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September 30, 1999


The opinion of the court was delivered by: Kollar-kotelly, District Judge.


In 1995, for the first time in almost 200 years, the Saint Regis Mohawk Tribe exchanged their Three Chief System of government for a constitutional one composed of three branches. The process by which this exchange took place, and the Tribe's subsequent attempts to revoke that constitutional system and to reinstate the former governing structure, provide the material for this lawsuit.

Plaintiffs invoke this Court's jurisdiction pursuant to 5 U.S.C. § 551 et seq. (the "Administrative Procedure Act" or "APA"), and 28 U.S.C. § 1331 and 1361. Plaintiffs, Chiefs Alma Ransom, Hilda Smoke and Paul Thompson, assert that they comprise the Three Chief System Tribal Council, the governing body of the Saint Regis Mohawk Tribe ("the Tribe"). Defendants are all agents of the federal government responsible for conducting relations with Indian nations located within the United States. In Plaintiffs' view, Defendants Bureau of Indian Affairs ("BIA" or the "Bureau") and the Interior Board of Indian Appeals ("IBIA") have acted contrary to federal law and in an arbitrary and capricious manner in failing to recognize the Three Chief System Tribal Council as the legitimate government of the Saint Regis Mohawk Tribe.

Before the Court are three motions: Plaintiffs' Motion for Summary Judgment, Defendants' Motion for Summary Judgment, and Defendants' Motion for Leave to File an Amended Answer. After careful review of the record and the parties' briefs, the Court grants Plaintiffs' Motion and denies both of Defendants' Motions. The Court finds that Defendants acted arbitrarily, capriciously, and contrary to law in refusing to review for themselves the intensely disputed tribal procedures surrounding the adoption of a tribal constitution, in crediting unreasonable decisions of a seemingly invalid tribal court, and in refusing to grant official recognition to the clear will of the Tribe's people with regard to their government. Moreover, the Court finds untimely and unpersuasive Defendants' belated attempt to amend their answer, initiated only at the final stages of briefing in this case.


At the heart of this case is the Saint Regis Mohawk Tribe's right to self-determination, and the obligation borne by the federal government to recognize that self-determination. From 1802 until 1995, when the disputed circumstances arose, the Tribe operated under a Three Chief System of government whereby three Chiefs, elected by Mohawk voters, together acted as the Tribe's governing body for staggered, three-year terms. See Compl. ¶ 12; Pl's Mot. Summ. J. at 4.

A. The first referendum

The events animating this litigation began on June 3, 1995, when the Tribe conducted a referendum election to determine whether it would adopt a Tribal Constitution creating three branches of tribal government (executive, judicial, and legislative), and supplanting the Three Chief System. This Constitution provided for its own adoption "upon certification that fifty-one (51%) of those present and voting in the referendum called on June 03, 1995 have voted in favor of adopting the Constitution of the Saint Regis Mohawk Tribe." Administrative Record ("A.R.") at vol. I, tab 3 (Draft Tribal Constitution, Art. XIX). On June 6, 1995, witnessed by the then-presiding Three Chiefs, the Tribal Clerk Carol T. Herne certified that 463 out of 909 valid ballots supported the ratification of the constitution — a total of 50.935093% of the vote.*fn1 See A.R. at vol. I, tab 5.

Although extremely close, the results of this referendum election suggested that the Tribal Constitution question failed. Yet shortly following the vote, the Tribal Clerk certified, and the Three Chiefs witnessed, that "a majority of those present and casting valid ballots voted in favor of adopting the tribal constitution. . . . ." Id. She further certified "that the proposed tribal constitution is adopted by a majority of the Mohawk people." Id. The critical, though barely perceptible, difference between the actual results of the referendum election and the requisite 51% set in motion several years of tribal division, a deprivation of services to the Saint Regis Mohawk people, and ultimately this civil action.

After certifying both the referendum results and the adoption of the Tribal Constitution, the existing Chiefs proceeded to govern as the Tribal Legislative Council under a constitutional structure. See Compl. ¶ 13. The dubious circumstances surrounding the adoption of the Constitution, however, occasioned persistent debate within the Tribe over the ensuing months. See id. ¶ 14. Hence, on May 23, 1996, in response to a petition signed by at least 20% of the Tribe's eligible voters requesting it to do so, the new Legislative Council added a referendum question to the ballot for the June 1, 1996 election of Tribal officers under the putative new Constitution. See A.R. at vol. I, tab 10. Recognizing that "questions have been raised as to the proper adoption procedure" of the Constitution, the Council appended to the ballot the question, "Is the Tribal Constitution of the Saint Regis Mohawk Tribe valid?" Id.; See also Pl.'s Stmt. Mat. Facts ("108(h) Stmt.").

