CHEYENNE RIVER SIOUX TRIBAL COURT      )

CHEYENNE RIVER SIOUX TRIBE                 )        IN SUPERIOR COURT

 

WAYNE L. DUCHENEAUX                          )        CASE NO. R-231-98

CANDIDATE FOR TRIBAL                          )

CHAIRMAN                                            )        OPINION

)

)

BLAINE CLOWN, CHAIRMAN; LOUIS            )

DUBRAY, VICE CHAIRMAN; DAVID              )

HUMP; ED WIDOW; ARLEE HIGH ELK;         )

AND ROBERT CHASING HAWK,                  )

INDIVIDUALLY AND IN THEIR OFFICIAL       )

CAPACITY AS THE CHEYENNE RIVER          )

 

          Judge Bluespruce presided.  Clerks, Kristi High Elk and Marsha Eagle Chasing recorded the proceedings.  Plaintiff appeared personally represented by Elmer Nitzschke, Esq. and L. Rochelle Ducheneaux, Esq. Defendants appeared represented by Dan Press, Esq.

          This matter comes before the Court on the evidentiary hearing on Plaintiff's Petition for Preliminary Injunction.  The Cheyenne River Sioux Tribal Election was held on November 3, 1998.  Plaintiff, Wayne Ducheneaux, was the challenging candidate for Tribal Chairman against Gregg Bourland, the incumbent.[1]

          This action arises as a result of irregularities that occurred during the election process.  In addition, plaintiff alleged that his civil rights were violated when members of the tribal election board failed to follow the election ordinance when conducting the recount.  Plaintiff also contended that Chairman Bourland acted in concert with Louis Dubray, Vice Chairman of the election board to commit election fraud.

I. PROCEDURAL HISTORY

          Plaintiff filed a complaint in this court on November 25, 1998.  Along with the complaint, Plaintiff filed a motion for a Temporary Restraining Order and Preliminary Injunction.  The Court dismissed plaintiff's complaint without prejudice on the basis that the complaint had not been verified in accordance with C.R.S.T. R. Civ. Pro. 65.  The Court's Order allowed plaintiff's complaint to be reinstated upon correction of the procedural error.

          On Friday, November 27, 1999, Plaintiff submitted both an affidavit setting forth the facts of the case as well as verification that he had reviewed the complaint and that the facts were true to the best of his knowledge.  The Court reviewed the merits of the case and issued a Temporary Restraining Order prohibiting the Tribal Council from seating Gregg Bourland as Chairman of the Cheyenne River Sioux Tribe, until such time as a hearing could be held on the merits.  A hearing for the Preliminary Injunction was scheduled for December 1, 1998.

          In its Temporary Restraining Order, the Court required the parties to provide a list of witnesses to be subpoenaed by 12:00 p.m. on November 30, 1998.  Plaintiff requested a subpoena duces tecum for the minutes and tapes of the Election Board meetings.  Defendants filed a motion to quash the subpoena asserting the Tribal Election Board was subject to immunity.  In addition, the Election Board's minutes were not complete at the time of the final hearing.  Plaintiff requested a continuance of the matter in order to brief the issues raised by Defendants and to obtain and review the requested documents.  The Court denied Plaintiff's request on the basis that the secretary taking the minutes had been subpoenaed and was available to testify as to what occurred at the meetings.

          Defendants moved to dismiss Plaintiff's case on the ground that the Court lacked jurisdiction to hear the matters since the issues constituted a political question.  The Court denied defendant's motion.

          At the close of plaintiff's motion for a preliminary injunction be denied.  The Court granted defendant's motion.  Plaintiff moved for a stay, which the Court denied.

II. FACTS

          Wayne Ducheneaux has been active in the political arena of the Cheyenne River Sioux Tribe for many years.  His career began in 1966 when he ran for and was elected to a seat on the Tribal Council.  Plaintiff was reelected to Council in 1970.  Plaintiff was then elected to the position of Tribal Council Chairman in both 1974 and 1986.  Plaintiff ran for Tribal Council Chairman in 1990 and lost.

          In the 1998 election, at the completion of the official canvass, Mr. Ducheneaux lost by 16 votes.  On November 18, 1998, within the time prescribed by C.R.C.  Ord. 14, Part IV, § 2 (j), plaintiff filed a protest to the whole election alleging that fraud had been committed.  In addition, Plaintiff requested a recount of the vote.  Plaintiff based his protest on the following grounds:

     Due to an alleged change in the election boundaries, previously registered individuals were forced to vote by affidavit.  These individuals were not on the new district's registration list, and therefore had to register at the polls.[2] When those individuals voted, their ballot and affidavit were placed in the same envelope as opposed to separate envelopes as required by the ordinance.[3]  In addition the envelopes remained unsealed.

