Petition — Santa Clara Pueblo v. Martinez

Supreme Court brief1978

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Reasons ror GraNTiInc THE Writ

Tae Santa Ciara Pvesro Is Immune rrom Sorr

ms Feperat Courts Assent Express Concres-

Tuere Is No Provision ror JURISDICTION IN THE

Feperat Court Unper toe Inpiuan Cry. Ricuts

Tue Derermreation or TamaL. MEMBERSHIP OF

THE Santa Ciara Pteszo Is an IxTERNAL Sover-

NaN Ricut or Santa Ciara Pvesio, A&D Nor

Sunne to Conrrot sy THe Fron Covets ..

Coneress Has Acrep rm tas Anza, sur Has

Faul To Express any Intent THat TRIBES NOT

Tae Development or Case Law Unper tHe Act

Tae Equal. Prorecrion Clauss or THe INDIAN

Crvm Rionrs Acr Dogs Nor Incorporate THE

Stranparps or THE Equat Protection CLAavsE or

THE 14TH AMENDMENT AND THE 14TH AMEND-

MENT Stanparps Are Not Appp.icaBLe TO TRIBAL

ii TABLES OF AUTHORITY

Tantz or Cases: Page

Cherokee Cases, 203 U.S. 78, 27 S.Ct.

Intermarriage

29, 51 L.Ed. 96 (18060)/⁰¶ ũ i cccccencce 16

Daly v. United States, 483 F.2d 700 (8th Cir. 1973) . 26, 27

Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971) . 23, 25

Hamilton v. Nakai, 453 F.2d 152 (9th Cir. . 11

Harper v. Virginia Board of Elections, 383 U.S.

86 S.Ct. 1079, 16 L. Ed. 2d 169 (1966) wp 28

Howlett v. The Salish & Kootenai Tri

(“h Cir. 1976) — ere te

Iron Crow v. Oglala Sioux Tribe, 213 F.2d 89 (8th Cir.

c 10

Johnson v. Lower Elwha Tribal Communi

200 (9th Cir. 1973) ee *

Lohnes v. Cloud, 366 F.Supp. 619 (D.N.D. 1973) ...... 25

Loneassion v. Leekity, 334 F.Supp. 370 (D.N.M. 1971) 12

Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 21

eee Kas

Martinez v. Southern Ute Tribe of the Southe

8 rn Ute

Reservation, 249 F. 2d 915 (10th Cir. 1957) ..«.. 13,14

McClanahan v. Arizona State Tax Commissior

US. 164, 98 S.Ct. 1257, 96 L.Bd2a 129 (1973) 1

McCurdy v. Steele, 506 F. 2d 653 (10th Cir. 1974) —e 23

Means v. Wilson, 522 F.2d 833 ‘8th Cir. 1925) bodo 27

Morton v. Mancari, 417 U.S. 2. 29

Morey v. Doud, 354 U.S. 457, 77 L.Ed.2d

. — „eee 28

—— —

Tables of Authority Continued iii

Page

Native American Church v. Navajo Tribal Council, 272

F.2d 131 (10th Cir, 19599)9)9)99„%„?₆ 11, 25

Roff v. Burney, 168 U.S. 218, 18 S. Ct. 60, 42 L.Ed. 442

(1897/0 eo 11, 13

Slattery v. Arapahoe Tribal Council, 453, F.2d 278

(10th Cir, 1971177 23

Talton v. Mayes, 163, U.S. 376, 16 S.Ct. 986, 41 L.Ed.

196 (1896) ..... eee des sees ese ede see 25

Thebo v. Choctaw Tribe of Indians, 66 F. 372 (8th Cir.

1895¶9-..-.-.. ee „„ 10

Twin Cities Chippewa Tribal Council v. The Minne-

sota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967) 10

United States v. Ginsburg, 243 U.S. 472, 37 S.Ct. 422,

Dede 16

United States v. Kagama, 118 U.S. 375, 381-2 (1886). 12

United States v. King, 395 U.S. 1, 89 S.Ct. 1501, 23

L.Ed.2d 52 (1969) õ-⸗ůũͤů „6 11

United States v. United States Fidelity Co., 309 U.S.

506, 60 S.Ct. 653, 84 L. Ed. 894 (1940) .........- 10, 11

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164,

92 S.Ct. 1400, 31 L.Ed.2d 768 (1972) .......----- 28

White Eagle v. One Feather, 478 F.2d 1311 (8th Cir.

D oùhõũ 4 26

Worcester v. Georgia, 31 U.S. (6 Pet.), 515, 8 L.Ed.

483 (1832) ...... ccc ceeececeeceeeeeccnneeeces 24, 25

Wounded Head v. Tribal Council of the Oglala Sioux

Tribe, 507 F.2d 1079 (8th Cir. 19750) 27

Yellow Bird v. Oglala Sioux Tribe of South Dakota,

380 F.Supp. 438 (D.S.D. 197))))))). 27-28

iv Tables of Authority Continued

Page

ConstrruTionaL Provisions:

United States Constitution, Amendment XIV ........ 24

Constitution of the Pueblo of Santa Clara

Mt Eee 4,16

Ill.... 5

„ een, 5

ö 5

Proc // ka hk ok ed'Davn deat 6

Pub. L. 90-284, title II, § 201, Apr. 11, 1968, 82 Stat. 77. 3

Pub. L. 90-284, title II, § 203, Apr. 11, 1968, 82 Stat. 78. 4

STaTurss:

KRW 15

ö.. Cals WiLs 8

SS UBC. 6% ccccccecsccece 15

De consul iceic. 17

15 U.S.C. § 1301-3 (1968) (Civil Rights Act of 1968) . 1,2,

3, 18

OTR GUE oro esc cadansacc un 3

Inn 3, 17, 18, 20, 21, 22

SUMo 7, 10, 12, 20, 22, 27

Lr 3, 18, 20, 22

. OE 2

2B UC. f 110%) . . . 11

r . 11, 12, 13, 21

Tables of Authority Continued *

Page

TEXTBOOKS :

Cohen, Handbook of Federal Indian LW 14, 15

20 South Dakota L.R. 1, 47-48 (175 25

82 Harv. L.Rev. 1343, 1859 (19690 18

Orner AvTHoRITY:

87th Cong., Ist Sess., Part 1 (1961) 18

87th Cong., Ist Sess., Part 2 (1961) 18

87th Cong., 2nd Sess., Part 3 (1962) 18

88th Cong., let Sess., Part 4 (198638)) 18

88th Cong., 2nd Sess., (Committee 1964) 19

89th Cong., Ist Sess., (198680) 19

89th Cong., 2nd Sess., (Committee 1966) ........-- 19

90th Cong., 2nd Sess., (1968))))) 19

diet Cong, Ist Sess., (1969) ñ·0 . 21

— * — ; 7

„

—ͤ— — — — —

Appeals No. 75-1615 is reproduced in the Appendix

1. Does the Indian Civil Rights

§§ 1301-3 .

to determine questions of tribal membership

2. Does the Act waive the sovereign immunity

Indian tribes to suit in federal courts? *

Tur IX DIA Crvm Rieuts Act, 25 U.S. C. §§ 1301-3

(1968) § 1301. Definitions.

For purposes of this subchapter, the term—

(3) “Indian court” means any Indian tribal

court or court of Indian offense. (Pub.L. 90-284,

title II, § 201, Apr. 11, 1968, 82 Stat. 77.)

§ 1302. Constitutional Rights.

No Indian tribe in exercising powers of self-

government shall

(8) deny to any person within its jurisdiction

protection of its laws or deprive any per-

— liberty or property without due process of

Ww;

§ 1303. Habeas Corpus.

be a ble to any person, in a court of the United

r ee oe ee oe ee

* * 0 2 . 8 * ~ * *

States, to test the

State the legality of his detention by order

5 90-284, title II, § 203, Apr. 11, 1968, 82

THe Coxsrrrurtox or THE Santa CLARA PUEBLO.

Article II—Membership

Section 1. Conditions of membership

2 the Santa Clara pueblo + adh wre

(a) All of Indian blood whose names

appear on the census roll of the Santa Clara pueblo

as of November 1, 1935, provided that within one

2 from the adoption and approval of this con-

— ee ay oe a in the said roll

pueblo council wi

tary of the Interior. . n

(b) All persons born of ts

are members of the Santa — 8

bers, provided such childre recognized

and adopted by the — —

pueblo, with

zation. To do this ber the council, by naturali-

et a eS ee ee ee eee eee, ee

etl en A — —

Section 1. Pueblo tite.— Title to all lands of the

pueblo, whether to the use of individuals

or withheld from n use of the members

of the pueblo, shall forever remain in the pueblo

itself and not in individual members f

All the members pueblo are declared to have

an equal right to e beneficial use, in accordance

with ordinances of the council, of any land of the

ueblo not heretofore or hereafter assigned to in-

vidual members.

For the of this article the word ‘‘m

ber“ shall be defined by the council.

Section 2. Individual rights of possession.—The

right of full possession shall be guaranteed to

every member of the pueblo, holding lands assigned

to by the Pueblo Council, for cultivation or

other purposes: Provided, That no member *

said lands shall sell or will same to an alien. A

lands assigned to individuals of the pueblo must

be completely fenced within three years. Any vio-

lation of the above provision shall be cient

cause for the council to him of said land.

He shall have the however, to rent to a

pueblo member or, wi approval of the coun-

cil, to an alien, all lands under his possession, for a

term not to exceed two years. He shall have the

right to sell his interest in said lands to any other

member of the pueblo after his assignment has

been finally approved, — 4 to such regulations

as the council may prescribe.

Section 3. Council to have power of granting as-

signments.— When any —— of the pueblo de-

Section 4. Prior assi —All as-

siguments of land heretofore — the pueblo

authorities are hereby recognized co

Tue 1939 Orvrx NCE

December 15, 1939

Be it ordained by the Council of the Pueblo of

Santa Clara, New Mexico, in meeting dul

assembled, that hereafter the following rules

vern the admission to membership to the Santa

Clara Pueblo:

1. All children .= mem-

bers of the Santa Clara Pueblo shall be mem-

bers of the Santa Clara Pueblo.

2. All children born of between male

members of the Santa Clara Pueblo and non-

members shall be members of the Santa Clara

Pueblo.

3. Children born of marriages between female

members of the Santa Clara Pueblo and non-

members shall not be members of the Santa

Clara Pueblo.

4. Persons shall not be naturalized as members

of the Santa Clara Pueblo under any cir-

cumstances.

on ee ee te ee — A — oe

ꝗ— —„08;5ð⁰ð5—?i ——

STATEMENT OF THE CASE

Proceediags Below 1

This case involves application of Section 1302 (8)

the Indian Civil Rights Act to the Santa Clara Pueblo

Tribal Membership Ordinance of 1939. It was alleged

by the Plaintiffs that the Ordinance is discriminatory

and contrary to said Section of the Act. Suit was filed

by Plaintiffs September 22, 1972, in the Federal Dis-

trict Court for the District of New Mexico. The De-

fendants raised the defenses of lack of jurisdiction,

sovereign immunity, failure to exhaust tribal remedies

and others. Motions to dismiss were denied by the

district court. Trial to the Court without a jury was

held on November 25 through 27, 1974. Judgment in

favor of the Defendants was entered by the district

court on June 25, 1975. The Courts findings and con-

clusions are contained in its memorandum opinion,

App. pp. 1(a)-27 (a). Notice of Appeal was filed by

Plaintiffs on July 17, 1975. The 10th Circuit Court of

Appeals reversed the trial court and remanded the

case for further action on August 16, 1976.

Facts,”

Santa Clara Pueblo is a Pueblo Indian Tribe that

has been traced back at least seven hundred years as a

distinct cultural group. It has been situated on the

banks of the Rio Grande at its present location at least

three hundred years. R. pp. 234-235. Since 1680 the

Pueblo has existed as a conquered people, identifiable

as a group but surrounded by an alien culture, first

Spanish and later American.“ (Memo. Op. App. p.

19(a).)

Santa Clara Pueblo is an Indian Reservation located

in Northern New Mexico with sovereign powers of

— —— ——

App. p. 17(a).

The Pueblo holds all of the land wi

thin the ’

boundaries in fee simple title in common. Indie

„ however, are granted possessory interests

in tracts of land which they

e may pass on to

scendants. The devolution of the on to their de-

does not diminish the Pueblo’s superior proprietory

The denial of tribal membership does not in any

way affect the Martinez’ entitlement to participate in

federal benefits accorded Indians generally. Memo.Op.

App. p. 18(a).

All the Martinez children are entitled to full benefits

from the Bureau of Indian Affairs regardless of their

lack of membership in the Santa Clara Pueblo. The

children all have census numbers and are receiving

complete medical and educational benefits. R.pp. 25,

61-63. The Martinez children have all the material

that full members of the Santa Clara Pueblo

have. R.p. 64. Even Mr. Martinez, a Navajo, has all the

privileges that members have, such as irrigation water,

farming, wood-hauling, fishing and hunting. R.p. 15.

Santa Clara Pueblo has consistently taken the po-

sition that the 1939 Ordinance is simply a written em-

bodiment of a preexisting unwritten rule of member-

ship that has been in existence from time immemorial.

R.pp. 109, 153, 208. Further that the said Ordinance

is essential to the cultural and religious heritage that

is vital to the Tribes existence. R.p. 117.

