T-2283-86
Violet Johnson, Norman George, Arnold James
and Wilfred Andrews, each on their own behalf
and on behalf of all the members of the Muchalaht
Indian Band, and the Muchalaht Indian Band and
Benny Jack, Tony Dick, August Johnson, Nick
Howard and Norman George, each on their own
behalf and on behalf of all of the members of the
Mowachaht Indian Band, and the Mowachaht
Indian Band (Plaintiffs)
v.
Her Majesty the Queen, C.I.P. Inc. and Petro
Canada Inc. (Defendants)
INDEXED AS: JOHNSON V. CANADA (T.D.)
Trial Division, Reed J.—Vancouver, August 29
and September 7, 1989.
Practice — Parties — Discontinuance — Action for dam
ages resulting from trespass to Indian reserve lands —
Application for leave to discontinue action by named plaintiffs
in both individual and representative capacities — Review of
case law revealing uncertainty as to whether band having
authority to bind all members when suing in own name for
trespass to reserve lands — Question need not be determined
here — Court should not exercise discretion to allow discon
tinuance where purpose to avoid discovery — Possibility of
prejudice to defendants in light of uncertainty in case law.
This was an application by the individual plaintiffs for leave
to discontinue their actions for damages due to trespass to
reserve lands both as individuals and in their representative
capacities, leaving only the two bands as plaintiffs. They hoped
to avoid discovery under Federal Court Rule 465(1)(a) of the
individuals and band members whom they represented. The
defendants have not asserted that all such individuals are
subject to discovery under Rule 465(1)(a), but have filed a
motion for further and better discovery under Rule 465(19).
The defendants objected to the discontinuance on the ground
that it might affect the ability of any judgment to bind all
members of the band.
Held, leave should be denied.
The practice has been to bring such actions as representative
actions as well as in the name of the band itself, since there is
some uncertainty as to when an Indian band can sue and be
sued. An Indian band is not a corporate body, although it does
have certain rights and obligations under the Indian Act. The
status of a band under that Act is such as to give it a capacity
to sue and be sued in a manner similar to that of other
unincorporated entities. A review of the case law leads to the
conclusion that the question of the authority of a band to bind
all band members remains unsettled, particularly when the
question is one of trespass to reserve lands. That question need
not, however, be decided in this application. The Court should
not exercise its discretion to allow a discontinuance where the
motive is to avoid discovery, and there is some uncertainty as to
whether a discontinuance would prejudice the defendants. It
may be that the judgment in an action framed in the name of
the bands alone would not bind all band members.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
British Columbia Supreme Court Rules, RR. 5(11),
(12),(13), 27(8).
Canada Labour Code, R.S.C. 1970, c. L-I.
Federal Court Rules, C.R.C., c. 663, RR. 406(3),
465(1)(a),(b),(19).
Indian Act, R.S.C., 1985, c. 1-5, ss. 30, 31.
Ontario Supreme and District Courts Rules of Civil
Procedure, R. 31.03(8),(9).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Mintuck v. Valley River Band No. 63A, et al., [1976] 4
W.W.R. 543 (Man. Q.B.); affd. (1977), 75 D.L.R. (3d)
589; [1977] 2 W.W.R. 309; 2 C.C.L.T. 1 (Man. C.A.);
International Brotherhood of Teamsters v. Therien,
[1960] S.C.R. 265; 22 D.L.R. (2d) I; Mathias et al v.
Findlay, [1978] 4 W.W.R. 653 (B.C.S.C.); Public Ser
vice Alliance of Canada v. Francis et al., [1982] 2 S.C.R.
72; 139 D.L.R. (3d) 9; (1982), 44 N.R. 136; 82 C.L.L.C.
14,208; [1982] 4 C.N.L.R. 94; R. v. Peter Ballantyne
Indian Band (1985), 45 Sask. R. 33 (Q.B.); Martin v.
B.C. (Govt.) (1986), 3 B.C.L.R. (2d) 60; [1986] 3
C.N.L.R. 84 (S.C.); Kucey v. Peter Ballantyne Band
Council, [1987] 3 W.W.R. 438; 16 C.P.C. (2d) 59;
(1987), 57 Sask. R. 29 (C.A.); Oregon Jack Creek Indian
Band Chief v. C.N.R. (1989), 56 D.L.R. (4th) 404; 34
B.C.L.R. (2d) 344 (C.A.).
