Page 4 of FFJ Case 2:96-CV-294 Support of Federal Defendant's Motion to Dismiss

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   II.

PLAINTIFFS' COMPLAINT SHOULD BE
DISMISSED FOR THEIR FAILURE TO EXHAUST
TRIBAL REMEDIES.

       Plaintiffs have been informed at every stage of their case that a tribal forum is the proper forum for a challenge to the substance of the two tribal resolutions. In fact, the federal government's commitment to Indian self-determination requires that plaintiffs first exhaust their tribal remedies. The Supreme Court has addressed the exhaustion of tribal remedies doctrine in National Farmers Union Insu v. Crow Tribe, 471 U.S. 845 (1985), and Iowa Mutual Insurance Co. v. LaPlante,480 U.S. 9 (1987). In National Farmers Union Insurance the issue was whether a tribal court had the power to exercise civil subject matter jurisdiction over non-Indians. Inconcluding that the issue was one which should first be resolved in a tribal forum the Court said:

We believe that examination should be conducted in the first instance in the Tribal Court itself. Our cases often recognized that Congress is committed to a policy of supporting tribal self-goverment and self determination. That policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge. Moreover the orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merit's or any question concerning appropriate relief is addressed. The risks of the kind of ‘procedural nightmare' that has allegedly developed in this case ivilf be minimized if the federal court stays its hand until after the Tribal Court @.as had -a full opportune to determine its own jurisdiction and to rectify any errors it may have made, Exhaustion of tribal court remedies, moreover, will encourage tribal courts to explain to the parties the precise basis for accepting jurisdiction and will also provide other courts with the benefit of their expertise in such matters in the event of further judicial review.

National Farmers Union Insurance v. Crow Tribe of Indians, at 856.

       Subsequently, in Iowa Mutual Insurance Co., the Court stated that "A federal court's exercise of jurisdiction over matters relating to reservation affairs can also impair the authority of tribal courts, as we recognized in National Farmers Union." 107 S.Ct. at 976. Requiring the exhaustion of tribal remedies in this instance would be consistent with the "[F]ederal Government's longstanding policy of encouraging tribal self-government." 480 U.S. at 14. ( From a policy standpoint the validity of tribal legislation should be challenged initially in a forum which routinely interprets clirganic documents and governing precedents of the political entity. Here, the plaintiffs should have taken their concerns to the tribal council or the tribal court).

       Superintendent's Bolton conclusion that the resolutions at issue did not require BIA reviewand approval, a conclusion that was subsequently upheld by the Regional Supervisor and by the IBIA, was consistent with the government policy regarding resolution of internal tribal matters dealing with tribal membership. The IBIA should defer to the tribe to make reasonable interpretations of its own constitution. Shakopee Medwakanton Sioux Community v Acting Minneapolis Director, 27 IBIA 163 (1995). "Resolutions of such disputes involving questions of interpretations of the tribal constitution and tribal law is not within jurisdiction of the district court." Runs After v United States, 766 F.2d 347, 352(8th Cir. 1985).

       The IBIA properly followed the exhaustion of tribal remedies doctrine in deciding plaintiffs' administrative appeal. "In furtherance of this policy [the policy of respect for tribal self-government], the Board has recognized that individuals whose primary complaint is with a tribal enactment belong in a tribal forum rather than before this Board." 29 IBIA at 262. Both the administrative claim and plaintiffs' complaint belong before a tribal forum, not this Court.

The facts of the present case are distinguishable from those in Poodry v Tonawanda Band of Seneca Indians, 85 F.3d 874 (2nd Cir. 1996), in which the Second Circuit found that the district court had jurisdiction to hear a habeas corpus action brought pursuant to the Indian Civil Rights Act by plaintiffs who had been banished from the tribe for treason. In the tribe was governed by consensus among a council of chiefs of the tribe's different bands. It was undisputed in the case that there was no avenue for tribal review of the actions of the members of the council of chiefs. In the present case plaintiffs had access to the tribal court as an avenue of review. Furthermore, unlike the consensus form of decision making which governed the Tonawanda Band in Poodry KBIC is governed by a constitutional form of goverment. Therefore, the members of KBIC have the avenues of redress that the tribal members in Poodry did not have. Plaintiffs failed to exhaust theirtribal remedies and for that reason their complaint and amended complaint should be dismissed.

III.

PLAINTIFFS' COMPLAINT SHOULD BE
DISMISSED BECAUSE THE KEWEENAW BAY
INDIAN COMMUNITY IS AN INDISPENSABLE
PARTY WHICH CAN NOT BE JOINED WITHOUT
ITS CONSENT.

