The QUECHAN TRIBE OF INDIANS, Plaintiff-Appellee, v. Raymond ROWE, Sheriff of Imperial County, et al., Defendants-Appellants.
No. 72-3199.
United States Court of Appeals, Ninth Circuit.
Feb. 2, 1976.
417 U.S. at 424, 94 S.Ct. at 2286, 41 L.Ed.2d at 176 (emphasis added).
Therefore, we feel the guidelines are deficient in failing to place on the public agency the affirmative and ultimate responsibility to implement comparable programs in the private school sector.
We need not now decide what services will or need be provided. The decisions of this court and the Supreme Court outline the standards under which the parties must implement the provisions of the Act. We are confident that the public agencies will seek the aid of the United States Commission on Education and the National Advisory Council on the Education of Disadvantaged Children for further guidance. We think having these parties serve as amicus curiae would be helpful to the district court in formulation of its decree.
In accord with our prior mandate that the district court retain jurisdiction of this litigation, we direct that within a reasonable time as determined by the district court after consultation with the parties, the guidelines be amended by the public agencies to describe in more detail the kind of programs and services to be furnished under the Act so as to assure comparability.8
The guidelines and programs shall be incorporated into a specific decree requiring continued compliance with the Act. The district court shall retain jurisdiction of the cause.
The cause is remanded to the district court for further proceedings in accord with this opinion.
Ronald A. Albu (argued), of Cal. Indian Legal Services, Escondido, Cal., for plaintiff-appellee.
Lawrence E. Shearer, Atty. (argued), Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D. C., for amicus U. S.
OPINION
Before CHAMBERS and WALLACE, Circuit Judges, and EAST,* District Judge.
CHAMBERS, Circuit Judge:
The Quechan Tribe of Indians, which resides on and governs the Fort Yuma Indian Reservation located along the Colorado River,1 was organized under the Indian Reorganization Act of 1934,
Article XI of those Bylaws authorizes the adoption of tribal ordinances “for the control of hunting and fishing on the reservation . . . .” To that end the tribe has enacted three ordinances. Ordinance number QT-4 prohibits the use of rifles on the reservation and requires non-members of
During the tribe‘s dove season in September of 1971, Alfred Buker, chief game warden of the Quechan Tribe and an officer of the Bureau of Indian Affairs charged with enforcement of
The Quechan Tribe filed this action against the arresting officers seeking declaratory and injunctive relief on the ground that the threat of future arrests prohibited the tribe from enforcing its tribal game ordinances. The district court entered summary judgment for the tribe, declaring that it has the right to control, regulate and license hunting and fishing on the reservation. The court also enjoined the defendants “from . . . arresting or otherwise interfering with identified Tribal Game Wardens or with Deputy Special Officers of the Department of the Interior acting in discharge of their duties to enforce federal laws and regulations and ordinances of Plaintiff Tribe regulating hunting, trapping and fishing within the boundaries of the Ft. Yuma Indian Reservation.”
We hold that the Quechan Tribe was entitled to summary judgment but that it was not yet entitled to injunctive relief. The prime prerequisite for injunctive relief is the threat of irreparable future harm. Sellers v. Regents of the University of California, 432 F.2d 493, 497 (9th Cir. 1970), cert. denied 401 U.S. 981, 91 S.Ct. 1194, 28 L.Ed.2d 333 (1971). No such threat is present in this case. Neither the defendants nor any other county officials have any current action pending against the tribe or any of its members, and there is no indication that the defendants or other county officials are threatening any future action in derogation of the tribe‘s rights, whatever they might be declared to be. See Sellers, supra; Giumarra Vineyards Corp. v. Farrell, 431 F.2d 923 (9th Cir. 1970).
Although we do not dispute the district court‘s declaration of the tribe‘s right, we believe that in order to minimize the possibility of future conflicts between the parties it is necessary to interpolate its declaration. A simple confirmation of the tribe‘s right to control hunting and fishing on the reservation might be nugatory.
The Quechan Tribe‘s jurisdiction over non-members3 who enter the reservation to hunt or fish is grounded on a combination of rights. In the absence of treaty provisions or congressional pronouncements to the contrary, the tribe has the inherent power to exclude non-members from the reservation. Williams v. Lee, 358 U.S. 217, 219, 79 S.Ct. 269, 3 L.Ed.2d 257 (1959);
Given those powers, the Quechan Tribe may exercise several types of authority over non-members who enter the reservation to hunt or fish. These are the rights to determine who may enter the reservation; to define the conditions upon which they may enter; to prescribe rules of conduct; to expel those who enter the reservation without proper authority or those who violate tribal, state or federal laws; to refer those who violate state or federal laws to state or federal officials; and to designate officials responsible for effectuating the foregoing.