Mrs. Julia Martinez was fully aware of the conse-

quences if she married a ron-Santa Clara male. R.p.

66. She was told by her uncle that if she married a non-

member of Santa Clara Pueblo her children could not

be enrolled. The children can be enrolled in the Navajo

Nation is desired. R.p. 22.

Julia Martinez has attempted to enroll her children

in the Pueblo since 1946. The District Court found that

she had exhausted all remedies within the tribal system.

The record fails to show that the Pueblo has varied

from the Ordinance under attack. There have been

10 11

* 19

2——

no exceptions to the Ordinance since its enactment. The in plain and unambiguous terms.“ The 10th Circuit

District ruled that the 1939 Ordinance does not vio- Court of Appeals has stated that jurisdiction over an

late the restrictions of 25 U.S.C. §§ 1302(8) and Plain- Indian tribe in federal court does not exist unless

tiffs have not been denied the equal protection of the jurisdiction is expressly conferred by Congressional

laws within the meaning of the Indian Civil Rights enactment.’ (Emphasis supplied) Native American

Memo. Op. App. p. 25(a). The District Court’s Church, etc. v. Navajo Tribal Council, 272 F.2d 131

emorandum i

Opinion was filed June 25, 1975. On

—

July 17, 1975, the Plaintiffs filed their Notice of A

to the 10th Cireuit and on August 16, 1976, 8

Cireuit Court of Appeals entered judgment reversing

— lower court and remanding the case for further

1. THE SANTA CLARA PUEBLO IS IMMUNE FROM SUIT

IN FEDERAL COURTS ABSENT EXPRESS CONGRES-

SIONAL AUTHORIZATION

In considering this petition, a basic premise concern-

ing tribal government must be considered which is that

an Indan tribe recognized by the Federal Government,

such as Santa Clara Pueblo, is exempt from direct suit

in Federal courts without express Congressional au-

thorization. United States v. United States Fidelity

Company, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894,

(1940) ; Twin Cities Chippewa Tribal Council v. The

Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir.

1967) ; Iron Crow v. Oglala Sioux Tribe, 213 F.2d 89

(8th Cir. 1956). The sovereign immunity of Indian

tribes from suit in Federal Courts cannot be assumed.

The 8th Circuit Court of Appeals in Thebo

v. -

tam Tribe of Indians, 66 F. 372 (8th Cir. 2

that statutory authority necessary to subj

ect

jurisdiction of the federal courts must. be “expresses

no language indicating congressi

the sovereign immunity of a tribe nor does it specifi-

cally grant jurisdiction to bring suit against Indian

tribes. The principal that waiver of sovereign immun-

| ity must be founded upon express language and cannot

be based upon implication has been reaffirmed in recent

eases. United States v. King, 395 U.S. 1 (1969) ; Ham-

ilton v. Nakai, 453 F.2d 152 (9th Cir. 1972).

As previously indicated, Congress has never ex-

pressly waived sovereign immunity of Indian tribes

from suit in federal courts by conferring jurisdiction

upon the courts to determine tribal membership ques-

tions. The 10th Circuit Court of Appeals did not at any

time consider the question of non-waiver of sovereign

immunity from suit. However, the Court held that 28

U.S. C. § 1343 (4) provides the necessary jurisdictional

basis. In doing so the 10th Circuit Court of Appeals

has decided a crucial question of federal law which has

not been but should be settled by the Supreme Court.

The decision in itself conflicts with United States v.

United States Fidelity Co., supra; Roff v. Burney, 168

U.S. 218 (1897) ; Lone Wolf v. Hitchcock, 187 U.S. 553,

(1903), and other decisions of the Supreme Court.

The 10th Circuit ignored completely the admonitions

of the Supreme Court in McClanahan v. Arizona State

Taz Commission, 411 U.S. 164, 172 (1973) that federal

statutes must be read against a backdrop of the doc-

trine of tribal It must always be remem-

bered that the various Indian tribes were once inde-

pendent and sovereign nations and that their claim to

long predates that of our own Govern-

ment.“ 411 U.S. at 172. The court went on to quote

from United States v. Kagama, 118 U.S. 375, 381-2

(1886). They were, and always have been, regarded

as having a semi-independent position when they pre-

served their tribal relations; not as States, not as na-

tions, not as possessed of the full attributes of sov-

ereignty, but as a separate people, with the power of

regulating their internal and social relations, and thus

far not brought under the laws of the Union of or the

State within whose limits they resided.”’

2. THERE IS NO PROVISION FOR JURISDICTION IN THE

FEDERAL COURT UNDER THE INDIAN CIVIL RIGHTS

ACT

Jurisdiction of the Court was sought to be invoked

against the Pueblo and its Governor pursuant to Titles

28 U.S.C. §§1331(a) and 5 1343 (4) and 25 U.S.O.

§§ 1302-8. The courts below have borrowed jurisdic-

tional authority from other Statutes predating the

Indian Civil Rights Act and have borrowed a legal

doctrine from civil rights cases to authorize an un-

limited and wholly inappropriate scope of relief. Those

federal courts that have recognized the problem of

sovereign immunity of Indian tribes have overcome

this obstacle by concluding that the Indian Civil

Act, by implication, sub-silentio abrogated tribal sov-

ereign immunity and constitutes authority by Congress

to bring such actions. Loncassion v. Leekity, 334 P.

Supp. 370 (D.N.M. 1971); Johnson v. Lower Elwha

eee

Tribal Community, 484 F. 2d 200 (9th Cir. 1973). If we

accept the premise that sovereign immunity cannot be

waived by implication these decisions cannot be justi-

fied, nor can the decision of the Court of Appeals in this

ease. This decision is a departure from prior Supreme

Court decisions and should be reviewed by 1 he mpreme

Court. If sovereign immunity is to be taken from the

Indian tribes it must be taken by the legislative branch

of the Government and not the judicial branch. The

sovereign immunity of Indian tribes from suit cannot

and has not been destroyed by implication. Titles 28

U.S.C. §§ 1331 and §§ 1343(4) are wholly insufficient

to sustain jurisdiction against Indian tribes under the

3. THE DETERMINATION OF TRIBAL MEMBERSHIP

THE SANTA CLARA PUEBLO IS AN INTERNAL SOV-

EREIGN RIGHT OF SANTA CLARA PUEBLO. AND NOT

SUBJECT TO CONTROL BY THE FEDERAL COURTS

The most basic and fundamental sovereign right of

any Indian tribe is its complete and absolute authority

to determine all questions of its own membership as

a political entity. Roff v. Burney, supra; Martinez v.

Southern Ute Tribe of the Southern Ute Reservation,

249 F.2d 915 (10th Cir. 1957).

The er of an Indian tribe to determine with total

— ag all questions of its own membership includ-

ing the power to revoke rights of membership which

it has granted has been recognized by the Supreme

Court. Roff v. Burney, supra. The trial court recog-

nizing the importance to the tribe of having the au-

thority to decide its membership stated; “‘Member-

ship policies present the same interests on a different

They are no more or less than a mechanism of

and to an extent psychological and cultural,

self-definition. The importance of this to Santa Clara

or to any other Indian tribe cannot be overstressed.

In deciding who is and who is not a member, the Pueblo

decides what it is that makes its members unique, what

a Santa Clara Indian from everyone else

in the United States. If its ability to do this is limited

Federal Courts have never been granted express

jurisdiction by Congress to consider tribal membership

Lone Wolf v. Hitchcock, supra at 172. Plenary au-

thority over the tribal relations of the Indians has

3 BSE

character of an Indian tribe as a distinct politial

general i lis

broad power of the Secretary over tribal ro

is not without limitation, as stated by the solicitor of

the of the Interior in an Opinion dated

December 18, 1937: “‘. . . while the Department may

approve or disapprove adoptions into the tribe and

expulsion therefrom made by the tribal authorities, no

ease holds that the Department, in the absence of ox:

press statutory authorization, may grant a person tri ul

membership over the protest of the tribal authorities.

„Whatever may be the exact extent of departmental

in this field, in view of the broad provisions of

the Wheeler-Howard Act, it has been administratively

held that the Secretary of the Interior may define and

be recognized as members of the Pueblo i

and it further

provides (Article 7, Section 1) that the Couneil shall

determine who is a member for

naturalization.’’ Cherokee Int

r eae ——

because the absolute diseretion of an Indian tribe to

determine requirements for enrollment in the tribe is

as broad as that of the United States to determine the

requirements for naturalization. An alien has no in-

— right to naturalization and Congress may re-

or may grant naturalization upon any conditions

it may preseribe. No alien has the slightest right to

naturalization unless all statutory requirements are

complied with . . . .” United States v. Gi

U.S. 472 (1917). Indeed during one period in ty his

Deed eur country a child born outside the continental

— States, whose father was a citizen of the United

es was granted citizenship but if the mother were

a citizen of the United States the child was not granted

citizenship. In view of the fact that Congress has acted

the area of tribal membership before, it seems even

clearer that had Congress intended to destroy tribal

it would have done so in an affirmative

fashion and not by implication.

8. THE LEGISLATIVE HISTORY OF THE ACT

Had the 10th Circuit Court of Appeals followed the

clear guidance of the Supreme Court it would have

ruled that the Indian Civil Rights Act and its legisla-

tive history show no indication that Congress intended

rights of members of Indian tribes decided to

tribal governments and tribal institutions.

Testimony before the Ervin Committee indicated that

Indian tribes lacked certain civil rights protections,

many not having constitutions or other formal govern-

ments.

Congress established a list of civil right guarantees

for Indians and Section 1302 (25 U.S.C. 1302) was

intended as a guide to Indian tribes in exercising their

governmental powers, a guide to the Secretary of the

Interior in exercising its supervisory powers and

finally a guide to the federal court in habeas corpus

proceedings resulting from tribal detentions.

Congress defined powers of self-government”’ (25

U.S.C. §1301(1)) as including all executive, legisla-

tive, and judicial powers of all Indian tribes and agen-

cies. Admittedly, all actions of tribal government,

whether executive or legislative, are governed by 25

U.S.C. § 1302, and the very act of lending federal sanc-

tion to the enumeration of civil rights by Congress is

to make it clear to Indian tribes that they are

no longer free to act without specific restraints.

In 25 U.S. C. § 1301(3), Indian Court”’ is defined to

include Indian tribal court or courts of Indian offense.

Thus, Congress makes clear that all judicial functions

of tribal courts, whether criminal or civil, are to be

governed by the specific restraints of 25 U.S.C. § 1302.

Section 1303 of the Act is the only section which

vests jurisdiction in the federal courts, and it is limited

to testing the legality of tribal detention orders. After

rejecting earlier drafts of the Act which would have

provided de novo review of all criminal actions of

tribal courts, Congress nevertheless felt that depriva-

tion of personal liberty was of sufficient importance to

require the carving out of an additional page of juris-

diction in federal courts. But even here, Congress did

not waive sovereign immunity of Indian tribes from

suit in federal courts; habeas corpus proceedings are

actions directed only at officials who have custody of

convicted criminal defendants. (Emphasis Added)

This section does not authorize actions against Indian

tribes themselves but provides only a mechanism to

prevent illegal detention of criminal defendants.

The legislative history of the Act supports petition-

er’s position. In none of the hearings held upon the

Act from 1961 through 1965 was there one word inti-

mating that the Act would waive tribal sovereign

immunity, or would vest the federal courts with juris-

diction over questions of tribal membership. The In-

dian Bill of Rights and the Constitutional Status of

Tribal Governments, 82 Harv.L. Rev. 1343, 1359; Hear-

ings Before the Subcommittee on Constitutional Rights

of the Senate Committee on the Judiciary, 87th Cong.,

Ist Sess., Part 1 (1961), 87th Cong. Ist Sess., Part 2

(1961), 87th Cong., 2d Sess., Part 3 (1962), 88th Cong.,

Ist Sess., Part 4 (1963) ; The Staff of Subcommittee on

itutional Ri of Senate Committee on the Ju-

* 88th Fag Sess. (Committee 1964) H ear-

ings on S.J. Res. 40 to Protect the Constitutional

Rights of the American Indian, Before the Subcom-

mittee on Constitutional Rights of the Senate Commit-

tee on the Judiciary, 89th Cong., Ist Sess. (1965) ; Con-

stitutional Rights of the American Indian, Staff of

Subcommittee on Constitutional Rights of the Senate

Committee on the Judiciary, 89th Cong., 2d Sess.

(Committee 1966); Hearings on Rights of Members

of Indian Tribes before the Subcommittee on Indian

Affairs of the House Committee on Interior and Insu-

lar Affairs, 90th Cong., 2d Sess. (1968).

Frank J. Berry, Solicitor of the Department of the

Interior recognized that:

On the other hand, the people of Indian Tribes

have their roots in an entirely different culture

and it may be that the devices which a propriately

protected the interests of the Anglo-American of

the late 18th Century may not be appropriate to

rotect the Indian tribal member o the middle

Century. Hearings on S.961-68 and S.J. Res.

40 to Protect the Constitutional Rights of Ameri-

can Indians before the Subcommittee on Constitu-

tional rights of the Senate Committee on the Judi-

ciary, Cong., Ist Sess. (1965) p. 17.

