[00:00:00] Speaker 04:
case number 20-5160, Charles K. Hudson versus David Longley Bernhardt in his official capacity as Secretary of the Interior at our appellants.

[00:00:10] Speaker 04:
Ms.

[00:00:11] Speaker 04:
Huron for the appellants, Mr. Sullivan for the appellee.

[00:00:15] Speaker 00:
Good morning, counsel.

[00:00:16] Speaker 00:
Ms.

[00:00:16] Speaker 00:
Herron, please proceed when you're ready.

[00:00:19] Speaker 05:
Thank you, Your Honor.

[00:00:21] Speaker 05:
May it please the court.

[00:00:22] Speaker 05:
My name is Rachel Herron on behalf of the federal government.

[00:00:25] Speaker 05:
With the court's permission, I'd like to reserve about two minutes of time for rebuttal.

[00:00:30] Speaker 05:
The plaintiff in this case, an individual member of the three affiliated tribes of the Fort Berthold Reservation, seeks to overturn the results of a 2013 election administered by the Department of the Interior based on readings of tribal law and federal law that had been rejected by the tribe and the agency respectively.

[00:00:51] Speaker 05:
The government's briefs explain why plaintiff's arguments fail on the merits, but I'd like to start today by addressing the threshold question

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that was identified in this court's recent order, which is whether a plaintiff has Article III standing to raise his arguments that Interior allegedly violated tribal and federal law in the first place.

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Upon consideration of that issue, the government believes that the plaintiff has not, to this point in the litigation, met his burden of demonstrating a particularized injury.

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To the extent this court is willing to give plaintiff the opportunity to demonstrate an injury now,

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Plaintiff's burning and the government's view would be to demonstrate that he is personally impacted by the tribal constitutional amendments that became effective as a result of the alleged misapplication of tribal and federal law.

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The government would note that plaintiff has not made any such argument up to this point in the case, neither in his submissions to the agency nor in his briefs to the court.

[00:01:55] Speaker 05:
Your honors, I'm happy to elaborate further on the government's view of the standing issues here, unless there are specific questions on standing that the court would like to hear the government answer first.

[00:02:06] Speaker 03:
There's a regulation by Interior that allows individual members to challenge votes.

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And so allowed certainly, at least at the administrative level, this type of challenge.

[00:02:19] Speaker 03:
I don't think there's any dispute about that.

[00:02:21] Speaker 03:
My question is, what is the

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origin of that regulation.

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I didn't see anything sort of in the Indian War Reorganization Act that would have been, you know, that was drawing upon or purporting to interpret.

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And so what I was trying to and thinking about standing here was understand what the basis was for Interior in recognizing that right, or maybe creating that right.

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You have to tell me which in that, in that regulation, is there something about the historic trust relationship, historic practice with tribes that

[00:02:53] Speaker 03:
allows these type of challenges in a way that seems different from general elections?

[00:02:58] Speaker 05:
Yeah, so the regulation in question, you're correct, allows any member who has voted to challenge.

[00:03:07] Speaker 05:
I will say that in practice, the IBIA, which is the body within Interior that hears the appeals within the agency from these challenges, does

[00:03:18] Speaker 05:
apply standing principles as a matter of what they call administrative prudence.

[00:03:24] Speaker 05:
And there are IBA decisions I can point your honors to that make that point.

[00:03:29] Speaker 05:
So it's not as though that there is sort of no concept whatsoever of standing in these administrative challenges, although we acknowledge that the IBIA here did not make any findings with regard to Mr. Hudson's standing.

[00:03:46] Speaker 05:
In terms of the origin of the regulation, I view this regulation as Section 5123A1 of the statute gives the secretary the authority to promulgate rules and regulations which will govern the conduct of these secretarial elections.

[00:04:08] Speaker 05:
And this mechanism for voters bringing a challenge

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is simply one regulation that Interior has promulgated.

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I am not aware of any view by Interior that this is sort of a necessary feature as a result of the trust relationship or something like that.

[00:04:31] Speaker 03:
So when the IBIA has applied standing to these voter challenges, what types of voter challenges have met that standing threshold?

[00:04:45] Speaker 03:
I mean, I don't have, but just an example.

[00:04:49] Speaker 05:
Yeah.

[00:04:49] Speaker 05:
So the, um, you know, I think the, the one example that I have here today for the court is that I think one in which they found that there was, um, not standing.

