MERHIGE, District Judge.
This action arises out of a tribal election controversy on the Rosebud Reservation in Rosebud, South Dakota. The Plaintiff, the Rosebud Sioux Tribe of South Dakota, Robert Burnette in his official capacity as President of the Rosebud Sioux Tribe, and five members of the Rosebud Sioux Tribal Election
In determining whether jurisdiction over the controversy vests in this Court, the allegations of the pleadings, buttressed, if necessary, by facts introduced in evidence, are considered and the burden is always upon a plaintiff to demonstrate that the case is within the cognizance of the Court. See KVOS, Inc. v. Associated Press, 299 U.S. 269, 278, 57 S.Ct. 197, 81 L.Ed. 183 (1936), McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936), Hedberg v. State Farm Mutual Auto Insurance Company, 350 F.2d 924, 929 (8th Cir. 1965). The essence of the original complaint is the allegation that the defendants acted in defiance of the Tribal Constitution and Ordinances governing the election process of the Rosebud Sioux Tribe. Such matters, involving intra-tribal controversies based on rights allegedly secured by Tribal law, are not properly the concern of the federal courts. 28 U.S.C. § 1361 provides for a mandamus remedy to compel federal officers or employees to perform duties owed the plaintiffs, but, although several federal officers have been named as defendants,
It is also alleged, in the primary complaint, that jurisdiction over that complaint is conferred on the Court by 28 U.S.C. §§ 1331, 1362. Both sections, however, require that the matter in controversy arise "under the Constitution, laws, or treaties of the United States." While the drafting of the Rosebud Constitution and the functioning of a local Rosebud governing unit is authorized by federal law, see The Indian Reorganization Act of June 18, 1934, c. 576, 48 Stat. 984, as amended, 25 U.S.C. § 476, it is designed to provide for virtual self-government of the Rosebud Sioux people.
The counterclaim, however, contains claims distinguishable from the main complaint, and is supported with independent allegations of jurisdiction under 42 U.S.C. § 1985(3), 25 U.S.C. § 1302 and 28 U.S.C. § 1343. The counterclaiming parties allege, in effect, that the counterclaim defendants, although acting overtly with Tribal procedures, have enforced and are seeking to enforce Tribal ordinances in a manner that effectuate a denial of their right to vote, to have their vote counted, and their right to hold elective office. The United States Court of Appeals for the Eighth Circuit has recently held that 42 U.S.C. § 1985(3), in conjunction with 28 U.S.C. § 1343(4), protects an individual's right to vote in tribal elections against interference from private conspiracies if it can be shown that the conspirators are motivated by an invidiously discriminatory animus toward the claimants because of the claimants' association with an identifiable class. Means v. Wilson, 522 F.2d 833, 839 (8th Cir. 1975). The counterclaimants have alleged facts that bring the case, and those individuals sued in their individual capacities within the jurisdiction of this Court. The facts alleged in the counterclaim, as amended, assert that members of the Tribal Election Board and the Tribal Council conspired and performed overt acts in furtherance of a conspiracy to deprive the counterclaimants of their right to vote and hold elective office because they were associated with a rival political faction.
Finally, the plaintiffs contend that the counterclaimants have not exhausted their tribal remedies, and that exhaustion is a necessary prerequisite to federal court relief. We need not reach the question of whether exhaustion is a legal requisite to relief under § 1302 and § 1985, however, for, from the evidence adduced, the Court concludes that returning the counterclaimants to their tribal remedies would create an irreparable injustice.
Under the applicable tribal statute, the incoming Tribal Council must make a decision on whether a re-election is appropriate upon recommendation from the Tribal Election Board. Ordinance No. 75-05-24. Furthermore, the Tribal Council is empowered by Tribal Constitution with adjudicative responsibilities. The Tribal Courts are created by and, therefore, serve at the pleasure of the Tribal Council, effectively making the Tribal Council the supreme judicial authority.
Resolution 75-125 reads in part:
The Tribal Election Board similarly has made an express finding on the merits of the alleged election irregularities without affording Mr. Driving Hawk or his supporters notice or an opportunity to be heard. See letter to Mr. Robert Burnette, October 31, 1975, from the Rosebud Sioux Tribal Election Board. Furthermore, the Tribal Election Board in submitting its recommendations to the existing Tribal Council and the Tribal Council in passing of Resolution 75-126 calling for a special re-election "because of fraud and other flagrant election violations," have ignored the requirements of the Tribal election statute that vest the decision for a re-election in the "incoming" Tribal Council. Ord.No. 75-05 § 24.
With both the Tribal Council and the Tribal Election Board having gone on
This Court, after having taken evidence introduced by the principal parties found, pursuant to Rule 53 of the Federal Rules of Civil Procedure that this case was an appropriate one for the appointment of a Special Master to hear the election contests in order to determine the validity of the counterclaimants' allegations. The Court accordingly did appoint by order of November 28, 1975, Ben Reifel, a man familiar with the Rosebud Reservation, well respected by all concerned parties and born of the Indian people to sit as said Special Master. Simultaneous therewith the Election Board was ordered to count the ballots and certify the results in accordance with Ordinance No. 75-05 § 12(J).
