Fight For Justice
On the Keweenaw Bay Indian Community Reservation
FFJ Case 2:96-CV-294
GARY LOONSFOOT, SR.,
DOREEN BARON and LINDA KRAMER,
Case No. 2:96-CV-294
Hon. David W. McKeague
BRUCE BABBITT, Secretary of the Interior;
ADA DEER, Assistant Secretary of the Interior - Indian Affairs;
INTERIOR BOARD OF INDIAN APPEALS;.
LARRY MORRIN, Acting Director, Minneapolis Area, Bureau of Indian Affairs; and
ANNE E. BOLTON, Superintendent, Michigan ency, Bureau of Indian Affairs;
Now before the Court is defendants' motion to dismiss. Plaintiffs are members of the Keweenaw Bay Indian Community ("Community"). Plaintiffs' complaint alleges that two resolutions passed in 1995 by the community's Tribal Council are required to be reviewed by the Secretary of the Interior, or the Bureau of Indian Affairs ("BIA"), to whom such review responsibility is delegated. Plaintiffs initially sought review of the resolutions by the Michigan agency of the BIA, but the agency declined to review them and its decision was affirmed by the Interior Board if Indian Appeals. Plaintiffs now seek an order from this court compelling the BIA to undertake review of the resolutions. Defendants move to dismiss the case on several grounds, alleging that the Court lacks authority to order BIA officials to preform the requested actions, that the plaintiffs have failed to exhaust their tribal remedies, and that action should be dismissed for failure to join the Community as a necessary and indispensable party. The Court has carefully considered the parties' arguments as set forth in their briefs and at the hearing on this matter and, for the reasons that follow, defendants' motion to dismiss is denied.
This action involves a dispute over the power of the Tribal Council to adopt certain resolutions affecting membership in the Community without submitting them for review by the Secretary of the Interior. Article II of the Community's Constitution governs membership in the Community. Article II establishes two categories of Community members. Section 1 provides that bona fide enrolled members include members of the original tribes that make up the Community and their descendants who were living in 1934, when the Constitution was adopted. Section 1 also declares that every child of at least one-quarter Indian blood who is born to a resident member of the Community and every child whose parents re both members of the Community (regardless of their residency at the time of the child's birth) is a member of the Community. Section 2 establishes an adoption procedure whereby other Indians who wish to affiliate with the Community may apply for admission by a majority vote of the membership. Member adopted under Section 2 have the right to vote on matters pertaining to the Community but are excluded from participating in rights or claims arising from treaties and from the right to hold elected office. Members enrolled under Section 1 ("members by right") have the right to vote, to share in treaty rights and claims, and to hold elected office.
In 1994, then Chairman of the Community, Fred Dakota, proposed the establishment of a tribal corporation to own slot machines which were then owned by the Community and to receive slot machine revenues as lease payments from the Community. At the community's annual election on December 17, 1994, a referendum was held on the slot machine initiative and four tribal council seats were up for election. The slot machine referendum was defeated in the election and four new council members were elected, all of whom had opposed the slot machine plan. At the next monthly meeting of the Tribal council in January 1995, however, holdover members of the Council voted to suspend the election and refused to seat the victorious Council members. Members of the Tribal Council alleged that certain persons who had voted in the election were not properly enrolled in the Community and thus not eligible to vote.
In the aftermath of the December 1994 election and its subsequent disqualification, the Tribal Council adopted two resolutions. In May 1995, the Council adopted Resolutions KB-467-95 ("Res. 467"), which established a new class of persons eligible for membership in the Community for purposes other than voting and eligibility to hold elected office. Res 467 also declared that a Constitutional Convention would be held in July 1995 to consider proposed amendments to the Community's Constitution, at which those members properly enrolled in the Community could vote and those newly declared eligible for membership by Res. 467 would be given a opportunity to submit written comments, ideas, and suggestions on any proposed amendments. The authority listed for adoption of Res. 467 was Article VI, §1 (a) of the Community's constitution, which empower the Tribal council to adopt resolutions "to protect the health, security and the general welfare of the Keweenaw Bay Indian Community."
