|
(Cite
as: 905 F.Supp. 1544)
United States District Court,D.
Utah, Central Division.
Lynette
MEYERS, By and Through her natural mother and general guardian Lena MEYERS,
Lena Meyers; Melvin Holgate and Eugene Holgate, by and through their
natural father, Jamie R. Holgate; Leonardo Bob Manheimer, by and
through his natural parents, Leo Manheimer and Sara Manheimer; Lenora
Manheimer; Rosita Johnson, by and through her natural father, Robert
Johnson; and The Navajo Nation, Plaintiffs,
v.
BOARD
OF EDUCATION OF the SAN JUAN SCHOOL DISTRICT, Preston Nielson, Bill Todachennie,
Neal Crank, Paul Mantz, Pete Black, Defendants.
No.
93-C-1080J.
April 7, 1995.
Provision
of secondary education at distant Bureau of Indian Affairs (BIA) boarding
school or partial subsidies for school attendance at other remote locations
did not, as a matter of law, fulfill school district's obligation to provide
free public education to Navajo secondary-school students equivalent to
that received by other students in district. Indian Self-Determination
and Education Assistance Act, § 2(b)(2, 3), 25 U.S.C.A. § 450(b)(2,
3) ; Indian Child Welfare Act of 1978, § 401(a), 25 U.S.C.A.
§ 1961(a) ; U.C.A.1953, 53A-1a-105.
Requiring
minor student to leave home for an education does not necessarily provide
him or her with an equivalent education.
Political
question doctrine holds that certain matters are not appropriate for judicial
consideration but are really political in nature and best resolved by
body politic.
Complaint
that school district discriminated against Navajo secondary-school children
living on remote reservation by failing to provide them with educational
opportunities equal to those provided other children in district did not
present nonjusticiable political question. U.S.C.A. Const.Amend.
14.
Courts
have both power and responsibility to address alleged violations of constitutional
rights such as right to equal protection; if discrimination is sufficiently
shown, right to relief under equal protection clause is not diminished
by fact that discrimination relates to political rights. U.S.C.A.
Const.Amends. 5 , 14.
Question
of duty of state or local school board to educate Indian children is a
legal question and is thus justiciable, as it is emphatically the province
and duty of the judicial department to say what the law is.
Provision
of Enabling Act admitting state of Utah into United States, which required
State Constitution to “make no distinction in civil or political rights
on account of race or color, except as to Indians not taxed,” did not
exempt Native American children from express constitutional mandate requiring
legislature to establish and to maintain system of public schools “open
to all children of the State” and, thus, state had duty under Enabling
Act and Constitution to educate on-reservation Indian children. Utah
Const. Art. 3 ; Art. 10, § 1; U.C.A.1953, 53A-17a-102(1);
Act July 16, 1894, § 3, 28 Stat. 107.
Prior
practice in interpreting and applying Constitution is not conclusive,
as constitutions are necessarily framed in generalities and must be flexible
enough to deal with new conditions and changing mores.
Native
Americans residing on reservation within territorial confines of a state
are citizens of that state and entitled to all the rights and privileges
of other citizens. U.S.C.A. Const.Amend. 14, § 1 ; Immigration
and Nationality Act, § 301(b), 8 U.S.C.A. § 1401(b).
Fact
that school district could not, under Utah Constitution, condemn reservation
property to acquire land to build school or, under federal statute, enforce
compulsory attendance laws on reservation without consent of tribe or
appropriate water from reservation for school use did not excuse district's
constitutional obligation to provide system of public schools open to
all children of district, including children of remote Navajo reservation,
although cooperation of Navajo Nation and United States might be required;
Navajos promised in treaty with United States to compel children
to attend school, as reflected in Navajo compulsory school attendance
law, and tribal council was authorized to make land available for public
education and had consented to application of state compulsory school
attendance laws to tribal members and their enforcement on reservation.
Utah Const. Art. 3 ; 25 U.S.C.A. § 231 ; Treaty
with the Navajo Indians, Art. 6, 15 Stat. 667; Navajo Tribal Code
title 10, §§ 118 , 502 , 503 , 1201(a) , 1202(a).
Plenary
power of Congress in Indian affairs is well established.
Article
of 1868 Treaty between United States and Navajo Tribe which obligated
United States to provide education for Navajo children, the provisions
of such article “to continue for not less than ten years,” established
floor, not ceiling, meaning that federal government would provide services
required for at least ten years, not for only ten years, as reflected
in later appropriations expressly providing that they were to carry out
treaty provision, which showed that Congress recognized continuing obligation
under treaty to provide educational services to Navajos. School
Facilities Construction Act, § 1 , as amended, 25 U.S.C.A. § 631
; Treaty with the Navajo Indians, Art. 6, 15 Stat. 667; Act
July 13, 1892, § 1 , 27 Stat. 120; Act June 30, 1913,
§ 2, 38 Stat. 77.
Indian
treaties are to be construed liberally in favor of the Indians and treaty
rights generally cannot be abrogated absent explicit statutory language.
United
States had continuing obligation under 1868 Treaty to provide education
for Navajo children; although Congress held constitutional power
to abrogate treaty provisions relating to provision of services, Congress
had not explicitly done so with respect to Navajo education. School
Facilities Construction Act, § 1 , as amended, 25 U.S.C.A. § 631;
Treaty with the Navajo Indians, Art. 6, 15 Stat. 667.
United
States had obligation to educate Navajo secondary-school children who
resided on remote reservation, independent of any such obligation which
remained under 1868 treaties, and irrespective of whether its responsibility
for Indian education was based on legal obligation arising out of trust
relationship with Indian peoples or moral obligation it had voluntarily
assumed, so long as federal statutes and regulations recognizing federal
obligation for Indian education remained in force. Indian Self-Determination
and Education Assistance Act, §§ 2(a), 3(a, c), 25 U.S.C.A.
§§ 450(a) , 450a(a, c) ; Indian Child Welfare Act
of 1978, § 2, 25 U.S.C.A. § 1901 ; Education
Amendments of 1978, § 1121 et seq., 25 U.S.C.A. § 2001
et seq.; Augustus F. Hawkins-Robert T. Stafford Elementary
and Secondary School Improvement Amendments of 1988, §§ 5202,
5203(c), 25 U.S.C.A. §§ 2501 , 2502(c) ; Treaty with
the Navajo Indians, Art. 6, 15 Stat. 667; 25 C.F.R. §§ 32.3
, 32.4.
