CHEYENNE RIVER SIOUX TRIBE
IN SUPERIOR COURT
WAYNE L. DUCHENEAUX
CASE NO. R-231-98
CANDIDATE FOR TRIBAL
BLAINE CLOWN, CHAIRMAN;
DUBRAY, VICE CHAIRMAN;
HUMP; ED WIDOW; ARLEE HIGH
AND ROBERT CHASING HAWK,
INDIVIDUALLY AND IN THEIR
CAPACITY AS THE CHEYENNE
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,
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.
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.
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
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,
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.
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.
When those individuals voted, their ballot and affidavit were placed in the
same envelope as opposed to separate envelopes as required by the ordinance.
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
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
There was an inconsistency in the manner the election board handled torn
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.
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.
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.
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.
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
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.
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
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.
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).
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
with the fact that the Board was not conducting the recount in accordance with
the Ordinance, plaintiff left the proceedings.
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.
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.
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
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
addition, Ms. Counting-Taylor confirmed that Chairman Bourland was permitted
to address the Board on one occasion.
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.
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.
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.
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.
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
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
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
addition Art. III, § 4 of the Bylaws states:
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).
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, 90th Cong., 1st 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
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:
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
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.
regard to the first prong of the test, Plaintiff's right to vote is one that
the Court holds sacred.
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:
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
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:
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:
that the specific acts of fraud or unlawful behavior were committed in
the conduct of the election;
the fraud or other
unlawful behavior was committed with the intent or purpose of depriving
qualified voters of their constitutionally protected right to vote;
the fraud or other unlawful behavior was committed by persons acting
under color of state law;
the fraud or other unlawful behavior changed the outcome of the
election. Id. at 989
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.
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.
14 Part IV § 2 (j) is a poorly written ambiguous Ordinance
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.
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.
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.
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
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.
December 7, 1998
LEISAH C. BLUESPRUCE
 Gregg Bourland was not a party to this action. While this Court believes that Chairman Bourland was an indispensable party to the litigation, and that plaintiff's complaint could have been dismissed for failure to include him, plaintiff could have corrected the procedural infirmity and reopened the matter. For the reasons set forth herein, justice was best served by proceeding in an expeditious manner.
 Ord. 14, Part III, § 1(a) provides:
The District Election Board shall permit any qualified voter who is not on the Voter's List to register at the polls on Election Day. Each person desiring to register at the polls shall execute a Voter Registration Affidavit describing his/her name, address, ate of birth, district where he or she resides and period of latest residence.
 Ord. 14, Part VII provides:
The District Election Board shall permit any qualified non-registered voter who is not on the Voter's List to register at the polls on the day of the election. The following procedure will be used for the voter registration affidavits and the ballots cast by non-registered voters. One of the election Judges shall give the voter who has completed the Voter Registration Affidavit a ballot with the official stamp and an envelope in which the voter is to seal his ballot. When the voter has cast his ballot in secret, he the voter shall fold his ballot with the official seal in evidence and seal his ballot in the envelope provided. The voter shall return his ballot to the Election Judge receiving the ballots and the Judge in turn shall placed the voter's sealed envelope with the ballot into another envelope along with the voter's completed Voter Registration Affidavit, seal and mark the outer envelope "Voter Registration Affidavit" and place the sealed envelope into the ballot box. The district Election Board shall not open and count these sealed envelopes when conducting their unofficial count. These affidavits and ballots will be opened by the Tribal Election Board during their official canvass and will either accept or disapprove of the Affidavits of Voter Registration before a count is made of the ballots cast by the non-registered voters.
 During the course of this meeting, Mr. Clown invalidated a motion that had been made in Executive session. Apparently, Mr. Clown had broken a tie and had changed his mind. Mr. Ducheneaux raised the propriety of Mr. Clown's actions, as they were not in accordance with Robert's Rules of Order.
 Both Arlene Thompson and Bertha Chasing Hawk confirmed that they saw the ballot boxes removed by Officer Harper of the C.R.S.T. Police Department
 C.R.C. Ord. 14 §2 (j) provides:
CONTEST OF ELECTION. If for any reason a defeated candidate feels that the election in which he was a candidate was not properly conducted, he may demand a recount of the vote. Protest letters shall be filed with the Tribal Secretary within five (5) calendar days after the official canvass by the Tribal Election Board. It shall be the duty of the Tribal Election Board, upon the demand of such candidate to set a date for the recount, at which time, the opposing candidate may be present in person, or by legal representation and they shall before the recount is begun, come to an agreement as to the rules governing spoiled ballots, tampering, stuffing ballot boxes, illegal voting or other grounds for a contest. If it is evident that there has been fraud in the election of any district for any reason whatever, the entire vote from that district or districts shall be thrown out. It shall be the duty of the Tribal Election Board to decide if a new election should be held in that district or districts. The opposing candidate shall have the right to challenge any ballot cast if there is evidence that it has been tampered with in any way, and to challenge the registration book if it is evident that any unqualified person has been permitted to cast a vote.
The Tribal Election Board shall be the sole judge as to the legality of any such challenged ballot or voter and the opposing candidate shall abide by the decision of the Election Board.
 It is strongly recommended that the Tribal Council review this Ordinance and clarify the affirmative duties on the part of the Election Board and the duties placed on individuals seeking to contest elections.
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