Senator Ervin himself expressed Congress’ concern

for protecting Indian self-government and cultural

values by stating:

essen roblem that confronts the Con-

4— in os Bald is whether or not it is possible to

establish a relationship with our other levels of

government for the reservation Indians in a way

that will harmonize with our levels of government

and yet at the same time preserve for them such

necessary local self-government as would seem to

best serve their interest. Hearings on S. J. Res. 53

before the Subcommittee on Constitutional Rights

of the Senate Committee on the Judiciary, 87th

ong., Ist Sess., Part 1 (1961) p. 19.

Congress did not intend that 25 U.S.C. § 1302 allow

invasion by the federal courts into the areas of the

essential political structure of Indian tribes. The Act

incorporates only selected portions from the federal

bill of rights contained in the first ten amendments,

and subsection (8) contains an edited version of the

language of the 14th Amendment. Nowhere are priv-

ileges and immunities of citizens mentioned, nor is any

mention made in the Act of the right to vote.

Since determination of membership is an essential

political attribute of an Indian tribe, 25 U.S.C. § 1302

should not be construed to have taken that right from

the Indian tribes by implication and to have conferred

it upon the federal courts.

Returning to the question of federal court jurisdic-

tion generally, one notes that 8.962, the earlier version

of 25 U.S.C. § 1303, vested the federal district courts

with jurisdiction to hear all criminal convictions in

tribal courts de novo by a judge and a jury. But these

provisions were removed and federal courts were

vested with only limited jurisdiction over habeas cor-

pus proceedings. Again Senator Ervin himself recog-

nized this limited effect of the Act in the hearing of

April 11, 1969, regarding portions of the proposed

8.211 which restated 25 U.S.C. § 1303:

Senator Ervin. This bill does not vide for

ei ions of

the Indian courts. In n for Federal

review was in there originally, and at the rennet

earing "il Rights Act of 1968

i Title II of the Civil Rights

before the | Subcommittee on Constitutional =

of the Senate Committee on the veneers, OS

Cong., Ist Sess. (1969) p. 15 (Emphasis supplied)

The doctrine of sovereign immunity of Indian * —

is of such long standing and so well known that n-

gress must have been well aware of it. Yet Congress

refrained from any declaration waiving immunity for

the purposes of the Indian Civil Rights Act of 1968,

When the entire Act is viewed against a backdrop oF

tribal sovereignty, it becomes completely clear —

Congress chose in the Act to proceed in a limi

jurisdiction over Indian tribes and that if tribal

courts in civil and criminal matters, tribal councils in

executive and legislative matters failed to protect —.

civil rights of tribal members, then Congress —

take the more drastic step of vesting the federal co

with additional jurisdiction. ie

il Co takes such additional steps,

meme for the federal courts to conclude

that Congress has sub-silentio waived tribal —

immunity. It is especially dangerous to the contin —

existence of tribal governments kor federal courts

attempt to read 25 U.S.C. § 1302 in conjunction with

28 U.S.C. 5 1343(4) in such manner as to throw open

the floodgates of litigation against Indian tribal gov-

Most Indian tribes are able to continue functioning

as sovereign units of government only because they

are able to conserve assets and obtain federal grants

for improving and enlarging their governmental func-

tions. Their traditional sovereign immunity from suit

in federal courts has protected them from suits which

would literally destroy them. To allow the Court of

Appeals’ decision to stand striking down tribal sov-

ereign immunity is unthinkable in light of the intent

of Congress in enacting the Indian Civil Rights Act.

In keeping with the rule that tribal sovereign im-

munity is not likely to be considered abrogated, this

legislative history, especially Senator Ervin’s state-

ment of his understanding that 25 U.S.C. § 1303 is the

only provision in the Act that provides for federal

court interference,’’ appears to be conclusive of Con-

gress’ intent

6. THE DEVELOPMENT OF CASE LAW UNDER THE ACT

There are 10 sub-paragraphs in 25 U.S.C. § 1302.

All but sub-paragraph (8) apply to any person. Sub-

paragraph 8 is limited to any person within its

(tribes) jurisdietion. The tribes jurisdiction is lim-

ited to Indians on the Reservation, however, enroll-

restraints and restrictions contained in the equal pro-

tection clause of the United States Constitution wilt

not to be imposed on Indian tribes pursuant to

Act. Groundhog v. Keeler, 442 F.2d 674 (10th Cir.

The 10th Circuit in Slattery

Council, 453 F.2d 278 (10th Cir. 1971), beld that the

Indian Civil Rights Act was concerned primarily with

tribal administration of justice, and the imposition of

ireuit in McCurdy v. Steele, 353 F.Supp. 629

ond 1973), rev’d, 506 F.2d 654 (10th Cir. —

stated that Its (the ICRA) guarantees of —.—

rights should, where possible, be harmonized with tri

cultural and governmental autonomy. Pp. 633

The Court of Appeals in the case at bar recognized

that ‘‘the Congressional hearings gave little attention

to Constitutional rights other than protection under the

criminal law and procedure of individuals in the tribal

Amendment appears to have been in deference

traditional Indian culture. a

All of the opinions to date have paid li

p service to

the theory of tribal sovereignty. Yet all have glossed

over this issue summarily and found that Congress has

en overruled an entire line of cases beginning with

orcestor v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

7. THE EQUAL PROTECTION CLAUSE OF THE INDIAN

STANDARDS ARE

NOT APPLICABLE TO TRIBAL MEM-

If the federal courts are to take jurisdicti

t jurisdiction of mat-

ters involving tribal membership, then we —

ourselves what standard is to be applied and what

— Canteen we the equal protection —

resses oners feelings

proach to this question. F

— 1 Rights Act, it will be necessary for fed-

Beginning with Worcestor v. Georgia, supra, fed-

eral courts have adopted a federal judicial doctrine

exempting tribal governments from any constitutional

restraint in the exercise of power over tribal members.

Indian tribes have been recognized as dependent sov-

ereign nations” with certain attributes of sovereignty

which include the power of regulating their internal

and social relations. Neither the Bill of Rights“ nor

the 14th Amendment are applicable to Indian tribes.

Talton v. Mayes, 163 U.S. 376 (1896) ; Native American

Church v. Navajo Tribal Council, supra.

In analyzing the Civil Rights Act courts have uni-

formly held that the equal protection clause of the Act

is not subject to the same standard as the Constitu-

tional guarantee of equal protection. Groundhog v.

Keeler, supra and Lohnes v. Cloud, 366 F.Supp. 619

(D.N.D. 1973).

The Cou. of Appeals in this case recognized that in

an evaluation such as the present one, the cultural

autonomy and integrity of the tribes were entitled to

be weighed. . . At the same time nothing resembling

a formula for determining which of these conflicting

interests is to prevail has been furnished. App. page

39(a). The court went on to state that the scope, extent

and importance of the tribal interest is to be taken

into account and that the individual right to fair treat-

ment under the law was likewise to be weighed against

the tribal interest.

The Court of Appeals a

that Congress did not intend to subject a tribe to those

requirements which are exacted under the equal pro-

tection clauses of the 14th and 15th Amendments to

the Constitution of the United States. The court stated

that The Fourteenth Amendment standards do not,

however, apply with full force’’ App. page 42(a), but

did not enunciate clear principles or guidelines stating

what test is to be applied in cases of this type.

The Court went on to say But we must still ask:

Is the Tribe justified in deviating from the Four-

teenth Amendment standard on the basis that tribal,

cultural and ethnic survival would suffer from full-

scale enforcement of subsection (8) to these facts? We

must hold that the facts do not support the decision that

the tribe’s interest is compelling.” It clearly appears

that the Court after stating that the 14th Amendment

standards do not apply, proceeds to apply exactly

those standards. The court proceeds to discuss the

matter under 14th Amendment standards and not

something with less than full force.“

The Eighth Circuit in Daly v. United States, 483

F.2d 700 (8th Cir. 1973) has shed some light on the

question of what standard applies holding that the

one man, one vote rule applies to tribal elections. The

Court citing White Eagle v. One Feather, 478 F.2d

1311 (8th Cir. 1973), stated: In One Feather we held

that where a tribe has adopted election procedures

analogous to those found in Anglo-American culture,

the equal protection clause of the Indian Civil Rights

Act required that the election procedures comply with

the one-man, one-vote principle established in Baker

v. Carr (citation), and its progeny.” pp. 704-705. The

court then examined the election procedures of the

pparently recognized the fact

Crow Creek Tribe and held that since they were sub-

stantially Anglo-American in form, they should be

controlled by Anglo-American standards. If the pro-

cedure is not in effect parallel to the Anglo-American

system, then the standard would not be the same.

court in Daly, su went on to uphold a blood

quantum requirement involving the Crow Tribe. The

Tribe required one-quarter blood or more, for enroll-

ment as a tribal member, but required one-half blood

or more for eligibility to be Chairman of the Council.

This had been challenged as a denial of Equal Pro-

tection. The court stated:

instant case, we also are convinced that the

Tribe has sufficient cultural interest in — 2

higher blood quantum requirement to hold ¢

than for mere ip in the Tribe if it so

desires. However, once the requirements are estab-

lished, they must be applied uniformly to av

violating 25 U.S.C. § 1302(8), pp. 705 & 706. (Em-

phasis added)

recently in Wounded Head v. Tribal Council of

ry tne Sious Tribe, 507 F.2d 1079 (8th Cir. 1975),

the Court held that the equal protection clause of

the Indian Civil Rights Act must be viewed in the

context of tribal government and cultural background

and was not the same as the equal protection“ clause

of the Fourteenth Aimendment. See also, Means v.

Wilson, 522 F.2d 833 (8th Cir. 1925) ; Howlett v. The

Salish d Kootenas Tribes, 529 F.2d 233 (9th Cir.

1976).

While no court had previously been called upon to

answer this exact issue, there is authority as held by

the trial court that a minimum requirement is that

tribal law be applied with an even hand. App.

page 24(a); Daly, supra; Yellow Bird v. Oglala Siouz

Tribe of South Dakota, 380 F.Supp. 438 (D.S.D. 1974).

Uniform application of tribal laws is all that is re-

quired by the Civil Rights Act. It is undisputed that

the Santa Clara enrollment rule was applied uniformly

to all and that there has been no exception to the rule

since it was codified in 1939. So long as there are no

exceptions and identical rules and laws are applied to

all members with either an even hand, or in a fair man-

ner, then such action is within the safeguard intended

and proper.

Though the proper test is that set out above, the en-

rollment rule of the Santa Clara Pueblo meets the

tionship to a legitimate state purpose. Weber v. Aetna

Casualty & Surety Co., 406 U.S. 164 (1972) ; Morey v.

Doud, 354 U.S. 457 (1957) ; Harper v. Virginia Board

of Elections, 383 U.S. 663 (1966).

It would tend to

... Without it we

— Se K

The recent Supreme Court decision in Morton v.

Mancari, 417 U.S. 535 (1974), sheds further light on

the special and unique legal status of Indian tribes.

The lower court, a three judge district court, ruled

that

to a Santa Clara tribal member woman are granted

full rights and cared for by the Pueblo. R. p. 145.

particular rule is beneficial or ical to their

survival as a distinct cultural group. App. p. 26(a).

The trial court after hearing evidence, observing the

witnesses and being close to the facts and people in-

volved concluded that:

Much has been written about tribal sovereignty.

If those words have any at all, they must

mean that a tribe can make enforce its deci-

sions without regard to whether an external au-

thority considers those decisions wise. To abrogate

tribal decisions, pe in the delicate area

of membership, whatever ‘good’ reasons, is to

destroy cultural identity under the guise of saving

it. has not indicated that they intend

the Civil Act to be interpreted in

such a manner. p. 26(a).

The decision in this case has a far reaching affect

not only on Santa Clara Pueblo, but on all sovereign

Indian Tribes in the United States. This decision may

very well be the difference between survival or destruc-

tion of American Indian Tribes as they now exist, and

is therefore a question that should be settled by the

Supreme Court of the United States.

PRO & GRODNER

Attorneys for Petitioners

Marc PRELO

, 1976

APPENDIX

IN THE UNITED STATES DISTRICT COUBT

FOR THE DISTRICT OF NEW MEXICO

No. 9717 Civil

Jul Maztinez, et al, Plaintiffs,

Sawra Clan Puro, et al, Defendants.

(Fund Juxx 25, 1975)

Supplemental Memorandum Opinion on Jurisdiction

Plaintiffs, Julia Martinez and her daughter, Audrey

Martinez, bring this suit, each individually and as the

representative of a class, against the Santa Clara Pueblo

and Governor Lucario Padilla, individually and in his ca-

pacity as governor of the Pueblo.’ Plaintiffs seek a declara-

tory judgment that a portion of a tribal ordinance which

denies Pueblo membership to the children of women (but

not men) who marry non-members of the Pueblo violates

25 U.S.C. § 1302(8). This statute prohibits a tribal govern-

ment in the exercise of its power of self-government from

denying ‘‘to any person within its jurisdiction the equal

protection of its laws or depriv(ing) any person of liberty

or property without due process of law.“ Plaintiffs seek an

injunction against the further enforcement of the ordinance.

The Ordinance of 1939 reads as follows:

Be it ordained by the Council of the Pueblo of Santa

Clara, New Mexico, in regular meeting duly assembled,

At time of Trial, Paul Tafoya was the duly elected governor

of the Pueblo and was sued individually and in his official capacity.

Lucario Padilla was elected governor sometime after the case was

tried, and has been substituted as a defendant, pursuant to F. R. CP.

