Opposition — Shortbull v. Looking Elk

Supreme Court of the United States

October Term, 1982

THOMAS SHORTBULL,

Petitioner,

v.

STANLEY LOOKING ELK, et. al.,

Respondent,

No. 82-161

BRIEF FOR RESPONDENT

IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

Counsel of record and upon whom service is to be made:

DENNIS H. HILL, ESQ.

COSTELLO, PORTER, HILL,

NELSON, HEISTERKAMP, & BUSHNELL

ATTORNEYS FOR RESPONDENT

P.O. BOX 290

704 ST. JOE STREET

RAPID CITY, SOUTH DAKOTA

605-343-2410

(i)

QUESTIONS PRESENTED

(Same as Petitioner)

(ii)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................0.000005 (i)

TABLE OF AUTHORITIES .................. (iii), (iv)

OPINIONS BELOW.................cccccceeeuuees 2

GROUNDS FOR COURT'S JURISDICTION .......... 2

STATUTORY PROVISIONS INVOLVED ............ 2

STATEMENT OF THECASE ..................... 4-7

SUMMARY OF ARGUMENT ..................5. 7, 30

0 RREENIERSIR or ere ae eT 7,31

CONCLUSION ............0055. pe gneseedivncce kes $2

(iii)

TABLE OF AUTHORITIES

Cases: Page

Action v. Gannon,

450 F.2d 1227 (Sth Cir. 1971)... 6... ccc eee ee eee 29

Baer v. Baer,

450 F.Supp. 481, (N.D. Cal. 1978)... 2. ©... 6 cece 29

Cameron v. Brock,

473 F.2d 608 (6th Cir. 1973) © 6 cnn 29

Chose v. McMasters,

sk > cece bc cvoeewbevéesdenedeavieenie 31

The Class Based Answers of 42 U.S.C. § 1985 (c):

A Suggested Approach,

64 Minnesota L.Rev. 635, 642-44, (1980) ...... 6... eee 29

Duff v. Sherlock,

432 F.Supp. 423, 429(E.D. Pa. 1977)... eens 30

Glasgow v. City of Louisville,

528 F.2d 899, (6th Cir.) cert. denied, 423 U.S. 930,

96 S.Ct. 280, 46 L.Ed.2d 258(1975) ©... 2.6. 29

Great American Federal Savings and Loan

Association v. Novotny,

442 U.S. 366, 389, 6, 99 S.Ct. 2345,

ER, cL oo ccebncverecoetdartcuvnesusmes 29

Griffin v. Breckenridge,

403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2 $38(1971)........... 7.29

Lesonan v. McCormick,

591 F.2d 605, 608, (10th Cir.) 1979 .. 2.6. cee 30

Marlowe v. Fisher Body,

489 F.2d 1057, (6th Cir.) 1978 6c 29

McLellan v. Mississippi Power @ Light Co.,

ee, ee 30

(iv)

TABLE OF AUTHORITIES, CONT.

Cases:

McNally v. Pulitzer Publishing Co.,

532 F.2d 69, 75 (8th Cir.), cert. denied, 429 U.S. 855,

97 S.Ct. 150, 50 L.Ed.2d 131(1976) ..................

Means v. Wilson,

522 F.2d, 833 (8th Cir. 1975),

cert. denied in 424 U.S. 958, 96S.Ct. 1436 .............

Oarchman v. Korman Corp.,

456 F.Supp. 730, 734 (E.D. Pa. 1978), cert. denied,

444 U.S. 898, 100 S.Ct. 205, 62 L.Ed.2d 133(1979)......

Puentes v. Sullivan,

425 F.Supp. 249 (W.D. Tx. 1977) ...............0065.

Philadelphia Yearly Meeting of the

Religious Society of Friends v. Tate,

DED F Be CEO GR Ge. DOF oi cease rcccedsecsevss

Santa Clara Pueblo v. Martinez,

SP PEED 0 i's weREE Wada wend cccovesendebes

Ward v. Connor,

Se ee CU GEEs GEOR Sewn. Fevecccscccccceceenes

No. 82-161

IN THE

Supreme Court of the United States

October Term, 1982

THOMAS SHORTBULL,

Petitioner,

v.

STANLEY LOOKING ELK, et. al.*,

Respondents,

RESPONDENT IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

The respondent, Stanley Looking Elk, et. al., respectfully

prays that the petition for writ of certiorari to review the

judgment and opinion of the United States Court of Ap-

peals for the Eighth Circuit entered in this proceeding on

May 3, 1982, be denied.

*Respondents included:

Stanley Looking Elk, Elijah Whirlwind Horse*, James Mousseau, Ivan

Bettelyoun, Marvin Amiotte, Gerald (Jump) Big Crow, Lyman Red

Cloud, Delores Whitehead, Edgar High Whiteman, Gilbert Matthews,

Dave Brewer, and Jerry Matthews. *Deceased

OPINIONS BELOW

The opinion of the Court of Appeals, not yet reported,

together with the opinion of the United States District Court

for the District of South Dakota, Western Division 507 F.

Supp. 917 D.C.S.D. 1981 which it affirmed, appear in Ap-

pendices A and B of Petitioner's petition.

GROUNDS FOR COURT'S JURISDICTION

(Same as Petitioner)

STATUTORY PROVISIONS INVOLVED

(Same as Petitioner)

3

STATEMENT OF THE CASE

Petitioner was born at Igloo, South Dakota, which

town is not on the Pine Ridge Reservation, South Dakota.

His father is an enrolled member of the Oglala Sioux Tribe.

Petitioner lived at Igloo, South Dakota with his parents un-

til they moved to Denver, Colorado, where Petitioner at-

- tended Kindergarten. He lived on the Pine Ridge Reserva-

tion during first and second grade and then moved to

Belvidere, South Dakota, a city off the Pine Ridge Reserva-

tion. He again lived at Igloo, South Dakota, with his

parents from fourth grade through twelfth grade. His father

and mother did not vote in Tribal elections. His father was

a civilian painter at the Ordinance Department at Igloo,

South Dakota.

Petitioner established his home on the Pine Ridge

Reservation June 1, 1975, and has lived there ever since.

Petitioner's mother had submitted his name for enroll-

ment at the Rosebud Sioux Tribe in 1973.

He then relinquished his right as a member of the

Rosebud Sioux Tribe on March 28, 1974. His mother also

submitted his application for membership in the Oglala

Sioux Tribe in 1963.

