--- Am. Tribal Law ----, 2021 WL 5967735 (Ho-Chunk)
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Ho-Chunk Nation Supreme Court.
Karena THUNDERCLOUD, Vice President; Phyllis Smoke; George Stacy; Stephanie Begay; Conroy Greendeer, Jr.; Kristin WhiteEagle; Darren Brinegar; Sarah Lemieux; Shelby Visintin; Paul Fox; Danielle DeLong; Brianna Littlegeorge; and Robert Pilot; as Representatives in their individual and official capacities, Appellants,
HO-CHUNK NATION EXECUTIVE BRANCH and Marlon WhiteEagle, in his official capacity as President of the Ho-Chunk Nation, Appellees.
Case No.: SU 20-05
December 15, 2021
Tr. Ct.: CV 20-05

Tricia A. Zunker, Hinųk pįį, David J.W. Klauser, Manąpe Hųk, Associate Justice


This is an appeal from a suit in equity stemming from a dispute between two branches of government. The Court must determine whether the Trial Court erred in its determination that the Ho-Chunk Nation Legislature violated the Ho-Chunk Nation Constitution by enactment of Resolution 06-24-20B, despite omitting the Legislature as a party in the first footnote of the final order. This Court also must determine whether the individual legislators acted within the scope of their duties and authority under Article V of the Constitution. We hold the Trial Court did not properly dismiss the Legislature as a party although entitled to this result by virtue of the doctrine of sovereign immunity. We further hold that the individually-named legislators maintain immunity in this action because they did not act beyond the scope of their duties or authority in enactment of Resolution 06-24-20B.


On March 12, 2020, State of Wisconsin Governor Tony Evers declared a public health emergency in response to the deadly COVID-19 pandemic. On March 17, 2020, President Marlon WhiteEagle issued an administrative order requiring public closure of the Nation’s casinos in an effort to limit the spread of the COVID-19 virus, effective March 20, 2020. Admin. Order (Mar. 17, 2020). The COVID-19 pandemic and resultant casino closures created significant uncertainty surrounding the health, safety, finances and welfare of the Nation’s operations, employees and tribal members. The casinos did not reopen until the end of May and June 2020.

On June 24, 2020, the Legislature passed the Continuing Budget Resolution, Resolution 06-24-20B, in part due to the “unprecedented situation of having to consider budgets for the Fiscal Year 2020-21, and appropriate funds, when the Nation’s gaming operations have been closed due to a world-wide pandemic, and a Declaration of Emergency” as well as the “uncertain nature of projecting gaming budgets for the upcoming fiscal year.” HCN Leg. Res. 06-24-20B. The resolution eliminated funding for many employment positions, including 91 tribal members, 46 non-tribal members and 6 grant-funded positions. Order (Granting Relief in Part), CV 20-05 (HCN Tr. Ct., Oct. 29, 2020) [hereinafter Final Judgment] at 9; see also WhiteEagle Aff., para. 9 (Aug. 31, 2020). Appellees raised concerns regarding elimination of positions that resulted in compliance issues, such as positions in the Social Services Department necessary to comply with state regulations; internal control positions, such as the casino Surveillance Director position; and safety staff. Final J. at 14-15. On July 1, 2020, the Legislature approved the Nation’s Fiscal Year 2020-21 budgets.

On August 27, 2020, the Executive Branch and the President filed a Complaint in the Trial Court against the Legislature as an entity and against each individual legislator in their “individual and official capacities,” alleging violation of the Constitution through enactment of Resolution 06-24-20B. These legislators included: Karena Thundercloud, Hinu Smith, George Stacy, Stephanie Begay, Conroy Greendeer, Jr., Kristin WhiteEagle, Darren Brinegar, Sarah Lemieux, Lawrence Walker, Jr., Paul Fox, Kathyleen Lone Tree-Whiterabbit, Matt Mullen and Robert Two Bears. On August 29, 2020, the Legislature passed a 63-day continuing budget resolution. Vice President Thundercloud indicated that passing the continuing budget resolution on August 29, 2020, was necessary to ensure continued operations of the Nation. Thundercloud Aff., para. 6 (Aug. 31, 2020).

Appellants filed Defendants’ Brief on Injunctive Relief and Defendants’ Motion to Dismiss on September 17, 2020. They asserted the defense of sovereign immunity on behalf of the Legislature and legislators. Final J. at 15-16; see also Defs.’ Answer & Affirmative Defenses (Aug. 31, 2020) at 10-11. The Trial Court held a two-day fact-finding hearing on October 21, 2020, and October 26, 2020. On October 29, 2020, the Trial Court issued its final judgment, determining that the Budget Act violated the Nation’s Constitution to the extent it permitted successive continuing resolutions. In its judgment, the Trial Court omitted the Legislature as a party from the case caption by way of footnote, stating:
The Court omits the “Ho-Chunk Nation Legislature” from the caption as ARTICLE XII, § 1 of the HO-CHUNK NATION CONSTITUTION provides that “the Ho-Chunk Nation is immune from suit except to the extent that the Legislature expressly waives its sovereign immunity.” There is not such a waiver in this action. Instead, this suit is against each and every Legislator, in their individual official capacity for declaratory and nonmonetary relief under ART. XII, § 2 of the HO-CHUNK NATION CONSTITUTION.
Final J. at 1 n.1. In its Findings of Fact, the Trial Court only identified the individually-named legislators as defendants.1 Despite the Trial Court’s removal of the Legislature from the case caption, it proceeded to recount actions of the Legislature as an entity and render various determinations against the Legislature as an entity in its judgment.

On December 28, 2020, appellants filed a timely Notice of Appeal. The Supreme Court accepted the appeal on January 11, 2021, and established a briefing schedule. Virtual oral argument was scheduled for April 24, 2021. Order (Notice of Virtual Oral Argument) SU 20-05 (HCN S. Ct., Feb. 2, 2021). On March 18, 2021, appellees’ counsel filed a Notice of Withdrawal of Counsel and Motion to Continue Stay of Briefings and Responses, citing the termination of counsel’s contract by appellants and imminent lack of legal counsel for appellees as the basis for the motion. Consequently, this Court granted the motion to stay the briefing schedule and scheduled oral argument until new counsel for appellees could be obtained.