[00:05:02] Speaker 05:
Um, so I can't standing here today, give you an example of a time where the, where the, you know, IBA has made an affirmative finding that, that there was standing to proceed.

[00:05:14] Speaker 05:
But I think that the analysis would proceed similarly to sort of what the government is saying here would apply in the Article III context in the federal courts, in that you would need to show some personalized impact from the decision, in this case, the approval and making effective of these constitutional changes.

[00:05:37] Speaker 05:
It would not be enough simply to have an interest in

[00:05:42] Speaker 05:
making sure that the agency is applying law correctly or correctly in the challenger's view, standing alone, no matter how sincerely held that belief is, as the Supreme Court has affirmed just this term in the Carney v. Adams decision.

[00:05:59] Speaker 00:
Can you just give us an example of what would be enough?

[00:06:06] Speaker 05:
Sure.

[00:06:07] Speaker 00:
In this case, I mean, on the facts of this case.

[00:06:10] Speaker 05:
Sure.

[00:06:11] Speaker 05:
I think one of the difficulties here is that it's not immediately obvious from the amendments that are in question, which have to do with the composition of the tribal business council, how this particular plaintiff would be able to show a particularized injury.

[00:06:25] Speaker 05:
But you could, I mean, I think that you could pause it, for example, with regard to the first amendment that went into effect as a result of the 2013 election, which

[00:06:39] Speaker 05:
increases the size of the tribal business council.

[00:06:43] Speaker 05:
Potentially, you could imagine a sitting member of that council whose vote would be diluted by the inclusion of new members on that council and the expansion of the body being able to show that they are injured in a particular way.

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And also, you could imagine different kinds of amendments that would have a clear impact on

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just a non-governing member of the tribe, for example, something that went to membership criteria, something that changed the ability or the eligibility of voters to vote in future elections.

[00:07:21] Speaker 05:
In those kinds of situations, I think a plaintiff would be able to readily show that they are personally impacted.

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And there's been no showing of that here.

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And as I said, it's far from clear to the government

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how the plaintiff would be able to make such a showing in this case, given the nature of the amendments.

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And on that point, I would add as well that in thinking about whether the plaintiff can show a personalized impact from these amendments, it's also important to keep in mind that in large measure, the 2013 amendments and particularly the first amendment that was approved in 2013 was actually rolled back by a 2016 secretarial election that plaintiff

[00:08:01] Speaker 05:
separately challenges and in another lawsuit that's currently being held in abeyance.

[00:08:06] Speaker 05:
So, you know, there are, I think, a number of hurdles to be able to the plaintiff being able to show a particularized impact here.

[00:08:16] Speaker 03:
Is it true that the 2013 changes never actually took effect?

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That's what Mr. Hudson said in opposing remand.

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And so the council had never really implemented the change, at least the expansion saying the number of members of the business council.

[00:08:34] Speaker 03:
And I don't know if there were any felony, anybody involved in felonies that that would have come up at all.

[00:08:39] Speaker 03:
Hopefully not.

[00:08:41] Speaker 03:
And then it was, as you said, sort of undone.

[00:08:45] Speaker 03:
In 2016 so i'm trying to figure out whether it was even there was ever any on the ground practical implementation of the 2013 provisions any challenges that you're aware of.

[00:08:54] Speaker 05:
Your honor I don't i'm not aware of that you know the record, obviously, that we have before us only goes to the state of things.

[00:09:01] Speaker 05:
After 2013 i'm not aware of what happened in terms of the tribes actual implementation after 2013 other than you know to note that.

[00:09:10] Speaker 05:
there was a relatively short period of time in which these changes could have even come about before we had this 2016 election that changed the legal state of play again.

[00:09:19] Speaker 03:
I'm sorry, just clarify one more thing.

[00:09:23] Speaker 03:
The 2013 election authorized an increase in the size of the business council, but that election didn't actually increase the size of the business council.

[00:09:32] Speaker 03:
Was that supposed to happen at the next election?

[00:09:35] Speaker 05:
I think the text of the amendment, which is at JA 234, spells out what the sequence would be in terms of when the elections would be held to add these new members.

[00:09:47] Speaker 05:
But as far as I'm aware, it's not like there was a slate in place when the 2013 amendment was.

[00:09:53] Speaker 03:
And those other elections were not held to increase.

[00:09:56] Speaker 05:
That's my understanding, Your Honor.

[00:09:57] Speaker 05:
I see I'm running out of time, so I would

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Simply note on the merits that the government, to the extent this court reaches the merits, stands by the arguments that it makes in its brief on those issues.

