Page 3 of FFJ Case 2:96-CV-294 Support of Federal Defendant's Motion to Dismiss

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ARGUMENT

       Plaintiffs have brought their substantive challenge to the tribal resolutions at issue in the wrong forum. For the reasons which follow this matter should be dismissed for failure to state a claim upon which relief may be granted, for failure to exhaust tribal remedies, and for failure to join an in le party to wit: KBIC. Further, the requested remedy, mandamus, is an extraordinary remedy which is not available and should not be granted, in this matter.

I.

PLAINTIFF'S COMPLAINT FAILS TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED.

       Plaintiffs' Complaint alleges that the two KBIC resolutions at issue require the review and approval of the Secretary of the Interior or his delegated representative pursuant to federal common law, the federal government's trust responsibility to the tribe under 25 USC § 13OOh-(6), the Indian Reorganization Act and 25 U.S.C. §476 and the KBIC Constitution. Plaintiffs ask the Court to compel the BIA to review the ordinances under 5 USC §706 (1) and 5 USC §706.(2) or to issue an order of mandamus directing the BIA to do so pursuant to 28 U.S.C. §1361.

       Contrary to plaintiffs' assertion that the Secretary of the Interior or his delegated representative was required to review and approve the resolutions at issue, both statutes and case law make it abundantly clear that the Secretary had no such duty. It is well-established that a district court does not have jurisdiction to compel an official to perform a discretionary act. Neal v. Reagan, 587 F.Supp. 1558 (1984); Welch v. Donovan, 551 F.Supp. 809 (D.C. Cir. 1982); R.E.D.M. Corp.v. Lo Secco, 412 F.2d 303 ( 2nd Cir. 1969). Therefore, the Court may not grant the relief sought by plaintiffs.

       Plaintiffs base their claim that the Secretary of the Interior has a duty to review and approve the subject resolutions on the Indian Reorganization Act, at 25 U.S.C §476. 25 U.S.C. 6476, however, imposes no general duty on the Secretary to reviews all tribal resolutions or ordinances. It states, in relevant part:

(a) Adoption; effective date
Any Indian tribe shall have the right to organize for its common welfare, find may adopt an appropriate constitution and bylaws, and any amendments thereto, which shall become effective when
(1)ratified by a majority vote 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.

and:

(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 bylaw's 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) If the 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.

and:

(e) Vested rights and powers; advisement of presubmitted estimates:

In addition to all powers vested in any Indian tribe or tribal council by existing law, the constitution adopted by said tribe shall also vest in such tribe or its tribal council the following fights and powers: To employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary; to prevent the sale, disposition lease or encumbrance of tribal land, interests in lands, or other tribal assets without the consent of the tribe; and to negotiate with the Federal, State, and local governments. The Secretary shall advise such tribe or its tribal council of all appropriation estimates or Federal projects for the benefit of the tribe prior to the submission of such estimates to the Office of Management and Budget and the Congress.

       Clearly, the Secretary's obligation of review is limited to review of tribal constitutions and bylaws, amendments to a tribe's constitution or bylaws, and to a tribe's employment of legal counsel. Neither of the resolutions in question amended the tribe's constitution or bylaws. KB-467-95 addressed the issue of voter eligibility in an election to be held in the future. It identified eligible voters as those meeting the criteria set forth in Article IV of the tribe's constitution. It did not alter or amend the language of the constitutional provisions. KB- 501-95 addressed the issue of adoption of members into the tribe pursuant to the Article 11 of the tribe's constitution. KB-501-95 did not alter or amend the constitutional provisions for adoption. Neither resolution related to the employment of legal counsel. Therefore the Secretary's review and approval were not required by25 U.S.C. §476.

       The Secretary's review authority is otherwise limited to the unique provisions of each tribe's constitution. In this case, the KBIC constitution did not require the Secretary's approval of the resolutions in question. KBIC's tribal council's powers are enumerated, in part, in Article VI of the KBIC Constitution. Several sections of Article VI setting forth the Council's powers provide that the exercise of the power is "subject to review by the Secretary of the Interior."*2 For example, Article VI, Section I (k), upon which plaintiffs rely to support their claim for BIA review of the subject resolutions , states that the tribal council has the power:

To enact resolutions or ordinances not in consistent with Article II of this Constitution governing adoption and abandonment of membership, subject to review by the Secretary of the Interior. (Emphasis added)

       However, the KBIC Constitution does not require the Secretary's approval for every exercise of power by the Tribal Council. Article VI also enumerates Tribal Council powers which are not subject to the Secretary's approval. Specifically, Article VI, Section l(a) gives the tribal council the authority:

To regulate the uses and disposition of tribal property, to protect and preserve the tribal property, wild life and natural resources of the Community, to cultivate Indian arts, crafts and culture, to administer charity, to protect the health, security and the general welfare of the Keweenaw Bay Indian Community.*3 (Emphasis added).

       Resolution KB-467-95 was adopted pursuant to the foregoing tribal council authority to protect the health, security, and the general welfare of KBIC pursuant to Article VI, Section l(a). Therefore, the tribe's Constitution did not require that the resolution be reviewed and approved by the Secretary of the Interior.