25 (d).

that hereafter the following rules shall govern the ad-

mission to membership to the Santa Clara Pueblo:

1. All children born of marriages between members

of the Santa Clara Pueblo shall be members of

the Santa Clara Pueblo.

2. All children born of marriages between male

members of the Santa Clara Pueblo and non-

members shall be members of the Santa Clara

Pueblo.

3. Children born of marriages between female

members of the Santa Clara Pueblo and non-

members shall not be members of the Santa Clara

Pueblo.

4. Persons shall not be naturalized as members of

the Santa Clara Pueblo under any circumstances.

Plaintiffs attack subparts two and three of the ordinance

only.

Jurisdiction was alleged to be conferred by 25 U.S.C.

§ 1302 (8) and 28 U.S.C. § 1343 (4). Defendants vigorously

contest the question of jurisdiction. The following mem-

orandum is filed at this time concerning the conclusion of

law that jurisdiction over this action exists.

Plaintiff Julia Martinez is a female member of the Santa

Clara Pueblo who is married to a non-member, Myles

Martinez, a Navajo Indian. Plaintiff Audrey Martinez is

one of eight surviving children of the marriage. Audrey

and the other Martinez children have been denied member-

ship in the Pueblo pursuant to the 1939 Ordinance because

their father is not a member of the Pueblo. Defendant Santa

Clara Pueblo is an Indian Tribe which was reorganized and

adopted a constitution under the authority of 25 U.S.C.

§ 476. Defendant Lucario Padilla is the duly elected Gov-

ernor of the Pueblo, charged by the law of Santa Clara

Prior to trial, defendants twice moved to dismiss this

case for lack of subject matter jurisdiction. On the first

motion to dismiss, defendants contended that federal courts

lack jurisdiction over intertribal controversies, particularly

067

1957), cert. den. 356 U.S. 960, 78 S. Ot. 998, 2 L.Ed.2d 1 ,

reh. den., 357 U.S. 924, 78 S.Ct. 1374, 2 L.Ed.2d 1376, and

similar cases. The motion was denied at that time.

artinez, su and its progeny decided before the en-

—— of ‘he Indian Civil Rights Act, 25 U.S.C. § 1301 et

seq., held only that intra-tribal controversies, among them

membership disputes, did not ‘‘arise under the Constitu-

tion, laws or treaties of the United States, as they existed

prior to the Indian Civil Rights Act, and that therefore 28

U.S.C. § 1331 did not confer subject matter jurisdiction on

a federal district court to hear such a case. Since the enact-

ment of the Indian Civil Rights Act, several courts have

held that jurisdiction is conferred by virtue of the Act and

28 U.S.C. § 1331. Dodge v. Nakai, 298 F.Supp. 17, 25 (D.

Ariz. 1968); Loncassion v. Leekity, 334 F.Supp. 370 (D.

N.M. 1971); Contra, Cornelius v. Mozon, 301 F.Supp. 783

(D.N.D. 1969). See also Colliflower v. Garland, 342 F.2d

369 (9th Cir. 1965; Settler v. Yakima Tribal Council, 419

F.2d 486 (9th Cir. 1969), cert. den. 398 U.S. 903 (1970)

(holding jurisdiction under 28 U.S.C. § 1331 on the basis

of the law as it existed prior to the enactment of the Indian

Civil Rights Act). Thus, Martinez and its progeny are not

on point as to the jurisdictional question presented.

While the Tenth Cireuit has not decided whether 25

U.S.C. 5 1302 (8) and 28 U.S.C. 5 1343 (64) confer jurisdic-

tion over cases such as this, other courts which have con-

sidered this question have almost uniformly held in favor

of jurisdiction. Crowe v. Eastern Band of Cherokee Indians

506 F.2d 1231 (4th Cir. 5 Loramie «. Nicholson, 487

F.2d 315 (9th Cir. 1973) cert. den. 419 U.S. 871 (1974);

Johnson v. Lower Elwha Tribal Community, 484 F. 2d 200

(9th Cir. 1973) ; White Eagle v. One Feather, 478 F.2d

1311 (8th Cir. 1973); Daly v. United States, 483 F.2d 700

(8th Cir. 1973); Brown v. United States, 486 F.2d 658 (Sth

Cir. 1973) ; Luzon v. Rosebud Sioux Tribe of South Dakota

455 F.2d 698 (8th Cir. 1972); Seneca Constitutional Rights

a v. George, 348 F.Supp. 48 (W. D. N. v. 1972);

2 v. La Rose, 335 F.Supp. 715 (D. Neb. 1971);

. Eagle v. Blackfeet Tribe, 301 F.Supp. 85 (D. Mont.

). See also Dodge v. Nakai, supra, (where jurisdiction

appears to have been upheld alternatively under 28 U.S.C.

51331 or 28 U.S.C. § 1343(4) and 25 U.S.C. 5 1302 (8)).

Contra Yellow Bird v. Oglala Sioux Tribe, 380 F.Supp. 438

(D.S.D. 1974); Lefthand v. Crow Tribal Council, 329 F.

Supp. 728 ( D.Mont. 1971). In addition, these cases, either

by implication or expressly, have held that the Indian Civil

Rights Act abrogates a tribe’s sovereign immunity for

purposes of suit under the Act. See also Loncassion

Leekity, supra.

Several of these cases are closely on point i

supra, plaintiffs were children — 5 —— —

nance was being applied in a discriminatory manner, in

violation of the equal protection clause of the Indian Civil

Rights Act. The Ninth Circuit upheld jurisdiction, almost

pense discussion, on the basis of its earlier decision in

ohnson v. Lower Elwha Tribal Community, supra, noting

that while Johnson involved the due process clause of 25

US.C. § 1306(8) in the context of revocation of a lease of

tribal lands, we see no difference in principle that dis-

— our Johnson case from this case. 487 F. 2d 315,

The case of Yellow Bird v. Oglala Sioux Tribe

also involved an equal protection challenge to a tribal mem”

bership provision. In that case, however, the trial court

granted defendants’ motion to dismiss, holding that it

lacked subject matter jurisdiction over the case. In Yellow

Bird, plaintiffs sought to run in the Oglala primary elec-

tion, apparently for positions as candidates for the tribal

council. The Oglala Sioux Tribal election board refused

to place their names on the ballot, apparently on the

grounds that plaintiffs were barred from membership in the

tribe by a tribal constitutional provision which restricted

membership to those children born to a member of the

tribe who was a resident of the reservation at the time

of the birth of the child. The trial court based its decision

on the language of the leading Eighth Cireuit case on

jurisdiction under the Indian Civil Rights Act, Luxon v.

Rosebud Sioux Tribe of South Dakota, 455 F.2d 698 (8th

Cir. 1972) that [Iln our opinion, 28 U.S.C. § 1343(4)

gives the district court jurisdiction to determine, in a

proper case, whether an Indian Tribe has denied to one

of its members any of the rights given to members under

the Indian Bill of Rights.“ Id. at 700.

The court cast the question as one of interpretation of

the Act to determine whether the equal protection guaran-

tee of § 1302 (8) of the Act extended to the situation pre-

sented. and after an examination of relevant Eighth Cir-

cuit decisions, held that it did not. The court concluded

its opinion by noting that its decision was not in conflict

with Laramie, supra, because Laramie involved discrim-

inatory application of an ordinance, which plaintiffs in

Yellow Bird had not alleged.’

2 The Court noted that there was no allegation that plaintiffs had

ever applied to the Tribal Council to be enrolled as members, and

commented: ‘‘The Tribal Council is the constitutionally proper

body for determining membership qualifications.’’ Yellow Bird,

380 F.Supp 438 at 440 (D.S.D. 1974). In the context of the

opinion, this does not appear to have been decisive for the trial

court and the case is discussed as though it is not. However, to

the extent this fact raises the issues of justiciability or exhaustion,

those issues will be discussed below.

The Court in Yellow Bird seems to give Luron a more

narrow interpretation than the case warrants. The plain-

tiff in Zucon was an enrolled member of the tribe who

sought to run for election to the tribal council. The tribal

constitution contained a provision barring members of the

tribe who worked for the Public Health Service, as did

plaintiff, from serving on the council. The District Court

had dismissed the case on the grounds urged here—that it

lacked jurisdiction to hear cases involving intratribal con-

troversies. The Eighth Circuit reversed and remanded the

case for determination of the merits, holding as quoted

supra, jurisdiction existed under 28 U.S.C. 1343(4) and

25 U.S.C. 1302(8). The Court then stated:

„While we determine that the district court has juris-

diction under 28 U.S.C. 1343(4) as set forth above, we

express no opinion as to whether or not the facts al-

leged state a proper cause of action or whether, if true,

the plaintiff is entitled to judgment on the merits.

These determinations should first be made by the dis-

trict court. As Mr. Justice Black noted in 1946:

Jurisdiction, therefore, is not defeated as respond-

ents seem to contend, by the possibility that the aver-

ments might fail to state a cause of action on which

petitioners could actually recover. For it is well set-

tled that the failure to state a proper cause of action

calls for a judgment on the merits and not for a dis-

missal for want of jurisdiction. Whether the com-

plaint states a cause of action on which relief could

be granted is a question of law and just as issues of

fact it must be decided after and not before the

court has assumed jurisdiction over the controversy.

If the court does later exercise its jurisdiction to

determine that the allegations in the complaint do

not state a ground for relief, then dismissal uf the

case would be on the merits, not for want of juris-

diction.“

Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 776, 90

L.Ed. 939 (1946)

Luzon v. Rosebud Sioux Tribe of South Dakota, 455

F.2d 698, 700 (8th Cir. 1972).

The decision in Yellow Bird virtually ignores this dis-

tinction.

The Tenth Circuit recently had occasion to comment on

the distinction in Junior Chamber of Commerce, Rochester,

New York v. United States Jaycees, Tulsa, Oklahoma, 495

F.2d 883 (10th Cir. 1974) cert. den., 419 U.S. 1026, 95 S.Ct.

505, 42 L.Ed.2d 301 (1974). In that case, the New York

group and others had been excluded from affiliation with

the defendant Oklahoma group because it allowed women

members. The New York brought an action in federal dis-

trict court under 42 U.S.C. 1983, alleging the action of

defendants violated their rights under the Fifth and Four-

teenth Amendments of the United States Constitution. The

trial court granted defendant’s motion to dismiss, not for

lack of jurisdiction, but for failure to state a claim on the

grounds that defendants had failed to show a substantial

federal question. The basis for the trial court’s decision

was in essence that there was insufficient governmental

involvement with the organization to subject it to the re-

strictions of the Fifth and Fourteenth Amendments. On

appeal, the Tenth Circuit affirmed the trial court 's action,

on the basis of Bell v. Hood, supra, which it read as man-

dating dismissal for lack of jurisdiction only if the claim

was so insubstantial as to be frivolous, or a mere matter

of form, plead solely for the purpose of establishing juris-

diction.

The Jaycee case is decisive for the case at bar. The

Indian Civil Rights Act is relatively new, and the law con-

cerning its applicability and particularly the effect of the

equal protection clause invoked by plaintiffs here is un-

clear. In view of this and the nature of the claims asserted,

they can hardly be characterized as frivolous or a mere

matter of form. This court has jurisdiction to decide the

Defendants filed a second motion to dismiss, contending

that the case should be dismissed for lack of jurisdiction

in light of McCurdy v. Steele, 506 F.2d 653 (10th Cir. 1974).

The motion was denied. My previous conclusion still stands.

Briefly, McCurdy was a declaratory judgment action con-

cerning the validity of write-in votes under the Coustitu-

tion of the Goshute Tribe. Plaintiffs, candidates in an elec-

tion for the tribal council, contended that the votes were

not valid, and, therefore, they had won the election. Faced

with the questionable write-in votes, the Goshute Election

Board had refused to certify any result of the election at

all. Plaintiffs had attempted through administrative pro-

ceedings to gain recognition of their election from the

Bureau of Indian Affairs; they were unsuccessful. Con-

temporaneously, the outgoing Council met and decided a

new election should be held. Plaintiffs then filed suit in

federal district court. There was, in McCurdy, no official

tribal position on the question of the validity of write-in

votes. Furthermore, as a result of the lawsuit, the second

election was never held.

The McCurdy case can be viewed in two ways—either as

holding that the case presented no justiciable controversy,

or as holding tribal remedies and resolutions must be fully

exhausted before a federal district court has jurisdiction

of a case. Insofar as McCurdy is viewed as a justiciability

decision, which in my opinion is the correct view in light

of the language, the cases are distinguishable, for here

there is a clearly expressed, institutionalized tribal posi-

tion, i.e., the challenged ordinance.

Under the Santa Clara Constitution, the Council has been

given both the Legislative and Judicial functions of the

Pueblo. In addition, the Constitution, Article II, Section 1,

Hit

t . '

71181

g 2

of justiciability.

Defendants argue that McCurdy holds that a federal dis-

recognized the appropriateness of exhaustion of tribal ju-

dicial 4 — White v. Tribal

Council, Red Lake Band of Chippewa Indians, 383 F.Supp.

