Page 5 of FFJ Case 2:96-CV-294 Opposition to Motion to Dismiss

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     As to the first alleged right,. 25 USC 476 provides the Secretary with authority to approve or disapprove a tribal constitution, including its membership provisions. Thus secretarial influence is an ingredient in the determination of tribal membership regardless of any outcome in this case. Still more, the express constitutional mandates for secretarial review of actions affecting membership, such as adopticn or abandonment of Membership, entail ongoing secretarial influence.

The same comments apply to the contention that the Tribe has an exclusive right to interpret its own constitution. There is no such right. The secretarial authority to review specific tribal ordinances and resolutions flatly contradicts that assertion. Defendants are surely aware of their final authority to interpret the Keweenaw Bay Constitution.

We are aware that the Bureau must give def erence to the Tribe's interpretation of its governing documents; however, we must also make an :independent determination whether the ordinance complies with the governing documents. [citing 25 IBIA 187] The authority being proposed by the Community's ordinance is clearly in excess of the Community's territory as set out in the Community's constitution.

     Opinion of the Area Director, January-27, 1995, attached here as Exhibit 1, affirming Agency Superintendent's disapproval of tribal ordinance regulating non-member fishing.

A Rule 19 analysis should be driven by fact, not rhetoric. "The inquiry is a practical one and fact specific, and is designed to avoid the harsh results of rigid application. The moving party has the burden of persuasion in arguing for dismissal." Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.199b) . A fact driven analysis does not yield the conclusion that the Tribe is a.. necessary party and certainly does not yield the conclusion that "in equity and good conscience" these plaintiffs should be dismissed.

A. The Tribe Is Not A Necessary Party

    Under Rule 19 a person is deemed a .necessary party if

(1) in his absence complete relief cannot be accorded among those already parties;

       The relief these plaintiffs seek is simply the enforcement of a duty of review on these federal officials. The plaintiffs do not seek to have this court resolve the conflict between the Tribal Council and large segments of the Keweenaw Bay people. Nor do they seek an order compelling these defendants to disapprove the resolutions in question. The measure of whether complete relief can be granted is the relief the plaintiffs seek in their complaint, not the motives ascribed to them by the defendants. There is no reason why the complete relief sought cannot be accorded among. the present parties.

      It is true that in their complaint the plaintiffs set out various grievances that they have with the unreviewed Tribal Council actions in question. As pointed out at the outset of the Argument, those grievances serve to establish the plaintiffs' standing, as intended beneficiaries of the Indian Reorganization Act, to pursue this agency review action. Feezor V. Babbitt, supra, 953 F.Supp. at They demonstrate that the plaintiffs' concern in enforcing a duty on these federal officials is not merely the generalized concern of any citizen, but meets the "injury in fact" test. id. Those allegations do not serve to define the relief sought.
If complete relief can be accorded in its absence, a person may still be a necessary party if

(1) he claims an interest relating to the subject of the action.

       The defendants contend that the "Community certainly is an interested party in this action. Def s. Memo at 15. Being "interested" is not the standard. Rule 19's reference to an "interest" means a "legally protected interest." Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir. 1992) . As their argument for the tribels int-erest here the defendants quote Shermoen's further finding, that the absent tribes in that case had "an interest in preserving their own sovereign immunity, with its concomitant right not to have [their] legal duties judicially determined without consent.'" Id.

Plaintiffs have no quarrel with the Shermoen formulation: but in invoking that formula here defendants overlook the last two words - "without consent." The simple fact is that this case is before this Court now precisely because the Tribe consented to have Tribal Council powers subject to review by federal officials, and, as a matter of federal law, the acts or omissions of federal officials are subject to judicial review. The fact of consent to outside review takes this case out of the range of Shermoen or any of the other precedents the defendants rely upon.

The defendants have clearly failed to meet their burden of persuasion. Even if they had, a necessary party finding would not necessarily follow. It would remain to show either (a) a practical impairment of the ability to protect that interest; or (b) a "substantial risk" of the present parties incurring "inconsistent obligations." As the defendants do not address these additional requirements, and have not met the threshold requirement of showing a legally protected interest, we need not do so.

