Opposition Brief — Tribal Governing Board of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Thomas

Supreme Court brief2000

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S

“ FILED

we the

No. 99-1520 MAY 1.2 onn

Inthe

Supreme Court of the United States

+ l

TRIBAL GOVERNING BOARD OF THE

LAC COURTE OREILLES BAND

OF LAKE SUPERIOR CHIPPEWA INDIANS,

Petitioner,

SANDRA THOMAS, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

DUXSTAD, VALE, BESTUL & GARTZKE, S.C.

Tracey Lee Schwalbe

Counsel of Record

108 Fifth Avenue; P.O. Box 267

New Glarus, WI 53574

(608) 527-5266

Counsel for Respondents

SOR Et tae

QUESTIONS PRESENTED

l. When a Tribe’s constitutional amendment process under

the Indian Reorganization Act is pursued by petition directly

from the tribal membership, and the official Spokesperson for

the Petitioners brings an action to enforce Federal approval of

the amendments ratified by the tribal membership in a Secretarial

election, is a tribal council necessary under Fed. R. Civ. P.

19(a), such that the action to complete the petitioners’

amendment process cannot proceed without its joinder?

2. Is the tribal council necessary to claims under the IRA,

the APA, and the United States Constitution brought by the

Spokesperson for the Petitioners against the BIA for failing to

follow statutory and constitutional laws in the conduct of a

Federal Secretarial election?

iF If the tribal council is necessary and the council members

are joined under Ex parte Young for acting outside their

authority and interfering with plaintiffs’ voting rights in a federal

election, is the tribal council itself indispensable?

4. If the tribal council is indispensable, has its immunity

been abrogated by Congress in the IRA for actions to enforce

approval of Secretarial elections such that it may be joined to

complete the amendment process?

LIST OF PARTIES

Plaintiffs are members of the Lac Courte Oreilles Band

of Lake Superior Chippewa Indians [LCO]. Sandra Thomas is

the official Spokesperson, as defined in 25 C.F.R. §82.1(0) [RA

3], for the petitioners who sought to amend their tribal

constitution. She lives on the LCO reservation. Robert Sander

is an LCO elder who lives about 20 miles off the LCO

reservation. Mike Nalewaja is an LCO member who lives about

60 miles off the LCO reservation. Sander and Nalewaja lost

their federal voting rights in Secretarial elections as a result of

a Bureau of Indian Affairs agency decision. Tina Thomas is the

daughter of Sandra Thomas. She lives on the LCO reservation

and is eligible for membership under an amendment ratified by

the tribal members but overturned by the Bureau of Indian

Affairs.

Original Defendants are the United States, the

Department of Interior and the BIA, Secretary of Interior Bruce

Babbitt, and Assistant Secretaries of Interior: Dr. Eddie F.

Brown, Ada E. Deer, and Kevin Gover, the current Assistant

Secretary of Interior for Indian Affairs (noted on appeal). Dr.

Brown also was sued in his individual capacity. Deputy

Commissioner of Indian Affairs David Matheson was sued in his

official and individual capacities. Respondents do not know

who has replaced Mr. Matheson.

Defendants/Petitioner: Plaintiffs joined the Governing

Board [TGB] and its members only when the district court held

they were necessary to the action. "Joined defendants" included

the council members in their official and individual capacities:

Eugene Begay, Donald E. Carley, Constance Corbine, Margaret

Diamond, Gaiashkibos, Michael Isham, Jr., and Alfred Trepania.

On information and belief, Eugene Begay has been replaced by

Art Tainter. The TGB petitioned this Court for the writ.

TABLE OF CONTENTS

SL SaEe PUY AE OTD 6 5 6d ou ook baka deca’ i

tN oe ia ne Fs eee 1 hhh ee see wks ii

PUTA SMITE ONE 0 iid bres cecbebvcuere ill

Ree I PUAP EE bok nb cha cidedececvecsos Vv

SINO N ie cp koe Visio seaside dbacesiues l

IG ig as i i Gaia Win Sw ee ee ohn a l

LAWS INVOLVED IN THE CASE ...........c0c00. l

WAM emeeee SOP SPURS GCARE 000s cas ccesecuccnas 2

Pe I 0 tivo 5s shed Chek eS 2

Proceedings Below...... fcceeeek caw ker tweet 1]

REASONS FOR DENYING THE WRIT ............. 17

I. THE QUESTION PRESENTED BY

THE PETITIONER MISSTATES THE

PARTIES AND THE SUBSTANTIVE

RE EO EEE LAWOULL, cocks cea c cece. 17

ili

Il. THERE IS NO REASON TO OVERTURN

THE SEVENTH CIRCUIT ..... Leave eee menee 21

A. The Substance of the Amendments

Ratified by the LCO People in

the 1992 Election is Not the Issue

Sg gS ee a ry ee re es 23

B. The Seventh Circuit Decision

Does Not Conflict with Current Law. .... 26

of The Seventh Circuit Did Not

Impose an Additional Criterion into

the Rule 19 Analysis; Rather, it Simply

Rebuked the TGB for its Actions

Outside the Federal Law. .............. 28

&3 SSE. 6 | Re ore rer ee ree 30

RESPUINIIEIN TS APPEPUMU cic cc ch aiccesvedies RA 1

TABLE OF AUTHORITIES

Cases

Bivens v. Six Unknown Named A gents of Federal

Bureau of Narcotics, 403 U.S. 388 PRRPEe 6 kaos 13

Cheyenne River Sioux Tribe vy. Andrus,

566 F.2d 1085 (8" Cir. 1977), cert. den.

S29 U8. SIOCISM) «6. 5. 18, 19, 20, RA 3

Coyote Valley Band of Pomo Indians v. US ;

639 F. Supp. 165 (E.D. Cal. ge. TEPER UTES oe 18

Ex parte Young, 209 U.S. 123 Pewee os ctaaS 14, 15, 26

Florida v. Seminole Tribe of Florida,

181 F.3d 1237 (11" Cir. 1999)... .... 22, 26, 27, 28

In re Sah Quah, 31 F. 327 (D. Alaska eR 66a 19

McCulloch v. Maryland, 17 U.S. (Wheat.) 316 (1816) ... 28

Makah Indian Tribe v. Verity,

Peer eee Se, Si 30

Morton v. Mancari, 417 U.S. 535 Garre? (vise ears. 24

Navajo Nation v. U.S.,__ Fed. Cl. ne

2000 WL 141233 (Fed. 2/4/00) ............... 22

Rice v. Cayetano, _ US. __» 120 S.Ct. 1044 (2000) . 20, 24

Santa Clara Pueblo y. Martinez,

Ge Sh NENT oc ee ee a 19, 24, 27

Seminole Tribe of Florida v. Florida,

StF UB OG Ce 6s ee 22, 26, 27, 28

Shakopee Mdewakanton Sioux (Dakota) Community

v. Babbitt, 107 F.3d 667 (8" Cir. 1997) ...... 16, 18

Stafford v. Briggs, 444 U.S. 527 (1980) .............. 13

Thomas v. U.S., 189 F.3d 662

‘Ce Pare 1, 4, 9, 14, 15, 16, 18, 25, 29

Thompson vy. Area Director, 17 IBIA 39 (1989) ........ 20

Wheeler v. Swimmer, 835 F.2d 259 (10" Cir. 1987) ..... 20

Wisconsin v. Baker, 698 F.2d 1323 (7" Cir. 1983) ...... 14

Wounded Head v. Tribal Council of the Oglala

Sioux Tribe, 507 F. 2d 1079 (8" Cir. 1975) ........ 18, 20

Zarr v. Barlow, 800 F.2d 1484 (9" Cir. 1986) .......... 24

United States Constitution

Fifth AmMINIOEE 0s ee caseravees 1,12, 13,14, RA5

Ninth Amst: 0.55 ces caeahaes 1, 12, 13, 14, RA 5

Eleventh Amendment ........cescsseees eye eS 27, 28

Thistossth AMONG ..w ci vcceeekibavin eee 19

Fifteenth Amendment ......... 1, 12, 13, 14, 22,24, RA 5

Twenty-Sixth Amendment ....... 1, 7, 12, 13, 14, 20, RA 5

PMMA S63 he CENS EERE PL 12

ie | PP Pee ere Peirce e rte mere 1,12,RA4

eek ae Pe pore oa Sere er 1, 3, 12, RA 1-2

ot Se PRP 85050000 0601s ee »

el | eerie meee r rr to 2

Pe st OTD is odds Sao eke bes LS 4,8, 22

et A, GOTO oo oo ce od vk ccc ccdiness 1, 12, 14, 27

PR ENEN 65 i565 a ciate ae 27

Se es GRIGEY S0A DNR 0 eA 12

Oe NI 55 os cg ae aS eee es 12

MAI GME 9s 64s 6s hed ie ee a 13

Meee GP i ee 13

lh atig nis cua CET OE ORES Ee CELT te ene eS 13

Oe RINE i ildsbincieadecebieds (05 bis 14

detest i gre ayaa 1, 14,15,RA5

Vii

Federal Rules of Civil Procedure

at Pe te reece 17, 22, 28, 29, 30

ee ee PSP MEVER ere eer res ]

