James J. Steele

Vice-Chairman,

Tribal Council

App. 13

ATTEST:

/s/ Illegible

Executive Secretary

APPROVAL:

APRPOVED:

Title: /s/ Donovan R. Boldt

Bureau of Indian Affairs SUPERINTENDENT

Date:

Received Office of

Superintendent

App. 14

Treaty of Hellgate

July 16, 1855 (12 Stat. 975)

Article 3.

. . The exclusive right of taking fish in all the

streams running through or bordering said reservation is

further secured to said Indians; as also the right of taking

fish at all usual and accustomed places, in common with

citizens of the Territory, and of erecting temporary build-

ings for curing; together with the privilege of hunting,

gathering roots and berries, and pasturing their horses

and cattle upon open and unclaimed land.