During the pendency of this appeal, the Ho-Chunk Nation held a General Election, which resulted in a changed composition of the Legislature after the July 6, 2021, swearing-in. In particular, Representatives Hinu Smith, Lawrence Walker, Kathyleen Lonetree-Whiterabbit, Matt Mullen, and Robert Two Bears completed their terms as legislators. Newly-elected representatives include: Phyllis Smoke, Danielle DeLong, Brianna Littlegeorge, Robert Pilot and Shelby Visintin.2 The Court granted two motions to substitute parties, replacing the currently-elected legislators for the former representatives.

On October 16, 2021, the Court convened virtual oral argument.


(1) Did the Trial Court properly dismiss the Ho-Chunk Nation Legislature as a party in this matter?
(2) Did the individually-named legislators act within the scope of their duties or authority in enacting Resolution 06-24-20B?


This Court possesses the constitutional authority “to interpret and apply the ... laws of the Ho-Chunk Nation,” and may render binding “conclusions of law.” HCN CONST. art. VII, §§ 4, 7(a). When reviewing questions of law, the Court employs a de novo standard of review, meaning that it examines a matter anew. Hope B. Smith v. Ho-Chunk Nation et al., SU 03-08 (HCN S. Ct., Dec. 8, 2003) at 5 n.3.


I. The Trial Court Failed to Properly Dismiss the Ho-Chunk Legislature as a Party.
At the outset, the Ho-Chunk Nation Legislature, as an entity, was omitted from the caption by means of the first footnote on page one of the Trial Court’s final judgment. Yet, the references throughout the judgment refer to the Legislature, not individually-named legislators. Of particular relevance here, the Constitution addresses sovereign immunity in Article XII.
Section 1. Immunity of Nation from Suit. The Ho-Chunk Nation shall be immune from suit except to the extent that the Legislature expressly waives its sovereign immunity, and officials and employees of the Ho-Chunk Nation acting within the scope of their duties and authority shall be immune from suit.
Sovereign immunity extends to separate branches and sub-entities of the tribe. Timothy G. Whiteagle et al. v. Alvin Cloud, Chairman of the Gen. Council of Oct. 11, 2003, in his official capacity, et al., SU 04-06 (HCN S. Ct., Jan. 3, 2005) at 6; Chloris A. Lowe, Jr., v. Ho-Chunk Nation et al., SU 97-01 (HCN S. Ct., June 13, 1997) at 3-4. Notably, this immunity does not automatically extend to encompass individuals.

Appellants filed a Motion to Dismiss, arguing the Legislature should be dismissed under the doctrine of sovereign immunity and that the individually-named legislators acted within the scope of their authority. Defs.’ Br. on Injunctive Relief & Defs.’ Mot. to Dismiss (Sept. 17, 2020) [hereinafter Defendant’s Brief] at 8, 15. Ho-Chunk Nation Rules of Civil Procedure, Rule 56(B) addresses involuntary dismissal:
Rule 56. Dismissal of Action
B) Involuntary Dismissal. After an Answer has been filed, a party must file a Motion to Dismiss. A Motion to Dismiss will be granted at the discretion of the Court. A Motion to Dismiss may be granted for lack of jurisdiction; if there has been no order or other action in a case for six (6) months; if a party substantially fails to comply with these rules; if a party substantially fails to comply with an order of the Court; if a party fails to establish the right to relief following presentation of all evidence up to and including trial; or, if the plaintiff so requests.
Here, the Trial Court “omitted” the Legislature from the case caption in a footnote, but did not formally dismiss the Legislature as a party in this case.

The Legislature did not waive its sovereign immunity. The Trial Court omitted the Legislature from the case in a footnote, but an omission from a case caption is not a proper dismissal of the party. Consequently, the Trial Court committed procedural error. The Motion to Dismiss the Legislature from the case should have been granted on the basis that it did not waive its sovereign immunity, resulting in a formal dismissal as a party.


II. The Trial Court Failed to Apply the Constitutional Standard of Immunity against Individually-Named Legislators.
Despite issuing a thirty-page order that “omitted” the Legislature on the first page, all determinations in the final judgment were in reference to the “Legislature.”3 The Trial Court failed to articulate the constitutional standard of immunity as applied against each individually-named legislator.

This Court is confronted with two possible interpretations, neither which are acceptable. Is this Court supposed to assume that the references to the “Legislature” imply thirteen separate and individually-named legislators? Or is this Court supposed to assume that the Trial Court omitted the Legislature as an entity by way of footnote, then proceeded to determine rights and liabilities of the Legislature, contrary to Rule 24 of the Ho-Chunk Nation Civil Rules of Procedure?

In discharging its constitutional duty, this Court cannot, and will not, assume the Trial Court’s reasoning or make a determination that the continued use of the word “Legislature” implied each individually-named legislator. The Legislature is a single entity, a separate branch of government. This is different from legislators, separately-elected persons who together jointly and equally, comprise the Legislature. The Trial Court’s judgment must provide legal basis for determining its conclusions and here, there is no determination by the Trial Court that each individually-named legislator acted outside the scope of his or her authority or duties. Appellants repeatedly raised the defense of sovereign immunity and the applicable constitutional provisions. See Defs.’ Br. at 15; see also Defs.’ Mot. to Clarify & Mot. for Expedited Consideration (Oct. 29, 2020); Defs.’ Closing Statement (Oct. 26, 2020) at 8-9. This defense, if properly addressed and analyzed, could render a case dismissal.

Ordinarily, this Court would be inclined to remand to the Trial Court to complete its legal analysis in support of its conclusions. However, here it is more than likely an appeal would again result. Having two branches of government engaged in an ongoing dispute during a global pandemic is not optimal for the Nation’s operations, employees or membership, and could prove potentially injurious. We do not want to see further delay in resolution of the matter. This pandemic is ongoing and uncertainty continues to linger. Therefore, this Court will conduct the necessary legal analysis and apply the constitutional standard of immunity to the individually-named legislators.


a. Article XII of the Ho-Chunk Nation Constitution
Article XII addresses the constitutional standard for immunity from suit for individuals. “[O]fficials and employees of the Ho-Chunk Nation acting within the scope of their duties or authority shall be immune from suit.” HCN CONST. art. XII, § 1 (emphasis added). The standard for relief against elected officials who have acted outside the scope of their duties and authority is also stated in Article XII.
Section 2. Suits Against Officials and Employees. Officials and employees of the Ho-Chunk Nation who act beyond the scope of their duties and authority shall be subject to suit in equity only for declaratory and non-monetary injunctive relief in Tribal Court by persons subject to its jurisdiction for purposes of enforcing rights and duties established by this constitution or other applicable laws.
Id. § 2 (emphasis added). Therefore, this Court must determine whether the individually-named legislators acted beyond the scope of their duties or authority. For a plaintiff to prevail, they must allege that the official is acting outside the scope of their duties or authority.

