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MINNESOTA CHIPPEWA TRIBE v. CARLUCCI

April 25, 1973

The MINNESOTA CHIPPEWA TRIBE et al., Plaintiffs,
v.
Frank C. CARLUCCI, etc., et al., Defendants


June L. Green, District Judge.


The opinion of the court was delivered by: GREEN

June L. Green, District Judge.

 In this action plaintiffs seek inter alia to require the President of the United States to appoint members of the National Advisory Council on Indian Education pursuant to The Indian Education Act, Title IV of Pub. L. No. 92-318, 86 Stat. 334, approved by the President June 23, 1972. *fn1" In answering the complaint, the government admitted that the President is charged with duties and responsibilities under the statute in question. The answer further admitted that the President has heretofore neither made any appointments to the Council, nor delegated his power to another.

 The case is before the Court on the government's "Suggestion for Dismissal of Action as to Richard M. Nixon, President of the United States". Fed. R. Civ. P. 12(h)(3) provides,

 
"Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."

 In determining whether the Court has jurisdiction over the subject matter, the Court is reminded that

 
". . . where the complaint . . . is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court, but for two possible exceptions later noted [and not here relevant] must entertain the suit. . . . Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. . . ." Bell v. Hood, 327 U.S. 678, 681-682, 66 S. Ct. 773, 776, 90 L. Ed. 939 (1946).

 A review of the complaint and plaintiffs' jurisdictional statement indicates that the Court has subject matter jurisdiction and that this case may eventually be decided on the merits. Plaintiffs have cited several statutes, e.g., 28 U.S.C. §§ 1331, 1337, 1361, 1362 and 5 U.S.C. §§ 701-706, and the Court is satisfied on the question.

 Since the government contends that any claim against the person of the President is barred by the separation of powers doctrine, the Court now addresses itself to this issue.

 The President of the United States is not completely immune from judicial process for the sole reason that he is President. Atlee v. Nixon, 336 F. Supp. 790 (E.D. Pa. 1972), (dictum); cited with approval in Meyers v. Nixon, 339 F. Supp. 1388 (S.D.N.Y. 1972) (dictum). Chief Justice Marshall held long ago that the judiciary has jurisdiction over the President to compel him to perform a nondiscretionary act required by law. United States v. Burr, 25 Fed. Cas. p. 30, No. 14,692d (C.C.A. Va. 1807) (subpoena duces tecum against the President held proper).

 Suits against the President have generally been unsuccessful for several reasons, none of which appears present in the case sub judice.

 The first reason is lack of standing. E. g., Mottola v. Nixon, 464 F.2d 178 (9th Cir. 1972). In the case at bar, it appears plaintiffs have a personal stake and interest in the outcome of the controversy and might suffer actual injury in fact. Plaintiffs are intended beneficiaries of the Indian Education Act. The National Advisory Council clearly was intended to play a key role in administration of the Act. It appears that the implementation of the Act may be impossible or impracticable unless the Council is constituted by the President. *fn2"

 The second reason suits against the President have foundered is that they relate to "executive" or "discretionary" acts. Mississippi v. Johnson, 71 U.S. 475, 4 Wall (71 U.S.) 475, 18 L. Ed. 437 (1866). More recently, the Supreme Court has defined a ...


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