 

•      Maintenance employees found a ballot in the trash can at the tribal office.

•      After the official canvass, but prior to the recount, the ballot boxes were removed from where they were kept in the Tribal Secretary's office and placed in the evidence room of the C.R.S.T. Police Department.

•      A total of 19 spoiled ballots were considered.  Sixteen of the ballots which were permitted for Chairman Bourland were spoiled in a similar fashion, raising a question as to whether the same individual voted sixteen times.

•      Two ballots from Districts three and four were found in the box from District Six.

•      An accurate affidavit list was not prepared for the Bear Creek District.

•      In District 4 the number of ballots returned did not equal the number of ballots initially provided to the district.

•      There was an intermingling of the ballots for the General election with the ballots from the School Board election and the Housing Authority election.

•      There was an inconsistency in the manner the election board handled torn ballots.

 

Some time after the official canvass, but prior to November 18, Arlene Thompson, Tribal Secretary and other members of the Tribal Secretary's office were contacted and asked to turn over their keys to the Tribal Police.  According to the testimony, Louis Dubray, vice Chairman of the Election Board had ordered that the ballot boxes be removed from the Tribal Secretary's Office and placed in the evidence room of the C.R.S.T. Police Department.  Prior to that time, the ballot boxes had been maintained in the Tribal Secretary's office under police guard.  Mr. Dubray was apparently concerned that because Ms. Thompson was a supporter of the plaintiff, there was potential that the ballot boxes could be tampered with.  In addition, Ms. Thompson was a candidate for a District 5 Council seat and had filed a protest.

The Election Board met on November 18 to discuss the protests and to discuss the removal of the ballot boxes from the Tribal Secretary's office.  At that time, Board member Robert Chasing Hawk announced that he would not participate on the Election Board meetings, as the election was illegal from the start.  The following Election Board members were present at the November 18 meeting: Blaine Clown, Chairman; Louis Dubray, Vice Chairman and Dave Hump.[4]

At the November 18, meeting, the Board decided that the ballot boxes should remain in the evidence room at the C.R.S.T. police department. 

The Tribal Election Board met again on November 20 to discuss the allegations of fraud set forth by the plaintiff.  The following Board members were present: Blaine Clown, Louis Dubray and Dave Hump.  In addition, two other candidates lodged protests, Marlin Miner and Arlene Thompson.  During the course of the meeting, the Election Board found that no fraud had been committed.

At the November 20, meeting, the Election Board scheduled plaintiff's recount for November 23.  Plaintiff requested the opportunity to review the transcript or tapes of the election board meetings. Plaintiff's request was granted and his recount was scheduled for November 24. 

Approximately 50 citizens of the Cheyenne River Indian Reservation appeared to protest the manner in which the election was handled.  Louis Dubray, Vice Chairman of the Election Board moved that the recount proceed without hearing protests from the public and the motion was granted.  Citizens were therefore not permitted to address the Election Board.

The recount went forward on November 24, as scheduled.  The following members of the Election Board were present: Blaine Clown, Louis Dubray, Arlee High Elk, Ed Widow, Frank Thompson, Dave Hump, and Lanny LaPlante.

     At the November 24, meeting the issue of removal of the ballot boxes was raised.  Chairman Bourland made attempts to address the Board regarding the removal of the ballot boxes.  Initially, Chairman Bourland was denied the opportunity to address the Board, but ultimately was permitted to explain his understanding of the circumstances under which the ballot boxes were removed.  Chairman Bourland alleged that the removal of the ballot boxes to the tribal police department was done with the authority of the Tribal Secretary.  Arlene Thompson was then brought before the Election Board.  Ms. Thompson corrected Chairman Bourland's version of the chain of events surrounding the removal of the ballot boxes.  According to Ms. Thompson, Russell McClure, Director of the local Bureau of Indian Affairs (hereinafter BIA) volunteered to hold the ballot boxes in the BIA vault.[5]

The recount began.  Plaintiff raised a "point of order" and asked the Board members if the recount was being conducted in accordance with C.R.C. Ord. 14 §2(j)[6]. The members of the Board agreed that the recount was proceeding in accordance with the provision of the Ordinance.  Plaintiff believed that the Board was violating that portion of the Ordinance which required the Board to "come to an agreement as to the rules governing spoiled ballots, tampering, stuffing ballot boxes, illegal voting or other acts which 0might constitute grounds for a contest."  Plaintiff, however, never specifically raised the issue with the board, he merely asked if the Board was conducting the recount in accordance with the ordinance.

