Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 1 of 22 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

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1 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 1 of 22 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION ARLAN MOSS and LONGVIEW FARM, ) CIV LLP, ) ) Plaintiffs, ) ) ) BRIEF IN SUPPORT OF vs. ) MOTION TO DISMISS ) HONORABLE WILLIAM BOSSMAN, ) Chief Judge, Yankton Sioux Tribal Court; ) YANKTON SIOUX TRIBAL COURT; ) LEONARD R. HETH, Yankton Sioux ) Tribal Employee Rights Office; ) ADELBERT MICHAEL ZEPHIER, JR., a ) Member of the Yankton Sioux Tribe; ) ROBERT COURNOYER, JOHN STONE, ) LEO O CONNOR, FRANCES HART, ) GARY DRAPEAU, DENNIS RUCKER, ) BASIL HETH, GREG ZEPHIER, JR., and ) JODY ALLEN ZEPHIER, in their official ) capacity as officers of the Yankton Sioux ) Tribe, and as members of the Business and ) Claims committee of the Yankton Sioux ) Tribe, and the YANKTON SIOUX TRIBE, ) ) Defendants. ) COMES NOW the Defendants YANKTON SIOUX TRIBE and ROBERT COURNOYER, JOHN STONE, LEO O CONNOR, FRANCES HART, GARY DRAPEAU, DENNIS RUCKER, BASIL HETH, GREG ZEPHIER, JR., and JODY ALLEN ZEPHIER, in their official capacity as officers of the Yankton Sioux Tribe, and as members of the Business and Claims Committee of the Yankton Sioux Tribe, and the YANKTON SIOUX TRIBE, by and 1

2 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 2 of 22 through Charles Abourezk, the General Counsel of the Yankton Sioux Tribe, and hereby submits their Brief in Support of their Motion to Dismiss the Complaint for Declaratory Judgment and Permanent Injunction filed on June 17, 2008 by the Plaintiffs, pursuant to Fed.R.Civ.P. 12 (b). INTRODUCTION AND FACTS The above-named Defendants, the Yankton Sioux Tribe and its Business and Claims Committee members, named individually in their official capacity, are moving the Court to dismiss the Plaintiffs complaint in its entirety, as it relates to the Yankton Sioux Tribe and the Business and Claims Committee and its members, pursuant to Fed.R.Civ.P. 12 (b) on the grounds of: 1. Lack of subjection matter (federal question) jurisdiction, 2. Failure to exhaust tribal court remedies, 3. The doctrine of sovereign immunity; and in the alternative, 4. That Plaintiffs have failed to state a claim upon which relief may be granted. The Yankton Sioux Tribe TERO office and its individually-named officers have moved to dismiss their tribal court action against the Plaintiffs, and their motion was granted by the Yankton Sioux Tribal Court, a true and correct, and certified copy of which is attached hereto as Exhibit 1 (the above-named Defendants hereby respectfully move this Court to take judicial notice of this certified copy of an order and filed and certified copy of a document of the Yankton 1 Sioux Tribal Court), thereby rendering those portions of the complaint pertaining to the Yankton 1 Fed.R.Civ.P. 12 (d) usually requires conversion of a motion under Rule 12 to one under Rule 56, but there are exceptions: if matters outside the pleadings are presented to the Court that includes exhibits which are matters of public record, orders of record in a lawsuit, and other materials subject to judicial notice. Quinn v. Ocwen Federal Bank FSB, 470 F.3d 1240, 1244 (8 th th Cir. 2006); Levy v. Ohl, 477 F.3d 988, 991 (8 Cir. 2007); Oshiver v. Levin, Fishbein, Sedran & 2