The case arises out of a dispute concerning the primary

and general elections for the office of Tribal President of

the Oglala Sioux Tribe. Petitioner charges that a conspiracy

on the part of the Respondents in violation of 42 U.S.C. §

1985 (3) led to his name not being placed on the ballot for

the primary election to be held February 5, 1980. To fully

understand Petitioner's allegations it is necessary to trace

the facts leading up to the tribal elections.

As of April 1, 1935, the tribe established an official

census of members. The Bureau of Indian Affairs has an

established policy of classifying the members of the Oglala

Sioux Tribe as “A” alloted (those to whom 160 acres of land

were awarded pre 1935), and “U” unalloted (those that were

not given land), and for those born of members but off the

reservation at the time of birth and nonresidents the

classification “NE”. These terms have been used by the

Oglala Sioux Tribe although the membership rolls have not

been expanded by enrollment action on NE’s until 1982

(beyond this record). The tribe's constitution provides:

Section 1 — The membership of the Oglala Sioux

Tribe shall consist as follows:

(a) All persons whose names appear on the

official census roll of the Oglala Sioux Tribe of the

Pine Ridge Reservation as of April 1, 1935...

(b) All children born to any member of the

tribe who is a resident at the time of birth of said

children.

In 1979 the Oglala Sioux Tribe adopted resolution

79-08 which called for the creation of a tribal enrollment

committee which committee had not been established when

on January 9, 1980, Petitioner Thomas Shortbull filed his

nominating petitions for the office of Tribal President. '

Even though Petitioner's petitions apparently contained a

sufficient number of names to meet the tribe’s requirements

for a presidential candidate, the tribal election board failed

to take any action in regard to Petitioner's nominating peti-

NOTE |: The ordinance was implemented in 1982. The application for

membership of Petitioner, along with the other NE’s, was

acted upon pursuant to the ordinance. Petitioner's applica-

tion for membership was approved and presurnably if Peti-

tioner would run for office at this time and met all the can-

didacy requirements his petition for candidacy would be

favorably acted upon.

tions after receipt of them. The reason for the board's

refusal to certify Petitioner as a candidate was that he is not

an enrolled member of the Oglala Sioux Tribe, a require-

ment of that office. After several tribal meetings and pleas

by Petitioner that he be certified as a candidate,*? on

January 24, 1980, the Tribal Council adopted a resolution

directing the tribal election board to certify Petitioner as a

candidate for the upcoming tribal election. However, on

January 29, 1980, a resolution was adopted by the Tribal

Council which provided for the “Tribal Council body to

uphold the Constitution and By Laws and Election Or-

dinance, and also uphold any decision of the Election

Board.”

On January 24, 1980, H. Clyde Red Shirt, chief judge

of the Tribal Court, ordered the riection Board to certify

Plaintiff as a candidate and place his name on the February

5 primary election ballot. This decision was appealed

January 28, 1980, to the Tribal Appeals Court, and Judge

Red Shirt's order was suspended by the Appeals Court. On

February 1, 1980, irrespective of the action of the Appeals

Court, Red Shirt held several tribal officials in contempt for

failure to implement his order regarding the placement of

the Plaintiff's name on the ballot. He ordered these officials

arrested and they were placed in jail. On this same day, the

Tribal Council removed Judge Red Shirt from office and

Judge Delores Whitehead quashed his orders of arrest. Fur-

thermore, the Oglala Sioux Tribal Appeals Court stayed ex-

NOTE 2: Petitioner claims the Tribal Council on January 9, 1980, pass-

ed a motion to allow NE’s to vote and run for office in the

Primary Election. On January 18, 1980, this action was

rescinded by the council. On January 24, 1980, in response to

Judge Red Shirt's order the Council took action to certify Peti-

tioner’s candidacy. On January 29, 1980, the Council finally

resolved to follow the Constitution and By-Laws and “support

the decisions of the election board.” In the meantime Peti-

tioner failed to appeal the decision of the appeals board as re-

quired by the election ordinance.

ecution of Red Shirt’'s orders of February 1, 1980. Also, on

February 1, 1980, the election board notified Plaintiff that

he was not eligible to run for tribal president because he was

listed on the tribal records as an N.E.

On February 4, 1980, Red Shirt ruled that he was still

Chief Judge and had arrest warrants re-issued for those per-

sons he had held in contempt of court. He also ordered

postponement of the February 5 primary election. On this

same day, Judge Whitehead quashed Red Shirt’s arrest war-

rants and ordered that Red Shirt's contempt citations of

February 1 be purged. The primary election was held on

February 5 as scheduled without Petitoner’s name on the

ballot.

Petitioner subsequently filed a suit in this Court on

February 11, 1980. That suit, which named various tribal

officials as defendants, was brought under 42 U.S.C. § 1985

(3) and 42 U.S.C. § 1983. In it Petitioner asked for damages

and for the Court to declare the acts of the Respondents

unlawful and to enjoin Respondents from taking such ac-

tion in the future. Petitioner subsequently filed a motion for

a temporary restraining order attempting to enjoin the

tribal general election which was scheduled for March 11,

1980.

On March 7, 1980, the Honorable Donald J. Porter

denied Petitioner's motion for a temporary restraining

order and dismissed Petitioner's complaint. Judge Porter's

dismissal of the complaint in the earlier case was primarily

based on two factors. First, Petitioner had failed to allege

that the Defendants’ alleged illegal acts were carried out in

order to further their own cause. Secondly, the complaint

was dismissed because Petitioner had failed to show he had

exhausted his tribal remedies. Petitioner filed the complaint

in the instant action of March 17, 1980.

7

SUMMARY OF ARGUMENT (QUESTION 2)

(Respondent will follow Petitioner's order of

argument. )

The tribe may discriminate against non-enrollees

(N.E.’s) barring them {rom running for the office of tribal

president without violating the standards of Griffin v.

Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338

(1971).

ARGUMENT

(QUESTION 2)

This case does not revolve around when an Indian

becomes a member of the Oglala Sioux Tribe, but how.

The tribe has an official census roll of April 1, 1935.

Thereafter admission to the tribal membership is by tribal

action. The tribe has had an enrollment clerk and many ad-

ditions to the rolls were made from 1935 to the commence-

ment of this action. The council established a tribal enroll-

ment committee under ordinance 79-08 for the expressed

purpose of membership considerations in cases of residency

questions. Petitioner admits he has made application to the

tribe under this ordinance and now is a duly enrolled

member. Petitioner alleges from 1935 to the commence-

ment of this action there are others who have been born to

enrolled members but have been denied enrollment to the

tribe as he, and others like him, were born at a location

without the boundaries of the Pine Ridge Indian Reserva-

tion, the Oglala Sioux Tribe's traditional place of residence.

