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(Cite as: 2005 WL 1503425 (D.Utah))

United States District Court,

D. Utah, Central Division.

Ronald J. WOPSOCK, Luke J. Duncan and Cassandra Kochamp, Plaintiffs,

v.

Millicent Maxine NATCHEES, in her individual capacity and in her official

capacity as Chairperson of the Tribal Business Committee of the Ute Indian

Tribe of the Uintah and Ouray Indian Reservation; T. Smiley Arrowchis, in his

individual capacity and in his official capacity as Vice-Chairman of the Tribal

Business Committee; O. Ronald McCook, Sr. and Richard Jenks, Jr., in their

individual capacities and in their official capacities as members of the Tribal

Business Committee; Gale A. Norton, in her official capacity as the Secretary

of the Interior, United States Department of the Interior; James Cason, in his

official capacity as Acting Assistant Secretary--Indian Affairs, United States

Department of the Interior; Chester D. Mills, in his individual capacity and in

his official capacity as the Superintendent, Uintah and Ouray Agency, Bureau of

Indian Affairs; Wayne Nordwall, in his individual capacity; Brian Bowker, in

his official capacity as the Acting Director, Western Regional Office, Bureau

of Indian Affairs; John P. Jurrius, in his individual capacity; Susan Hammer,

in her individual capacity; and John Does 1-10, in their individual and

official capacities, as the facts and law so warrant, Defendants.

No. Civ. 204CV00675TS.

June 21, 2005.

Paul M. Warner, United States Attorney (# 3389), John K. Mangum, Assistant United States Attorney (# 2072), Jan N. Allred, Assistant United States Attorney (# 4741), Salt Lake City, Utah, for Federal Officials.

ORDER GRANTING MOTIONS TO DISMISS, GRANTING MOTION FOR SUMMARY JUDGMENT, AND

DENYING MOTION TO AMEND COMPLAINT

STEWART, J.

*1 This matter is before the Court on tribal defendants' and federal defendants' motions to dismiss, federal defendants' motion for summary judgment, and plaintiffs' motion to amend their first amended complaint. The Court rules as follows:

Defendants challenge all eight of the claims plaintiffs alleged in the first amended complaint on jurisdictional grounds. Defendants argue that each of these causes of action fail because this Court lacks jurisdiction to entertain an internal dispute between tribal members. In a recent preliminary injunction hearing, the Court heard arguments similar if not identical to those currently pending before the Court. Previously, the Court found that plaintiffs were not likely to prevail on the merits due to the Court's finding that this dispute boils down to an intra-tribal dispute that implicates the tribe's sovereignty, and further found that plaintiffs failed to exhaust their tribal remedies.

The theory of liability, however, currently before the Court is broader than the theory of liability upon which plaintiffs brought their motion for preliminary injunction. Yet, the Court finds that this added breadth does not alter the Court's previous finding that what is at issue is an intra-tribal dispute that should be resolved by the Ute Tribe and not this federal Court.

In Counts 1 and 2 of plaintiffs' first amended complaint, plaintiffs argue that Ute tribal defendants violated Section 476 of the Indian Reorganization Act ("IRA") in enacting the Ute tribal ordinances 03-002 and 03-004. Counts 3 and 4 allege the federal defendants violated the IRA by failing to disapprove of the two ordinances just cited. Count 5 alleges that federal defendants breached duties established by the Indian Civil Rights Act, the IRA, and the Administrative Procedure Act by failing to properly administer the duties allegedly established by the Indian Civil Rights Act and the IRA, particularly federal defendants allowed to go unchecked the removal of plaintiffs Wopsock and Duncan and the passage of the two ordinances. Count 6 alleges that defendants Mills and Nordwall had improper conflict of interests and breached their fiduciary duties to disapprove the two ordinances. Count 7 alleges federal defendants violated several of plaintiffs' constitutional rights by failing to disapprove the ordinances. And, finally, the eighth count alleged all defendants conspired to violate plaintiffs Wopsock's and Duncan's civil rights in facilitating the expulsion of these plaintiffs and the passage of the two ordinances.

Lack of Jurisdiction

The major thrust of plaintiffs' arguments regarding jurisdiction is that the actions that resulted in the expulsion of plaintiffs Wopsock and Duncan and the passage of Ute tribal Ordinances 03-002 and 03-004 is a matter of federal law and not Ute tribal law. The Court cannot agree. The thrust of plaintiffs' claims in the first amended complaint is rooted in Ute tribal law and not federal law. At the heart of plaintiffs' allegation is a plea for this Court to resolve a dispute between tribal members about tribal government. In many respects, the relief sought would in effect invalidate tribal ordinances by requiring the Court to interpret the Tribe's constitution and ordinances. In Re Sac & Fox Tribe, 340 F.3d 749, 763 (8th Cir.2003) ("Jurisdiction to resolve internal tribal disputes [and] interpret tribal constitutions and laws ... lies with Indian tribes and not in the district courts"); Smith v.. Babbitt, 100 F.3d 556, 559 (8th Cir.1996) (although plaintiffs alleged Indian Reorganization Act and other violations, "we find that these allegations are merely attempts to move this dispute, over which this court would not otherwise have jurisdiction, into federal court"). The Court cannot reach plaintiffs' claims without first interpreting tribal law over which it lacks jurisdiction. This action seems to clearly be a dispute between tribal members over matters of tribal law and is at the heart of tribal sovereignty.

