Page 3 of FFJ Case 2:96-CV-294 Opposition to Motion to Dismiss

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Argument

In this action the plaintiffs seek enforcement of a duty federal officials have undertaken under federal law, and specifically under a provision of. the Indian Reorganization Act ("IRA,,), codified at 25 USC 476. The plaintiffs, including an elected official of the Tribe, are enrolled members of the Tribe, and "are among the intended beneficiaries of the IRA." Feezor v. Babbitt, 953 F. Supp. 1, 5 (D.D.C. 1996).

The plaintiffs have alleged certain factors suggesting that the resolutions for which they seek enforcement of secretarial review may be unconstitutional. The purpose of those allegations is merely to establish, for purposes of standing, that the plaintiffs interest is not merely a generalized interest in review, but rests upon an injury in fact.

Furthermore, the IRA's express provision for secretarial approval of tribal constitutions and by laws has been extended by BIA's policy of including provisions for secretarial approval of subsequent ordinances in tribal constitutions. When and if the approval procedure is unfair, the resultant injury is more than "marginally related" to the purposes of the statute.

Feezor v. Babbitt,, 953 F. Supp. at 5. Here the approval process has not been "unfair:." it has been non-existent.

    Regardless of the defendants, mischaracterizations, the plaintiffs do not seek this Court's review of the validity of the resolutions in question, nor any relief requiring their disapproval. They seek only the review mandated by the Secretary's express undertakings under federal law.

    There is a second point to be born in mind in considering the issues posed on this motion. In the defendants' arguments much is made of a tribes right to "self-determination," "sovereignty". and kindred notions. "Self-determination" in the first instance is not the right of a tribal government but a right of the people, the "right of reservation Indians to make their own laws and be governed by them." Williams v. Lee, 358. U.S. 217 (1959) (emphasis added) The first and most fundamental expression of the Keweenaw Bay people's right to self-determination is the Keweenaw Bay Constitution. It is both ironic and perverse to disregard the express stipulations of that Constitution in the name of respect for "self-determination."

I. There Is No Colorable Ground For The Contention That This Court Lacks Subject Matter Jurisdiction.

A. This Court Is Vested With Jurisdiction Under 28 USC 1331, With Sovereign Immunity Waived Under 5 USC 702.

    The secretarial obligation in question arises either under 25 USC 476, subjecting tribal constitutions to secretarial approval, or federal common law, or the two in combination. Regardless, this .Court's subject matter jurisdiction over the agency action or failure complained of lies squarely under 28 USC 1331.

[S]ubject only to preclusion-of-review statutes created by Congress, . . [Section 13311 confer[s] subject-matter jurisdiction on federal courts to review agency action, regardless of whether the APA of its own force may serve as a jurisdictional prerequisite.

Califano v. Sanders, 430 U.S. 99 (1977). Accord: Califano v. Reagan, 780 F.2d 37, 42 (D.C. Cir. 1986), rejecting government's argument that appellant's claims could not "arise under" federal law because there was no federal law governing the decision of the 4 federal agency; Feezor v. Babbitt, 953 F. Supp. at 4.*4

B. Under Governing Supreme Court Precedent Exhaustion Of Tribal Remedies Is Not A Jurisdictional Requirement.

    The defendants, jurisdictional contention is rejected in the very Supreme Court line of cases the defendants rely on. Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987), speaks of the exhaustion of tribal remedies set forth in National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) as a "prudential rule," 480 U.S. at 20, nl4. In its recent decision in Strate v. A-1 Contractors, ___ U.S.___, 117 S. Ct. 1404 (1997) the Court returned to the point: "We do not extract from National Farmers anything more than a prudential exhaustion rule," Id. at 1411; "[W]e reiterate that National Farmers and Iowa Mutual enunciate only an exhaustion requirement, a 'prudential rule, ... based on comity." Id. at 1413.

   To underscore the point the Supreme Court went out of its way to state that there was no need for a district court to require exhaustion in the circumstances of that case: "[W]hen tribal court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement must give way .." 117 S.Ct. at 1416, nl4.

   In Part III below we address the issue of whether a prudential rule requiring exhaustion of tribal remedies, "based upon comity," demands dismissal on the facts of this case.*5

C. The Defendants' Attacks On Claims To Mandamus Relief And Pendent Jurisdiction Do Not Affect The Subject Matter Jurisdiction Established Under Plaintiffs' First Claim For Relief.

    In Part IV. of their Memorandum defendants argue that plaintiffs are not entitled to a writ of mandamus because there is no specifiable duty the defendants owe to the plaintiffs. This argument merely resumes and expands arguments defendants make in Part I of their Brief, to which we reply in Part II below. In any case, a mandamus decision cannot affect the subject matter jurisdiction of the Court because qualification for mandamus does not create jurisdiction.

   As to the Complaint's reference to pendent jurisdiction, that was intended to relate, not to a state law claim, but to plaintiffs, second claim, which arises under tribal law. Though 28

  USC 1367 appears to have state law claims primarily in mind, the language of that statute does not limit "supplemental jurisdiction' to state law claims. Our reference to the pendent jurisdiction doctrine was to the doctrine underlying Section 1367 and was intended to assert, as a matter of first impression, that the doctrine might apply to claims arising under tribal law. It is not necessary to decide that issue as we contend that plaintiffs' first claim for relief provides ample ground both for subject matter jurisdiction and decision in this case.