The Ho-Chunk Supreme Court has favored a plain language approach and interpretation to the Constitution, statutes and contracts. See, e.g., George Lewis v. HCN Election Board et al., SU 06-07 (HCN S. Ct., Mar. 12, 2007) at 7; Marx Advert. Agency, Inc. v. Ho-Chunk Nation et al., SU 04-07 (HCN S. Ct., Apr. 4, 2004) at 11; Greg Littlejohn v. HCN Election Bd. et al., SU 03-07 (HCN S. Ct., July 11, 2003) (Butterfield, J., dissenting) at 5; Chloris Lowe, Jr. et al. v. HCN Legislature Members et al., SU 00-17 (HCN S. Ct., Mar. 13, 2001) at 6. Simply put, “[i]f an official acts in contravention of the HCN CONSTITUTION, which is the Supreme law of the Ho-Chunk Nation, HCN CONST. art. III, § 4, the official has acted “beyond the scope of his or her authority” and is subject to prospective non-monetary equitable and declaratory relief.” Ho-Chunk Legislature v. HCN Gen. Council et al., CV 01-11 (HCN Tr. Ct., June 22, 2001) at 14 (citing HCN CONST. art. XII, § 2).

Article XII does not distinguish categories of sovereign immunity. The second clause of Section 1 provides that “officials and employees of the Ho-Chunk Nation acting within the scope of their duties or authority shall be immune from suit.” HCN CONST. art. XII, § 1. The constitutional text does not indicate whether this form of immunity is sovereign or official, though references to official immunity are included in this case.4 The concurring opinion addresses the lingering confusion in this jurisdiction, which represents an ancillary issue in this matter.

The majority opinion does not need to resolve this matter because whether the individually-named legislators acted beyond the scope of his or her duties or authority will be dispositive for purposes of this appeal. As this case presents a constitutional issue regarding separation of powers, specifically whether the actions of the Legislature impermissibly encroached on the powers of the Executive Branch, a determination of constitutional powers implicated is warranted. Therefore, the Court will apply a plain meaning interpretation in determining whether each individually-named legislator acted beyond the scope of his or her duties or authority in enacting Resolution 06-24-20B.


b. Enactment of Resolution 06-24-20B was not an act beyond the scope of duties or authority of each individually-named legislator.
“Separation of powers is a fundamental feature of the Ho-Chunk Nation Constitution.” HCN Gaming Comm’n v. HCN Ethics Review Bd., SU 17-04 (HCN Sup. Ct., Nov. 29, 2017) at 9. “No branch of the government shall exercise the powers or functions delegated to another branch.” HCN CONST. art. III, § 3. The Constitution confers many powers on the Legislature in Article V. These powers include, but are not limited to: making laws, including codes, ordinances, resolutions and statutes, and enacting any other laws, ordinances, resolutions and statutes necessary to exercise its legislative powers. The Legislature also has the constitutional duty to enact an annual budget. Id. art. V, §§ 2(a), (x); 13.

The Judiciary must afford “[d]ue respect for the decisions of a coordinate branch of government” and may only “invalidate a [statutory] enactment ... upon a plain showing that the Legislature ‘has exceeded its constitutional bounds.’ ” Amy Kirby et al. v. Jerry T. Gallagher, SU 18-04 (HCN S. Ct., Oct. 24, 2020) at 6 (quoting United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)).

In its initial pleading, the appellees alleged that
[t]he implementation of the Continuing Budget Resolution by the HCN Legislature through the individual Legislators acting as the Legislative assembly and its duly constituted board, the Finance Committee, are actions which violate the constitutionally guaranteed separate of powers of the co-equal branches of government and are an impermissible infringement on the constitutional powers granted solely to the President by the HCN General Council pursuant to the HCN Constitution, Art. VI, § 2(c), (d) and (g); [which are namely] to propose an annual budget to the Legislature, to administer all Department, board and committees created by the Legislature and to select and hire personnel in accordance with applicable law.
Compl., CV2-05 (Aug. 7, 2020) at 8-9. The appellees argue that Article VI, subsections 2(b) and (c) give the Executive Branch broad authority over the Legislature in budget and legislation determinations. The Constitution gives the President powers “to make recommendations to the Legislature on matters of interest or benefit to the Nation,”5 and the President may also “propose legislation and an annual budget” to the Legislature.6 HCN CONST. art. VI, § 2(b)-(c). A plain meaning analysis demonstrates that “recommendations” and the ability to “propose” both allow the President input, to be accepted or rejected. An exhaustive review of the court record demonstrates that the President was not denied an opportunity to participate. The Constitution does not demand that the budget proposed by the President be adopted by the Legislature, but rather that the President is allowed to propose a budget. That did happen here.

“The CONSTITUTION demarcates spheres occupied by the co-equal branches of government.... However, these spheres of authority are not preserved inviolate, and an incursion by one branch into the sphere of another may permissibly occur without posing a constitutional problem.” Lowe-Ennis v. HCN T.E.R.O. Comm’n, CV 06-06-07 (HCN Tr. Ct., Jan. 9, 2002) at 32. In its final judgment, the Trial Court failed to provide any legal analysis supporting its conclusion that the Legislature’s actions infringed on the Executive’s constitutional powers, in comparison to constitutionally permissible forms of “incursion by one branch into the sphere of another.” Id.

In this case, the global pandemic resulted in incalculable uncertainty. The Nation experienced significant revenue loss with the closure of casinos. Many employees lost their jobs. The pandemic was far from over in June 2020, and tribal leadership needed to anticipate funding ongoing operations and protect the Nation from insolvency. In unprecedented times resulting from the pandemic, passing the 60-day budget was not only prudent, but wise given the uncertainty surrounding the pandemic. The Legislature possessed the legal authority to adopt a continuing budget resolution, Resolution 6-24-20B, under its constitutional powers in Article V and statutory authority set forth in the Ho-Chunk Nation Appropriations and Budget Process Act. Dissatisfaction by a co-equal branch of government as to the unusual budget process utilized during the ongoing pandemic does not render the action unconstitutional; the highly contagious and deadly COVID-19 global pandemic has forced businesses, governments, communities and individuals to accept flexibility in daily operations and daily lives. The Legislature did not exercise the powers of the Executive Branch in this case. Therefore, the individual legislators did not act beyond the scope of their duties or authority.