*2 The Court recognizes and has great respect for the Tribe's sovereignty. As the Court has said before in its ruling on plaintiffs' motion for preliminary injunction, if sovereignty means anything at all, it includes the right for the Tribe to resolve an internal leadership dispute. This Court finds, as other courts have found, that "substantial doubt exists that federal courts can intervene under any circumstance to determine the rights of the contestants in a tribal election dispute." Goodface v. Grassrope, 708 F.2d 335 (8th Cir.1983). Furthermore, "a dispute over the meaning of tribal law does not arise under the Constitution, laws or treaties of the United States, as required by 28 U.S.C §§ 1331 and 1362. This is the essential point of opinions holding that a federal court has no jurisdiction over an intra-tribal dispute." Kaw Nation v. Lujan, 378 F.3d 1139, 1143 (10th Cir.2004).

Plaintiffs have referred to and relied upon Williamson-Edwards v. Babbitt, 1998 U.S. Dist. Lexis 9241 (W.D.Mich.1998), discussed here today and mentioned in all the memoranda before the Court. The Court finds that case, first of all, to be not controlling and, second, easily distinguishable. It is not controlling because it is an unpublished case from the Western District of Michigan. It is easily distinguishable because, among other things, (i) it was an appeal from final agency action whereas this case is not, (ii) plaintiffs here do not seek the narrowly drawn relief sought in Williamson, (iii) plaintiffs here acknowledge the tribal nature of their claim, have named tribal members as defendants, and acknowledge the need to exhaust tribal remedies, and (iv) the Williamson court failed to address the provision of Section 476 of the IRA specifying that the Secretary's duties under that Act are triggered only upon an official tribal request for a Secretarial election. See 25 U.S.C. 476(c).

Based on well-established law concerning non-interference by federal courts with intra-tribal disputes, and upon the finding that plaintiffs seek relief well beyond this Court's jurisdiction, the Court grants defendants' motion to dismiss as to Counts 1 and 2 of plaintiffs' amended complaint, federal defendants' motion to dismiss as to Count 7, and federal defendants' motion for summary judgment as to Counts 3, 4, 5, and 6. The claims in Count 6 are also dismissed for mootness. The dismissal of Count 7, the "Bivens" claim, is also based on the presence in this case of special factors counseling against the creation or recognition of a judicial remedy for the wrong claimed, given both the non-interference with intra-tribal disputes principle referred to above and the unique and comprehensive federal legislation concerning federal-tribal relationships. See, e.g., Bush v. Lucas, 462 U.S. 367 (1983). To the extent that plaintiffs' eighth cause of action rests on the allegations pertaining to defendants' conduct relating to the passage of ordinances 03-002 and 03-004, the Court also dismisses this claim for lack of jurisdiction for the same reasons noted above, as sought by all defendants against whom this claim was asserted. However, construing the eighth cause of action broadly, the Court finds that it is not appropriate to dismiss this count solely on this jurisdictional justification.

Civil Rights Claim

*3 As to the federal defendants' motion to dismiss and tribal defendants' motion to dismiss what remains as plaintiffs' eighth count, the Court rules as follows: The Court considers the tribal defendants' motion to dismiss and BIA's motion to dismiss under Rule 12(b)(6). The Court construes the amended complaint in the light most favorable to plaintiffs. In doing so, however, the Court fails to find any allegation that any harm suffered by plaintiffs was motivated by invidious, class-based animus. As such, plaintiffs fail to plead all of the elements required under clearly established Tenth Circuit law. Peoples v. Gilman, 109 Fed. Appx. 381, 2004 WL 2110719 (10th Cir.2004), dismissing a Section 1985(3) claim for lack of class-based invidiously discriminatory bias, as well as the case of Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.1993). Late in the briefing plaintiffs alleged that they were part of a political faction. Plaintiffs' political faction claim has, however, been rejected by the Tenth Circuit. Brown v. Reardon, 770 F.2d 896, 905-06 (10th Cir. 985). The Court, therefore, also dismisses Count 8 in its entirety.

Tribal Sovereign Immunity

The Court would further note that it is persuaded as to Counts 1 and 2, and Count 8 as to the tribal defendants, the Court dismisses the counts because they have not waived their sovereign immunity and plaintiffs are therefore barred from pursuing those claims. That plaintiffs' claims are barred on sovereign immunity grounds is consistent with and supported by this Court's decision in Kenai Oil and Gas v. Department of Interior, 522 F. Supp 521, 531 (D.Utah 1981), aff'd, 671 F.2d 383 (10th Cir.1982).