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And to the extent this court has any questions on them now or in any rebuttal time that may remain, I'm happy to answer them.

[00:10:18] Speaker 05:
Otherwise, the government would ask this court to vacate the decision below.

[00:10:23] Speaker 00:
OK, thank you.

[00:10:24] Speaker 00:
Ms.

[00:10:25] Speaker 00:
Herron, we'll hear from Apoli now, Mr. Sullivan.

[00:10:30] Speaker 01:
Thank you.

[00:10:31] Speaker 01:
May it please the court.

[00:10:32] Speaker 01:
My name is Patrick Sullivan representing Apple Lee Charles Hudson.

[00:10:35] Speaker 01:
Uh, we ask that this court affirm the district court and hold that interiors misinterpretation of the IRA and article 10, um, by erasing the tribal quorum, um, was, is, is arbitrary, capricious and contrary to the statute.

[00:10:52] Speaker 01:
But I do want to address the issues as well that from your order, this court does have article three standing.

[00:10:58] Speaker 01:
I'm surprised to hear that we're focused on the particularized prong, but I am glad to.

[00:11:07] Speaker 01:
First of all, the clearest signal that this is a particularized injury is the regulation that Judge Millett referred to, which narrows the people who can actually challenge that election to not just any voter,

[00:11:29] Speaker 01:
but down to those who, well, not to any member, but any qualified voter.

[00:11:34] Speaker 01:
And then again, Mr. Hudson actually did vote in that election.

[00:11:39] Speaker 01:
And I think the standard that the Department of Justice is putting forward is that somehow what we need to do is look at whether Mr. Hudson's, whether the outcome

[00:11:56] Speaker 01:
affected him and injured him, which really is counterintuitive.

[00:12:01] Speaker 01:
I mean, I think if you expand that logic, you would think that not getting your choice of presidential candidate would be seen as some kind of particularized injury.

[00:12:12] Speaker 01:
It requires going into Mr. Hudson's brain and examining his personal policy preferences.

[00:12:17] Speaker 02:
What is his injury?

[00:12:21] Speaker 02:
What is the injury on which you base your claim of Article III standing?

[00:12:25] Speaker 01:
It's the diminishment of his vote.

[00:12:29] Speaker 01:
But for interior's practice, this amendment wouldn't have happened.

[00:12:33] Speaker 01:
And that's a personal injury.

[00:12:36] Speaker 01:
If you look at Gill versus Whitford, what's happened is that his vote now carries less weight.

[00:12:43] Speaker 02:
So a vote dilution theory.

[00:12:47] Speaker 01:
Yeah, it's diluted or it's diminished relative to the outcome that he votes in.

[00:12:52] Speaker 01:
I mean, it would seem.

[00:12:54] Speaker 02:
would seem that he has not a vote dilution injury, but a vote concentration benefit.

[00:13:02] Speaker 02:
They're enforcing, they're making a quorum requirement too strict in your view, the effect of which is to give the people who vote a greater vote.

[00:13:13] Speaker 02:
How's that an injury?

[00:13:15] Speaker 01:
I understand, but the violation of the statute is not a benefit to him.

[00:13:19] Speaker 01:
But when you vote, you can vote in the negative or in the positive.

[00:13:23] Speaker 01:
Um, here, Mr Hudson opposed the amendment.

[00:13:27] Speaker 01:
And so, um, what happened then is the interior's practice denies him the benefit of non votes being counted as no votes toward the quorum.

[00:13:35] Speaker 01:
And so it makes his preferred outcome less likely vis a vis his one vote when he votes in your example, when he supports amendment, that amendment is indeed more likely to pass, but then his voting powers diminished in another way because that amendment is then vulnerable to a subsequent

[00:13:53] Speaker 01:
later unlawful secretarial election conducted by Interior without the requisite solemnity and formality.

[00:14:00] Speaker 02:
I'm sorry, what's the causal connection between the fight here over how the quorum requirement works and the fact that his position in the election didn't prevail?

[00:14:22] Speaker 02:
those would seem to be just different issues.

[00:14:26] Speaker 01:
Well, they're tied by the fact that if Interior respected the quorum that's in Article 10 in an IRA, there would have been a different outcome.

[00:14:36] Speaker 01:
So you don't have to look at the injury to Mr. Hudson.

[00:14:39] Speaker 01:
And by the way, that would put the court in an untenable position of evaluating which injuries

[00:14:49] Speaker 01:
which personal injuries in terms of political outcomes of various types of elections are justiciable.

