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February 11, 2004.

PHILIP H. TARBELL, BARBARA A. LAZORE, ERMA WHITE-MOORE, RUSSELL P. LAZORE, LOREN OAKES, GLENN HILL, SR., CAROL T. HERNE, KERNEY COLE, Individually and as Purported Representatives of the St. Regis Mohawk Tribe, Plaintiffs,
DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, HON. NEAL McCALEB, as Assistant Secretary of the Department of the Interior, Commissioner of Interior Affairs, Defendants, ALMA RANSOM, HILDA SMOKE and PAUL THOMPSON, Individually and as Purported Representatives of the St. Regis Mohawk Tribe, Intervenors-Defendants

The opinion of the court was delivered by: DAVID E. PEEBLES, Magistrate Judge Page 2


The plaintiffs, who are members of the St. Regis Mohawk Indian Tribe and proponents of Tribal government reform, have commenced this action seeking judicial review of four distinct Department of the Interior ("DOI") administrative agency actions, relating to a longstanding dispute over leadership of the St. Regis Mohawk Indian Tribe. Their complaint calls upon the court to accomplish a seemingly simple task of examining Page 3 the propriety of those actions, utilizing a well-defined and familiar standard of review. Enmeshed within the challenged administrative determinations of the DOI and its Bureau of Indian Affairs ("BIA"), however, are complex issues which implicate internal Indian tribal politics and self-governance — matters with which the courts and the DOI have wrestled for some time, though without reaching consensus.

  Because I find, based upon my review of the record, that the agency actions in question were not the product of a considered analysis of the leadership dispute, but instead resulted from a misconception that the agency had been ordered by another court to reject the plaintiffs' position, I am granting plaintiffs' motion and will direct that each of the four challenged determinations be vacated and the matter remanded to the DOI for further proceedings consistent with this opinion.


  A. Historical Background

  In order to bring the disputed administrative actions into focus, it is important to understand the history of governance of the St. Regis Mohawk Tribe, with its chronicled internal struggles.*fn1 For the most part, Page 4 the facts associated with the ongoing debate over Tribal leadership are uncontested, though the parties disagree concerning their legal import.

  The St. Regis Mohawk Tribe, one of the Six Nations of the Iroquois Confederacy — also known as the Haudenosaunee — is a federally acknowledged Indian tribe whose recognition dates back as far as adoption and implementation on May 31, 1796 of the Seven Nations of Canada Treaty, 7 Stat. 55. Complaint (Dkt. No. 1) ¶ 10. St. Regis Mohawk Tribal lands are geographically bounded by both northern New York State and southern Canada. Id. Historically, the Tribe was governed under a Three Chief System, with three chiefs and three sub-chiefs elected for staggered three year terms, and a tribal clerk chosen every third year.*fn2 Complaint (Dkt. No. 1) ¶ 12. Under the Three Chiefs regime, the three elected chiefs acted in a combined legislative, executive and judicial capacity. Id. Page 5

  1. Tribal Leadership Reform Efforts

  The efforts of some St. Regis Mohawk Tribal members, beginning in or around 1975, to bring about leadership reform, initially through adoption of written by-laws providing for a system of Tribal government to replace the Three Chief form, serve as a backdrop for this litigation. Tarbell Aff. (Dkt. No. 29) ¶¶ 3-4, 9. A critical point in those endeavors occurred on June 3, 1995 when a referendum was conducted to determine whether a proposed Tribal Constitution should be adopted. Id. ¶¶ 10-12; Ransom I, 69 F. Supp.2d at 143. The results of that referendum, when interpreted most favorably to the plaintiffs — as proponents of the Constitutional form of government — revealed that the measure was supported by 50.935093% of the 909 valid ballots cast. Tarbell Aff. (Dkt. No. 29) ¶¶ 12-13; Ransom I, 69 F. Supp.2d at 143.

  While this much is uncontested, the parties vigorously debate the significance of the referendum result. Those espousing the Three Chiefs form of government argue that the measure failed, since the Constitution's adoption clause provided that "[t]his Constitution shall be adopted upon certification that fifty-one [percent] (51%) of those present and voting in the referendum called on June 03, 1995 have voted in favor of adopting Page 6 the Constitution of the Saint Regis Mohawk Tribe." Tarbell Aff. (Dkt. No. 29) ¶ 11. Since the vote fell short of this threshold, although by only the slightest of margins, the intervenor-defendants argue that it was not implemented.