810 (D.Minn. 1974) (exhaustion required) ; Means v. Wil-

son, 383 F.Supp. 378 (D.S.D. 1974) (exhaustion required) ;

Hickey v. Crow Creek Housing Authority, 379 F.Supp. 1002

(D.S.D. 1974) (exhaustion required) ; ONeal v. Cheyenne

River Sioux Tribe, 482 F.2d 1140 (8th Cir. 1973) (exhaus-

tion required); Dodge v. Nakai, 298. F.Supp. 17 (D.Ariz.

1968) (exhaustion not required in the specific instance).

The exhaustion of tribal remedies is not a rigid prerequi-

site to jurisdiction, however, but is to be decided in the

specific circumstances presented, taking into account the

practical availability of tribal remedies, Dodge v. Nakai,

supra, and the demands of tribal autonomy, as against

the necessity of immediate action to prevent or redress the

deprivation of rights guaranteed by the Indian Civil Rights

10a

Act. White v. Tribal Council, Red Lake Band of Chippewa

Indians, supra.

For the decision of this case, it will be assumed, without

being decided, that exhaustion of remedies within the Pue-

blo would be required of these plaintiffs on the facts of

this case. Even so, as a factual matter plaintiffs have ex-

hausted all remedies reasonably, or even conceivably avail-

able to them.

A detailed summary of the efforts of Julia and Audrey

Martinez would fill several pages. For the present, a sum-

mary of their activities is sufficient.

Julia Martinez first attempted to have Audrey recog-

nized as a member of the Pueblo in 1946, shortly after Au-

drey was born.’ Since 1963 her efforts have been vigorous

and constant. Julia Martinez has met with her representa-

tive to the Council, to request that he present the request

tha Audrey be enrolled to the council.“ When her represent-

ative refused to bring the matter up in Council, she ob-

tained special permission from the Governor to address the

Council herself. She and other women in her situation have

formed a committee which as a group petitioned represent-

atives and, with special permission, the Council. Julia, in-

dividually and with the committee, succeeded in having a

special meeting of the entire Pueblo convened to discuss

the situation. Julia Martinez, individually and with the

lla

committee of similarly situated women attended meetings

with various BIA officials, with the All-Pueblo Agency in

Albuquerque. She and her husband Myles attempted to

and Audrey Martinez sought legal advice. This suit was

filed only after attempts by their lawyer to gain recogni-

tion for Audrey had failed. Plaintiffs have exhausted all

available remedies within the Pueblo.

For the reasons given, I conclude that this Court has

jurisdiction of this suit and must proceed to decide the

case on its merits.

/s/ Enwix L. Mecuem

United States District Judge

12a

(Caption Omitted in Printing)

(Fuzp June 25, 1975)

Memorandum Opinion

Julia Martinez and her daughter Audrey Martinez bring

this suit, each individually and as the representative of a

class, against the Santa Clara Pueblo and Governor Lu-

cario Padilla,’ individually and in his capacity as governor

of the Pueblo. plaintiffs claim that a portion of a tribal

ordinance which denies Pueblo membership to the children

of female but not male members of the Pueblo who marry

non-members of the Pueblo, violates 25 U.S.C. § 1302 (8),

which prohibits a tribal government in the exercise of its

powers of self-government from denying ‘‘to any persons

within its jurisdiction the equal protection of its laws or

depriv(ing] any person of liberty or property without due

process of law.“ Plaintiffs seek an injunction against the

further enforcement of the ordinance.

The ordinance, passed in 1939, reads as follows:

Be it ordained by the Council of the Pueblo of Santa

Clara, New Mexico, in regular meeting duly assembled,

that hereafter the following rules shall govern the

admission to membership to the Santa Clara Pueblo:

1. All children born of marriage between members of

the Santa Clara Pueblo shall be members of the

Santa Clara Pueblo.

2. All children born of marriages between male mem-

bers of the Santa Clara Pueblo and non-members

shall be members of the Santa Clara Pueblo.

At the time of trial, Paul Tafoya was the duly elected governor

of the Pueblo and was sued individually and in his official capacity.

Some time after trial, Lucario Padilla was elected Governor and

has been substituted as a defendant pursuant to F.R.C.P. 25(d).

13a

3. Children born of marriages between female members

of the Santa Clara Pueblo and non-members shall

not be members of the Santa Clara Pueblo.

4. Persons shall not be naturalized as members of the

Santa Clara Pueblo under any circumstances.

Plaintiffs attack subparts two and three of the ordinance.

Julia Martinez is a female member of the Santa Clara

Pueblo. She is and at all times pertinent to this action was

married to Myles Martinez, a Navajo Indian who is not

a member of the Pueblo. Plaintiff Audrey Martinez is one

of the eight surviving children born to their marriage.

Under the 1939 Ordinance, Audrey and the other Martinez

children are not recognized as members of the Pueblo. By

order previously entered, it has been determined that Au-

drey Martinez may properly bring this action as the rep-

resentative of a class consisting of all children born to

marriages between Santa Clara women and men who are

not members of the Pueblo and that Julia Martinez may

properly bring this action as the representatives of a class

consisting of all women who are members of the Santa

Clara Pueblo, and who have married men who are not

members of the Santa Clara Pueblo.

Defendant Santa Clara Pueblo is an Indian tribe which

has organized and adopted a constitution under the au-

thority of 25 U.S.C. 4476. Defendant Lucario Padilla is

the duly elected Governor of the Pueblo and is responsible

for enforcing the laws of Santa Clara. Santa Clara Con-

stitution, Article V; Santa Clara By-Laws, Article 1, Sec-

tion 1.

Jurisdiction exists over this action under 25 U.S.C. §

1302(8) and 28 U.S.C. § 1343(4). The following memoran-

dum shall constitute the Findings of Fact and Conclusions

of Law in this case.“

The social and political organization of the Pueblo must

be discussed first. Santa Clara Pueblo was founded around

1300 A.D. The Pueblo now covers roughly 48,000 acres,

held by the United States in trust for the Pueblo. Approx-

imately 1,200 recognized members and between 150 and 200

non-members currently live on the Pueblo. Approximately

150 recognized members live elsewhere, one-third of them

in other locations in New Mexico, and the rest scattered

across twenty-two different states.

In its early days, Santa Clara culture made no distinc-

tion between what Anglo-Americans would term political“

and religious“ matters. However, with the Spanish in-

vasion in the early seventeenth century, the Pueblo institut-

ed a ‘‘secular’’ government to distract Spanish attention

from the caciques (religious leaders) who were the real

authorities in the Pueblo. The distinction between religious

and secular spheres is now well established in the Santa

Clara culture.

The membership of the Pueblo is and has been organized

into what the anthropologists refer to as moieties, spe-

cifically the Winter people and the Summer people. Each

moiety is lead by a cacique, and each is further divided

into factions. The precise function and significance of moi-

ety membership is not clear on the record; it is, however,

clear that it is primarily a religious group ing. The caciques

are still the dominant authorities in the Pueblo, nominating

the candidates for secular office and exercising an effective

veto by influence over the actions of the secular government.

A discussion of the Conclusion of Law relating to the existence

of jurisdiction is contained in an accompanying memorandum filed

contemporaneously with this opinion and incorporated herein by

15a

The division of the moieties into factions is a relatively

recent development. During the early part of the twentieth

century sharp conflicts developed in the Pueblo over the

importance of traditional customs and values in the life of

the Pueblo. For example, a major source of controversy

was whether the Governor should be an older, highly re-

spected man who was well versed in the traditional ways,

or a younger man, educated in Anglo-American schools,

who could speak English and would be able to deal more

effectively with non-Pueblo society. The disagreement lit-

erally split the Pueblo, and during the late 1920s and early

1930s the Pueblo had two governors, neither of whom

recognized the authority of the other, and two separate

Winter and Summer moieties. The Bureau of Indian Af-

fairs (BIA) staff in Washington offered to arbitrate the

dispute. The entire Pueblo agreed that the BIA officials

from Washington were irrelevant.

They did agree to have the resident BIA agent, Elizabeth

Sargent, help settle the difference. At her suggestion, and

after much discussion, the Pueblo organized pursuant to

the authority of the Wheeler-Howard Act, 25 U.S.C. § 476,

and adopted a Constitution and By-Laws in 1935. As reor-

ganized the secular government retained many of its tra-

ditional institutions, such as the unity of the legislative and

‘‘appellate’’ judicial functions in the Council, while at the

same time incorporating and instituting certain Anglo-

American institutions, principally voting for secular offi-

cials. Thus, the present Pueblo government is neither

wholly traditional nor wholly anglicized.

Under the Constitution and By-Laws there is a single

governing body, the Council, as noted, which possesses both

legislative and ‘‘appellate’’ judicial powers. Santa Clara

Constitution, Article IV, Sections 1 and 2. The Council

consists of the secular officers of the Pueblo—the Governor,

the Lieutenant Governor, the Secretary, the Treasurer, the

Interpreter, and the Sheriff—and eight representatives.

16a

Santa Clara Constitution, Article III, Sections 1 and 5. As a

matter of custom and practice, the representatives repre-

sent the factions, which still exist.

The Governor is the chief executive of the Pueblo charged

with enforcing the law eivil and criminal, written and

unwritten. Santa Clara Constitution, Article V; Santa

Clara By-Laws, Article 1, Section 1. In addition he appears

to have the initial responsibility for settling controversies

among and concerning the members of the Pueblo. A person

aggrieved by a ruling of the Governor may appeal to the

Council, Id., at which time the Governor may vote only to

break a tie. Santa Clara Constitution, Article IV, Section 2.

All other secular governmental power and responsibility

is vested in the Council, including the power to enact ordi-

nances governing Pueblo life, Santa Clara Constitution, Ar-

ticle IV, Section 1, Subsection 5. Most important for the

present case, the Constitution specifically grants the Coun-

cil the power to determine which children of mixed mar-

riages shall be recognized as members of the Pueblo, Santa

Clara Constitution, Article II, Section 2, and to determine

who is a member for purposes of dealings in land and land

use rights, Santa Clara Constitution, Article VII, Section

1. The 1939 Ordinance was enacted by the Council pursuant

to these powers, and is agreed by all parties to be in force

at this time.

The factual development of the equal protection claims

of the parties is best begun by identifying the interests of

plaintiffs and defendants affected or served by the Ordi-

nance.

As previously noted, Audrey Martinez is the daughter

of the marriage of plaintiff Julia Martinez, a recognized

member of the Pueblo and Myles Martinez, a non-member

of the Pueblo. It is undisputed that the 1939 Ordinance bars

recognition of Audrey as a member of the Pueblo. If Myles

were a member of the Pueblo and Julia Martinez were not

17a

—or if Julia were not married, and Audrey had been born

out of wedlock, the Ordinance would not bar her recogni-

tion as a member and the Council would in fact so recog-

nize her.

Julia Martinez has lived at the Pueblo all her life, with

the exception of a relatively brief absence to further her

education. Myles Martinez has lived at the Pueblo ever

since his marriage to Julia, with the exception of a rela-

tively brief absence while serving in the armed forces.

Audrey Martinez grew up on the Pueblo, although she does

leave to pursue her education. Aside from the fact that

she is not recognized as a member of the Pueblo and is

therefore denied certain rights, she has been raised in the

culture of Santa Clara, speaks Tewa, the traditional lan-

guage, and clearly considers herself to be a Santa Claran.

As a factual matter, recognition as a member of the

Pueblo would give Audrey Martinez three distinct types

of rights which she is presently denied. First, she would

gain political rights, primarily the right to vote, to take

matters before the Pueblo Council, and the qualification to

hold office as a secular official. Secondly, she would be

entitled to share in the material benefits of Pueblo member-

ship. The most important of the material benefits is that

referred to as land use rights. As noted above, title to the

Pueblo land is held by the United States in trust for the

Pueblo, rather than for the individual members of the

Pueblo. The Council may designate specific areas of the

land to be set aside for the use of particular individuals,

Santa Clara Constitution, Article VII, and members of the

Pueblo are equally entitled to use land not specifically as-

signed to an individual. As a matter of custom and practice,

these use rights are passed down through families. How-

ever, only members of the Pueblo are entitled to use rights;

thus in families such as the Martinez family, where the

children are not members of the Pueblo, the land use rights

cannot be passed on to succeeding generations. In the

18a

same manner, Article VII, Section 2 of the Santa Clara

Constitution, provides that members may rent or sell their

use rights, but again, only to other members. As noted

above, the Council has the power under the Constitution

to determine who is a member for purposes of land use

rights. It is undisputed that since 1939 this determination

has been governed by the 1939 Ordinance, although from

the Constitution it would appear that the Council could,

if it so decided, apply different criteria. Other material

benefits and privileges include the right to hunt and fish

on the land, the use of irrigation water, and an equal share

in any distribution of pecuniary benefits made by the

Pueblo, or any other programs, present or future, under-

taken by the Pueblo for the benefit of its members.

Third, as members, Audrey and other children similarly

situated would as of right be able to continue living at the

Pueblo. While it is true that the Martinez family and a

number of other families in their position live at the Pueblo,

this is not as a matter of right. If and when Mrs. Martinez

dies, the rest of the family, as non-members, would not

have the right to continue living on the Pueblo, though

it is not now known whether they would be forced to leave.

Furthermore, under the Santa Clara Constitution, Article

IV, Section 1, Subsection 5, non-members and only non-

members may be expelled from the Pueblo for violating a

Pueblo Ordinance.