REFERRED TO:
Markt & Co., LW. v. Knight Steamship Company; Sale &
Frazar v. Knight Steamship Company, [1910] 2 K.B.
1021 (C.A.); Regina v. Cochrane, [1977] 3 W.W.R. 660
(Man. Co. Ct.).
COUNSEL:
J. Woodward for plaintiffs.
J. Raymond Pollard for defendant, Her
Majesty the Queen.
J. W. Marquardt for defendants C.I.P. Inc.
and Petro Canada Inc.
SOLICITORS:
J. Woodward, Victoria, for plaintiffs.
Richards, Buell & Co., Vancouver, for
defendant, Her Majesty the Queen.
Campney & Murphy, Vancouver, for defen
dants C.I.P. Inc. and Petro Canada Inc.
The following are the reasons for order ren
dered in English by
REED J.: The plaintiffs, Violet Johnson,
Norman George, Arnold James, Wilfred Andrews,
Benny Jack, Tony Dick, August Johnson and Nick
Howard bring a motion pursuant to Rule 406(3)
[Federal Court Rules, C.R.C., c. 663] for leave to
discontinue their actions against the defendants.
Rule 406(3) provides:
Rule 406... .
(3) ... a plaintiff may not discontinue an action without
leave of the Court; but the Court may, before or after any
hearing, upon such terms as to costs, as to bringing any
subsequent action, or otherwise, as may seem just, order the
action to be discontinued, or any part of the alleged cause of
complaint to be struck out.
The individual plaintiffs seek to discontinue their
actions as named plaintiffs and to discontinue their
representative actions on behalf of all other mem
bers of the Muchalaht and Mowachaht Indian
bands. The Muchalaht Indian Band and the
Mowachaht Indian Band would thereby become
the only plaintiffs in this action.
The named plaintiffs seek to discontinue their
action as individuals and as representatives of the
other band members to avoid the possibility that
discovery might be sought against them. The
named plaintiffs are also concerned that discovery
might be sought against some of the band mem
bers which they represent on the ground that such
individuals are parties to this action. Rule
465(1)(a),(6) provides:
Rule 465. (1) ... a party may be examined for discovery ...
(a) if the party is an individual, by questioning the party
himself,
(b) if the party is a corporation or any body or group of
persons empowered by law to sue or to be sued, either in its
own name or in the name of any officer or other person, by
questioning any member or officer of such corporation, body
or group,
While the Federal Court Rules do not expressly
deal with discovery rights in representative actions,
it may very well be that the individuals "represent-
ed" by the named plaintiffs are subject to discov
ery as parties. Or the so-called gap rule (Rule 5)
might result in the application of the provisions of
the British Columbia Supreme Court Rules: see
Rules 5(11), (12) and (13) and 27(8)' of the
British Columbia Rules. Alternatively, the dicta in
Markt & Co., Ld. v. Knight Steamship Company;
Sale & Frazar v. Knight Steamship Company,
[1910] 2 K.B. 1021 (C.A.), at page 1039, which
was cited to me by counsel, may be relevant to the
situation. In any event that question does not have
to be decided for the purpose of disposing of this
application.
The defendants have not sought to obtain dis
covery against the individual plaintiffs or from any
of the other band members on the ground that all
such individuals are parties to this action. The
defendants have not asserted that all such
individuals are subject to discovery under Rule
465(1)(a). Nor have the defendants applied under
the gap rule for the adoption of provisions similar
to those which pertain in the British Columbia
Supreme Court. The defendant C.I.P. Inc. has
filed a motion for further and better discovery
pursuant to Rule 465(19) of the Federal Court
Rules. Rule 465(19) provides:
Rule 465... .
' 27(8) Subject to subrule (1l), a person for whose immedi
ate benefit an action is brought or defended may be examined
for discovery.
For comparison purposes reference can also be made to the
Ontario Supreme And District Courts Rules of Civil Proce
dure, Rule 31.03 (8) and (9), which contain express provisions
respecting discovery in representative actions.
(19) The Court may, for special reason in an exceptional
case, in its discretion, order a further examination for discovery
after a party or assignor has been examined for discovery under
this Rule.
In this regard the defendant C.I.P. Inc. seeks to
examine some band members who are described as
having been personally involved in the events sur
rounding the surrender of the reserve land to
which this litigation relates. This motion, pursuant
to Rule 465(19), was heard and decided contem
poraneously with the present motion.