Frustrated with the fact that the Board was not conducting the recount in accordance with the Ordinance, plaintiff left the proceedings.

During the course of his testimony, plaintiff agreed that the manner in which the affidavits were handled was due to inadequate training.  Plaintiff also admitted that during the recount, he did not protest the irregularities in those spoiled ballots that were allegedly marked in the same manner. Regarding the torn ballots, although there was an inconsistency in the way they were handled, Plaintiff admitted that none of the torn ballots were votes cast for Tribal Chairman.

Arlene Thompson has been Tribal Council Secretary for twenty years.  During this election, Ms. Thompson ran for a seat as district 5 councilperson.  Although it would normally be her responsibility under Ordinance 14, Ms. Thompson did not participate in the oversight of the election process. The Election Board hired Nella Eagle Chasing to oversee the election.

Kenita Counting-Taylor has been secretary to the Tribal Council for approximately nine years.  Ms. Taylor took the minutes for the Election Board and assisted in the preparation of the tally sheets.  She also received the ballot boxes.

At the close of Election Day, in addition to being locked, each ballot box is to be closed with an official seal that is to be wrapped over the slot and the lock, Ord. 14, Part V§5(g).  According to Ms. Counting-Taylor only one or two of the boxes had been returned with the official seal.

In addition, Ms. Counting-Taylor confirmed that Chairman Bourland was permitted to address the Board on one occasion.

Plaintiff produced two witnesses and an affidavit of voters who had voted by affidavit.  All of the witnesses had been advised to vote in districts other than those districts where they had voted in the past.  As a result these voters had to vote in accordance with Ord. 14, Part VII.  All of the witnesses stated that they were told not to seal their ballots at the time they voted because the individuals responsible for signing their affidavits were not present.

Bertha Chasing Hawk is a clerk/typist employed by the Tribal Secretary's office.  Ms. Chasing Hawk testified how the ballots came to the secretary's office when they were first printed and the procedures that were followed after delivery to the Tribal Secretary's office.  The ballots came to the Tribal Secretary's office wrapped in paper packages.  Ms. Chasing Hawk testified that she came into her office and that one of the packages had been opened.  She reported the incident to Ms. Thompson who advised Ms. Eagle Chasing to secure the ballots.  Although one of the packages was opened, there was no evidence demonstrating that any of the ballots had been missing.  There was also no evidence offered that demonstrated for which office that opened ballots were designated.

Throughout the election, Louis Dubray, Vice Chairman of the Election Board was a staunch supporter of Chairman Bourland.  Mr. Dubray published a letter to the Editor of the Eagle Butte News supporting Chairman Bourland and condemning Mr. Ducheneaux.

Frank Thompson was a supporter of the plaintiff and participated in at least two of the meetings where the allegations of fraud were addressed.  Mr. Thompson actively participated in plaintiff's campaign and was a supporter of plaintiff throughout the election.

Plaintiff brought this cause of action alleging his rights of due process were violated under the Indian Civil Rights Act of 1968, 25 U.S.C. § 1302.  Specifically, Plaintiff alleges that the Election Board violated numerous provisions of Ord. 14, resulting in a violation of his due process rights.

 

The Constitution and Bylaws of the Cheyenne River Sioux Tribe contain provisions, which place the governance of elections within the exclusive province of the Legislative body.  Specifically Article III [lcb1] §3 provides:

All tribal elections for officers shall be canvassed and certified by the Council or a board appointed by them, the results if such elections.  No candidate shall be legally elected until such canvass and certification shall have been made by the council within five (5) days after such elections.

 

In addition Art. III, § 4 of the Bylaws states:

 

All necessary details concerning tribal nominations and elections not specifically covered in these bylaws or the constitution, shall be more fully set forth in ordinances to be hereinafter established by council.

 

          In accordance with the Tribal Constitution and Bylaws, the Tribal Council enacted Ord. 14, which governs the manner in which elections are administered.  Ord. 14 must be read in pari materia those provisions of the Constitution and Bylaws, which authorized its enactment.  Allen v. Grand Central Aircraft Co., 347 U.S. 535 (1954),

          With regard to election contests, Ord. 14, Part IV, §2 (j) makes the Election Board the sole judge on issues of fraud that may result in the vote from any district or districts being invalidated.  There is no provision within either the Constitution or within the Ordinance that grants the Court the power to review the decision of the Election Board on those matters.

