Raymond D. Yowell, Chief,
and as Representative of the Class of Western Shoshone Persons, Pro Se
Western Shoshone National Council
Indian Springs, NV 89018-210
ON APPEAL FROM DC# CV-S-95-232-LDG, Nevada (Las Vegas)
BRIEF OF APPELLANT WESTERN SHOSHONE NATIONAL COUNCIL
SHOWING CAUSE WHY IT SHOULD NOT BE DISMISSED AS A PARTY TO THIS APPEAL
TABLE OF AUTHORITIES
Cherokee Indians Of Hoke Co. Tribe v. State Of North Carolina, et al., 829 F.2d 1119 (4th Cir., 1987) 6
Fraass Survival Systems, Inc. v. Absentee Shawnee Economic Development Authority and Absentee Shawnee Tribe of Oklahoma, 817 F.Supp. 7 (S.D., NY, 1993) 6-7
In re Highley, 459 F.2d 554 (9th Cir., 1972) 4
Johnson and Graham's Lessee v. William McIntosh, 21 U.S. (8 Wheat.) 543 (1823) 5
McShane v. United States, 366 F.2d 286 (9th Cir., 1966) 4
Northeast Woodland-Coos Tribe v. Department Of Social Services, Civ. No. 92-40149-GN (U.S.D.C., D. MA, 1993) 6, Addendum
United States v. Stringfellow, et al., 783 F.2d 821, 825 (1986), cert. dismissed sub nom. Stringfellow v. Concerned Neighbors in Action, 478 U.S. 1030 (1968) 1
United States v. The Oneida Nation Of New York, et al., 576 F.2d 870 (Ct. Cl., 1978) 6
28 U.S.C. §1291 1
28 U.S.C. §2106 1
United States Court of Appeals, 9th Circuit, Local Rule 27-7 1
This Court has jurisdiction over this matter pursuant to United States Court of Appeals, 9th Circuit, Local Rule 27-7, 28 U.S.C.A., (Clerk's order shall be subject to reconsideration by a judge of the Court), and General Order 6.3(e) of the Appellate Commissioner (referring this matter to the panel that decides this appeal on its merits).
Jurisdiction over the appeal is pursuant to 28 U.S.C. §1291 (appeal from final decision of District Court) and 28 U.S.C. §2106 (modify, vacate, etc., any judgment, etc.). "... [A]n order denying intervention as of right is a final appealable order...." United States v. Stringfellow, et al., 783 F.2d 821, 825 (1986), cert. dismissed sub nom. Stringfellow v. Concerned Neighbors in Action, 478 U.S. 1030 (1968).
Appellant's further statement of jurisdiction in its main Brief is incorporated herein by reference.
STATEMENT OF THE ISSUES
1. Whether Notice of Appeal by Western Shoshone National Council, traditional government of the Western Shoshone People, signed by Raymond D. Yowell, Chief of said Council, is proper pleading properly filed in this Court on behalf of said Council.
2. Whether Clerk of Court erred in Order to show cause why Appellant Western Shoshone National Council should not be dismissed as a party to this appeal because Raymond D. Yowell signed the notice of appeal on their behalf.
3. Whether Western Shoshone National Council, as an American Indian Nation may, as a matter of law, appear pro se through its Chief to pursue litigation protecting its interests in courts of the United States.
STATEMENT OF THE CASE
On August 14, 1995, Appellant filed a Notice of Appeal from an Order of July 25, 1995, by the United States District Court, Nevada, denying Appellants' Motion to Intervene as of right in an action between the United States and Nye County, Nevada. See Appellants' main Brief for further statement.
On September 14, 1995, this Court issued an Order, by the Clerk, directing Appellant Western Shoshone National Council to show cause why it should not be dismissed as a party to the appeal.
On September 22, 1995, Appellant filed an Exception and Preliminary Statement of Cause why it should not be dismissed as a party.
On September 29, 1995, within the twenty-one day period provided by the Court's Order of September 14, 1995, Appellant filed a Statement of Cause with supporting Affidavit from the Chief, Sub-Chief, and Secretary of State and Treasurer of the Western Shoshone National Council.
On November 20, 1995, Appellate Commissioner Shaw issued an Order referring the September 14, 1995, Order to Show Cause and Appellant's September 29, 1995, response thereto to the panel that decides this appeal on its merits.
SUMMARY OF ARGUMENT
The Order to show cause why Appellant Western Shoshone National Council should not be dismissed as a party to this appeal relied on irrelevant and inapposite authority. The basis of the Clerk's Order was: 1) a decision relating to representation of corporations; and 2) a decision involving a class action wholly dissimilar and incomparable to the present case.
