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1 Okla. Trib. 8, 1980 WL 128844 (Sac & Fox CIO)
Mary F. McCORMICK, Plaintiff,
v.
The ELECTION COMMITTEE of the Sac and Fox Tribe of Indians of Oklahoma, Emery Foster, Pearl Rolette, Cecelian Littlehead, Wanda Brown, Henrietta Massey, Gwendolynn McCormick, Rose Allen, Irene Allen Whitlow, Jane Hope Stevens, Etheline Dooley, Virginia I. York, and Geraldine Franklin, each individually, and as members of the Election Committee of the Sac and Fox Tribe of Indians of Oklahoma, Defendants.
No. CIV-79-S1
Court of Indian Offenses for the Sac and Fox Tribe
Feb. 1, 1980
Order of Dismissal Mar. 10, 1980

Syllabus*

Plaintiff brought action against tribal Election Committee and its members alleging constitutional and statutory violations by them in the process of the Election Committee’s determination that various voter irregularities warranted the holding of a new election for the office of Principal Chief, and voiding an election at which Plaintiff alleged that she had been elected Principal Chief. The court, Pipestem, C.M., held that the action was barred by tribal sovereign immunity.

MOTION TO DISMISS GRANTED.

1.1.4. Jurisdiction of Courts of Indian Offenses
1.2.3. Powers of Tribal Boards and Commissions
1.11. Tribal Sovereign Immunity
2.2. Indian Civil Rights Act
Neither the Indian Civil Rights Act nor the creation of C.F.R. Courts abrogates the sovereign immunity from suit of Indian Tribes, whether in federal or C.F.R. courts.

3. Interpretation of Tribal Constitutions
5.1. Conduct of Elections
Article VI, section 2 of Sac and Fox Constitution was intended to vest in Business Committee power to appoint a committee which would have general control over the conduct of tribal elections.

1.2.3. Powers of Tribal Boards and Commissions
1.11. Tribal Sovereign Immunity
5.1. Conduct of Elections
Sac and Fox Election Committee exercises political and administrative functions critical to maintenance of tribal self-government; consequently, both it and its members (while acting in their official capacities) partake of the sovereign immunity of the Tribe.

1.1.4. Jurisdiction of Courts of Indian Offenses
4. Interpretation of Tribal Statutes, Ordinances, or Resolutions
Sac and Fox Resolutions SF-79-4 and SF-79-94 of October 9, 1978 and September 28, 1979, respectively, vest Court of Indian Offenses with power to exercise the inherent judicial powers of the Tribe.

Joseph Wrigley appeared on behalf of plaintiff.
Charles Chibitty, Jr. and Michael E. Yeksavich appeared on behalf of defendants Election Committee, Foster, Rolette, Massey, Whitlow, Stevens, Dooley, York, and Franklin.
Gordon Allen appeared on behalf of defendant Gwendolynn McCormick.
Charles T. Henry appeared on behalf of defendant Littlehead.
Michael Salem appeared on behalf of defendant Brown.
PIPESTEM, Chief Magistrate.

Plaintiff brought this action in the Court of Indian Offenses of the Anadarko Area Office sitting at the Shawnee Indian Agency for the Sac and Fox Tribe of Oklahoma on October 9, 1979. The Plaintiff alleges that she is the duly elected Principal Chief of the Sac and Fox Tribe of Indians of Oklahoma, and that the Sac and Fox Election Committee and its members, individually and in their official capacities, have violated the rights guaranteed to the Plaintiff by the Tribal Constitution and Election Ordinance, the Oklahoma Constitution and laws as made applicable by the Tribal Constitution and Election Ordinance, and the Constitution of the United States when the Election Committee declared the election in controversy void due to alleged voter irregularities and called for a new election.

Defendant Gwendolynn McCormick filed an answer to Plaintiff’s Complaint pro se in which she admits the facts as alleged in the Complaint. Defendant Cecilia Littlehead answered and generally denied the substance of the Complaint. Defendant Wanda Brown answered and interposed the defenses of sovereign immunity, the intra-tribal dispute doctrine, legislative and judicial privilege doctrine, exhaustion of administrative remedies doctrine, and entered a demurrer for failure to state a claim. Defendants Election Committee, Emery Foster, Pearl Rolette, Henrietta Massey, Rose Allen, Irene Allen Whitlow, Jane Hope Stevens, Etheline Dooley, Virginia I. York, and Geraldine Franklin entered their special appearance and moved to quash Plaintiff’s Complaint relying on the intra-tribal dispute doctrine, the political question doctrine, and sovereign immunity.