In November 1995, the Tribal council adopted Resolution KB-501-95 ("Res. 501"), which identified 184 individuals who voted in the December 1994 election who allegedly failed to qualify as enrolled members under the Community's constitution. Res. 501 also declared that a special election was to held in December 1995 for the purpose of adopting into full voting membership any or all of the identified individuals. The authority listed for adoption of Res. 501 was Article IV of the Community's constitution, which authorizes the Tribal council to establish rules and regulations governing the conduct of t Community elections.
Following adoption of Res. 467 and Res. 501. Plaintiffs sought review of the resolutions by the Superintendent of the Michigan Agency affiliated with the BIA. The superintendent declined to review the resolutions because they were deemed a "temporary solution" to strife within the community which threatened the health, security, and general welfare of its members. The Acting Area director affirmed the Superintendents's decision, though on different grounds, claiming primarily that review was not required by the Community's Constitution or federal law. The plaintiffs appealed the decision to the Interior Board of Indian Appeals, but the IBIA dismissed the appeal for lack of standing. Plaintiffs thereafter filed this action seeking an order compelling BIA officials to review the resolutions.
In defending whether to grant defendant's motion to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b) (6), the Court must accept the allegations contained in Plaintiff's complaint as true. See Wright v. Metro Health Med, Ctr., 58 F.3d 1130, 1138 (6th Cir. 1995). "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Id. (Quoting Cameron v. Seitz, 38 F 3d. 264, 270 (6th Cir. 1994). "In considering a motion under Red. R. Civ. P. 12(b) (6), it is not the function of the court to weigh the evidence or evaluate the credibility of witnesses, instead, the court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief." ID.
Defendants advance four arguments in support of their motion to dismiss. First, defendants argue that the court lacks subject matter jurisdiction to issue a writ of mandamus. Second, defendants assert that the Court lacks subject matter jurisdiction because plaintiffs failed to exhaust their tribal remedies. Third, defendants argue that the Court lack authority to order an official from another branch of government to preform an discretionary act and, therefore, plaintiffs' complaint fails to state a claim upon which relief can be granted. Finally, defendants contend that the action should be dismissed pursuant to Fed. R. Civ. P. 12(b) (7) and 19 because the Community is a necessary and indispensable party that cannot be joined.
Defendants frame two arguments in support of their motion to dismiss as subject matter jurisdiction challenges. First, defendants allege that the Court lacks jurisdiction to issue a writ of mandamus. Second, defendants assert in their motion that the court lacks jurisdiction because plaintiffs failed to exhaust their tribal remedies, although defendants do not frame their exhaustion argument as a jurisdictional challenge in their brief.
Plaintiffs' complaint asserts that jurisdiction is vested in this court
under 28 U.S.C. § 1331 and 29 U.S.C. § 1361 2
Plaintiffs seek an order compelling BIA officials to undertake review of
the resolutions and the complaint sets forth two alternative statutory bases
upon which the court may award this relief. First, plaintiffs point tot
he Administrative Procedures Acts, which provide that a court reviewing
agency action shall compel agency action unlawfully withheld."
5 U.S.C. § 706(1). Plaintiffs also cite § 706(2) (A) of the APA
as authority for an order directing BIA Officials to review the resolutions.
Section 706 (2) (A) provides that a reviewing court shall "hold unlawful
and set aside agency action, finding, and conclusion found to be arbitrary,
capricious, or not otherwise in accordance with law" 5 U.S.C. §
706(2)(A). Plaintiffs argue in the alternative that the court should issue
a writ of mandamus under 28 U.S.C. § 1361 to compel the BIA to review
Plaintiffs' complaint also states that the doctrine of pendent jurisdiction confers jurisdiction over this matter. Plaintiffs' response to defendants' motion to dismiss suggest that this reference to pendent jurisdiction relates to the possibility of applying the doctrine to obtain jurisdiction over claims based on tribal law. As plaintiffs acknowledge, however, it is not necessary for the court to reach this issue because alternative jurisdiction bases exist in this case. Accordingly, the court declines to address plaintiff's argument bases on the doctrine of pendent jurisdiction.