Lack of membership does not now affect entitlement to

federal benefits accorded Indians generally, or participa-

tion in the religious life of the Pueblo. In 1968, Mr. and

Mrs. Martinez obtained BIA census numbers for their chil-

dren, and since then the children have received all federal

benefits generally available to Indians, including education-

al and medical benefits. As to religion, Audrey Martinez is

already allowed to participate in Pueblo religious cere-

monies to the same extent that she would be if she were

a recognized member of the Pueblo. Thus, the question pre-

19a

sented is one of membership in the Pueblo for purposes of

purely internal, secular, rights and privileges.

Julia Martinez claims that the operation of the Ordinance

rendering her children non-members denies her the equal

protection of the laws and deprives her of property without

due process of law. More specifically, she claims that the

Ordinance necessarily restricts her land use rights and

other material benefits and rights which she could give to

her children if they were recognized as members.

In addition to these relatively precise and legally pro-

tectible interests, Julia and Audrey Martinez and many of

those similarly situated share a strong emotional involve-

ment with the Pueblo. Regardless of official definitions of

membership, Julia Martinez feels that her children, having

grown up in Santa Clara, should be recognized as Santa

Clarans. Audrey Martinez, despite official definitions, clear-

ly considers herself to be a Santa Clara Indian. While the

law may not recognize or protect these interests, it would

be foolish to pretend that they do not exist.

While the factual context of the legal claims made by

Audrey and Julia Martinez differs, it is clear that both

ultimately present the same legal question—whether the

1939 Ordinance violates their rights to equal protection of

tribal laws, as secured to them by the Indiar Civil Rights

Act, 25 U.S.C. § 1302(8).

The specific interests of the Pueblo in membership poli-

cies generally and in the particular policy of the 1939

Ordinance are of concern as well. Since 1680 the Pueblo

has existed as a conquered people, identifiable as a group

but surrounded by an alien culture, first Spanish and later

American. From a practical political standpoint, the result

has been a tension in the life of the Pueblo between tradi-

tional Pueblo customs and values and the modern“ cus-

toms and values of Anglo-American society. As noted

above, this tension was once so acute that the Pueblo be-

came divided against itself. The differences were eventually

resolved by the adoption of the Constitution, which drew

upon both traditional Pueblo and modern Anglo-American

institutions, synthesizing them into a unique structure

neither wholly traditional nor wholly modern.

The function of membership policies must be examined

within this context. In Dodge v. Nakai, 298 F.Supp. 26 (D.

Ariz. 1968), the Court dealt with the interest of the Navajo

tribe in geographically defining itself, and controlling who

could and could not enter the reservation. Membership pol-

icies present the same interests on a different level. They

are no more or less than a mechanism of social, and to an

extent psychological and cultural, self-definition. The im-

portance of this to Santa Clara or to any other Indian tribe

cannot be overstressed. In deciding who is and who is not

a member, the Pueblo decides what it is that makes its

members unique, what distinguishes a Santa Clara Indian

from everyone else in the United States. If its ability to do

this is limited or restricted by an external authority, then

a new definition of what it is to be a Santa Claran is im-

posed, and the culture of Santa Clara is inevitably changed.

The second major interest served by membership policies,

and by the particular policy of the 1939 Ordinance, is that

of economic survival of the tribal unit. As plaintiffs have

demonstrated, the adoption of the 1939 Ordinance was in

response to a sudden increase in mixed marriages, which

had resulted in a proportionate strain on the economic re-

sources of the Pueblo. Plaintiffs argue that economic integ-

rity of the Pueblo is less important than cultural autonomy.

The difficulty with this position is that the two are not

easily separable. The ability of the Pueblo to control the

use and distribution of its resources enhances its ability

to maintain its cultural autonomy.

Plaintiffs do not challenge the power of the Pueblo, as

delegated to and exercised by the Council, to make and en-

force rules concerning membership. Their attack on the

Ordinance is solely aimed at the criteria employed as to

children of mixed marriages.

At trial the defendants sought to prove that the Ordi-

nance was merely the written embodiment of ancient cus-

tom, or alternatively, that the Ordinance regulated mem-

bership for religious as well as secular purposes. The

Ordinance does not regulate religious as well as political

membership. As noted above, Audrey Martinez, although

not a recognized member of the Pueblo, is allowed to par-

ticipate in religious ceremonies to the same extent she

would be if she were a member. While there is a relation-

ship between religious life and secular, political life at

Santa Clara, the distinction has been clear for nearly four

hundred years. The Ordinance neither pertains to religious

membership, nor rily affects it.

Whether or not the Ordinance is an embodiment of pre-

existing ancient Pueblo custom is less clear. Before 1939

mixed marriages were relatively rare in the Pueblo, and

consequently there was no need for a hard and fast rule

concerning membership ; rather, the Council considered each

case separately. In that sense, the establishment of any

rule must be seen as a break with tradition.

On the other hand, the criteria employed in classifying

children of mixed marriage as members or non-members

are rooted in certain traditional values. It appears that

Santa Clara was traditionally patrilineal and patrilocal—

in other words, that kinship, name and location of residence

generally were expected to follow the male rather than the

female line. These cultural expectations have lost much

of their force, but they are not entirely vitiated. The absen-

tee voter lists of the Pueblo show that in 1971, 148 members

of the Pueblo lived elsewhere. Of these, 59 were men and

89 were women. In 1973, 143 members lived elsewhere, of

whom 59 were men and 84 were women. Furthermore, it is

father is or might be.

It is clear that the interests of plaintiffs and defendants

in the 1939 Ordinance are vitally important. Indeed, they

bers and their Territory, Worcester v. Georgia, 6 Pet. [31

U.S.] 515, 557, [8 L.Ed. 483] (1832); they are “a separate

and social relations. United States v. Kagama, 118

U.S. 375, 381-382 [6 S.Ct. 1109, 30 L.Ed. 228] (1886); Me-

Clanahan v. Arizona State Tax Commission, 411 U.S. 164,

173 [93 S.Ct. 1257, 36 L.Ed. 2d 129] (1973).’’ United States

v. Mazurie, —— U.S. ——, 95 S.Ct. 710, 42 L.Ed. 2d 706,

716, 717 (1975). This sovereign power, however, is subject to

limitation by Congress; as a practical matter Indian tribes

are sovereign only to the extent Congress has allowed them

to remain so. Worcester v. Georgia, supra; Williams v. Lee,

358 U.S. 217, 79 S.Ct. 269, 3 L.Bd.2d 251 (1959); Native

American Church of North America v. Navajo Tribal Coun

ou, 272 F.2d 131 (10th Cir. 1959); Colliflower v. Garland,

342 F.2d 369 (9th Cir. 1965); Groundhog v. Keeler, 442

F. ad 674 (10th Cir. 1971) ; Seneca Constitutional Rights Or-

ganization v. George, 348 F.Supp. 51 (W.D.N.Y. 1972);

United States v. Blackfeet Tribe of Blackfeet Indian Res-

ervation, 364 F.Supp. 192 (D.Mont. 1973) ; Lohnes v. Cloud,

366 F.Supp. 619 (D.N.D. 1973). In the specific instance

of membership determinations, it is well settled that Con-

gress may, and in some cases, has made membership de-

terminations for purposes of distribution of tribal prop-

erty under the control of the United States. Martinez v.

Southern Ute Tribe, 249 F.2d 915, 920 (10th Cir. 1957

cert.den. 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067, reh.

den. 357 U.S. 924, 78 S.Ct. 1374, 2 L.Ed.2d 1376; Simmons

v. Eagle Seelatsee, 244 F. Supp. 808 (E.D. Wash. S. D. 1965),

aff d 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed2d 480. It is

equally well settled that, absent Congressional restrictions,

an Indian tribe has the power to determine its own mem-

bership, at least for purely internal purposes. Martinez v.

Southern Ute Tribe, supra. Thus, the question presented

is to what extent Congress, by enacting 25 U.S.C. 5 1302,

corumonly known as the Indian Civil Rights Act, has exer-

cised its powers of control over membership determina-

tions.

Courts faced with the necessity of contruing 25 U.S.C.

§ 1302(8) have consistently held that the equal protection

guarantee of the Indian Civil Rights Act is not identical

to the constitutional guarantee of equal protection. Wound-

ed Head v. Tribal Council of Oglala Sioux Tribe, 507 F.2d

1079 (8th Cir. 1975); Daly v. United States, 483 F.2d 700

(8th Cir. 1973); Lohnes v. Cloud, supra; Groundhog v.

Keeler, supra. Instead, the Act and its equal protection

guarantee must be read against the background of tribal

sovereignty and interpreted within the context of tribal

law and custom. Crowe v. Eastern Band of Cherokee In-

dians, Inc., 506 F.2d 1231 (4th Cir. 1974) ; Means v. Wilson,

383 F.Supp. 378 (D.S.D. 1974). Unfortunately this princi-

ple does not answer questions so much as teach the terms

in which they must be asked.

—

den. 419 U.S. 871 (1974); Yellow Bird v. oe fen

enne River Sioux Tribal Council, 380 F.Supp. 201 (D.S.D.

1974); Johnson v. Lower Elwha Tribal Community, 484

F. 2d 200 (9th Cir. 1973); see also O Neal v. Cheyenne River

Stour Tribe, 482 F.2d 1140 (8th Cir. 1973). In addition, it

On the other hand, there is authority to the effect that

where a tribe has departed from traditional methods of

incorporate the constitutional equal protection standard of

Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663

(1962), and, if necessary, courts will enforce that stand-

ard by ordering reapportionment of tribal voting districts.

White Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973) ;

Daly v. United States, supra; Brown v. United States, 486

F. 2d 658 (8th Cir. 1973); but see White v. Tribal Council,

Red Lake Band of Chippewa Indians, 383 F.Supp. 810

(D.Minn. 1974). Even in this situation, however, the courts

have viewed the matter of reapportionment as an aspect

of equal enforcement of already existing tribal law, and

have refused to interpret the equal protection clause of 25

U.S.C. § 1302 (8) in a manner that would require the en-

franchisement of a new class of the tribal population,

Wounded Head v. Tribal Council of Oglala Sioux Tribe,

507 F.2d 1079, 1083 (8th Cir. 1975), on the grounds that

such an action would come dangerously close to substitut-

ing Anglo-American culture for tribal culture.

In light of the legislative history of the Act, and the

interpretations given it thus far, it is clear that 25 U.S.C.

§ 1302(8) should not be construed in a manner that would

invalidate a tribal membership ordinance when the classi-

fication attacked is one based on criteria that have been

traditionally employed by the tribe in considering member-

ship questions. The 1939 Ordinance does not violate the

restrictions of 25 U.S.C. § 1302(8), and plaintiffs have not

been denied the equal protection of the laws within the

meaning of the Indian Civil Rights Act.

Plaintiffs do not suggest that the Indian Civil Rights

Act should be interpreted in a manner which would impose

an Anglo-American equal protection standard on tribes in

derogation of their traditional values. To the contrary,

they have consistently argued, as have the defendants, that

the Act should be interpreted in such a manner as to pre-

serve the cultural identity of Indian tribes in genera] and

of Santa Clara in particular. Plaintiffs instead point out

that the sex of the parent who is a member of the Pueblo

bears little or no relationship to the strength of the parent’s

identification with traditional Santa Clara culture or the

likelihood that the parent will attempt to pass the tradi-

tional cultural values on to the child. They point out, quite

correctly, that Audrey Martinez and many other children

similarly situated have been brought up on the Pueblo,

26a

speak the Tewa language, participate in its life, and are,

culturally, for all practical purposes, Santa Clara Indians.

On the other hand, there are certainly instances of children

whose fathers are members of Santa Clara, but who have

been raised far from the Pueblo, who cannot speak the

language, who have not participated in the life of the

Pueblo, and who know nothing of its values, customs and

traditions, yet who are, under the 1939 Ordinance, recog-

nized as members. Plaintiffs contend that this is not only

irrational but actively destructive of the cultural identity

of the Pueblo.

Even assuming plaintffs are correct, the equal protec-

tion guarantee of the Indian Civil Rights Act should not

be construed in a manner which would require or authorize

this Court to determine which traditional values will pro-

mote cultural survival and therefore should be preserved

and which of them are inimical to cultural survival and

should therefore be abrogated. Such a determination should

be made by the people of Santa Clara; not only because

they can best decide what values are important, but also

because they must live with the decision every day. Obvi-

ously they can and should be the judges of whether a par-

ticular rule is beneficial or inimical to their survival as a

distinct cultural group.

Much has been written about tribal sovereignty. If those

words have any meaning at all, they must mean that a tribe

can make and enforce its decisions without regard to wheth-

er an external authority considers those decisions wise.

To abrogate tribal decisions, particularly in the delicate

area of membership, for whatever ‘‘good’’ reasons, is to

destroy cultural identity under the guise of saving it.

Congress has not indicated that they intended the Indian

Civil Rights Act to be interpreted in such a manner.

Judgment will be entered in accordance with this opin-

ion.