These persons are presumed presently dealt with as peti-

tioner was recently dealt with. The tribe's constitution re-

quires candidates for president of the tribe to be enrolled

members. Petitioner admits he was not so qualified

although he argues he is born of an enrolled member but

claims his interpretation of “residency”, that of the “com-

mon law,” should be adopted and imposed upon the Coun-

cil of the Oglala Sioux Tribe .

The Petitioner has based his complaint against the

Respondents under 42 U.S.C. § 1985 (3). Respondent's

position is that 42 U.S.C. § 1985 does not apply to Indians

as it does not specifically state it is applicable to Indians and

in the absence of such specific statement such inference may

not be implied. This Court stated in Santa Clara Pueblo v.

Martinez, 98 S.Ct. 1670 (1978) the Indian Civil Rights Act

does not confer jurisdiction in Federal Courts for claims of

Indians against Tribal Governments, and we quote as

follows:

“{1, 2] Indian tribes are “distinct, independent political

communities, retaining their original natural rights” in

matters of local self-government. Worcester v. Georgia, 6

Pet. 515, 559, 8 L.Ed. 483 (1832); see United States v.

Mazurie, 419 U.S. 544, 557, 95 S. Ct. 710, 717, 42 L.Ed.2d

706 (1975); F. Cohen, Handbook of Federal Indian Law

122-123 (1945). Although no longer “possessed of the full

attributes of sovereignty,” they remain a “separate people,

with the power of regulating their internal and social rela-

tions.” United States v. Kagama, 118 U.S. 375, 381-382, 6

S.Ct. 1109, 1112-1113, 30 L.Ed. 228 (1886). See United

States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d

303 (1978). They have power to make their own substantive

law in internal matters, see Roff v. Burney, 168 U.S. 218,

18 S.Ct. 60, 42 L.Ed. 442 (1897) (membership); Jones v.

Meehan, 175 U.S. 1, 29, 20 S.Ct. 1, 12, 44 L.Ed. 49 (1899)

(inheritance rules); United States v. Quiver, 241 U.S. 602,

36 S.Ct. 699, 60 L.Ed. 1176 (1916) (domestic relations),

and to enforce that law in their own forums, see e.g.,

Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251

(1959).”

“As separate sovereigns pre-existing the Constitution,

tribes have historically been regarded as unconstrained by

those constitutional provisions framed specifically as limita-

tions on federal or state authority. Thus, in Talton v.

Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896),

this Court held that the Fifth Amendment did not

“operat[e}] upon” “the powers of local self-government en-

joyed” by the tribes. Jd., at 384, 16 S.Ct. at 384. In ensuing

years the lower federal courts have extended the holding of

Talton to other provisions of the Bill of Rights, as well as to

the Fourteenth Amendment. ””

7. See, eg., Twin Cities Chippewa Tribal Council v.

Minnesota Chippewa Tribe, 370 F.2d 529, 533, (CA8

1967) (Due Process Clause of Fourteenth

Amendment); Native American Church v. Navajo

Tribal Council, 272 F.2d 131 (CA10 1959) (freedom of

religion under First and Fourteenth Amendments);

Barta v. Oglala Sioux Tribe, 259 F.2d 553 (CA8

1958), cert. denied, 358 U.S. 932, 79 S.Ct. 320, 3

L.Ed.2d 304 (1959) (Fourteenth Amendment). See

also Martinez v. Sourthern Ute Tribe, 249 F.2d 915,

919 (CA10 1957), cert. denied, 356 U.S. 960, 78 S.Ct.

998, 2 L.Ed.2d 1067 (1958) (applying Talton to Fifth

Amendment Due Process claim); Groundhog v.

Keeler, 442 F.2d 674, 678 (CA10 1971). But see Col-

liflower v. Garland, 342 F.2d 369 (CA9 1965), and Set-

tler v. Yakima Tribal Court, 419 F.2d 486 (CA9 1969),

cert. denied, 398 U.S. 903, 90 S.Ct. 1690, 26 L.Ed.2d

61 (1970), both holding that where a tribal court was

so pervasively regulated by a federal agency that it was

in effect a federal instrumentality, a writ of habeas

corpus would lie to a person detained by that court in

violation of the Constitution.

The line of authority growing out of Talton, while

exempting Indian tribes from constitutional provisions

addressed specifically to State or Federal governments,

of course does not relieve State and Federal Govern-

ments of their obligations to individual Indians under

these provisions.

10

“[3] As the Court in Talton recognized, however, Congress

has plenary authority to limit, modify or eliminate the

powers of local self-government which the tribes otherwise

possess. Ibid. See, e.g., United States v. Kagama,

supra,_118 U.S., at 379-381, 383-384, 6 S.Ct., at

1111-1112, 1113-1114; Cherokee Nation v. Hitchcock, 187

U.S. 294, 305-307, 23 S.Ct. 115, 119, 47 L.Ed. 183 (1902).

Title I of the ICRA, 25, U.S.C. §§ 1301-1303, represents an

exercise of that authority. In 25 U.S.C. § 1302, Congress

acted to modify the effect of Talton and its progeny by im-

posing certain restrictions upon tribal governments similar,

but not identical, to those contained iin the Bill of Rights

and the Fourteenth Amendment.*__In 25 U.S.C. § 1303,

the only remedial provision expressly supplied by Congress,

the “privilege of the writ of habeas corpus” is made

“available to any person, in a court of the United States, to

test the legality of his detention by order of an Indian

tribe.""***”"

8 . Section 1302 in its entirety provides that:

“No Indian tribe in exercising powers of self-

government shall —

“(1) make or enforce any law prohibiting the free

exercise of religion, or abridging the freedom of

speech, or of the press, or the right of the people

peaceably to assemble and to petition for a redress of

grievances;

“(2) violate the right of the people to be secure in

their persons, houses, papers, and effects aginst

but upon probable cause, supported by oath or affir-

mation, and particularly describing the place to be

searched and the person or thing to be seized;

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

twice put in jeopardy;

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

witness against himself;

“(5) take any private property for a public use

without just compensations;

ll

[4] “Indian tribes have long been recognized as possess-

ing the common-law immunity from suit traditionally en-

joyed by sovereign powers. Turner v. United States, 248

U.S. 354, 358, 39 S.Ct. 109, 110, 63 L.Ed. 291 (1919);

