United States District Court, D. Arizona
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 ...