Code of Federal Re ions

_—

MEER i ee L$; 3

UR Be ee, a i ee 18, 19, RA 3

TOUR ee ea es 2,29, RA 3

25 C.F.R. §81.5(b) ...... Cr rer iy: rer ot 2, RA 3

CURL ia eee 2,RA3

COE MD, So Gi as OR 3

COR SN oe 3

BOURNE ois 4

‘Brit Mae Ss 1,21

OEE M168 ic ye 3,RA3

Secondary Authorities |

Felix Cohen, Handbook of Federal Indian Law

CPE OBS. 5 na es 19, 20

Joranko and Van Norman, Indian Self-Determination

at Bay: Secretarial Authority to Disapprove

Tribal Constitutional Amendments, 29 Gonz.

£, : BU A wet Eee 25

Vili

OPINIONS BELOW

The Seventh Circuit opinion is reported at Thomas, et al.

v. United States, et al., 189 F. 3d 662 (7" Cir. 1999). The slip

opinion is in the Petitioner’s Appendix at A-1. The Seventh

Circuit made two corrections to the slip opinion prior to

printing. It changed the incorrect reference from a "September

1" 1992 election on page A-10, to "February 1" election. It

also changed the reference from "Id." at the end of the first full

page on the slip opinion, page A-3, to 25 U.S.C. § 476(d)(2).

Thomas, 189 F.3d at 665, 668.

Petitioners’ Appendix [A] includes the decisions and

judgment of the District Court for the Western District of

Wisconsin. The BIA decision, also known as the "Matheson

decision," is the federal agency decision that is the subject of the

lawsuit. It is reprinted at A-59 to A-72.

JURISDICTION

Respondents do not object to the Petitioner’s statement,

except to the extent it asserts review is appropriate under

Supreme Court Rule 10(a) and (c).

LAWS INVOLVED IN THE CASE

The following are references to the federal laws, relevant

portions of which are included in Respondents’ Appendix [RA]:

25 U.S.C. §476,

42 U.S.C. §1985(3),

5 U.S.C. §706,

25 C.F.R. Parts 81 and 82,

United States Constitution: Fifth, Ninth, Fifteenth

and Twenty-Sixth Amendments.

STATEMENT OF THE CASE

Respondents offer the following as the correct account

of the case:

Factual Background

In 1966, members of the Lac Courte Oreilles [LCO]

Band adopted a tribal constitution and bylaws pursuant to the

Indian Reorganization Act [IRA], "in order to secure the

advantages of local self-government for [them]selves and [their]

children." [A. 73] The constitution guaranteed equal political

rights to all tribal members, and provided that any amendments

to it may be initiated either by request from the Governing

Board [TGB] or directly by petition from the members. [R. 28

(Joint Proposed Stipulated Facts), 425, 29] The IRA and the

implementing regulations were structured to recognize either

such request as a valid request from a Tribe to amend its

constitution. 25 U.S.C. §476(a), (c)(1)(B), and 25 C.F.R.

§81.5(a), (b), (d). [RA 1-3]

In the late 1980s, several LCO members began to

consider possible amendments to their constitution to provide

for “separation of powers, an independent judiciary,

governmental checks and balances, protection of civil rignts, and

a new definition of the tribal membership criteria. [R. 28, 937-

39; R. 22, §7] Members held meetings to discuss suggested

amendments. [R. 28, §39] In 1988, Sandra Thomas was

named chairperson of the committee formed to explore the

constitutional amendment issues and process. [R. 28, 437]

The committee drafted and circulated petitions with proposed

amendments to the constitution. [R. 28, 937-40] These

petitions were submitted directly to the BIA by Sandy Thomas

in 1991, bypassing the TGB. [R. 28, 939-41] No one

challenged the validity of any signature on the petitions. [R. 28,

42] The BIA determined that some petitions were "stale," and

the BIA refused to act on them. [R. 28, 144]

The BIA accepted two of the petitions as valid. [R. 28,

145] Sandy Thomas was named the official "Spokesman [sic]

for the Petitioners" as defined in 25 C.F ‘R. §82.1(0) [R. 28,

143; RA 3], and the federal Secretarial election process under

the IRA, 25 U.S.C. §476, was begun. [R. 28, 946; RA 1-2] The

BIA sent TGB Chairman Gaiashkibos and Sandy Thomas copies

of its internal memo to all Area Directors stating the time limits

binding on the BIA in Secretarial elections, including that the

Secretary must approve or disapprove amendments on "Day

135" after the filing of petitions, [R. 28, 948, 22-23] The

registered voter list was posted and no one objected to anyone’s

qualification or eligibility to vote. [R. 28, 953]

On February 1, 1992, the Secretary of the Interior, as

authorized by Congress in the IRA, conducted a federal

Secretarial election to ratify the two proposed amendments to

the LCO constitution. [R. 28, 58] Pursuant to 25 C.F.R.

§81.6(a)(1), all adult tribal members were allowed to register to

vote, and the members approved the two amendments.| [R. 28,

57-59, 63]

'The Secretarial election had the highest voter turn out in LCO

history. [R.22, 910] Of 3,659 adult tribal members sent election packets,

1,130 registered and became eligible to vote. 25 C.F.R. §81.6(d). [R. 28,

52] Of those registered and eligible to vote, 650, or 57.5%, actually

voted in the election. [R. 28, 459] Amendment A, which changed the

definition of eligibility for tribal membership, was approved by the LCO

People in a vote of 542 to 105; Amendment B, which changed the length

of term of office of TGB members, was approved by a vote of 373 to 274.

[R. 28, 963]

The Great Lakes Agency transmitted the election results

to the Minneapolis Area Office. Two challenges to the election

filed within the 3-day challenge period under 25 C.F.R. §81.22

were denied. [R. 28, 466-71, 76-78] On February 10, 1992, the

Acting Area Director formally approved the amendments in

writing and returned the approved amendments to LCO.’ [R. 28,

72; A. 81-85] Notice of the approved amendments was sent by

letter dated February 13, 1992, to TGB Chairman Gaiashkibos

and Sandy Thomas. [R. 28, 975] The Secretary did not

disapprove the election within the statutory 45-day time limit

allowed to review the election. [R. 28, 981] Copies of the

amended constitution were printed by the Tribe. [R. 28, 482]

When Sandy Thomas and others approached the TGB

about how the amendments would be implemented, they were

rebuffed. [R. 22,411] On April 16, 1992, Gaiashkibos declared

the federal election "null and void" and notified the BIA that he

refused to implement the approved amendments. He and some

of the members of the tribal council then passed a resolution to

"not recognize" the two amendments on April 18. [A. 44]

As the Seventh Circuit found, on April 24, 1992, "well

beyond the 3-day time period provided by 25 C.F.R. §81.22 to

challenge a Secretarial election, and a month or more after the

end of the 45-day period within which the Secretary had to

approve or disapprove the election under 25 U.S.C. §

476(d)(1)), [Gaiashkibos] sent letters to Dr. Eddie F. Brown,

then-Assistant Secretary of the Interior for Indian Affairs, asking

that the decision to approve the election results be reviewed and

reversed." [A. 3] Thomas, 189 F.2d at 665. [R. 28, 983-85]

Sandy Thomas wrote to Dr. Brown, seeking his help on behalf

? Approval authority for Secretaria! elections has been delegated

by the Secretary to the Area Directors since the mid-1970s. [R. 28, 417]

of the LCO People in getting the TGB to follow the approved

amendments, and pointing out that the time to object to the

election had passed. [R. 28, 984, 86; A. 44

The Great Lakes Agency office sent Gaiashkibos’ April

24 letter to the Area Office,’ but noted that, "It is the position

of this office that this is not a valid issue because the timeframe

for contesting the results in 25 C.F.R. Part 81, is very specific,

at best the issue is moot." [R. 28, 987] The letter from

Gaiashkibos was dated 83 days after the F ebruary | election. [R.