The defendants do not object to the plaintiffs'
request for a discontinuance because of any con
cern that such discontinuance would affect the
scope of their discovery rights. They object, how
ever, because they are concerned that any such
discontinuance might affect the ability of any
judgment which is rendered to bind all members of
the band(s).
The statement of claim alleges that certain
reserve lands belonging to the band(s) were not
legally surrendered and that consequently the
defendants are liable for damages as a result of
trespass to those lands. There is no doubt that the
practice in actions such as the present has been to
bring them in the form of representative actions as
well as in the name of the band itself. There is in
the jurisprudence, as it presently exists, some
uncertainty as to when and whether an Indian
band can sue or be sued. There is uncertainty as to
the effectiveness of any action brought in the name
of, or against a band to bind all members of that
band. This is especially the case when the action
involves trespass to reserve lands.
An Indian band is not a corporate body
although it does have certain rights and obligations
by virtue of the provisions of the Indian Act,
R.S.C., 1985, c. I-5. It seems clear that the status
of an Indian Band under that Act (or at least the
status of the Indian band council under the Act) is
such as to give that entity a certain capacity to sue
and be sued in a manner similar to that in which
other unincorporated entities have been held to
have the capacity to sue and be sued. The extent to
which an action brought or defended in the name
of a band alone binds all members of that band,
however, particularly when the question in issue is
one of trespass against reserve lands is not clear. A
review of the jurisprudence is necessary.
In Mintuck v. Valley River Band No. 63A, et
al., [1976] 4 W.W.R. 543 (Man. Q.B.), Solomon
J. heard an action in tort brought against an
Indian band and four personal defendants. The
action was successful and damages were awarded
against those parties. The four individuals were the
chief and council of the Indian band. These
individuals had passed a council resolution pur
porting to cancel a lease the plaintiff held on
certain reserve lands, a lease which a former band
council had approved. The lease itself was with the
Crown as is required by the Indian Act. The
actions of passing the council resolution purported
ly cancelling the lease rights and other actions
taken by the chief and the council members were
held to constitute interference with the contractual
rights of the plaintiff. Their actions in this regard
were also held to have constituted encouragement
to other band members to harrass the plaintiff in
his use of the leased lands. After the case had
proceeded through discovery and trial, Solomon J.
had to determine whether or not the band was a
suable entity under the Manitoba Queen's Bench
Rules or whether an order should have been
obtained from the Court requiring the defendants
to defend in a representative capacity on behalf of
all members of the band. An order requiring a
defendant to defend in a representative capacity
could have been obtained under Rule 58 of the
Manitoba Queen's Bench Rules. Solomon J. was
not convinced that the Indian band in question was
a suable entity under the Manitoba rules but he
cited Rule 156 which allows pleadings to be
amended at any time. He issued a nunc pro tunc
order requiring the four named defendants to be
defendants in a representative capacity. They were
to be considered as having defended the action,
both on their own behalf and on behalf of all other
band members, except the plaintiff. On appeal,
(1977), 75 D.L.R. (3d) 589; [1977] 2 W.W.R.
309; 2 C.C.L.T. 1 (Man. C.A.), Solomon J.'s
decision was upheld although Guy J.A. by way of
dicta expressed the view that an Indian band
might very well be a suable entity without the
necessity for a representative order under Rule 58
being made. He cited the Supreme Court decision
in International Brotherhood of Teamsters v.
Therien, [1960] S.C.R. 265; 22 D.L.R. (2d) 1 at
pages 277-278 S.C.R. That case dealt with the
liability of a labour union in a tort claim. Part of
the Therien decision [at page 278 S.C.R.] quoted
by Guy J.A. reads as follows:
The legislature, by giving the right [to the union] to act as
agent for others and to contract on their behalf, has given them
two of the essential qualities of a corporation in respect of
liability for tort since a corporation can only act by its agents.
... In the absence of anything to show a contrary intention—
and there is nothing here—the legislature must be taken to
have intended that the creature of the statute shall have the
same duties and that its funds shall be subject to the same
liabilities as the general law would impose on a private
individual doing the same thing. [Underlining added.]
In Mathias et al v. Findlay, [1978] 4 W.W.R.
