Therefore, exhaustion is unnecessary. McCurdy v. Steele, 353 F. Supp. 629, 636 (D.Utah 1973), discussed in O'Neal, supra, 482 F.2d, at 1146, and Means v. Wilson, 383 F. Supp. 378, 383 (D.S.D. 1974). With respect to defendant's fourth group of contentions, that plaintiffs could have filed suit in the tribal court system on the issues raised in this case, the court finds that the events detailed above in the paragraphs describing the background of plaintiff Williams' action sufficiently demonstrate a factual basis for the claim that the tribal judicial system is subservient to the tribal council, a defendant in this action.
This case is very much like numerous other cases involving "jurisdiction to determine jurisdiction" and presenting situations in which the determination of the jurisdictional question involves essentially the same analysis as the determination of the case on the merits. See, e. g., United States v. United Mine Workers, 1957, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884; Nestor v. Hershey, D.C. Cir., 1969, 138 U.S.App.D.C. 73, 425 F.2d 504; Means v. Wilson, D.S.D., 1974, 383 F. Supp. 378, modified on other grounds, 8 Cir., 1975, 522 F.2d 833, cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364. As the District Court in Means stated: When the question of jurisdiction depends upon the same facts that are involved in the disposition of the merits, the Court will retain the case and determine the issue, as it always has jurisdiction to determine its jurisdiction.
However, the courts which have considered the question have held that 28 U.S.C. § 1343(4) provides a remedy in federal court for the prosecution of these deprivations. Crowe v. Eastern Band of Cherokee Indians, Inc., 506 F.2d 1231 (4th Cir. 1974); Thompson v. Tonasket, 487 F.2d 316 (9th Cir. 1973), cert. denied, 416 U.S. 954, 94 S.Ct. 1967, 40 L.Ed.2d 304 (1974); Brown v. United States, 486 F.2d 658 (8th Cir. 1973); Johnson v. Lower Elwha Tribal Community, 484 F.2d 200 (9th Cir. 1973); Daly v. United States, 483 F.2d 700 (8th Cir. 1973); Melvin White Eagle v. Philomene One Feather, 478 F.2d 1311 (8th Cir. 1973); Luxon v. Rosebud Sioux Tribal of South Dakota, 455 F.2d 698 (8th Cir. 1972); Williams v. Sisseton-Wahpeton Sioux Tribal Council, 387 F. Supp. 1194 (D.S.Dak. 1975); White v. Tribal Council, Red Lake Band of Chippewa Indians, 383 F. Supp. 810 (D.Minn. 1974); Means v. Wilson, 383 F. Supp. 378 (D.S.Dak. 1974); Hickey v. Crow Creek Housing Auth., 379 F. Supp. 1002 (D.S.Dak. 1974); McCurdy v. Steele, 353 F. Supp. 629 (D.Utah 1973), rev'd on other grounds, 506 F.2d 653 (10th Cir. 1974); Seneca Constitutional Rights Organization v. George, 348 F. Supp. 48 (W.D.N.Y. 1972); Solomon v. LaRose, 335 F. Supp. 715 (D.Neb. 1971); Loncassion v. Leekity, 334 F. Supp. 370 (D.N.Mex. 1971); Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Reservation, 301 F. Supp. 85 (D.Mont. 1969). But see Pinnow v. Shoshone Tribal Council, 314 F. Supp. 1157 (D.Wyo. 1970), aff'd on other grounds sub nom. Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir. 1971).
While I do not agree with such a reading, it is certainly true that other courts have held that a plaintiff must exhaust administrative remedies within the tribe, Clark v. Land and Forestry Committee of the Cheyenne River Sioux Tribe, 380 F. Supp. 201 (D.S.D. 1974), and have recognized the appropriateness of exhaustion of tribal judicial remedies in some circumstances. White v. Tribal Council, Red Lake Band of Chippewa Indians, 383 F. Supp. 810 (D.Minn. 1974) (exhaustion required); Means v. Wilson, 383 F. Supp. 378 (D.S.D. 1974) (exhaustion required); Hickey v. Crow Creek Housing Authority, 379 F. Supp. 1002 (D.S.D. 1974) (exhaustion required); O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140 (8th Cir. 1973) (exhaustion required); Dodge v. Nakai, 298 F. Supp. 17 (D.Ariz. 1968) (exhaustion not required in the specific instance). The exhaustion of tribal remedies is not a rigid prerequisite to jurisdiction, however, but is to be decided in the specific circumstances presented, taking into account the practical availability of tribal remedies, Dodge v. Nakai, supra, and the demands of tribal autonomy, as against the necessity of immediate action to prevent or redress the deprivation of rights guaranteed by the Indian Civil Rights Act.