22, 942]

In June 1992, at the direction of Gaiashkibos, tribal

member Eugene Begay met with Ronal Eden, Director of the

Office of Tribal Services, Pat Simmons and Robert Delaware in

Washington, D.C., to discuss the election and "the problem at

Lac Courte Oreilles concerning lineal descendancy." [R. 28,

189, 91; See also A. 44] Begay sent a follow-up letter to Mr.

Eden in August 1992. [R. 28, 991, 111] This meeting was ex

parte. Sandy Thomas was not notified of the meeting. [R. 22,

{i2]

The petition referred to by the TGB [Pet. p. 3] was submitted to

the BIA by letter from Gaiashkibos on May 2, 1992, and received by the

BIA on May 5, 1992, after the TGB had declared the election "null and

void,” after Gaiashkibos’ April 24" letter to Dr. Brown seeking to

overturn the election, and after the deadline for Secretarial review of the

election had expired. [A. 59] The petitioners, numbering fewer than the

losing voters on one of the amendments, asked TGB members not to

recognize the Secretarial election because they felt everyone had not

been able to vote. However, some of those who signed the petition later

lost their right to vote under the Matheson decision.

On October 7, 1992, David Matheson, as Acting

Assistant Secretary for Indian Affairs, revoked approval of the

amendments. [R. 28, 998] The decision was signed by

Matheson, but was authored primarily by those who had met

with Eugene Begay, i.e., Patricia Simmons and reviewed by

Robert Delaware and Scott Keep, Assistant Solicitor, [R. 28,

q92, 95]

Matheson did not overturn the election for the reasons

urged by Gaiashkibos in his April 24 letter. [R. 28, 996]

Matheson said, "Based on our review of the factors you used to

justify declaring the election null and void, we find no evidence

to warrant or justify such action on your part. ....No authority

exists whereby a tribe may declare a Secretarial election void."

[A. 66] Matheson instead raised a new issue as a basis for

overturning the election. [R. 28, 992, 95]

Matheson acknowledged that Secretarial elections are

Federal elections, as opposed to tribal elections [A. 66; R. 28,

{| 96], and ruled that Gaiashkibos’ claim that not enough

members voted was incorrect. [A. 64-65] He also pointed out

that since this was a federal Secretarial election conducted by

‘the Secretary of Interior, as opposed to an internal tribal

election, federal regulations governed the election. [A. 66]

Though Matheson rejected the challenges raised by

Gaiashkibos, he stated that he "looked beyond" those issues and

determined that the election was flawed. [R. 28, 991; A. 67]

Matheson cited language in the IRA that stated that amendment

elections had to be conducted "in the same manner" as elections

to adopt a tribal constitution.’ [R. 28, 9100, 103; A. 67] He

‘The federal defendants admitted below that the language of the

IRA on which Matheson relied, that amendment elections must be

reasoned that an amendment election could only be conducted

"in the same manner" if the election was limited to the same

voters who were allowed to vote when the constitution was

adopted. [R. 28, 4100, 103; A. 67] Returning to 1966 when

LCO first adopted its IRA constitution, he ruled that in future

federal Secretarial elections at LCO, only that "class" of voters

who voted in 1966 would be allowed to vote.’ [R. 28, 9104; A -

67-79]

According to Matheson, only those tribal members who

reside on-reservation, and those tribal members living off-

reservation if they have /% degree LCO blood quantum, will be

allowed to vote in federal elections to amend the LCO

constitution.° [R. 28, 9107; A. 69] This decision significantly

conducted "in the same manner" as elections to adopt the constitution,

was deleted from the IRA in 1988 - four years before the 1992 election.

[R. 28, $103] The IRA now provides that adult tribal members must

: Fatify amendments. There is no requirement to conduct elections "in the

same manner" as original elections. 25 U.S.C. §476(a); RA 1.

*The 1966 election also had a 21-year old voter requirement.

Plaintiffs’ claim that trying to turn the clock back to 1966 violates the

Twenty-Sixth Amendment as well. [A. 68, R. 2, 64] The federal

defendants later conceded that the Twenty-Sixth Amendment binds the

BIA in Secretarial elections. [See, e.g., R. 34, p. 18]

*In 1966, there was no technical definition of who was an LCO

tribal member. The technical definition came with the adoption of the

IRA constitution and changed over the years from lineal descendancy, to

1/8, to 1/4, and then back to lineal descendancy in 1992. [E.g., R. 28,

427-28] Plaintiffs liken Matheson’s turning the clock back to 1966 to

limiting United States citizen voters to whomever was considered a

citizen in 1789 (e.g,, 21-year old white, propertied males) though the

definition of who was a citizen had changed. [R. 42, 415]

changed the eligible voters for Secretarial elections at LCO.’ In

all prior amendment elections at LCO since the constitution was

adopted, all adult tribal members had been eligible to vote

regardless of blood quantum. Matheson _ effectively

disenfranchised about one-half of the adult tribal voters,

including those who had voted in every prior amendment

election, such as plaintiff Bob Sander. [R. 22, 960]

Matheson made no mention of the statutory 45-day time

limit placed on the Secretary by Congress to review and approve

or disapprove an election. He cited no authority by which he

could act beyond the 45-day time limit of 25 U.S.C.

§476(d)(1).* He held that the petitions submitted to the BIA

were valid petitions and the Secretary was under a

Congressional mandate to hold the election. [R. 28, 499; A. 70]

He stated that he would direct the Area Director to hold the

replacement election "in the near future." [R. 28, J99; A. 70]

However, no replacement election has been held in eight years.

Matheson did not find that the amendments themselves

violated the law and the federal defendants admit that they do

not violate applicable laws. [R. 28, 4108] Matheson stated,

however, that he "shared [Gaiashkibos’] concern about

eliminating the blood quantum in favor of mere descendancy."

[A. 70] He said that Indian tribes "would do well to heed the

danger and avoid it entirely by adopting realistic membership."

’These adult tribal members still are allowed to vote in tribal

elections for tribal officials, but they are disenfranchised from voting to

amend or even petitioning to amend their own constitution in the federal

Secretarial election process under the IRA. [E.g., R. 28, 914-15]

*The 45-day time limit on the Secretary to review an election

was adopted by Congress in 1988 amendments to the IRA. [R. 28, $79-

81] Matheson’s letter was dated 249 days after the election. [R. 22, $43]

[R. 28, 9109; A. 71]

Matheson rejected the issues raised by Gaiashkibos, but

Gaiashkibos never appealed the decision. [A. 1-1 1] Thomas, at

649. Instead, on October 20, 1992, Eugene Begay wrote to

"Dear Dave" stating he concurred "with [Matheson's] analysis

of the problems of descendancy membership in Tribes." [R. 28,

4111] Begay wrote that he would remind Gaiashkibos to tollow

up on the matter of the new Secretarial election and thanked

Matheson for accommodating Gaiashkibos and himself with

Matheson's presence whenever they were in D.C.° [R. 28, 9111]

Sandy Thomas immediately appealed the decision

pursuant to the Administrative Procedures Act [APA] in

November 1992. [R. 22, 913; R. 28, 9113-114; A. 45] Among

other things, she pointed out that the time to review the election

had expired, and that the decision had illegally disenfranchised

1,800 adult LCO tribal members without due process. [R. 22,

413] The federal defendants admitted that they received the

appeal sent by Sandy Thomas, but they said they lost it. [R. 28,

4113]

Sandy Thomas then sought to educate the TGB about

the Matheson decision. As a practical matter, Sandy Thomas

pointed out that blood quantum information is confidential and

it is not possible to tell from someone’s address if they live on

or off-reservation, so the voter criteria imposed by Matheson

essentially left the LCO People with a secret voter list. [E.g., R.

