Page 4 of FFJ Case 2:96-CV-294 Opposition to Motion to Dismiss

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     Rather than confront the clear language of the secretarial mandate in Art. VI, Sec. 2, and Secretary Ickes' approval order requiring federal officials, compliance, defendants attack a straw man "25 USC 476, however, imposes no general duty on the Secretary to review all tribal resolutions or ordinances." Defs. Memo at 6 (emphasis added) That statement is well said, but utterly beside the point. Plaintiffs have never suggested such a "general duty ... to review all tribal resolutions." Plaintiffs have specifically addressed the specific mandate for review in clause 1(k) as the ground for the claimed obligation here. Indeed, if is the selective, clause by clause determination of what powers are subject to review that underscores the concerns of the persons adopting the Constitution, and the importance of the duties assumed by the Secretary in accepting and approving such terms. *7

    Defendants next contention is that the Court should ignore clause l(k) of the tribal constitution and its requirement for secretarial review. In its stead defendants ask this Court to find that under Article VI, clause l(a), the Secretary is relieved of the duty of review, so long as the Tribal Council declares that its action is "to protect the health, safety and general welfare,' of the Community. The idea that invoking such a catchall can obviate the need to conform to specific duties of review elsewhere prescribed in Article VI, is ludicrous.

     The quoted phrase does not stand alone in clause i(a) it comes at the end of a list of detailed actions that, the Council is authorized to take:

To regulate the uses of tribal property, to protect and preserve the tribal property, wildlife 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 ... Community.

Defendants would have the Court read this clause as though the last phrase read "and anything else the Council declares is to protect the health, security, etc." Such a grotesque reading would not only nullify and render redundant each and every phrase preceding the catchall; it would render redundant the 17 clauses that follow, and nullify the restraints expressly stipulated in those clauses. Under that reading the rear of clause i(a) would simply swallow the whole of Article VI.

     No competent legal analysis would adopt such a reading. Courts have recognized that where a law prescribes a detailed system of powers and procedures on the one hand, and a general clause that might appear to swallow and nullify the specific details, the specific must prevail over the general. See Block v. North Dakota, 461 U.S. 273, 285 (1983) (" [A] precisely drawn, detailed statute preempts more general remedies") ; California Save Our Streams Council v. Yeutter, 887 F.2d 908, 911 (9th Cir. 1989) (Rejecting an interpretation under which "general legislation would render ‘ nugatory' such a carefully crafted scheme of review). Surely Art. VI, Sec. 1 of the Keweenaw Bay Constitution, with its 18 enumerated powers and selective mandates for secretarial review, is such a "carefully crafted scheme of review."

     Similarly, well established principles of interpretation forbid the defendants, reading of the catchall phrase. Recognized principles of construction prescribe that where a law sets forth a series of detailed acts or things, followed by a catchall phrase so general as to render the preceding phrases redundant, the catchall must be read as referring as referring to things akin to the preceding phrases.

Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.

Norfolk Western Rwy Co. v: Am. Train Dispatchers Ass'n, 499 U'.'.S. 117, 129(1991).

[A] word is known by the company it keeps (the doctrine of noscitur a sociis) . This rule we rely upon to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving "unintended breadth to the Acts of Congress."

Gustafson v. Alloyd Co., ____ U.S.____, 115 S.Ct. 1061, 1069 (1995).

      Thus, the last phrase of clause i(a) is to be read as " ...and to take such other actions similar to the foregoing as protect the health, security, etc." The result is to arrive at a rational reading of clause i(a) and the entirety of Article VI. It also forecloses the use of such clause as a shield against secretarial review of the resolutions in question.

     As their final argument defendants contend that: intertwined resolutions setting apart a class of already-enrolled members, depriving them of the vote, requiring them to seek adoption in order to gain the vote, and then prescribing a special election for adoption of that specific class of already-enrolled members, are not resolutions governing adoption or abandonment of membership." Apparently it is defendants, view that because there already was an ordinance governing adoption, Defendants' Exhibit 1, subsequent resolutions cannot "govern" adoption unless they expressly amend the ordinance.

     The defendants, view cannot be supported. These resolutions culminate in a radical change in the status of adoption. Under the tribal constitution there are two and only two classes of members: (a)persons entitled as of right to membership, under Art. II, Sec. 1. Such persons are automatically entitled to vote and to exercise treaty rights; and (b) persons who are adopted by majority vote of the Community under Art. II, Sec. 2; such persons are entitled to vote but are barred from exercising treaty rights.

   These resolutions govern adoption and abandonment of membership by stripping persons of a fundamental right of membership and significantly modifying the purpose and significance of adoption by forcing selected, already-enrolled members to seek adoption by majority vote in order to vote in elections. This converts adoption into a mechanism for stripping these persons of the exercise of treaty rights. This significantly modifies the bon, constitutional meaning of adoption. Surely the fact that the resolutions may be unconstitutional does not strip them of the status of "resolutions governing adoption and abandonment" under clause l(k).

III. .It Serves No Interest Of Comity Nor Respect For Tribal Self-Determination To Refuse To Enforce An Obligation Of Review Upon The Federal Officials To Whom Such Review Is Confided In The Organic Law Of The Tribe.

     There are two fundamental reasons why the National Farmers prudential rule of exhaustion of tribal remedies is not applicable in the circumstances of this case.

     First, the exhaustion rule is based on comity. Comity is the respect the institutions of one sovereign owe to the laws and institutions of another. In this circumstance the fundamental organic law of that other sovereign, the Keweenaw Bay Constitution, expressly confides responsibility for review of the resolutions inquestion to the Secretary of Interior. It does not confide review of such action to a tribal court. Indeed, the Keweenaw Bay Constitution neither establishes nor requires the Tribal Council to establish a tribal court; it merely empowers the Council to do so if it pleases.

