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
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
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.
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,
the facts associated with the ongoing debate over Tribal leadership
are uncontested, though the parties disagree concerning their legal
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.
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
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
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
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.
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
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
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
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.
In 1998 the intervenor-defendants in this case, as representatives of
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
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
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
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
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
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
implementation of the decision in [Ransom I]," making the
following observation with regard to the Constitutional representatives'
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
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".
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, ...