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IN THE UNITED STATES DISTRICT COURT
THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

 

DONALD C. CARLSON,
Plaintiffs,

Case No. 2:99-cv-191
Hon. David W. McKeague

V.

AMY ST. ARNOLD AND
WILLIAM EMERY,
Defendants.

James B. Mitchell Jr. (P48125)
321 N. Front St.
Marquette, MI. 49855
906-228-2166
Attorney for Plaintiffs

James R. Bittorf (P52917)
Joseph P. O'Leary (P43349)
Office of the Tribal Attorney
107 Beartown Road
Baraga, MI. 49908
906-353-7031
Attorneys for Defendants

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PLAINTIFF'S MEMORANDUM IN OPPOSITION
TO MOTION TO DISMISS

1. Introduction

Plaintiff Donald C. Carlson has filed suit after being removed as a member of the Keweenaw Bay Indian Community (KBIC), a federally chartered Indian tribe. Defendants have moved to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(l), 12(b)(6), and 12(h)(3). Mr. Carlson objects to dismissal and sets forth his reasons in this memorandum.

II.. Legal standards for review

An action may be dismissed if the complaint fails to state a claim upon which relief may be granted. Van Domelen v. Menominee County, 935 F. Supp. 918 (W.D. Mich. 1996). A motion to dismiss for failure to state a claim on which relief can be granted should be granted only if it appears beyond doubt that plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Broyde v. Gotham Tower Inc., 13 F.3d 994 (6th Cir. 1994); cert. denied. 114 S.Ct. 2137, 511 U.S. 1128. All of plaintiffs factual allegations are deemed true and any ambiguities must be resolved in plaintiffs favor. Carter by Carter v. Comwell, 983 F.2d 52 (6th Cir. 1993), rehearing denied.

The standard for deciding a motion pursuant to 12(b)(l), when the motion is a facial attack, is essentially the same as for 12(b)(6). United States v. Ritchie. 15 F.3d 592 (6th Cir. 1994).

III. Plaintiffs factual allegations

Donald C. Carlson is an adult male who resides within the boundaries of the KBIC. Mr. Carlson has been an enrolled member of the KBIC since at least 1972, and his trial enrollment number is #l882. From 1972 to his expulsion, Mr. Carlson enjoyed all the various benefits which go with being a member of an Indian tribe - voting in elections, exercise of hunting and fishing rights preserved by treaties, medical care, and financial benefits. This list is not exhaustive.

In the mid 1990's political strife on the KBIC reservation reached a fever pitch. 202 members of the KBIC were dis-enrolled after an election, which had results not favored by the incumbent tribal council. Tribal offices were seized and physically held by individuals dissatisfied with the tribal council's actions. The tribal chairman was charged and convicted in this court with a felony. During this period of time the tribal council passed a resolution, KB-467-95, which allowed disenrolled members to remain on the tribal roll for some, but not all, tribal rights. For instance, they would not be able to vote. The Bureau of Indian Affairs (BIA) has ruled this resolution unlawful, and it is not clear to what extent the KBIC is enforcing it.

During the course of these occurrences, Mr. Carlson was involved in the affairs of the KBIC by attempting to run for tribal office, and generally participating in a public fashion which identified him with those not satisfied with the tribal council. As a direct result, he was expelled from KBIC membership by the tribal council. The tribal council, not the tribal court, is the sole judge of the qualifications of members (Article III, Section 5 of KBIC Constitution).

The expulsion occurred without prior notice to Mr. Carlson. Afterwards, he was provided no opportunity to challenge this decision, present evidence to the tribal council, or otherwise attempt to reverse his expulsion. The basis of the reason provided to him for expulsion was that his blood quantum was less than 1/4 Indian - which the plaintiff disputes vigorously. Mr. Carlson contends the real reason for his expulsion was the exercise of his political expression.. He has been denied the opportunity to a due process hearing by the tribal council.

Additionally, Mr. Carlson is most likely the only person expelled by the KBIC who has not received partial tribal benefit through KB-467-95.

IV. Argument

There is federal subject matter jurisdiction and the plaintiff does state a claim when he alleges violation of his substantive rights pursuant to the Indian Civil Rights Act, 25 U.S.C. 1301-1303 and there is no availability of intratribal relief.

Mr. Carlson alleges that his substantive rights to free speech and procedural due process of law, as guaranteed by the Indian Civil Rights Act, have been violated by defendants when they expelled him from the KBIC without a hearing after his political activity and speech. The free speech section is found at 25 U.S.C. 1302(1) and procedural due process is at 25 U.S.C. 1302(8).