    The Keweenaw Bay Constitution not only confides review to the Secretary in Section 1: the time frame specified for initial review, ten days, is wholly at odds with the notion that the precondition for enforcing the duty of review on the Secretary is to first wend one's way through the tribal trial and appellate courts.

    When defendants scold the plaintiffs for proceeding in the "wrong forum," it is they who disrespect the Keweenaw Bay sovereign and the referendum vote of that sovereign people to incorporate secretarial review into their organic law. It serves no interest of comity nor tribal self-determination for these federal officials to substitute their judgment of the best forum for review in place of the Community's judgment incorporated in its organic law.

   Plaintiff s' counsel is not aware of any case seeking to enforce the secretarial duty of review in which the National Farmers exhaustion rule has been applied; and certainly he knows of none in which the duty for which federal enforcement is sought is imbedded in the tribes' constitution. The inappropriateness of disregarding the provisions of a tribe's organic law in the name of comity and self-determination is obvious.

   Strate v. A-1 Contractors, supra, confirms that the exhaustion rule cannot be applied automatically; nor is comity and self-determination a talisman that can be invoked without heed to the circumstances. That view has long been recognized among the lower courts: "[E]haustion of tribal remedies is not an iron-clad requirement . . " Rosebud Sioux Tribe v. Driving Hawk, 534 F. 2d 98, 101 (8th Cir. 1976); "Exhaustion is required as a matter of comity ... But it is not an inflexible requirement blind to the facts of each case." Janis v. Wilson, 521 F.2d 724, 727 (8th Cir. .1975). It may well be that federal officials are correce in thinking that tribal pe6ple would be better off if they relied exclusively on their own courts and ignored secretarial review. But if self-determination means anything it should mean that the stipulations in a tribes organic law are not subject to the "better judgment" of the Secretary but are only-subject to amendment by referendum vote of the people. That referendum vote has not been taken.

     A second major reason why exhaustion is inappropriate here is futility. Under Section 1.114 of the Keweenaw Bay Tribal Code the Keweenaw Bay Appellate Court consists of the 12 member Tribal Council, any five of whom may constitute a quorum, and whose decisions shall be final. This is the body who controls the outcome of any tribal court litigation and would pass on the acceptability of its own legislation.

     This issue posed by such an arrangement is not merely the lack of impartiality; it is the overt hostility between the Council and its victims. The conflict between the Council and a large segment of the Keweenaw Bay people is set forth in ¶19-26 of the Amended Complaint. For purposes of this motion those allegations are to be taken as true. As to the intensity of the conflict this Court can take judicial notice of the scenes played out in this Court and its immediate environs.

    Given the hostility between the Council and these people, the futility of plaintiffs proceeding through the trial court only to wind up before the Council sitting as the Appellate Court should be obvious and incontrovertible. If specific fact is required, it is supplied by ¶26 of the Complaint: that paragraph describes the Councils rejection of an adverse decision by an outside judge brought in specifically to resolve issues arising from this conflict. The issue of futility should not require extended argument.

The petitioner had no effective remedies available to him in Tribal Court . . . That remedies are available in theory, but not in fact, is not synonymous with failure to exhaust remedies. That ineffective and meaningless procedures were available petitioner does not preclude his seeking a writ of habeas corpus.

U.S. ex rel. Cobell v. Cobell, 503 F.2d 790, 794 (9th Cir. 1974) cert. de@d 421 .S. 999.

Such matters would most likely come before the business council itself. Thus in the present context, tribal remedies appear inadequate and need not be exhausted.

McCurdy v. Steele, 353 F.Supp. 629, 636 (D. Utah.1973). Accord:
Rosebud Sioux Tribe v. Driving Hawk, supra, 534 F.2d at 101;
Howlett v. Salish & Kootenai Tribes, 529 F.2d 233, 240 (9th Cir. 1976)

IV. The Keweenaw Bay Indian Community Is Not An Indispensable Party Under Rule 19.

    Rule 19, Fed.R.Civ.P., prescribes a two step process in determining whether dismissal for the failure to join an absent person as a party is warranted. The first step consists in determining whether the absentee is a necessary party who should be joined. If the necessary party cannot be joined the further step consists in determining whether "in equity and good conscience," the action should proceed igithout the absentee or be dismissed.

     In summarizing their conclusion the defendants indulge in flights of rhetoric:

Plaintiff's 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.

Def s. Memo at 14. To the extent these rights are alleged to be exclusive the defendants contentions are patently false.

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7. The defendants reiterate the straw man contention when they argue, both in Part I and again in Part IV on mandamus, that the secretarial action sought is discretionary: " [T] he act of reviewing ordinances is supervisory and discretionary;" citing Pinnow v Shoshone Tribal Council, 314 F. Supp. 1157, 1167 (D.Wyo. 1970). Supporting Memo at 18. It is clear, however, that the Pinnow plaintiffs were claiming, and the Court was rejecting as mandatory, just that "general duty" of review or "supervision" that is not at issue in this case. Pinnow had sought an "order . . . directing the [Tribal] Councils to institute fair, just and legal Tribal ordinances, laws and rulings," and ordering the Secretary to "assure and supervise such action."

Nothing could be more general and judicially unenforceable than such a claim for relief, in an Indian context or anywhere else. There is no suggestion in the case that the Pinnow plaintiffs was seeking enforcement of specific constitutional mandates. To our reading there is no mention in the case of a tribal constitution, let alone specific mandates for secretarial review. Indeed, the absence of any constitution or constitutional mandates for review explains the court's reference to "mere" approval authority, when it states that "[m]ere approval authority is discretionary with the Secretary."

 

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