NO.: CV-S-97-327-HDM (RLH)
WESTERN SHOSHONE NATIONAL COUNCIL
by its Chief, Raymond D. Yowell, and
CHIEF RAYMOND D. YOWELL as Representative of
the Class of Shoshone Persons,
UNITED STATES OF AMERICA;
Department of the Interior, Secretary BRUCE BABBITT,
JULIE FAULKNER, ROBERT LAIDLAW;
Bureau of Land Management, ANN J. MORGAN, HELEN HANKINS; and
ORO NEVADA RESOURCES, INC.; its parents,
affiliates, subsidiaries, successors, assigns, etc.,
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF WESTERN SHOSHONE NATIONAL COUNCIL'S APPEARANCE PRO SEA. Facts
Plaintiff Western Shoshone National Council is a party to this action appearing pro se through the Chief of the Council, Raymond D. Yowell. No party to this action has raised objection to said pro se appearance. The Court, on its own motion, raised the issue of the propriety of a pro se appearance by the Council, in a telephonic hearing on September 23, 1997, and again on October 7, 1997. On the latter date, the Court allowed ten days for Plaintiff Council to file points and authorities in support of its pro se appearance.
B. Plaintiff Council May Properly Appear Pro Se.
1. An Indian Nation May Properly Act Through Its Chief.
The authority of an Indian nation's chief to represent the nation has been recognized from the earliest cases in federal Indian law. The United States 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.
In the current case, the authority of Chief Raymond Yowell to execute decisions, including the filing of this action, on behalf of the Western Shoshone National Council, traditional government of the Western Shoshone People, is stated in the complaint and is not contested by any party. It must therefore be taken as agreed that the facts show Chief Yowell's authority to act on behalf of the Western Shoshone National Council in filing this action.
2. An Indian Nation May, as a Matter of Law, Appear Pro Se
The Western Shoshone National Council is not a corporation, and therefore not subject to rules of procedure which might require a corporation to appear through an attorney. The Council is the original indigenous government of the Western Shoshone People.
Several recent cases show the propriety of an American Indian nation appearing pro se. In Northeast Woodland-Coos Tribe v. Department Of Social Services, 1993 WL 35262, Civ. No. 92-40149-GN (U.S.D.C., D. MA, 1993) [see Appendix] the tribe appeared pro se against the state. Not objecting to this, the Court only required the tribe to comply with local rules regarding certificates of service for 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 affirmed a district court denial of a motion for appointment of counsel by a tribe appearing pro se. The Circuit Court refusal to relieve the tribe of its alleged burden of appearing pro se clearly implies the propriety of such proceeding.
Two members 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 four days before argument "to postpone 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.
Fraass Survival Systems, Inc. v. Absentee Shawnee Economic Development Authority and Absentee Shawnee Tribe of Oklahoma, 817 F.Supp. 7 (S.D., NY, 1993) upheld the propriety of an Indian nation's explicit decision to appear pro se:
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.
The opposing party countered the Shawnee motion on the ground that "a corporation cannot appear pro se." Id. As the Court said:
The problem with [the opposing] 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 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.C. Conclusion
No basis exists 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 the practices of other courts and is supported by sound principle and prior authority. For these reasons, Plaintiff Council respectfully requests that it be permitted to appear pro se in this matter.Dated: October 17, 1997
Raymond D. Yowell, Chief
Allen Moss, Sub-Chief
Virginia Sanchez, Secretary of State & Treasurer
Western Shoshone National Council
Indian Springs, NV 89018
APPENDIXNortheast Woodland-Coos Tribe v. Department Of Social Services,
Civ. No. 92-40149-GN (U.S.D.C., D. MA, 1993)
1993 WL 35262
(not reported in F. Supp.)United States District Court
District of Massachusetts
Civ. No. 92-40149-GN
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.
END OF APPENDIX