The rationale for the holding in Santa Clara Pueblo v. Martinez. 436 U.S. 49 (1978) was that there was an availability of tribal courts and internal relief for aggrieved tribal members. With the reliance on the internal relief available the Court in Santa Clara places the limitations on the Indian Civil Rights Act as a source of a remedy. But in the absence of such other relief or remedy the reason for the limitations disappears. Dry Creek Lodge Inc. v. Arapahoe & Shoshone Tribes. 623 F.2d 682 (10th Cir. 1981), cert. denied. 449 U.S. 1118 (1981).

Thus, there is an exception to Santa Clara when there is an absence of a remedy available within the tribal government itself. That exception should be applied in this case. The only recourse Mr. Carlson has within the KBIC to challenge his expulsion is to the tribal council. His complaint alleges that he has tried, without success, to even have a hearing or get a response in any fashion to his grievance.

The one Sixth Circuit case, Lincoln v. Saginaw Chippewa Indian Tribe of Michigan. 967 F. Supp. 966 (E.D. Mich, 1997), aff'd. 156 F.3d 1320 (6th Cir. 1998), is not of assistance to this analysis. That case was dismissed because, as a suit against an Indian tribe itself, it was barred by the doctrine of sovereign immunity. Additionally, no allegations of specific substantive violations of the Indian Civil Rights Act appear to be alleged. Finally, there is no discussion as to whether there has been a forum available within the tribe. Therefore, the Sixth Circuit is yet to rule as to whether such an exception to the Santa Clara holding is appropriate.

Plaintiff acknowledges courts who have failed to apply the Cry Creek Lodge exception. See, Shortbull v. Looking Elk. 677 F.2d 645 (8th Cir. 1982), cert. denied. 459 U.S. 907. While holding that a political struggle is best left to the tribe itself, the Court expressed serious concern that Indian Civil Rights Act violations have no remedy, leaving the act meaningless. The better approach is to evaluate a plaintiffs intratribal remedies and assert federal jurisdiction when there are none.

Also, though not alleged within the complaint, plaintiff would argue not only is he without a tribal forum to raise his grievance, but that the tribal council is without legitimate authority. These matters could be stated in an amended complaint.

The Bureau of Indian Affairs has disapproved KB-467-95 and stated the validity of another resolution, KB-501-95, which stripped voting rights of 184 disenrolled members of the KBIC, to be partly dependent on the validity of KB-467-95. The KBIC, relying upon these resolutions, determined that 184 members who voted on December 17, 1994 did not meet membership requirements found in Article II, Section I of the tribal constitution. This was the basis for the KBIC nullifying its own election.

Therefore, election of several tribal council members was improper. The tribal council, as the sole arbiter of who is a member, operates without proper authority or jurisdiction. Mr. Carlson does not have a legitimate tribal authority to appeal to.

The habeas corpus provision of the Indian Civil Rights Act provides federal subject matter jurisdiction and the plaintiff states a claim when he alleges facts which constitute severe restraints on liberty to be considered detention.

The second exception to the holding in Santa Clara Pueblo is found in Poodry v. Tonowanda Bank of Seneca Indians. 85 F.3d 874 (2nd Cir. 1996), cert. denied. 117 S.Ct. 610, 519 U.S. 1041 (1996). That case holds there is conduct short of criminal prosecution which is sufficiently punitive to be detention and, therefore, can be entertained in federal court.

The one factual allegation made in Poodry but admittedly not made by Mr. Carlson is that there has been a "banishment" from the reservation. However, that case also acknowledges the "banishment" was not actually accomplished. In many other respects, the treatment is similar.

Plaintiffs factual allegations must be assumed as true at this stage and reasonable inferences which result from those allegations must also be assumed as true. Mr. Carlson states he cannot vote in tribal elections, is banned from election sites, cannot exercise hunting and fishing rights, cannot receive medical treatment through the KBIC, and a variety of other specific matters. He cannot physically attend meetings open to tribal members. These allegations are sufficiently similar to (hose alleged in Poodry to warrant denying defendant's motion to dismiss. Obviously, then. the factual allegations themselves can be challenged by defendants.

The later Second Circuit case cited by defendants, Shanandoah v. United States Department of the Interior. 159 F.3d 708 (2nd Cir. 1998), reaches a different result. It finds a set of factual allegations, similar to those in Poodry, does not result in the stating of a claim which can be litigated. The only difference between the set of facts is that In Poodry there is the "banishment" of tribal members without actual eviction from the reservation. Shanandoah v. United States Department of the Interior. 159 F.3d 714. Plaintiff would state the difference between the cases really appears to be a different panel of appellate judges who sought a different result from quite similar facts.

V. Conclusion

Plaintiff requests the case not be dismissed for either of the two arguments presented above. What defendants seek is the ability For tribal officials to treat a political opponent of theirs in any way they wish without recourse This suggests Mr. Carlson's civil rights under the Indian Civil Rights Act, have been violated, but he has no remedy. The case should not be dismissed.

Date: March 24 2000

signed
James B, Mitchell Jr P48125
Attorney for Plaintiff