This case is similar to "numerous other cases involving `jurisdiction to determine jurisdiction' and presenting situations in which the determination of the jurisdictional question involves essentially the same analysis as the determination of the case on the merits." Ecee, Inc. v. FERC, 611 F.2d 554, 555 n. 4. (5th Cir. 1980) (citing United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Nestor v. Hershey, 425 F.2d 504 (D.C. Cir. 1969); Means v. Wilson, 383 F.Supp. 378 (D.S.D. 1974), modified on other grounds, 522 F.2d 833, cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364).See, e.g., Northwestern Fuel Co. v. Brock, 139 U.S. 216, 219, 11 S.Ct. 523, 35 L.Ed. 151 (1891) (citing Mayor v. Cooper, 6 Wall. 247, 250, 18 L.Ed. 851; Hornthall v. Collector, 9 Wall. 560, 566, 19 L.Ed. 560; Mansfield, Coldwater Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 387, 4 S.Ct. 510, 28 L.Ed. 462 (1884)); W.F. Potts Co. v. Cochrane, 59 F.2d 375 (5th Cir. 1932).
Instead, they were sued as having acted "for and on behalf of the tribe", and "[t]o say that this tribe is exempt from civil suit on its contracts, and yet compel its principal chief[s], by judicial process to take funds from its treasury, and turn them over to the court to be applied in discharge of its contracts, is to destroy in practice the very exemption which at the outset is conceded as a legal right." Adams v. Murphy, supra, 165 F. at 308; see Means v. Wilson, 383 F. Supp. 378, 382 (D.S.Dak. 1974), aff'd in part and rev'd in part on other grounds, 522 F.2d 833 (8th Cir. 1975), cert. denied, 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); Seneca Constitutional Rights Organization v. George, 348 F. Supp. 48, 50 (W.D.N.Y. 1972). Affirmed.
Except for the overall supervision of the county clerk, or his counterpart, and appointed subordinates, the work of conducting elections in our society is typically carried on by volunteers and recruits for whom it is at most an avocation and whose experience and intelligence vary widely. Given these conditions, errors and irregularities, including the kind of conduct proved here, are inevitable, and no constitutional guarantee exists to remedy them. Pettengill v. Putnam County R-1 School Dist., 472 F.2d 121 (8th Cir. 1973); Powell v. Power, 436 F.2d 84 (2d Cir. 1970); see also Means v. Wilson, 383 F. Supp. 378 (D.S.D. 1974). Rather, state election laws must be relied upon to provide the proper remedy.
The facts are set out fully in the district court opinion. Means v. Wilson, 383 F. Supp. 378 (D.S.D. 1974). Appellants, who were plaintiffs below, are Russell Means, an unsuccessful candidate for president of the Oglala Sioux Tribal Council in the February, 1974 election, and a group of his political supporters.
Milburn v. Blackfrica Promotions, Inc., 392 F. Supp. 434, 435 (S.D.N.Y. 1974). See also Aldabe v. Aldabe, 616 F.2d 1089 (9th Cir. 1980); Means v. Wilson, 383 F. Supp. 378 (D.S.D. 1974), aff'd in part and rev'd on other grounds, 522 F.2d 833 (8th Cir. 1975), cert. den. 424 U.S. 958, 96 S.Ct. 1436, 47 L.Ed.2d 364 (1976); Bryant v. Donnell, 239 F. Supp. 681 (D.Tenn. 1965).
(footnote omitted)See Hennings v. Grafton, supra; Pettengill v. Putnam County R-1 School Dist. Unionsville, Mo., 472 F.2d 121 (8th Cir. 1973); Means v. Wilson, 383 F. Supp. 378 (D.S.D. 1974). Allegations of misconduct in the administration of a state election must be judged in light of principles governing claims under the fourteenth amendment and § 1983. It is necessary, first of all, to plead and prove specific acts of misconduct, including the time, place and circumstances of the alleged deprivation of the right to vote.