3 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 3 of 22 Sioux TERO moot and no longer giving rise to an actual case or controversy as it relates to the TERO. The TERO is represented separately by attorney Gary Montana, and does not intend to file any further response to this Complaint, unless requested to do so by this Court. The Yankton Sioux Tribal Court and its Chief Judge William Bossman, is being represented separately by attorney Terry Pechota, and is filing a separate brief and motion. Defendant Adelbert Michael Zephier, Jr. is not a tribal official and Defendant Yankton Sioux Tribe and its officers were not aware until this Complaint that a lawsuit was filed by this individual. He does not represent the interests of the Yankton Sioux Tribe or its government in any capacity. However, it is clear from the face of the Plaintiffs complaint, and the Plaintiffs Exhibit D to the Complaint (which shows Adelbert Zephier s handwritten and oddball Injunction to Stop All Further Construction of the Building at Longview Farms Jobsite written over what appears to be a family court petition/motion, which clearly does demonstrate on its face that there has been no ruling on that petition for injunction by the Tribal Court), as well as the motion and brief of Defendants Yankton Sioux Tribal Court and Judge William Bossman, and affidavit attached thereto, that tribal remedies have not yet been exhausted in Mr. Zephier s case either, and that it appears from the Complaint it is still pending in Yankton Sioux Tribal Court, and that no orders have been issued in that case. Plaintiffs have filed a motion to dismiss in that matter. See, Plaintiffs Complaint, Exhibit P. The complaint of Plaintiffs is more of a legal brief than a complaint, but essentially, with regard to the Yankton Sioux Tribe and its Business & Claims Committee and the individually- Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); and Tellabs, Inc. v. Makor Issues & Rights Ltd., U.S.,, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179 (2007). 3

4 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 4 of 22 named members of that committee, the Plaintiffs primary thrust is that the Tribe sought an emergency exclusion and removal order against the Plaintiffs excluding them from the Yankton Sioux Reservation. Complaint, passim. On April 14, 2008, Petitioner Yankton Sioux Tribe brought an Emergency Petition for Exclusion and Removal. On April 14, 2008, Chief Judge William Bossman of the Yankton Sioux Tribal Court issued an Emergency Exclusion and Removal Order which ordered that all of the named Respondents are hereby ordered to be immediately excluded from and removed from the Yankton Sioux Reservation; and that the Order shall be enforced by Yankton Sioux Tribal and governmental police officers... and that the Respondents shall be served with a Notice of the Action and be provided with an opportunity at a later date to be heard, after compliance with the Order. Exclusion and Removal Order. Also, Respondents were allowed by the Order to immediately petition the tribal court for a hearing to reconsider the Order and that they would be allowed safe conduct to specially appear at such a hearing represented by counsel and to present evidence in their defense as allowed by the Yankton Sioux Tribe s Exclusion and Removal Code. Notice of the action was provided to the Respondents. Plaintiffs have never availed themselves of the offered hearing. There has never been a final hearing in the Yankton Sioux Tribal Court on the petition for permanent exclusion and removal order, nor has a final order ever been issued. Obviously, no appeal to the Northern Plains Court of Appeals has ever been filed either. On April 22, 2008, Douglas Kettering along with Tom D. Tobin, filed a Motion to Vacate and/or Hold in Abeyance the Emergency Exclusion and Removal Order, as well as a Motion to Deny or Dismiss Emergency Petition for Exclusion and Removal. As indicated by the Plaintiffs, 4

5 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 5 of 22 briefs and motions have been exchanged, but no hearing has been set at the Plaintiffs request, despite the opportunity to do so by order of the Tribal Court. The Tribe asserted either in its Petition for Emergency Removal and Exclusion, and/or in its Response to the tribal defendants motion to dismiss in Tribal Court, which was paraphrased by the Plaintiffs in their Complaint, that at a minimum, Plaintiffs were and are engaged in: Doing or threatening to do any act upon the Reservation which seriously threatens the peace, health, safety, morals or general welfare of the Tribe, its members, or other persons living on the Reservation (Section (H) of the Yankton Sioux Tribal Law and Order Exclusion and Removal Code); or Doing or threatening to do any act upon the Reservation which seriously threatens the environment of the land, water, natural resources, air, or any other natural land or topographical feature on the Reservation or which would in any way threaten the environmental quality of life for the Tribe, its members, or other persons living on the Reservation. Section (I) of the Yankton Sioux Tribal Law and Order Exclusion and Removal Code. Contrary to the contentions of the Plaintiffs, those grounds have been further clarified and set forth in the pleadings subsequent to the emergency exclusion and removal order. See, generally, Tribe s Response Brief in Exclusion and Removal Action. Also, the Tribe stated in its response in tribal court that: the presence of the Respondents on the Yankton Sioux Reservation is harmful to or threatens harm to the peace, health, safety, morals, general welfare or environmental quality of life of the Reservation, requiring the removal and exclusion of the Respondents from the Yankton Sioux Reservation. Tribal Court Response Brief of Tribe, Plaintiffs Complaint, Exhibit L, at 9. Plaintiffs also allege in the complaint, without setting forth specific facts alleging how 5