653 (B.C.S.C.), Berger J. granted an interlocutory
injunction requiring a member of an Indian band
to cease trespassing on lands held in common by
the band. The application for an injunction was
sought by the chief and band council members
suing in a representative capacity on behalf of all
members of the band. Berger J., at page 655,
wrote:
Thus the band has the right to bring an action. The appropri
ate way of proceeding is by a representative action brought by
members of the band council. Lindley v. Derrickson, B.C.,
Anderson J., 30th March 1976 (not yet reported). See also
Mintuck v. Valley River Band No. 63A .. .
In Public Service Alliance of Canada v. Francis
et al., [1982] 2 S.C.R. 72; 139 D.L.R. (3d) 9;
(1982), 44 N.R. 136; 82 C.L.L.C. 14,208; [1982]
4 C.N.L.R. 94, it was held that an Indian band
council was an employer under the Canada
Labour Code [R.S.C. 1970, c. L-1]. The Court
stated, at page 78 S.C.R.:
The Band Council is a creature of the Indian Act. It is given
power to enact by-laws for the enforcement of which it is
necessary to employ staff. In fact, the Council does engage
employees to do work for it and it pays them. In view of these
circumstances, for the purposes of the Code, it is my opinion
that the Council could properly be considered to be an employ
er within the meaning of that Act. 1 am fortified in that
conclusion by the provision contained in s. 27(7) of the Inter
pretation Act, R.S.C. 1970, c. 1-23, that words in the singular
include the plural. The word "person" in the Code therefore
includes "persons". The Council is a designated body of persons
which is given a specific role under the provisions of the Indian
Act.
In R. v. Peter Ballantyne Indian Band
(1985), 45 Sask. R. 33 (Q.B.) an Indian band was
held liable for a traffic violation as "owner" of a
motor vehicle. The Court held that the Indian Act
makes it clear that an Indian "band" is a statutory
entity consisting of specifically defined "persons"
with wide powers of ownership and regulation over
its members. Thus it was conceded that the "Peter
Ballantyne Band" was clearly an entity that could
own property including motor vehicles. The Court
held that since the band had applied as "owner"
for motor vehicle registration and the consequent
authorization to operate the vehicle on the road it
could not, on conviction for a traffic violation, hide
behind the argument that it was not a suable
person.
In Martin v. B.C. (Govt.) (1986), 3 B.C.L.R.
(2d) 60; [ 1986] 3 C.N.L.R. 84 (S.C.), Mr. Justice
McEachern refused an amendment to pleadings
which would have had one named plaintiff suing
on behalf of two Indian bands. The litigation in
question was brought by the plaintiffs to establish
aboriginal or other rights over Meares Island. At
pages 65-66 B.C.L.R., Mr. Justice McEachern
stated:
It is an open question whether Indian bands are juridical
persons capable of suing and being sued even though bands are
recognized by the Indian Act, R.S.C. 1970, c. 1-6: Calder v.
A.G.B.C., supra; Mintuck v. Valley River Band No. 63A,
[1977] 2 W.W.R. 309, 2 C.C.L.T. 1, 75 D.L.R. (3d) 589
(Man. C.A.); Mathias v. Findlay, [1978] 4 W.W.R. 653
(B.C.S.C.); Cache Creek Motors Ltd. v. Porter (1979), 14
B.C.L.R. 13 (Co. Ct.); and King v. Gull Bay Indian Band
(1983), 38 C.P.C. 1 (Ont. Dist. Ct.).
Mr. Plant's problem with all this is that these amendments, if
made, delete the individual members of the bands, tribes or
nations from the litigation and, if the action should fail on any
ground, it may have to be litigated again in order to settle the
rights of the individual members. In my view, all necessary
steps must be taken to ensure the members will be bound by the
result of this litigation.
As I said to counsel during the hearing, we are in a problem-
solving exercise on these applications and I have the view that
the best that can be done is to cover all bases by ensuring that
all proper interests are represented and to leave it to the trial
judge to decide on the evidence whether the rights asserted in
the action, if any, belong to the bands or to some other entities
or to the members. I therefore suggest, subject to the agree
ment of counsel and to the consent of the plaintiffs' representa
tives, a style of cause as follows:
MOSES MARTIN, suing on his own behalf and on behalf of
the CLAYOQUOT BAND OF INDIANS and on behalf of all
other members of the said band, its tribes and nations.