The authority of Raymond D. Yowell to act on behalf of the Western Shoshone National Council as its Chief is not contested by any party to this action, nor are any facts alleged to contravene his authorization by said Council to act in its behalf. To the contrary, facts are alleged to support his authority to act on behalf of said Council.
The authority of Chiefs of American Indian Nations to represent said Nations is an ancient element of United States jurisprudence. As an aspect of such authority, it is established that an American Indian Nation may appear in court directly, pro se, and without representation by an attorney. Recent cases and the practice of courts in several jurisdictions provide ample precedent in this regard, in favor of such pro se appearance.
The fact that the Notice of Appeal filed by Appellant Western Shoshone National Council was signed by Chief Raymond D. Yowell in its behalf is in conformity with practices of other courts, supported by sound principle and prior authority, and is not a basis for dismissing said Council as a party to this appeal.
I. The Deputy Clerk Has Relied Upon Invalid Authority
The Deputy Clerk erred in issuing an order for Appellant Western Shoshone National Council to show cause why its appeal should not be dismissed because Chief Raymond D. Yowell signed the Notice of Appeal on its behalf. The Deputy Clerk was also mistaken in relying upon In re Highley, 459 F.2d 554 (9th Cir., 1972), and McShane v. United States, 366 F.2d 286 (9th Cir., 1966) as authority for his action. Both cases are inapposite, and neither relates to the situation presented here.
In re Highley, supra., is a case in which a corporation consented to a bankruptcy when it was represented by an attorney who was subsequently disbarred. Successor representation was by a law firm that also represented some of the creditors; therefore, that firm was held not suitable representation even though it appealed the referee's decision. The District Court decided that the corporation was essentially not represented, so the appeal was dismissed with a holding that "(a) corporation can appear in a court proceeding only through an attorney at law." 459 F.2d at 555. The opinion cites supporting authorities, each of which relates to a corporation. The Western Shoshone National Council is not a corporation; rather it is a sovereign nation. Raymond D. Yowell, its Chief, acted in his capacity as Chief in filing the instant appeal. He did so after consultation and at the direction of the Nation's government, which is the Western Shoshone National Council. See Affidavit in Support of Statement of Cause, attached to Appellant's Statement of Cause Why the Appeal Should Not be Dismissed, filed with this Court September 29, 1995.
The second case relied upon by the Deputy Clerk, McShane v. United States, supra, is similarly not on point. McShane appeared for himself and purported to represent a class. The complaint was almost totally unintelligible and filed by an obviously deranged person. The Court noted that "(i)t appears that the appellant McShane has undertaken to act in behalf of persons, naming them in this court and in the court below, without the authorization or knowledge or consent of at least some of these persons." 366 F.2d at 288. What could be further from the situation presented here where Appellant's pleading and arguments are not only intelligent but also well articulated? Moreover, Chief Yowell's filings herein are undertaken pursuant to consultation and approval of Appellant Western Shoshone National Council, as set forth in the Affidavit in Support of Statement of Cause, supra.
II. The Chief is Recognized as Representative of the Nation
The authority of a nation's chief to represent the nation has been recognized from the earliest cases in federal Indian law. The Supreme Court's opinion in Johnson and Graham's Lessee v. William McIntosh, 21 U.S. (8 Wheat.) 543 (1823), begins with a recitation of the "authority of the chiefs who executed [the] conveyance" at issue therein. Id., at 572. The facts in that case showed the chiefs' authority granted by their people.
In the case at bar, the authority of Chief Raymond Yowell to execute documents, including the filing of this appeal, on behalf of the Western Shoshone National Council, traditional government of the Western Shoshone People, is shown by Affidavit of the Chief, Sub-Chief, and Secretary of State and Treasurer of the Council filed in support of the Council's Statement of Cause on September 29, 1995. The Chief's authority to act on behalf of the Council is not contested by any party to this action.
This Court's Order, by the Clerk, filed September 14, 1995, directing appellant Western Shoshone National Council to show cause why it should not be dismissed as a party to the appeal because Chief Yowell signed the appeal on its behalf, does not allege any facts going to a question of the authority of Chief Yowell to execute the said notice of appeal.
No factual challenge to the Chief's authority appearing in the record or having been raised by the Clerk, it must therefore be taken as agreed that the facts show authority of Chief Yowell to act on behalf of the Western Shoshone National Council in filing this appeal.
III. An Indian Nation May, as a Matter of Law, Appear Pro Se
The Court's Order, by the Clerk, raises a question of law respecting the capacity of the Western Shoshone National Council to appear without an attorney. As argued above, the cases relied upon by the Clerk are wholly inapposite. The Clerk mistakenly treated the Western Shoshone National Council as a corporation, which it is not.