Although the APA does not independently grant subject matter jurisdiction to the federal courts, the Supreme Court has held that 28 U.S.C. § 1331 confers jurisdiction on federal courts to review agency action, "subject only to preclusion of review statutes." Califan v. Sanders, 430 U.S. 99. 106 (1977); see also Runs After v. United States, 766 F.2d 347, 351 (8th Cir. 1985); Feezor v. Babbitt, 953 F Supp. 1, 4 (D.D.C. 1996). Defendants have cited no statute that precludes review of the BIA's refusal to review the resolutions at issue in this case. Accordingly, the court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331. However, "[t]he existence of jurisdiction under section 28 U.S.C. § 1331 is inextricably bound with the merits of whether a writ of mandamus should issue...." Maczko v. Joyce, 814 F 2d. 308, 310 (6th Cir. 1987). Therefore, the court will address 28 U.S.C. § 1331 jurisdiction in the context of the availability of mandamus relief, discussed infra.
The court further finds that the court's exercise of jurisdiction over this mater is proper despite plaintiff's alleged failure to exhaust their tribal remedies. In Nat. Farmers Union Ins Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985), the Supreme Court established a rule of comity requiring a party that wishes to challenge a tribal court's jurisdiction to exhaust the available tribal remedies prior to seeking relief in federal court. See id. At 857-57. In National Farmers, a member of a tribe was injured on school property owned by the State of Montana and attempted to bring civil action against the school district in a tribal court. See id at 847. The school district and its insurer then brought a suit in federal district court seeking to enjoin the tribal court action. See id. The Supreme Court held that there was federal question jurisdiction over question of whether the tribal court had exceeded its jurisdiction, but that the jurisdictional issues should be address to the tribal court in the first instance. See id. At 856-57. The exhaustion rule announced in National Farmers is thus a rule of comity rather than a jurisdictional prerequisite. See Iowa Mut Ins. Co. v. LaPlante, 480 U.S. 9, 16, n.8 (1987) (noting that "the exhaustion rule enuciated in National Farmers Union did not deprive the federal courts of subject matter jurisdiction" but, rather, "[e]xhaustion is required as a matter of comity, not as a jurisdictional prerequisite").
In this case, plaintiffs seek a very narrow form of relief. Plaintiffs do not challenge the underling validity of the resolutions at issue; rather, plaintiffs seek an order compelling the BIA to take action that they assert the agency is required to take. The case is thus not similar to National Farmers or Iowa Mutual, in which the court established "an exhaustion rule allowing tribal courts initially to respond to an invocation of their own jurisdiction." Strate v. A-1 Contractors, 117 S. Ct. 1404, 1410 (1997). In light of the nature of plaintiff's claims and the limited form of relief sought, the court finds that exhaustion of tribal remedies is not required in this case.
Moreover, the court noted in National Farmer that it was not suggesting that exhaustion was required "where an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith,' or where the action is patently vioiative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the [tribal] court's jurisdiction." Nat. Farmers Union Ins Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985) n.21 (citation omitted). In this case, the tribal court would in fact be unable to award the kind of relief plaintiffs seek. If plaintiffs actually sought review of the resolutions validity, then it might well be appropriate for this court to defer to the tribal court for an initial determination as to its jurisdiction over the matter. Because the plaintiffs seek an order compelling an agency to undertake review of the resolutions, however, it would be futile for plaintiffs to seek redress from the tribal courts. Accordingly, the court finds that plaintiffs are not required to exhaust their tribal remedies because such exhaustion would be futile in this case.
Defendants argue that plaintiffs' complaint fails to state a claim upon which relief can be granted for two reasons. First, defendants contend that review of the resolutions by the BIA officials is a discretionary function and, therefore, the court lacks authority to compel agency officials to undertake the requested review. Second, defendants assert that a writ of mandamus is an extraordinary remedy and that plaintiffs have not demonstrated that it is warranted in this case.
(A.) BIA's Duty to Review the Resolutions.
