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KICKAPOO TRIBE OF OKLAHOMA v. LUJAN

January 19, 1990

KICKAPOO TRIBE OF OKLAHOMA, on behalf of themselves and as parens patriae, TRADITIONAL COUNCIL OF THE TEXAS BAND OF KICKAPOO, on behalf of themselves and as parens patriae, ISIDRO SALAZAR, DEBRA GARCIA, and IRENE GARZA SPOON, Plaintiffs,
v.
MANUEL LUJAN, Secretary of the Interior, and WILLIAM RAGSDALE, Assistant Secretary of the Interior-Indian Affairs, Defendants



The opinion of the court was delivered by: HARRIS

 This matter is before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss. Plaintiffs seek to enjoin defendants from recognizing and dealing with a newly-created independent Texas Band of Kickapoo Indians. For the reasons set forth below, plaintiffs' motion is denied, defendants' motion is granted, and the case is dismissed.

 Background

 The Kickapoo Indians migrated south from present-day Wisconsin and Illinois in the early part of the nineteenth century, eventually settling in Oklahoma, Texas, and Mexico. The Kickapoo Tribe of Oklahoma has been a federally-recognized tribe since 1937, pursuant to the Oklahoma Indian Welfare Act, 25 U.S.C. § 503. The Texas Band, however, did not gain federal recognition until 1983 when, under the Texas Band of Kickapoo Act, the Band was recognized as a subgroup of the Kickapoo Tribe of Oklahoma. 25 U.S.C. §§ 1300b-11 through 1300b-16.

 Despite their geographic separation, the Oklahoma Tribe and what eventually became the Texas Band have maintained a close relationship through migration, intermarriage, and their tribe/subgroup status. In fact, the two groups worked together in urging Congress to pass the Texas Band of Kickapoo Act. Prior to the Act's passage, the group residing in Texas lived under intolerable living conditions and was ineligible for federal services. Under the Act, the group gained recognition as American Indians and status as a subgroup of the Oklahoma Tribe, and became eligible for federal services. On March 8, 1984, the Oklahoma Tribe passed Tribal Resolution No. K-84-3, which provided for a Texas Band of Kickapoo Committee to serve for a two-year period as spokespersons for the Band and as an advisory board to the Oklahoma Tribe. The Traditional Council of the Texas Band of Kickapoo then passed its own by-laws on April 27 and May 11, 1985.

 On January 23, 1989, the Traditional Council (referred to by plaintiffs as the "Texas faction") submitted a draft constitution for the "Kickapoo Traditional Tribe of Texas" to the Bureau of Indian Affairs (BIA) for review pursuant to Section 16 of the Indian Reorganization Act, 25 U.S.C. § 476. *fn1" On April 20, 1989, however, the Business Committee of the Oklahoma Tribe appointed a new Traditional Council for the Texas Band, "for the purpose of reevaluating the directives and objectives of the Texas Band of Kickapoo." Tribal Resolution K-89-26, April 20, 1989. On April 21, 1989, after several levels of agency review of the proposed constitution, the Deputy to the Assistant Secretary for Indian Affairs authorized the Anadarko Area Director to call the Secretarial election to seek ratification of the proposed constitution. The election was set for May 27, 1989.

 On May 6, 1989, the new Traditional Council informed the BIA by Tribal Resolution that the Council did not wish to separate and form an independent tribe, but rather wished to have a five-year transition period to study the option. This Council also submitted a new constitution and asked that a Secretarial election be called for ratification. The BIA acknowledged receipt of the documents but did not cease preparations for the May 27 election that had initially been requested. The Oklahoma Tribe filed an appeal with the Secretary on May 8, 1989, alleging irregularities in the election registration process. The Secretary denied the appeal on May 19, 1989. The Tribe then requested reconsideration of the decision, but the request was denied on May 25.

 The Secretarial election was held on May 27, 1989, and the Band voted in favor of adopting the proposed constitution, casting 132 votes for and 15 votes against adoption. Two timely challenges to the election were filed pursuant to BIA regulations, 25 C.F.R. § 81.22 (1988), but both were reviewed and denied. On July 7, 1989, the Oklahoma Tribe requested that the BIA disapprove the election and constitution, alleging various irregularities in the election process. Nevertheless, on July 11, 1989, the Secretary certified the election results and approved the Band's proposed constitution.

 Discussion

 A. Standing

 Defendants argue that the Oklahoma Tribe must be dismissed as a plaintiff because the Tribe lacks standing. The Tribe asserts standing on the basis of its significant sovereignty interest, and under the doctrine of parens patriae on behalf of some of its own members and on behalf of all of the Texas Band members. The Court, taking as true all material allegations of the complaint, agrees with defendants that the Oklahoma Tribe lacks standing, and that it must therefore be dismissed as a plaintiff.

 Article III of the Constitution of the United States requires a plaintiff to allege "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315, reh'g denied, 468 U.S. 1250, 105 S. Ct. 51, 82 L. Ed. 2d 942 (1984). In addition to the constitutional requirements, there are certain prudential considerations to which federal courts have adhered. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). Among these prudential concerns, the Supreme Court has required "that the plaintiff's complaint fall within 'the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.'" Id. at 475 (citing Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970)). This prudential concern "remains a firm requirement of the law of this circuit," Autolog Corp. v. Regan, 235 U.S. App. D.C. 178, 731 F.2d 25, 29 (D.C.Cir. 1984), and "'seeks to exclude those plaintiffs whose suits are more likely to frustrate than to further statutory objectives.'" American Postal Workers Union, AFL-CIO v. United States Postal Service, 282 U.S. App. D.C. 5, 891 F.2d. 304, 310 (D.C.Cir. 1989) (citing Clarke v. Securities Industry Association, 479 U.S. 388, 397 n.12, 93 L. Ed. 2d 757, 107 S. Ct. 750 (1987)). The Court finds that the Oklahoma Tribe's complaint does not fall within the zone of interests protected by Congress in passing the relevant statutes. *fn2"

 In the Texas Band of Kickapoo Act, Congress made § 16 of the Indian Reorganization Act applicable to the Texas Band. 25 U.S.C.A. § 1300b-14(a). Under § 16, tribes are given the option to reorganize their tribal governments by adopting new tribal constitutions. 25 U.S.C.A. § 476. In 1988, Congress amended § 16 and provided: "Actions to enforce the provisions of this section may be brought in the appropriate Federal district court." 25 U.S.C.A. § 476(d)(2). By enacting this provision, Congress consciously waived the United States' sovereign immunity and consented to suit. However, "it is elementary that when consent to sue the United States is granted, the precise terms, conditions, and qualifications of such consent must be scrupulously followed." Coleman v. United States Bureau of Indian Affairs, 715 F.2d 1156, 1161 (7th Cir. 1983). Thus, Congress may prescribe the specific procedures to be followed, the specific tribunal to be invoked, and the specific remedies to be pursued.

 Congress may also prescribe the particular parties who have standing to bring suit against the United States. "Where . . . Congress has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff." Sierra Club v. Morton, 405 U.S. 727, 732, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). Although the statute reads merely "actions . . . may be brought . . . .", and is unclear on its face as to who may bring them, the legislative history of the 1988 amendments to the IRA makes clear that Congress consented to suit only by the tribe submitting its proposed constitution for ratification by the tribe and approval by the Secretary under the IRA. *fn3" Both the Senate and House Reports state that "the tribe also has the right to challenge any finding made by the Secretary as to the legality of a proposed tribal document in the appropriate Federal court." ...


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