/s/ Eowis L. Mecuem

United States District Judge

27a

(Caption Omitted in Printing)

(Fund June 25, 1975)

Judgment

This cause having come on for trial, and it having been

determined that this cause is properly maintainable as a

class action under Federal Rule of Civil Procedure 23(b)

(2); that plaintiff Audrey Martinez may maintain this ac-

tion for herself and as the named representative of the class

of all children who are or will be born to marriages between

women who are recognized members of the Santa Clara

Pueblo and men who are not recognized members of Santa

Clara Pueblo; that plaintiff Julia Martinez may maintain

this action for herself and as the named representative

of the class of all women who are recognized members of

the Santa Clara Pueblo and who are married to or will in

the future marry men who are not recognized members of

Santa Clara Pueblo; and having made Findings of Fact

and Conclusions of Law in this case in the form of a Mem-

orandum Opinion and a Supplemental Memorandum Opin-

ion Concerning Jurisdiction, finding the issues in favor of

the defendants Santa Clara Pueblo and Governor Lucario

Padilla, individually and in his capacity as Governor of

the Pueblo, and against plaintiff Audrey Martinez, indi-

vidually and as the representative of her class, and plain-

tiff Julia Martinez, individually and as the representative

of her class; Now, Therefore,

Ir IS ORDERED, ADJUDGED AND DECREED that Judgment be,

and the same hereby is, entered for the defendants Santa

Clara Pueblo and Governor Lucario Padilla, individually

and in his capacity as the Governor of the Santa Clara

Pueblo, and against plaintiff Audrey Martinez, individually

and as representative of her above-described class, and

against plaintiff Julia Martinez, individually and as the

representative of her above-described class, and that the

plaintiffs’ cause of action be, and the same hereby is, dis-

missed.

/s/ Evwin L. Mecuem

United States District Judge

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 75-1615

Jol Martinez, on behalf of herself and all others

similarly situated, and

Avuprey Martinez, on behalf of herself and all others

similarly situated,

Plawntiffs-Appellants,

Santa Ciara PVrsTo, and Lucario PanLA,

individually and as Governor of the Santa Clara Pueblo,

Defendants-Appellees.

Association on American Inpuanw Arras, Ivc., et al,

Amici Curiae,

Appeal from the United States District Court for the

District of New Mexico

(D. C. No. 9717)

Richard B. Collins, Window Rock, Arizona (Alan R. Tara-

dash and Tim Vollman, Window Rock, Arizona, on the

brief), for Plaintiffs-Appellants.

Mare Prelo, Jr., Albuquerque, New Mexico (Richard J.

Grodner, Albuquerque, New Mexico, on the brief), for

Defendants-A ppellees.

Arthur Lazarus, Jr., Washington, D.C., for Amici Curiae,

Association on American Indian Affairs, Inc., and The

Seneca Nation of Indians of New York.

Marvin J. Sonosky, and Of Counsel: W. Richard West, Jr.

for Amicus Curiae, Shoshone Indian Tribe of the Wind

River Reservation, Wyoming.

Philip R. Ashby, Albuquerque, New Mexico, and Of Coun-

sel: Richard Schifter, Washington, D. C. for Amicus

Curiae, Pueblo of Laguna.

Before Barzerr and Dori, Circuit Judges, and Sraxtxx,“

District Judge.

Dorie, Circuit Judge.

This case draws into question the validity of a member-

ship ordinance of the Santa Clara Pueblo in New Mexico.

The challenge is by appellants, on behalf of themselves

and others similarly situated. This appellant class is com-

posed of female members of the Pueblo, who are married

to non-members, together with their children. Appellees,

on the other hand, are the Pueblo and Lucario Padilla, in-

dividually and as governor of the Pueblo. The ordinance

grants membership in the Pueblo to [a lll children born

of marriages between male members of the Santa Clara

Pueblo and non-members. . . It precludes membership

for lelhildren born of marriages between female mem-

bes of the Santa Clara Pueblo and non-members. . . .’’ Ap-

pellants have alleged that the ordinance contravenes the

equal protection and due process provisions of the Indian

Civil Rights Act of 1968, 25 U.S.C. Section 1302 (8).“ In a

trial to the court the decision was in favor of defendants.

Martinez v. Santa Clara Pueblo, 405 F. Supp. 5 (D.N.M.

1975).

The subject membership ordinance was enacted on De-

cember 15, 1939, in response to a marked increase in mar-

riages between Pueblo members and non-members. Prior

to 1930 these had been rare. Prior to the enactment, mem-

* Of the District of Kansas, sitting by designation.

The statute provides, in pertinent part, that:

No Indian tribe in exercising powers of self-government

shall

(8) deny to any person within its jurisdiction the equal

protection of its laws or deprive any person of liberty or

property without due process of law; * .

25 U.S.C. Section 1302(8).

bership in the Pueblo for children of mixed marriages had

been determined on an individual basis. In addition, wit-

nesses for the Pueblo testified that there had been several

instances, prior to 1939, in which the offspring of female

line mixed marriages had been granted membership. The

increase in mixed marriages produced concern about the

enlarged demands for allocation of land and other tribal

resources. The Pueblo’s elders were apprehensive that the

population increase resulting from intermarriage would

strain the Pueblo’s finite resources. It was, then, in re-

sponse to the economic consequences of mixed marriages

that the Pueblo Council determined that the offspring of

female line mixed marriages would be denied membership

while the offspring of male line mixed marriages would be

admitted to membership.’

Appellant Julia Martinez, whose parents were Santa

Clarans, is a member of the Pueblo. Her husband is a full-

blooded Navajo and is not a member of the Pueblo. Their

eight living children, including appellant Audrey Martinez,

are as a result of the ordinance barred ‘rom membership

in the Pueblo. The Martinezes have lived at the Pueblo con-

The ordinance is as follows:

Bet it ordained by the Council of the Pueblo of Santa Clara,

New Mexico, in regular meeting duly assembled, that here-

after the following rules shall govern the admission to mem-

bership to the Santa Clara Pueblo:

1. All children born of marriages between members of the

Santa Clara Pueblo shall be members of the Santa Clara

3la

tinuously since their marriage in 1941. All of the Martinez

children were reared at the Pueblo; all speak Tewa, the

traditional and official langnage of the Pueblo; all are al-

lowed to practice the traditional religion. In effect, the

Martinez children are, culturally, members of the Pueblo.

Since 1946, Ms. Martinez has attempted to enroll her

children in the Pueblo through all of the procedures avail-

able under the Pueblo government. When her resort to

Pueblo remedies proved vuavailing, she brought this action.

Appellants have alleged that the ordinance deprives the

non-member children of various rights, including residence

at the Pueblo as a matter of right; certain political rights,

such as voting, holding secular office, bringing matters be-

fore the Pueblo council; sharing in the material benefits of

Pueblo membership, such as using the land, hunting and

fishing. Appellants also contended that the ordinance pre-

vents Ms. Martinez from passing her possessory interest

in land * on to her children.

The trial court ruled for the Tribe, holding that the ordi-

nance did not violate the Indian Civil Rights Act. Judge

Mechem recognized the Pueblo’s interest in membership

policies generally «nd in the 1939 ordinance specifically and

noted that if the Pueblo’s inability to define who is a Santa

Claran is limited or restricted, the Pueblo’s culture would

be changed. He recognized also the legitimacy of the Pue-

blo’s interest in its economic survival and that economic

survival and cultural autonomy are interrelated, i.e., eco-

nomics affects the Pueblo’s ability to maintain its cultural

* The Pueblo holds all of the land within the Pueblo’s boundaries

in fee simple title in common pursuant to an 1858 Act of Congress.

11 Stat. 374; New Mexico v. Aamodt, —— F.2d ——., Nos. 75-1069,

75-1106 (10th Cir. filed June 28, 1976), at 24. Individual members,

however, are granted possessory interests in tracts of land which

they may pass on to their descendants. The devolution of the pos-

sessory interests does not diminish the Pueblo’s superior proprietary

right.

32a

autonomy and identity. While Judge Mechem found that

the ordinance had no bearing on Pueblo religion, he did

find that the male-female distinction was ‘‘rooted in cer-

tain traditionai values,’’ 402 F.Supp. at 16—the Pueblo’s

patrilineal and patrilocal traditions. In assessing the scope

of the Indian Civil Rights Act, Judge Mechem found that

the scope of the Act’s equal protection provision was not

coterminous with the constitutional guarantee of equal pro-

tection. ‘‘... [T]he Act and its equal protection guarantee

must be read against the background of tribal sovereignty

and interpreted within the context of tribal law and cus-

tom.’’ Id. at 17. He concluded ‘‘that 25 U.S.C. Section 1302

(8) should not be construed in a manner that would invali-

date a tribal membership ordinance when the classification

attacked is one based on criteria that have been tradition-

ally employed by the tribe in considering membership ques-

tions.’’ Id. at 18, and that, thus, the ordinance did not

deny appellants equal protection within the meaning of

the Indian Civil Rights Act.

The issues to be considered on this appeal are: one, the

sovereign immunity of the Pueblo and whether this court

has jurisdiction to entertain the cause; and two, the legal

standard applicable to claims of denial of equal protection

under the Act. Third, we must decide whethe - the ordinance

conflicts with the Civil Rights Act and, if so, whether the

Act is to prevail or must give way to tribal authority.

Wueruer tHe Cover Has Junispicrion To

ENTERTAIN THE CAUSE

The Tribe maintains that sovereign immunity precludes

this suit. It also argues that the Indian Civil Rights Act

does not furnish jurisdictional basis. We disagree. We have

previously considered these arguments and have ruled that

jurisdiction exists. Dry Creek Lodge, Inc. v. United States,

33a

515 F.2d 926 (10th Cir. 1975). We aise held that to the ex-

tent that the Indian Civil Rights Act applies, tribal immu-

nity is thereby limited. Dry Creek Lodge, Inc. v. United

States, supra, at 934, n.9. On the question of jurisdiction we

said that 28 U.S.C. Section 1343(4) which provides for dis-

trict court jurisdiction over actions brought under ‘‘any

Act of Congress providing for the protection of civil

rights“ constituted an appropriate jurisdictional basis for

actions under the Indian Civil Rights Act. Dry Creek

Lodge, Inc. v. United States, supra, at 933, n.6, citing cases.

Finally, since this Act of Congress was designed to provide

protection against tribal authority, the intention of Con-

gress to allow suits against the tribe was an essential as-

pect. Otherwise, it would constitute a mere unenforceable

declaration of principles.

II.

Tue Meantnc To Be Gr ro Equat PROTECTION OF THE

Laws as Provipep rmx tHe Inpmunw Crvm Ricuts Act

A. Legislative History.

The Act of Congress in question which is found at 25

U.S.C. Section 1302 undertakes to single out the more im-

portant civil rights contained in the Constitution and to

render those applicable to tribal members who reside on

the reservation. The pertinent portion of the equal protec-

tion clause has been, as is apparent from n.1 above, selected

as one of the specific protections adopted.“

‘The Act as it was finally passed, H.R. 2516, Title II (25 U.S.C.

Section 1302), reads as follows:

Tite I—Rueuts or INDIANS

Definitions

Sec, 101. For purposes of this title, the term

(1) „Indian tribe means any tribe, band, or other group

of Indians subject to the jurisdiction of the United States

and recognized as possessing powers of self-government ;

(2) „powers of self-government’’ means and includes all

* * 5

nn 4

‘

particular

place to be searched and the person or thing to be seized;

(3) subject any person for the same offense to be twice put

;

(4) compel any person in any criminal case to be a witness

(5) take any private property for a public use without just

compensation ;

(6) deny to any person in a criminal proceeding the right

to a speedy and public trial, to be informed of the nature and

(9) pass any bill of attainder or ex post facto law; or

35a

the Federal Constitutional provision (Amendment XIV),

which guarantees equal protection to all citizens including

Indians. If full constitutional protection is not provided by

the Act, to what extent does it furnish protection against

discrimination which would under constitutional standards

be held invidious and violative? °

The Indian Civil Rights Act of 1968 was the product

of considerable study, most of which was conducted during

1961-63 by the Subcommittee on Constitutional Rights of

the Senate Judiciary Committee (1961-63 Hearings).* The

authorizing Senate Resolution 53 was broad. It allowed the

investigation to extend to all matters pertaining to civil

rights.’’ 107 Cong.Rec. 997 (1961). The Subcommittee car-

ried on a broad inquiry into Indians’ constitutional rights

in relation to tribal, State, and Federal authority.

The numerous abuses and denials of conatitntional rights

which were found to exist led to the introduction in 1965

of a series of bills designed to safeguard Indians’ constitu-

tional rights. See S.Rep. No. 841, 90th Cong., Ist Sess.

(1967), pp. 5-6. The bill most pertinent to the case at bar

was 8.961 which provided that an Indian tribe in exercising

its powers of local self-government was subject to the same

limitations and restrictions as those which are imposed on

the Governments, Federal and State, by the United States

Constitution. The broad scope of the hearings is apparent

(10) deny to any person accused of an offense punishable by

imprisonment the right, upon request, to a trial by jury of not

less than six persons.

* We assume, for the moment, that the discrimination here in

question is invidious.

* Hearings on Constitutional Rights of the American Indian Be-

fore the Subcom. on Constitutional Rights of the Senate Comm. on

the Judiciary, 87th Cong., Ist Sess., pt. 1 (1962), 87th Cong., Ist

Sens, pt. 2 (1963), 87th Cong., 2d Sess, pt. 3 (1963), and 88th

Cong., Ist Seas, pt. 4 (1964).

Cong., Ist Sess. (1967), and it passed unanimously, 113

Cong. Rec. 35471-77 (1967), as S. 1843. After that the House

of Representatives conducted hearings. Senator Ervin,

the bill’s chief sponsor in the Senate, became impatient

(1968), and the measure became law as Title II of the Civil

* Hearings on Constitutional Rights of the American Indian, S.