6 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 6 of 22 they did, that the Business and Claims Committee members have acted beyond the scope of their official capacity as Yankton Sioux Tribal Business and Claims Committee members and in violation of federal law by authorizing the filing of Emergency Petition for Exclusion and Removal. Complaint, para. 12. Finally, Plaintiffs allege that they are not required to exhaust their remedies in tribal court. Complaint, para. 39. Further, that [a]s a practical matter, Defendants have precluded Plaintiffs from exhausting their remedies in tribal court by requiring immediate compliance with the Emergency Exclusion and Removal Order. Complaint, para. 40. Plaintiffs do admit that they have specially appeared in tribal court and that they have filed further pleadings after the Emergency Exclusion and Removal Order was issued. Complaint, para. 41. Also, the Plaintiffs allege, without stating any facts to support their contention, that the Defendant Tribe and its officers have somehow acted pursuant to an invalid tribal regulation or otherwise outside the scope of their lawful authority. Complaint. Defendants Yankton Sioux Tribe, its Business and Claims Committee, and the individual members of the Committee, in their official capacity, move for the immediate dismissal of the complaint as to these Defendants on the grounds that the Court lacks federal question and/or subject matter jurisdiction, that the Plaintiffs have failed to exhaust their tribal remedies, that it is contrary to the doctrine of tribal sovereign immunity, which must be expressly waived prior to suit, and that, in the alternative, the Complaint fails to state a claim upon which relief may be granted. DISCUSSION 6

7 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 7 of 22 The Plaintiffs bring their action alleging jurisdiction under 28 U.S.C and 28 U.S.C The first states in full that [t]he district court shall have original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C The second relates only to declaratory judgments, and states, in pertinent part, that [i]n a case of actual controversy within its jurisdiction... any court of the United States, upon filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeing such declaration U.S.C (a). Emphasis added. Lack of Subject Matter Jurisdiction and Failure to Exhaust Tribal Remedies The Plaintiffs first must demonstrate an independent ground for federal subject matter jurisdiction. Calvello v. Yankton Sioux Tribe, 899 F.Supp. 431, (D.S.D.,1995); aff d by Calvello v. Yankton Sioux Tribe, 89 F.3d 840 (8th Cir. 1996). However, unlike the Calvello case, Plaintiffs cite to no federal statute or regulation under which their cause of action arises, except 28 U.S.C. 2201, which is merely the provision allowing declaratory relief to be sought if there are other jurisdictional bases. The Eighth Circuit Court of Appeals has looked at this question and effectively analyzes the questions presented here, in a case involving declaratory relief by a corporation against a Tribal Court in North Dakota. The Eighth Circuit held first, as a threshold matter that: Even if an Indian tribe waives its sovereign immunity, such a waiver does not automatically confer jurisdiction on federal courts. Weeks Constr., Inc. V. Oglala Sioux Hous. Auth., 797 F.2d 668, th (8 Cir. 1986).... A federal court must make a separate determination as to whether it has subject matter jurisdiction over the suit. Id., at 672. Auto-Owners Insurance Company v. Tribal Court of the Spirit Lake Indian Reservation, 495 F.3d 7

8 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 8 of 22 th th 1017, (8 Cir. 2007). See, also, Longie v. Spirit Lake Tribe, 400 F.3d 586 (8 Cir. 2005). The Eighth Circuit went on to find that subject matter jurisdiction was lacking, and that there was no diversity jurisdiction, nor federal question jurisdiction. The Eighth Circuit then examined the issue of the sufficiency of a non-frivolous claim of a right or remedy under a federal statute.... Id., at The Eighth Circuit held that the fact that [a tribal entity] is created by and operates on behalf of an Indian tribe is not alone sufficient to find the existence of a federal question. Id. Then the Eight Circuit held that [b]ut even where a federal question exists, due to considerations of comity, federal court jurisdiction does not properly arise until available remedies in the tribal court system have been exhausted. Id. Importantly, the Eighth Circuit cited to National Farmers Union Insurance Co. v. Crow Tribe of Indians, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). Quoting the Supreme Court, the Eighth Circuit said that the Supreme Court had concluded that, although the existence of tribal court jurisdiction presented a federal question within the scope of 28 U.S.C. 1331, considerations of comity direct that tribal remedies be exhausted before the question is addressed by the District Court. Id., at 1022, citing Farmers Union, at 15, 107 S.Ct Again, referring to the Farmers Union case, the Eight Circuit quoted the Supreme Court, that [t]he federal policy of promoting tribal self-government encompasses the development of the entire tribal court system, including appellate courts. At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts. Id. In the present case, not only has there been no proper raising of federal question, but even if there had been, there has been no proper exhaustion, as the tribal court cases have not even 8