_ United States v. United States Fidelity 8 Guaranty Co., 309

U.S. 506, 512-513, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940);

Puyallup Tribe, Inc. v. Washington Department of Game,

433 U.S. 165, 172-173, 97 S.Ct. 2616, 2620-2621, 53

L.Ed.2d 667 (1977). This aspect of tribal sovereignty, like

all others, is subject to the superior and plenary control of

“(6) deny to any person in a criminal proceeding

the right to a speedy and public trial, to be informed

of the nature and cause of the accusation, to be con-

fronted with the witnesses against him, to have com-

pulsory process for obtaining witnesses in his favor,

and at his own expense to have the assistance of

counsel for his defense;

“(7) require excessive bail, impose excessive fines,

inflict cruel and unusual punishments, and in no event

impose for conviction of any one offense any penalty or

punishment greater than imprisonment for a term of

six months or a fine of $500, or both;

“(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;

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

o1

“(10) deny to any person accused of an offense pun-

ishable by imprisonment the right, upon request, to a

trial by jury of not less than six persons.”

Section 1301 is a definitional section, which pro-

vides, inter alia, that the “powers of self-government”

shall include “all governmental powers possessed by an

Indian tribe, executive, legislative, and judicial, and

all offices, bodies, and tribunals by and through which

they are executed...” 25 U.S.C. § 1301(2).

12

Congress. But “without congressional authorization,” the

“Indian Nations are exempt from suit.” United States v.

United States Fidelity @ Guaranty Co., supra, 309 U.S., at

512, 60 S.Ct. at 656.

It is settled that a waiver of sovereign immunity “can-

not be implied but must be unequivocally expressed.’ "

United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948,

953, 47 L.Ed.2d 114 (1976), quoting, United States v. King,

$95 U.S. 1, 4, 89 S.Ct. 1501, 1502,, 23 L.Ed.2d 52 (1969).

Nothing on the face of Title I of the ICRA purports to sub-

ject tribes to the jurisdiction of the federal courts in civil ac-

tions for injunctive or declaratory relief. *** In the absence

here of any unequivocal expression of contrary intent, we

conclude that suits against the tribe under the ICRA are

barred by its sovereign immunity from suit.”

IV

[5] “As an officer of the Pueblo, petitioner Lucario

Padilla is not protected by the tribe's immunity from suit.

See Puyallup Tribe, Inc. v. Washington Department of

Game, supra, 433 U.S., at 171-172, 97 S.Ct., at 2620-2621;

cf. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.

714 (1908). We must therefore determine whether the cause

of action for declaratory and injunctive relief asserted here

by respondents, though not expressly authorized by the

statute, is nonetheless implicit in its terms.”

[6] “In addressing this inquiry, we must bear in mind

that providing a federal forum for issues arising under §

1302 constitutes an interference with tribal autonomy and

self-government beyond that created by the change in

substantive law itself. Even in matters involving commercial

and domestic relations, we have recognized that

“subject(ing] a dispute arising on the reservation among

reservation Indians to a forum other than the one they have

13

established for themselves,” Fisher v. District Court, 424

U.S. 382, 387-388, 96 S.Ct. 943, 947. 47 L.Ed.2d 106

(1976), may “undermine the authority of the tribal

cour(t]...and hence. . .infringe on the right of the Indians

to govern themselves.” Williams v. Lee, 385 U.S., at 223, 79

S.Ct., at 272.°__A fortiori, resolution in a foreign forum of

intratribal disputes of a more “public” character, such as

the one this case, cannot help but unsettle a tribal govern-

ment’'s ability to maintain authority. Although Congress

clearly has power to authorize civil actions against tribal of-

ficers, and has done so with respect to habeas corpus relief

in §§ 1303, a proper respect both for tribal sovereignty itself

and for the plenary authority of Congress in this area cau-

tions that we tread lightly in the absence of clear indications

of legislative intent. Cf. Antoine v. Washington, 420 U.S.

194, 199-200, 95 S.Ct. 944, 948, 43 L.Ed.2d 129, (1975);

Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 56

L.Ed. 941 (1912).”

9. In Fisher, we held that a state court did not have

jurisdiction over an adoption proceeding in which all

parties were members of an Indian tribe and residents

of the reservation. Rejecting the mother's argument

that denying her access to the state courts constituted

an impermissible racial discrimination, we reasoned:

“The exclusive jurisdiction of the Tribal Court does

not derive from the race of the plaintiff but rather

from the quasi-sovereign status of the Northern

Cheyenne Tribe under federal law...[E]ven if a

jurisdictional holding occasionally results in denying

an Indian plaintiff a forum to which a non-Indian has

access, such disparate treatment of the Indian is

justified because it is intended to benefit the class of

which he is a member by furthering the congressional

policy of Indian self-government.” 424 U.S., at

$90-391, 96 S.Ct., at 948.

In Williams v. Lee, we held that a non-Indian mer-

chant could not invoke the jurisdiction of a state court

to collect a debt owed by a reservation Indian and aris-

[7] With

sovereignty .

14

these considerations of ‘Indian

..[as}] a backdrop against which the ap-

plicable. . . federal statut{e] must be read,” McClanahan v.

Arizona State Tax Comm'n, 411 U.S. 164, 172, 93 S 1257,

1262, 36 L.Ed.2d 129 (1973), we turn now to those factors

of more general relevance in determining whether a cause

of action is implicit in a statute not expressly providing one.

See Cort v. Ash, 442 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26

(1975).'® We note at the outset that__a central purpose of

the ICRA and in particular of Title I was to “secur[e] for

ing out of the merchant's activities on the reservation,

but instead must seek relief exclusively through tribal

remedies.

“First, is the plaintiff ‘one of the class for whose

especial benefit the statute was enacted,’ Texas @

Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, [36 S.Ct.

482, 60 L.Ed. 874] (1916) (emphasis supplied) — that

is, does the statute create a federal right in favor of the

plaintiff? Second, is there any indication of legislative

intent, explicit or implicit, either to create such a

remedy or to deny one? See, e.g., National Railroad

Passenger Corp. v. National Assn. of Railroad

Passengers, 414 U.S. 453, 458, 460, 94 S.Ct. 690, 38

L.Ed.2d 646 (1974) (Amtrak). Third, is it consistent

with the underlying purposes of the legislative scheme

to imply such a remedy for the plaintiff? See, e.g.,

Amtrak, supra; Securities Investur Protection Corp. v.