Broad
standard of Indian law preemption did not apply to school district's claim
that its obligation to educate Navajo secondary-school children living
on remote reservation was preempted by federal law, and issue could therefore
be decided on general preemption principles; Indian law preemption
analysis, under which express congressional statements of preemption are
unnecessary and ambiguities are resolved in favor of preemption, applied
to state taxation or regulation of conduct on Indian reservations, but
not to provision of governmental benefit or service, which benefited reservation
population rather than imposing additional burden, was in accordance with
federal policy to educate Indians rather than interfering with it, and
was justified by benefits state would receive from better educated populace.
Question
whether a state action is preempted by federal law is one of congressional
intent.
State
law may be preempted where scheme of federal regulation is so pervasive
as to make reasonable the inference that Congress left no room for states
to supplement it, or where compliance with both federal and state regulations
is physical impossibility, or where state law stands as obstacle to accomplishment
and execution of full purpose and objectives of Congress; ultimate
test is whether state law in the area is consistent with structure and
purpose of federal law as a whole.
Federal
benefits programs in area of Indian education did not preempt state and
local obligations to provide educational services for Native Americans;
responsibility for Indian education had shifted from Bureau of Indian
Affairs (BIA) to state and tribal governments, operating with financial
assistance from BIA and Department of Education, while express purpose
of Johnson-O'Malley Act, Indian Education Act and Chapter 1 assistance
was to provide financial assistance to state and local education agencies
to meet special needs of Indian children, and statute authorizing federal
impact funds for local educational agencies expressly provided that it
did not relieve state of duty with respect to its citizens, which would
include on-reservation Indians. Educational Agencies Financial Aid
Act, §§ 1 , 3 , 5(b), (b)(3)(F) , as amended, 20 U.S.C.(1988
Ed.) §§ 236 , 238 , 240(b), (b)(3)(F) ; School Facilities
Construction Act, § 14(a), as amended, 20 U.S.C.(1988 Ed.) § 644(a)
; Elementary and Secondary Education Act of 1965, §§ 1001-1576,
1001(a, b), 1471(12), as amended, 20 U.S.C.(1988 Ed.) §§ 2701
-2976 , 2701(a, b) , 2891(12) ; Department of Education Organization
Act, § 101(4), 20 U.S.C.A. § 3401(4) ; Johnson-O'Malley
Act, §§ 1-6, as amended, 25 U.S.C.A. §§ 452
-457 ; Indian Self-Determination and Education Assistance Act, §§ 204-209,
25 U.S.C.A. §§ 458 -458e ; Augustus F. Hawkins-Robert
T. Stafford Elementary and Secondary School Improvement Amendments of
1988, § 5311-5351 , 5351(5), 25 U.S.C.(1988 Ed.) §§ 2601
-2651 , 2651(5).
United
States' duty to educate Navajo secondary-school children living on remote
reservation did not preempt state's and school district's duty to educate
them; federal government had not stepped in to provide secondary
education which district was not providing, district relied on its provision
of educational services on reservation to justify taxation of non-Indian
oil and gas development, provision of educational opportunities to Navajo
students would not infringe unduly on tribal sovereignty given that tribe
had solicited state's help, and congressional scheme for Indian education
did not limit state's power but expressly contemplated significant state
involvement in educating on-reservation Indians and provided funding for
state education of Indians.
Congress
intended education of on-reservation Indians to be cooperative effort
among federal government, states and local school boards, Indian tribes
and Indian parents, and fact that one entity may have duty to educate
on-reservation Indians does not excuse any other entity from fulfilling
its own obligations.
Equal
Protection Clause of Fourteenth Amendment was meant to prevent state actors
from discriminating against persons based on their race or national origin.
U.S.C.A. Const.Amend. 14, § 1.
Official
action that distinguishes between individuals on racial grounds falls
within core of Equal Protection Clause's prohibition and is therefore
subject to the most exacting
scrutiny and will be upheld only if it is narrowly tailored to further
a compelling governmental interest. U.S.C.A. Const.Amend. 14, § 1.
For
purpose of equal protection analysis, test of whether governmental action
affecting Indians involves permissible political classification or impermissible
racial classification is whether special treatment afforded Indians can
be tied rationally to fulfillment of Congress' unique obligation toward
Indians in governing once-sovereign political community, which is rooted
in unique status of Indians as “a separate people” with their own political
institutions and is not to be viewed as legislation of “racial” group
consisting of “Indians.” U.S.C.A. Const.Amend. 14, § 1.
Absent
showing that allegedly disparate treatment of Indian school children is
tied rationally to fulfillment of Congress' unique obligation toward Indians,
such as a requirement that district withhold its services in order for
federal government to fulfill whatever obligation it might have to educate
Indian children, local school boards are not free to discriminate against
Indians and non-Indians based solely on their status. U.S.C.A. Const.Amend.
14, § 1.
School
district's alleged policy of treating Indian elementary school children
living in remote area of reservation differently from other students by
subsidizing education of non-Indian students at Bureau of Indian Affairs
(BIA) school did not establish equal protection violation as a matter
of law, as Indian and non-Indian children were not similarly situated;
BIA provided free elementary education to Indian children and district's
actions in enabling non-Indian children to attend BIA school and receive
same education that Indian children received for free did not adversely
affect Indian children. U.S.C.A. Const.Amend. 14, § 1.
Equal
Protection Clause only requires equal treatment of persons similarly situated
and does not require things which are different in fact or opinion to
be treated in law as though they were the same. U.S.C.A. Const.Amend.
14, § 1.
School
district's failure to provide educational services to students at remote
area of Navajo reservation was not discriminatory on its face, in violation
of Equal Protection Clause of Fourteenth Amendment, where district did
not provide anyone an education in remote area and at least some of the
students there were not Native Americans. U.S.C.A. Const.Amend.
14, § 1.
School
district's intent in not providing educational services in remote area
of Navajo reservation was genuine issue of material fact precluding summary
judgment on equal protection claim of Navajo secondary-school children;
even if Navajos established that district's policy of not providing
educational services at remote area had discriminatory effect on Native
Americans, who comprised virtually all residents of area, trier of fact
could reasonably conclude that situation arose not from racially discriminatory
motives but from practical problems of delivering services to remote area
and from confusion over whether district had legal obligation to provide
educational services in area. U.S.C.A. Const.Amend. 14 ; § 1.
