Cross v. United States Department of Interior

          ORDER

          Cindy K. Jorgenson United States District Judge.

         Pending before the Court is the Motion to Dismiss (“MTD”) (Doc. 10) filed by the United States Department of the Interior (“the government”). Plaintiff Raymond Cross (“Cross”) has filed a response (Doc. 11) and the government has filed a reply (Doc. 12). Also pending before is the Request for Oral Argument (Doc. 13) filed by Cross. The government has filed a response (Doc. 14).

         I. Factual and Procedural Background^[1]

         Cross is an enrolled member of the Three Affiliated Tribes (“TAT”). The TAT is a federally recognized Indian tribe and resides on the treaty-established Fort Berthold Reservation (“Reservation”) in northwestern North Dakota. Cross is the spokesman for an ad hoc group of tribal members who have decided to request a Secretarial Election, via a Secretarial Petition, that would be administered by the Secretary.^[2] More specifically, this ad hoc group seeks to petition the Secretary of the Interior (“the Secretary”) to call a Secretarial Election “for the purpose of repealing a 1986 constitutional amendment that had extinguished the pre-existing right of ALL (emphasis added) of the [Three Affiliated Tribes'] non-resident, but otherwise constitutionally qualified, tribal voters to vote by absentee ballot in all tribal elections.” Complaint (Doc. 1, ¶ 15). The Complaint asserts many non-resident tribal voters have found returning to the Reservation to be economically or physically impracticable and unduly burdensome. The TAT Constitutional provision the ad hoc groups seeks to put up for referendum states:

For the purpose of voting in Tribal Business Council Elections exclusively, any eligible voter of the Tree Affiliated Tribes, whose place of legal residence is located outside of the exterior boundaries of the Fort Berthold Reservation on the date of an election shall return to the Reservation in order to vote in the election and shall register to vote and case his ballot at the appropriate segment polling place on the date of the election.

TAT Const., Art. IV, sec. 2(b). Complaint, Ex. I (Doc. 1-9, p. 4).

         The Complaint alleges the building of the world's largest earth-filled dam on the Reservation took over 156, 035 of TAT's best and last remaining agricultural lands.^[3] This resulted in the destruction of nine historic river bottom communities, geographically fragmented the Reservation, and caused the exodus from the Reservation of TAT's younger and productive members. Approximately 75%-80% of TAT's enrolled members live and work off the Reservation.

         TAT's 1936 Constitution has not been comprehensively amended or revised to take into account the demographic and geographic changes. The Constitution continues to grant TAT's overall political authority to the “relatively small minority of tribal members who reside within the Reservation's six (6) segments or electoral districts and who possess the exclusive constitutional authority to vote for representatives to [TAT's] governing body known as the Tribal Business Council [(“TBC”)].” Complaint (Doc. 1, ¶ 38).

         In a letter sent on May 17, 2017, Cross requested the Local Fort Berthold Agency Official, Superintendent Kayla Danks (“Danks”), to inform Cross as to the minimum number of tribal signatures required to validate the Secretarial Petition. The MTD asserts that, on May 18, 2017, Danks sent a letter, via email, to the Chairman of TAT informing the Chairman of Cross' letter requesting the total number of tribal members age 18 or older, consistent with 25 C.F.R. § 81.57(a)(2)(I). The MTD asserts that TAT's Enrollment Officer informed Danks there were 10, 340 living adult tribal members as of that date. By letter dated May 18, 2017, Danks informed Cross of the total number of living adult tribal members, and that consistent with Article X of TAT's Constitution, 3, 447 signatures would be needed for a valid petition, “provided the other strict requirements under the Secretarial Election regulations for a valid petition are followed.” Response, May 18, 2017 Danks letter, Ex. 1, Att. 4 (Doc. 10-1).

         Danks provided a formal Decision to Cross which stated, inter alia:

As stated in our May 18, 2017 letter, we received the enrollment information [that there were 10, 340 living enrolled tribal members who were 18 years of age or older] from the Tribal Enrollment Office, which was then divided by one-third, which then equals 3, 447 signatures of qualified voters. After conferring with higher management, we have concluded that since this information was relayed [to Danks] from the Tribe and pertains to Article X, of the Three Affiliated Tribes' Constitution, it does not present any information or decision that is appealable under 25 C.F.R. § 2.7(c).

Complaint, Ex. B, June 21, 2017 Decision of Danks (Doc. 1-2).

         The Complaint alleges neither Danks nor the Great Plains Regional Director Timothy LaPointe (“Director”) of the Bureau of Indian Affairs (“BIA”) fulfilled Cross' request. The Complaint alleges Danks and the Director claim they were legally entitled to by-pass a requirement in the TAT Constitution, Art. X, that they determine the minimum number of constitutionally “qualified voters” who must sign a Secretarial Petition to render it valid. Danks asserts the information provided to her by the Tribal Enrollment Officer entitled her to use that number in determining how many tribal members' signatures were required. The Director asserts Art. X's silence regarding the qualifications of the tribal members constitutionally required to sign the Secretarial Petition triggered a default federal regulation, 25 C.F.R. § 81.53, which authorized all adult tribal members of TAT to be used in determining qualified tribal voters.

         On July 14, 2017, Cross provided a Notice of Appeal (“NOA”) to Danks pursuant to 25 C.F.R. § 2.9. The NOA referenced both Danks' decision as to the number of signatures required and the conclusion that this decision was not appealable.

         The Decision on appeal stated:

. . . You concede in your appeal that the Superintendent properly calculated the number of signatures needed for a valid petition based on the tribally provided number of tribal members who were 18 years of age and older as of May 18, 2017. If the Superintendent's basic mathematical calculation is correct, as you concede, other than that unchallenged calculation, the Superintendent made no decision and merely acted as a pass-through for information provided by the Tribe as required by 25 C.F.R. § 81.57(a)(2)(i) and (ii).

* * * * *

Although Article X of the Constitution uses the term “qualified voters” in relation to determining the number of signatures needed for a valid petition, the section does not define “qualified voters.” Where the tribal constitution is silent, it does not supplant federal regulations. Given that 25 C.F.R.. § 81.57(a)(2)(i) requires only a listing of tribal members “18 years of age or elder, to determine the number of tribal members who must sign a petition, ” it seems clear that to be qualified for ...