961-68 & S.J. Res. 40, Before the Subcom. on Constitutional Rights

37a

Rights Act of 1°68. The provisions extending these specific

rights to Indians are codified at 25 U.S.C. Section 1302.

The congressional hearings gave little attention to con-

law and procedure of individuals in the tribal courts. Also,

anothor area in which the Congress was particularly pre-

occupied was protecting generally the rights of individual

Indians against infringement by tribal government. One

proposal brought out in the 1965 hearings on 8.961 would

have made tribal governments fully subject to all constitu-

tional restraints and requirements, but this was rejected

due to the complexity of giving equality in voting rights

which might conflict with tribal blood quantum require-

ments for membership and voting. Also, the First Amend-

ment non-establishment clause, it was pointed out, would

endanger the continued existence of Pueblo theocracies.

1965 Hearings 65, 221. But no such limitations were sug-

gested with respect to equal protection which was frequent-

ly characterized as a basic or fundamental right among the

guarantees. E.., 1965 Hearings 18, 61.

In response to criticism calling for enumeration of con-

stitutional protections being extended to Indians, e.g., 1965

Hearings 17, 65, 961, the Subcommittee amended the bill

in order to delete the non-establishment clause and the

Fifteenth Amendment as well as to specify the constitu-

tional guarantees granted from the First and Fourth

through Eighth Amendments plus the equal protection

guarantee of the Fourteenth Amendment. 8.1843; Indian

Civil Rights Act of 1968, 25 U.S.C. Section 1302. This fur-

nishes evidence that Congress actually considered the vari-

ous rights contained in the Bill of Rights and retained

those wihch it considered essential and eliminated those

parts which it deemed to be out of harmony with Indian

culture.

There were conflicting statements regarding refraining

from undermining tribal authority. E. g., 1961-63 Hearings

5, 287. But the Subcommittee members stated at the hear-

ings, in Committee reports and in floor debates, their intent

to extend broad constitutional protections to individual In-

dians. Senator Ervin stated that 8.961 was intended to

insure that individual Indians had the same rights against

tribal authorities as other American citizens had under the

Constitution. It was pointed out by others that off the res-

ervation Indians had the same rights as other American

citizens, but on the reservation their rights depended upon

the benevolence of the tribal government. E.., 1961-63

Hearings, 3, 8, 286, 447; 1965 Hearings, 165, 221.“ During

the floor debaie Senator Ervin said that the purpose of the

bill was ‘‘to confer upon the American Indians the funda-

mental constitutional rights which belong by right to all

Americans. 113 Cong. Rec. 35473 (1967).

The legislative history was not strictly limited to pro-

tection of individuals in tribal courts. There was attention

given to the guarantee of the exercise of religious freedom.

Instances were cited in which there had been deprivations

of religious freedom and also there was evidence that ac-

tions in United States courts brought to vindicate these

violations had failed on the ground that constitutional re-

quirements were inapplicable to tribal governments.” This

»The Committee report accompanying S. 1843, S. Rep. No. 841,

stated that:

% The cases were Toledo v. Pueblo de Jemez, 119 F. Supp. 429

(D.N.M. 1954) ( against Protestants by Pueblo) and N

tive American Church v. Navajo Tribal Counce

Cir. 1959) (ban on peyote).

—

8 5

The legislative history is not free of evidence that Con-

gress considered that in an evaluation such as the present

one the cultural autonomy and integrity of the tribes were

entitled to be weighed. Thus the deletion of the non-estab-

lishment clause and the Fifteenth Amendment appears to

have been in deference to the traditional Indian culture. At

the same time nothing resembling a formula for determin-

ing which of these conflicting interests is to prevail has

been furnished.

It is significant that the Pueblos opposed the legislation

in question. They regarded it as an effort to import into the

tribal government the standards of United States consti-

tutional law. The effect of this would, of course, be to un-

dermine tribal law.

About the only way to resolve this conflict is to recog-

nize the necessity to evaluate and weigh both of these in-

terests. Thus the scope, extent and importance of the tribal

interest is to be taken into account. The individual right to

fair treatment under the law is likewise to be weighed

against the tribal interest by considering the clearness of

the guarantee together with the magnitude of the interest

generally and as applied to the particular facts. See Note:

The Indian Bill of Rights and the Constitutional Status of

Tribal Governments, 82 Harv.L.Rev. 1343, 1355-60 (1969).

The concern of Congress was to protect against serious

deprivations of constitutional rights while giving as much

effect as the facts would allow to tribal autonomy.

As a result of this comparative weighing, the question

which we must answer is whether an ordinance such as

the present one which differpntiates between the rights of

to subsection (8), the equal clause of the Indian

Bill of Rights, can be u A study of the legislative

history, while it gives some guides and suggestions,

fails to provide a conclusive answer to the ultimate ques-

tion presented in the case. legislative proceedings do

manifest a congressional i

guarantee unless the tribal

the specific guarantee. In view of at least limited uncer-

tainty, we proceed to a consideration of the positive deci-

sion law touching the subject.

B. Consideration of the Precedents.

The extent to which the equal protection clause of sub-

section (8) of the Indian Bill of Rights affords protection

to affected persons such as the appellants is a novel ques-

tion. While the decided cases have taken up and considered

the equal protection clause in connection with related prob-

lems, no court has come to grips with the issue of discrim-

ination by a tribe against Indian women. And so we ask

the question whether a tribe may extend to men members

fundamental rights while simultaneously denying the same

rights to its women.

There are cases which say that Congress did not intend

in enacting the Indian Civil Rights Act to subject a tribe

to identical compulsions as those which are exacted under

the equal protection clauses of the Fourteenth and Fifth

Amendments to the Constitution of the United States.“

u See Howlett v. The Salish and Kootenai Tribes, 529 F.2d 233

(9th Cir. 1976) ; Wounded Head v. Tribal Council of Oglala Sioux

Tribe, 507 F.2d 1079 (8th Cir. 1975); McCurdy v. Steele, 506 F. 2d

653 (10th Cir. 1974); Groundhog v. Keeler, 442 F.2d 674 (10th

Cir. 1971) ; see also Note, The Indian Bill of Rights and the Con-

stitutional Status of Tribal Governments, 82 Harv.L.Rev. 1343

(1969).

4la

That is not the same as saying that men can be preferred

over women in a substantial way.

One example in which the equal protection standard

comes into play but in which the discrimination is less

pronounced is in the cases dealing with the quantum of

Indian blood as a criterion for tribal membership. Under

the Constitution this type of case would constitute a viola-

tion. See for example Hirabayashi v. United States, 320

U.S. 81 (1943). Courts have, however, had little trouble

in upholding these requirements when they have been chal-

lenged under the Indian Civil Rights Act. See Slattery v.

Arapahoe Tribal Council 453 F.2d 278 (10th Cir. 1971),

involving the requirement that tribal members possess one-

quarter degree Indian blood. There was also the one-quar-

ter requirement in Daly v. United States, 483 F.2d 700 (8th

Cir. 1973). One-half degree was upheld for office-holding in

the Crow Creek Sioux in the same decision.

The fact that the blood quantum requirement has been

sustained furnishes little basis for upholding the discrim-

ination in the case at bar because there is some semblance

of basis for the classification. This is in terms of ancestral

lines and in maintaining the integrity of the membership.

Congress itself has employed these requirements in its def-

initions and other measures. E. g., 25 U.S.C. Sections 1262,

1300e-1, 3 (1972 laws governing distribution of judgment

funds to Indian tribes); Act of June 28, 1898, Section 21,

30 Stat. 495, 502-03 (enrollment criteria for Cherokee In-

dians).

We have examined the various other areas in which

subsection (8) has been applied. Invariably the courts

look to the Fourteen h Amendment to the Constitution as

a guide. This is true in the election requirement cases both

for voting and holding office, in the apportionment of

1 F.., Wounded Head v. Tribal Council of Oglala Sioux Tribe,

507 F.2d 1079 (8th Cir. 1975) (rejecting challenge based in part

on purported application of 26th Amendment).

42a

tribal legislatures,” residency requirements for voting and

holding office,* and irregularities in the conduct of an

election.“

t of the Tribe in maintaining its integrity and

— — tribal cultures is entitled due consdera-

ton. See Means v. Wilson, 522 F. 2d 833 (8th Cir. 1975). And

where the tribal tradition is deep-seated and the individual

injury is relatively insignificant, courts should be and have

been reluctant to order the tribal authority to give way. See

Howlett v. The Salish and Kootenai Tribes, 529 F.2d 333

(9th Cir. 1976).

It is conceded that if the validity of the instant ordinance

were to be measured by the Fourteenth Amendment alone,

it would have to held violative because it draws its classi-

fication lines solely on the basis of sex. The offspring of a

mixed marriage in which the woman is a Santa Claran are,

by the terms of the ordinance, disqualified from member-

ship in the Pueblo. Where, however, the man is a member

of the Santa Clara Pueblo, the offispring of this mixed mar-

riage suffer no such disability. An enactment which works

this kind of discrimination violates the equal protection

clause of the United States Constitution. Frontiero v. Rich-

ardson, 411 U.S. 677 (1973). See also Stanton v. Stanton,

421 U.S. 7 (1975); Weinberger v. Weisenfeld, 420 US.

636 (1975); Reed v. Reed, 404 U.S. 71 (1971).

The Fourteenth Amendment standards do not, however,

apply with full force. They do, nevertheless, serve as a

1 F. g., Daly v. United States, 483 F.2d 700 (8th Cir. 1973) ; White

Eagle v. One Feather, 478 F.2d 1311 (8th Cir. 1973) (requiring

reapportionment ).

% E.g., Howlett v. The Salish and Kootenai Tribes, 529 F. ad

233 (oth Cir, 1976); Two Hawk v. Rosebud Sioux Tribe, 404 F.

Supp. 1327 (D.S.D. 1975) (upholding residency requirements).

%* F.., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (setting

aside election).

43a

persuasive guide to the decision. The history and decisions

teach us that the Indian Bill of Rights is modeled after

the Constitution of the United States and is to be inter-

preted in the light of constitutional law decisions.

But we must still ask: is the Tribe justified in deviating

from the Fourteenth Amendment standard on the basis

that tribal, cultural and ethnic survival would suffer from

full-scale enforcement of subsection (8) to these facts? We

must hold that the facts do not support a decision that the

Tribe’s interest is compelling. The children of Julia and

Myles Martinez are 100 percent Indian and 50 percent

Santa Claran. They speak the language of the Santa Clara

Pueblo, namely, Tewa. They practice the customs of the

Tribe and are accepted into the Tribe’s religion; neverthe-

less, they are denied membership and face exclusion with

attendant loss of rights of inheritance, residency and vot-

ing, together with ability to pass tribal membership to their

offspring, solely because their mother rather than their

father is a Santa Claran. Compare this with the rights that

are accorded the male member of the Santa Clara Pueblo.

Even if he marries outside the Pueblo one who is not an

Indian, and even though his family resides outside the

territory of the Tribe, the offspring are entitled to tribal

membership. The Tribe has not shown how such an incon-

gruous and unreasonable result fosters and promotes cul-

tural survival.

The contention is that the culture is patrilineal, patri-

local or patricultural. These, however, are conclusory char-

acterizations. What is the history? The ordinance was

passed in 1939 to deal with an unprecedented phenomenon,

namely, mixed marriages on a relatively wide scale which

resulted from Indians of different tribes meeting and en-

countering one another in Indian schools. An added element

was Indians becoming acquainted while employed off the

reservation. They met not only Indians from other tribes,

but Anglos as well. Traditionally the Santa Clara female

There is evidence that the ordinance was the product of

economics and pragmatics. It appeared to the governing

body of the Tribe that the offspring of mixed marriages

threatened to swell the population of the Pueblo and di-

minished individual shares of the property. If this were the

pressing problem it could have been solved without resort-

ing to discrimination—by simply excluding the offspring of

both sexes where the parent, either male or female, mar-

ried outside the Pueblo.

We do not deny that the power to control and define

tribal membership is important in preserving the Tribe’s

culture and ethnic identity. 402 F. Supp. at 15. Also of

great importance is the interest of the individual Indian

in tribal membership. His interest extends to living in a

particular cultural setting in close relationship with fellow

members, inheriting tribal rights, and enjoying federal and

other incidental benefits. See Morton v. Mancari, 417 U.S.

535, 553 n.24 (1974). If the equal protection clause of the

ICRA is to have any consequence, it must operate to ban

invidious discrimination of the kind present in this case.

The effect of the ordinance under attack is not to exclude

cultural outsiders from the Santa Clara Pueblo. The Mar-

It is not for us to say that the meaning is unclear or that

some other effect was intended. We must conclude that

subsection (8) means what it says and that the ordinance

is out of harmony with it. The instant tribe policy is of

relatively recent origin and so it does not merit the force

that would be attributable to a venerable tradition: Also,

inasmuch as it originates from practical economic consid-

erations, it becomes an arbitrary and expedient solution to

the problem which was then confronting the Tribe. In sum,

if we were to approve their ordinance and in turn approve

this plain discrimination, it would be tantamount to saying

that the Indian Bill of Rights is merely an abstract state-

ment of principle.

The judgment of the district court is reversed and the

cause is remanded for further proceedings.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.