9 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 9 of 22 been decided in the lower court, except for the issuance of an emergency exclusion and removal petition, which permitted the Plaintiffs in this case to request a hearing and have an opportunity to have the exclusion and removal order set aside. Nor have Plaintiffs yet filed for a review before the Northern Plains Tribal Court of Appeals, which handles all appeals from the Yankton Sioux Tribal Court. This Court also discussed federal question jurisdiction in a 1997 case, along with discussion of failure to exhaust tribal court remedies, as has occurred here, in which the Court stated and held: The deference that federal courts afford tribal courts concerning [tribal-related] activities occurring on reservation land is deeply rooted in Supreme Court precedent. Because a federal court's exercise of jurisdiction over matters relating to reservation affairs can impair the authority of tribal courts, the Supreme Court has concluded that, as a matter of comity, the examination of tribal sovereignty and jurisdiction should be conducted in the first instance by the tribal court itself. [Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412 (8th Cir.1996)] (quoting Duncan Energy v. Three Affiliated Tribes, 27 F.3d 1294, 1299 (8th Cir.1994) (citing National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 2453, 85 L.Ed.2d 818 (1985)). Bruce H. Lien Co., 93 F.3d at 1420 (citing Reservation Tel. Coop. v. Three Affiliated Tribes, 76 F.3d 181, 184 (8th Cir.1996)). Similar to the factual scenario presented in Bruce H. Lien Co., the instant case involves the Yankton Sioux Tribe and the tribally owned and operated Fort Randall Casino, and the dispute arises from Tribal governmental activity involving a project located within the borders of the reservation. Moreover, any questions regarding validity of the contract under applicable tribal law are issues relating to the Tribal Court's jurisdiction which should be dealt with first by the Tribal Court itself. Bruce H. Lien Co., 93 F.3d at (citing Duncan Energy, 27 F.3d at 1299). Under these facts, as the Eighth Circuit concluded in Bruce H. Lien Co., exhaustion of tribal court remedies is especially appropriate. 93 F.3d at 1420 (citing Duncan Energy, 27 F.3d at 1300; United States v. Turtle Mountain Hous. Auth., 816 F.2d 9

10 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 10 of , 1276 (8th Cir.1987)). This dispute arises on the Yankton Sioux Reservation and raises questions of tribal law and jurisdiction that should first be presented to the tribal court. See Bruce H. Lien Co., 93 F.3d at 1420; Duncan Energy, 27 F.3d at Abdo v. Fort Randall Casino, 957 F.Supp (D.S.D. 1997). This Court has ruled similarly on jurisdiction and/or the requirement for exhaustion in several cases, including a 1995 case brought by a corporation against the Tribe arising from a contract question. Whiteco Metrocom Division of Whiteco Industries, Inc. v. Yankton Sioux Tribe, 902 F.Supp. 199, 201 (D.S.D. 1995). This Court, in that case, found no federal question ( original ) jurisdiction and no diversity jurisdiction. Furthermore, taking the face of the complaint as true, the United States Supreme Court in the very recent Plains Commerce Bank case reaffirmed the principle that [a]s part of their residual sovereignty, tribes retain power to legislate and to tax activities on the reservation, including certain activities by nonmembers.... They may also exclude outsiders from entering tribal land. Plains Commerce Bank v. Long Family Land and Cattle Company, Inc., 554 U.S., S.Ct. (2008). Emphasis added. Even if there were a federal question regarding the removal and exclusion order, which potentially could, arguendo, be heard after tribal exhaustion, the principles of federal Indian law and the Tribe s Exclusion and Removal Code, Section et seq. make it absolutely clear that the Yankton Sioux Tribe has the power to exclude nonmembers from entering tribal lands. If tribes no longer have this inherent power, the Tribe s ability to protect its tribal members and its lands would be severely undermined. However, such an examination is premature, as there is no present federal jurisdiction to hear this matter. 10