B. The second referendum

The results of this ballot question decisively repudiated the Three Chiefs' certification that the constitution was adopted — 651 votes indicating that the Constitution was invalid, against 339 votes indicating that the Tribe properly adopted the Constitution. See A.R. at vol. I, tab 11. In response to the ballot question and to continuing strife within the Tribe, on June 10, 1996 Tribal leaders acting as the Legislative Council passed Tribal Council Resolution ("TCR") 96-84, rescinding the erroneous certification of the Constitution, confirming that the Tribe had rejected the proposed Constitution, and reverting tribal governance to the Three Chiefs System. See A.R. at vol. I, tab 11; Pls.' 108(h) Stmt. ¶ 11. The same day, the Tribal Council also approved TCR 96-85, in which it called "a referendum to be conducted on June 15, 1996," and in which it "agree[d] to abide by the results of the same," posing the question, "Do you favor continuing with our present elected officials?" A.R. at vol. I, tab 13.

C. The third referendum

This so-called "clean slate" referendum question, a further response by the Tribal Council to the ongoing discord within the Tribe that ensued from the disputed certification of the Constitution, proposed two possible courses of action depending upon the outcome of the referendum. If the Tribe voted to retain the current officials, then these would remain as the Three Chief System Tribal Council. See id. If the Tribe voted for a clean slate of officials, it would hold a nominating caucus on June 22, 1996 with elections on June 29, 1996. See id. The referendum resulted in clean slate elections, with 481 votes in favor of new elections, and 194 votes in favor of retaining the existing Tribal Council. See A.R. at vol. I, tab 15; Compl. ¶¶ 16-17.

Following the nomination caucus, the Tribe held elections on June 29, 1996. The Tribe selected as its Three Chiefs System Tribal Council Chiefs Alma Ransom, Hilda Smoke and Paul O. Thompson, Plaintiffs in this case, along with Sub-Chiefs Barbara Lazore, Bryan Garrow and John Bigtree, Jr. See Pls.' Mot. Summ. J., Ex. 8. After the election, Chiefs Ransom, Smoke, and Thompson (the "Three Chiefs Government") contacted the BIA in order to have the Bureau recognize them as the newly elected government of the Tribe. See Compl. ¶ 19. But the BIA, through Defendant Franklin Keel, then the Acting Eastern Area Director, declined to recognize the Three Chiefs Government. Instead, the agency indicated that it considered the incumbent members of the Tribal government, the Tribal Council envisioned by the putative Constitution, to comprise the rightfully governing body of the Tribe.

    The recognized leaders of the tribe [elected on
  June 1, 1996] are as follows: Edward Smoke — chief
  and CEO; Carol Herne — tribal clerk; Rosalie Jacobs —
  vice chief; Philip Tarbell — tribal council member;
  Hilda Smoke — tribal council member; Alan White —
  tribal council member; Doug Smoke — tribal council
  member, and Carol Ross — tribal council member. Only
  the aforementioned persons are recognized as
  possessing authority to represent the tribe in
  government-to-government relations with the United

A.R. at vol. I, tab 34.*fn2

The Bureau based its recognition of the Constitutional Government upon two decisions issued by temporary Judge Christine Z. Deom of the purported Saint Regis Mohawk Tribal Court.*fn3 See id. These opinions, Lazore v. Saint Regis Mohawk Tribal Council, Case No. 96-CI-10080 (June 7, 1996) ("Lazore I"), see A.R. at vol. I, tab 12, and Lazore v. Saint Regis Mohawk Tribal Council, Case No. 96-CI-10080 (July 12, 1996) ("Lazore II"), see A.R. at vol. I, tab 29, affirmed the legitimacy of the Tribal Constitution and called into question all subsequent actions taken to rescind that constitution. In Lazore I, Judge Deom ruled that the referendum questioning the validity of the adopted Constitution was advisory only, and was, moreover, itself unconstitutional.*fn4 See A.R. at vol. 1, tab 12. In response to this ruling, the Tribal Council formally rescinded its certification of the Constitution and reverted to the Three Chiefs System of government. See A.R. at vol. I, tab 11. That rescission provoked Lazore II. In her second opinion, Judge Deom held unconstitutional the Council's attempt to rescind its certification of the Constitution; found all of the Council's actions regarding the "clean slate" referendum and the new elections to be null and void; declared the Tribal Constitution operative until properly amended or repealed; and enjoined the Three Chiefs Government from assuming any authority. See A.R. at vol. 1, tab 29. Emphasizing the extraordinary nature of a constitution, Judge Deom wrote that "[c]ertification of the adoption of a tribal constitution is a special confirming act of the will of the people and thus may not be subsequently rescinded like other legislative acts."*fn5 Id. She further stated that "[o]nce adopted, only a sufficient number of people can change or repeal the tribal constitution using only those methods permitted by the tribal constitution itself. . . . This amendment requirement cannot be understated or treated in as cavalier a fashion [as the Tribal Council has in decertifying its adoption]." Id.

