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KEEN v. UNITED STATES

August 7, 1997

RALPH KEEN, et al., Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant.



The opinion of the court was delivered by: COLLEEN KOLLAR-KOTELLY

 The Plaintiffs in the above-captioned case filed a complaint seeking a declaratory judgment and permanent injunction against the Bureau of Indian Affairs (BIA), alleging that the BIA, through its agents, took action in excess of its legal authority and contrary to federal and tribal law. Thereafter, the Plaintiffs filed a Motion for a Preliminary Injunction. The Defendants moved to transfer the case to the Eastern District of Oklahoma. In a separate pleading, the Defendants moved to dismiss the Complaint on the grounds that (1) the Plaintiffs had failed to state a cause of action against the Defendants; (2) the Cherokee Nation is an indispensable party that has not been named in the action, and (3) the Plaintiffs lack standing to bring this cause of action. The Plaintiffs filed Oppositions to both of the Defendants' Motions, and the Defendants filed a Reply to the Opposition to the Motion to Transfer. On August 5, 1997, the parties appeared before the Court for a hearing on the Motion to Dismiss, the Motion to Transfer, and the Motion for a Preliminary Injunction. The representations at the August 5, 1997, hearing, including the discussions with the Court, are incorporated into this Order. Upon considering the Motion to Dismiss, the Opposition thereto, the oral arguments on the Motion to Dismiss, the entire record herein, and the relevant law, the Court finds that the Plaintiffs have not established standing to maintain the instant cause of action. Accordingly, the Motion to Dismiss is GRANTED.

 I. BACKGROUND1

 A. THE COMPLAINT

 In summary, the Plaintiffs contend that the BIA's reassumption of the law enforcement program is invalid because the BIA did not follow the procedures required by 25 U.S.C. § 450m (1994), *fn3" for the reassumption of the Law Enforcement Program, and that as a result of this unlawful reassumption of the Law Enforcement Program, the "balance of powers among the three branches of the Cherokee Nation's constitutional government has been destroyed." Complaint P 2. Furthermore, the Plaintiffs argue that upon reassuming the Law Enforcement Program, the BIA had an obligation to enforce tribal and federal laws, and that the BIA has failed to fulfill this obligation. Finally, Plaintiffs complain that the BIA assisted in the take-over of the Courthouse, and has prevented them from obtaining their personal property from the Courthouse.

 As relief for these violations, the Plaintiffs seek (1) a declaratory judgment that the Defendants' actions were arbitrary, capricious, an abuse of discretion, and beyond their lawful authority; and (2) a permanent injunction ordering the Defendants to withdraw as law enforcement officers in the Cherokee Nation *fn4" until such time as they are legally requested to assume that role, and to cease preventing the Cherokee Nation Marshal's Service (the Marshal's Service) from performing its law enforcement duties, including but not limited to the service of pending bench warrants, orders of detention, and orders declaring the actions of the Principal Chief as unconstitutional; or alternatively; (3) a permanent injunction ordering the BIA to enforce the Tribunal Orders, including but not limited to, service of warrants and orders issued by the Tribunal; (4) a permanent injunction ordering the Defendants to refrain from interfering with tribal governmental processes; and (5) any other just and appropriate relief.

 B. SUMMARY OF FACTS PRESENTED IN COMPLAINT AND PLEADINGS, AS SUPPLEMENTED AT THE ORAL HEARING ON AUGUST 5, 1997

 The following is a summary of the undisputed and/or uncontroverted facts as adduced in the Complaint, pleadings, and at the hearing.

 On April 18, 1997, Assistant Secretary Deer, who is the Assistant Secretary of Indian Affairs, sent a letter to Principal Chief Byrd advising him that the BIA had concluded that there was an imminent jeopardy to the public safety within the Cherokee Nation's Indian country jurisdiction. Assistant Secretary Deer informed Principal Chief Byrd that the BIA would reassume the Law Enforcement Program effective immediately, and would continue the reassumption until the Department of the Interior was satisfied that the conditions creating the imminent jeopardy were resolved. Id. P 24; see also Ex. M of Pls.' Mot. for Prelim. Inj.

 In her letter, Assistant Secretary Deer set out the facts that supported the BIA's finding of imminent jeopardy: the "confirmed reports that calls for law enforcement services are not being responded to;" the "strong recommendation of the Muskogee Area Director and the concurrence of the Deputy Commissioner Indian Affairs that the program should be assumed on a temporary basis;" the county sheriff would not respond to calls for law enforcement due to "questions regarding the authenticity of the cross-commissioning from the Cherokee Nation[, which is] a clear indication that law enforcement coverage is inadequate;" the "existence of two armed Cherokee marshal services representing opposing political factions [which has] created confusion, disorder, and fear among the Cherokee population;" and the declaration of a state of emergency issued by a majority of the Tribal Council and the Principal Chief. In this letter, Assistant Secretary Deer informed the Principal Chief that the Nation had a right to a hearing on this decision within 10 days. Id.

 On April 24, 1997, the Tribunal, of which the Plaintiffs are members, ruled that the April 15, 1997, meeting was convened contrary to Article V, § 5 of The Cherokee Nation Constitution, which provides that "no business shall be conducted by the Tribal Council, unless at least two-thirds of the members thereof regularly elected and qualified shall be in attendance, which members constitute a quorum." Id. PP 22-23. The Order further ruled that the members met without having published the required ten day notice. Id. The Order declared that "all decisions rendered at such meeting are void and illegal" and enjoined the Tribal Council members from taking any action pursuant to the illegal meeting and declared that the meeting was unconstitutional and that the resulting request for the BIA's assistance was null and void. Id.

 On May 2, 1997, the Tribunal issued show cause orders to the Principal Chief and Deputy Chief, directing them to appear before the Tribunal on May 27, 1997. See Complaint at 8 n.2. On May 27, 1997, the Principal Chief and the Deputy Chief did not appear before the Tribunal and the Tribunal issued warrants for their arrest. *fn6" Id. The Plaintiffs allege that the BIA has not served these bench warrants, and improperly relied on the ultra vires actions of Principal Chief Byrd and the Tribal Council, ...


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