Barbour, 421 U.S. 512, 423, 95 S.Ct. 1733, 44

L.Ed.2d 262 (1975); Calhoon v. Harvey, 379 U.S.

134, 85 S.Ct. 292, 13 L.Ed.2d 190 (1964). And, final-

ly, is the cause of action one traditionally relegated to

state [or tribal] law, in an area basically the concern of

the States [or tribes], so that it would be inappropriate

to infer a cause of action based solely on federal law?”

Cort v. Ash, 422 U.S., at 78, 95 S.Ct., at 2088.

See generally Note, Implication of Civil Remedies

Under the Indian Civil Rights Act, 75 Mich.L.Rev.

210 (1976).

15

the American Indian the broad constitutional rights afford-

ed to other Americans,” and thereby to “protect individual

Indians from arbitrary and unjust actions of tribal govern-

ments.” S.Rep. No. 841, 90th Cong., Ist Sess., 5-6 (1967).

There is thus no doubt that respondents, American Indians

living on the Santa Clara Reservation, are among the class

for whose especial benefit this legislation was enacted.

Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct.

482, 484, 60 L.Ed. 874 (1916); see Cort v. Ash, supra, 422

U.S., at 78, 95 S.Ct., at 2087. Moreover, we have frequently

recognized the propriety of inferring a federal cause of ac-

tion for the enforcement of civil rights, even when Congress

has spoken in purely declarative terms. See, e.g., Jones V.

Alfred H. Mayer Co, 392 U.S. 409, 414 n. 13, 88 S.Ct.

2186, 2189, 20 L.Ed.2d 1189 (1968); Sullivan v. Little Hun-

ting Park, Inc., 396 U.S.229, 238-240, 90 S.Ct. 400,

405-406, 24 L.Ed.2d 386 (1969). See also Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971). These precedents, however,

are simply not dispositive here. Not only are we unpersuad-

ed that a judicially sanctioned intrusion into tribal

sovereignty is required to fulfill the purposes of the ICRA,

but to the contrary, the structure of the statutory scheme

and the legislative history:of Title I suggest that Congress’

failure to provide remedies other than habeas corpus was a

deliberate one. See National Railroad Passenger Corp. v.

National Assn. of Railroad Passengers, 414 U.S. 453, 94

S.Ct. 690, 38 L.Ed.2d 646 (1974); Cort v. Ash, supra.”

A

{8} “Two distinct and competing purposes are manifest

in the provisions of the ICRA: In addition to its objective of

strengthening the position of individual tribal members vis-

a-vis the tribe, Congress also intended to promote the well-

established federal “policy of furthering Indian self-

16

t.” Morton v. Mancari, 417 U.S. 535, 551, 94S

2483, 41 L.Ed.2d 290 (1974); see Fisher v. District Court,

424 U.S., at 391, 96 S.Ct. at 948.'' This commitment to

the goal of tribal self-determination is demonstrated by the

provisions of Title I itsclf. Section 1302, rather than pro*

viding in wholesale fashion for the extension of constitu-

tional requirements to tribal governments, as had been in-

itially proposed,'* selectively incorporated and in some in-

stances modified the safeguards of the Bill of Rights to fit

the unique political, cultural, and economic needs of tribal

One month before passage of the ICRA, President

Johnson had urged its enactment as part of a legislative

and administrative program with the overall goal of

furthering “self-determination,” “self-help,” and “self-

development” of Indian tribes. See 114 Cong.Rec.

5518, 5520 (1968).

Exploratory hearings which led to the ICRA com-

menced in 1961 before the Subcommittee on Constitu-

tional Rights of the Senate Judicial Committee. In

1964, Senator Ervin, Chairman of the Subcommittee,

introduced S. 3041-3048, 88th Cong., 2d Sess., on

which no hearings were had. The bills were rein-

troduced in the 89th Congress as S. 961-968 and

were the subject of extensive hearings by the Subcom-

mittee. Hearings on S. 961-968 and S.J.Res. 40 before

the Subcommittee on Constitutional Rights of the

Senate Committee on the Judiciary, 89th Cong., Ist

Sess, (1965) (hereinafter cited as 1965 Hearings.)

S. 961 would have extended to tribal governments

all constitutional provisions applicable to the Federal

Government. After criticism of this proposal at the

hearings, Congress instead adopted the approach

found in a substitute bill submitted by the Interior

Department, reprinted in 1965 Hearings 318 which,

with some changes in wording, was enacted into law as

25 U.S.C. §§ 1302-1303. See also n. 1, supra.

17

governments.'® See n. 8, supra. Thus, for example, the

statute does not prohibit the establishment of religion, nor

does it require jury trials in civil cases, or appointment of

counsel for indigents in criminal cases, cf. Argersinger v.

Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530

(1972)."*”

“The other Titles of the ICRA also manifest a congres-

sional purpose to protect tribal sovereignty from undue in-

14.

See, e.g., Subcommittee on Constitutional Rights of

the Senate Committee on the Judiciary, Constitutional

Rights of the American Indian; Summary Report of

Hearings and Investigations Pursuant to S.Res. 194,

89th Cong., 2d Sess., 8-11, 25 (Comm. Print 1966);

1965 Hearings 17, 21, 50 (statements of Solicitor of the

Dept. of the Interior); id., at 65 (statement of Arthur

Lazarus, Jr., General Counsel for the Association of

American Indian Affairs).

The provisions of § 1302, set forth fully in n. 8 supra,

differ in language and in substance in many other

respects from those contained in the constitutional

provisions on which they were modeled. The provisions

of the Second and Third Amendments, in addition to

those of the Seventh Amendment, were ommitted en-

tirely. The provision here at issue, § 1302(8), differs

from the constitutional Equal Protection Clause in

that it guarantees “the equal protection of its [the

tribe's} laws,” rather than of “the laws.” Moreover, §

1302(7), which prohibits cruel or unusual punishments

and excessive bails, sets an absolute limit of six months’

imprisonment and a $500 fine on ~~nalties which a

tribe may impose. Finally, while most of the

guarantees of the Fifth Amendment were extended to

tribal actions, it is interesting to note that § 1302 does

not require tribal criminal prosecutions to be intiated

by grand jury indictment, which was the requirement

of the Fifth Amendment specifically at issue and found

inapplicable to tribes in Talton v. Mayes, discussed,

supra, at 1676.

terference. For instance, Title II], 25 U.S.C. § 1321-1326,

hailed by some of the ICRA's supporters as the most impor-

tant part of the Act,'*® provides that States may not assume

civil or criminal jurisdiction over “Indian country”

without__the prior consent of the tribe, thereby abrogating

prior law to the contrary.'* Other Titles of the ICRA pro-

vide for strengthening certain tribal courts through training

of Indian judges,'’ and for minimizing interference by the

Federal Bureau of Indian Affairs in tribal ligation.'*”

17.

