Wright et al v. Langdeau et al

Filing 16

ORDER denying 12 Motion for TRO. Signed by U.S. District Judge Lawrence L. Piersol on 6/10/15. (DJP)

FILED
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

JUN 10 2015

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KEVIN WRIGHT, Acting Chairman,
Lower Brule Sioux Tribal Council Member;
SONNY ZIEGLER,
Lower Brule Sioux Tribal Council Member;
and DESIREE LaROCHE,
Lower Brule Sioux Tribal Council Member,
Plaintiffs,
vs.
ORVILLE (RED) LANGDEAU,
Lower Brule Sioux Tribal Council Member;
JOHN McCAULEY, SR.,
Lower Brule Sioux Tribal Council Member;
SALLY JEWELL, Secretary of
United States Department of the Interior;
JAMES TWO BULLS, Bureau oflndian
Affairs Lower Brule Agency
Superintendent, in his official capacity; and
TIM LAPOINTE, Aberdeen Area BIA
Director, in his official capacity,
Defemdants.

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CIV 15-4097

ORDER DENYING PLAINTIFFS'
MOTION FOR TEMPORARY
RESTRAINING ORDER

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Lower Brule Sioux Tribal Council Members, Kevin Wright, Sonny Ziegler, and Desiree
LaRoche (Plaintiffs), move this Court for a temporary restraining order pursuant to Rule 65(b) ofthe
Federal Rules of Civil Procedure restraining the Tribal Court from holding separate jurisdictional and
evidentiary hearings on June 11, 2015. For the following reasons, the motion is denied.

BACKGROUND
In December of2014, a tribal council meeting was held wherein Plaintiffs were attempting
to ascertain the whereabouts of roughly $24 million in federal funding and how it could be that the

current chief tnbal judge was seated after allegedly being defeated during the election process.
Plaintiffs allege that Defendants McCauley and Langdeau departed from the council meeting when
such issues arose, refusing to answer. The Council was thereafter recessed and the current conflict
arose.

Defendants herein filed an action in tribal court on May 1, 2015 in order to remove Plaintiffs
from their positions as tnbal council members. The tribal court action was allegedly brought on
May 1, 2015 by Defendants (tribal court plaintiffs) in order "to stop the acting tribal chairman Kevin
Wright from trying to inquiry (sic) or find out about the missing or unaccountable federal funds in
amount over (sic) 24 million dollars." Complaint at 2, Wright v. Langdeau, (D.S.D. 2015) (CIV. 154097). It is alleged that Defendants' attorney at the tnbal level ''who was mandated to provide legal
services to the whole six member tribal council including [Plaintffs]" instead indicated in her court
filings that she represented the ''Tnbe" without specifying any further. Brief for Plaintiffs at 2, Wright
v. Langdeau, CIV-15-4097 (D.S.D. June 4, 2015). To rectify the perceived defect, presiding tribal
judge, B.J. Jones, allowed Defendants to intervene as Plaintiffs in the tribal action. Plaintiffs in the
present action further allege that Defendants in the present action have failed to remit court fees in
accordance with tnbal court procedure.

Plaintiffs allege among other things that the issue revolving around the whereabouts of the
federal funds was raised in both a petition for extraordinary writ of mandamus requesting the tribal
appellate court judges to order Defendants to account for the funds and an interlocutory appeal
arguing that the tribal court special judge abused his discretion by granting a request by Defendants
for a TRO. The tribal court issued and then continued a Temporary Restraining Order against the
Defendants in the tribal court action. Those Defendants are now the Plaintiffs in this federal court
action.

Shortly after the May 1 tribal court lawsuit was initiated, Plaintiffs in this action filed a petition
for extraordinary writ of mandamus and interlocutory appeal with the Lower Brule tribal appellate
court. Plaintiff Wright received a remand order from the appellate court on May 22, 2015. On

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remand, the tnbal court is instructed to examine the jurisdictional basis of the suit "in light of the
Court's dismissal of the Tribe as a proper Plaintiff in the original case." Langdeau v. Wright, Lower
Brule Sioux Tnbal Court, CIV-14-12-0119 (May 27, 2015). This federal court case was then filed
on May 27, 2014.