Good governance requires cooperation and collaboration between branches of government, with a focus on the duties owed to the People of the Ho-Chunk Nation. Certainly, it is concerning if positions were eliminated that put the Nation at risk of being out of compliance with state or federal laws. Elected leadership should ensure that the Nation’s operations are in compliance with applicable laws. Regardless of the foregoing, the act of passing continuing budgets should not become common practice.

That said, the appellants worked to ensure the operations of the Nation were not halted and prevented a potential risk of insolvency, which would be devastating for the Nation. While the appellees may have desired more input, the appellants completed their jobs as elected to do. It cannot be said their actions exceeded the scope of their duties or authority. Therefore, this case should have been dismissed as against each of the individually-named legislators.

Because the individually-named legislators did not act beyond the scope of their duties and authority, they have an affirmative defense of immunity in this action under Article XII of the Ho-Chunk Nation Constitution. REVERSED.


Chief Justice MATHA, concurring.

A plaintiff must articulate in an initial pleading “the facts and circumstances giving rise to the action, and a demand for any and all relief that the party is seeking.” HCN R. Civ. P. 3(A). Additionally, “[w]hen ... the Nation is named as a party, the [plaintiff] should identify the unit of government, enterprise or name of the official or employee involved.” Id. 27(B). And, in regards to the latter class of defendants, the plaintiff “should indicate whether the official or employee is being sued in his or her individual or official capacity.” Id. This designation carries constitutional significance since the Court can grant specific equitable remedies in official capacity suits.1 HCN CONST. art. XII, § 2.

Taken together, these prerequisites establish that a plaintiff must allege the manner in which an official has acted “beyond the scope of [his or her] authority” in order to potentially obtain “declaratory and non-monetary injunctive relief.” Id. The majority concludes that the initial pleading lacks this minimal degree of specificity, and, therefore, I join the result. Supra pp.––––, ––––, ––––. I author this concurrence to address the unnecessary integration of official (absolute or qualified) immunity into the case law and advocate abandoning resort to foreign common law defenses that do not derive from Ho-Chunk tradition and custom. See HCN CONST. art. VII, § 5(a) (identifying parameters of judicial authority).

The predecessor constitution did not contain a single reference to any type of immunity,2 and the Judiciary did not emerge until 1995, so authoritative, and binding, declarations on this particular subject may not have arisen during the Business Committee era.3 CONST.& BYLAWS OF THE WISCONSIN WINNEBAGO TRIBE (ratified Jan. 19, 1963). Moving forward, the principal drafters of the successor constitution included Article XII, entitled “Sovereign Immunity.”4 The Court’s first occasion to interpret and apply these provisions occurred in 1997. Chloris A. Lowe Jr. v. Ho-Chunk Nation et al., SU 97-01 (HCN S. Ct., June 13, 1997).

In relation to section 2, the Court suggested that the exception expressed therein “refer[red] to the official immunity of public officials and employees rather than sovereign immunity.” Id. at 4 n.2 (citing Rave v. Reynolds, 23 ILR 6150 (Winn. S. Ct. 1996)).5 This proposition certainly constituted non-binding dicta,6 but, nonetheless, the Court had signaled the direction in which it would likely proceed. As a result, the Trial Court attempted to conduct subsequent analyses of Article XII within this framework. See, e.g., Gerald Cleveland Jr. v. Elliot Garvin et al., CV 08-36 (HCN Tr. Ct., Feb. 2, 2009) at 13-19. The two-tiered examination that emerged has proven largely unworkable (at times nonsensical), and this jurist counsels against perpetuating its use.

As stated by the majority, the Court presumptively performs a plain language interpretation of constitutional and statutory text. See, e.g., HCN Legislature v. Gerald Cleveland Sr., SU 18-06 (HCN S. Ct., Jan. 17, 2019) at 4; Chloris Lowe Jr. et al. v. HCN Legislature Members Elliot Garvin et al., SU 00-17 (HCN S. Ct., Mar. 13, 2001) at 6; HCN Election Bd. et al. v. Aurelia L. Hopinkah, SU 98-08 (HCN S. Ct., Apr. 7, 1999) at 4. First and foremost, the “sovereign immunity” article does not refer to “official immunity”; its constituent types, “absolute immunity” and “qualified immunity”;7 or the following forms of absolute immunity: judicial, legislative, prosecutorial,8 and - depending on the situation - executive.9 The constitutional text was not likely intended to incorporate these various common law immunities, each with unique provenance and purpose, and none of which, standing alone, could cover all “officials and employees of the Ho-Chunk Nation” within each expressed scenario. HCN CONST. art. XII, §§ 1-2.

Given its relevance here, absolute legislative immunity, a longstanding external doctrine, could extend to encompass acts undertaken in the performance of a purely legislative capacity.10 Yet, significantly, this inquiry does not always align with the basic constitutional distinction: “within [or beyond] the scope of their duties or authority.” Id. Moreover, legislative immunity, unlike other absolute immunity forms,11 would disallow an official capacity suit, provided such suit involved matters touching upon a quintessential legislative act. “[T]he Supreme Court ... resolved the issue of the application of absolute legislative immunity to claims for prospective relief and answered that question in the affirmative.” Larsen v. Senate of Penn., 152 F.3d 240, 252 (3d Cir. 1998) (citing Sup. Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980)). Consequently, the constitutional drafters could not have intended that section 2 incorporate legislative immunity, given that persuasive case law in 1993 would have rendered the interplay of its provisions inconsistent, if not impossible.

Conversely, as assumed in Santa Clara Pueblo, while sovereign immunity offers protection to the sovereign and its sub-entities,12 it does not automatically extend to protect an official from a suit for prospective injunctive relief.13 At the time of the Constitution’s formation, the U.S. Supreme Court understood that “[i]n an official-capacity action, the[ ] defenses[, referring to absolute and qualified immunity,] are unavailable. The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess ...” Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citations and footnote omitted).

