Page 2 of FFJ Case 2:96-CV-294 Opposition to Motion to Dismiss

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        On November 27, 1995, defendant Bolton declined to exercise the power of review. See Attachment G to the Complaint. As grounds, defendant- Bolton declared the affected persons to have been "unconstitutionally enrolled." Furthermore, she stated, the resolution stripping members of the vote was a "TEMPORARY solution," and was deemed to be a "health, security and general

The plaintiffs appealed the decision to the Area Director, who affirmed the Superintendent's decision on April 18, 1996. The Area Director based his decision on the fact that the Tribal Council had not submitted the resolutions, the fact that the Tribe had previously adopted an ordinance, and the claim not to find any basis for review. See Attachment H to the complaint.

The plaintiffs appealed the Area Director's decision to the Interior Board of Indian Appeals (hereafter "Board"). On July 19, 1996 the Board dismissed the appeal, without hearing on the merits, for lack of standing. See Order Docketing and Dismissing Appeal, No. IBIA 96-73-A, Attachment I to the Complaint.

On November 19, 1996 the Plaintiffs filed this Complaint, challenging the refusal of Bureau officials, who have been delegated the responsibilities of review, to exercise the review authority respecting Resolutions 467 and 501.

During the proceedings in this case the defendants twice represented that they would be filing a Motion to Dismiss challenging the subject matter jurisdiction of this Court. On September 3, 1997 they represented that they would be filing such motion by September 15th. When that deadline passed they renewed their representation in December and received an extension.

Defendants have now filed their Motion and supporting Memorandum.3 The Motion alleges three grounds for dismissal: (1) the failure to state a claim; (2) the failure to exhaust tribal remedies; and (3) the failure to join an indispensable party. In the Motion itself the defendants state that failure to exhaust tribal remedies is jurisdictional: "10. Plaintiffs' complaint must be dismissed for lack of jurisdiction because plaintiffs failed to exhaust their tribal remedies." In the supporting Memorandum the defendants nowhere repeat or argue for that contention.
Further are as stated in the Argument below.

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3. The Motion makes certain factual allegations, including the allegation that plaintiffs' "are not elected officials of the Keweenaw Bay Indian Community." This contradicts ¶29 of the Complaint and Amended Complaint, which states that plaintiff Loonsfoot holds elected office on the Keweenaw Bay Tribal Council.

 

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