28, $106; R. 22, 93, 14]

"In 1992, Gaiashkibos was the President of the National

Congress of American Indians. [R. 22, $47]

On at least four occasions between 1992 and 1995, the

BIA reminded Gaiashkibos that the replacement election

mandated by Congress would need to be held soon. [R. 28, 199,

112, 116, 117] In May 1995, the Superintendent of the Great

Lakes Agency wrote to Washington for further direction on

holding the replacement election. He wrote that he had again

reviewed the petitions and sufficient signatories met the new

Matheson voter criteria. [R. 28, 9118]

In July 1995, Eugene Begay again met with Assistant

Solicitor Scott Keep, this time to discuss what language in a

tribal resolution would permit a new Secretarial election without

first having to conduct a replacement election on the petitioners’

proposed 1992 amendments, 1.e., to prevent an election on the

petitions. [R. 28, 9125] Begay faxed to Attorney Keep a draft

tribal resolution captioned "Dismissal Secretarial Election Held

February 1, 1992." [R. 28, 9126] Attorney Keep faxed a

response to Begay with handwritten notes, "Gene - Call me if

you can not read my hand-written suggested changes." The

handwritten suggested changes included adding erroneous

language that, "a new election was not authorized" and

"Whereas the TGB has only recently learned that the BIA

. intended to call a new election on the old February 1, 1992,

proposals, and --". [R. 28, 4127] The TGB had been aware of

the need for a replacement election since the Matheson decision,

as well as from the frequent reminders from the local BIA

offices. [R. 28, 999, 112, 116, 117; A. 45] The BIA also was

aware since the Matheson decision, despite crafting the

resolution, that the requirement that the Secretary hold the

election was a mandate from Congress which the TGB could not

preempt. Nevertheless, the TGB adopted the resolution with

the language suggested by Attorney Keep. [R. 28, 9128]

By 1996, Sandy Thomas had convinced several TGB

members that the use of absentee ballots was not the reason why

Matheson revoked the election and that absentee ballots are

authorized in Secretarial elections under the federal regulations.

Vice-Chairperson Margaret Diamond wrote to the

Superintendent of the Great Lakes Agency on May 16, 1996,

requesting review of the Matheson decision. She wrote that

several tribal members were concerned that people would be

excluded from voting in another Secretarial election, specifically

that off-reservation members with less than degree LCO

blood quantum would not be allowed to vote. [R. 28, 4131]

The Superintendent transmitted the letter from Vice-Chair

Diamond to the Area Director by memo dated May 24, 1996.

The Superintendent noted that "on May 16, 1995, we sent a

memorandum to the Assistant Secretary - Indian Affairs,

through your office, requesting a determination on the above

referenced 1992 Secretarial Election...To date, we have not

received a response to this request." [R. 28, 4132] The Area

Director sent the requests to the Office of Tribal Services in

Washington in July 1996. [R. 28, 9133]

Proceedings Below

On October 2, 1996, Sandy Thomas and the other

plaintiffs brought this action in the Federal District Court for the

Western District of Wisconsin. [R. 22, 941] The BIA still had

not responded to Vice-Chair Diamond’s letter. Though the

TGB is correct in stating that nearly four years had passed since

the Matheson decision when the lawsuit was filed, they were not

four years of inaction and acceptance of the Matheson decision

as suggested by the TGB’s petition.

Plaintiffs alleged four causes of action. [R. 2] First,

Plaintiffs sought statutory approval of the amendments; i.e., in

effect, to have the prior, timely approval of the amendments

enforced by overturning the untimely Matheson decision. [R. 2,

41-52] This action was against the United States, the BIA and

its officials pursuant to 25 U.S.C. §476(d)(2) for declaratory

and injunctive relief. [R. 2, 979] Plaintiffs asserted that

jurisdiction and an abrogation of federal immunity was provided

at 25 U.S.C. §476(d)(2). [R. 2, 96]

Second, plaintiffs sought to have the Matheson decision

declared invalid and unconstitutional pursuant to 5 U.S.C. §702

and 706 [RA 4], as being arbitrary and capricious for relying on

outdated law, unconstitutional for lack of due process and

imposition of a blood quantum-based voter criteria, and

otherwise in violation of federal law. [R. 2, 1-60] Plaintiffs

alleged that the new federal voter criteria created by Matheson

violated the IRA and the Fifth, Ninth, Fifteenth and Twenty-

Sixth Amendments to the United States Constitution. [R. 2,

954-57, 62-64; RA 5] This action was against the United

States, the BIA and its officials for declaratory and injunctive

relief under the APA. [R. 2, 980-83] Plaintiffs alleged that

jurisdiction and an abrogation of federal immunity was provided

at 5 U.S.C. §702. [R. 2, 96]

Third, plaintiffs alleged that the BIA violated its trust

responsibility to them as LCO-People by its unlawful and

unconstitutional conduct in the Matheson decision and its

aftermath, for which it had failed to follow its own regulations

and the statutes binding it. [R. 2, 41-78] In the alternative, if the

Matheson decision were upheld, plaintiffs alleged the BIA

violated its trust responsibility to the LCO People to hold a

replacement election in (then) over four years. [R. 22, 976] This

action was against the United States for compensatory damages,

and jurisdiction was asserted pursuant to 28 U.S.C. §1346(a)(2)

and 1367. [R. 2, 985-86] Plaintiffs asserted that these provisions

and 25 U.S.C. §476 provided the abrogation of federal immunity

for this claim. [R. 2, 96]

Fourth, Plaintiffs sought to hold individual federal

defendants responsible for the violations of the F ifth, Ninth,

Fifteenth and Twenty-Sixth Amendments caused by the

Matheson decision, pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971 ).

[R. 2, 1-72] This action was against Brown and Matheson

individually for compensatory and punitive damages. [R. 2, 84]

Plaintiffs sought monetary damages of $100,000 and $150,000.

[R. 2, ]84, 86] Plaintiffs sought such other relief as the court

deemed appropriate pursuant to 28 U.S.C. §2201 and 2202, and

costs and attorneys fees under the Equal Access to Justice Act,

28 U.S.C. §2412. [R. 2, 95]

In 1997, plaintiffs moved for summary judgment and the

federal defendants moved for judgment on the pleadings or in

the alternative for summary judgment. [R. 20, 29] In October

1997, the district court found that it had jurisdiction over the

claims and the plaintiffs had standing to pursue them. [R. 54; A.

50-52] It dismissed the Bivens claims against Brown and

Matheson, holding that the court did not have personal

jurisdiction over the defendants under Stafford v. Briggs, 444

U.S. 527 (1980). The district court held it had personal

jurisdiction over Brown and Matheson regarding the claims

against them in their official capacity but simultaneously did not

have personal jurisdiction over them for the Bivens claims. [A.

49] Finally, the district court held that the TGB of LCO was a

necessary party to the remaining claims and stayed the

proceedings to allow the TGB to join the lawsuit. [A. 56]

In May 1997, the TGB had taken a formal position to

Support the plaintiffs in the lawsuit. [R. 22, 946; A. 45] By

October 1997, Gaiashkibos had been reelected to the TGB and

the TGB then refused to join the lawsuit. [R. 55] Plaintiffs

amended their complaint and named them as "Joined

Defendants." [R. 56]

Plaintiffs sought declaratory and injunctive relief against

the joined defendants for their violations of the IRA, and their

support of the Constitutional violations of the Matheson

decision. [R. 56, 91-99] This action was against the TGB and

its members in their official capacity. Plaintiffs alleged

jurisdiction for this cause of action under the IRA and the

United States Constitution. [R. 56,989] Plaintiffs asserted that

Congress abrogated immunity in the IRA itself at 25 U.S.C.