The parties agree that plaintiffs are entitled to relief only if the BIA officials have a duty to undertake review of the resolutions. The APA governs judicial review of agency action except to the extent that statutes preclude such review or the action is committed to agency discretion by law. See 5 U.S.C. § 701 (a). Similarly, a writ of mandamus may only be granted "to compel an officer or employee of the United States or any agency thereof to preform a duty owed to the plaintiff." 28 U.S.C. § 1361; see also Short v. Murphy, 512 F 2d 374, 377 (6th cir. 1975) (noting that § 1361 "has been construed uniformly to mean that mandamus will not lie unless the alleged duty imposes a mandatory or ministerial obligation"). The threshold inquiry in determining whether plaintiffs' complaint states a claim upon which a relief can be granted, therefore, is whether the Secretary of the Interior or, more precisely, the BIA officials to whom responsibility over such tribal matters has been delegated, have a duty to undertake review of the resolutions.
Defendants focus on the notion that the Secretary does not have a general duty to review tribal ordinances under either the relevant provision of the Indian Reorganization Act ("IRA"), 25 U.S.C. § 476, or the Community's Constitution. Plaintiffs argue that the Secretary specifically agree to review the type of resolutions at issue in this case by approving the Community's Constitution, wherein such a duty is specifically spelled out. In addition, plaintiffs argue, the resolutions effect an amendment of the Constitution, which requires review by the Secretary both under the terms of the constitution and § 476 of the IRA.
Under the IRA, a tribe's authority to adopt a Constitution is subject to the Secretary's approval. See 25 U.S.C. § 476 (A); 3 Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195, 198 (1985); Frezzor v. Babbitt, 953 F. Supp. 1, 5 (D.D.C. 1996). The Keweenaw Bay Constitution was approved by the Secretary in 1936. In approving the constitution pursuant to the IRA, the Secretary commanded, "[a]ll officers and employees of the Interior Department are ordered to abide by the provisions of the said constitution and by-laws." article II §2 of the constitution provides that, "[t]he Tribal council shall have the power to enact ordinances subject to review by the Secretary of the Interior governing adoptions of members for the Keweenaw Bay Indian Community." (Emphasis added). A separate provision reiterates that the Tribal council has the power "[t]o enact resolutions or ordinances not inconsistent with Article II of this Constitution governing adoptions and abandonment of membership, subject to review by the Secretary of the Interior." Art VI § 1(k) (emphasis added). Thus to the extent that the resolutions at issue may properly be characterized as "governing adoptions and abandonment of membership," the Constitution indicates that the Secretary must review them. Plaintiffs argue in the alternative that even if the resolutions do not fall within this category, together they effectively amend the Constitution by creating a new class of persons eligible for membership in the Community. Because not only the original Constitution but any amendments thereto must be approved by the Secretary see 25 U.S.C. § 476(A), the resolutions must be reviewed by the Secretary if they effect a constitutional amendment even if they purport to be resolutions passed to protect the general welfare of the Community.
Title 25 U.S.C. § 476 (A) provides:
(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 vote of the adult members of the tribe or tribes as 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 the section.
The court agrees with plaintiffs that Res. 467 and Res. 501 effectively amend the membership provisions of the Constitution. Further the court also finds that the resolutions govern adoption, making them subject to review by the Secretary under Art. II § 2, and Art. VI § 1(k) of the Constitution. The constitution establishes two general membership classifications. Members enrolled under Art II § 1 are "members by right" who share in all benefits and rights associated with membership, including the right to vote, the right to hold elected office, and the right to share in benefits from treaty rights. Members who are adopted into the Community under Art. II § 2, have the right to vote in matters pertaining to the Community but do not have a right to hold elected office or to share in rights or claims arising out of treaties. Res 467 essentially creates a third membership classification. The resolutions provides that descendants of the original Community who have ancestors listed on the allotment rolls and who posses one-quarter or more Indian blood are eligible for all membership purposes other than the right to vote or hold elected office. Members enrolled pursuant to Res 467, therefore, are not similarly situated to members under either § 1 or 2 of the original article governing membership in the Keweenaw Bay Constitution. Res 467 thus effectively amends Article II of the Constitution by creating a new membership classification that arguably impinges on the rights of those members who are constitutionally enrolled, insofar as these "new" members will have the right to participate in claims and rights arising out of treaties. Accordingly, pursuant to § 476 of the APA, the Secretary and the BIA officials to whom review responsibility has been delegated have an obligation to review the resolutions.
