*1 527 Roddy States, Pointer thus v. with the instructions. United lems 509 (10th F.2d 1145 “multiplicity,” Cir.); this kind of MacClain, to refers United States v. 501 F.2d it to. This was not the (10th is all refers Cir.). Appellant this 1006 does not con- in the from prior cases problem advanced seven-year tend that sentence is not Circuit, not problem and is this appropriate within the statutory limits. two case before us. have instead AFFIRMED. charges easily separated proof as to (the instructions were ob- instructions not to).

jected during stated

The reason trial to

support require motion to Govern appellant that

ment to elect was could be convicted on both counts. not This was POTTS, Appellant, Nelson theory on a that legal advanced there was a v. to the continued trial on both bar counts. BRUCE, Louis R. Commissioner Indian took position The Government that Affairs, al., Appellees. et there no such bar to on was convictions they since separate both counts were No. 75-1127. renewed, distinct offenses. motion was United Appeals, States Court of argument and the same advanced at the Tenth Circuit. close of Government’s case with the point. a failure of proof addition of There Argued 11, Nov. 1975. issue, pretrial are no motions on this 21, April Decided 1976. during argument

thus prejudice trial no circumstances, was these if made. Under all,

the matter arose at it was covered to general rule referred in Gornick. appeal on this now seeks expression

raise a new issue—a belated count, testify but

desire to as to one not This prejudice argument.

other—thus a

cannot be considered much comes See, applicable late. for the

too standards: Williamson, 482 States

(5th Cardwell, Cir.); Conte v. 475 F.2d 698

(6th Lee, Cir.); United States v. F.2d 428 (6th Cir.); States,

917 Blunt v. United 131 306,

U.S.App.D.C. 404 F.2d 1283 and Baker 7, U.S.App.D.C.

v. United

F.2d 958. third

Appellant’s contention ap on

peal is that the judge trial abused his dis seven-year

cretion in imposing sentence. argues

He that the abuse consisted of im

posing reading sentence without the presen report.

tence The record shows judge presentencing report

trial read the impose

but chose simply regard sentence

less of its contents. And it is well settled

that a applicable sentence within the statu

tory will appeal. limits not disturbed on *2 Justice,

Dept, Washington, C., D. with Brief), the appellees. him on for LEWIS, and Judge, Before Chief SETH McWILLIAMS, Judges. and Circuit SETH, Judge. Circuit and two others filed Potts asserting that their constitution- this action violated, and challenged al had been the action of Commis- grounds other the on withdrawing ap- of Indian Affairs sioner and of the Busi- proval Constitution Prairie Band of Pot- ness Committee of the plaintiffs were tawatomi Indians. the when the action members of request majority taken at was the the members of the Committee. the action for The trial court dismissed jurisdiction. lack of The record shows that the Business Com- a the Band had series of mittee of Prairie disagreements, and a stalemate en- internal Thus decisions sued. no tribal business jurisdiction of the Committee within made, administration of could be and its a halt. The factions tribal affairs came to not attend the on the Committee would meetings. same through its Bureau Affairs of Indian the Committee local administrator advised proceed with members in order Tribe, might necessary be business of pre-Reorgani- approval to withdraw Constitution; to withdraw rec- zation Act Committee; ognition of the Business BIA to administer the the meantime for the contemplated that a tribal affairs. It was designated prepare would constitution, new elections would be held. among BIA thereafter circulated Committee a