11 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 11 of 22 This right to exclude nonmembers is codified, as set forth above, in the Yankton Sioux Tribe s Exclusion and Removal Code, Section X. 2 The Yankton Sioux Tribe and its Business & Claims Committee (including all individually named members of the B & C Committee) essentially sought an emergency exclusion and removal order pertaining to the Plaintiffs in this case, only from those lands that are part of the Yankton Sioux Reservation. This Court has just ruled what constitutes the present Yankton Sioux Reservation, in the case of Yankton Sioux Tribe v. Podhrasky, 529 F.Supp.2d 1040 (D.S.D. 2007). The Defendants Yankton Sioux Tribe, the Business and Claims Committee and its named members in their official capacity, do not seek the exclusion and removal of the Plaintiffs from any reservation lands other than those as presently set forth by this Court s order. The Defendants expressly herein reserve the right to petition for an expanded order if the Eighth Circuit Court of Appeals should favorably extend the Yankton Sioux Reservation boundaries beyond those currently set by this Court, but do not presently seek to extend their exclusion and removal order beyond those boundaries as set forth by this Court in its order. The federal courts have long upheld the power of a tribe to exclude and remove nonmembers, or anyone else from its reservation boundaries. See, generally Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Crt. 894, 71 L.Ed.2d 21 (1982); and Hardin v. White th Mountain Apache Tribe, 779 F.2d 476 (9 Cir. 1985). Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-indians on their reservation... and 2 A true and correct copy of the Exclusion and Removal Code has been provided separately to the Court as a courtesy, by first class mail, with copies also mailed, postage prepaid, to the respective parties. This Code section is current tribal law and not an exhibit extrinsic to the pleadings. 11

12 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 12 of 22 the tribe may regulate, through taxation, licensing or other means.... Montana v. U.S., 450 U.S. 544, 101 S.Crt L.Ed2d (1981). See, also, Brendale v. Confederated Tribes and Bands Yakima Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343 (1989). Plaintiffs erroneously cite to Strate v. A-1Contractors, 520 U.S. 438, (1997) for the proposition that they are not required to exhaust tribal remedies before filing an action in federal court. Complaint, para. 39. However, Strate does not stand for the proposition that exhaustion is not required. As this case makes clear, this circumstance (no necessity to exhaust tribal remedies) applies only in very limited instances, [w]hen... it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by Montana s main rule, so the exhaustion requirement would serve no purpose other than delay. Nevada v. Hicks, 533 U.S. 353, 370 (2001); Strate v. A-1 Contractors, 520 U.S. 428, (1997). Emphasis added. In this case, the Tribe is exercising its inherent power to exclude non-members from the Yankton Sioux Reservation, as defined by this Court and comprised of lands owned by the Tribe and its members, to prevent Plaintiffs from engaging in activity upon such lands that threatens the health and welfare of its members, and to maintain peace and safety on the reservation as they see fit. The issue is not as it has been paraphrased by the Plaintiffs, but only whether the Plaintiffs have a right to enter and remain upon the Yankton Sioux Reservation, wherever it is located. The Tribal Removal and Exclusion Order does not seek to remove and exclude the Plaintiffs from their hog farm facility on deeded land outside of the present Yankton Sioux Reservation as it has been defined by this Court. Plaintiffs further err in citing National Farmer s Union Insurance Company v. Crow Tribe 12

13 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 13 of 22 of Indians, for the proposition that exhaustion is not required. Complaint, para. 40. That case specifically held that, [u]ntil petitioners have exhausted the remedies available to them in the Tribal Court system, n. 4, supra, it would be premature for a federal court to consider any relief. 471 U.S. 845, 857 (1985). Contrary to Plaintiffs claims, Plaintiffs were afforded the opportunity to request a hearing on the issuance of the exclusion order, and were specifically notified of such right and the procedure for exercising such right by the Tribal Court, but have opted not to request such a hearing. See, generally, Emergency Exclusion and Removal Order of Yankton Sioux Tribal Court, attached to the Complaint. National Farmer s Union holds that when plaintiffs have an opportunity to dispute tribal court jurisdiction in tribal court, they must proceed to do so and await the ruling of the tribal court and its appellate courts before proceeding to United States District Court. 471 U.S. at 857. Further, as referred to in Atkinson Trading Post v. Shirley, Plaintiffs had already exhausted tribal court remedies when the Navajo Nation Supreme Court determined it had jurisdiction, prior to filing in federal court. 532 U.S. 645, (2001). The same was true in Hornell Brewing Co. v. Rosebud Sioux Tribal Court. There, the defendants completely exhausted tribal court jurisdiction before filing in federal court on the issue of tribal court th jurisdiction. 133 F.3d 1087, 1090 (8 Cir. 1998). Plaintiffs fail to recognize that the power to exclude non-members from tribal lands is an inherent power retained by the tribes - not a power delegated to them by the federal government. Worcester v. Georgia, 31 U.S. 515 (1832). As one commentator has stated, [b]ecause the exclusionary power is a fundamental sovereign attribute intimately tied to a tribe s ability to protect the integrity and order of its territory and the welfare of its members, it is an internal 13