Several recent cases show the propriety of an American Indian Nation appearing pro se. In Northeast Woodland-Coos Tribe v. Department Of Social Services, (not reported in F. Supp. See Addendum.) Civ. No. 92-40149-GN (U.S.D.C., D. MA, 1993) the tribe appeared pro se against the state. Not objecting to this, the Court required the tribe to comply with local District Court Rules regarding certificate of service of motions filed
In Cherokee Indians Of Hoke Co. Tribe v. State Of North Carolina, et al., 829 F.2d 1119 (4th Cir., 1987) the Fourth Circuit denied the motion of the tribe, appearing pro se, for appointment of counsel, and affirmed the lower court judgment from which the tribe appealed. This refusal to relieve the tribe of its perceived burden of appearing pro se clearly implies the propriety of such proceeding.
Two representatives (not members of the bar) of the Oneida Tribe of Indians of Wisconsin, one of several appellees in United States v. The Oneida Nation Of New York, et al., 576 F.2d 870 (Ct. Cl., 1978), filed a pro se motion "to postpone argument" four days before argument, asserting that the tribe had "suspended" its attorney of record. The Court refused to postpone argument,
...but the representatives who had filed the 'pro se motion' were allowed to address the court briefly and were given permission to file, post-argument, a memorandum supporting their request for postponement of decision. Such a document was then filed. Id., at 873.
The Oneida pro se memorandum was responded to by the United States and given substantive consideration by the Court, which refused to postpone decision. No objection was noted to the tribe appearing pro se.
Fraass Survival Systems, Inc. v. Absentee Shawnee Economic Development Authority and Absentee Shawnee Tribe of Oklahoma, 817 F.Supp. 7 (S.D., NY, 1993) appears to be directly on point as to the issues raised by the Clerk of this Court in the case at bar:
Before this Court is the motion, dated October 28, 1992, of defendant Absentee Shawnee Economic Development Authority ("ASEDA") for withdrawal of its counsel of record, Doyle & Bachman, and its local counsel, Bass & Ullman. According to the motion, "ASEDA desires to proceed pro se in this matter." Id., at 8.
Plaintiff opposed the Shawnee motion on the ground that "a corporation cannot appear pro se." Id. As the Court said:
The problem with [plaintiffs'] argument is that ASEDA is not a corporation, partnership, or unincorporated association, but an agency of the Shawnee tribal government. That presents a novel question: whether an Indian tribal government must be represented by counsel in this Court. There do not appear to be any precedents on point either in this circuit or elsewhere. Id.
After an extensive review and analysis of judicial authority and statutory provisions, the Absentee Shawnee Court held:
that ASEDA is not barred from appearing pro se by the rule against pro se appearances by corporations.... Id., at 11.
The Court also ruled:
A representative of a tribal government or agency ... has political authority to represent the interests of the group. ...[G]overnment representatives must be presumed authoritatively to act in the name of their government or agency, and thus in the name of the people whom they represent. Id., at 10-11.
No basis exists in the case at bar for denying the right of the Western Shoshone National Council to appear pro se, through its Chief, in this matter. Such appearance is in conformity with practices of other courts and is supported by sound principle and prior authority.
Therefore, based on the foregoing, Appellant Western Shoshone National Council respectfully requests this Court:
To enter an Order finding no cause why Appellant should be dismissed as a party to this appeal.
Dated: September 29, 1995
Raymond D. Yowell, Chief
Western Shoshone National Council
Indian Springs, NV 89018-210
Northeast Woodland-Coos Tribe,
Department Of Social Services,
Feb. 8, 1993
Northeast Woodland-Coos Tribe, pro se.
Judy A. Levenson, Attorney General's Office, Boston, MA, for defendant.
Gorton, District Judge.
Pending before this Court are the following Motions, all filed by plaintiff, Northeast Woodland-Coos Tribe:
1. Request for Emergency Hearing and Expedited Judgment;
2. Request for an Amendment;
3. Request for Removal;
4. Motion for Recognition of Tribal Status; and
5. Request Warrant for Arrest and Permanent Cease and Desist.
Rule 7.1(b) of the Local Rules of the United States District Court for the District of Massachusetts requires all motions to include a certificate of service upon the opposing party or attorney. The Court, in an Order entered September 28, 1992, explicitly stated that all motions in this case "shall be accompanied by a certificate setting forth the date a true and accurate copy was mailed to the opposing party or counsel." None of the pending motions includes a certificate of service.
In accordance with the September 28, 1992 Order, the pending motions shall be disregarded by the Court and stricken from the docket unless certificates of service are filed within thirty (30) days of the date of this Order.