See, e.g., Cong.Rec. 9596 (1968) (remarks of Rep.

Meeds); Hearings on H.R. 15419 before the Subcom-

mittee on Indian Affairs of the House Committee on

Interior & Insular Affairs, 90th Cong., 2d Sess., 108

(1968) (hereinafter cited as House Hearings). See also

1965 Hearings 198 (remarks of Executive Director,

National Congress of American Indians).

In 25 U.S.C. § 1323(b), Congress expressly repealed §

7 of the Act of Aug. 15, 1953, 67 Stat. 590, which had

authorized States to assume criminal and civil juridic-

tion over reservations without tribal consent.

Title Il of the ICRA provides, inter alia, “for the

establishing of educational classes for the training of

judges of courts of Indian offenses.” 25 U.S.C. §

1311(4). Courts of Indian offenses were created by che

Federal Bureau of Indian Affairs to administer

criminal justice for those tribes lacking their own

criminal courts. See generally W. Hagan, Indian

Police and Judges 104-125 (1966).

Under 25 U.S.C. § 81, the Secretary of the Interior

and the Commissioner of Indian Affairs are generally

required to approve any contract made between a

tribe and an attorney. At the exploratory hearings, see

n. 12, supra, it became apparent that the Interior

19

[9] “Where Congress seeks to promote dual objectives in

a single statute, courts must be more than usually hesitant

to infer from its silence a cause of action that, while serving

one legislative purpose, will disserve the other. Creation of a

federal cause of action for the enforcement of rights created

in Title I, however useful it might be in securing com-

pliance with § 1302, plainly would be at odds with the con-

gressional goal of protecting tribal self-government. Not on-

ly would it undermine the authority of tribal forums, see

supra, at 1677-1678, but it would also impose serious finan-

cial burdens on already “financially disadvantaged” tribes.

Subcommittee on Constitutional Rights, Senate Judiciary

Committee, Constitutional Rights of the American Indian:

Summary Report of Hearings and Investigations Pursuant

to S.Res. 194, 89th Cong., 2d Sess., 12 (Comm. Print 1966)

(hereinafter cited as Summary Report)'*”

Department had engaged in inordinate delays in ap-

proving such contracts and had thereby hindered the

tribes in defending and asserting their legal right. See,

e.g., Hearings before the Subcommittee on Constitu-

tional Rights of the Senate Committee on the Judiciary

pursuant to S.Res.53, 87th Cong., Ist Sess., 211 (1961)

(hereinafter cited as 1961 Hearings); id., at 290, 341,

410. Title V of the ICRA, 25 U.S.C. § 1331, provides

that the Department must act on applications for ap-

proval of attorney contracts within 90 days of their

submission or the application will be deemed to have

been granted.

19. The cost of civil ligation in federal district courts, in

many instances located far from the reservations,

doubtless exceeds that in most tribal forums. See

generally 1 American Indian Policy Review Commis-

sion, Final Report 160-166 (1977); M. Price, Law and

the American Indian 154-160, (1973). And, as became

apparent in the congressional hearings on the ICRA,

many of the poorer tribes with limited resources and

income could ill afford to shoulder the burdens of

{10} “Moreover, contrary to the reasoning of the court

below, implication of a federal remedy in addition to

habeas corpus is not plainly required to give effect to Con-

gress’ objective of extending constitutional norms to tribal

self-government. Tribal forums are available to vindicate

rights created by the ICRA, and § 1302 has the substantial

and intended effect of changing the law which these froums

are obliged to apply.*® Tribal courts have repeatedly been

recognized as appropriate forums for the exclusive adjud-

dication of disputes affecting important personal and pro-

perty interests of both Indians and non-Indians.*' See, e.g.,

defending federal lawsuits. See, e.g. 1965 Hearings

131, 157; Summary Report 1679; House Hearings 69

(remarks of the Governor of the San Felipe Pueblo).

Prior to passage of the ICRA, Congress made detailed

inquiries into the extent to which tribal constitutions

incorporated “Bill of Rights” guarantees, and the

degree to which the tribal provisions differed from

those found in the Constitution. See, e.g., 1961 Hear-

ings 121, 166, 359; Hearings before the Subcommittee

on Constitutional Rights of the Senate Committee on

the Judiciary pursuant to S.Res.58, 88th Cong., Ist

Sess., 823 (1963). Both Senator Ervin, the ICRA's

chief sponsor, and President Johnson, in urging

passage of the Act, explained the need for Title I on

the grownd that few tribal constitutions included pro-

visions of the Bill of Rights. See House Hearings 131

(remarks of Sen. Ervin); 114 Cong.Rec. 5520 (1968)

(message from the President).

There are 287 tribal governments in operation in the

United States, of which 117 had operating tribal courts

in 1976. 1 American Indian Policy Review Commis-

sion, supra, n. 19, at 5, 163. In 1973 these courts

handled approximately 70,000 cases. Jd., at 163-164.

Judgments of tribal courts, as to matters properly

within their jurisdiction, have been regarded in some

Fisher v. District Court, 424 U.S.___382, 96 S.Ct. 943, 47

L.Ed.2d 106 (1976); Williams v. Lee, 358 U.S. 217, 79

S.Ct. 269, 3 L.Ed.2d 251 (1959). See also Ex parte Crow

Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883). Non

judicial tribal institutions have also been recognized as com-

petent law-applying bodies. See United States v. Mazurie,

419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975).** Under

these circumstances, we are reluctant to disturb the balance

between the dual statutory objectives which Congress ap-

parently struck in providing only for habeas corpus relief.”

{11} “Our reluctance is strongly reinforced by the specific

legislative history underlying 25 U.S.C. § 1303. This

circumstances as entitled to full faith and credit in

other courts. See, ¢.g., United States ex rel. Mackey v.

Coxe, 18 How. 100, 15 L.Ed. 299 (1856); Standley v.

Roberts, 59 F. 836, 845 (CAB 1894), appeal dismissed.

17 S.C. 999, 41 L.Ed. 1177 (1896).

22. By the terms of its Constitution, adopted in 1935 and

approved by the Secretary of the Interior in accor.

dance with the Indian Reorganization Act of 1934,, 25

U.S.C. § 476, judicial authority in the Santa Clara

Pueblo is vested in its tribal council.

