# Petition — Santa Clara Pueblo v. Martinez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1676%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 436 U.S. 49 ## Text Pad 4 a ¥,. * n 4 bi : an — 1. 8288 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 10 15 17 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. e be a ble to any person, in a court of the United r ee oe ee oe ee * * 0 2 . 8 * ~ * * 4 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 —— 7 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 13 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 OF 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 I H f 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 17 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. 18 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 19 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 22 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 — ea 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 or 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 By Marc PRELO , 1976 N APPENDIX la 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 ta 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” 5a 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. 6a 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.“ Ta 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, 1 Hit i t . ' i 71181 ii g 2 FF f 5 71 F : E 1 7 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- 14 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- 2a 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, v. 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. I. 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 8 ‘ 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). 2 8 * N ee 8 — 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1676%3A01. Public record. Not legal advice.