B. The Tribe Is Not Indispensable

      The Keweenaw Bay Indian Community enjoys a sovereign immunity from suit. If, arguendo, the defendants had met their burden of establishing that the Tribe is a necessary party, and the Tribe cannot be joined because of its sovereign immunity, the next step would be to determine whether the Tribe is indispensable - i.e., whether or not the case should proceed in the Tribe Is absence. For this determination Rule 19(b) supplies a four-factor test: (1) prejudice to a party.or to the absent party; (2) whether relief can be-shaped to lessen prejudice; (3) whether an adequate remedy can be awarded without the absent party; and (4) whether there exists an alternative forum.

It is not clear that the relief sought can be shaped to lessen prejudice to the absent party. But that is because the relief sought is minimally prejudicial in the first place. We repeat: plaintiffs do not ask the court to order the disapproval of the resolutions in question. If the Court orders review, no prejudice accrues unless the defendant officials should disapprove the resolutions. That is a mere contingency, unless the unconstitutionality and unfairness of these resolutions is so flagrant that upon review fair-minded officials would be compelled to disapprove. According to the defendants, "[a]ny interpretation of the Community's constitution would certainly prejudice the Community." Defs. 14emo at 17. If that means what it says it is a remarkable concession.

It is clear that plaintiffs have no alternative forum. We have shown the futility of the tribal forum in these circumstances. According to defendants "[t]he appropriate forum in which to address their [concerns is a] tribal forum, either legislative or judicial." Def s. Memo at 16. In fact, as we have shown, they are one and the same. It would be fatuous to suggest that a Tribal Council which has willfully stripped tribal members of their right to vote provides a forum for these members, grievances just because it puts on its "Appellate Court" cap.

As to adequacy of remedy it is true that a judgment in this case cannot restore to the plaintiffs their right to vote nor the other rights of full tribal citizenship that have been taken from them. But by requiring an official federal review of the resolutions, a judgment will establish a genuine forum in which the validity of these measures can be reviewed. That is not a complete remedy, but it creates the possibility and opportunity for a more complete remedy. That is adequate enough. Defendants cannot cogently claim that on the one hand "any interpretation of the constitution," would be prejudicial to the Tribe and on the other hand depreciate the important effect that federal officials' review might have.

Finally we come to the balancing of prejudices. If the case is dismissed these plaintiffs, long-time enrolled members who have been stripped of the right to vote by legislative fiat, will be stripped of their last hope of redress. If the case is not dismissed the Tribe faces at worst a contingent liability that federal officials will disapprove the resolutions in question, and the possibility that enrolled members such as these plaintiffs, who have voted for years on end, will resume voting in tribal elections. However threatening this latter result might be to the present Tribal Council, it surely poses no significant prejudice to the Tribe. To the extent the plaintiffs, exercise of the right to vote which they have previously long exercised is now deemed prejudicial to the, "Tribe," the Tribe could always amend its. Constitution, rid itself of the possibility of federal review, and allow its Council to cancel elections, strip members of the right to vote, abuse the adoption procedure, and in general carry on as it wishes.

In "equity and good conscience" a factual, practical application of the four factors militates against any dismissal. Defendants point to case law holding that where the absentee is absent by virtue of its immunity, the immunity may be viewed as a qonipelling interest tipping the scales. Fluent v. Salamanca Lease Authority, 928 F.2d 542, 548 (2nd Cir. 1991) cert. denied 502 U.S. 818 (1991). The invocation of Fluent fails for the same reason as the earlier invocation of Shermoen. The difference between this case and Fluent is the Tribels consent in its organic law to the interposition of secretarial review. Where a tribe has constitutionally consented to the interpositions of a third party, the immunity interest is far less compelling and does not tip the scales of equity.

Conclusion

For the foregoing reasons the plaintiffs request the Court to deny defendants, Motion to Dismiss.

Dated this day of February, 1998.
Respectfully,
Milton Rosenberg
Attorney for the Plaintiffs

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