United States District Court, D. South Dakota, Southern Division
KEVIN WRIGHT, Acting Chairman, Lower Brule Sioux Tribal Council Member; SONNY ZIEGLER, Lower Brule Sioux Tribal Council Member; and DESIREE LaROCHE, Lower Brule Sioux Tribal Council Member, Plaintiffs,
ORVILLE (RED) LANGDEAU, Lower Brule Sioux Tribal Council Member; JOHN McCAULEY, SR., Lower Brule Sioux Tribal Council Member; SALLY JEWELL, Secretary of United States Department of the Interior; JAMES TWO BULLS, Bureau of Indian Affairs Lower Brule Agency Superintendent, in his official capacity; and TIM LAPOINTE, Aberdeen Area BIA Director, in his official capacity, Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER
LAWRENCE L. PIERSOL, District Judge.
Lower Brule Sioux Tribal Council Members, Kevin Wright, Sonny Ziegler, and Desiree LaRoche (Plaintiffs), move this Court for a temporary restraining order pursuant to Rule 65(b) of the Federal Rules of Civil Procedure restraining the Tribal Court from holding separate jurisdictional and evidentiary hearings on June 11, 2015. For the following reasons, the motion is denied.
In December of 2014, a tribal council meeting was held wherein Plaintiffs were attempting to ascertain the where abouts of roughly $24 million in federal funding and how it could be that the current chief tribal judge was seated after allegedly being defeated during the election process. Plaintiffs allege that Defendants McCauley and Langdeau departed from the council meeting when such issues arose, refusing to answer. The Council was thereafter recessed and the current conflict arose.
Defendants herein filed an action in tribal court on May 1, 2015 in order to remove Plaintiffs from their positions as tribal council members. The tribal court action was allegedly brought on May 1, 2015 by Defendants (tribal court plaintiffs) in order "to stop the acting tribal chairman Kevin Wright from trying to inquiry (sic) or find out about the missing or unaccountable federal funds in amount over (sic) 24 million dollars." Complaint at 2, Wright v. Langdeau, (D.S.D. 2015) (CIV. 15-4097). It is alleged that Defendants' attorney at the tribal level "who was mandated to provide legal services to the whole six member tribal council including [Plaintiffs]" instead indicated in her court filings that she represented the "Tribe" without specifying any further. Brief for Plaintiffs at 2, Wright v. Langdeau, CIV-15-4097 (D.S.D. June 4, 2015). To rectify the perceived defect, presiding tribal judge, B.J. Jones, allowed Defendants to intervene as Plaintiffs in the tribal action. Plaintiffs in the present action further allege that Defendants in the present action have failed to remit court fees in accordance with tribal court procedure.
Plaintiffs allege among other things that the issue revolving around the whereabouts of the federal funds was raised in both a petition for extraordinary writ of mandamus requesting the tribal appellate court judges to order Defendants to account for the funds and an interlocutory appeal arguing that the tribal court special judge abused his discretion by granting a request by Defendants for a TRO. The tribal court issued and then continued a Temporary Restraining Order against the Defendants in the tribal court action. Those Defendants are now the Plaintiffs in this federal court action.
Shortly after the May 1 tribal court lawsuit was initiated, Plaintiffs in this action filed a petition for extraordinary writ of mandamus and interlocutory appeal with the Lower Brule tribal appellate court. Plaintiff Wright received a remand order from the appellate court on May 22, 2015. On remand, the tribal court is instructed to examine the jurisdictional basis of the suit "in light of the Court's dismissal of the Tribe as a proper Plaintiff in the original case." Langdeau v. Wright, Lower Brule Sioux Tribal Court, CIV-14-12-0119 (May 27, 2015). This federal court case was then filed on May 27, 2014.
In the present action, Plaintiffs are alleging Defendants Landeau and McCauley, Sr. allowed $24 million in federal funds to remain "missing or unaccountable." Plaintiffs assert this Court has jurisdiction pursuant to 28 U.S.C. § 1331, the Administrative Procedure Act, and 28 U.S.C. § 1367. The Complaint contains three claims for relief (1) an accounting from the Defendants regarding the $24 million in federal funds, (2) an order from the Court to compel Defendants James Two Bulls and Tim LaPointe "to enforce their fiduciary duties to hold... [D]efendant[s]  Langdeau and  McCauley to account for the missing federal funds, " and (3) an order from the Court compelling Defendants Langdeau and McCauley to "open up the Lower Brule Tribal farm operations' (sic) financial records and all other documents that comprise the farms (sic) operation..." Currently before the Court is Plaintiffs' motion for a temporary restraining order preventing the tribal court from holding jurisdictional and evidentiary hearings on June 11, 2015. It appears to the Court that Defendants have not been notified of the restraining order request. Plaintiffs maintain that if the June 11 proceedings are allowed, it will result in their removal from tribal council as reprisal for their inquiry into the federal funding.
Rule 65(b) provides in relevant part
(b) Temporary Restraining Order
(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if
(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why ...