More recently, the U.S. Supreme Court offered a comprehensive examination of the law relating to official capacity suits as it existed pre-1993, beginning with Kentucky v. Graham.
[L]awsuits brought against employees in their official capacity “represent only another way of pleading an action against an entity of which an officer is an agent,” and they may also be barred by sovereign immunity. 473 U.S. at 165-66, 105 S.Ct. 3099.
The distinction between individual-and official-capacity suits is paramount here. In an official-capacity claim, the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Dugan v. Rank, 372 U.S. 609, 611, 620-22, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). This is why, when officials sued in their official capacities leave office, their successors automatically assume their role in the litigation. Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). The real party in interest is the government entity, not the named official. See Edelman v. Jordan, 415 U.S. 651, 663-65, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). “Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law.” Hafer, 502 U.S. at 25, 112 S.Ct. 358 (emphasis added); see also id. at 27-31, 112 S.Ct. 358 (discharged employees entitled to bring personal damages action against state auditor general); cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).14 “[O]fficers sued in their personal capacity come to court as individuals,” Hafer, 502 U.S. at 27, 112 S.Ct. 358, and the real party in interest is the individual, not the sovereign.
The identity of the real party in interest dictates what immunities may be available.15 Defendants in an official-capacity action may assert sovereign immunity. Graham, 473 U.S. at 167, 105 S.Ct. 3099. An officer in an individual-capacity action, on the other hand, may be able to assert personal immunity defenses, such as, for example, absolute prosecutorial immunity in certain circumstances. Van de Kamp v. Goldstein, 555 U.S. 335, 342-344, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009). But sovereign immunity “does not erect a barrier against suits to impose individual and personal liability.”16
Lewis, 137 S. Ct. at 1291 (footnotes added) (quoting Hafer, 502 U.S. at 30-31, 112 S.Ct. 358).

Returning to Article XII, a plaintiff must allege the commission of an illegality (a constitutional or statutory violation) by an official or employee, i.e., “act[ing] beyond the scope of ... duties and authority,”17 in order to maintain an action for prospective, non-monetary injunctive relief.18 HCN CONST. art. XII, § 2. The official or employee could be performing or intending to perform such duties in good faith and pursuant to prevailing obligations. However, if the impending or resulting activity offends, or will offend, a predominant law,19 then a plaintiff can seek cessation of conduct or performance of corrective measures.20

Therefore, in an equitable action brought pursuant to section 2, a plaintiff should “indicate” that a tribal “official or employee is being sued in his or her ... official capacity.” HCN R. Civ. P. 27(B). A plaintiff must also identify a defendant against whom the Trial Court can grant equitable relief, i.e., “Can the Judiciary appropriately enjoin the named defendant?” The appellees contended at oral argument that they could not identify another proper party, but this seldom is the case.21 The Court would offend notions relating to separation of powers by sanctioning injunctive relief against individual legislators for engaging in actions of a uniquely legislative character.22 HCN CONST. art. III, § 3.

In summation, this jurist trusts that this opinion serves to provide ample direction in an area of the law that has confounded courts and litigants in this jurisdiction for nearly twenty-five years.

All Citations
--- Am. Tribal Law ----, 2021 WL 5967735



Finding of Fact 3 states: “Defendants are the individually-named HCN Legislators in the caption above in their official and individual capacity whose officers are located at the Tribal Office Building, W9814 Airport Rd., Black River Falls, WI 54615.” Final J. at 6.


Myrna Long was also newly-elected to serve in the Legislature, but resigned shortly after taking office. A Special Election to fill the vacancy was held on August 26, 2021, and Shelby Visintin was certified as the winner. Shelby Visintin was sworn into office on September 22, 2021.


For example, the Trial Court determined that “the manner in which the Legislature enacted Resolution 06-24-20B was unconstitutional,” Final J. at 27-28, and “the issue as to whether the manner in which the Legislature is now passing successive continuing budgets violates the HO-CHUNK NATION CONSTITUTION.” Id. at 28.


The appellees purposefully captioned their August 27, 2020, initial pleading in reliance upon appellate case law. Appellee’s Resp. Br., SU 20-05 (Mar. 15, 2021) at 15 (citing Smith, SU 03-08 at 10) (“Supreme Court case law spells out the mechanism to enjoin unconstitutional conduct by elected officials by naming the officials as defendants [in] their individual and official capacity.”). From this point, the appellees - quite understandably - referenced authority, based upon appellate precedent, where the Court would conjecture “[w]hether the officials or employees act[ed] under the umbrella of sovereign immunity or possess some form of general official immunity from suit.” Id. at 16-17 (quoting Gerald Cleveland Jr. v. Elliot Garvin et al., CV 08-36 (HCN Tr. Ct., Feb. 2, 2009) at 18).


Merriam-Webster Dictionary defines “recommendation” as “the act of recommending.” MERRIAM-WEBSTER ONLINE, http://www.merriam-webster.com (last visited Nov. 18, 2021). Merriam-Webster Dictionary defines “recommend” as “to suggest that someone do (something).” Id.


Merriam-Webster Dictionary defines “propose” as “to set forth for acceptance or rejection.” Id.


“The Supreme Court shall have the power to establish written rules for the Judiciary ..., provided such rules are consistent with the laws of the Ho-Chunk Nation.” HCN CONST. art. VII, § 7(b).


More generally, the U.S. Supreme Court acknowledged that tribes “possess[ ] the common-law immunity from suit traditionally enjoyed by sovereign powers,” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), and, in dicta, noted that such immunity offers no protection to tribal officers. Id. at 59, 98 S.Ct. 1670 (citing, in part, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). The Court offered the latter proposition in the context of a suit in which the plaintiff sought “declaratory and injunctive relief against enforcement of a tribal ordinance.” Id. at 51, 98 S.Ct. 1670. Justice Byron R. White confirmed the availability of an official capacity action since “[u]nder the Santa Clara Constitution, the Governor [wa]s charged with the duty of enforcing the Pueblo’s laws.” Id. at 73 n.2, 98 S.Ct. 1670 (White, J., dissenting). The majority, however, declined to consider a challenge to the tribal law because the Indian Civil Rights Act of 1968 (“ICRA”) did not explicitly permit “a private cause of action for injunctive and declaratory relief ... in the federal courts.” Id. at 69, 98 S.Ct. 1670; cf. ICRA, Pub. L. No. 90-824, § 203, 82 Stat. 73, 78 (codified at 25 U.S.C. § 1303 (2018)) (indicating, in contrast, that “the writ of habeas corpus shall be available ..., in a court of the United States, to test the legality of ... detention by order of an Indian tribe”). Consequently, the plaintiff could have instead chosen to pursue her claim, although somewhat problematically, before the Santa Clara Pueblo Council, which exercised “both legislative and judicial powers.” 436 U.S. at 82, 98 S.Ct. 1670 (White, J., dissenting); see also id. at 66, 98 S.Ct. 1670 (“Nonjudicial tribal institutions have ... been recognized as competent law-applying bodies.”).