§476(d)(2). [R. 56, 990, 97-98] Plaintiffs also asserted that

even if the IRA contained no abrogation, the actions of the TGB

members exceeded the scope of their authority in Secretarial

elections and therefore there was no immunity under the

doctrine of Ex parte Young, 209 U.S. 123 (1908) and Wisconsin

v. Baker, 698 F.2d 1323 (7th Cir. 1983). [R. 56, $90, 97]

Against TGB members individually, plaintiffs sought to

have Eugene Begay (not a TGB member at the time) and certain

members of the TGB held accountable for their actions

interfering with tribal members’ federal voting rights, seeking to

disenfranchise tribal members of less than a certain age and

blood quantum, and restricting tribal members' right to travel, in

violation of the United States Constitution. [R. 56, J 112-114]

This action was for declaratory, injunctive and compensatory

relief pursuant to 42 U.S.C. §1971 and 1985(3). [R. 56, 91-110,

112-114; RA 5] Plaintiffs asserted that the TGB members could

not claim tribal immunity because their actions were unlawful

and unconstitutional interference with a federal election, outside

their scope of authority, and they were not entitled to official or

qualified immunity for such actions. [R. 56, {90, 97] Plaintiffs

asserted that jurisdiction for these claims was provided under

these statutes, and the protections of the Fifth, Ninth, Fifteenth,

and Twenty-Sixth Amendments to the United States

Constitution applicable to federal Secretarial elections, and the

IRA, provided the bases for the private causes of action. See,

e.g., A. 3; Thomas, at 664-665. Plaintiffs sought damages

consistent with their demand against the BIA. [R. 56, 4114]

On March 27, 1998, the district court held that the TGB

was indispensable to plaintiffs' IRA claims against the BIA but

the TGB was immune from suit. [R. 66; A. 36-37] The district

court also held that the plaintiffs had not stated causes of action

under 42 U.S.C. § 1985(3) because they had "failed to establish

that federal rights are involved." [A. 36] The district court failed

to address the absence of immunity under Ex parte Young. The

court dismissed plaintiffs' claims and plaintiffs appealed in May

1998. [R. 67, 68]

On September 9, 1999, the Seventh Circuit reversed the

district court and remanded for further proceedings. [A. 1-13]

Thomas v. U.S., 189 F.3d 662 (7" Cir. 1999). The Seventh

Circuit held that the TGB was not necessary to the plaintiffs’

IRA, APA, and trust responsibility claims against the BIA and

federal officials. [A. 12] Thomas, at 669. The Seventh Circuit

held that the district court, in believing the case dealt with a

tribal election, "fundamentally misapprehend{ed] the limited role

of the tribal government in a federal Secretarial election." [A. 8]

Thomas, at 667. The Seventh Circuit noted that at its base, the

lawsuit "is a challenge to the way certain federal officials

administered an election for which they were both substantively

and procedurally responsible," and not the substance of an

amendment or the internal workings of the Tribe. /bid

Plaintiffs argued to the Seventh Circuit that if the TGB

was not necessary and not a party, the plaintiffs would not

pursue their claims against the TGB and its members merely to

keep them in the lawsuit at this time. If, however, the TGB and

its members were necessary parties, plaintiffs argued that the

case should proceed with their joinder under the abrogation of

immunity in the IRA and/or under the doctrine of Ex parte

Young, and the plaintiffs would indeed proceed with their claims

against the TGB and its members. Since the Seventh Circuit

held the TGB was not necessary to the lawsuit, they accepted

plaintiffs’ offer and treated the plaintiffs’ claims against the

TGB and its members as temporarily abandoned. [A. 12]

Thomas, at 669.

The Seventh Circuit stated that Matheson "purported to

revoke" the approval of the election and specifically called the

Matheson decision "belated." [A. 3, 10] Thomas, at 668. This

was argued extensively by the parties, and in particular by the

BIA which asserted it was not bound by the IRA’s 45-day time

limit. The BIA had argued that Shakopee Mdewakanton Sioux

(Dakota) Community v. Babbitt, 107 F.3d 667 (8" Cir. 1997),

stood for their proposition that there was no time limit on the

Secretary's review authority. The case was cited by the Seventh

Circuit only to show the breadth of the Secretary’s discretion to

disapprove an election within the 45-day time limit includes

reviewing the election for voter eligibility challenges. [A. 8]

Thomas, at 667.

On December 13, 1999, all members of the original

panel voted to deny the TGB’s request for rehearing on the

unanimous decision. No active member of the Seventh Circuit

requested a vote on the TGB’s request for rehearing en banc.

[A. 58]

The TGB petitioned this Court for a writ of certiorari on

March 13, 2000. The Solicitor General did not seek a writ of

certiorari.

REASONS FOR DENYING THE WRIT

I. THE QUESTION PRESENTED BY THE

PETITIONER MISSTATES THE PARTIES AND

THE SUBSTANTIVE ISSUES IN THE LAWSUIT.

Petitioner states the question presented as follows:

"Whether an American Indian Tribe, having

interest in the continuity of its Tribal

Constitution, is a necessary party, pursuant to

Fed. R. Civ. P. 19, in an action by private parties

contesting the validity of the Tribe’s

Constitution?"

So framed, this question misstates the parties and the

substantive issues.

Petitioner is not "the Tribe." It is the "Tribal Governing

Board" [TGB] or tribal council. This distinction is profound.

The LCO Constitution may be amended in one of two ways:

either by resolution of the tribal council asking the Secretary of

Interior to hold a federal election to amend the constitution, or

by direct petition of the LCO People to the Secretary whereby

the People bypass the tribal council. In this case, the LCO

Tribe, by its People directly, petitioned the Secretary to hold the

federal election to amend the constitution. The issue addressed

by the lower courts was whether the bypassed TGB was

necessary to the action brought by the Spokesperson for the

Petitioners. Just like "Congress" is not "the United States," the

TGB is not "the Tribe" in this context.'°

'° The TGB frequently interchanges the two entities. For

example, the TGB cites numerous cases which uphold a "Tribe’s" right

The reference to plaintiffs being "private parties” is

misleading. Sandy Thomas has the official role under the federal

regulations as Spokesperson for the Petitioners who sought the

election. She is not a disinterested private party somehow

interfering in tribal affairs. The Seventh Circuit stated that "to

the extent that anyone has a special legal status in regard to this

election that should be taken into account, it is plaintiff Sandra

Thomas." Thomas, 189 F.3d at 669. [A 11] The other plaintiffs

are LCO People whose civil and human rights have been

violated by the action taken by BIA officials. These claims are

not those of private parties contesting the validity of the tribal

constitution. Indeed, no one is contesting the validity of the

LCO constitution, only the validity of the Secretary’s

disapproval of the election.

Plaintiffs sued the federal government for its alleged

misdeeds in the conduct of a Secretarial election. Secretarial

elections are federal elections — not tribal elections conducted by

a tribe - for which the Secretary of Interior is procedurally and

substantively responsible under the IRA, the APA, and the

United States Constitutional protections that attach to such

federal elections. 25 C.F.R. §81.2(s); RA 3. Thomas v. U.S.,

189 F. 3d 662, 667 (7" Cir. 1999); Coyote Valley Band of Pomo

Indians v. U.S., 639 F. Supp. 165,169-170 (E.D. Cal. 1986);

Cheyenne River Sioux Tribe v. Andrus, 566 F.2d 1085, 1087-88

(8" Cir. 1977), cert. den. 439 U.S. 820 (1978); Wounded Head

v. Tribal Council of the Oglala Sioux Tribe, 507 F. 2d 1079,

1084 (8" Cir. 1975); Shakopee Mdewakanton Sioux (Dakota)

Community v. Babbitt, 107 F.3d 667 (8" Cir. 1997).

to self-government and a "Tribe’s” right to determine its own

membership; they then substitute TGB for Tribe in their argument. [Pet.

p. 7-10] Likewise, the petition refers to the Seventh Circuit having

found that the "Tribe" is not a necessary party The court found only

that the TGB was not necessary. [See, e.g., Pet. p. 12-13, 19]

The federal defendants admit that Secretarial elections

are federal not tribal elections. [R. 28, 415] "It is not merely

the number or type of federal involvements which characterize

these elections as federal...it is the source of the Secretary's

regulatory authority over these elections, such authority having

congressional and not tribal, origin. The Congress, not the

Tribe, delegates to the Secretary the authority to call and

conduct Secretarial elections.." Cheyenne River Sioux Tribe,

566 F.2d at 1088-1089. The federal regulations are based on

this distinction. See, e.g., 25 C.F.R. §81.2(s); RA 3.