There will have to be a similar description for the Ahousaht
band when a representative is nominated and a similar descrip
tion of such plaintiffs. Then, as I have said, the trial judge will
have to specify to whom the benefits of any judgment will
accrue.
In Kucey v. Peter Ballantyne Band Council,
[1987] 3 W.W.R. 438; 16 C.P.C. (2d) 59;
(1987), 57 Sask. R. 29 (C.A.), it was held that
since band councils are given significant rights to
contract and to incur legal obligations, they may
sue and be sued in their own name. The Court held
that such entities have an existence in law which is
beyond that of their individual members. The
report of that case does not indicate the nature of
the suit against the band council.
I have not made any reference to Regina v.
Cochrane, [1977] 3 W.W.R. 660 (Man. Co. Ct.),
which was cited to me, because I do not think it
advances the analysis of the issue in any way.
Lastly, the issue was raised again in Oregon
Jack Creek Indian Band Chief v. C.N.R.
(1989), 56 D.L.R. (4th) 404; 34 B.C.L.R. (2d)
344 (C.A.). In that case, the plaintiffs allege that
the defendants are liable for trespasses committed
on Indian lands and against Indian fisheries. The
plaintiffs, who are thirty-six Indian chiefs, com
menced the action by suing on their own behalf
and on behalf of all the members of their respec
tive bands. The plaintiffs then sought to broaden
the style of cause so as to include not only a claim
on behalf of all of the members of each band but
also a claim on behalf of all the members of three
nations as well. The Chambers Judge held that the
proper plaintiff under the Indian Act was the
band and that the proper plaintiff in the case of an
aboriginal claim was the nation. He held that such
claims were derivative in nature and could only be
advanced under the authority of the band or
nation respectively. There was no evidence that the
plaintiffs had the authority of either the band or
the nation. The Chambers Judge would appear to
have held that the plaintiffs' action could not
succeed unless they could establish that the nation
on whose behalf they purported to sue still existed.
The Court of Appeal overruled the Chambers
Judge and allowed both claims to be proceeded
with in the representative fashion in which the
plaintiffs sought to bring them. The Court, stated
at pages 348-349 B.C.L.R.:
Central to this question is whether the rights, which it is said
the C.N.R. will violate, are vested in the bands and in the
nations, or whether they are held for the benefit of the mem
bers of the bands and of the nations. The chambers judge held,
and the defendants submit, that if rights exist they must be
vested in the bands and in the nations, and can only be enforced
in a derivative action with the authority of the legal entity
which holds the rights.
It is necessary to consider the difference between a class
action which is derivative in nature, and a representative action
by persons having the same interest in the subject of the
litigation. Derivative type class actions are those in which a
wrong is done to the entity to which the members belong. Such
an action may be brought by a member or members, but it is
brought on behalf of the entity. A representative action can be
brought by persons asserting a common right, and even where
persons may have been wronged in their individual capacity. A
detailed discussion of the concept of the representative action is
found in Naken v. Gen. Motors of Can. Ltd., [1983] 1 S.C.R.
72, 32 C.P.C. 138, 144 D.L.R. (3d) 385, 46 N.R. 139 [Ont.],
commencing at p. 78.
It is common ground that the rights being asserted are commu
nal in nature. In Joe v. Findlay, 26 B.C.L.R. 376, [1981] 3
W.W.R. 60, 122 D.L.R. (3d) 377 at 379, this court held that
the statutory right of use and benefit of reserve lands was a
collective right in common conferred upon and accruing to the
band members as a body and not to the band members
individually.
In Twinn v. Can., [1987] 2 F.C. 450, 6 F.T.R. (T.D.), the
plaintiffs sued on their own behalf and on behalf of all other
members of their respective bands. The motion to strike out the
statement of claim on the basis that the plaintiffs were not
entitled to bring the action as a class action was dismissed.
Strayer J. said at p. 462:
Basically, aboriginal rights are communal rights and it is
therefore appropriate that those persons who claim to belong
to the relevant community to which the right adheres should
be joined as plaintiffs in an action to vindicate those rights:
see Attorney General for Ontario v. Bear Island Foundation
et al. (1984), 15 D.L.R. (4th) 321 (Ont. H.C.), at
pages 331-332.