The Court remains unaware whether the Business Committee addressed - and resolved - issues relating to immunity, but any such action would have necessarily involved extra-constitutional matters. See HCN CONST. art. XIV (“All actions of the Nation, formerly known as the Wisconsin Winnebago Tribe ..., shall remain in full force and effect to the extent that they are consistent with this Constitution.”); see also Pierre Decorah Jr. v. Rainbow Casino, CV 95-18 (HCN Tr. Ct., Mar. 15, 1996) at 8, 10 (noting that the Business Committee conferred “its inherent judicial authority” upon a sub-agency, the Wisconsin Winnebago Personnel Review Commission, to adjudicate employment disputes roughly three years prior to the formation of the Judiciary (quoting WWPRC ORDINANCE § 1)).


Attorney Robert J. Lyttle (Cheyenne & Arapaho Tribes), Lewis & Clark Law School, J.D. (1988); Prof. Richard A. Monette (Turtle Mountain Band of Chippewa Indians of North Dakota), University of Oregon School of Law (1988). “In 1993 Robert Lyttle and I assisted in drafting the new current constitution for the Wisconsin Winnebago....” The Indian Reorganization Act - 75 Years Later: Renewing Our Commitment to Restore Tribal Homelands and Promote Self-Determination: Hearing Before the S. Comm, on Indian Affairs, 112th Cong. 44 (2011) (statement of Assoc. Prof. Richard A. Monette, Univ. of Wis. Law Sch.); see also Updates from Community Meetings, OJIBWE INAAJIMOWIN, Nov. 11, 2009, at 3 (touting “more than 20 years of experience drafting tribal constitutions”); Rick Smith, Constitution Committee Going through Stages, THE SAULT TRIBE NEWS, Sept. 1, 2006, at 18 (emphasizing “17 years[’] experience in helping tribes with constitutional revisions”).


In Rave, the Winnebago Supreme Court attempted to reconcile two tribal statutory provisions. The first provision, entitled “Sovereign immunity,” seemingly extended such immunity to protect “officers and employees ... from suit for any liability,” provided these individuals were engaged in “the performance of their official duties.” 23 ILR at 6163 (citation omitted). The second provision enabled judicial review of any action undertaken by an officer or employee who allegedly violated either tribal constitutional or statutory law or ICRA prohibitions. Id. The court regarded these provisions as “inconsistent” and determined that “[t]he only obvious way to reconcile the[ ] two provisions” required interpreting the former provision, despite its statutory title, as “really address[ing] two separate types of immunity - the sovereign immunity of the tribe and the official immunity of the tribal officers and employees.” Id.
The Rave court seized upon the reference to “any liability” and deemed that it concerned only suits for monetary relief. As a result, the court chose to identify the alternative type of immunity in the first provision as qualified immunity, “an official immunity not a derivative of sovereign immunity.” Id. at 6164. Also, the court deemed actions attempting “to reach assets in the tribal treasury, adjudicate title to property, or interpret or enforce tribal contractual obligations” as suits against the sovereign regardless of a plaintiff’s designation of an individual party defendant. Id. In its estimation, the court “adopt[ed] the emerging consensus of tribal court decisions that tribal sovereign immunity does not extend to suits against tribal officers and employees, an interpretation consistent with Martinez.Id.
The court’s effort to resolve a perceived inconsistency instead fostered many more, including, quite unintentionally, this Court’s jurisprudence. To begin, while the court acknowledged, and somewhat lamented, that the doctrine of “sovereign immunity ... constitute[s a] distinctly Anglo-American legal doctrine[ ], having no parallel[ ] in traditional Indian life,” id. at 6161, it nonetheless grafted the equally, if not more, foreign theory of official qualified immunity onto a statutory provision that made no reference to any other type of immunity, apart from sovereign immunity. Furthermore, although the plaintiffs “only named various members of the tribal council as defendants,” id. at 6164, the court dispensed with considering the application of absolute legislative immunity (albeit similarly problematic) due to its construing “any liability” to implicate complete protection against requests for money damages and, hence, qualified immunity - a non sequitur. Given that qualified immunity may extend more appropriately to other “officers and employees,” this choice could appear logical, but the court, in effect, bestowed absolute immunity upon every officer and employee by virtue of its opinion. A defense of qualified immunity can generally be raised in hopes of avoiding the imposition of a money judgment in an individual capacity action. The court, in contrast, instituted a system whereby the defense, according to the statute, would require that “officers and employees shall be immune from suit for any liability arising from the performance of their official duties.” Id. at 6163 (citation omitted). This, quite simply, does not comport with any known legal understanding of qualified official immunity.
The Rave court could have instead adopted a more nuanced interpretation of Santa Clara Pueblo. Supra note 2. The Nebraska Winnebago statutory provisions do bear significant resemblance to Article XII, justifying the analogy. But, this Court no longer regards Rave v. Reynolds as correctly decided or persuasive authority.


Obiter dictum, Lat. “something said in passing,” i.e., “A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive).” BLACK’S LAW DICTIONARY (11th ed. 2019).


As explained by the Fifth Circuit Court of Appeals:
Official immunity may be either absolute or qualified, depending on the functions performed by the particular official at issue. Qualified immunity shields only that conduct not violative of clearly established constitutional [or statutory] rights of which a reasonable person would have known. Absolute immunity, in contrast, precludes any action for damages, so long as the challenged conduct falls within the scope of the immunity.
Austin v. Borel, 830 F.2d 1356, 1358-59 (5th Cir. 1987) (alteration in original). In Austin, the court resolved that state child protection workers could not claim absolute executive immunity in connection with filing an allegedly fraudulent removal petition. Id. at 1363. The court, however, “express[ed] no opinion regarding defendants’ right to dismissal on the ground of qualified immunity” upon remand. Id.


Harlow v. Fitzgerald, 457 U.S. 800, 810-11, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (“recogniz[ing] that the judicial, prosecutorial, and legislative functions require absolute immunity”); see also United States ex rel. Burlbaw v. Regents of N.M. State Univ., 324 F. Supp. 2d 1209, 1217 (D. N.M. 2004) (“[O]fficials or employees sued as individuals are entitled to at most qualified immunity, rather than absolute immunity, unless they are acting in a prosecutorial, judicial, or legislative capacity.”).