Racially
disproportionate impact alone is not enough to establish equal protection
violation. U.S.C.A. Const.Amend. 14, § 1.
Although
invidious discriminatory purpose may often be inferred from totality of
relevant facts, unless only one inference can be drawn from undisputed
facts, it is for trier of fact to decide whether to draw inference of
intentional discrimination so as to establish equal protection claim,
thus precluding summary judgment. U.S.C.A. Const.Amend. 14, § 1.
Scope
of local school district's duty under Equal Protection Clause to provide
secondary school in remote area of Navajo reservation depended on facts
which were not fully developed and could be disputed, thus precluding
summary judgment; inasmuch as Equal Protection Clause required only
that similarly situated persons be treated equally, scope of district's
duty, if any, depended on such matters as nature and quality of education
Navajo school children were currently receiving, nature and quality of
education that they could receive in remote area, criteria district followed
in deciding whether to build new high school, and how district treated
other students similarly situated. U.S.C.A. Const.Amend. 14, § 1.
Title
VI of Civil Rights Act of 1964, which prohibits racial discrimination
in programs receiving federal funds, provides no greater protection than
Equal Protection Clause. U.S.C.A. Const.Amend. 14, § 1
; Civil Rights Act of 1964, § 601 et seq., as amended,
42 U.S.C.A. § 2000d et seq.
Whether
school district violated Title VI of Civil Rights Act of 1964, prohibiting
racial discrimination in programs receiving federal funds, in failing
to provide for education of Navajo school children living in remote area
of reservation required showing of intentional discrimination, and whether
or not district had requisite intent to discriminate against children
based on their race was genuine issue of material fact, precluding summary
judgment. U.S.C.A. Const.Amend. 14, § 1 ; Civil
Rights Act of 1964, § 601, as amended, 42 U.S.C.A. § 2000d.
Although
Title VI of Civil Rights Act of 1964 only reaches intentional discrimination,
Department of Education may redress, by regulation, actions that have
unjustifiable disparate impact on minorities, regardless of any intent
to discriminate, with result that administrative regulations implementing
statute are valid and enforceable even though they proscribe behavior
which may not be prohibited by statute itself. Civil Rights Act
of 1964, § 601 et seq., as amended, 42 U.S.C.A. § 2000d
et seq.; 34 C.F.R. §§ 100.1 -100.13 , 100.3(b)(2,
3).
Under
regulations promulgated pursuant to Title VI of Civil Rights Act of 1964,
school district which received federal funds could not discriminate against
residents of remote area of Navajo reservation based on their race in
programs for which it received funds, whether or not it included those
residents in its request for funds; fact that district did not count
Navajo residents of remote area in its applications for federal funds,
and thus, to that extent, did not receive federal funds earmarked for
such residents, did not excuse district from including residents in its
federally funded programs if effect of exclusion was to discriminate against
them because of their race. Educational Agencies Financial Aid Act,
§§ 1-6, as amended, 20 U.S.C.(1988 Ed.) §§ 236
-241 ; School Facilities Construction Act, §§ 1-17,
as amended, 25 U.S.C. (1988 Ed.) §§ 631 -647 ; Elementary
and Secondary Education Act of 1965, § 1471(12), as amended,
20 U.S.C.(1988 Ed.) § 2891(12) ; Civil Rights Act of 1964,
§§ 601 et seq., 606(2)(B), as amended, 42 U.S.C.A. §§ 2000d
et seq., 2000d-4a(2)(B) ; 34 C.F.R. §§ 100.1
-100.13 , 100.13(g); Part 100, App. A, Pt. 1, ¶¶ 3,
17.
Whether
school district had violated Department of Education regulations promulgated
under Title VI depended on what programs district administered with federal
funds, criteria or methods it used in administering those programs, and
effect of its decision on Native Americans and non-Native Americans within
district generally, which required further factual development precluding
summary judgment on claim that district had violated Title VI and its
implementing regulations in failing to provide secondary education to
Navajo residents of remote are of reservation; district's policies
might not have impermissibly discriminatory effect on Native Americans
and its use of federal monies might not violate federal regulations if
elementary education provided by Bureau of Indian Affairs (BIA) was equivalent
to any education district could provide and if other Native American children
in district already received disproportionately large share of federal
funds. Civil Rights Act of 1964, § 601 et seq., as amended,
42 U.S.C.A. § 2000d et seq.; 34 C.F.R. §§ 100.1
-100.13.
Section
of Federally Impacted Areas Act, requiring local educational agencies
to establish policies and procedures to ensure that Indian children residing
on federal property who attended agency's schools and for whom such agency
provided free public education participated equally in school program
with other children, did not apply to school district which did not claim
to provide educational facilities for Navajo children residing in remote
area of reservation in applying for federal impact aid, and Act thus did
not require district to provide such children with educational services.
Educational Agencies Financial Aid Act, §§ 3(a) ,
5(b)(3)(B)(i) , as amended, 20 U.S.C.(1988 Ed.) §§ 238(a)
, 240(b)(3)(B)(i).
Indians
living on reservation are citizens of state where reservation is located.
Purpose
of Federally Impacted Areas Act is to help ease burden on local school
district of educating children who reside on federal land and, thus, whether
or not federal impact aid law imposes legal duty on local school districts
to educate children living on federal land, it does not excuse them from
doing so. Educational Agencies Financial Aid Act, § 1(a)
, as amended, 20 U.S.C.(1988 Ed.) § 236(a).
Although
regulation setting forth application and approval process for education
contracts under Johnson-O'Malley Act required district receiving Johnson-O'Malley
funds to provide Indian children and non-Indian children with comparable
educational opportunities before expending Johnson-O'Malley funds and
prohibited discrimination against Indians, it was not clear whether those
provisions applied to Indian children who attended Bureau of Indian Affairs
(BIA) elementary school in remote area of Navajo reservation or who attended
BIA secondary school away from remote area, who were ineligible for Johnson-O'Malley
benefits, or applied only to those for whose benefit district actually
received Johnson-O'Malley funds and, thus, whether district complied with
regulations depended on facts needing further development, precluding
summary judgment. Johnson-O'Malley Act, §§ 1-6, as
amended, 25 U.S.C.A. §§ 452 -457 ; 25 C.F.R. §§ 273.1(a)
, 273.12 , 273.34(b) , 273.38.