Moreover, taken together, Res. 467 and Res. 501 alter the rules governing adoption. Res. 501 identifies individuals who allegedly do not meet the Constitution's membership criteria (but who may well qualify for "special" membership under Res. 467) and establishes a procedure whereby these persons may be adopted at a special election. However, the disaffected members may continue to enjoy the benefits of their membership under Res. 467 without having to go through the adoption process. These members face a choice between retaining their treaty rights under Res. 467 (but sacrificing the right to vote), and retaining the right to vote by becoming formally adopted. Essentially, the effect of the resolutions is to create either a new membership classification altogether or a new "quasi-adoption" procedure whereby the disaffected members may upon written application and approval by the Tribal Council enjoy the benefits and rights arising out of treaties. Under either analysis, the Secretary expressly undertook an obligation to review these resolutions and cannot claim that the decision whether to review them in the first instance is discretionary. See Independence Mining Co. V Babbitt, 105 F. 3d 502, 507, n.6 (9th Cir. 1997) (noting that the review under § 706 of the APA is not precluded merely because agency has discretion in carrying out a duty for, "even if the acts were discretionary, the Secretary cannot simply refuse to excise his discretion").
In holding that the Secretary has a duty to review the resolutions, the court does not in any way address what the proper outcome of this dispute should be. It is not the court's role to rule on the merits of plaintiffs' underlying challenge to the resolutions; indeed, that issue has not even been presented to the court. Thus this is not a case like Pinnow v. Shoshone Tribal Council, 314 f. Supp. 1157 (D. Wyo. 1970), where members of a tribe challenged the Secretary's approval of certain resolutions. In Pinnow, the court refused to issue a writ of mandamus directing the tribal council to institute certain enrollment procedures because the existing procedures had been approved by the Secretary. See id at 1160. In reaching its conclusion, the court noted that "[a]pproval authority in the Secretary cannot be classified as a pure ministerial function," id., and that "[m]ere approval authority is discretionary with the Secretary and involves no positive command or duty upon him to approve of tribal action." Id. In this case, however, plaintiffs do not challenge a discretionary decision by the Secretary as to the validity of the resolutions. Rather, plaintiffs challenge the refusal of the Secretary to undertake review of the resolutions in the first place. As noted in Feezor v. Babbitt, 953 F. Supp. 1 (D.D.C. 1996), "federal courts have been reluctant to assume jurisdiction over claims involving intra-tribal membership disputes or question of interpretation of tribal constitutions." Id. At 4. As further noted in Feezor, however, courts typically err when they go beyond the scope of judicial review under the APA and reach the merits of the dispute. See id. In this case, like in Feezor, plaintiffs seek only an order compelling the Secretary to undertake review of the resolutions, a duty the Secretary specifically agreed to carry out. What decision the Secretary and the BIA officials to whom this responsibility is delegated ultimately reach is a matter committed to agency discretion and is not before this court.
(B.) Availability of Mandamus Relief
Defendants argue that a writ of mandamus is an extraordinary remedy and that plaintiffs are not able to satisfy the elements required for such a relief. It is true that "the remedy of mandamus is a drastic one, to be involved only in extraordinary situations." Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). In fact, the court only has jurisdiction to issue a writ of mandamus directing the BIA officials to review the resolutions if the BIA owes a duty to plaintiffs to undertake such review. See 28 U.S.C. § 1361. "The existence of jurisdiction under section 1362 is inextricably bound with the merits of whether a writ of mandamus should issue; in order to establish either jurisdiction or entitlement to the writ, a court must find that duty is owed to the plaintiffs." Maczko v. Joyce, 814 F. 2d 308, 310 (6th Cir. 1987). In this regard the Sixth Circuit has established that, "[f]or there to be a duty owed to the plaintiff' within the meaning of section 1361, there must be a mandatory or ministerial obligation. If the alleged duty is discretionary or directory, the duty is not owed.'" Id. (Citation omitted). Finally, "[a] duty is not owed' unless the obligation is plainly defined and peremptory.'" Id.