14 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 14 of 22 matter over which the tribe retains sovereignty. Cohen s Handbook of Federal Indian Law, 2005 Ed, 4.01 (2)(e). Far from being plain that the Tribe lacks the authority to legislate the terms and conditions upon which exclusion from tribal lands of non-indians, whose conduct threatens the health and welfare of tribal members, will occur, it is a certainty, as reaffirmed by the United State Supreme Court s recent Plains Commerce decision, that exhaustion of tribal court remedies with regard to the power to exclude nonmembers, in this instance, is required. Sovereign Immunity Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Weeks Construction, Inc. v. Oglala Sioux th Housing Authority, 797 F.2d 668, 670 (8 Cir. 1986) (citing Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 56 L. Ed. 2d 106, 98 S. Ct )). The Business and Claims Committee of the Yankton Sioux Tribe is the executive branch of the tribal government, constitutionally charged with running the daily affairs of the Tribe when its General Council is not in session. Therefore, [a]s an arm of tribal government [it]... possesses attributes of tribal sovereignty... and suits... are barred absent a waiver of sovereign immunity. Id. Furthermore, tribal immunity extends to individual tribal officials acting in their representative capacity and within the scope of their authority. Hardin v. White Mountain th Apache Tribe, 779 F.2d 476, 479 (8 Cir. 1985). When they filed the Emergency Exclusion and Removal Petition, the members of the Yankton Sioux Tribe s Business and Claims Committee, and its members in their official capacity, were acting within the scope of their delegated authority and are immune from suit under the doctrine of sovereign immunity. [T]he Supreme Court has made it clear that a waiver of sovereign immunity cannot be 14

15 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 15 of 22 implied but must be unequivocally expressed. Val-U Construction Company of South Dakota th v. Rosebud Sioux Tribe, 146 F.3d 573, 576 (8 Cir. 1998). The Yankton Sioux Tribe, its Business and Claims Committee and the individual members of the Committee in their official capacity have not expressly waived their sovereign immunity, nor have the Plaintiffs pleaded such express waiver anywhere in its Complaint. As a result, the complaint must also be dismissed on the ground of the doctrine of sovereign immunity. Failure to State a Claim Upon Which Relief May Be Granted In the alternative to the above-cited grounds for dismissal, tribal Defendants move to dismiss this Complaint on the ground that it fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12 (b) (6) allows for dismissal of a complaint that fails to state a claim upon which relief may be granted. The United States Supreme Court has recently supplanted the longstanding holding in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In a new case, involving antitrust, the Supreme Court stated that this holding was incomplete. Bell Atlantic Corp. v. Twombly, 550 U.S., 127 S.Ct 1955, 1969, 167 L.Ed.2d 929 (2007). The Eighth Circuit has incorporated that new holding of the Supreme Court in a recent slip opinion, in which it held that: The purpose of a motion to dismiss is to test the sufficiency of the complaint. On May 21, 2007, the Supreme Court determined that Conley v. Gibson's, 355 U.S. 41, (1957), no set of facts language has earned its retirement. Bell Atlantic Corp. v. Twombly, --- U.S. ----, ----, 127 S.Ct. 1955, 1969 (May 21, 2007). Noting the plaintiff's obligation to provide the grounds of his entitle[ment] to relief, the Supreme Court held that a viable complaint must include enough facts to state a claim to relief that is plausible on its face. Bell Atlantic, 127 S.Ct. at , In other words, [f]actual allegations must be enough to raise a right to relief above the speculative level. Id., at The 15

16 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 16 of 22 Supreme Court explained that this new standard simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the claim or element]. Id. On the other hand, the Court noted that of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely. Id. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). [P]rior rulings and considered views of leading commentators can assist in assessing the plausibility of the plaintiffs' allegations. Id., at Neighborhood Enterprises, Inc. v. City of St. Louis, Mo., 2007 WL , (E.D.Mo. 2007). The Eighth Circuit has also recently reaffirmed the standard on a Rule 12(b)(6) dismissal de novo, accepting the claimant's allegations of fact as true and affirming only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the th allegations. Aten v. Scottsdale Ins. Co.,511 F.3d 818 (8 Cir. 2008); citing Reis v. Walker, F.3d 868, 870 (8th Cir. 2007). Plaintiffs complaint fails, on its face, to state a colorable claim. Essentially, there is very little fact, but a great deal of legal quotations, citations and speculation about various tribal officials acting beyond the scope of their authority or in some other extraofficial manner, without alleging any facts that facially show the alleged actions. Even taking the minimal facts as true, there is no allegation of any facts as to how the Tribal Court or the Business and Claims Committee, or the Tribe itself, acted in a manner that was beyond the scope of their authority. Even under the lenient standard of Fed.R.Civ.P. 12 (b) (6), Plaintiffs Complaint is insufficient to 491 sustain this action. In other words, the Complaint is one long legal conclusion with requisite legal citations, but very short on alleged facts. As the above-cited case holds, a complaint requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action. Id. 16