          This Court does have jurisdiction, however to hear matters wherein individual members of the Tribal Election Board have violated plaintiff's rights to due process under the Indian Civil rights Act, 25 U.S.C. 1302. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), see also LeCompte v. Jewett, et al. 12 ILR 6025 (1985).

We note at the outset that a central purpose of the ICRA and in particular of Title I was to "secure for the American Indian the broad constitutional rights afforded to other Americans, " and thereby to "protect individual Indians from arbitrary and unjust actions of tribal governments." S.Rep.No. 841, 90^th Cong., 1^st Sess., 5-6 (1967) 436 U.S. at 61.

 

          The specific allegations set forth in plaintiff's complaint are that the Election Board failed to follow their duties as set forth in Ord. 14 and that the failure of the Election Board to follow the Ordinance constituted a violation of plaintiff's right to due process.  In addition, plaintiff alleges that the Election Board Vice Chairman, Louis Dubray's actions in concert with Chairman Gregg Bourland to assert undue influence over the Election Board are what caused the Election Board to fail to perform their duties.  Such allegations if proven would clearly constitute a violation under the Indian Civil Rights Act and therefore confers jurisdiction on the Court to hear the case.

          While this Court is accepting jurisdiction to hear this matter, it should be noted that the jurisdiction of this court is very limited.  Courts are loath to hear issues involving election disputes because they require the Court to interfere with the political process.  When a Court interferes with the seating of a Candidate who had been elected into office, as this Court has done, the judgment of one individual is being substituted for that of the electorate.  This action represents an invasion of the democratic process and is best reserved for those individuals who are chosen by the people to represent their interest.  The burden on the plaintiff is therefore, necessarily a very heavy one.

          In determining whether a preliminary injunction should be issued, the court must consider the following:

(1) the threat of irreparable harm to the movant; (2) the balance between the potential harm and any harm that granting the injunction will cause to the other parties to the litigation; the probability that the movant will succeed on the merits; and (4)the public interest.  National Credit Union v. Johnson, 133 F.3d 1097

 

The standard for setting aside a tribal election is as restrictive as those applied to non-Indian elections. Means v. Wilson, 522 F.2d 833(1975).  Therefore the body of federal cases concerning the validity of elections binds this Court.

With regard to the first prong of the test, Plaintiff's right to vote is one that the Court holds sacred.

The Supreme Court has stated that the Constitution protects the right if all qualified citizens to vote, in state as well as in federal elections.  A consistent line of decisions by this court in attempts to deny or restrict the right of suffrage has made this indelibly clear.  Reynolds v. Sims, 377 U.S. 533 (1964)

 

          The right to vote may not be denied by the alteration of ballots or diluted by ballot box stuffing.  Donohue v. Board of Elections of the State of New York, 435 F. Supp. 957 (E.D.N.Y. 1976) citing United States v. Classic 313 U.S. 299 (1941) and Ex Parte Siebold, 100 U.S. 371 (1880).

          Powell v. Power, 436 F.2d 84 (Second Cir. 1970) involved an error by state election officials to remove the non-democratic registration cards from the binders used at the polls.  Plaintiffs sought an injunction setting aside the primary election on the basis that the errors made it impossible to determine who had actually won the election.  In refusing to accept the plaintiff's theory, the Court stated:

Were we to embrace plaintiff's theory, this Court would henceforth be thrust into the details of virtually every election, tinkering with the state's election machinery, reviewing petitions, registration cards, vote tallies and certificates of election for all manner of and insufficiency under state and federal law. Id. at 86

 

Donahue v. Board of Elections of the State of New York, supra, involved allegations of numerous errors in a mail voter registration drive which resulted in the alleged fraudulent registration of voters.  There were also allegations that voters registered more than once and cast several ballots.  Relying on Powell, supra the Donahue Court held:

Purposeful deprivation of the right to vote will not be assumed merely because there is evidence that election officials acted incompetently or negligently and, as a result, persons not properly registered were permitted to vote.  Rather, intentional acts must be proven, "the quantum of proof necessary being a matter of federal law." Id. at 989

 

