In support of their motion to dismiss, defendants make two arguments with regard to the nature of the relief sought in this case. First, defendants maintain that sovereign immunity is a bar to this suit. Second, they argue that the decision whether to enforce Section 2 of the Crow Act is committed to the absolute discretion of executive officials.
Turning to the first argument, the Crow Tribe's claim for relief is based in part on 28 U.S.C. § 1361, which provides:
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
The D.C. Circuit has interpreted this section as authorizing federal district courts "to issue appropriate corrective orders where Federal officials are not acting within the zone of their permissible discretion but are abusing their discretion or otherwise acting contrary to to law. . . ." Peoples v. U.S. Dep't of Agriculture, 138 App. D.C. 291, 427 F.2d 561, 565 (D.C. Cir. 1970).
The mandamus provision of 28 U.S.C. § 1361 has been held to be a waiver of sovereign immunity in actions seeking to compel public officials to adhere to the duties imposed upon them in their official capacities. Haneke v. Secretary of HEW, 175 App. D.C. 329, 535 F.2d 1291, 1296 n.14 (D.C. Cir. 1976); Knox Hill Tenant Council v. Washington, 145 App. D.C. 122, 448 F.2d 1045, 1052 n.8 (D.C. Cir. 1973); see also C. Wright, A. Miller & E. Cooper, 14 Federal Practice and Procedure § 3655 (1985) (hereinafter Wright & Miller) (sovereign immunity does not bar mandamus actions to compel performance of ministerial duties that are compelled by law). Defendants cite no counter authority for the argument that sovereign immunity is a bar to a mandamus action seeking prospective relief. Therefore, this ground for dismissal is rejected.
Defendants' second argument is that the decision whether to enforce Section 2 is committed to the discretion of defendant federal officials and, therefore, relief in the form of mandamus is not authorized under 28 U.S.C. § 1361. Indeed, mandamus may not be used to influence a federal officer's exercise of discretion. Haneke, 535 F.2d at 1296; Wright & Miller at § 3655. "On the other hand, if the officer is acting without authority, or contrary to a clear duty, or in clear abuse of his discretion, the statute will apply." Wright & Miller at § 3655.
In the present case, the nature of defendants' duties under Section 2 of the Crow Act is unclear at this stage in the litigation. Certainly, the decision whether to prosecute a particular alleged violation of Section 2 is within the discretion of the attorney general, as defendants point out. However, that grant of discretion is not unbounded,
and it clearly does not authorize defendants to abdicate all enforcement of Section 2, as plaintiff alleges is the situation here.
In other words, the Court recognizes a distinction between exercising the discretion to set enforcement priorities and failing altogether to carry out the obligations that Congress has imposed on the executive.
The latter is properly subject to judicial review.
Moreover, the unique relationship of the Crow Tribe and the United States -- which is shaped by treaties between the parties and by the government's fiduciary responsibility -- may place a special burden on defendants to enforce Section 2 and, in effect, limit the discretion of defendants. First, the Second Treaty of Fort Laramie, entered into by the Crow Tribe and the United States in 1868, provides:
If bad men among the whites or among other people, subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States, will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington city, proceed at once to cause the offender to be arrested and punished according to the laws of the United States. . . .
15 Stat. 649. While defendants maintain that this provision was narrowly aimed at keeping the peace, it is an axiom of federal Indian law that treaties be liberally construed to favor Indians and ambiguities be resolved in favor of the Indians. Choctaw Nation v. United States, 318 U.S. 423, 431-32, 87 L. Ed. 877, 63 S. Ct. 672 (1943); McClanahan v Arizona State Tax Comm'n, 411 U.S. 164, 174, 36 L. Ed. 2d 129, 93 S. Ct. 1257 (1973). Thus, this treaty provision may impose a special duty on defendants to enforce civil and criminal provisions, such as Section 2, that affect the Crow Tribe.
Second, the federal trust relationship between the United States and the Crow Tribe limits executive authority and discretion to administer Indian property and affairs. F. Cohen, Handbook of Federal Indian Law, 226 (1982). Arguably, then, the trust relationship and the government's duty of loyalty to the Tribe
restrict the scope of the prosecutorial discretion relied upon by defendants in support of their motion to dismiss.
In sum, the Crow Tribe has sufficiently supported its allegation that defendants have exceeded their discretion in this case in order to survive the pending motion to dismiss. Fed. R. Civ. P. 12; Conley v. Gibson, 355 U.S. 41, 47-48, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Whether defendants have in fact exceeded or abused their discretion in failing to enforce Section 2, as the Crow Tribe alleges, is a question that must be resolved later.
Upon review of the record in this case and applicable authority, the Court concludes that the Crow Tribe has standing to maintain this suit and that neither sovereign immunity nor executive discretion bars plaintiff's claim for mandamus relief. Accordingly, the motion of defendants to dismiss is denied. An order consistent with this Memorandum Opinion will be issued.
DATED: July 20th, 1990.
NORMA HOLLOWAY JOHNSON
UNITED STATES DISTRICT JUDGE