Allery v. Swimmer

779 F. Supp. 126, 1991 U.S. Dist. LEXIS 19964, 1991 WL 262575
CourtDistrict Court, D. North Dakota
DecidedNovember 5, 1991
DocketCiv. No. A2-88-98
StatusPublished

This text of 779 F. Supp. 126 (Allery v. Swimmer) is published on Counsel Stack Legal Research, covering District Court, D. North Dakota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allery v. Swimmer, 779 F. Supp. 126, 1991 U.S. Dist. LEXIS 19964, 1991 WL 262575 (D.N.D. 1991).

Opinion

MEMORANDUM AND ORDER

WEBB, District Judge.

Before this court is plaintiff’s motion for summary judgment and defendant’s cross motion in the same matter. Plaintiff brings this action, alleging that the defendant does not have the authority to alter the tribal roll established in 1940, pursuant to the Act of 1940, Pub.L. 76-520, 54 Stat. 219. The federal defendants have stipulated to a preliminary injunction. The injunction prohibits the government from taking any action to remove persons from the roll of the Turtle Mountain Band of Chippewa Indians or from reducing the Indian blood quantum of any members of the class.

FACTUAL BACKGROUND

The plaintiffs have brought this class action suit in response to the Bureau of Indian Affair’s attempt to recalculate the blood quantum of the enrolled members listed on the tribal roll established and accepted by the Secretary of Interior in 1943. The Secretary of Interior was directed to establish and maintain the roll of Turtle Mountain Band of Chippewas pursuant to the Act of 1940, Pub.L. 76-520, 54 Stat. 219. The first roll, known as the 1940 roll, was prepared under the supervision of John Holst, the Superintendent of the Turtle Mountain Agency. The 1940 roll was approved by the Secretary of the Interior on March 15, 1943. Between 1940 and 1982, the Bureau of Indian Affairs updated the tribal roll to include descendants of the 1940 roll. In 1983, the Bureau initiated an effort to recalculate the Turtle Mountain Band roll because of the passage of the Act of December 31, 1982, Pub.L. 97-403, 96 Stat. 2022. The 1982 Act designated the Bureau as responsible for distributing judgment funds to individual tribal members, certain tribes, and other groups. The Act provides that the judgment funds allocated to the Turtle Mountain Band “shall be used and distributed as follows: (1) Eighty per centum of such funds shall be distributed in the form of per capita payments (in sums as equal as possible) to all enrolled members of the Turtle Mountain Band of Chippewa Indians who are living on the date of the enactment of this Act.” Id. As a result of the review, the Bureau proposes 2046 increases in blood quantum and 1737 decreases. Because some individuals will no longer be listed as having one-quarter Indian blood, the Bureau proposes to disenroll up to 752 people from the Turtle Mountain Band. Further, 1278 individuals became eligible to be added as a result of the proposed procedure.

Plaintiffs filed this class action suit to prevent the proposed disenrollments, claiming that the Bureau of Indian Affairs does not have the authority to determine tribal membership, nor does it have the authority to reduce the Indian blood quantum of those on the roll adopted in 1943. The defendant’s allege that their authority to [128]*128review and make changes to Indian blood quantum, effectively changing the eligible enrollees, may be found in the authority granted to the Bureau of Indian Affairs by the Act of 1940. The court now addresses the cross-motions for summary judgment.

ANALYSIS

The “legislative will must be ascertained from the text of the statute if the words are clear and plain and the whole enactment internally cohesive.” Adams v. Morton, 581 F.2d 1314, 1320 (9th Cir.1978), cert. denied 440 U.S. 958, 99 S.Ct. 1498, 59 L.Ed.2d 771 (1979) (citations omitted). When the intent of Congress is clearly expressed, the court will not strain to interpret the statute, nor will it apply an interpretation that is extended and distorted beyond the words’ popular meaning. Id.

Act of 1940 and Turtle Mountain Band of Chippewa Indians

Constitution

In the Act of 1940, Congress authorized the establishment of a reservation for the Turtle Mountain Band of Chippewa Indians. The Act of 1940 provides for the creation of a membership roll as follows:

Sec. 2. For the purpose of this Act, the Indians of the Turtle Mountain Reservation shall include the following: (1) All Indians carried on the official census of the Turtle Mountain Reservation as of the date of this Act; (2) all unenrolled Indians who were members of the band or bands which constituted the Turtle Mountain Tribe prior to October 8, 1904, but who failed to apply for enrollment on the roll closed on that date, and their descendants of one-half or more Indian blood. The roll of Turtle Mountain Indians as defined in this Act shall be prepared under the direction of the Secretary of the Interior and shall be kept current by striking the names of deceased persons and adding the names of Indians of one-fourth or more Indian blood who are descendants of persons enrolled on said roll: Provided, That Turtle Mountain Indians domiciled in Canada shall not be included.

Pub.L. 76-520, 54 Stat. 219, Act of May 24, 1940 (emphasis added).

The Constitution adopted by the Turtle Mountain Band of Chippewa Indians is substantially similar to the authority granted the Bureau of Indian Affairs in the Act of 1940. Article III, Section 1, of the Turtle Mountain Band of Chippewa Indians Constitution provides:

The membership in the Turtle Mountain Band of Chippewa Indians shall consist of: ,
(a) All persons whose names appear on the roll prepared pursuant to Section 2 of the Act of May 24, 1940 (54 Stat. 219), and approved by the Secretary of the Interior on March 15, 1943.
(b) All descendants of persons whose names appear on the roll defined in Section 1(a) of this article, provided that such descendants possess one-fourth or more Indian blood, and provided further that such descendants are not domiciled in Canada.

Article III, Section 2, of the Turtle Mountain Band Constitution provides:

Current Roll. The membership roll shall be kept current by the Secretary of the Interior or his designated representative by striking therefrom the names of deceased persons and adding thereto the names of persons who qualify for membership under Section 1(b) of this article.

Stipulation of Facts at 2.

The Enabling Act of 1940 and the subsequent adoption of the Turtle Mountain Band of Chippewa Indians Constitution authorizes the Bureau of Indian Affairs to prepare the membership roll of the Turtle Mountain Band of Chippewa Indians and to keep the roll current by following specified procedures, namely striking the names of deceased members and adding those that are descendants of an enrolled member who possesses Vi Indian blood. The review process after the roll has been approved by the Secretary of Interior is limited to these functions. The language of the Act in no way gives the Bureau the authority to re-prepare the roll. The Bureau is not authorized to make a subsequent independent [129]*129assessment of blood quantum, other than calculations derived from the quantum established on the roll adopted. It is clear from the legislative history and ensuing use of the roll that Congress intended that the roll adopted by the Secretary in 1943 would establish the membership of the tribe; the roll thus being determinative both as to membership and blood quantum. This fact is particularly potent in light of the fact that the rights of descendants of enrolled members are dependant upon the established record.

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Related

Adams v. Morton
581 F.2d 1314 (Ninth Circuit, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
779 F. Supp. 126, 1991 U.S. Dist. LEXIS 19964, 1991 WL 262575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allery-v-swimmer-ndd-1991.