Federal defendants acknowledge the "U.S. Constitution

protects the right of all qualified citizens to vote, in state as well

as federal elections. Secretarial elections on the amendment of

an IRA Constitution are federal elections." [R. 34, p. 11,

citations omitted] The fact that the United States Constitution

may not apply to tribal governments'! "does not relieve State

and Federal Governments of their obligations to individual

Indians under these provisions." Santa Clara Pueblo, 436 U.S.

49, 56, n. 7 (1978). Even the TGB admits that the "IRA

concerns Federal supervision of Secretarial elections and is not

traditionally a subject of tribal law." [R. 62, p. 20]

Tribes conduct tribal elections under their own authority

as quasi-sovereigns, e.g., to elect tribal representatives. These

elections may be held pursuant to an IRA constitution.

However, a Secretarial election conducted by the Secretary of

''Cf,In re Sah Quah, 31 F. 327 (D. Alaska 1886)(Thirteenth

Amendment applies, ending slavery among Tlingits of Alaska); "the

principle sought to be attained by the amendment makes any other

interpretation inconceivable." Cohen, Felix, Federal Handbook of Indian

Law, 1982 Ed., p. 665.

Interior under the IRA is entirely different.’

In recognition of the United States’ trust responsibility

to Indian People, Congress adopted the IRA in 1934 and set up

a structure by which Indian People could adopt "boiler plate"

tribal constitutions to assist them in becoming self-governing

once again.'*> Congress authorized the Secretary of Interior to

call Secretarial elections to adopt or amend a tribal constitution

"For example, the Twenty-Sixth Amendment applies to

Secretarial elections, Cheyenne River Sioux Tribe v. Andrus, supra.

However, it does not apply to "internal tribal elections.". Wounded Head

v. Tribal Council of the Oglala Sioux Tribe, supra. This is why Wheeler

v. Swimmer, 835 F.2d 259 (10" Cir. 1987) is inapposite. It deals with

the federal government’s limited role in a tribal election in which tribal

representatives are elected, not the extensive role of the federal

government in a federal Secretarial election. Even Thompson v. Area

Director, 17 IBIA 39, 45 (1989), cited by the Petitioner, distinguished

tribal and "BIA" elections.

The arguments before this Court in Rice v. Cayetano, _ U.S.

__, 120 S.Ct. 1044 (2000), apparently did not explore this distinction.

This Court described elections under the IRA as "tribal elections

established by the federal statutes" and stated that "[i]f a non-Indian

lacks a right to vote in tribal elections, it is for the reason that such

elections are the internal affair of a quasi-sovereign. The OHA

elections, by contrast, are the affair of the State of Hawaii." Rice, 120

S.Ct. At 1059. Tribal elections conducted pursuant to a tribal

constitution adopted under the IRA are indeed the "internal affairs of a

quasi-sovereign." Secretarial elections, however, are also affairs of the

federal government, the performance of which fulfills its trust obligation

to members of an Indian tribe. Rice noted that even if the Court found

that Congress could treat Native Hawaiians as tribes, however,

"Congress may not authorize ... a voting scheme of this sort." Rice, _

U.S. at__, 120 S.Ct. at 1058.

'?Cohen, Felix, Handbook of Federal Indian Law, 1982 Ed., p.

149.

een RTT RI er

when a tribe made a request to do so. The Secretary adopted

regulations to govern accepting requests from tribes, conducting

elections, and approving or disapproving elections. 25 C.F.R.

Parts 81 and 82. In 1988, Congress amended the IRA to impose

strict time limits on the Secretary in carrying out the federal

responsibilities under the act and to provide a cause of action to

enforce the provisions of the IRA. [See, R. 21, p. 20-30]

In this action, Sandy Thomas invokes the federal

statutory approval provision of the IRA to complete the

petitioners’ amendment process. Plaintiffs’ action presumes the

continuity and validity of the tribal constitution. The tribal

constitution is affected by the lawsuit only to the extent it was

affected in 1992 by the vote of the LCO People themselves.

By misstating the issue in the case as one challenging the

validity of the tribal constitution, the TGB fails to inform the

Court of plaintiffs’ actual claims to which the TGB is asserting

it is a necessary party. The question of necessity needs to be

asked relative to the actual claims made, not the misstated issue

presented in the Petition.

Il. THERE IS NO REASON TO OVERTURN THE

SEVENTH CIRCUIT.

The TGB asserts three reasons why this Court should

grant its petition for certiorari. First, it asserts that the Seventh

Circuit wrongly concluded that the TGB was not a necessary

party because "the Tribe’s constitutional membership criteria are

at the heart of the controversy." [Pet. p. 5] The TGB argues that

because the substance of one of the amendments voted on in the

1992 election dealt with redefining eligibility for tribal

membership, and the Tribe has a right to determine its own

membership, this translates into a need for the TGB to be a

necessary party to the lawsuit. Second, the TGB asserts that the

Seventh Circuit decision conflicts with this Court’s holding in

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), and

the Eleventh Circu’~ decision in Florida v. Seminole Tribe of

Florida, 181 F.3d 1237 (11™ Cir. 1999). These cases discuss

dismissal of a lawsuit when an indispensable party cannot be

joined because of sovereign immunity. Third, the TGB asserts

that the Seventh Circuit decision "“interjects an additional

criterion into the necessary party analysis that is not specified

under Fed. R. Civ. P. 19" which conflicts with other circuit

court decisions. None of these assertions is accurate.

There are significant issues in this case, the resolution of

which may reverberate throughout the BIA and Indian Country:

Can the BIA overturn a Secretarial election outside the

45-day time limit imposed by Congress in 25 U.S.C. §

476(d)(1)?

Can the BIA sua sponte impose a race-based blood

quantum requirement on LCO members voting in federal

Secretarial elections (i.e., decide who among LCO’s

members may vote based on their blood quantum), given

the language in the IRA and the Fifteenth Amendment to

the contrary?

Can the BIA be held accountable for violating its trust

responsibility to LCO People for its alleged misdeeds in

connection with overturning the election?"

'*For example, Secretary of Interior’s ex parte contacts betray

the public trust, taint the subsequent decision and violate basic fiduciary

duties owed to Indian People. Navajo Nationv. U.S.,__ Fed. Cl. _,

2000 WL 141233 (Fed. Cl. 2/4/00).

Can BIA officials be held accountable for overturning

the election and disenfranchising members without

statutory authority?

These are questions of federal law which the parties extensively

briefed years ago on cross motions for summary judgment.

Other than the 45-day issue, however, no lower court has

addressed these questions after four years of litigation.

A. The Substance of the Amendments Ratified

by the LCO People in the 1992 Election is

Not the Issue of the Lawsuit.

The LCO People voted in favor of two proposed

amendments in 1992. For purposes of plaintiffs’ action, it does

not matter what the substance of those amendments was.'°

Plaintiffs would raise the same issues regardless of the substance

of the amendments: the BIA could not do what it did, when it

did it, and for the reasons it did. The BIA could not overturn the

approval of the election months after the 45-day time limit to

review the election had expired, establish a new race-based

blood quantum criterion for voting, or disenfranchise hundreds

of adult LCO tribal members.

'SThe TGB "jumps the gun" on the issue of relief by asserting

that complete relief cannot be granted in this case against the federal

government because the substance of one of the amendments directs the

TGB to take specific action upon approval of the amendment. Complete

relief against the BIA can be granted in this case, i.e., statutory approval

of the amendments ratified by the LCO People, and reinstatement of

members’ federal voting rights. The Seventh Circuit pointed out that if

the TGB then chooses to disobey the amendments, the plaintiffs or other

LCO members may bring an action against the TGB. This is

speculative, however, because it presumes future illegal activity.

One of the petitions accepted by the BIA in 1991 indeed

was the committees’ proposed amendment to the criteria for

tribal membership eligibility. Plaintiffs agree Tribes have the

right to determine their own membership, that Indian self-

determination includes the right to define the conditions of

membership, and that these are core tenets of Indian law.'°

[See, e.g., Pet. pp. 6-8] Plaintiffs, as members of a federally

quantums, or other more relevant cultural criteria. Santa Clara Pueblo v.

