Shortbull v. Looking Elk

677 F.2d 645
Court of Appeals for the Eighth Circuit·Decided May 3, 1982·No. No. 81-1280·Published·Cited by 20 cases

Opinion

LARSON, Senior District Judge.

Thomas Shortbull brings this appeal challenging the district court’s order granting summary judgment against him. We, affirm.

The facts are set out fully in the district court’s memorandum opinion. See Shortbull v. Looking Elk, et al., 507 F.Supp. 917 (D.S.D.1981). Appellant Thomas Shortbull is a non-enrolled member of the Oglala Sioux Tribe. A member of the Tribe is [646]*646defined in the Tribal Constitution as follows:

Section 1 — The membership of the Oglala Sioux Tribe shall consist as follows:

(a) All persons whose names appear on the official census roll of the Oglala Sioux Tribe of the Pine Ridge Reservation as of April 1, 1935, provided, that correction may be made in said rolls within five years from the adoption and approval of this constitution by the tribal council subject to the approval of the Secretary of Interior.
(b) All children born to any member of the tribe who is a resident of the reservation at the time of the birth of said children.
Section 2 — The tribal council shall propose by-laws covering future membership and the adoption of new members.

An enrolled member is a person on the 1935 census roll of the Pine Ridge Reservation or the child of any tribe member who was a resident of the reservation at the time of the child’s birth. Shortbull is a non-enrolled member, or N.E., because although his father is a member of the Tribe, Short-bull was bom off the reservation in Igloo, South Dakota, where his father was employed.

The controversy involved in the present suit arose when Shortbull filed nominating petitions to have his name placed on the ballot for the January 1980 primary election for the office of President of the Oglala Sioux Tribe on the Pine Ridge Reservation. Shortbull’s nominating petitions were rejected by the Tribal Election Board because the tribal ordinances required that the President be an enrolled member. Shortbull then sought permission to run in the primary election from the Tribal Council. On January 24, the Council enacted Tribal Resolution 80-12, which provided:

BE IT RESOLVED that the Oglala Sioux Tribal Election Board is hereby directed and authorized to forthwith accept the petition of Thomas Shortbull to run for Tribal President and certify him as a candidate in the upcoming election.

The resolution indicated that the Tribe had experienced difficulty in providing a procedure whereby memberships in the Tribe could be processed, and had enacted ordinances providing for enrollment that had not been implemented.1 On January 29, the [647]*647Council passed a subsequent resolution that stated: “Tribal Council body to uphold the Constitution and Bylaws and Election Ordinance, and also uphold any decision of the Election Board.” Appellees asserted that this January 29 resolution rescinded Resolution 80-12, but on January 30 Chief Tribal Court Judge H. Clyde Red Shirt disagreed, and ordered the Election Board to certify Shortbull as a candidate and place his name on the ballot pursuant to the Council’s January 24 resolution.

On February 1, Chief Judge Red Shirt held certain tribal officials in contempt for failing to place Shortbull’s name on the ballot, but because of this action, the Tribal Executive Committee suspended Judge Red Shirt2 and replaced him with Judge Whitehead. Judge Whitehead quashed Judge Red Shirt’s orders, and the Election Board notified Shortbull that he was not eligible to run for Tribal President. On February 4, Judge Red Shirt ruled that he was still Chief Judge and had arrest warrants issued for those persons he had held in contempt of court on February 1. He also ordered the postponement of the February 5 primary election. Judge Whitehead immediately quashed the arrest warrants and ordered that the February 1 contempt citations be purged from the records. The primary election was held February 5, and Shortbull did not participate as a candidate.

On March 17,1980, Shortbull brought the present action in Federal court under 42 U.S.C. § 1985(c)3 against defendants Judge [648]*648Whitehead, the Tribal President, two tribal attorneys, and various other tribal officials, including the members of the Tribal Election Board and the members of the Tribal Executive Committee. In his complaint Shortbull alleged that these individuals conspired to deprive him of his right — as determined by Judge Red Shirt and the Tribal Council resolution — to have his name placed on the ballot for the primary election. District Judge Andrew Bogue ruled against the appellees’ motion to dismiss and against Shortbull’s motion to disqualify appellees’ attorney, but after presenting the district court with Shortbull’s deposition and accompanying exhibits, the appellees renewed their motion to dismiss and asked the district court to consider it a motion for summary judgment pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. On February 19, 1981, the district court granted appellees’ motion, and Shortbull has appealed.

In reviewing Judge Bogue’s decision to grant summary judgment, we apply the same standard as the district court. Summary judgment may only be granted if there is no genuine issue of material fact: there may be no controversy that the appellees in this case have established their right to judgment. Summary judgment may not be granted if appellant Shortbull is entitled to recover under any circumstances, and the facts must be viewed in the light most favorable to him. See Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8th Cir. 1980); Penne v. Greater Minneapolis Area Board of Realtors, 604 F.2d 1143, 1148 (8th Cir. 1979); Butler v. MFA Life Insurance Co., 591 F.2d 448, 451 (8th Cir. 1979).

In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court set forth the four basic elements necessary to state a cause of action under 42 U.S.C. § 1985(e): (1) a conspiracy, (2) for the purpose of depriving any person or class of persons of the equal protection of the laws, (3) an act in furtherance of the conspiracy, and (4) resulting injury or the deprivation of any right or privilege of a citizen of the United States. Id. at 102-03, 91 S.Ct. at 1798-99. The Court in Griffin indicated that the second requirement “means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Id. at 102, 91 S.Ct. at 1798 (footnote omitted). In granting summary judgment the district court found that Shortbull had raised a factual issue as to the first, third, and fourth requirements established by

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Shortbull v. Looking Elk
677 F.2d 645 (Eighth Circuit, 1982)