At a hearing held on the 19th day of November, 1979, arguments were heard on Plaintiff’s Application for a Temporary Restraining Order and this Court denied said application. Thereafter, pursuant to Section 2 of Article III of the By-Laws to the Constitution of the Sac and Fox Tribe, Plaintiff brought her claim before the “supreme governing body of the Tribe”, the Sac and Fox Council. SAC AND FOX CONST. art. III. The Sac and Fox Council failed to pass a resolution directing the Election Committee or the Business Committee to seat Plaintiff as Principal Chief, and Defendants then moved to dismiss on the grounds that the action of the Sac and Fox Council had made this case moot. These multitudinous issues having been addressed in the briefs and argued by counsel are now ripe for decision and will be determined by this Court prior to any action on the merits of the case.

The allegations of Plaintiff’s complaint raise issues regarding tribal election disputes that prior to the United States Supreme Court’s landmark decision, Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), would have been cognizable in the federal courts after appropriate tribal remedies were exhausted. See, e.g., Wounded Head v. Tribal Council of the Oglala Sioux Tribe, 507 F.2d 1079 (8th Cir. 1975); Williams v. Sisseton-Wahpeton Sioux Tribal Council, 387 F.Supp. 1194 (D.S.D. 1975); White v. Tribal Council, 383 F.Supp. 810 (D.Minn. 1974); McCurdy v. Steele, 353 F.Supp. 629 (D.Utah 1973), rev’d, 506 F.2d 653 (10th Cir. 1974).

In Santa Clara Pueblo v. Martinez, supra, the Supreme Court ended federal court review of such tribal actions by holding that (1) a federal court civil action against an Indian tribe for declaratory and injunctive relief to obtain redress of a right protected against infringement under Title I of the Indian Civil Rights Act was barred by the sovereign immunity of Indian tribes from suit, since nothing on the face of Title I making habeas corpus relief available purports to constitute a general waiver of Indian tribes’ sovereign immunity from suit, and (2) such a federal court civil action could not be brought against an official of an Indian tribe, since a private remedy of that type could not be implied from the statute.“

In the present case, the Election Committee of the Sac and Fox Tribe of Indians of Oklahoma on the theory of sovereign immunity has raised a threshold question challenging the authority of this court to hear and decide the issues raised in Plaintiff’s Complaint. In support of this challenge, the Election Committee cites Santa Clara Pueblo v. Martinez, supra, and Parker v. Saupitty, CIV-79-A2 [1 Okla. Trib. 1 (Comanche CIO 1979)], a case decided by Associate Magistrate Knight of this court. In response, the Plaintiff, McCormick, also cites Santa Clara Pueblo v. Martinez, supra, distinguishing Santa Clara from the present action in that Santa Clara considered the implications of the Indian Civil Rights Act in waiving tribal sovereign immunity in federal courts and not in tribal courts. The thrust of Plaintiff’s argument is that the Congressional enactment of the Indian Civil Rights Act coupled with the creation of this court pursuant to 25 C.F.R. Part 11 and the Supreme Court’s interpretation in Santa Clara of the two distinct and competing purposes of the Indian Civil Rights Act--“In addition to its objective of strengthening the position of individual tribal members vis-a-vis the tribe, Congress also intended to promote the well-established federal “policy of furthering Indian self-government”--waived the tribe’s sovereign immunity in the tribe’s proper forum--the tribal court. Defendant Gwendolyn McCormick responds that the authority of this court to decide the issues presented in the face of defendant’s challenge based on sovereign immunity is to be found in a letter dated October 30, 1978 from the Acting Secretary of the Interior to Congressman Charles Thone of Nebraska and an administrative decision of the Interior Board of Appeals regarding Secretarial approval of a tribal ordinance.

II.
SAC AND FOX ELECTION COMMITTEE

Section 2 of Article VI of the Constitution of the Sac and Fox Tribe of Indians of Oklahoma provides for an Election Ordinance which is to be promulgated by the Business Committee and ratified by the General Council to control Tribal elections. The Election Committee is mentioned three times in this section. In two of these cases, the Constitution simply states that absentee voters must notify the Election Committee to be eligible to vote by mail, that mailed votes must reach the Election Committee before the time for the polls to close on election day, and that mailed votes are to be counted by the regular election officials. SAC AND FOX CONST. art. VI, sec. 2, subsections (a), (c). In the third instance, the Constitution states:
(c)...The election Committee, which has been appointed by the Business Committee, will prepare a special ballot and send one to each qualified voter who has requested the same as provided under (a). (Absentee Voters).
Although this Constitutional provision is drawn with imprecision and fails to delineate the composition, powers, restrictions, and duties of the Election Committee, the apparent intent of the framers of the Sac and Fox Constitution, that a committee appointed by the Business Committee of the Sac and Fox Tribe would have general control over the conduct of Tribal elections, is clear.