School
district did not, as a matter of law, violate Chapter
1 of Elementary and Secondary Education Act of 1965 and
its implementing regulations by not including children living in remote
area of Navajo reservation in its application for Chapter 1
assistance and, as such children were not included in district's
Chapter 1 requests, they were not “children
being served”
by district's Chapter 1 programs and statutory program requirements therefore
did not apply. Elementary
and Secondary Education Act of 1965, §§ 1001-8005,
1011(a)(1), 1012(c)(1), 1018(c), (c)(1), (d), as amended, 20 U.S.C.A. §§ 2701
-3386 , 2721(a)(1) , 2722(c)(1) , 2728(c), (c)(1), (d) ;
34
C.F.R. §§ 200.1
et seq., 200.32 , 200.43.
Although
order determining whether action is to be maintained as class
action should be entered as soon as practicable after commencement
of action, order regarding class certification may be made at
any time before or, under some circumstances, even after final
judgment has been rendered. Fed.Rules
Civ.Proc.Rule 23(c)(1), 28 U.S.C.A.
In
class action, court has discretion to determine most appropriate point
in proceedings for class certification. Fed.Rules
Civ.Proc.Rule 23, 28 U.S.C.A.
Ruling
on issue of class certification was premature at summary judgment
stage of suit brought against school district and its officials
by Navajo Nation and secondary school children living in remote
area of reservation, given that further discovery and factual development
could narrow issues and affect definitions of putative class or
classes. Fed.Rules
Civ.Proc.Rule 23, 28 U.S.C.A.
Local
school district, state of Utah, United States and Navajo Nation
each had duty to educate Native American children living in
remote area of Navajo reservation and duty of one did
not relieve any other of its own obligation, although precise
scope of that duty depended on facts not yet developed
at summary judgment stage of proceedings; although
district might have obligation to provide high school in remote
area, decision as to feasibility of establishing local secondary school
was peculiarly legislative and executive in nature and district court
was ill equipped to resolve difficult questions about how limited
resources should best be allocated, which were therefore best left
to parties themselves, who had wide discretion to determine how
to meet their obligations, provided they observed constitutional and statutory
mandates.
Separate
but equal educational facilities are not required by Equal Protection
Clause any more than they can satisfy Equal Protection Clause. U.S.C.A.
Const.Amend. 14, § 1.
Equal
Protection Clause did not require local school district to offer
elementary school services that simply duplicated or competed with services
already provided by Bureau of Indian Affairs; where
one entity was already providing education to on-reservation Indians, another
entity's obligation to do so could well be minimized or
excused. U.S.C.A.
Const.Amend. 14, § 1.
*1551
Eric P. Swenson, Monticello, Utah, and Sarah A. Krakoff ,
DNA-People's Legal Services, Inc., Tuba City, Arizona, for individual plaintiffs.
Herbert
Yazzie and Steven C. Boos , Navajo Nation Department of
Justice, Window Rock, Arizona, for plaintiff Navajo Nation.
Scott
M. Matheson, Jr. , U.S. Attorney, Joseph W. Anderson ,
Asst. U.S. Atty., Salt Lake City, Utah, and Lawrence R.
Baca , U.S. Dep't of Justice, Washington, D.C., for plaintiff-intervenor
United States of America.
Brinton
R. Burbidge , Von G. Keetch , Randy T. Austin
, Kirton & McConkie, Salt Lake City, Utah, for defendants.
Jan
Graham , Attorney General, William T. Evand and John S.
McAllister, Assistant Attorneys General, Salt Lake City, Utah, for Utah
State Board of Education and State Superintendent of Public Instruction.
MEMORANDUM
OPINION AND ORDER
JENKINS,
Senior District Judge.
This
action involves the right of Native Americans living on a
remote part of the Navajo Indian Reservation to a free
public education. The
parties do not dispute that the plaintiffs are entitled to
such an education. They
only dispute who is responsible for providing it. For
the reasons stated below, the court concludes that each of
the governmental entities involved in this case has an obligation
to see that the plaintiffs receive appropriate educational opportunities.
I.
BACKGROUND
The
Navajo Mountain area of the Navajo reservation is located in
extreme southern Utah, within the boundaries of San Juan County.
It
is bordered by Lake Powell on the north, by 10,388-foot
Navajo Mountain on the west, by the impassable Paiute mesa
on the east and by Arizona on the south. It
is one of the most remote and inaccessible areas of
the Navajo reservation and perhaps of the United States. FN1
About
two-thirds to three-quarters of the 1,700 Navajo Mountain residents live
on the Utah side of the border; the
rest live in Arizona.
FN1.
Because
of its geographical isolation, many of the Navajo Mountain people
were able to avoid the infamous “Long
Walk”
of the Navajos by hiding in the area's rugged mountains
and canyons. See
Office of Indian Education Programs, Bureau of Indian Affairs, U.S.
Department of the Interior, Report
on BIA Education: Excellence
in Indian Education Through the Effective Schools Process
39 (Final Review Draft, March 1988).
The
individual plaintiffs are apparently all Navajos who reside at Navajo
Mountain. See
Memorandum in Support of Joint Plaintiffs' Motion for Partial Summary
Judgment (dkt. no. 72) [hereinafter Plaintiffs' Memo.] at 3, ¶ 2.
FN2
They
are school-age children and their parents or guardians. The
Navajo Nation is also a party plaintiff. The
plaintiffs brought this action against the Board of Education of
the San Juan School District (the “Board”)
and its members to compel the San Juan School District
(the “District”)
to provide secondary school facilities and services at Navajo Mountain
and to improve the quality of elementary education at Navajo
Mountain.
FN2.
Not
all Native Americans residing at Navajo Mountain are Navajos. Apparently
some Paiute Indians also live on the Navajo reservation at
Navajo Mountain. See
Plaintiffs' Memo. at 4, ¶ 7.
Although
Navajo Mountain is technically within Utah, the only vehicular access
to the *1552
Navajo Mountain area is from the Arizona side, by a
graded dirt road. It
is a 200-mile trip from District headquarters in Monticello, Utah,
to Navajo Mountain. As
the proverbial crow flies, Navajo Mountain is only about 45
miles from the District's nearest high school, at Monument Valley,
and only about 60 miles from the District's nearest elementary
school, at Mexican Hat, but because of the topography and
lack of roads, one has to drive more than 120
miles from Navajo Mountain to reach the nearest District facilities.