On August 2, 1996, the Three Chiefs Government filed with the IBIA an appeal of the Acting Eastern Area Director's determination not to recognize that body's authority. See A.R. at vol. II.*fn6 The IBIA docketed the Three Chiefs Government's appeal and summarily affirmed the BIA's July 26 determinations.*fn7 See Smoke v. Acting Eastern Area Director, 30 IBIA 31 (Sept. 24, 1996) ("Smoke I"); A.R. at vol. I, tab 42. Echoing Defendant Keel's emphasis on principles of tribal sovereignty and self-determination, the IBIA affirmed Keel's statement regarding the legitimacy of the Tribal Court, and the necessity to exhaust tribal remedies before seeking external review. See id. at 32-33. In particular, the IBIA held that the dispute in question, the validity of the Judge Deom's rulings, should be presented to a tribal forum, not to the BIA or the IBIA. See id. at 33. Responding to the Three Chief Government's claim that Tribal Court remedies were unavailable to the extent that those courts and their judges were without authority, the IBIA pronounced that "[i]t is for a tribal forum, not BIA or this Board, to decide whether the tribal judge acted under valid tribal authority." Id. at 34.

According to the Three Chiefs Government, however, the Tribal Courts were not only invalid, but were also non-functional. It therefore requested that the IBIA reconsider its September 24 order. See Smoke v. Action Eastern Area Director, 30 IBIA 90 (Oct. 31, 1996) ("Smoke II"); A.R. at vol. II. Once again, the IBIA maintained that the question of the validity of the Tribal Court rested with the Tribe itself. See Smoke II, 30 IBIA at 91. The IBIA acknowledged that, "[a]ssuming the tribal court remains inactive, an identification of the appropriate forum in which to challenge the earlier tribal court orders will undoubtedly be more difficult. However, as the Supreme Court has stated, `[n]onjudicial tribal institutions have also been recognized as competent law-applying bodies.'" Smoke II, 30 IBIA 90-91 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)). Disavowing jurisdiction over the issues before it, the IBIA cautioned that "[t]he fact that the tribal court is presently inactive does not provide a basis for the Board to assume authority over the fundamental tribal questions [Plaintiffs raise]. . . . Those questions belong in a tribal forum, whether that forum is judicial or nonjudicial." Smoke II, 30 IBIA at 91.

D. The fourth referendum

In response to this decision, the Three Chiefs Government posed the question of the Tribal Court's validity to the ultimate non-judicial tribal forum — the members of the Tribe. See A.R. at vol. I, tab 43 (TCR 96-56). This referendum question, the preamble to which chronicled the history of the contested Constitution, asked: "Did the Judiciary of the Saint Regis Mohawk Tribe act under valid Tribal authority?" Id. The November 30, 1996 referendum election yielded a vote of 17 in support of the Tribal Court's validity, and 394 suggesting that the Court was without legal authority. See A.R. at vol. II.

Once again, though, the BIA — through New York Field Representative Dean White — questioned the validity of the November 30 referendum. See A.R. at vol. I, tab 55; Defs.' 108(h) Stmt. ¶ 28. Notwithstanding an assurance by the Tribal Clerk that the Tribe conducted the referendum in compliance with all applicable procedures, see A.R. at vol. II, the BIA reaffirmed its previous position as elaborated by Defendant Keel. See A.R. at Vol. I, tab 55. White emphasized that the BIA's reigning principles of tribal self-determination and self-government prevented it from interfering with the Saint Regis Mohawk's leadership disputes. See ...

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