[00:14:55] Speaker 01:
I wouldn't ask this court to do that, because that would be a very sticky situation for the court to delve into.

[00:15:04] Speaker 01:
But here, the injury is really to his vote.

[00:15:07] Speaker 01:
And the practice, we talk about positive and negative votes, those things add up to

[00:15:13] Speaker 01:
the fact that it puts my client on a day-to-day basis in a defensive position because the constitution provides for things like his enrollment status.

[00:15:23] Speaker 01:
He could be disenrolled.

[00:15:25] Speaker 01:
It provides for his rights vis-a-vis his allotted lands.

[00:15:29] Speaker 01:
He's a landowner on the reservation.

[00:15:30] Speaker 00:
Can I just ask this question?

[00:15:32] Speaker 00:
Suppose he didn't vote, but he opposed the measure, then it seems like someone in that position could say the same thing because they could say that

[00:15:43] Speaker 00:
Well, I wish what you believe to be the proper quorum requirement was enforced, because if it had been, then the measure wouldn't have been adopted.

[00:15:52] Speaker 00:
And I don't like that.

[00:15:54] Speaker 00:
I don't like the outcome that exists now, because the measure was treated as having been adopted.

[00:15:58] Speaker 00:
And it seems like the fact of voting then doesn't really matter that much, because the vote, as Judge Katz has pointed out, was counted and was maximized.

[00:16:08] Speaker 00:
But the injury is just, the asserted injury is disaggregated from it, because that would be the same for somebody who didn't vote at all.

[00:16:14] Speaker 00:
And I think it's pretty clear that if somebody didn't vote at all, they can't claim an injury in this context.

[00:16:20] Speaker 01:
Well, I understand your hypothetical in which my client didn't vote.

[00:16:24] Speaker 01:
And I did mention that there is an injury in, as I spoke, even to those who don't vote.

[00:16:32] Speaker 01:
But that's not what we're asserting here.

[00:16:34] Speaker 01:
What we're asserting here is that when Mr. Hudson's

[00:16:37] Speaker 01:
when Mr. Hudson did vote, the outcome changed based on interior's practice.

[00:16:43] Speaker 01:
But it wouldn't have even had to have changed to have diminished his vote.

[00:16:46] Speaker 01:
I mean, if you look at Gil versus Woodford, Baker v. Carr, in those cases, the courts didn't delve into whether they wanted a Democrat or a Republican winner or what those policies, Democratic policies or Republican policies would have affected those voters.

[00:17:04] Speaker 01:
That would be an impossible position to put the court in.

[00:17:06] Speaker 03:
And so that's why we- In those cases, the vote, the change in vote was vis-a-vis other voters.

[00:17:16] Speaker 03:
Your vote has less power than other voters.

[00:17:21] Speaker 03:
It's not about your ability to obtain particular outcome, desired outcomes or preserve them.

[00:17:28] Speaker 03:
And so what I'm trying to understand under this

[00:17:30] Speaker 03:
We have to ask that generically about this election process but this 2013 election because that's the one that's challenged.

[00:17:37] Speaker 03:
And so, in voting in the 2013 constitutional amendment election was his vote any more or less potent, I guess, than other voters.

[00:17:54] Speaker 01:
Yes, Your Honor, his vote was less potent than those who voted in favor of that amendment.

[00:18:02] Speaker 01:
So it's not another class of voter, but in terms of, it was disadvantaged in terms of his vote because he happened to vote against that amendment.

[00:18:13] Speaker 01:
So that's where I'm going.

[00:18:15] Speaker 01:
And I think, and it's true that, I mean, his preference would have been, and the reason that he expressed to me,

[00:18:23] Speaker 01:
that he voted against 2013 is that it didn't expand tribal off reservation voting rights.

[00:18:32] Speaker 01:
He has a separate particular.

[00:18:35] Speaker 03:
But the 2013 changes that he voted against never took effect, right?

[00:18:43] Speaker 03:
You told the district court in your opposition to remand that they never had been implemented.

[00:18:47] Speaker 03:
So how was he

[00:18:50] Speaker 03:
injured his vote he cast a vote just like everyone else it was counted just like everyone else's account carry the same weight as anyone else's pro or pro or con that actually voted in that election and the things he complained but he opposed you said it's because he opposed it but the things he opposed never took effect so i'm just trying to understand because that's what we're deciding here is this 2013 election well to be fair they never took effect because of mr hudson's lawsuit they

[00:19:19] Speaker 01:
would have taken effect if he hadn't sued that brought his original case way back then.