This
is not the first time this court has considered the
question of the Board's alleged obligation to educate Native Americans
in the District. In
1974, Native American students residing in San Juan County brought
an action against District, county and state officials alleging that
they had “pursued
a longstanding pattern of deep-rooted racial discrimination”
resulting in “unequal
educational opportunities for Native American children attending the San Juan
public schools.”
See
Complaint for Injunctive and Declaratory Relief (Civil Rights), Sinajini
v. Board of Educ.,
No. C-74-346 (D.Utah), at 2, ¶ 1.
(A
copy of the Sinajini
complaint is included as exhibit E to Defendants' Exhibits in
Support of Motion for Summary Judgment (dkt. no. 61) [hereinafter
Defendants' Exhibits].) The
parties to that case entered into a consent decree requiring
the District to construct secondary facilities in the Oljato-Monument Valley-Mexican
Hat area and in the Montezuma Creek-Aneth-Red Mesa area and
to “use
its best efforts to provide an education program ...
at each of the new schools which is of substantially
as high quality as the existing secondary programs in the
District.”
Agreement
of Parties, Sinajini
v. Board of Educ.,
No. C-74-346, at 10, ¶ 17.
(A
copy of the consent decree is included as exhibit F
to Defendants' Exhibits.)
FN3
The
parties' agreement also required school officials to “consult
with the school community group and with parents in the
Navajo Mountain area to determine whether the residents of that
area wish an elementary school in that area.”
Agreement
of Parties, Sinajini
v. Board of Educ.,
No. C-74-346, at 14-15, ¶ 30.
If
the Navajo Mountain residents wanted an elementary school, then the
District was required to establish one “at
the earliest practicable date”
unless “full
elementary facilities serving at least grades kindergarten through six are
established in that area by the Bureau of Indian Affairs
[BIA].”
Id.
at 15, ¶ 30.
FN3.
The
plaintiffs in the Sinajini
case reopened that action before this action was filed, alleging
widespread violations of the injunction and consent decree entered in
that case. They
requested relief for the children at Navajo Mountain similar to
the relief sought in this case. The
court in Sinajini
ruled that the plaintiffs' claim for a secondary school at
Navajo Mountain went beyond the terms of the consent decree
and injunction in that case and therefore struck the plaintiffs'
allegations relating to a secondary school at Navajo Mountain, prompting
this action. See
Order Denying Plaintiffs' Motion to Modify the Consent Decree by
Granting Defendants' Motions to Strike Portions of Plaintiffs' Verified Motions,
Sinajini
v. Board of Educ.,
No. 74-C-346A (D.Utah November 29, 1993). (A
copy of the court's order in Sinajini
is attached to the Memorandum of Points and Authorities in
Support of Defendants['] Motion to Dismiss for Failure to Join
an Indispensable Party (dkt. no. 10) as exhibit F.)
The
District determined that the Navajo Mountain residents wanted an elementary
school in their area but preferred a BIA boarding school
to a District facility, so rather than constructing an elementary
school itself, the District supported the residents' efforts to obtain
a BIA facility at Navajo Mountain. See
Defendants' Exhibits ex. G. Completed
in 1983, the BIA school at Navajo Mountain now provides
a free public education to students in grades K through
8. The
school has about 115 students (well below its capacity of
200), some of whom board at the school. See
id.
exs. B, K & Q. However,
there is no school at Navajo Mountain for students in
grades 9 through 12. Secondary-school-age
children at Navajo Mountain, of whom there are between about
40 and 66 on the Utah side, FN4
must attend distant BIA *1553
boarding schools, reside in BIA dormitories near public schools or
live with friends or relatives near public schools outside of
Navajo Mountain. The
District does not provide any educational services at Navajo Mountain.
FN4.
Compare
Declaration of Larry Rogers (appendix 1 to plaintiffs' Memorandum in
Support of Motion for Class Certification (dkt. no. 49) [hereinafter
Class Certification Memo.]
),
¶¶ 5
& 7 & ex. A (there are 49 children between
the ages of 14 and 17 years in the Navajo
Mountain chapter of the Navajo Nation, about two-thirds of whom
live in Utah), with
Second Affidavit of Jamie R. Holgate (appendix 2 to Class
Certification Memo.), ¶ 8
(there are presently about 66 children of high-school age who
reside in the Utah portion of the Navajo Mountain chapter).
The
plaintiffs brought this action to compel the District to provide
educational facilities and services at Navajo Mountain. The
plaintiffs' first claim for relief alleges that, by failing to
provide educational services at Navajo Mountain, the defendants have deliberately
discriminated against the plaintiffs and members of their class based
on race. The
plaintiffs further claim that this discrimination violates the equal protection
guarantees of the Fifth and Fourteenth Amendments to the United
States Constitution and title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d
, and its implementing regulations, 34 C.F.R. §§ 100.1
et seq., which prohibit racial discrimination in the operation of
federally funded programs, as well as the injunction and consent
decree in Sinajini.
See
Complaint for Injunctive and Declaratory Relief (Civil Rights) (dkt. no.
1) [hereinafter Complaint], at 11-12, ¶ 25.
The
plaintiffs' second claim alleges that the defendants have violated federal
laws governing the use and expenditure of federal funds, including
so-called chapter I funds, Johnson-O'Malley funds and Public Law 874
or federal impact funds. See
id.
at 12-13, ¶ 28.
The
individual plaintiffs filed a motion to certify a class of
plaintiffs consisting of all current and prospective Native American school-age
children in the Navajo Mountain area, their parents and guardians,
all adult students eligible for a free public education and
all members of the Navajo tribe affected by the defendants'
actions. See
Motion for Class Certification (dkt. no. 48).
All
the plaintiffs filed a motion for a preliminary injunction to
enjoin the Board from refusing to provide Native American children
at Navajo Mountain with an adequate secondary education and related
school facilities and ordering the Board to submit a plan
for providing a secondary education to each Native American of
high-school age at Navajo Mountain comparable to that found in
other schools in the District. See
Joint Plaintiffs' Motion for a Preliminary Injunction (dkt. no. 46).