       KBIC is an indispensable party to this matter. The issues raised involve interpretations of the tribal constitution and the actions of the elected tribal council pursuant to the powers contained in the tribal constitution. Therefore, this action should not be allowed to continue without the presence of KBIC as a party. Because KBIC has not waived its sovereign immunity, however, it cannot be joined and, this action must therefore be dismissed.

       In order to determine whether a party is 'indispensable' under Fed.R. Civ. P. 19, this, Court must address two issues. The Court "must first determine if an absent party is 'necessary' to the suit; then if, as here the party cannot be joined, the court must determine whether the party is ‘indispensable' so that in 'equity and good conscience' the suit should be dismissed." Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1999). Plaintiffs complaint herein deals with one of the most basic and inherent rights of an Indian tribe, the right to determine its membership and to interpret its constitution. The Community is thus an indispensable party and, because it cannot be joined, this action must be dismissed.

1. The Community is a necessary party.

       While no precise formula exists for determining whether a particular non party is necessaryto an action, "Rule 19 (a) contemplated a two-part analysis to aid in determining if an absent party is necessary." Confederated Tribes of Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991).

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating the disposition of the action in the person's absence may (I) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or other inconsistent obligations by reasons of the claimed interest.

Fed. R. Civ. P. 19 (a)

       Plaintiffs, in the absence of KBIC, seek to litigate, an issue which is vital to the Community's interest. The tribal council's efforts to preserve the peace on the reservation and to interpret the tribe's constitution are at stake. Courts have consistently held that absent tribes have an interest in preserving their own sovereign immunity, with its concomitant right not to have [their] legal duties judicially determined without consent."' Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir.1992), quoting Enterprise Management Consultants v. U.S. ex rel, Hodel, 883 F.2d 890, 894 (10th Cir. 1989). The Community is an party in this action. The legislative enactments, the interpretation of the Community's constitution and the ability to take action pursuant to the general police power are at stake. "A sovereign tribe's ability to determine its own membership lies at the very core of tribal self determination." Smith v Babbitt, 100 F.3d 556, 559 (8th Cir.1996).

2. The Community cannot be joined

       KBIC, a necessary party to this case, cannot be joined due to its sovereign immunity. "[F]ull powers of internal sovereignty are vested in an Indian tribe and its duly constituted organs of government subject only to limitation or express legislation by Congress." Barnes v. United States Bureau of Indian Affairs, 205 F.Supp. 97, 99 (Mont. 1962). Because they are sovereign entities, Indian tribes are immune from suits in state or federal court to which they have not consented. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). KBIC could choose to waive its sovereign immunity, but has not done so and such a waiver "cannot be implied but rather must be 'unequivocally expressed.' "Id. Absent an express waiver of sovereign immunity, the Court cannot assume that the Community would choose to participate in this action. The Community cannot be joined without its consent which has not been given.

3. The Community is an indispensable party.

       Since KBIC is a necessary party and cannot be joined as a party; "[t]he: trial court 'shall determine whether in equity and good conscience' the suit should proceed at all." Pembina Treaty Committee v. Lujan, 980 F.2d 543 (8th Cir. 1992).

       Rule 19 (b) contains four factors which are to be. considered in order to determine if a party is indispensable. Those factors are:

(1) prejudice to any party or to the absent party; (2) whether relief can be shaped to
lessen prejudice (3) whether an adequate remedy, even if not complete can be awarded without the absent party; and (4) whether there exists an alternative forum.

       The factors contained in Rule 19.(b) do not mandate a rigid application by courts, but rather "[a]llow courts ... to determine the emphasis to be placed on each consideration according to 'the facts of [the] given case and in light of the governing equity-and good-conscience test."' Fluent v. Salamanca Indian Lease Authority 928 F.2d 542, 547-48 (2d Cir.) cert. denied, 502 U.S. 818 (199 1) ,(citations omitted). Further, "[i]t has been held that when an indispensable party is immune from suit, there is very little room for balancing of other factors set out in [r]ule 19 (b); because immunity maybe viewed as one of those interest compelling by themselves." Id. At 548. In Barnes v. BIA, where the absent tribes would be affected by disposition of proceeds of a judgment, the Court found that the absent tribes were indispensable parties and granted the BIA's motion to dismiss. 205 F.Supp. 97 (D.Mont. 1962). In the instant case benefits for an for members of an absent tribe are at issue, since the mandated appointed tribe members would be ineligible for the same rights as enrolled members.

       Moreover, the legislative power of the KBIC tribal council, the interpretation of the Comununity constitution, and the validity of two tribal resolution are at stake. Any interpretation of the Community constitution would certainly prejudice the Community. The challenge to the BIA's refusal to review these resolutions is not the remedy the plaintiffs really seek. They seek to challenge the substance of the resolutions, not their review ability by the BIA on behalf of the Secretary of the Interior.