Martinez, 436 U.S. 49 (1978). The federal government may rely on

these membership determinations when they are blood quantum-based

because the federal deference is granted to the political status of the

members of the quasi-sovereign tribe, not to "Indians [] as a discrete

racial group." Morton v. Mancari, 417 U.S. 535, 554 (1974).

When a tribe has determined its membership and guarantees its

members equal political rights, however, it does not follow from Santa

Clara Pueblo or Mancari that the BIA can pick and choose among the

tribe’s members who can vote in federal Secretarial elections based on

their blood quantum. The leeway allowed in Mancari to the BIA to

maintain a hiring preference for tribal members does not extend to a new

and larger dimension of allowing the BIA to separate the tribe’s

members into different classes of "Indians" based on their blood

quantum for voting purposes. Courts have not allowed the BIA to do

this in other contexts. See, e.g., Zarr v. Barlow, 800 F.2d 1484, 1494

(9" Cir. 1986)(the IRA does not authorize the BIA to make distinctions

among Indian tribal members because of differing amounts of Indian

blood for purposes of higher education grants).

The political distinction under Mancari is based on tribal

membership. When the BIA attempts sua sponte to add a blood

quantum requirement to members’ voting rights, the governmental

deference to tribal members loses its political aspect and indeed becomes

a classification based solely on race, i.e., a race-based voter qualification.

The Fifteenth Amendment prevents the federal government’s use of such

racial classifications in federal elections. Rice v. Cayetano, U.S. __,

120 S.Ct. 1044 (2000).

Mey sede, chen creer ee emu

recognized Indian tribe, are keenly aware of and interested in

preserving their rights to self-determination and self-

government. Plaintiffs have never challenged the cases cited by

the TGB that hold that a Tribe has a right to determine its own

membership. The Seventh Circuit decision did not violate any

of these underpinnings of Indian law.

In this case, the LCO Tribe, by the LCO People directly,

exercised its sovereign right to self-determination by voting

directly on the proposed amendments to the tribal constitution.

The LCO Tribe, by the LCO People directly, exercised

sovereignty and determined the criteria for tribal membership.

This lawsuit only seeks to complete the federal amendment

process. The suit enforcing the federal election procedures does

not undermine the "centrality" of tribal government. It merely

enforces the changes voted upon by the LCO People."

Though the Seventh Circuit noted that some have questioned

the need for federal control over the tribal constitutional process, the

TGB's actions show there is wisdom in Congress’ balanced approach in

the IRA. (Thomas, at 667, citing Joranko and Van ) orman, Indian Self-

Determination at Bay: Secretarial Authority to Disapprove Tribal

Constitutional Amendments, 29 Gonz. L. Rev. 81 (1993/94).) For

example, assuming an entirely benevolent tribal government, Indian

People still may want a separation of governmental powers so that all of

the power is not concentrated in one entity, or they may want to provide

for checks and balances in the government by creating an independent

tribal court -- substantial changes which tribal government officials

might oppose because they do not want to lose power. Under the federal

structure in place, the People still can petition for proposed amendments

directly to the BIA and bypass the tribal council because of their

perceived or actual opposition to the substance of the amendments. The

People can ratify the amendments in a federal Secretarial election and

obtain their preferred form of self-government, despite opposition from

rich or powerful tribal government officials. Because of the federal

nature of the election, the tribal officials are not able to prevent

implementation of the amendments.

The LCO People expect and deserve a fair and impartial

federal approval process to protect their ability to self-govern

within the government they have constructed under the IRA,

especially when the changes they seek may be divisive in their

small communities or are opposed by powerful tribal officials."*

The need to ensure an independent and fair federal amendment

process is primary, regardless of the substance of the

amendments. The fact that one of the amendments ratified by

the LCO People in this case deals with membership eligibility is

significant, but it is not critical to the plaintiffs’ claims.

B. The Seventh Circuit Decision Does Not

Conflict with Current Law.

The TGB asserts that the Seventh Circuit decision

conflicts with current law regarding tribal sovereign immunity.

However, the Seventh Circuit found that the TGB was not a

necessary party. It never addressed the issue of Congressional

abrogation of tribal immunity or the absence of immunity under

Ex parte Young. The decision therefore does not conflict with

current law on the issue of immunity. Furthermore, the TGB’s

substantive arguments on the issue are misguided.

The TGB argues that the Seventh Circuit decision

conflicts with this Court’s holding in Seminole Tribe of Florida

v. Florida, 517 U.S. 44 (1996), and the Eleventh Circuit’s

decision in Florida v. Seminole Tribe of Florida, 181 F.3d 1237

(11" Cir. 1999). In Seminole, this Court held that the Indian

'SMatheson recognized that federal Secretarial approval of

membership ordinances and Secretarial review of the membership

process are mandatory because a tribal council "may exact revenge on

members with opposing viewpoints through the termination of

membership....Hence, the Secretary could not approve an amendment

which eliminated Secretarial approval." [A. 72]

Commerce Clause does not authorize Congress to abrogate the

sovereign immunity of states reserved under the Eleventh

Amendment. In particular, Seminole held that Congress had no

authority to abrogate states’ sovereign immunity in a provision

of the Indian Gaming Regulatory Act [IGRA] which allowed

tribes to sue states for allegedly failing to negotiate a gaming

compact in good faith. Seminole, 517 U.S. at 47.

In Seminole, the issue was whether Congress had the

power to abrogate states’ immunity unilaterally. Unlike

Seminole, Congress does have authority to abrogate the

sovereign immunity of Indian tribes. Santa Clara Pueblo vy.

Martinez, 436 U.S. 49 (1978). To the extent that tribal councils

must be joined to complete the federal amendment process,

Congress abrogated immunity with respect to actions to enforce

approval of amendments ratified by tribal members in a

Secretarial election in 25 U.S.C. §476(d)(2) just as expressly as

the Santa Clara Pueblo Court found in the Indian C ivil Rights

Act with respect to habeas corpus actions, [25 U.S.C. §1303:

"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." as USL.

§476(d)(2): "Actions to enforce the provisions of this section

may be brought in the appropriate Federal district court."] The

Seminole case is thus inapposite.

Similarly, the Eleventh Circuit decision in Florida v,

Seminole Tribe of Florida, 181 F.3d 1237 (11" Cir. 1999), is

inapplicable.'’ The Eleventh Circuit held that IGRA did not

abrogate the Seminole Tribe’s immunity to an action by Florida

'*The Eleventh C ircuit noted that some of the confusion in this

area stems from the language in the Santa Clara Pueblo decision itself,

confusing tribal waivers of immunity with Congressional abrogation of

immunity. Florida v. Seminole Tribe of Florida, \8\ F.3d at 1241, n. 5.

to enjoin gaming without a compact because IGRA only

abrogated tribal immunity for suits alleging violations of a valid

compact. Florida, 181 F. 3d at 1242. The TGB’s reliance on

this case is belied by the actual language of the IRA: here

Congress specifically provided the federal forum to enforce the

federal Secretarial election process.

This is not a case where Congress has no authority to

abrogate sovereign immunity because of the Eleventh

Amendment, nor even where immunity has not been abrogated

by Congress. If the TGB had been found necessary, then the

court could have joined them and their members and the action

proceeded. Neither Seminole nor Florida applies to this case.

The TGB’s argument fails for a still more basic reason.

The LCO People are the sovereigns. Ultimate

sovereignty rests with and is vested in the People themselves.

See, e.g., McCulloch v. Maryland, 17 U.S. (Wheat.) 316, 403-

407 (1816). Fribal officials, though they may exercise powers

delegated from the People while in office, remain servants of the

People. When a Tribe seeks to amend its constitution under the

IRA by direct petition of the People, and the Spokesperson for

the Petitioners brings an action to enforce the vote of the

People, the TGB cannot wrest further sovereignty from the

People to frustrate the People’s right to amend their own

constitution. That is what the TGB is attempting to do and that

is anathema to self-determination.

on The Seventh Circuit Did Not Impose an

Additional Criterion into the Rule 19

Analysis; Rather, it Simply Rebuked the

TGB for its Actions Outside the Federal Law.