In the present action, Plaintiffs are alleging Defendants Landeau and McCauley, Sr. allowed
$24 million in federal funds to remain "missing or unaccountable." Plaintiffs assert this Court has
jurisdiction pursuant to 28 U.S.C. § 1331, the Administrative Procedure Act, and 28 U.S.C. § 1367.
The Complaint contains three claims for relief ( 1) an accounting from the Defendants regarding the
$24 million in federal funds, (2) an order from the Court to compel Defendants James Two Bulls and
Tim LaPointe "to enforce their fiduciary duties to hold ... [D]efendant[s] [] Langdeau and []
McCauley[] to account for the missing federal funds," and (3) an order from the Court compelling
Defendants Langdeau and McCauley to "open[] up the Lower Brule Tribal farm operations' (sic)
financial records and all other documents that comprise the farms (sic) operation ... " Currently
before the Court is Plaintiffs' motion for a temporary restraining order preventing the tribal court
from holding jurisdictional and evidentiary hearings on June 11, 2015. It appears to the Court that
Defendants have not been notified of the restraining order request. Plaintiffs maintain that if the
June 11 proceedings are allowed, it will result in their removal from tribal council as reprisal for their
inquiry into the federal funding.

DISCUSSION
Rule 65(b) provides in relevant part

(b) Temporary Restraining Order
(1) Issuing Without Notice. The court may issue a temporary restraining order
without written or oral notice to the adverse party or its attorney only if
(A) specific facts in an affidavit or a verified complaint clearly show that immediate
and irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and
the reasons why it should not be required.
Fed.R.CIV.P.65(B).

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Based on the record before the Court, Plaintiffs seek a TRO without first giving notice to
Defendants. Additionally, there is no indication from the submitted filings that Plaintiffs made any
efforts to notify Defendants. The filings are lacking any explanation as to why notifying Defendants
should not be required. Based on that finding, alone, the Court denies Plaintiffs requested TRO.
In addition, the record lacks sufficient information as to the Court's jurisdiction on two grounds.

First, federal court intervention at this point in the tribal proceedings would cut short the tnbal
court's right to fully adjudicate issues before it. The Supreme Court has "repeatedly recognized the
Federal Government's longstanding policy of encouraging tribal self-government." Iowa Mut. Ins.
Co. v. LaPlante, 480U.S. 9, 14 (1987). The policy often articulated by the Supreme Court is rooted

in the notion "that Indian tribes retain 'attributes of sovereignty over both their members and their
territory,' United States v. Mazurie, 419 U.S. 544, 557 (1975), to the extent that sovereignty has not
been withdrawn by federal statute or treaty." LaPlante, 480 U.S. at 14. The LaPlante Court also
recognized that federal courts' intervention into reservation affairs may serve only to impair the tnbal
courts' authority. Id. at 15. In National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 865
( 1985), the Supreme Court noted any promotion oftribal self-government would be futile ifthe tnbal
courts were not given "the first opportunity to evaluate the factual and legal bases for the challenge"
to its jurisdiction. The National Farmers Court went on to observe that when tnbal courts are given
the "full opportunity'' to adjudicate issues before it allows the court to "rectify any errors." Id. at
857.

In the instant case, as well as the tnbal court action, the controversy appears to primarily
involve tribal law. Plaintiffs, as Defendants in the tribal action, are alleged to have violated the tribal
constitution. The tribal court is better situated to interpret the Tnbe's own laws. The tnbal court
should have a full opportunity to review its own jurisdiction and hear the evidence presented, which
is what the June 11 hearing will accomplish. Ultimately, the information provided is insufficient to
convince this Court that the tnbal court should not be allowed to determine its own jurisdiction and
rule upon the issues presented. Once the tribal court proceedings are completed, including tnbal
court appellate review, if any, there will be an exhaustion of tnbal court remedies.