The
defendants moved for summary judgment (dkt. no. 60), claiming that
they had no duty to provide any educational services to
Native American students residing at Navajo Mountain, and the plaintiffs
filed a cross-motion for partial summary judgment on the issue
of liability (dkt. no. 71). The
United States filed a memorandum supporting and essentially tracking the
plaintiffs' memoranda in support of their motion for partial summary
judgment, and the Utah State Board of Education (the “State
Board”)
filed a memorandum as amicus curiae setting forth its position.
FN5
FN5.
Under
Utah law, the State Board has general control and supervision
of the public school system within the state. See
Utah Code Ann. § 53A-1-401(1)
(Supp.1994). However,
local school districts are controlled by local school boards, which
are responsible for actually establishing, maintaining and managing the schools
within a district. See
id.
§§ 53A-2-108
(1994) & 53A-3-402(2), (4), (14) & (17) (Supp.1994). The
State Board cannot govern, manage or operate any school district
or program unless authorized by statute. Id.
§ 53A-1-401(1)
(Supp.1994).
While
the defendants' motion for summary judgment was pending, the parties
stipulated to entry of an order providing that the District,
with the aid of the State Board, would help secondary
school students at Navajo Mountain and their parents with the
increased expenses associated with living away from home while the
students attend secondary schools in other areas (except for secondary
schools operated by the BIA). See
Stipulated Order Providing Preliminary Relief (dkt. no. 70), August 18,
1994, at 2-3. The
plaintiffs' joint motion for a preliminary injunction was stayed during
the defendants' performance of the terms of the stipulated order,
but the plaintiffs were free to seek further relief following
the expiration of the 1994-95 school year or at any
other time following the court's disposition of the case on
the merits. See
id.
at 2, ¶ 2.
While
the parties' motions for summary judgment were pending, the United
States sought and was granted leave to intervene in this
action. It
has filed a complaint-in-intervention alleging that the defendants have discriminated
against the plaintiffs based on their race, in violation of
the equal protection provisions of the United States and Utah
*1554
constitutions, by failing to provide an equal educational opportunity for
secondary-school-age residents of Navajo Mountain, including failing to provide a
secondary school reasonably located to their place of residence. See
Complaint-in-Intervention (dkt. no. 113), at 3-5. The
Board has counterclaimed, alleging that the United States is responsible
for the education of Native Americans at Navajo Mountain. See
Answer to Complaint-in-Intervention and Counterclaim (dkt. no. 114), at 7,
¶ 4.
The
complaint-in-intervention is not presently before the court, although it raises
some of the same issues as the parties' cross-motions for
summary judgment.
After
oral argument, the court took under advisement both motions for
summary judgment, as well as the plaintiffs' motion to certify
a class. FN6
The
court now enters this memorandum decision and order denying the
parties' motions for summary judgment and denying
the plaintiffs' motion for class certification.
FN6.
The
minute entry from the hearing on the parties' summary judgment
motions indicates that the court also took the plaintiffs' motion
for preliminary injunction under advisement. See
dkt. no. 112. However,
that motion had already been stayed by the court's order
of August 18, 1994 (dkt. no. 70), and was not
argued at the hearing.
II.
THE
SUMMARY JUDGMENT MOTIONS
The
threshold issue in this case is also the central issue,
namely, whether the District has any legal duty to provide
educational services to Native Americans residing on the Navajo reservation
at Navajo Mountain. All
sides agree that this issue is ripe for summary judgment,
but they disagree about the existence and scope of any
such duty.
Ironically,
despite the fact that both maintain and operate schools on
the reservation, both the District and the United States deny
that they have any legal obligation to educate Native Americans
living on the reservation. The
District claims that any duty to provide education on the
reservation (particularly, at Navajo Mountain) belongs to the United States
and the Navajo Nation. The
plaintiffs claim that the District has an absolute duty to
educate Native Americans living within its boundaries, including those living
at Navajo Mountain, and that that duty is not diminished
by any corresponding duty the federal or tribal government may
have. The
United States agrees that the District has a duty to
educate the children of Navajo Mountain but denies that either
the United States or the Navajo Nation has any responsibility
for educating Native Americans; according
to the United States, the District's duty is not only
absolute but also exclusive. Finally,
the State Board recognizes some obligation to provide an education
to Navajo students living in Utah, whether on or off
the reservation, but argues that the duty to educate the
children of Navajo Mountain is not the absolute or exclusive
responsibility of the State of Utah-it is a shared responsibility
of the state and District, the United States (through the
BIA) and the Navajo Nation. The
court agrees with the State Board.
A.
Avoidance
of Constitutional Issues
As
a preliminary matter, the District suggests that the court does
not have to reach the difficult constitutional issues involved in
this case because whatever duty the District might otherwise have
to educate Native American children residing at Navajo Mountain has
been excused by the federal government's provision of educational services
at Navajo Mountain. The
plaintiffs argue that the existence of the BIA school at
Navajo Mountain does not excuse the District from its obligation
to educate the children of Navajo Mountain.
Courts
have held that the existence of a BIA school does
not justify the exclusion of Indian children from public schools.
See
Piper
v. Big Pine School Dist.,
193 Cal. 664, 226 P. 926, 930 (1924) ; Grant
v. Michaels,
94 Mont. 452, 23 P.2d 266, 272 (1933).
In
Grant,
the Montana Supreme Court stated that an Indian boarding school
established by the federal government “does
not fill the place of the free common school required
by”
the Montana Constitution and the fact “that
such a school is open to the children of the
...
district, does not relieve the state of its duty to
furnish public school facilities to those children.”
23
P.2d at 272.
*1555
Grant
relied in part on Piper,
in which the California Supreme Court held that a public
school district could not refuse to admit an Indian student
even though the student could have attended an Indian school
within the territorial boundaries of the district. The
court rejected the district's argument that the state constitutional requirement
of a system of free common schools was satisfied by
the establishment of a federal school:
To
argue that petitioner [a fifteen-year-old Indian] is eligible to attend
a school which may perchance exist in the district, but
over which the state has no control, is to beg
the question. However
efficiently or inefficiently such a school may be conducted would
be no concern of the state.
226
P. at 930. The
court concluded that, by denying the student admission to its
schools, the district had deprived her of her right under
the state constitution “to
attend schools supported at the state's expense.”
Id.