It is argued on behalf of the tribe that its tribal court has the inherent authority to assert criminal jurisdiction over non-members of the tribe who violate tribal laws while on the reservation. This power is said to be found in general Indian law.4 We need not refer to general Indian law to resolve the question in this case, however, because the answer is found in the Quechan Constitution itself. Article IV, Section 7 of that Constitution provides: “The Council shall have the power to promulgate ordinances . . . and to establish minor courts . . . for the trial and punishment of members of the Tribe charged with the commission of offenses set forth in such ordinances.” Consequently, the Quechan Tribe, if it had the power to try non-members of the tribe for violation of tribal law, has foresworn it.
Nor, in view of the foregoing, may the Quechan Tribe cause any non-member who enters the reservation to forfeit his weapons or any other property as a consequence of violating tribal law. “[A]s Mr. Justice Bradley aptly pointed out in Boyd, a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding, is to penalize for the commission of an offense against the law.” One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965).
Here the trouble seems to have arisen because of the tribal officer‘s insistence on keeping the weapons for tribal prosecution. If an Indian officer catches an offender in the act of violating the law, he might be able to make a lawful arrest and take the offender, along with the evidence, promptly to the proper jurisdiction. We do not rule in this area now, but leave it to the district court to make the first ruling.
In conclusion, we affirm the grant of summary judgment, but we remand the case to the district court for entry of an order dissolving the injunction and declaring the rights of the Quechan Tribe to be in conformity with the foregoing opinion.
In a delicate area such as we have here, an injunction should be the last resort. We do not hold that there can never be one.
WALLACE, Circuit Judge (concurring):
I concur with the result reached by the majority but reach it by a different path.
As Buker had authority over the non-Indians, we do not need to decide whether he had actual authority to take the boys’ guns. All we need to conclude is that he was acting in good faith to enforce a federal law which he had authority to enforce. It is undisputed that Buker was acting in good faith. If his alleged criminal act was done in good faith pursuant to a duty imposed upon him by federal law, he is immune from state criminal prosecution. See Johnson v. Maryland, 254 U.S. 51, 56-57, 41 S.Ct. 16, 65 L.Ed. 126 (1920); In re Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 34 L.Ed. 55 (1890); In re McShane, 235 F.Supp. 262 (N.D.Miss. 1964). Cf. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
It is true that the subjective good faith of an officer would not be sufficient to immunize him from criminal prosecution if his conduct was so outrageous that a reasonable officer could not conclude that it was within the scope of his authority or that his actions were reasonably required by the situation. But Buker‘s action in taking the guns was not so outrageous as to be clearly beyond the scope of his authority. The incident occurred just before dark. The youths were obviously angered by his stopping them. He could have reasonably concluded that his action was necessary to protect the residents of the reservation. He testified that his main concern in taking the guns was to protect the reservation residents since it was getting dark.
As Buker was immune from state criminal prosecution, it follows that the sheriff was without authority to arrest him and that the district court‘s judgment of declaratory relief was correct.
Therefore, I do not believe it is necessary for us to decide whether the tribe and its courts have jurisdiction over these young men. I hesitate to do so for two reasons. First, I have serious questions as to the legal theory adopted by the majority. Second, the question of whether the tribe has jurisdiction over non-Indians was not raised before the district court and I would prefer the question to be fully ventilated before we decide it. See Westinghouse Electric Corp. v. Weigel, 426 F.2d 1356 (9th Cir. 1970); Inman-Poulsen Lumber Co. v. Commissioner of Internal Revenue, 219 F.2d 159 (9th Cir. 1955). The resolution of what authority a tribe has over non-Indians has serious consequences and is an issue upon which there is a diversity of opinions. The developmental process before the district court would provide us with a better foundation upon which to make our decision. As there exists an alternative ground, as I point out above, to sustain the judgment of the district court, there will be no miscarriage of justice and, therefore, I do not believe we are justified in deciding the issue. See Hormel v. Helvering, 312 U.S. 552, 556-57, 61 S.Ct. 719, 85 L.Ed. 1037 (1941).