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Second, it has been well established that federal courts are not to engage in tnbal internal
affairs. ''Tribal court subject matter jurisdiction over tribal members is first and foremost a matter
of internal tnbal law."

KENNE1H BOBROFF, ET AL.,

COHEN'S HANDBOOK OF FEDERAL INDIAN LAW

599 (Nell Jessup Newton, Lexis Nexis 2005) (1941 ). See Different Horse v. Salazar, No. CIV 094049, 2011 WL 3422842, at *2 (D.S.D. Aug. 4, 2011) (quoting Patrice H. Kunesh, Tribal Self-

Determination in the Age of Scarcity, 54 S.D. L. Rev. 398, 409 (2009)) ("[Indian tnbes] 'possess
inherent rights over internal tnbal affairs to make substantive laws governing their members and their
territory."). A tribe's power over its members and territory, therefore, is plenary and exclusive,
"subject only to limitations imposed by federal law." Cohen, supra, at 210. Tnbal sovereignty and
self-government are not novel concepts. "For most of this nation's history Congress has recognized
that Indian tribes have a distinct status, even during those periods in which congressional policy
encouraged assimilation of tnbal members and termination of the special relationship between tnbes
and the federal government." Id.

Moreover, since the 1960s, Congress has displayed strong,

consistent support for tribal sovereignty. Id. Specific to tribal court systems, tnbaljudiciaries were
the most underdeveloped component oftnbal governments until the beginning of the 21st century.
By that time, "more than 140 tnbes had tribal courts, actively engaged in dispute resolution and
interpretation oftribal laws." Id. at 265. Today, "[m]any [tribal courts] emulate, in varying degrees,
the Anglo-American system, while employing some oftheir own traditional procedures and sanctions;
others are essentially traditional." Id. at 21 7. In sum, Congressional attitude relative to Indian tribes
"recognize[s] ... [tribes] as modem governments dealing with modern problems." Id. at 211.

Different Horse is instructive here. In Different Horse, an action was brought against the
Secretary ofthe Interior for distnbution ofmonies awarded to the Sioux Nation stemming from what
was determined to be an unconstitutional taking of the Black Hills in western South Dakota. The

Different Horse Court ultimately held that the Sioux Nation, which was not a party to the action, was
an indispensable party and the action could not proceed in its absence. In ruling to dismiss the action,
it was held in Different Horse that the suit centered on
an internal tnbal matter. Plaintiffs wish to receive their portion of the funds for the
wrongful taking of the Black Hills and the lands ceded by the Treaty of Laramie of
1868. Plaintiffs have a position contrary to that oftheir tnbal governing bodies. That
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difference of position is an internal tribal matter into which the federal courts cannot
intrude. The fact that this is an internal tribal matter not subject to federal court
intervention is another recognition oftribal sovereignty. Ifa tnbe changes its position,
that is for the tnbe to decide.

Different Horse, 2011 WL 3422842, at *4.

Here, just as in Different Horse, the record establishes that the federal action brought by
Plaintiffs represents a position different than that of the tribal council. Plaintiffs here brought this
action concerning perceived deficiencies in tribal procedure. As was found inDifferent Horse federal
courts are cautioned against, if not proscnbed from, adjudicating issues that are internal tnbal affairs.
As discussed, Indian tnbes, as sovereign, modem governments, are entitled to adjudicate contests
between tribal members. Absent explicit Congressional mandate, Indian tribes retain inherent
sovereign authority over its members and its internal affairs. The record provides the Court with
insufficient grounds to warrant a Temporary Restraining Order (TRO). It remains to be seen whether
or not there is jurisdiction in this Court for any of the claims even after an exhaustion of tribal court
proceedings and remedies. Accordingly,

IT IS ORDERED that Plaintiffs' Motion for Temporary Restraining Order, Doc. 12,
is denied.

Dated this

1"
\P day ofJune, 2015.
BY THE COURT:

a.~&~~

M'~~
Q~

United States District Judge

ATTEST:
JOSEPH
By

CLERK

Deputy

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