Neither
Grant
nor Piper
is controlling. The
issue in Grant
was whether the board of county commissioners had abused its
discretion in overturning the decision of the county superintendent of
schools to create a new school district. There
was no evidence of any government boarding school in the
area. 23
P.2d at 271. Thus,
the language quoted above was merely dicta. The
issue in Piper
was whether the district could prevent a non-reservation Indian from
attending an existing school, not whether the district had to
build a school for her to attend. Neither
Grant
nor Piper
involved a district's alleged duty to build a school in
a remote area of an Indian reservation, and each relied
on a unique provision of its state's constitution. Perhaps
most important, in neither Grant
nor Piper
did the plaintiffs choose to have a federally operated school
rather than a state or district school in their area,
as the plaintiffs in this case did.
The court need not decide at this
time whether the presence of the BIA school at Navajo Mountain excuses
any duty the District may have to provide educational services at Navajo
Mountain. It is undisputed that the only educational services
the federal government provides at Navajo Mountain are through the BIA
school, which only has classes for grades K through 8. The federal
government does not provide any secondary-school services at Navajo Mountain.
Native American children wishing to continue their studies
beyond the eighth grade must go elsewhere for an education. While
the BIA may provide a secondary education at one of its boarding schools
or may help subsidize a secondary education elsewhere, the court cannot
say, as a matter of law, that by providing for an education at a remote
facility the BIA has fulfilled whatever obligation the parties may have
to provide a free public education to the plaintiffs that is equivalent
to that received by other students in the District. Requiring
a minor student to leave home for an education does not necessarily provide
him or her with an equivalent education. FN7
Cf. Prince
v. Board of Educ.,
88 N.M. 548, 543 P.2d 1176, 1184 (1975) (if school children cannot “make
the trip to school and back home each day, then they would be denied a
free school just as effectively as if no school existed”) (quoting Strawn
v. Russell, 54 N.M.
221, 219 P.2d 292 (1950)). In fact, evidence in this case
suggests that secondary students at Navajo Mountain are disadvantaged
by having to go to boarding schools. See,
e.g., Affidavit of
Jamie R. Holgate at 4; Second Affidavit of Jamie Holgate ¶ 7;
Affidavit of Doris Bedonie ¶¶ 3-4; Affidavit
of Henry Smallcanyon *1556
¶ 3; Affidavit of Laura Tallman ¶ 3; Affidavit
of Mary N. Greymountain ¶ 3; Affidavit of Stewart Clark
¶ 3. FN8
Thus, at a minimum the District may still have some duty to provide
an education to Navajo Mountain children in grades 9 through 12.
FN7.
In
passing the Indian Child Welfare Act, 25 U.S.C.A. §§ 1901
-63 (1983), Congress recognized the disruptive effect Indian boarding schools
have had on Indian family life. See
25 U.S.C.A. § 1961(a)
(“It
is the sense of Congress that the absence of locally
convenient day schools may contribute to the breakup of Indian
families”);
H.R.Rep.
No. 1386 , 95th Cong., 2d Sess. 9, reprinted
in
1978 U.S.C.C.A.N. 7530, 7531 (“Federal
boarding school and dormitory programs also contribute to the destruction
of Indian family and community life”).
It
is not unreasonable to conclude that this disruptive influence has
a detrimental effect on the education of secondary students away
from home. In
fact, Congress has made express findings that federal assistance of
Indian education “has
not effected the desired level of educational achievement”
among Indian children and that “parental
and community control of the educational process is of crucial
importance to the Indian people.”
25
U.S.C.A. § 450(b)(2)
& (3). Utah
has also recognized the importance of parental participation in education.
See
Utah Code Ann. § 53A-1a-105
(1994).
FN8.
The
first Affidavit of Jamie R. Holgate was filed in the
Sinajini
case. A
copy of it was attached as appendix 6 to the
plaintiffs' Class Certification Memo. The
other affidavits cited were attached as appendices to the Joint
Memorandum in Support of Plaintiffs' Motion for a Preliminary Injunction
(dkt. no. 48).
B.
Justiciability
The District also suggests that
this court does not have jurisdiction to decide this case because it presents
a nonjusticiable political question. The political question
doctrine holds that certain matters are not appropriate for judicial consideration
but “are really political in nature and best resolved by the body politic.”
1 Ronald D. Rotunda & John E. Nowak, Treatise
on Constitutional Law: Substance and Procedure
§ 2.16(a) at 275 (2d ed. 1992). See
also Baker v. Carr,
369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962) (stating the
test for determining whether a case presents a political question).
The gist of the plaintiffs' complaint
is that the defendants have discriminated against the plaintiffs by failing
to provide them with educational opportunities equal to those provided
other children in the District. That claim does not present
a nonjusticiable political question but is the sort of claim courts in
this country have been dealing with ever since Brown
v. Board of Education,
347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Courts have
both the power and the responsibility to address alleged violations of
constitutional rights, such as the right to equal protection claimed in
this case. See,
e.g., Baker v. Carr,
369 U.S. at 209-10, 82 S.Ct. at 705-06. “[I]f ‘discrimination is
sufficiently shown, the right to relief under the equal protection clause
is not diminished by the fact that the discrimination relates to political
rights.’ ” Id.
(quoting Snowden
v. Hughes, 321 U.S.
1, 11, 64 S.Ct. 397, 402, 88 L.Ed. 497 (1944)).
National
Indian Youth Council v. Bruce,
366 F.Supp. 313 (D.Utah), aff'd,
485 F.2d 97 (10th Cir.1973), cert.
denied,
417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974),
the only case the District relies on for its argument,
is not controlling. The
plaintiffs in that case were trying to force a federal
agency (the BIA) to close the Intermountain Indian School at
Brigham City, Utah, and transfer its secondary education programs to
a suitable facility on the Navajo reservation. The
court concluded that it was “powerless
to adjudicate”
any claim seeking removal of the school since Congress had
exclusive authority “to
control and manage the affairs of the Indian people.”
366
F.Supp. at 319, 320. FN9
FN9.
The
court in Bruce
first held that the plaintiffs' claim was barred by sovereign
immunity, that operation of the BIA school was contemplated by
statute and committed to the discretion of the Department of
the Interior and that there was no evidence that the
Department had exceeded its discretion. 366
F.Supp. at 317-18. The
court then held that the plaintiffs' proper remedy was administrative
and that the plaintiffs had failed to exhaust their administrative
remedy. Id.
at 319. The
court then stated that, even if the plaintiffs' failure to
exhaust their administrative remedy could be excused as futile, “there
is a further, overarching limitation on judicial action which may,
in any event, render this court powerless to adjudicate plaintiffs'
”
claims, namely, the political question doctrine. Id.