The Court has already found that Plaintiffs' complaint alleges sufficient facts to show that the BIA has a duty to review the resolutions. Thus for the reasons the court has already articulated, defendants' motion fails to establish that the court lack mandamus jurisdiction or that Plaintiffs are not entitled to this relief on the merits. However, because mandamus relief is extraordinary in nature, the court observes that § 706 of the APA may be a more appropriate avenue for obtaining the relief that Plaintiffs seek in this case. As recently noted by the Ninth Circuit, "[a]lthough the exact interplay between these two statuary schemes has not been throughly examined by the courts, the supreme Court has construed a claim seeking mandamus relief under the .... [Mandamus and Venue Act], in essence,' as one for relief under § 706 of the APA." Independence Mining Co., Inc v. Babbitt, 105 F. 3d 502, 507 (9th Cir. 1997) (citing Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230, n.4 (1986). Because Plaintiffs seek an order compelling agency action, it may ultimately be more appropriate to analyze plaintiffs claims under 5 U.S.C. § 706. See generally Seiden v. United States, 537 F. 2d 867, 870 (6th Cir 1976) (finding that mandamus relief was not appropriate where district court had jurisdiction under the APA to review decision of Attorney General); see also Carol R. Miaskiff, Note, Judicial Review of Agency Delay and Inaction under Section 706(1) of the Administration Procedure Act, 55 Geo. Wash. L. Rev. 635, 657 (1987) (noting that "[t]he remedy provided by section 706(1) - compelling agency action - is modeled on the writ of mandamus"). Nevertheless, defendants' motion fails to establish that plaintiffs are not entitled to mandamus relief, insofar as their motion focuses primarily on the issue of whether the BIA has a duty to review the resolutions. Accordingly, although the court has indicated that § 706 of the APA is a more appropriate vehicle for plaintiffs' desired relief than is a writ of mandamus under 28 U.S.C. § 1361, it is unnecessary for the court to rule on this issue other than finding, as the court has, that defendants are not entitled to an order dismissing plaintiffs' complaint based on an alleged lack of mandamus jurisdiction.
Defendant's final argument in support of their motion to dismiss alleges that the Community is a necessary and indispensable party to this action which cannot be joined, requiring dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b) (7) and 19. Under Rule 19, the Court must determine first, whether the Community is a "necessary" party and second, whether the Community is "indispensable." A person is " necessary" if:
(1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that 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 otherwise inconsistent obligations by reason of the claimed interest.
Fed. R. Civ. P. 19(a). Under the second inquiry, the court must "determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable." See Fed. R. Civ. P. 19(b).
In making a determination as to whether a party is necessary and indispensable, the Sixth Circuit has noted that "Rule 19 calls for a pragmatic approach; simply because some forms of relief might mot be available due to the absence of certain parties, the entire suit should not be dismissed if meaningful relief can still be accorded." Local 670 v. International Union, United Rubber, Cork, Linoleum and Plastic Workers of America, 833 F.2d 613, 618 (6th Cir 1987) (quoting Smith v. United Bhd of Carpenters and Joiners of Amer., 685 F.3d 1341, 1345 (6th Cir. 1993).
The court finds that the Community is not a necessary party. First, complete relief can be accorded among those already parties, in that Plaintiffs seek only an order compelling the BIA to review the subject resolutions. Once again, the Court notes that the validity of these resolutions is not an issue in this action; thus plaintiffs have the ability to obtain the limited relief they seek in this court without involvement of the Community itself. Second, while the Community may have a theoretical "interest" in whether the BIA undertakes review of the resolutions, defendants have not shown that this action would impede or impair the Community's ability to protect that interest or that it would leave any of the existing parties subject to a substantial risk or incurring double, multiple, or other inconsistent obligations by reason of that claimed interest.