members of the Business form resolution the Committee asked wherein Wheeler, Hughes, Malcolm E. Hubbard & BIA to the above action. This take Reed, Wheeler, Angeles, (Louise A. Los Cal. by was four of the seven signed resolution Cal., Brief), Angeles, Los with him on the meeting No members of the Committee. appellant. for formally adopt was held to resolution as Goodsell, Justice, signed Atty., Dept, individually. R. it was considered and Glen Johnson, Washington, (Wallace non-signing D. C. H. The three members became the Gen., Strass, Atty. Atty., plaintiffs herein. Asst. Carl by acted upon was resulted from BIA certainly The resolution orig- inated in BIA, Constitution the action thus the four committee was withdrawn. The members who voted and the Committee for the resolution. The problem, course, any objections by not show in turn origin record does had its instead, Again Committee stalemate. acquies- entity, Tribe as an conse- quences alleged complaint inferred. were those cence therein must be *3 by Tribe, felt the originated designated was later to form a A Tribe. All members were treated equally drafted, It was so new Constitution. members; they were there was no upon at a tribal election and was voted unequal treatment. appellant The in no approved. way alleged how right his to assemble was complains procedure The any way in Again interfered with. he had the re- adoption used in the resolution right no to the particular continuance of a change. constitutional He questing the constitution for the Tribe. This is the es- authority the alleges a lack of BIA also sence of complaint. the doing it authority and abuse of in what did. Thus we must conclude that no constitu- that under He asserts his the First tional presented issue was to the trial court. to the Constitution Fifth Amendments The remaining to validity issues as the Appellant thereby were violated. had an administrative action the by officials of the complaint administrative review his BIA by are complaint. raised the It was so department. within the presented as an arises, issue which often the To first consider assertions of which requires some examination of the violations, carefully we have constitutional by facts the trial court it before can decide complaint and examined the amended com whether jurisdiction there is proceed to plaint nothing and can find other con than with the merits. conclude that the trial allegations concerning clusional the issues. court was correct in that dismissal of the apparent vague It is that such references to required. action was certain amendments are insufficient to action, The causes of other than raise a constitutional issue. This was the purported those to be based on constitution basis for the decision on the constitutional grounds, are al for all purposes by issues the trial court by court this in against objection asserted the The Tribe. is Bruce, National Indian Youth Council v. asking made as to how the for resolution (10th Cir.). here Thus as the BIA adopted. action was This cannot be case, cited there was no substance to the relating than issue to other an the tribal allegations of to sup constitutional issues machinery and tribal administration. The port grounded an action on 28 U.S.C. the majority of Committee was in favor of 1331(a) any basis. or other § it. signed resolution and This was the No right member had a vested in any by way best that could be achieved of Com particular law or in the Tribal Constitution. acquiesced mittee action. Tribe this subject It had change. to be to The with- action, tribal and the and the Constitution drawal of of the Constitution and inopera Committee were considered to be by as act Committee an the defend- assume, This, we must is what the tive. implications ants had toas the Tribe itself It, entity, Tribe wanted. as an was the and not does to individuals. Tribe not concerned, only directly one and there is appear complain joined. to nor was it A nothing it was not in to show favor existed entity certainly tribal before alleged action. Plaintiff has not or other advent of constitutions and it must be as- contrary. wise to the anything asserted sumed it existed in the interim here con- again appellant complains of Thus trib sidered. defendants, al acts. He names officials as rights conse complains

Thus the constitutional but of tribal acts. is the This quences complaint why complaint to have presents asserted in the basic reason no dispute between factions on the BIA officials controversy. The