The TGB asserts that the Seventh Circuit decision,

unlike other circuit court decisions interpreting Rule 19,

"interjects an additional criterion" into the necessary party

analysis that is not required under Rule 192° The TGB

misunderstands the Seventh Circuit’s admonition.

The Seventh Circuit stated the TGB had options

available in 1992 if they disagreed with the Secretary’s approval

of the election.”' Members of the TGB could have brought an

action to test the approval by the Secretary under the IRA if

they believed the Secretary’s approval was in error. Or, if the

TGB believed it was "stuck with an illegitimate constitution"

after the Secretary’s approval of the election, it could have

asked the BIA to hold a Secretarial election to revoke the

constitution. The statutes and rules prescribed exactly how the

TGB could obtain such relief. Thomas, at 669. E.g., 25 C.F.R.

§81.5(a). The Seventh Circuit observed that the TGB never

attempted these options and never challenged the election by the

"prescribed statutory procedures.” It called the actions of

Gaiashkibos "less than orthodox." Thomas, at 665, 668.

The Seventh Circuit was not imposing an additional

criterion into the Rule 19 analysis. It only stated its awareness

that the TGB’s strategy was to prevent review of its ill-gotten

agency decision by claiming that no action to review the agency

decision could proceed without it. The Court pointedly

identified this as the TGB’s "ploy" which it would not condone,

i.e., "to leverage its failure to follow prescribed statutory

procedures into an unreviewable decision to disapprove the

election, by taking advantage of Rule 19.". Thomas, at 669.

Pet. p. 22, n. 21.

Petitioner argues that they disagreed with the Matheson

decision, Pet. p. 16; but, cf p. 23 where Petitioner argues that

Gaiashkibos was "successful" with the Matheson decision.

The Seventh Circuit correctly followed the necessary

party analysis under Rule 19, and its decision is consistent with

Makah Indian Tribe v. Verity, 910 F.2d 555, 558-59 (9" Cir.

1990)(there generally is no legally protected interest in

particular agency procedures and absent parties are not

necessary if they have an equal interest in a federal

administrative process that is lawful). The Seventh Circuit’s

reproof to the TGB came after the court’s analysis of whether

the TGB was a necessary party. The analysis did not hinge on

these observations. There is no "additional criterion" to the

Rule 19 analysis that conflicts with other circuits, and no reason

exists to overturn the Seventh Circuit.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Dated this 12th day of May 2000.

Respectfully submitted,

Duxstad, Vale, Bestul & Gartzke, S.C.

Tracey Lee Schwalbe *

*Counsel of Record

108 Fifth Avenue; P.O. Box 267

New Glarus, WI 53574

(608) 527-5266

Counsel for Respondents

APPENDIX

TO RESPONDENTS’ BRIEF IN OPPOSITION

Relevant Portions of Applicable Federal Laws

25 U.S.C. §476

Organization of Indian tribes; constitution and bylaws and

amendment thereof; special election

(a) Adoption; effective date.

Any Indian tribe shall have the right to organize for its

common welfare, and may adopt an appropriate constitution and

bylaws, and any amendments thereto, which shall become

effective when--

(1) ratified by a majority of the adult members of the

tribe or tribes at a special election authorized and called by the

Secretary under such rules and regulations as the Secretary may

prescribe; and

(2) approved by the Secretary pursuant to subsection

(d) of this section.

(b) Revocation

Any constitution or bylaws ratified and approved by the

Secretary shall be revocable by an election open to the same

voters and conducted in the same manner as provided in

subsection (a) of this section for the adoption of a constitution

or bylaws.

proposals; notification of contrary-to-applicable law

findings

(1) The Secretary shall call and hold an election as

required by subsection (a) of this section--

(A) within one hundred and eighty days after

the receipt of a tribal request for an election to ratify a proposed

constitution and bylaws, or to revoke such constitution and

bylaws; or

RA |

(B) withinninety days after receipt of a tribal

request for election to ratify an amendment to the constitution

and bylaws.

(2) During the time periods established by paragraph

(1), the Secretary shall--

(A) provide such technical advice and

assistance as may be requested by the tribe or as the Secretary

determines may be needed; and

(B) review the final draft of the constitution

and bylaws, or amendments thereto to determine if any

provision therein is contrary to applicable laws.

(3) After the review provided in paragraph (2) and

at least thirty days prior to the calling of the election, the

Secretary shall notify the tribe, in writing, whether and in what

manner the Secretary has found the proposed constitution and

bylaws or amendments thereto to be contrary to applicable laws.

(d) Approval or disapproval by Secretary; enforcement

(1) If an election called under subsection (a) of this

section results in the adoption by the tribe of the proposed

constitution and bylaws or amendments thereto, the Secretary

shall approve the constitution and bylaws or amendments

thereto within forty-five days after the election unless the

Secretary finds that the proposed constitution, and bylaws or

any amendments are contrary to applicable laws.

(2) Ifthe Secretary does not approve or disapprove

the constitution and bylaws or amendments within the forty-five

days, the Secretary's approval shall be considered as given.

Actions to enforce the provisions of this section may be brought

in the appropriate Federal district court.

***

25 C.F.R. § 81.2(s). Secretarial election means an election

held within a tribe pursuant to regulations prescribed by the

Secretary as authorized by Federal Statute (as distinguished

from tribal elections which are conducted under tribal authority.

(See Cheyenne River Sioux Tribe v. Andrus, 566 F.2d 1085 (8"

Cir. 1977), cert. den. 439 U.S. 820 (1978)). [Emphasis in

original. ]

25 C.F.R. § 81.5(a). The Secretary shall authorize the calling

of an election to adopt a constitution and bylaws or to revoke a

constitution and bylaws, upon a request from the tribal

government.

(b) The Secretary shall authorize the calling of an

election to adopt a constitution and bylaws pursuant to a Federal

Statute upon receipt of a petition bearing the signatures of at

least 60 percent of the tribe’s adult members.

(d) The Secretary shall authorize the calling of an

election on the adoption of amendments to a constitution and

bylaws or a charter when requested pursuant to the amendment

article of those documents. The election shall be conducted as

prescribed in this part unless the amendment article of the

constitution and bylaws or the charter provides otherwise, in

which case the provisions of those documents shall rule where

applicable.

25 C.F.R. § 82.1(0). Spokesman for the petitioners means the

authorized voter of a tribe initiating a petition or designated by

the initiators of a petition to speak on their behalf.

5 U.S.C. §706 Scope of Review

To the extent necessary to decision and when presented,

the reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency action.

The reviewing court shall--

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with

law; |

(B) contrary to constitutional right, power,

privilege, or immunity;

authority, or limitations, or short of statutory

right;

(D) without observance of procedures

required by law;

(E) unsupported by substantial evidence ina

case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an

agency hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the court shall review

the whole record or those parts of it cited by a party, and due

account shall be taken of the rule of prejudicial error.

RA 4

42 U.S.C. §1985(3) Conspiracy to interfere with civil rights

If two or more persons in any State or Territory conspire, ... for

the purpose of depriving, either directly or indirectly, any person

or class of persons of the equal protection of the laws, or of

equal privileges and immunities under the laws; ...; in any case

of conspiracy set forth in this section, if one or more persons

engaged therein do, or cause to be done, any act in furtherance

of the object of such conspiracy, whereby another is injured in

his person or property, or deprived of having and exercising any

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

injured or deprived may have an action for the recovery of

damages, occasioned by such injury or deprivation, against any

one or more of the conspirators.

United States Constitution

Fifth Amendment. No person shall ...... be deprived of life,

liberty, or property, without due process of law: nor shall

private property be taken for public use, without just

compensation.

Ninth Amendment. The enumeration in the Constitution, of

certain rights, shall not be construed to deny or disparage others

retained by the people.

Fifteenth Amendment. The right of citizens of the United

States to vote shall not be denied or abridged by the United

States or by any State on account of race, color, or previous

condition of servitude.

Twenty-Sixth Amendment. Section 1. The right of citizens

of the United States, who are eighteen years of age or older, to

vote shall not be denied or abridged by the United States or any

State on account of age.

RA 5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.