II. In Approving' The Keweenaw Bay Constitution's Provision Subjecting Tribal Council Resolutions Governing Adoptions And Abandonment of Membership To Review, The Secretary Undertook A Federally Enforceable Duty To Exercise Review Authority Over Such Council Actions.

  Section 16 of the Indian Reorganization Act, 25 USC 476, imposes mandatory, judicially enforceable duties upon the Secretary of Interior. Coyote Valley Band v. United States, 639 F.Supp. 165, 175 (E.D. Cal. 1986). Coyote Valley recognized the Secretary's mandatory duty to call tribal elections on draft tribal constitutions.

    The duty to call elections for the adoption of tribal constitutions is not the matter at issue here. At issue here is the Secretary's further authority under Section 476 to approve or disapprove of tribal constitutions once adopted by the tribal community, and the significance of such approval. Specifically; the issue is the significance of the Secretary's approval of constitutional provisions purporting to impose the duty of review upon the Secretary.

     The Keweenaw Bay Constitution which emerged from secretarial election in 1936 contained provisions subjecting certain categories of Tribal Council power to secretarial review. These included the previously quoted clause 1 (k) of Article VI, the "Powers and Duties" portion of the Constitution. The issue presented here is whether, in approving these terms of the Constitution the Secretary was undertaking a duty to review, and, if so, whether such duty is enforceable in a federal court.

     Examination of Section 2 of Article VI, prescribing the procedures for secretarial review, removes any doubt as to the framers understanding of the review authority. The language of Section 2 is unequivocally mandatory:

Any resolution or ordinance which, by the terms of this Constitution, is subject to review by the Secretary of the Interior, shall be presented to the Superintendent of the Reservation, who shall, within ten days thereafter, approve or disapprove the same, and, if such ordinance is approved, it shall thereupon become effective . . . (emphasis added).

     One cannot read the phrase declaring that the Superintendent "shall . . . approve or disapprove" as leaving the Superintendent with discretion to do neither.

  The referendum vote of the Keweenaw Bay people proposed the duty of review to the Secretary, which he could accept or reject by his approval or disapproval. On December 17, 1936, declaring that. he was acting "by virtue of the authority granted me by the act of June 18, 1934 (48 Stat. 984),"*6 the Secretary of Interior not only approved the Keweenaw Bay Constitution, but ordered "[a]ll officers and employees of the Interior Department to abide by the provisions of the said Constitution."

  Clearly, the language of the Secretary's approval went beyond implicit acceptance of the duty of review. The order to department officers and employees to abide by the provisions constitutes express recognition and acceptance of these obligations. Neither the tribal electorate's referendum vote, nor the Secretary's 1936 explicit acceptance of the obligations proposed under the Constitution,'have ever been rescinded, and remain in place today'. as mandates on the conduct of Superintendent Bolton and the Area Director. "I do not believe that the Department can ignore the plain requirements of Section 2. Article VI." Opinion of the Interior Department Acting Solicitor, April 11, 1940, I Op. Sol. at 950 (emphasis added), referring to the same constitutional text as quoted above, in another tribal constitution.

The defendants' argument that the Secretary's duties of review under 25 USC 476 are limited only to approval of the constitution itself and other items expressly listed in that statute has been rejected in the courts.

Furthermore, the IRA's express provision for secretarial approval of tribal constitutions and bylaws has been extended by BIA's policy. of including provisions for secretarial approval of subsequent ordinances in tribal constitutions.
Feezor v. Babbitt, supra, 953 F.Supp. at 5.

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4. Runs After v. United States, 766 F.2d 347, 352 (8th Cir. 1985), a decision cited by defendants, reaches the same conclusion: "We agree that federal district courts do have subject matter jurisdiction under 28 USC 1331 to review, pursuant to the APA, the BIA action." The Court went on to reject jurisdiction on the ground that plaintiffs' had not exhausted their administrative remedies. Id. The plaintiffs in that case "challeng[ed] the validity of the July 12 resolutions" 766 P. 2d at 348, and the Eighth Circuit agreed with the district court that that issue belonged elsewhere. Here the plaintiffs do not ask the Court to pass on the validity of the resolutions, but only enforce the defendants obligation under federal law to review the resolutions in question. No such obligation was before the court in Runs After. In Part II of their Memorandum defendants contend that this Court should require the plaintiffs to exhaust their tribal remedies, and that therefore the plaintiffs must be relegated to tribal court. In their Memorandum the defendants nowhere argue that exhaustion of tribal remedies is a jurisdictional requirement, though they do so contend in ¶10 of their Motion.

5. Suffice it to say further here that the instant action, seeking enforcement of a duty upon federal officials, would fall under the above quoted footnote in Strate, rejecting the exhaustion requirement where the, lack of 'tribal court jurisdiction is clear. See Louis v. United States, 1997 WL 339141 (D.N.M. June 10, 1997) (Rejecting claim to tribal court jurisdiction over an action against the federal government).

6. I.e., the Indian Reorganization act ("IRA").

 

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