Many tribal constitutions adopted pursuant to 25

U.S.C. § 476, though not that of the Santa Clara

Pueblo, include provisions requiring that tribal or-

dinances not be given effect until che Department of

the Interior gives its approval. See | American Indian

Policy Review Commission, supra n. 19, at 187-188;

1961 Hearings 95. In these instances, persons aggriev-

ed by tribal laws may, in addition to pursuing tribal

remedies, be able to seek relief from the Department

of the Interior.

history, extending over more than three years,** indicates

that Congress’ provision for habeas corpus relief, and

nothing more, reflected a considered accommodation of the

competing goals of “preventing injustices perpetrated by

tribal governments, on the one hand, and, on the other,

avoiding undue or precipitious interference in the affairs of

the Indian people.” Summary Report 11.”

“In settling on habeas corpus as the exclusive means for

federal-court review of tribal criminal proceedings, Con-

gress opted for a less intrusive review mechanism than had

been initially proposed. Originally, the legislation would

have authorized de novo review in federal court of all con-

victions obtained in tribal courts.** At hearings held on the

proposed legislation in 1965, however, it became clear that

even those in agreement with the general thrust of the

review provision — to provide some form of judicial review

of criminal proceedings in tribal courts — believed that de

novo review would impose unmanageable financial burdens

on tribal governments and needlessly displace tribal courts.

See id., at 12; 1965 Hearings 22-23, 157, 162, 341-342.

Moreover, tribal representatives argued that de novo review

would “deprive the tribal court of all jurisdiction in the

event of an appeal, thus having a harmful effect upon law

enforcement within the reservation,” and urged instead that

“decisions of tribal courts... be reviewed in the U.S.

district courts upon petition for a writ of habeas corpus.”

Id., at 79. After considering numerous alternatives for

review of tribal convictions, Congress apparently decided

23. See n. 12, supra. Although extensive hearings on the

ICRA were held in the Senate, see ibid., House con-

sideration was extremely abbreviated. See House

Hearings, supra; 114 Cong.Rec. 9614-9615 (1968)

(remarks of Rep. Aspinall).

24. S. 692, 89th Cong., Ist Sess. (1965), reprinted in 1965

Hearings 6-7. See n. 12, supra.

23

that review by way of habeas corpus would adequately pro-

tect the individual interests at stake while avoiding un-

necessary intrusions on tribal governments.”

“Similarly, and of more direct import the issue in this

case, Congress considered and rejected proposals for federal

review of alleged violations of the Act arising in a civil con-

text. As initially introduced, the Act would have required

the Attorney General to “receive and investigate” com-

plaints relating to deprivations of an Indian's statutory or

constitutional rights, and to bring “such criminal or other

action as he deems appropriate to vindicate and secure such

right to such Indian.”** Not withstanding the screening ef-

fect this proposal would have had on frivolous or vexatious

lawsuits, it was bitterly opposed by several tribes. The Crow

Tribe representative stated:

This [bill] would in effect subject the tribal

sovereignty of self-government to the Federal

government...[B]y its broad terms [it] would

allow the Attorney General to bring any kind of

action as he deems appropriate. By this bill, any

time a member of the tribe would not be satisfied

with an action by the [tribal] council, it would

allow them [sic] to file a complaint with the At-

torney General and subject the tribe to a

multitude of investigations and threat of court ac-

tion.” 1965 Hearings 235 (statement of Mr. Real

Bird).”

“In a similar vein, the Mescalero Apache Tribal Coun-

cil argued that “[i]f the perpetually dissatisfied individual

Indian were to be armed with legislation such as proposed

in [this bill] he could disrupt the whole of tribal govern-

ment.” Jd., at 343. In response, this provision for suit by the

25. S. 963, 89th Cong., Ist Sess. (1965). See n. 12, supra.

a

24

Attorney General was completely eliminated from the

ICRA. At the same time, Congress rejected a substitute pro-

posed by the Interior Department that would have authoriz-

ed the Department to adjudicate civil complaints concern-

ing tribal actions, with review in the district courts available

from final decisions of the agency.**”

“__Given this history, it is highly unlikely that Congress

would have intended a private cause of action for injunctive

and declaratory relief to be available in the federal courts to

secure enforcement of § 1302. Although the only Commit-

tee Report on the ICRA in its final form, S.Rep. No. 841,

26. The Interior Department substitute, reprinted in 1965

Hearings 318, provided in relevant part:

“Any action, other than a criminal action, taken by

an Indian tribal government which deprives any

American Indian of a right or freedom and protected

by this Act may be reviewd by the Secretary of the In-

terior upon his own motion or upon the request of said

Indian. If the Secretary determines that said Indian

has been deprived of any such right or freedom, he

shall require the Indian tribal government to take such

corrective action as he deems necessary. Any final

decision of the Secretary may be reviewed by the

United States district court in the district in which the

action arose and such court shall have jurisdiction

thereof.

In urging Congress to adopt this proposal, the

Solicitor of Interior specifically suggested that “Con-

gress has the power to give to the courts the jurisdiction

that they would require to review the actions of an In-

dian tribal court,” and that the substitute bill which

the Department proposed “would actually confer on

the district courts the jurisdiction they require to con-

sider these problems.” Jd., 23-24. Congress’ failure to

adopt this provision is noteworthy particularly because

it did adopt the other portion of the Interior substitute

bill, which led to the current version of §§ 1302 and

1303. See n. 12, supra.

90th Cong. Ist Sess. (1967), sheds little additional light on

this question, it would hardly support a contrary conclu-

sion.”’ Indeed its description of the purpose of Title 1,7" as

27. Respondents rely mom heavily on a rambling passage

in the Report discussing Talton v Mayes and its pro

geny, seen. 7, supra, some of which arose in a4 civil

coment. $ Rep. No. #1, at B11. Although there is

some language suggesting Congress was concerned

abou: the unavailability of relief in federal court. the

Report nowhere sates that Title | would be en

forceable in a cause of action for declaratory oF inyunc

tive relief, and the cited passage is fully consistent with

the conclusion that Congress intended only to modify

the subsance of the law applicable to Indian tribes.

and to allow enforcemem in federal court through

habeas corpus The Report itself characterized the im

port of ts discussion as follows

“These cases illusrate the cominued denial of

specific consitutional guarantees to litigants in tribal

court proceedings. on the ground that the tribal courts

are quasi sovereign entities to which general provisions

in the Constitution do not apply.” Id, at 10.