In furtherance of this goal and pursuant to their Constitutional mandate, the Legislative Bodies of the Tribe, the Business Committee and General Council, have enacted an Election Ordinance which to some degree clarifies the composition, powers, and duties of the Election Committee. In pertinent part this Ordinance provides:
SECTION I - ELECTIONS: The regulations contained herein shall govern all elections held in accordance with Article VI, Sections 1 and 2, of the tribal Constitution and By-Laws. (Election of Tribal Officials).
SECTION II - ELECTION COMMITTEE: All elections pursuant to Section I (above) of this Election Ordinance shall be conducted by an Election Committee, to be appointed by the Business Committee......

The power to establish polling places and times, Election Ordinance Section XII, determine voter eligibility, Election Ordinance Section IV(a), control the polling places, Election Ordinance Section VI (1-10), determine election results in case of error, Election Ordinance Section V, all inherent powers of self-government, are vested in the Election Committee. While the precise status of the Election Committee is unclear, there is no question but that the Election Committee exercises political and administrative functions which are critical to the maintenance of Tribal self-government. It follows that the Election Committee, and necessarily the individual members thereof when acting in their official capacities, takes on the mantle of Tribal government within the confines of its authority, and stands cloaked with all the powers, duties, and immunities inherent in its functions as an arm of the Tribal government.

III.
THE COURT OF INDIAN OFFENSES

Having decided that the Sac and Fox Election Committee is a legitimate part of the government of the Sac and Fox Tribe exercising for the tribe certain inherent powers of self-government, a further question which must necessarily be answered prior to the determination of whether this suit may be maintained in this Court is the status of the Court itself. In other words, from whence comes the power of this Court to act?

Courts of Indian Offenses are established by the Secretary of the Interior with the consent of the affected tribes to provide a system of law enforcement for those Indian Reservations where the traditional agencies for the enforcement of tribal law and custom have broken down and no adequate substitute has been provided. This purpose is reflected in Section 11.1(b) of Title 25 of the Code of Federal Regulations. This court was established pursuant to a request for assistance from the Sac and Fox Tribe, Sac and Fox Resolution SF-79-4, October 9, 1978, and is administered by the Bureau of Indian Affairs with the approval of the Sac and Fox Tribe, Sac and Fox Resolution SF-79-94, September 28, 1979.1

However, to administer a court system is not to imbue it with power. The regulations under which this Court operates clearly indicate that the source of the authority of this Court is the inherent power of the Indian tribe which it serves. For example, to modify the regulations applicable to the Tribe, 25 C.F.R. 11.1(e), to appoint judges, 25 C.F.R. 11.3, approve or enact the rules of the Court, 25 C.F.R. 11.5(b)(c) and to determine the applicability of the Tribal common law, 25 C.F.R. 11.28, 25 C.F.R. 11.29, see also 25 C.F.R. 11.23, requires action by the legislative body of the Tribe. Further, the field employees of the Indian service are specifically prohibited from obstructing, interfering with, or controlling the functions of this court. 25 C.F.R. 11.21.

By requesting the establishment of this Court, the tribe has cloaked it with the inherent judicial power of the tribe, Parker v. Saupitty, No. CIV-79-A2, Court of Indian Offenses, Anadarko Area Office (1979) [1 Okla. Trib. 1 (Comanche CIO 1979)], and adopted the applicable regulations contained in the Code of Federal Regulations subject to the Tribal authority to modify those regulations. 25 C.F.R. 11.1(e). This Court then is empowered by the Sac and Fox Tribe to exercise the inherent judicial powers of the Tribe and does so as a part of the Tribal government.

IV.
SOVEREIGN IMMUNITY

Having determined that the Election Committee functions as an authorized arm of the Tribal government and that this Court exercises the inherent judicial powers of the Sac and Fox Tribe as a part of the tribal government, the issue of sovereign immunity may now be more adroitly addressed. This Court has no doubt that Congress has plenary authority to waive the Tribe’s sovereign immunity, Lone Wolf v. Hitchcock, 187 U.S. 552 (1903); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), or that the appropriate Tribal legislative body could waive that immunity to the extent of allowing the Tribe to be sued in the Tribal Court. The question, then, is whether Congress or the Tribal legislature have waived that immunity to the extent that this suit may be maintained in this Court.