justiciable indicated prevented as which tribal decisions. This case the resolution upon acted that principle it is obvious is thus no different from Motah doing, In so above. capricious arbitrary and and the decision there assertions It is really to the Tribe. purpose try It serves no directed controls. again are have to take BIA did not or to stuff them into categorize these issues obvious did, apparent when it is as but “sovereign immunity” pigeonhole. the action acted, why it we must so, as to here it is cited above do not do and we as decisions again as a cause directed this express consider will not do so here. The cited cases itself. Tribe against scope of a limited doctrine as to what justiciable issues for are and what are not from the above that apparent It is matters. federal courts in these tribal dispute the fact of within dispute, matter of Committee, was itself a tribal matter. dismissal of the action the trial *4 termination, stalemate, and its is the AFFIRMED for the reasons set court is case, a and it is not issue only basic above. forth issue, subject, or cause. justiciable National Indian Youth clearly so held in LEWIS, (concurring). Judge Chief Bruce, Cir.), (10th 485 F.2d 97 v. Council I concur but case has occa- confess the was the existence or contin- the issue where However, great difficulty. me I am sioned school. The issue specialized of a uance controlling convinced that and basic is- political somewhat more perhaps here is and, dispute sue started as an intratribal operation the continued that it concerned despite aggressive considerable govern- of the important an element tribal B.I.A., not mushroom to constitu- did to the same Band or as ment. As magnitude procedural during tional concerned, holdings see the similar as here reorganization chaos of within the Tribe so disputes, in to intra-tribal Prairie Band of jurisdictionally judicial disap- toas mandate Puckkee, Pottawatomie Tribe of Indians v. proval agency action. (10th Cir.), 321 F.2d 767 and in Prairie Band argumentative premise Plaintiff’s is that Udall, v. of Pottawatomie Tribe Indians B.I.A., acting arbitrarily and without (10th Cir.). This doctrine was 355 F.2d 364 authority, semblance of person- violated his probably first enunciated in Martinez v. rights by al civil and constitutional dissolv- Reser- Ute Tribe of Southern Ute Southern ing the Business and adminis- vation, Cir.), (10th 915 or in Wolfe 249 F.2d tratively setting the tribal constitution Phillips, (10th Cir.), 172 and has v. best, premise, only aside. This could at Morton, Tesuque followed in Tewa v. been self-serving termed a conclusion for it was Cir.); (10th Groundhog 240 v. 498 F.2d as well as his committee plaintiff himself Cir.); Keeler, (10th 674 Dicke v. 442 F.2d or func- members who refused to assemble Inc., Tribes, 304 F.2d Cheyenne-Arapaho appointed tion on their duties. B.I.A. Cir.); (10th Native American Church of 113 not create this situation but faced with did Council, Navajo America v. Tribal North completely a nonfunctional reality (10th Cir.). In 131 Motah Unit- 272 F.2d government agency initiated and tribal States, (10th Cir.), 402 F.2d 1 this court ed obtained, polling through individual problem again directly, addressed members, majority request committee a again holding applicable is here because conduct tribal affairs until a new constitu- dispute really is between two factions reflecting the tribal wishes could be tion Turner v. United also the Tribe. See adopted. Under different circumstances I 354, 109, 63 L.Ed. 39 S.Ct. U.S. would, indeed, hold the action of the B.I.A. problem started and That is where the 291. arbitrary gross to be an interference was able to of the Committee majority plaintiff’s here with as a tribal officer and inducing action which is prevail But, here, as a member of the Tribe. I The issue was intra-tribal complained of. a term the action as restrained in atti- nothing more than would it concerned tude, in accord with tribal law as far as be, it to

plaintiff’s own action allowed by reality

dictated to a destructive intratri- dispute.

bal itself com- Tribe makes no

plaint. plaintiff Nor can that his complain

personal right assemble was denied to

him a member of as the committee. This

right plaintiff denied to himself. nothing

There is in this indi- record that B.I.A.

cates set tribal constitu- nullity. a agency

tion aside as did approval constitution,

withdraw its

an legal significance action that had no validity

since constitution was not

dependent upon agency at its ori-

gin agency approval nor did withdrawal of any legalistic

invalidate the constitution in

way. may This action course had have expediting

considerable effect in

new adoption tribal election and the constitution,

new and different an event

that has occurred since this case was sub- If

mitted us. this action the B.I.A.

did have such a I effect would not arbitrary

term it nor of plaintiff’s violative

rights.

Since I conclude that we here consider

only an dispute, although intra-tribal one of magnitude, agree

serious I the trial

court properly jurisdic- dismissed for lack of

tion. America,

The UNITED STATES of

Appellant,

The FORT SILL APACHE TRIBE OF OKLAHOMA,

the STATE OF

Appellee.

Appeal No. 19-74. Court of Claims. States

April 14, 1976.