Santa Clara Pueblo v. Martinez

Mr. Justice White,

dissenting.

The declared purpose of the Indian Civil Rights Act of 1968 (ICRA or Act), 25 U. S. C. §§ 1301-1341 , is “to insure that the American Indian is afforded the broad constitutional rights secured to other Americans.” S. Rep. No. 841, 90th *73 Cong., 1st Sess., 6 (1967) (hereinafter Senate Report). The Court today, by denying a federal forum to Indians who allege that their rights under the ICRA have been denied by their tribes, substantially undermines the goal of the ICRA and in particular frustrates Title I’s 1 purpose of “protect[ing] individual Indians from arbitrary and unjust actions of tribal governments.” Ibid. Because I believe that implicit within Title I’s declaration of constitutional rights is the authorization for an individual Indian to bring a civil action in federal court against tribal officials 2 for declaratory and injunctive relief to enforce those provisions, I dissent.

Under 28 U. S. C. § 1343 (4), federal district courts have jurisdiction over “any civil action authorized by law to be commenced by any person ... [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.” Because the ICRA is unquestionably a federal Act “providing for the protection of civil rights,” the necessary inquiry is whether the Act authorizes the commencement of a civil action for such relief.

The Court noted in Bell v. Hood, 327 U. S. 678, 684 (1946) (footnote omitted), that “where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” The fact that a statute is merely declarative and does not expressly provide for a cause of action to enforce its terms “does not, of course, prevent a federal court from fashioning an effective equitable remedy,” *74 Jones v. Alfred H. Mayer Co., 392 U. S. 409 , 414 n. 13 (1968), for “[t]he existence of a statutory right implies the existence of all necessary and appropriate remedies.” Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 239 (1969). W.e have previously identified the factors that are relevant in determining whether a private remedy is implicit in a statute not expressly providing one: whether the plaintiff is one of the class for whose especial benefit the statute was enacted; whether there is any indication of legislative intent either to create a remedy of to deny one; whether such a remedy is consistent with the .underlying purposes of the statute; and whether the cause of action is one traditionally relegated to state law. Cort v. Ash, 422 U. S. 66, 78 (1975). Application of these factors in the present • context indicates that a private cause of action under Title I of the ICRA should be inferred.

As the majority readily concedes, “respondents, American Indians living on the Santa Clara reservation, are among the class for whose especial benefit this legislation was enacted.” Ante, at 61. In spite of this recognition of the congressional intent to provide these particular respondents with the guarantee of equal protection of .the laws, the Court denies them access to the federal courts to enforce this right because it concludes that Congress intended habeas corpus to. be the exclusive remedy under Title I. My reading of the statute and the legislative history convinces me that Congress did not intend to deny a private cause of action to enforce the rights granted under § 1302.

The ICRA itself gives no' indication that the constitutional rights it extends to American Indians are to be enforced only by means of federal habeas, corpus actions. On the contrary, since several of the specified rights' are most frequently invoked in noncustodial situations, 3 the natural assumption is *75 that some remedy other than habeas corpus must be contemplated. This assumption is not dispelled by the fact that'the Congress chose to enumerate specifically the rights granted under § 1302, rather than to state broadly, as was originally proposed, that “any Indian tribe in exercising its powers of local self-government shall be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the United States Constitution.” S. 961, 89th Cong., 1st Sess. (1965). The legislative history reflects that the decision “to indicate in more specific terms the constitutional protections the American Indian possesses in relation to his tribe,” was made in recognition of the “peculiarities of the Indian’s economic and social condition, his customs, his beliefs, and his attitudes . . . .” Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, Constitutional Rights of the American Indian: Summary Report of Hearings and Investigations pursuant to S. Res. 194, 89th Cong., 2d Sess., 25, 9 (Comm. Print 1966) (hereinafter Summary Report). While I believe that the uniqueness of the Indian culture must be taken into consideration in applying the constitutional rights granted in § 1302, I do not think that it requires insulation of official tribal actions from federal-court scrutiny. Nor do I find any indication that Congress so intended.