Coleman v. Frantz, 754 F.2d 719, 726 (7th Cir. 1985) (“Certain high level executives may enjoy an absolute immunity in particular circumstances....”); see also Cleavinger v. Saxner, 474 U.S. 193, 202, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) (employing a multifaceted inquiry to determine whether an executive official deserves absolute immunity for actions deriving from a uniquely deliberative function).


In 1997, the Seventh Circuit Court of Appeals summarized U.S. Supreme Court jurisprudence in this regard:
Courts have granted absolute legislative immunity to legislators for various activities which include: (1) core legislative acts such as introducing, debating, and voting on legislation; (2) activities that could not give rise to liability without inquiry into legislative acts and the motives behind them; and (3) activities essential to facilitating or preventing the core legislative process.
Biblia Abierta v. Banks, 129 F.3d 899, 903 (7th Cir. 1997); cf. Gravel v. United States, 408 U.S. 606, 618, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972) (affording legislative immunity “not only to a Member but also to his [or her] aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member him[- or her]self”).


See, e.g., Pulliam v. Allen, 466 U.S. 522, 536, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984) (“We never have had a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence.”).


Tribes often enact limited waivers of sovereign immunity in employment settings, but a plaintiff will succumb to an asserted immunity defense if, for instance, she seeks monetary relief for an alleged improper termination solely from an individually named official. See, e.g., EMPLOYMENT RELATIONS ACT OF 2004, 6 HCC § 5.37(a)-(d). The plaintiff must assert legal claims against the tribe; otherwise, the official could legitimately defend on the basis of sovereign immunity from suit. See Kenneth Twin v. Douglas Greengrass et al., CV 03-88 (HCN Tr. Ct., May 24, 2004) (refusing to award lost wages in an employment action due to failure to name the Nation), appeal denied, SU 04-08 (HCN S. Ct., Dec. 29, 2004). But see Louella Kelty v. Jonette Pettibone et al., CV 98-49 (HCN Tr. Ct., Feb. 22, 2006) (recognizing ability of named officials to raise defense of sovereign immunity on behalf of the Nation, which did not occur, leading to a grant of lost wages in an employment action); see also Sharon Williams v. HCN Ins. Review Comm’n, SU 98-01 (HCN S. Ct., Oct. 29, 2008) at 16 (“Where a party fails to assert a defense of sovereign immunity in a case, such a defense is waived.”); cf. HCN R. Civ. P. 27(B) (obligating service of summons upon the Department of Justice in cases involving either the Nation or its officials or employees).


In Santa Clara Pueblo, Ms. Martinez principally sought to enjoin Governor Padilla from enforcing a membership ordinance, which she maintained violated principles of equal protection due to its codification and imposition of ancestral and sex discrimination. 436 U.S. at 51, 98 S.Ct. 1670; see also ICRA, Pub. L. No. 90-824, § 202(8), 82 Stat. 73, 77 (codified at 25 U.S.C. § 1302 (2018)) (“No Indian tribe in exercising powers of self-government shall deny to any person within its jurisdiction the equal protection of its laws....”). Point being, a plaintiff, at a minimum, must allege a violation of overarching constitutional or statutory law. Otherwise, sovereign immunity would still protect a defendant official or employee despite the presence of a purely equitable claim. For example, an employee could seek to enjoin a supervisor from promoting a co-worker rather than herself. In such a case, the defendant could certainly assert sovereign immunity from suit if she possessed discretion to make the employment decision at issue, and the plaintiff articulated no constitutional or statutory infraction, i.e., the employee merely disagreed with the decision to bypass her in favor of another. See Decorah, CV 95-18 at 5 (“There are no standards of law or rules that would provide the Court with a method of measuring discretionary decisions.”).


See Decorah, CV 95-18 at 10-11 (citing Bivens, 403 U.S. 388, 91 S.Ct. 1999) (recognizing ability to proceed against an official for monetary relief in an individual capacity action).


A great degree of indecision and imprecision surrounding the proper manner in which to craft a petition for prospective injunctive relief largely derives from the following seminal passage:
[I]n every case where an official claims to be acting under the authority of the state. The act to be enforced is alleged to be unconstitutional; and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect, the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting, by the use of the name of the state, to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.
Ex parte Young, 209 U.S. at 159-60, 28 S.Ct. 441 (emphasis added). Legal scholars and jurists from varying jurisdictions have interpreted this passage - the Ex parte Young fiction - to require the designation of an official in his or her individual capacity in order to proceed. See, e.g., Carpenter v. Miss. Valley State Univ., 807 F. Supp. 2d 570, 582-84 (N.D. Miss. 2011) (tracing the still existing uncertainty). This confusion persists due to the difficulty of casting an official who has theoretically lost official stature, due to alleged illegality of action (present or imminent), as anything other than an individual, but these circumstances could prompt an official capacity, and not necessarily an individual capacity, suit. The nature of the relief sought dictates the case designation. See Michigan v. Bay Mills Indian Community, 572 U.S. 782, 796, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014) (citing Santa Clara Pueblo, 436 U.S. at 59, 98 S.Ct. 1670) (“As this Court has stated before, analogizing to Ex parte Young ..., tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct.”). To reiterate, one would most always file an individual capacity action if he or she wished to secure financial relief from the individual, wholly disconnected from the sovereign (apart from possible indemnity). See Lewis v. Clarke, ––– U.S. ––––, 137 S. Ct. 1285, 1292, 197 L.Ed.2d 631 (2017) (“We hold that an indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak.”). One could obtain equitable relief as well, but the order would only impact the named individual, in his or her personal undertakings, and not the sovereign entity, including any successor to the position occupied by the defendant. See Gingras v. Think Fin., Inc., 922 F.3d 112, 123 (2d Cir. 2019) (“[T]he only material difference between individual and official capacity suits for prospective, injunctive relief is that a judgment against the latter is enforceable against future successive officers whereas judgments against the former are not.”), cert. denied, ––– U.S. ––––, 140 S. Ct. 856, 205 L.Ed.2d 458 (2020).