          The Donahue, Court went on to establish a four-prong test setting forth the proof required before injunctive relief could be granted when there were allegation that an individual's right to vote was diluted because of allegations of fraud:

(1)  that the specific acts of fraud or unlawful behavior were committed in the conduct of the election;

(2)   the fraud or other unlawful behavior was committed with the intent or purpose of depriving qualified voters of their constitutionally protected right to vote;

(3)  the fraud or other unlawful behavior was committed by persons acting under color of state law;

(4)  the fraud or other unlawful behavior changed the outcome of the election. Id. at 989

 

The Donahue Court ultimately denied plaintiff's motion for a preliminary injunction because the plaintiffs had failed to prove specific acts of fraud were performed with the requisite intent to deny the right to vote or that the outcome would be effected were the irregularities eliminated.

In the instant action, Plaintiff has failed to meet his burden of the likelihood of success on the merits in a number of respects.  First, he failed to exhaust his remedies with the Election Board before bringing this action before this Court.  Second, Plaintiff failed to set forth any facts that demonstrated the election law had been administered unevenly, therefore there was no violation of Plaintiff's civil rights.  Finally Plaintiff failed to demonstrate that had the errors been corrected the outcome of the election would have been different.

Ord. 14 Part IV § 2 (j) is a poorly written ambiguous Ordinance[7] that contains a number of provisions related to election contests.  When raising his objection to the manner in which the election Board was proceeding in the recount, Plaintiff failed to place the Board on notice as to what portion of the Ordinance the Board was violating.  Plaintiff never provided the Board with his own set of definitions of spoiled ballots, ballot box stuffing or illegal voting or other grounds for contest.  Furthermore, when asked at the hearing to provide the Court with his definitions of the grounds for a contest, Plaintiff refused to do so. 

Plaintiff is not in a position to state that he was unable to challenge any of the ballots during the course of the recount.  He left.  He left no one to represent him during the recount.  In doing so he failed to exhaust his remedies and sat on his rights. 

To call the handling of the November 3, 1998 election slipshod would be paying it a compliment.  There were numerous errors that occurred which, by plaintiff's own admission, were the result of negligence and lack of training.  Those members of the electorate that testified stated that the accumulation of errors made them loose faith in the election process.  The evidence put forth by the plaintiff demonstrated that the mistakes were not designed to effect any one candidate, but effected every candidate.

          There is no doubt that Louis Dubray was a vocal supporter of Chairman Bourland throughout the election.  Mr. Dubray also made his opinions well known during the course of the canvass, the meetings concerning the protest and during the course of the recount.  Although Mr. Dubray was vocal, there was no testimony elicited that demonstrated that Mr. Dubray engaged in any conduct to improperly influence any of the other members of the election board.  In calling Ms. Counting-Taylor, counsel had ample opportunity to explore any discussions amongst the members of the election board that would have fallen outside their discretionary functions (e.g. fraud, bribery or improper influence).  Counsel never even asked the appropriate questions.

There is no law that prohibits members of the election board from supporting candidates during the course of the election.  Perhaps there should be,  but it is not within this court's province to legislate.  In addition, the evidence demonstrated that each candidate had supporters who sat on the election board.

          Plaintiff also failed to demonstrate any injury from the removal of the ballot boxes to the police station. The testimony did show that this was done without the full consent of the election board.  The ballot boxes were not removed, however until after the official canvass had been completed.  Both candidates gained votes at the recount and chairman Bourland only gained one point over the plaintiff. 

          Finally the ballot found in the garbage can at the tribal office was not a ballot for Tribal Chairman and neither were the ballots that were allegedly spoiled in the same fashion. 

          For the foregoing reasons, plaintiff failed to demonstrate a likelihood of success on the merits and his motion for a preliminary injunction is denied.

          In addition, there is an overriding public interest for the citizenry of the Cheyenne River Sioux Tribe who have a right to know that the political process is proceeding without judicial interference except in the most extreme circumstances.  The citizenry has a right to be secure in the continued smooth functioning of their government by those individuals elected into office.

          The standards for this Court to enter a stay pending appeal are essentially the same as those that the Court has relied upon in denying plaintiff's motion for a preliminary injunction. Ducheneaux v. Lawrence, Cheyenne River Court of Appeals 97-12-A (1998).  Since plaintiff failed to meet the burden as set forth herein, Plaintiff's motion for a stay of this Court's order pending appeal is denied.

DATED:  December 7, 1998                      _______________________________________

                                                          LEISAH C. BLUESPRUCE

 

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