  Plaintiffs, on the other hand, note that the referendum was conducted pursuant to Tribal Council Resolution ("TCR") 95-115, which was officially signed and enacted by the Three Chiefs Government on March 31, 1995, providing for adoption of the Constitution in the event of a majority vote favoring its ratification. Tarbell Aff. (Dkt. No. 29) ¶ 10. In further support of their position plaintiffs cite testimony suggesting that the intent of the drafters, in penning the 51% figure, was that the proposition would pass if approved by a simple majority. Id. ¶¶ 11-13. In light of their belief that only a mere majority was required for ratification of the proposed Constitution, the ruling Chiefs then in power under the Three Chiefs System unanimously enacted a resolution (TCR 59-116) certifying the referendum results as approving adoption of the Tribal Constitution, and proceeded thereafter to rule the Tribe as leaders acting under authority of that instrument. Tarbell Aff. (Dkt. No. 29) ¶¶ 13, 20-22.

  Ensuing debate regarding the June 3, 1995 referendum results led Page 7 to a second Tribal referendum, held on June 1, 1996, to address the question of whether the Constitutional vote had been properly certified.*fn3 Ransom I, 69 F. Supp.2d at 143-44. By a count of 651 to 339, the Tribal members casting ballots in that referendum signaled their belief that the Tribal Constitution had been improperly certified.*fn4 Ransom I, 69 F. Supp.2d at 144.

  The June 1, 1996 referendum — the legitimacy of which plaintiffs challenge — led to enactment on June 10, 1996 by the elected Tribal Council members of TCR 96-84, rescinding certification of the Constitution and returning the Tribe to the Three Chiefs System of governance. Ransom I, 69 F. Supp.2d at 144. By TCR 96-85 — another measure also enacted on that same date — a referendum was scheduled for June 15, 1996 to pose the following question to Tribal members: "[d]o you favor continuing with our present elected officials?" Id. By a fairly substantial margin the voters responded to this third referendum by essentially Page 8 rejecting the incumbent leadership and opting instead to conduct a "clean slate" election of Tribal leaders. Id. Those "clean slate" elections were subsequently held on June 29, 1996, resulting in the designation of Chiefs Alma Ransom, Hilda Smoke and Paul O. Thompson — the three intevenors-defendants and advocates of the Three Chief Government — as well as Sub-Chiefs Barbara Lazore, a named plaintiff, and non-parties Bryan Garrow and John Bigtree, Jr. Id.

  Unfortunately, the rancor associated with Tribal leadership did not end with this series of developments which, some have argued, were presumptively demonstrative of the will of the St. Regis Mohawk people. The controversy was fueled when the BIA, which operates under the aegis of the DOI, chose not to recognize the results of the June 29, 1996 "clean slate" election, instead siding with the plaintiffs in this action by recognizing the Constitutional Tribal Government.*fn5 Ransom I, 69 F. Supp.2d at 144-45. Relying upon two decisions issued by Temporary St. Regis Mohawk Tribal Judge Christine Z. Deom, then-Acting Eastern Area BIA Director Franklin Keel rejected arguments in favor of the Three Page 9 Chiefs Government, advising that the agency instead considered the incumbent members of the Tribal Government to be "entitled to recognition as St. Regis Mohawk Leaders" under the Tribal Constitution, thereby recognizing Edward Smoke, as Chief and CEO; Carol Herne, as tribal clerk; Rosalie Jacobs, as Vice Chief; and Philip Tarbell, Hilda Smoke, Alan White, Doug Smoke and Carol Ross, as Tribal Council members. Complaint (Dkt. No. 1) ¶ 37. That determination was summarily affirmed by the Interior Board of Indian Appeals ("IBIA"), following an appeal of that ruling filed on August 2, 1996. Id. ¶¶ 38-39; Ransom I, 69 F. Supp.2d at 145-46. The IBIA's unfavorable ruling was later reaffirmed on request by the Three Chiefs Government for reconsideration. Ransom I, 69 F. Supp.2d at 146.

  The BIA's determination led to yet a fourth Tribal referendum, conducted on November 30, 1996 pursuant to TCR 96-56. Complaint (Dkt. No. 1) ¶ 40; Ransom I, 69 F. Supp.2d at 146. That referendum challenged the authority of the Tribal Court, and specifically of Judge Deom — whose ruling formed the basis for the BIA's support of the Constitutional Government — and resulted in a finding that Judge Deom had acted without legal authority by an overwhelming majority vote of 394 Page 10 in favor of that result, with only seventeen members voting in support of the Tribal Court's authority. Ransom I, 69 F. Supp.2d at 146. The BIA nonetheless continued to adhere to its earlier recognition of the Constitutional Government, in the face of the Three Chiefs Government's request for recognition based upon the fourth referendum vote, at the same time questioning the legitimacy of the latest referendum. Id. at 146-47.