17 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 17 of 22 Plaintiffs have not shown anything beyond the normal course of tribal court proceedings pursuant to both the Tribal Code and the principles of federal Indian law proceedings that are still, by admission of the Plaintiffs in their complaint, still not complete. General citation to inapposite cases, with regard to the Plaintiffs general claim that they do not have exhaust tribal remedies in these circumstances, does not meet the minimum required under the Rule, nor is that general claim true. In fact, it cannot be true in the present circumstances, as set forth in a long line of applicable Supreme Court and federal appellate cases. Therefore, there are no facts alleged in this Complaint upon which relief may be granted at the present time. It should also be noted here that the Plaintiffs make an interesting and ultimately doomed attempt at prior restraint of a group of unknown demonstrators who are not named as parties in the complaint caption/heading, but are named in the section entitled parties and jurisdiction in paragraphs 13 and 14. In those paragraphs, the Plaintiffs allege that they are a Complaint, para. 13. group of individuals that have demonstrated against the construction of Longview s farrowing confinement unit and have, among other things, blocked access of Longview s farrowing construction crew via public roads to Longview s parcel of real estate where the farrowing confinement unit is located. Then, the Plaintiffs allege that: Demonstrators are in active concert or participation with Defendants pursuant to Federal Rule of Civil Procedure 65 (d) (2) in that Demonstrators interest in demonstrating against the construction of the farrowing confinement unit closely identify with those the Defendants. In the alternative, Demonstrators are are in active concert or participation with Defendants in that Demonstrators are subject to the control of Defendants. Complaint, para. 14. Fed.R.Civ.P. 65 (d) (2) is merely the rule on injunctions and restraining 17

18 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 18 of 22 orders and sets forth the contents and scope of injunctions and restraining orders, and sets forth no independent basis for jurisdiction. These two paragraphs seem to be intended to convince the Court to act under its authority to issue injunctive relief aimed at prior restraint of these unknown demonstrators who are apparently exercising their right to freedom of expression, speech and assembly. There are no factual allegations making even a prima facie connection between these demonstrators and any of the Tribal Defendants, but arguendo, even if there were such a connection, prior restraint by the courts encounters a heavy presumption against constitutional validity. There were arrests over a period of two days in the area by county and state law enforcement for various misdemeanors, but there have been no convictions and by all accounts the law enforcement, both tribal, BIA and state and county, have been able to keep the peace in the area. Thus, whether these arrests were valid or not, substantiated or not, excessive or not, and whether some of the law enforcement had jurisdiction or not, law enforcement apparently was able to keep the peace at the site. This underlines the extreme caution with which the courts consider intervention in advance when First Amendment rights are at stake, especially if there are other means of relief or protection before First Amendment rights are violated by prior restraint. The Supreme Court has said that [t]he basic principles of freedom of speech and the press, like the First Amendment s command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 1246, 43 L.Ed.2d 448 (1975). The Supreme Court in that case went on to say that... a free society prefers to punish the few who abuse rights of 18

19 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 19 of 22 Id., at 559, speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. Although Plaintiffs are private actors, they are essentially seeking to convince this Court, without a sustainable basis for jurisdiction, to issue injunctive relief that would effectively make this Court a censor preventing these unidentified, alleged protestors from exercising their First Amendment rights. Even if the allegations about their conduct made in the Complaint are true, 3 which Tribal Defendants specifically deny, prior restraint is not an appropriate remedy and the complaint, on its face, fails to state a claim upon which relief may be granted. The United States Supreme Court, even with jurisdiction established, and otherwise sustainable claims, has been decidedly negative against just such a use of the courts for prior restraint. It held and stated that: Nor does the fact that the temporary prior restraint is entered by a state trial judge rather than an administrative censor sufficiently distinguish this case from Freedman v. Maryland. Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963) (emphasis added). That a state trial judge might be thought more likely than an administrative censor to determine accurately that a work is obscene does not change the unconstitutional character of the restraint if erroneously entered. Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 100 S.Ct. 1156, (1980). Finally, the allegations with regard to the Demonstrators interests in demonstrating 3 Based upon newspaper accounts in Sioux Falls, the protest was by all eyewitness accounts an obviously peaceful one that drew overreaction by state and county law enforcement. 19