The inferences that the majority draws from various changes Congress made in the originally proposed legislation are to my mind unsupported, by the legislative history. The first change the Court points to is the substitution of a habeas corpus provision for S. 962’s provision of de novo federal-court review of tribal criminal proceedings. See ante, at 67. This change, restricted in its concern to the criminal context, is of limited relevance to the question whether Congress intended a private cause of action to enforce rights arising in a civil context. Moreover, the reasons this change was made are not inconsistent with the recognition of such a cause of action. *76 The Summary Report explains that the change in S. 962 was made only because of displeasure with the degree of intrusion permitted by the original provision:

“No one appearing before the subcommittee or submitting testimony for the subcommittee’s consideration opposed the provision of some type of appeal from the decisions of tribal courts. Criticism of S. 962, however, was directed at the bill’s use of a trial de novo in a U. S. district court as the appropriate means of securing appellate review. . . .

“There was considerable support for the suggestion that the district court, instead of reviewing tribal court decisions on a de novo basis, be authorized only to decide whether the accused was deprived of a constitutional right. If no deprivation were found, the tribal court decision would stand. If, on the other hand, the district court determined that an accused had suffered a denial of his rights at the hands of the tribal court, the case would be remanded with instructions for dismissal or retrial, as the district court might decide.” Summary Report 12-13 (footnote omitted).

The degree of intrusion permitted by a private cause of action to enforce the civil provisions of § 1302 would be no greater than that permitted in a habeas corpus proceeding. The federal district court’s duty would be limited to determining whether the challenged tribal action violated one of the enumerated rights. If found to be in violation, the action would be invalidated; if not, it would be allowed to stand. In no event would the court be authorized, as in a de novo review proceeding, to substitute its judgment concerning the wisdom of the action taken for that of the tribal authorities.

Nor am I persuaded that Congress, by rejecting various proposals for administrative review of alleged violations of Indian *77 rights, indicated its rejection of federal judicial review of such violations. As the majority notes, the original version of the Act provided for investigation by the Attorney General of “any written complaint filed with him by any Indian . . . alleging that such Indian has been deprived of a right conferred upon citizens of the United States by the laws and Constitution of the United States.” S. 963, 89th Cong., 1st Sess. (1965). The bill would have authorized the Attorney General to bring whatever action he deemed appropriate to vindicate such right. Although it is true that this provision was eliminated from the final version of the ICRA, the inference the majority seeks to draw from this fact is unwarranted.

It should first be noted that the focus of S. 963 was in large part aimed at nontribal deprivations of Indian rights. In explaining the need for the bill, the Subcommittee stated that it had received complaints of deprivations of Indians' constitutional rights in the following contexts, only two of which concern tribal actions: “[I]Ilegal detention of reservation Indians by State and tribal officials; arbitrary decisionmaking by the Bureau of Indian Affairs; denial of various State welfare services to Indians living off the reservations; discrimination by government officials in health services; mistreatment and brutality against Indians by State and tribal law enforcement officers; and job discrimination by Federal and State agencies and private businesses.” Hearings on S. 961-968 and S. J. Res. 40 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 8 (1965) (hereinafter 1965 Hearings). See also id., at 86 (testimony of Arthur Lazarus, Jr., General Counsel for the Association on American Indian Affairs, Inc.: “It is my understanding . . . that the complaints to be filed with the Attorney General are generally to be off-reservation violations of rights along the lines of the provisions in the Civil Rights Act”). Given this difference in focus, the elimination of this proposal has little relevance to the issue before us.

*78 Furthermore, the reasons for the proposal’s deletion are not as clear as the majority seems to indicate. While two witnesses did express their fears that the proposal would disrupt tribal governments, many others expressed the view that the proposals gave the Attorney General no more authority than he already possessed. Id., at 92, 104, 227, 319. The Acting Secretary of the Interior was among those who thought that this additional authorization was not needed by the Attorney General because the Department of the Interior already routinely referred complaints of Indian rights violations to him for the commencement of appropriate litigation. Id., at 319.

The failure of Congress to adopt the Department of the Interior’s substitute provision provides even less support for the view that Congress opposed a private cause of action. This proposal would have allowed the Secretary of the Interior i to review “[a]ny action, other than a criminal action, taken by an Indian tribal government which deprives any American Indian of a right or freedom established and protected by this Act . . .” and to take “such corrective action” as he deemed necessary. Id., at 318. It was proposed in tandem with- a provision that would have allowed an Indian to appeal from a criminal conviction in a tribal court to the Secretary, who would then have been authorized to affirm, modify, or reverse the tribal court’s decision. Most of the discussion about this joint proposal focused on the review of criminal proceedings, and several witnesses expressed objection to it because it improperly “mixed” “the judicial process . . . with the executive process.” Id., at 96. See also id., at 294. Senator Ervin himself stated that he had “difficulty reconciling [his] ideas of the nature of the judicial process and the notion of taking an appeal in what is supposed to be a judicial proceeding to the executive branch of the Government.” Id., at 225. While the discussion of the civil part of the proposal was limited, it may be assumed that Congress was equally unreceptive to the *79 idea of the Executive Branch’s taking “corrective actions” with regard to noncriminal actions of tribal governments.