This case does not present any claim for personal liability, and this jurist shall accordingly withhold rendering any opinion on the ultimate viability of such actions. As noted, the Trial Court has indicated the potential availability of these claims, supra note 14, but it presented this possibility prior to this Court’s Lowe decision, which relied upon the reasoning of a sister tribe’s appellate court. Supra note 5. As a result, the Judiciary may interpret section 2 to preclude individual capacity suits if it perceives the phrase, “subject to suit in equity only for declaratory and non-monetary injunctive relief,” to foreclose this option. HCN CONST. art. XII, § 2 (emphasis added). However, as expressed throughout this opinion, since section 2 refers neither to absolute nor qualified official immunity, but rather an exception to the doctrine of sovereign immunity, the phrase has no bearing on an individual capacity suit. This jurist interprets “only” to represent a limitation on the manner of equitable relief available in an official capacity suit, precluding remedies in equity that have an intended, primary monetary impact, e.g., restitution.
The manner of relief offered in courts of equity “refer[s] to those categories ... that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages).” Mertens v. Hewitt Assoc., 508 U.S. 248, 257, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); see also Cigna Corp. v. Amara, 563 U.S. 421, 440-42, 131 S.Ct. 1866, 179 L.Ed.2d 843 (2011) (identifying other forms of equitable relief, including estoppel, reformation of contract, and surcharge). “[F]or restitution to lie in equity, the action generally must seek not to impose personal liability on the defendant, but to restore to the plaintiff particular funds or property in the defendant’s possession.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 214, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). Clearly, “a court in equity may award monetary restitution as an adjunct to injunctive relief....” Tull v. United States, 481 U.S. 412, 424, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987).
This jurist does not believe that the constitutional drafters would have denied an ability to the Nation, in regrettable instances, to rectify egregious attacks upon the sovereign and its People. See, e.g., United States v. Whiteagle, 759 F.3d 734, 750 n.7 (7th Cir. 2014) (identifying former legislator’s guilty plea to bribery); United States v. Decorah, 46 F.3d 26 (7th Cir. 1995) (affirming former Business Committee member’s guilty verdict for bribery). Section 2 cannot plausibly serve as a shield to protect such actions, and the Nation should not solely rely upon a separate sovereign to punish this type of behavior. Moreover, “[a]ny ... case or controversy arising within the jurisdiction of the Ho-Chunk Nation shall be filed in the Trial Court before it is filed in any other court.” HCN CONST. art. VII, § 5(a).


Post-1993, some courts began to diminish perceived formalities in pleading an official capacity suit. Notably, the Fifth Circuit Court of Appeals created an equitable exception. See, e.g., Comstock Oil & Gas, Inc. v. Alabama and Coushatta Indian Tribes of Texas, 261 F.3d 567, 570 (5th Cir. 2001) (likening tribal and state officials; declining to extend sovereign immunity to shield against an equitable action; and affording no importance to tribal assertion that officials acted within the scope of their authority, i.e., not in violation of constitutional or statutory requisites). But see Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269, 1271-72 (9th Cir. 1991) (“[W]hen tribal officials act in their official capacity and within the scope of their authority, they are immune.”). Regarding this issue, “[t]here [remains] a circuit split on th[e] question.” Stifel v. Lac du Flambeau Band of Lake Superior Chippewa Indians, No. 13-cv-372-wmc, 2014 WL 12489707, at *4 (W.D. Wis. May 16, 2014). In this jurisdiction, the constitutional text resolves the matter: a plaintiff must allege in the initial (or amended) pleading the manner in which the official has “act[ed] beyond the scope of their duties and authority.” HCN CONST. art. XII, § 2.


See Vann v. U.S. Dep’t of Interior, 701 F.3d 927, 929 (D.C. Cir. 2012) (Kavanaugh, J.) (“The Ex parte Young doctrine allows suits for declaratory and injunctive relief against government officials in their official capacities—notwithstanding the sovereign immunity possessed by the government itself. The Ex parte Young doctrine applies to Indian tribes as well.”); see also id. (“As a practical matter, therefore, the Cherokee Nation and the Principal Chief in his official capacity are one and the same in an Ex parte Young suit for declaratory and injunctive relief.”)


Consequently, the Court cannot elevate one constitutional provision over another, but rather ensure against the undue subordination of competing authorities, which the majority finds occurred here. Supra pp. –––– – ––––.


See Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995) (“The typical preliminary injunction is prohibitory [(negative)] and generally seeks only to maintain the status quo pending a trial on the merits. A mandatory [(affirmative)] injunction, in contrast, is said to alter the status quo by commanding some positive act.” (citation omitted)); United Bonding Ins. v. Stein, 410 F.2d 483, 486 (3rd Cir. 1969) (“An injunction is a prohibitive writ issued by a court of equity forbidding a party-defendant from certain action, or in the case of a mandatory injunction, commanding positive action.”).


The appellees do not encounter a scenario where a failure to maintain an action against the named defendants would “gut[ ] constitutional protections and guarantee[ ] leaving no remedy for unlawful conduct.” Appellee’s Resp. Br., SU 20-05 (Mar. 15, 2021) at 17. As in 1908, one’s litigation strategy should normally follow a fairly apparent course. See, e.g., APPROPRIATIONS & BUDGET PROCESS ACT, 2 HCC § 4.9c(1) (“As legal counsel for the Nation, the Department of Justice shall prosecute all violations of this Act....”); LEGISLATIVE ORG. ACT OF 2011, 2 HCC § 11.42 (“Any governmental documents, such as Resolutions or minutes, issued and approved by the Legislature shall only be executed by tribal member officials.”); cf. Whole Woman’s Health v. Jackson, No. 21-463, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 5855551 (U.S. Dec. 10, 2021) (debating proper party status in an official capacity Ex parte Young action).


The Judiciary can “interpret and apply ... laws,” which presumes that a law must first be in effect. HCN CONST. arts. IV, § 2; VII, § 4. The Legislature can “make laws,” id. arts. IV, § 2; V, § 2(a), but this does not occur until adoption by “[a] majority vote of the quorum” present. Id. art. V, § 12. The Court cannot presuppose that a particular law will pass, and, moreover, by a vote of particular legislators. For similar reasons, the Court declines to require legislative amendment to or annulment of enacted legislation. Oftentimes, a determination of constitutionality or illegality hinges upon a single provision and, sometimes, a single word. See, e.g., JoAnn Jones v. HCN Election Bd. et al., SU 95-05 (HCN S. Ct., Aug. 15, 1995) (defining “majority”). The Judiciary cannot magically ascertain the necessary manner and scope of an incursion until presented with either an alleged imminent or ongoing violation deserving of injunctive relief. Finally, while the Judiciary can ably employ its equitable powers in the context of a justiciable case or controversy, it purposefully refrains from attempting to exercise powers that exist outside of a reasonable conception of judicial purview. See, e.g., Twin, CV 03-88 at 11 (declining to discipline a supervisor since a decidedly executive function).