20 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 20 of 22 against the construction of the farrowing confinement unit closely identify with those of the Defendants, (Complaint, para. 14) are ludicrous and without merit on their face. While it is true that the Yankton Sioux Tribe opposes the hog farm for, among other reasons, health, environmental, air, water, safety and aesthetic reasons (the last because of the location so close to the Tribe s primary economic development projects - the Ft. Randall Casino and Travel Plaza, and on the primary route to the tribal headquarters), the hundreds of demonstrators that appeared the first week or so of construction were a mix of local non-indian citizens, students from the University of South Dakota, members of South Dakota Peace and Justice, priests, ministers, nuns, individual American Indians, members of the press, and unidentified others. Corporate hog farms have no shortage of opponents. To suggest that this alleged similarity in opposition makes the Tribal Defendants somehow responsible for the alleged acts of the unknown Demonstrators, even if true, which upon information and belief they are not, is like linking and making Governor Rounds responsible for protests at abortion clinics that go too far because he opposes abortion. Perhaps the most obvious reason why the attempted prior restraint allegations in paragraphs 13 and 14 of the Complaint fail to state a claim upon which relief may be granted is the recent political history of the Yankton Sioux Tribe. The mere fact of the lawsuit filed by Frances Zephier, et al., in the Yankton Sioux Tribe Concerned Head Start Parents v. Longview Farm lawsuit proceeding in federal court, despite resolutions passed by the Tribe s General Council and its Business & Claims Committee indicating that they are not in any way connected to those lawsuits, as well as the oddball, independent petition brought by Adelbert Zephier, Jr. in Tribal Court, make clear that even if, arguendo, some Tribal members are a part of the 20

21 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 21 of 22 Unknown Demonstrators, the idea that the Yankton Sioux Tribe has any control over its individual members is ludicrous. The Yankton Sioux Tribe especially, with its General Council system that predates the 1934 Indian Reorganization Act, does not retain dictatorial control over its tribal members, nor does the Tribe have any power to restrain freedom of speech, any more than any other state, local, or federal government entity in the United States. Therefore, on the face of the complaint and in light of federal case law on the First Amendment and prior restraint cases, the complaint fails to state a claim upon which relief may be granted for these reasons as well. CONCLUSION For all of the foregoing reasons, as well as the pleadings and the Court s file in this matter, the Defendant Yankton Sioux Tribe, its Business and Claims Committee, along with the individual members of the Business and Claims Committee acting in their official capacity, hereby respectfully move this Honorable Court for its Order dismissing the Complaint for lack of subject matter jurisdiction, failure to exhaust tribal remedies, the doctrine of sovereign immunity, and in the alternative, failure to state a claim upon which relief may be granted. th Dated this 14 day of July, /s/ electronically filed Charles Abourezk ABOUREZK & ZEPHIER, P.C. Attorney for the Yankton Sioux Tribe, Business & Claims Committee of the Yankton Sioux Tribe, and its individual members in their official capacity P.O. Box 9460 Rapid City, South Dakota (605) fax(605)

22 Case 4:08-cv LLP Document 35 Filed 07/14/2008 Page 22 of 22 CERTIFICATE OF SERVICE th I certify that on the 14 day of July, 2008, I caused to be served, via electronic means or by first class mail, postage prepaid, a true and correct copy of Brief in Support of Motion to Dismiss on behalf of Defendant Yankton Sioux Tribe and its Business and Claims Committee and its Individual Members in named in their Official Capacity to: David L. Nadolski Eric R. Kerkvliet Attorneys for Plaintiffs P.O. Box 2700 Sioux Falls, SD Terry Pechota 1617 Sheridan Lake Rd. Rapid City, South Dakota Adelbert Michael Zephier, Jr. %Yankton Sioux Tribal Court PO Box 980 Wagner SD Leonard R. Heth and Yankton Sioux Tribe TERO %Gary Montana Montana & Associates N N. Prairie Rd Osseo WI /s/ Charles Abourezk 22

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