  2. Tribal Court Legitimacy

  As one might surmise, the sparring over control of the Tribe's leadership has spilled over into the area of the Tribal judiciary. Historically, the power to resolve disputes within the Tribe rested with the Tribal Chiefs. Complaint (Dkt. No. 1) ¶¶ 12, 23; Tarbell Aff. (Dkt. No. 29) ¶ 16. As part of the relatively recent efforts aimed toward Tribal governmental reorganization, those dispute resolution powers were transferred in December of 1994, by resolution TCR-94-F and the Judiciary Act of 1994, to an independent Tribal Court. Id. The drafters of the Judiciary Act stated that part of its purpose was to "enact provisions of law that establish the general organization and powers of the tribal court system, define council procedure for appointments of judges and provide Page 11 for removal of judges and court system staff members from office under certain circumstances." Id.

  While this much does not appear to be controversial, the steps later taken to implement that resolution as well as later efforts calculated to bring about its recission are sharply disputed by the parties. The plaintiffs in this action maintain that upon certification of the adoption of the Constitution, the newly formed Constitutional Government enacted TCR 95-219-B on August 17, 1995, appointing Judge Deom, who is described as a "Mohawk woman attorney", as the first Chief Judge of the Mohawk Tribal Court. Complaint (Dkt. No. 1) ¶ 24; Tarbell Aff. (Dkt. No. 29) ¶ 17. This act, plaintiffs maintain, has since been the subject of judicial ratification, including by decisions in cases emanating from this court. Complaint (Dkt. No. 1) ¶¶ 37-38. The intervenor-defendants, by contrast, dispute the legitimacy of the Tribal Court and the judicial authority of Judge Deom. As will be seen, questions regarding the continuing legitimacy of the Tribal judiciary form the underpinning for a portion of the controversy now pending before the court for consideration.

  3. Ransom I Decision

  In 1998 the intervenor-defendants in this case, as representatives of Page 12 the Three Chiefs Government, commenced suit under the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., in the United States District Court for the District of Columbia challenging a series of DOI actions. Ransom v. Babbitt, No. CIV. A-98-1422 (D.D.C., filed 1998) ("Ransom"). At issue in Ransom, in a general sense, was the soundness of the BIA's recognition of the Constitutional Tribal Government.*fn6 The BIA's determination to recognize the newly formed government had been predicated upon the agency's belief that any challenges to the Constitutional Government's authority should be raised in a tribal forum. See, e.g., Ransom I, 69 F. Supp.2d at 146-47. The Three Chiefs challenged that position in Ransom, arguing that the authority of the tribunal to which the BIA would defer was cast in serious doubt by the November 30, 1996 referendum, in which only seventeen of those 411 voting supported the Tribal Court's authority. Neither the plaintiffs herein nor any other representatives of the Constitutional Government faction were parties to the Ransom litigation.*fn7 69 F. Supp.2d at 147. Page 13

  Plaintiffs' APA challenge in Ransom of the BIA's recognition of the Constitutional Government was submitted to District Judge Colleen M. Kollar-Kotelly on cross-motions for summary judgment, resulting in the entry of judgment in favor of the plaintiffs. 69 F. Supp.2d at 155. In her decision in Ransom/Judge Kollar-Kotelly, while recognizing the need for deference to tribal court interpretations of tribal law, observed that the BIA is empowered — and indeed obligated — to determine whether those interpretations are reasonable. Id. at 151-52. In this instance, the Ransom court rejected Tribal Court Judge Deom's finding that the Constitutional measure was adopted by the Tribe, despite the fact that less than the specified fifty-one percent (51%) of those voting approved the measure, as being unreasonable. Id. at 152-53. Judge Kollar-Kotelly went on to note the "incongruity" in allowing a judge whose authority derived from the Constitution to pass upon the question of whether the Constitution was properly adopted. Id. at 152. Judge Kollar-Kotelly Page 14 concluded that by virtue of their decision to follow Judge Deom's determination and defer to that court in connection with future challenges, BIA officials had "failed to fulfill their responsibility to interpret tribal laws and procedures in a reasonable manner in order to carry out their duty to recognize a tribal government." Id. at 153 (citations omitted).

  Quite obviously, of particular concern to Judge Kollar-Kotelly in Ransom I was the BIA's continued deference to the Tribal Court, given that the authority of that institution to act was challenged and in fact rejected in various Tribal referenda. Id. at 153. Judge Kollar-Kotelly was also critical of the agency's position of "federal non-interference with tribal affairs" and concluded that "[b]y not determining for themselves whether or not the Constitution was valid, [BIA officials] were derelict in their responsibility to ensure that the Tribe makes its own determination about its government consistent with the will of the Tribe and the principles of tribal sovereignty." Id. (citations omitted).