(emphasis added). The
court based its conclusion that the case presented a political
question on Supreme Court precedent holding that the “status”
of Indians is a nonjusticiable political question. See
id.
at 320 & nn. 26 & 27. The
court construed “status”
to include “the
manner in which education is provided for the Indians.”
Id.
at 320. The
court's construction of “status”
is questionable. Cf.
Baker,
369 U.S. at 215, 82 S.Ct. at 709 (suggesting that
the “status”
of Indians refers to the question of “whether
Indians are recognized as a tribe”).
Subsequent
Supreme Court decisions have rejected the idea that any litigation
involving Indian affairs “necessarily
entails nonjusticiable political questions.”
See
County
of Oneida v. Oneida Indian Nation,
470 U.S. 226, 249, 105 S.Ct. 1245, 1259, 84 L.Ed.2d
169 (1985), and cases cited therein. This
court need not decide, however, whether it would follow Bruce
's
reasoning since Bruce
is distinguishable on its facts.
Bruce
involved a coordinate branch of the federal government and thus came squarely
within the political question doctrine. See
Baker,
369 U.S. at 210, 82 S.Ct. at 706 (“it is the relationship between the
judiciary and the coordinate branches of the Federal Government, and not
the federal *1557
judiciary's relationship to the States, which gives rise to the ‘political
question’ ”). By contrast, this case involves the duty of
a state or local school board to educate Indian children. The
question of duty is, of course, a legal question, see,
e.g., Utah Power
& Light Co. v. Federal Ins. Co.,
983 F.2d 1549, 1562 (10th Cir.1993) ; Ferree
v. State, 784 P.2d
149, 151 (Utah 1989), and “[i]t is, emphatically, the province and duty
of the judicial department, to say what the law is.” Marbury
v. Madison, 5 U.S.
(1 Cranch) 137, 177, 2 L.Ed. 60 (1803). The court must therefore
determine what duty, if any, the District has to educate the plaintiff
children.
C.
The
District's Duty to Educate Children Residing at Navajo Mountain
The
asserted source of the District's duty to educate the children
of Navajo Mountain is state law. Cf.
Plyler
v. Doe,
457 U.S. 202, 221, 102 S.Ct. 2382, 2397, 72 L.Ed.2d
786 (1982) (“Public
education is not a ‘right’
granted to individuals by the [federal] Constitution”);
Piper
v. Big Pine Sch. Dist.,
193 Cal. 664, 226 P. 926, 928 (1924) (the “privilege
of receiving an education at the expense of the state”
is “distinctly
a state affair,”
since the “federal
Constitution does not provide for any general system of education”).
Congress
required as a condition for Utah's admission into the Union
that Utah's constitutional convention provide for “the
establishment and maintenance of a system of public schools, which
shall be open to all the children of [the] State
and free from sectarian control.”
Act
of July 16, 1894, ch. 138, § 3,
fourth, 28 Stat. 107, 108 (1893-95). Accordingly,
Utah's constitution required the legislature to provide for “the
establishment and maintenance of the state's education systems including ...
a public education system, which shall be open to all
children of the state....”
Utah
Const. art. X, § 1.
See
also id.
art. III, fourth (irrevocable ordinance requiring the legislature to “make
laws for the establishment and maintenance of a system of
public schools, which shall be open to all the children
of the State and be free from sectarian control”).
Pursuant
to its constitutional obligation, the Utah Legislature has provided for
a system of public education that “recognizes
that all children of the state are entitled to reasonably
equal educational opportunities regardless of their place of residence in
the state and of the economic situation of their respective
school districts.”
Utah
Code Ann. § 53A-17a-102(1)
(1994). The
state system is meant “to
provide a minimum school program for the state in accordance
with the constitutional mandate.”
Id.
The District claims that when
the framers of the Utah Constitution referred to “all children of the
state” they did not mean Indian children living on a reservation. The
District bases this argument in part on a provision of the Enabling Act
requiring the state constitution to “make no distinction in civil or political
rights on account of race or color, except
as to Indians not taxed
....” FN10
Act of July 16, 1894, ch. 138, § 3 , 28 Stat. at 108 (emphasis
added). Although the State may have been authorized to distinguish
“Indians not taxed” from other groups, the constitution actually adopted
did not expressly exclude Native American children from its guarantee
of a public education system “open to all children of the state.”
FN10.
The
District construes the phrase “Indians
not taxed”
to mean Indians living on the reservation, since the Enabling
Act apparently prohibited the State from taxing reservation land. See
Act of July 16, 1894, ch. 138, § 3,
second, 28 Stat. at 108. See
also Elk
v. Wilkins,
112 U.S. 94, 102, 5 S.Ct. 41, 45 (1884) (holding
that the Fourteenth Amendment, which makes persons born in the
United States and subject to its jurisdiction citizens of the
United States and requires that representatives be apportioned among the
states based on population “excluding
Indians not taxed,”
did not make an Indian a citizen of the United
States).
The District argues that, in construing
the phrase “all children of the State,” the court must consider how the
phrase has been applied in the past and that, until relatively recently,
on-reservation Native Americans were not provided with any type of free,
public education from the State. The simple answer to the
District's argument is that, however the State may have interpreted and
applied its constitution in the past, it now recognizes some duty under
the Enabling Act and the constitution to educate on-reservation Indian
children. See
Memorandum Setting Forth Utah State Board of Education's Position as Amicus
Curiae on Education on the Navajo Reservation Within *1558
Utah (dkt. no. 109), at 19-20. In any event, prior practice
is not conclusive. See,
e.g., Harper v.
Virginia Bd. of Elections,
383 U.S. 663, 669, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966) ; Brown
v. Board of Educ.,
347 U.S. 483, 489-93, 74 S.Ct. 686, 688-91, 98 L.Ed. 873 (1954). Constitutions
are necessarily framed in generalities. See,
e.g., Martin v.
Hunter's Lessee, 14
U.S. (1 Wheat.) 304, 326, 4 L.Ed. 97 (1816). They must be
flexible enough to deal with new conditions and changing mores.
[A]s
changes come in social and political life [the Constitution] embraces
in its grasp all new conditions which are within the
scope of the powers in terms conferred. In
other words, while the powers granted do not change, they
apply from generation to generation to all things to which
they are in their nature applicable.
South
Carolina v. United State |