In A.G. Ont. v. Bear Island Foundation; Potts v. A.G. Ont., 49
O.R. (2d) 353, 15 D.L.R. (4th) 321, [1985] 1 C.N.L.R. 1
(H.C.), a defence of aboriginal rights was advanced by three
individual plaintiffs on behalf of themselves and on behalf of all
other members of a tribe, and all other members of a registered
band which constituted a sub-group of the tribe. Steele J.
concluded that the registered band, not being an incorporated
body, was properly represented by its chief and the other
members. The tribe was properly represented by persons alleg
ing themselves to be members thereof.
The Indian Act recognizes the communal nature of the rights
protected by the Act. The band, by definition, is a "body of
Indians ... for whose use and benefit in common, lands ...
have been set apart" (s. 2(1) "band"(a)). Powers conferred
upon a band are exercised with the consent of its members (s.
2(3)). A surrender of lands is void unless assented to by a
majority of the members (s. 39). The right of an Indian or a
band (a body of Indians) to seek a right or remedy in trespass is
preserved by s. 31(3) of the Act. In short, the power rests with
the membership.
It is not necessary in this case to decide in what situations the
band may be regarded as a legal entity for the purpose of
commencing an action. It is sufficent to observe that a repre
sentative action may be brought by the members of the band
council (Mathias v. Findlay, [1978] 4 W.W.R. 653 (S.C.)), or
by a chief of a band for himself, and the majority of his band
(Pap-Wee-In v. Beaudry, [1933] 1 W.W.R. 138 (Sask. K.B.)).
The question in this case is not whether a band, through the
members of its council, can bring an action in trespass, but
whether the chief of a band (a group of Indians) can bring a
representative action on behalf of himself and all other mem
bers of the band to enforce their communal rights. The rights of
members of a band on behalf of themselves, and other members
of the band to bring an action in trespass was upheld in Custer
v. Hudson's Bay Co. Dev. Ltd., [1983] 1 W.W.R. 566 at 569,
141 D.L.R. (3d) 722, [1982] 3 C.N.L.R. 30, [1983] 1
C.N.L.R. 1, 20 Sask. R. 89 (Q.B.) (per Cameron J.A. relying
on s. 31(3) of the Indian Act).
The Pasco decision is presently under appeal to the
Supreme Court of Canada.
In the light of all this counsel for the plaintiffs
now brings an application to have the individuals
named removed as plaintiffs both in so far as they
are suing on their own behalf and in so far as they
are suing in a representative capacity. He does so
for the purpose of avoiding a discovery application
which is not now and never has been made. He
argues that the jurisprudence has clearly left open
the question as to whether or not a band can sue in
its own name, alone, for trespass to reserve lands
and thereby bind all band members. He argues
that this is the point which should be decided in
this application.
I do not agree. While I may agree that the
jurisprudence has left open the question of the
authority of a band (or band council) to bind all
band members (which question has to be deter
mined by reference to the relevant provisions of
the Indian Act, particularly sections 30 and 31,
and by reference to the particular rules of court, in
this case the Federal Court Rules), I do not agree
that that question need be answered for the pur
pose of disposing of this application.
In my view the present situation is simply not a
situation where the Court should exercise its dis
cretion and allow discontinuance of an action by
the plaintiffs. The motive and only motive in seek
ing discontinuance is to seek to avoid discovery.
The Court should not exercise its discretion in
support of that endeavour. For that reason alone, I
would refuse to grant the discontinuance sought in
this case. There is, in addition, given the unsettled
nature of`the jurisprudence, some uncertainty as to
whether a discontinuance would prejudice the
defendants. It is possible that a judgment given
consequent upon an action framed in the name of
the band(s) alone would not bind all band mem
bers. As Mr. Justice McEachern said in the
Martin case, supra, the object at this stage of
proceedings should be to cover all bases. To adopt
a procedure which is rife with uncertainty and
which would increase rather than decrease the
potential for interlocutory litigation is not appro
priate.
It is clear that the plaintiffs' claim, as presently
framed, is not improper because it is brought both
in the name of the band(s) and in the name of the
Chief and council members suing in their own
right and as representatives of the other band
members. At most, the addition of the individual
plaintiffs may be redundant. Whatever the out
come of the Pasco appeal, the present action has
been framed in accordance with a practice that is
both appropriate and acceptable under the present
law. For the reasons given, the plaintiffs' request
to discontinue their individual and representative
actions is denied.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.