  The Ransom I court concluded that by its actions the BIA had ignored the will of the St. Regis Mohawk people, as expressed through various referenda. Ransom I, 69 F. Supp.2d at 153-54. The court also found that the agency had shirked its responsibilities by dismissing Page 15 internal appeals as moot when representatives of the Three Chiefs were elected to positions under the Constitutional Government, concluding that "[u]pon review, Defendants' actions reveal themselves to be arbitrary, capricious, and contrary to law." Ransom I, 69 F. Supp.2d at 155. As a consequence, the court ordered the entry of summary judgment in favor of the plaintiffs and against the agency, although without identifying what particular agency actions were implicated, or what if any specific steps should be taken by the BIA to allay the court's articulated concerns. Id.

  B. Agency Actions Now At Issue

  1. August 25. 2000 IBIA Appeal Dismissal

  The events leading to the first agency action under challenge in this suit were set in motion by the issuance on February 4, 2000 of a letter by BIA Field Representative Dean White addressed to representatives of the Three Chiefs Government. A.R. Vol. I (Dkt. No. 49) Tab 4. That communication followed issuance of the district court's decision in Ransom I as well as the ensuing receipt of letters dated November 15, 1999 and December 14, 1999 from representatives of the Constitutional Government to the agency advocating a contrary position (see A.R. Vol. I (Dkt. No. 49) Tabs 2, 3). In his letter, White advised that pending any Page 16 appellate review of Ransom I, the BIA would now recognize the Three Chiefs Government and the individuals elected on June 29, 1996 to serve in leadership positions in that government, subject to any intervening resignations. A.R. Vol. I (Dkt. No. 49) Tab 4. The letter also directed that new elections be held "in the near future, and in no event later than June 2000 when the tribe would normally hold its elections." Id.

  Following an apparently unsuccessful attempt, through letter dated February 8, 2000 to DOI Secretary Kevin Grover, to convince the agency to overturn the position announced in the February 4, 2000 letter (see A.R. Vol. I (Dkt. No. 49) Tab 5), the Constitutional Government representatives formally appealed that ruling on February 24, 2000 to the Eastern Area Office BIA Regional Director. A.R. Vol. I (Dkt. No. 49) Tab 6. In that appeal, inter alia, the Constitutional representatives argued that the recognition of the Three Chiefs Government was contrary to Mohawk law, and additionally observed that in any event the terms of office of the Three Chiefs recognized by the BIA had in fact expired on July 1, 1999. Id. On April 24, 2000 Eastern Region Director Franklin Keel issued a written determination denying that appeal. A.R. Vol. I (Dkt. No. 49) Tab 9. In his decision, Director Keel characterized the White letter as "merely an Page 17 implementation of the decision in [Ransom I]," making the following observation with regard to the Constitutional representatives' position:
Although I find your argument persuasive and your reasoning sound, your argument is, in essence, an appeal of [Ransom I].
Id. On the question of expiration of the terms of the elected Three Chiefs representatives, Keel noted that in light of the timing of the issuance of the court's decision in Ransom I a June election would be appropriate and, implicitly, therefore ratified extension of the elected offices of those representatives already serving until such an election could be held.

  The Constitutional faction appealed the Regional Director's decision to the IBIA. A.R. Vol. I. (Dkt. No. 49) Tab 10. Addressing that appeal, IBIA Chief Administrative Judge Catherine A. Lynn issued a determination dated May 31, 2000, concluding as follows:

  The Board believes that the best solution to the situation which the Tribe presently faces is the holding of a tribal election. The Superintendent's letter indicated that the next tribal election would normally be held in June 2000. The Board assumes that the Tribe and/or the tribal officials recognized by BIA have been preparing to hold an election in June 2000. It also assumes that both factions of the Tribe realize that it would not be in the Tribe's best interest for them to boycott that election. Page 18

 A.R. Vol. I (Dkt. No. 49) Tab 11. Accordingly, the IBIA stayed consideration of the pending appeal "[i]n order to allow the Tribe to resolve this leadership dispute through the electoral process". Id.

  On June 6, 2000 representatives of the Three Chiefs Government notified the IBIA of the results of the awaited June, 2000 elections and requested, in light of that development, that the pending appeal be dismissed. A.R. Vol. I (Dkt. No. 49) Tab 12. That application was vigorously opposed by representatives of the Constitutional Government. A.R. Vol. I (Dkt. No. 49) Tab 15. Announcing that it was following its established tradition of dismissing any appeal rendered academic by valid tribal elections conducted during its pendency, ...

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