[00:19:26] Speaker 03:
That's got nothing to do with the standing question that I'm asking you.

[00:19:28] Speaker 03:
All right.

[00:19:29] Speaker 03:
And that is, how was he injured by, you say, he voted against something that never took effect.

[00:19:36] Speaker 03:
And his vote, I think, vis-a-vis other voters, was the same.

[00:19:40] Speaker 03:
It just, you vote pro or con.

[00:19:42] Speaker 01:
Right.

[00:19:42] Speaker 01:
Well, your vote is, his vote is diminished versus those pros.

[00:19:45] Speaker 01:
But let me go, I think,

[00:19:49] Speaker 01:
The Gill and Baker cases really show that I think this court may be looking further than it needs to in terms of the injury, because what we're looking for is just a plain, direct, and adequate interest in maintaining the effectiveness of one's vote.

[00:20:04] Speaker 01:
That's the interest recognized in Baker v. Carr.

[00:20:06] Speaker 01:
But I also want to point the court at a couple of other cases.

[00:20:10] Speaker 01:
For example, in Carlson v. Postal Reg Commission, the plaintiff there established standing

[00:20:17] Speaker 01:
based on the difference in the price of a postage stamp.

[00:20:20] Speaker 01:
So consider whether that's more or less of a particularized and concrete injury than what we have here.

[00:20:26] Speaker 01:
You can also look at the sweeping district court rulings in Harjo v. Kleppe, in which the plaintiffs challenged essentially the government-to-government relationship between the United States and their Indian tribe.

[00:20:45] Speaker 01:
If the court assumed standing there, which it did, then I argue that my client should also be able to establish standing here.

[00:20:54] Speaker 01:
I see I'm out of time.

[00:20:56] Speaker 00:
Let me make sure my colleagues don't have further questions.

[00:20:59] Speaker 00:
OK.

[00:21:00] Speaker 00:
Thank you, Mr. Sullivan.

[00:21:01] Speaker 00:
Ms.

[00:21:01] Speaker 00:
Herron, we'll give you two minutes for rebuttal.

[00:21:04] Speaker 05:
Thank you, Your Honor.

[00:21:06] Speaker 05:
So I would just touch very quickly on this issue of whether there's

[00:21:13] Speaker 05:
voter dilution injury that can be shown here.

[00:21:16] Speaker 05:
And in the government's view, this is not a voter dilution case.

[00:21:21] Speaker 05:
Voter dilution is an injury that generally comes up in a situation, as the panel has noted, where an individual's vote, the power of that vote is being distorted as compared to other voters.

[00:21:35] Speaker 05:
Here, I think the right way to conceptualize the way these secretarial election work is that there are two separate hurdles

[00:21:43] Speaker 05:
that a proposed amendment needs to clear.

[00:21:46] Speaker 05:
And one is that it needs to get the majority of votes cast.

[00:21:50] Speaker 05:
And in that context is where you could potentially be concerned about some sort of a dilution argument to the extent the way that the votes are cast amplifies the power of certain voters over other voters.

[00:22:04] Speaker 05:
But then there is this separate hurdle that needs to be cleared.

[00:22:09] Speaker 05:
And that hurdle is the meeting of the quorum requirement

[00:22:13] Speaker 05:
And that core requirement applies uniformly.

[00:22:16] Speaker 05:
As Chief Judge Ginobostan noted, the effect that it has is felt alike by voters and non-voters alike.

[00:22:26] Speaker 05:
And I think that that separate issue just is distinct from the way that votes are weighed in the majority vote context, which is where you could potentially see a voter dilution claim.

[00:22:42] Speaker 05:
The only other point that I would note is that on this issue of the fact that plaintiff filed an administrative petition, Massachusetts VEPA, among other cases, Stanford show very clearly that the fact that there is a particular right to bring an administrative petition does not mean that the plaintiff does not then need to show an Article III injury in order to challenge a denial of that petition in the federal courts.

[00:23:08] Speaker 05:
for these reasons, the government would ask that this court vacate the decision below of it for lack of standing, or if it reaches the merits for the reasons stated in the government's brief.

[00:23:19] Speaker 00:
Thank you, counsel.

[00:23:20] Speaker 00:
Thank you to both counsel.

[00:23:21] Speaker 00:
We'll take this case under submission.