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.
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.").
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.
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
States.
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.
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 ...