Indian Reorganization Act

As to Counts 3, 4, 5 in part, and 6 in part, as to all federal defendants, and for purposes of this ruling, Counts 1 and 2 as to the tribal defendants, the Court notes that plaintiffs purport to bring claims under the Indian Reorganization Act, particularly 25 U.S.C. § 476. The IRA is not triggered by the mere fact a tribal election is being held or a purported change in the tribal constitution is alleged by individual tribal members. The Court notes 25 C.F.R. § 81.1(s) which distinguishes between Secretarial and tribal elections. The IRA's Section 476 election and review process relied upon by plaintiffs is triggered by an appropriate request by a tribe for federal involvement. Split Family Support Group v. Moran, 232 F.Supp.2d 1133, 1136 (D.Mont.2002); 25 U.S.C. § 476(c)(1)(B) (requiring "tribal request for election to ratify an amendment to the constitution"); and Note to § 476 (defining "tribal request" as a "tribal resolution"). Plaintiffs have failed to allege and have failed to show any evidence that suggests that the Tribe made such a request. As such, the Court finds that the IRA has not been triggered and that federal jurisdiction on the basis of these claims is absent. Without such a request from the Tribe, these elections are tribal in nature and beyond the scope of the IRA.

*4 The Court further notes that the federal defendants have not waived their sovereign immunity and consented to suit under the IRA in such circumstances. Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457, 1463 (10th Cir.1989) (federal government may not be sued without its consent). Neither does the IRA impose upon those defendants the affirmative duties claimed by the plaintiffs. Instead, Sections 476(c) and (d) require the Secretary to perform certain limited duties set forth therein only after a tribal request for a Secretarial election has been made.

Exhaustion of Remedies

Plaintiffs' claims against tribal defendants are barred because plaintiffs failed to exhaust their tribal remedies. The Court relies on United States v. Tsosie, 92 F.3d 1037 (10th Cir.1996) to support plaintiffs' obligation to exhaust tribal remedies. To exhaust tribal remedies, plaintiffs were required to challenge the ordinances at issue in tribal court and then pursue an appeal of any adverse decision in tribal trial court through the tribal appellate court. Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 17 (1987). Plaintiffs challenged ordinance 03-002 in tribal court but failed to appeal to tribal appellate court. Dismissal is appropriate in those circumstances. Davis v. Mille Lacs Band of Chippewa Indians, 193 F.3d 990, 991, 992 (8th Cir.1999). Plaintiffs did not challenge ordinance 03-004 in tribal court and, therefore, did not exhaust tribal remedies.

Also, as the Plaintiffs are still pursuing administrative claims before the Interior Board of Indian Appeals (IBIA) on many of the same claims asserted here, Plaintiffs have not yet exhausted their federal remedies nor obtained final agency action, as required by 5 U.S.C. § 704 for judicial review of any agency action under any Administrative Procedure Act (APA) claim that may still remain in the First Amended Complaint. As the APA supplies the only waiver of federal sovereign immunity possibly applicable here, this failure to exhaust further bars counts 3-6 of the First Amended Complaint alleged against the federal defendants.

Lack of Federal Duty

Furthermore, plaintiffs point to no aspect of tribal or federal law that requires the federal government to act but rather attempts to extend the law to create such duties. The Court finds unpersuasive and distinguishable the IBIA opinions cited by plaintiffs on this point. However, even assuming there were an affirmative duty for the federal government to act, the Ute Tribe provides a tribal forum for resolving such disputes. Consequently, the federal defendants have "no authority to take action contrary to the tribal resolution of such disputes." Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457, 1465-66 (10th Cir.1989).

Plaintiffs' Proposed Second Amended Complaint

Virtually contemporaneously with this Court's hearing on the motions to dismiss and for summary judgment, plaintiffs moved on April 4, 2005, to file a second amended complaint. Having earlier unilaterally amended their complaint in this action, plaintiffs now require court approval for any further amendment absent consent of defendants, which consent has not been given. Fed.R.Civ.P. 15(a). The Court denies plaintiffs' motion for leave to amend.

*5 The facts and claims sought to be asserted by plaintiffs in their second amended complaint were known to plaintiffs when they filed their earlier complaints. Denial of leave to amend is appropriate in those circumstances. Sipp v. Unumprovident Corp., 107 Fed. Appx. 867, 2004 WL 1859935 (10th Cir.2004). Plaintiffs' amendments appear to be an attempt to avoid both this Court's prior rulings and arguments raised by defendants. Again, those are not appropriate reasons for amending a complaint. Viernow v. Euripedes Development Corp., 157 F.3d 785, 799-800 (10th Cir.1998). Plaintiffs' motion is untimely, particularly when the new claims are not based on new evidence and there is no explanation for why plaintiffs waited until the last minute and after extensive briefing to pursue an amended complaint. Pallottino v. City of Rio Ranch, 31 F.3d 1023, 1027 (10th Cir.1994); Platte Valley Wyo-Braska Beet Growers Assoc. v. Imperial Sugar Company, 100 Fed. Appx. 717, 2004 WL 1229575 (10th Cir.2004).

The Court also finds that the new allegations in the proposed Second Amended Complaint are futile, and thus amendment should not be allowed for this further reason as well.

For the reasons cited, the Court grants the motions to dismiss, grants the motion for summary judgment, and denies the motion of plaintiffs to file a further amended complaint.


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