# Opposition Brief — Middlemist v. Babbitt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 968

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2439%3A2. Public record. Not legal advice.