In sum, then, I find no positive indication in the legislative history that Congress opposed a private cause of action to enforce the rights extended to Indians under § 1302. 4 The absence of any express approval of such a cause of action, of course, does not prohibit its inference, for, as we stated in Cort : “[I]n situations in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such cause of action would be controlling.” 422 U. S., at 82 (footnote omitted).

The most important consideration, of course, is whether a private cause of action would be consistent with the underly *80 ing purposes of the Act. As noted at the outset, the Senate Report states that the purpose of the ICRA “is to insure that the American Indian is afforded the broad constitutional rights secured to other Americans.” Senate Report 6. Not only is a private cause of action consistent with that purpose, it is necessary for its achievement. The legislative history indicates that Congress was concerned, not only about the Indian’s lack of substantive rights, but also about the lack of remedies to enforce whatever rights the Indian might have. During its consideration of this legislation, the Senate Subcommittee pointed out that “[t]hough protected against abridgment of his rights by State or Federal action, the individual Indian is . . . without redress against his tribal authorities.” Summary Report 3. It is clear that the Subcommittee’s concern was not limited to the criminal context, for it explained:

“It is not only in the operation of tribal courts that Indians enjoy something other than full benefit of the Bill of Rights. For example, a Navajo tribal council ordinance prohibiting the use of peyote resulted in an alleged abridgment of religious freedom when applied to members of the Native American Church, an Indian sect which uses the cactus plant in connection with its worship services.

“The opinion of the U. S. Court of Appeals for the 10th Circuit, in dismissing an action of the Native American Church against the Navajo tribal council, is instructive in pointing up the lack of remedies available to the Indian in resolving his differences with tribal officials.” Id., at 3^4 (footnotes omitted). 5

*81 It was “[t]o remedy these various situations and thereby to safeguard the rights of Indian citizens . . .” that the legislation resulting in the IGRA was proposed. Id., at 5.

Several witnesses appearing before the Senate Subcommittee testified concerning deprivations of their rights by tribal authorities and their inability to gain relief. Mr. Frank Takes Gun, President of the Native American Church, for example, stated that “the Indian is without an effective means to enforce whatever constitutional rights he may have in tribal proceedings instituted to deprive him of liberty or property. While I suppose that abstractedly [sic] we might be said to enjoy [certain] rights . . . , the blunt fact is that unless the tribal court elects to confer that right upon us we have no way of securing it.” 1965 Hearings 164. Miss Emily Schuler, who accompanied a former Governor of the Isleta Pueblo to the hearings, echoed these concerns. She complained that “[t]he people get governors and sometimes they get power hungry and then the people have no rights at all,” to which Senator Ervin responded: “ Tower hungry’ is a pretty good shorthand statement to show why the people of the United States drew up a Constitution. They wanted to compel their rulers to *82 stay within the bounds of that Constitution and not let that hunger for power carry them outside it.” Id., at 264.

Given Congress’ concern about the deprivations of Indian rights by tribal authorities, I cannot believe, as does the majority, that it desired the enforcement of these rights to be left up to the very tribal authorities alleged to have violated them. In the case of the Santa Clara Pueblo, for example, both legislative and judicial powers are vested in the same body, the Pueblo Council. See App. 3-5. To suggest that this tribal body is the “appropriate” forum for the adjudication of alleged violations of the ICRA is to ignore both reality and Congress’ desire to provide a means of redress to Indians aggrieved by their tribal leaders. 6

Although the Senate Report’s statement of the purpose of the ICRA refers only to the granting of constitutional rights to the Indians, I agree with the majority that the legislative history demonstrates that Congress was also concerned with furthering Indian self-government. I do not agree, however, that this concern on the part of Congress precludes our recognition of a federal cause of action to enforce the terms of the Act. The major intrusion upon the tribe’s right to govern itself occurred when Congress enacted the ICRA and man *83 dated that the tribe “in exercising powers of self-government” observe the rights enumerated in § 1302. The extension of constitutional rights to individual citizens is intended to intrude upon the authority of government. And once it has been decided that an individual does possess certain rights vis-á-vis his government, it necessarily follows that he has some way to enforce those rights. Although creating a federal cause of action may “constitute] an interference with tribal autonomy and self-government beyond that created by the change in substantive law itself,” ante, at 59, in my mind it is a further step that must be taken; otherwise, the change in the law may be meaningless.