       No relief can be shaped to lessen the prejudice to the Community. No adequate remedy, complete or less than complete is available through this Court without the presence of the Comununity. Finally, the plaintiffs have been informed at every step of the administrative process that they are pursuing a remedy in the wrong forum. The appropriate forum in which to address their tribal forum either legislative or judicial. Therefore, since the Community is an indispensable party which cannot be joined, this action must be dismissed.

IV.

THE COURT LACKS JURISDICTION TO GRANT
PLAINTIFFS' REQUEST FOR A WRIT
OF MANDAMUS.

       Plaintiffs ask the Court to issue a Writ of Mandamus directing the Secretary to review the resolutions at issue. "Mandamus is an extraordinary remedy available only in extraordinary circumstances" 28 U.S.C. §1361. Allied Chemical Daiflon- Inc., 449 U.S. 33, 34-35 (1980), and is appropriate only where there are exceptional circumstances amounting to a judicial usurpation of power." Will v. United States 389 U.S. 90, 95 (1967). Before the District Court may issue a writ of mandamus "against an officer of the United States, the plaintiff must show:

1)the officer has a clear and non-discretionary duty to perform the act in question
2)the patent violation of agency authority or manifest infringement of substantial rights
3) the tribe has no adequate alternative remedy." Borntrager v. Stevas, 772 F.2d 419, 420 (8th Cir. 1985).

       The plaintiffs are unable to demonstrate that any of these criteria can be met. According to Pinnow v. Shoshone Tribal Council the act of reviewing tribal enrollment ordinances is "supervisory and discretionary, and an order in the nature of a writ of mandamus will not lie." 314 F.Supp. at 1161. Mandamus is only available as a remedy to compel an act which is ministerial in nature not discretionary. Kift v. Thomas, 336 F.2d 462; Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969). Mandamus only provides relief "where a clear duty is owed the plaintiff or there is an abuse of discretion..." Grant v Hogan, 505 F.2d 1220, 1225, (3rd Cir. 1974). However if the duty is discretionary it is not "owed". Short v Murphy 512 F.2d 374 (6th Cir. 1975); Klein v Office Personnel Management, 577 F.Supp. 260 (E.D.N.Y-. 1983).

       Plaintiffs claim that the Secretary's review of the tribal ordinances is mandatory, notdiscretionary, and therefore they are owed a duty under the IRA 25 U.S.C. §476. However, since under IRA 25 U.S.C. §476, the Secretary of the Interior is only directed to review the tribal constitution, bylaws and constitutional amendments, reviewing general ordinances is clearly discretionary. Any duty owed by the Secretary to review ordinances and resolutions is owed to the tribe as an entity acting through its Tribal Council and not to individual tribal members. Therefore, since the review the resolutions in this case would be discretionary, the refusal to review and substantively approve or reject them was clearly not a patent violation of authority. Furthermore, the decision not to exercise its discretion to review the ordinances in this case, and to recognize the authority of the tribal counsel to protect "the health, security and general welfare of the Keweenaw Bay Indian Community," the BIA did not commit a "manifest infringement" of the plaintiffs' rights.

       The plaintiffs have available the alternative remedy of petitioning the tribal council or court as discussed above. If all other adequate remedies have not been exhausted mandamus cannot be used to provide relief Follini v. Hodel 783 F.2d 1343 (9th Cir. 1985); Willis v. Sullivan 931 F.2d 390 (6th Cir. 1991). Given that review of the challenged tribal resolutions would be an act which is "supervisory and discretionary" in nature, that the Secretary did not violate his own agency's regulations, and that the tribe has not exhausted all other adequate remedies, the issuance of a writ of. mandamus as a remedy in this instance would be clearly inappropriate.

       Plaintiff also claim that the Court's jurisdiction in this matter is based on 28 U.S.C.§133 I,*4 28 U.S.C.§1361*5 and pendent jurisdiction. Actions contesting tribal elections and tribal membership do not involve federal questions under § 133 1. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967). An action contesting a tribal election involves tribal membership and does not arise out of the federal constitution or laws. Id.

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*4 28 U. S. C. '§ 13 3 1 provides that "[T]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."

*5 28 U. S.C. § 1361 provides that "[T]he district courts shall have original jurisdiction of any
action in the nature of mandamus to compel an officer or employee of the United States or any agency to preform a duty owed to the plaintiff."do not involve federal questions under § 133 1. Twin Cities ChiPl2ewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967). An action contesting a tribal election involves tribal membership and does not arise out of the federal constitution or laws. Id.

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