Copyright © 2000 NLThomas
All Rights Reserved

Madison, WI - On November 1, Magistrate Judge Steven Crocker set an April 9, 2001, trial date for the ongoing LCO (Lac Courte Oreilles band of Ojibwe [Wisconsin]) voting rights case. The case is again before district court Judge Barbara Crabb after a 1999 decision by the Seventh Circuit Court of Appeals. The Seventh Circuit reversed Judge Crabb’s 1998 order and ruled that the plaintiffs could proceed with the case against the BIA without the TGB [Tribal Governing Board] in the lawsuit. The Seventh Circuit denied the TGB’s request for rehearing and, in October of this year, the U.S. Supreme Court denied the TGB’s petition for a writ of certiorari.

The Magistrate set various deadlines in the case, including a December 1st deadline for the TGB to decide whether it will intervene in the case and to file papers with the court if it seeks to do so. The plaintiffs will have until December 15th to decide if they will object to the TGB seeking to intervene.

In 1997, Judge Crabb ruled that the TGB was a necessary party that should be joined to the lawsuit and gave the TGB 30 days to intervene in the lawsuit. The TGB refused to intervene and the plaintiffs then amended their complaint to name them as “joined defendants” to add them to the lawsuit.

In doing so, the plaintiffs added allegations against the TGB and its members that they violated the Indian Reorganization Act and that they had conspired to deprive LCO members of their voting rights in violation of federal law.

Judge Crabb initially ruled that the TGB could not be joined to the lawsuit because of its sovereign immunity and dismissed the plaintiffs’ claims against the BIA. Judge Crabb did not address the issue of whether the TGB members acted outside their authority in trying to overturn a federal election. She ruled that the conspiracy claim could not be maintained against the TGB members because the Indian Reorganization Act did not provide for a private cause of action.

At oral argument before the Seventh Circuit, counsel for the plaintiffs told the appellate court that the plaintiffs would not pursue their separate claims against the TGB if the TGB was not in the lawsuit. If the TGB was in the lawsuit, however, the plaintiffs had argued that they did not have sovereign immunity because they acted outside their authority and that the IRA did provide for a private cause of action such that the claims against the TGB could be maintained.

The plaintiffs pointed out that Judge Crabb never decided the issue of whether the TGB members had acted outside their authority.

The Seventh Circuit overruled Judge Crabb and held that the IRA did provide for this type of private cause of action. Since the TGB did not have to be in the lawsuit as a necessary party, however, the court indicated it would accept the plaintiffs’ offer and treat the allegations of TGB violations of the IRA and conspiracy charges as abandoned by the plaintiffs “for the present time."

According to Tracey Schwalbe, attorney for the plaintiffs, “It was generous of the plaintiffs to offer to let the TGB gently out of the lawsuit at the Seventh Circuit. The plaintiffs had made serious allegations of violations of federal laws to which the TGB members would have had no sovereign immunity defense. Yet the plaintiffs’ focus was not on revenge against the TGB for its actions, the focus was on getting the election and voting rights restored. The plaintiffs let the TGB off the hook at the time if they stayed out of the case,” according to Schwalbe, “Perhaps the TGB just did not understand what happened there.”

If the TGB does seek to intervene at this time, according to Schwalbe, the plaintiffs again will pursue their actions against them for violations of the IRA and conspiracy to deprive the plaintiffs of their voting rights. “It would be unfortunate to have to bring those claims back before the court after giving them [the TGB] the opportunity to avoid it," said Schwalbe, "but the plaintiffs will be left with no other choice if the TGB does seek to intervene.

The court gave the TGB time to intervene in 1997 and the TGB chose not to do so. Instead, they spent the past three years arguing that they should not be part of the lawsuit. Now if they seek to intervene, it would appear that they wasted everyone’s time and money -including the courts’ -- for the past three years.”

The voting rights case was originally filed in 1996. The court indicated that it would maintain firm, aggressive deadlines in the case to move the case to a speedy resolution.