Objections to the Master's report have been filed alleging that the Master's findings were clearly erroneous,
The Master however did not rule on two troublesome questions; the existence of spoiled ballots and the problem of alleged ineligible voters participating in the election.
The evidence discloses however that at least one of the eleven "spoiled ballots" in the Antelope Community and unspecified numbers of ballots in other communities were properly dealt with pursuant to the appropriate definition and requirements of the ordinance. In those instances prior to such ballot being placed in the ballot box by the voter, the voter was given a substitute ballot with which to vote. In short, the term "spoiled ballot" was interpreted appropriately to refer to those ballots improperly marked but so recognized prior to being deposited in the ballot box. In those cases in which the Election Board under their usual procedures validated and counted same, prejudice to the certified vote count may well have resulted. In those instances in which the ordinance was adhered to, the ballot of course was not counted and no prejudice could result for such a ballot would never have reached the ballot box and the voter received a fresh ballot. As the Court has previously stated, there were thirty-one so called "spoiled ballots" in issue. Assuming therefore that all of said ballots clearly manifest the intention of the voter and were hence deemed to be countable, mathematical calculations reveal that they potentially affect the results of the count in only two local community races for Tribal Council seats. In one of those communities, Two-Strike, the one allegedly spoiled ballot counted as valid by
Finally the Court must consider the allegation that 92 unenrolled persons illegally voted in the election. While the evidence indicates that a substantial number of these allegedly unenrolled persons were, in fact, legally registered voters, the Court need not rest its hereinafter stated conclusion on that ground. The Tribal election ordinance, 75-05, Secs. 21-22, provides for the challenge of voters at the polls by any member of the Election Board, any member of the Community Election Committee, or a watcher for any candidate. In the event of a challenge, the person so challenged is permitted to vote, his or her vote sealed and the challenge is later heard by the Election Board prior to counting the challenged vote or votes if it or they could significantly affect the election results. Furthermore, all voters must be listed in an official registration sheet distributed prior to the election by the Tribal Election Board to the local election judges. If one seeking to vote is not so listed he or she may sign an affidavit of residency and thereupon receive a ballot. Such a procedure in no way precludes a challenge to that person's right to vote. The procedure for the challenging of alleged unqualified voters was obviously designed to insure that all concerned parties were given free and unfettered rights to challenge. Furthermore, the procedures are designed to the end that any challenge be promptly made to local election judges who know the people of their respective communities and who can record their ultimate conclusions on the validity of any challenge. A principal purpose for these procedures was and is to prevent election manipulation by unscrupulous candidates, and/or their supporters. To permit a candidate, after determining that he or she has lost the election, to produce records of people that allegedly voted improperly and to contest the results to the end that a new election be held would be to force the Election Board to
In conclusion, the Court finds that the evidence preponderates that the October 23, 1975 election was fairly conducted and valid, and that the count made and certified by the Tribal Election Board on November 28, 1975 be and the same is deemed to be the final count with the exception of the results involving the contest for Tribal Council seats in the Two-Strike and Antelope Communities as heretofore stated.
An appropriate Order will issue.
The Rosebud Sioux Tribe of South Dakota is a federally recognized Indian tribe organized under the provisions of the Indian tribe Reorganization Act of June 18, 1934, c. 576, 48 Stat. 984, 25 U.S.C. § 461 et seq.
Certification of Election. The Tribal Election Board, upon return of the ballot boxes and voting results from the communities, shall post the results of the election in public. The Board shall certify the results of the election to the Tribal Secretary in not more than three (3) days, including Saturdays, Sundays and holidays, after the election. The Tribal Secretary shall issue a Certificate of Election to each duly elected candidate on the form attached hereto after all contests and decisions are made by the Tribal Election Board.
This Ordinance is intended to establish procedures to insure fair elections. This Ordinance shall be interpreted liberally to accomplish such intent. Substantial complaints shall satisfy this Ordinance. Technicalities shall not be used to interfere, delay or block elections, or to cause confusion, or the loss of confidence in the election system.
Spoiled Ballots. Any voter who spoils his or her ballot shall be entitled to a new ballot upon surrender of the spoiled ballot to the election judge. No voter shall receive more than one additional ballot. Each spoiled ballot shall be kept in a separate envelope securely sealed and marked "SPOILED BALLOT," with the name of the voter on the envelope and the envelope initialed by an election judge. All spoiled ballots shall be accounted for, separately on a tally sheet.
Rather than hypothesize those circumstances, in the interests of clarity a broader rule will be adopted that invalidates the election if the winner of the last councilmanic seat in the community is decided by a one vote margin.
In the event of a tie vote in a primary election among more than two candidates receiving the highest number of votes for the same office, all tied candidates shall be candidates in the general election. In the event of a tie for the high vote in a general election, a special election shall be called limited to the tied candidates. The incumbent shall continue to hold office until the newly elected candidate takes the oath of office.