       It is true that the KBIC Constitution provides in Article VI,. Sec. I (k) that resolutions or ordinances "governing adoption and abandonment of membership," are "subject to review by the Secretary of the Interior," However, Resolution KB-501-95 was not a resolution or ordinance governing adoption or abandonment of membership in the tribe. Resolution KB-561-95 set a date for a special election to vote upon adopting into full voting membership those individuals who had made a written application for adoption. The resolution invoked the adoption procedure contained in KBIC's Ordinance to Govern Adoptions, approved by the Department of the Interior on January 12, 1940. Resolution KB-501-95.was issued pursuant to the powers conferred on the Tribal Council by Article IL Section 2, and did not require approval of the Secretary of the Interior. The resolution on its face did not change either the process for adoption of members nor the voter eligibility requirements in Art. IV.

       Resolution KB 501-95 reiterated the original criteria of membership as set forth in the KBIC Constitution. It stated that descendants of the original KBIC, who meet the membership requirements in Article II and the voter eligibility criteria in Article IV, may vote in upcoming elections. The resolution was apparently adopted in response to the fact that some tribal members who did not meet the Art. II membership requirements or the Art. IV voter eligibility requirements had voted previously in tribal elections

       KB-501-95 provides that those who do not meet the membership requirements in Art. II, Sec. I may make a written application for adoption. KB-501-95 neither alters nor amends Art. II, Sec. I of the KBIC Constitution nor the 1940 ordinance adopted by the tribal council governing adoption of members into the KBIC. YB-501-95 restates the 1940 ordinances regarding adoption of members Which the Secretary of the Interior had reviewed and approved. Thus since the Secretary already essentially approved the provisions in KB-501-95 by approving the 1940 ordinance, the Secretary's refusal to review the ordinance was appropriate.

       The voter eligibility provisions in Article IV of the KBIC Constitution contain residency requirements. According to KB-467-95, "members not meeting the residency requirements have all rights except to vote and hold office' as prescribed by Art. IV. Therefore, KB467-95 did not change basic Article H membership procedures or Article IV membership 'requirements. Therefore, since neither, KB-467-95 nor KB-501-95 materially altered or amended the adoption procedure the Secretary had no legal duty to review them under Article VI of the tribe's constitution.

       Plaintiffs claim that 25 U.S.C. §1300h-(6), which states that "the Secretary of the Interior shall accept the tribe's certification of enrolled members,". imposes a duty on the BIA to review the subject ordinances. 25 U.S.C. §1033h7(6), however, does not mandate review of the resolutions at issue because its reference to the tribe's certification of enrolled members was for a limitedpurpose. Pub. L. 100-420, 25 U.S.C. §1300h-(6), defined tribal membership for the purpose of the distribution of funds "appropriated and subsequently apportioned to the Keweenaw Bay Indian Community in satisfaction of judgments and awarded the Lake Superior Chippewa and Mississippi Chippewa in dockets numbered 18-C, 18-T, 18-S and 18-U of the Indian Claims Commission." The roll listed in Pub. L. 100-420 was only for the purpose of the federal distribution of funds from the trust fund dockets. It did not establish the tribal membership rolls for all purposes whatsoever.

       Plaintiffs ask the Court to grant relief pursuant to 5 USC §706(l) and or 5 U.S.C. §706(2). 5 U.S.C. §706(l) requires the court to "compel agency action unlawfully withheld or unreasonably delayed," and 5 USC §706 (2) allows the court to set aside unlawful agency action: 'Neither provision is applicable to the facts of this case. The BIA did not act unlawful and did not unlawfully withhold agency action in this case. As a matter of law, the resolutions at issue did not require approval. Therefore, Superintendent Bolton did not unlawfully withhold or unreasonably delay agency action when she declined to review the resolutions. Her decision not to review the resolutions was not an unlawful agency action which the Court can set aside.

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*2 Article VI Section 1, enumerates the following powers of the Tribal Council which are subject to the approval of the Secretary of the Interior: to hire legal counsel, (§ I (b)); to promulgate and enforce ordinances providing for taxes, assessments of fees upon non-members doing business upon the reservation, (§ I (1)); to exclude by ordinance persons not legally entitled to reside on restricted lands of the Reservation,(§I-O)); to promulgate and enforce ordinances governing conduct and providing for maintenance of law and order, and to establish and define duties of tribal court, (§ I (1)); to promulgate and enforce ordinances intended to safeguard and promote peace, safety, morals and general welfare of KBIC by regulating trade and use and disposition of property if ordinance directly affects non-members, 1. § I (n)); to regulate activities organizations tribally chartered for economic purposes, (§ I (o)); to regulate the inheritance of real and personal property, other than allotted lands, (§ I (p)), to recommend and provide for the appointment of guardians for orphans, minor members of KBIC and mental incompetents, (§ I (r)).

*3 Other Tribal Council powers enumerated in Article VI which do not require the approval of the Secretary of the Interior include the power to: to negotiate with other governments on behalf of KBIC and to advise and consult with other federal governments departments, (Art I(c)); to advise Secretary of Interior with regard to appropriations and federal projects, (Art. I (e)); to manage the economic affairs of KBIC, (Art. I (f)); to assign tribal lands to tribal members, (Art. I (g)), to appropriate tribal funds for tribal use, (Art. I (h)), to purchase land from tribal members for public purposes, (Art. I (m)); to regulate domestic relations of tribal members, (Art. (q)); to create and maintain a Community fund, (Art. I (s)); to delegate powers to subordinate boards and associations, (Art. (t)); to adopt resoluations or ordinances to effectuate constitutional powers (Art I (u))

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