The final consideration suggested in Cort is the appropriateness of a federal forum to vindicate the right in question. As even the majority acknowledges, “we have frequently recognized the propriety of inferring a federal cause of action for the enforcement of civil rights . . . .” Ante, at 61. For the reasons set out above, I would make no exception here.

Because I believe that respondents stated a cause of action over which the federal courts have jurisdiction, I would proceed to the merits of their claim. Accordingly, I dissent from the opinion of the Court.

25 U. S. C. §§ 1301-1303 .

Because the ICRA is silent on the question, I agree with the Court that the Act does not constitute a waiver of the Pueblo’s sovereign immunity. The relief respondents seek, however, is available against petitioner Lucario Padilla, the Governor of the Pueblo. Under the Santa Clara Constitution, the Governor is charged with the duty of enforcing the Pueblo’s laws. App. 5.

For example, habeas corpus relief is unlikely to be available to redress violations of freedom of speech, freedom of the press, free exercise of religion, or just compensation for the taking of property.

References in the legislative history to the role of Title IPs model code in effectuating the purposes of Title I do not indicate that Congress rejected the possibility of a federal cause of action under § 1302. The wording of § 1311, which directs the Secretary of the Interior to recommend a model code, demonstrates that in enacting Title II Congress was primarily concerned with criminal proceedings. Thus it requires the code to include

“provisions which will (1) assure that any individual being tried for an offense by a court of Indian offenses shall have the same rights, privileges, and immunities under the United States Constitution as would be guaranteed any citizen of the United States being tried in a Federal court for any similar offense, (2) assure that any individual being tried for an offense by a court of Indian offenses will be advised and made aware of his rights under the United States Constitution, and under any tribal constitution applicable to such individual . . . .”

The remaining required provisions concern the qualifications for office of judges of courts of Indian offenses and educational classes for the training of such judges. While the enactment of Title II shows Congress’ desire to implement the provisions of § 1302 concerning rights of criminal defendants and to upgrade the quality of tribal judicial proceedings, it gives no indication that Congress decided to deny a federal cause of action to review tribal actions arising in a noncriminal context.

The opinion to which the Subcommittee was referring was Native American Church v. Navajo Tribal Council, 272 F. 2d 131 (CA10 1959), in which the court dismissed for lack of federal jurisdiction an action challenging a Navajo tribal ordinance making it a criminal offense “to introduce into the Navajo country, sell, use or have in possession within the Navajo country, the bean known as peyote . . . .” Id., at 132. It was *81 contended that the ordinance violated plaintiffs’ right to the free exercise of religion. Because the court concluded that the First Amendment was not applicable to the tribe, it held 'that the federal courts lacked jurisdiction, “even though [the tribal laws or regulations] may have an impact to some extent on forms of religious worship.” Id., at 135.

The Senate Report also made note of this decision in what the majority terms a “rambling passage.” Ante, at 69 n. 27. In this passage the Committee reviewed various federal decisions relating to the question “whether a tribal Indian can successfully challenge on constitutional grounds specific acts or practices of the Indian tribe.” Senate Report 9. With only one exception, these decisions held that federal courts lacked jurisdiction to review alleged constitutional violations by tribal officials because the provisions of the Bill of Rights were not binding on the tribes. This section of the Senate Report, which is included under the heading “Need for Legislation,” indicates Congress’ concern over the Indian’s lack of remedies for tribal constitutional violations.

Testimony before the Subcommittee indicated that the mere provision of constitutional rights to the tribes did not necessarily guarantee that those rights would be observed. Mr. Lawrence Jaramillo, a former Governor of the Meta Pueblo, testified that, despite the tribal constitution’s guarantee of freedom of religion, the present tribal Governor had attempted to “alter certain religious procedures of the Catholic priest who resides on the reservation.” 1965 Hearings 261, 264. Mr. Jaramillo stated that the Governor “has been making his own laws and he has been making his own decisions and he has been making his own court rulings,” and he implored the Subcommittee:

“Honorable Senator Ervin, we ask you to see if we can have any protection on these constitutional rights. We do not want to give jurisdiction to the State. We want to keep it in Federal jurisdiction. But we are asking this. We know if we are not given justice that we would like to appeal a case to the Federal court.” Id., at 264.