The Sac and Fox Tribe of Indians of Oklahoma is a federally recognized Indian tribe organized and functioning through a constitutional framework adopted by the tribe pursuant to the Oklahoma Indian Welfare Act, 25 U.S.C. §501 et seq. It is beyond cavil, and undisputed by any of the parties to this action, that the Sac and Fox Tribe of Indians is an Indian tribe possessed of the ordinary attributes of tribal sovereignty. Among the attributes of tribal sovereignty of Indian tribes like the Sac and Fox is the doctrine of sovereign immunity. United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512-13 (1940). In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), the Supreme Court reiterated this now familiar principle that “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.” In invoking the doctrine of sovereign immunity, the tribes do so as an expression of the tribes’ inherent legal status derived from tribal law and not as a delegation of authority from any other source.**5 In is settled law that an Indian tribe is protected by the doctrine of sovereign immunity unless Congress has unequivocally consented to a waiver of that immunity. Santa Clara Pueblo v. Martinez, supra. It is also settled law the at an initial lawsuit may not be brought indirectly against a tribe by suing tribal officers or the United States as trustee for the tribe. Seneca Constitutional Organization v. George, 348 F.Supp. 48 (W.D.N.Y. 1972); Barnes v. United States, 205 F.Supp. 97 (D. Mont. 1962); Adams v. Murphy, 165 F. 304 (1908); Santa Clara Pueblo v. Martinez, supra.

Plaintiff argues that the Supreme Court in Santa Clara Pueblo v. Martinez, supra, construed the Indian Civil Rights Act as an express waiver of tribal immunity in tribal courts. Plaintiff’s Response Brief, pp. 2-3. Santa Clara held that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed. It would be contradiction of Santa Clara to hold on the one hand that the Indian Civil Rights Act is ineffective to waive tribal sovereign immunity by implication in federal courts and on the other hand to hold that the same legislative enactment is effective to waive tribal sovereign immunity by implication in tribal courts. Therefore, the court rejects this argument.

Plaintiff cites no other federal or tribal enactments relating to the creation of this court by the tribe as expressly waiving sovereign immunity. Defendant Gwendolyn McCormick cites a letter from the Acting Secretary of the Interior (attached to Defendant’s Brief) wherein the Acting Secretary concludes that the Courts of Indian Offenses under 25 C.F.R. 11.22 have authority of the kind necessary to hear and decide the issues in this case. Neither the Defendant nor the Acting Secretary of the Interior indicates the specifics of the source of that power in the absence of express Congressional or tribal consent to suit in tribal courts. Parker v. Saupitty, supra, by this Court expressly rejects that contention.

As immunity from suit is an inherent ingredient of the Tribal legal status as a dependent domestic nation, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Santa Clara Pueblo, supra, and there has been no effective waiver of that immunity by Congress or the Tribe, I am, therefore, constrained to hold that the Sac and Fox Election Committee and the individual members thereof are immune from suit in the is Court and that this action must be dismissed. It is therefore, unnecessary to address the balance of defendants’ arguments.

In the evolution of tribal governments as governments, the tribal judicial forums, as the Supreme Court so adroitly pointed out in Santa Clara, must be the paramount mechanism for the enforcement of the substantive provisions of the Indian Civil Rights Act if tribal sovereignty is to be enhanced. Tribal constitutions and governing documents are becoming of increasing importance as tribal forums take on unprecedented responsibilities. Within the evolution of tribal government, the protection by the tribe of individual liberties and rights that may be violated by the tribe itself must be assigned a high priority.

However, the law is clear that, in the absence of an express and unequivocal waiver of sovereign immunity by the Sac and Fox Tribe, the unfinished business of providing a judicial forum for the resolution of the instant dispute remains exclusively within the province of the Sac and Fox Tribe. In the absence of that authorization, the tribal judiciary should not presume to fashion a remedy which ignores sovereign immunity, one of the inherent attributes of tribal sovereignty.

Accordingly, this action is hereby ordered dismissed without prejudice as to the Sac and Fox Election Committee and each individual named, both individually and in their official capacities for the reasons stated herein. Counsel for Defendants are ordered to prepare an appropriate journal entry within ten days. Plaintiff to pay costs of the action.

ORDER OF DISMISSAL
FILED MAR. 10, 1980

Now on this 10th day of March, 1980, this cause comes on for hearing pursuant to Opinion and Order filed by Chief Magistrate F. Browning Pipestem on the 1st day of February, 1980.

IT IS THEREFORE ORDERED by the Court that this cause be, and the same is, hereby dismissed against the defendants, and each of them, without prejudice, and at the cost of plaintiff.

Footnotes
*	The syllabus and headnotes comprise no part of the opinion of the court, and are prepared for the convenience of the reader by the General Editor of the Oklahoma Tribal Court Reports.
1	Although Defendants argue that the Business Committee of the Sac and Fox Tribe had no constitutional authority to request or approve the establishment of a Court of Indian Offenses, it is clear that they do. SAC AND FOX CONST. art. V, sec. 1.