Defendant claim that the Community has an interest in preserving its sovereign immunity and its right to self-determination. In Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992), the court found that certain tribes were necessary parties in an action brought by individual tribe members. See id. At 1314. The action in Shermoen involved the constitutionality of a congressional act that had partitioned tribal lands and distributed escrow funds. See id. At 1316. The court stated, "[i]n this case, the absent tribes have an interest in preserving their own sovereign immunity, with its concomitant "right not to have [their] legal duties Judaically determined without consent." Id. At 1317 (quoting Enterprise Mgt. Consulting v. U.S. es rel. Hodel, 883 F.2d 890, 894 (10th Cir. 1989)). Defendant's reliance on Shermoen is misplaced, however, for the issue in this case is decidedly more narrow and quite different than the issues before the Shermoen court. This court is not undertaking a judicial determination of the Community's right or duties without its consent. Rather, this court must review an administrative agency action to determine whether that agency complied with its duties under statutory law. The Community's theoretical interest un the subject matter of this action does not render it a necessary party in the uniquely narrow context in which plaintiffs' complaint in framed.
The difference between this case and one in which the Community's interest in a matter would render it a necessary party is spelled out in the Makah Indian Tribe v. Verity, 910 F.2d 555 (9th Cir. 1990), cited by both parties in this case. In Makah, one of the 24 tribes sharing treaty rights to a body of water brought suit against the government challenging federal regulations governing fishing quotas and the regulatory process by which they were adopted. See id. At 557. The district court had dismissed the action for failure to join the other 23 tribes whose treaty rights were at stake. See id. The Ninth Circuit affirmed the decision with respect to the claims involving the merits of the dispute, stating that to the extent that the Makah tribe sought a reallocation of the quota distribution or a change in the intertribal allocation decisions, the absent tribes had an interest in the suit. See id. At 559. However, the court found that the absent tribes were not necessary "to the Makah's procedural claims for which they seek prospective injunctive relief." Id. The court noted that the procedures used by the Secretary in adopting the regulations were subject to review under the APA, and that "[u]nder the APA any person adversely affected by agency action may seek review." Id. The court concluded that "[t]he absent tribes would not be prejudiced because all of the tribes have an equal interest in an administrative process that is lawful." Id.
In this case. Plaintiffs' claims are more analogous to the procedural claims brought by the Makah tribe than to the Makah's claims challenging the validity of the fishing quota regulations. Here plaintiffs seek only an order compelling the BIA to review resolutions that are subject to agency review. In evaluating whether such review is warranted, the court need not determine rights or duties of the Community; rather, the court must pass only on the necessary of agency action. Neither the Community nor the current parties will be prejudiced if the Community is not joined in this action involving a narrowly framed complaint and request for relief. Accordingly, the Community is not a necessary party under rule 19 and thus the court need not consider whether the Community is indispensable.
In sum, defendants have failed to establish that this action should be dismissed on any of the grounds asserted in their motion. The Court has jurisdiction over this matter under both 28 U.S.C. § 1331 and 28 U.S.C. § 1361. Jurisdiction is proper despite plaintiffs' alleged failure to exhaust their tribal remedies, insofar as exhaustion is not required under the facts of this case and, in any event, such exhaustion would be futile. Further, although the APA probably provides a more appropriate vehicle for obtaining the relief plaintiffs seek in this case, defendants have not established that mandamus relief is unavailable. Finally, the Community is not a necessary party to this action and thus dismissal for failure to join the Community is not appropriate. Accordingly, defendants' motion to dismiss is denied.
An order consistent with his opnion shall issue forthwith.
Dated May 22, 1998
David W. McKeague
United States District Judge.
In accordance with the Court's written opinion of even date, IT IS HEREBY ORDERED that defendants motion to dismiss (docket #23) is DENIED.
Dated May 22, 1998
David W. McKeague
United States District Judge.
To read a brief summary of FFJ and it's begining read Tina Lam's Detorit Free Press article