28. The Report states: “The purpose of Tithe | is to protect

individual Indians from arburary and unjust actions

by tribal governments. This is accomplished by plac

ing certain limitations on an Indian tribe in the exer

cise of its powers of sell governmem. Id , at 6. it ex

plains further that “lijt is hoped that Title 11 (25

U.S.C. § 1511). requiring the Secretary of the Interior

to recommend a model code [to govern the admunetra

tion of yustice | for all Indian tribes, will mmplement the

efiect A Title 1” Ibid, (Although § 1511 by its corms

refers only to courts of Indian offenses, we mn. 17

supra, the Senate Report make clear that the code is

imended to serve as a model for use in all tribal courts

S Rep. No. #41. supra, at 6, 11.) Thus. it appears thar

the Committee viewed § 1907 as enforceabie only on

habeas corpus and in tribal forums.

well as the floor debates on the bill,** indicates that the

ICRA was generally understood to authorize federal judicial

review of tribal actions only through the habeas corpus pro-

visions of § 1303.°° These factors, together with Congress’

rejection of proposals that clearly would have authorized

causes of action other than habeas corpus, persuade us that

Congress, aware of the intrusive effect of federal judicial

review upon tribal self-government, intended to create only

a limited mechanism for such review, namely, that provided

for expressly in § 1303.”

Senator Ervin described the model code provisions of

Title I, see n. 28, supra, as “the proper vehicle by

which the objectives” of Title I should be achieved.

113 Cong.Rec. 13475 (1967). And Congressman

Reifel, one of the ICRA's chief supporters in the

House, explained that “by providing for a writ of

habeas corpus from the Federal court, the bill would

assure effective enforcement of these fundamental

rights.” 114 Cong.Rec. 9553 (1968).

Only a few tribes had an opportunity to comment on

the ICRA in its final form, since the House held only

one day of hearings on the legislation. See n. 23,

supra. The Pueblos of New Mexico, testifying in op-

position to the provisions of Title I, argued that the

habeas corpus provision of § 1303 “opens an avenue

through which Federal courts, lacking knowledge of

our traditional values, customs, and laws, could review

and offset the decisions of our tribal councils.” House

Hearings 37. It is inconceivable that, had they

understood the bill impliedly to authorize other ac-

tions, they would have remained silent, as they did,

concerning this possibility. It would hardly be consis-

tent with “[t}he overriding duty of our Federal Govern-

ment to deal fairly with Indians,” Morton v. Ruiz, 415

U.S. 199, 236, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270

(1974), lightly to imply a cause of action on which the

tribes had no prior opportunity to present their views.

27

Vv

{12] “As the bill's chief sponsor, Senator Ervin, *' com-

mented in urging its passage, the ICRA “should not be con-

sidered as the final solution to the many serious constitu-

tional problems facing the American Indian.” 113

Cong.Rec. 13473 (1967). Although Congress explored the

extent to which tribes were adhering to constitutional norms

in both civil and criminal contexts, its legislative investiga-

tion revealed that the most serious abuses of tribal power

had occurred in the administration of criminal justice. See .

ibid., quoting Summary Repori 24. In light of this finding,

and given Congress’ desire not to intrude needlessly on

tribal self-government, it is not surprising that Congress

chose at this stage to provide for federal review only in

habeas corpus proceedings.”

“By not exposing tribal officials to the full array of

federal remedies available to redress actions of federal and

state officials, Congress may also have considered that

resolution of statutory issues under § 1302, and particulary

those issues likely to arise in a civil context, will frequently

depend on questions of tribal tradition and custom which

tribal forums may be in a better position to evaluate than

federal courts. Our relations with the Indian tribes have

“always been...anomalous...and of a complex

character.” United States v. Kagama, 118 U.S., at 381, 6

S.Ct., at 1112. Although we early rejected the notion that

Indian tribes are “foreign states” for jurisdictional purposes

under Art. III, Cherokee Nation v. Georgia, 5 Pet. 1, 8

L.Ed. 25 (1831), we have also recognized that the tribes re-

main quasi-sovereign nations which, by government struc-

ture, culture, and source of sovereignty are in many ways

foreign to the constitutional institutions of the federal and

31. See generally Burnett, An Historical Analysis of the

1968 “Indian Civil Rights” Act, 9 Harv.J.Legis. 557,

574-602, 603 (1972).

state governments. See Elk v. Wilkins, 112 U.S. 94, 5 S.Ct.

41, 28 L.Ed. 643, (1884). As is suggested by the District

Court's opinion in this case, see supra, at 1674-1675,_ef-

forts by the federal judiciary to apply the statutory prohibi-

tions of § 1302 in a civil context may substantially interfere

with a tribe's ability to maintain itself as a culturally and

politically distinct entity.*?”

[13] “As we have repeatedly emphasized, Congress’

authority over Indian matters is extraordinarily broad, and

the role of courts in adjusting relations between and among

tribes and their members correspondingly restrained. See

Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S.Ct. 216,

221, 47 L.Ed. 299 (1903). Congress retains authority ex-

pressly to authorize civil actions for injunctive or other relief

to redress violations of § 1302, in the event that the tribes

themselves prove deficient in applying and enforcing its

substantive provisions. But unless and until Congress makes

clear its intention to permit the additional intrusion on

tribal sovereignty that adjudication of such actions in a

federal forum would represent, we are constrained to find

that § 1302 does not impliedly authorize actions for

declaratory or injunctive relief against either the tribe or its

officers.”

32. A tribe's right to define its own membership for tribal

purposes has long been recognized as central to its ex-

istence as an independent political community. See

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

442 (1897); Cherokee Intermarriage Cases, 203 U.S.

76, 27 S.Ct. 29, 51 L.Ed. 96 (1906). Given the often

vast gulf between triba! traditions and those with

which federai courts are more intimately familiar, the

judiciary should not rush to create causes of action

that would intrude on these delicate matters.

29

Since there is no reference in 42 U.S.C. § 1985 (3) to

Indians under the interpretive rules of this court or express-

ed in Santa Clara Pueblo v. Martinez, supra, it follows 42

U.S.C. § 1985 (3) does not rest jurisdiction in the federal

district courts to hear complaints of Indians vs. Indians.

. For the purpose of addressing the Petitioner's

arguments, even if 42 U.S.C. § 1985 (3) were found ap-

plicable in this case, which interpretation Respondent

denies, the argument of Petitioner fails as Petitioner cannot

satisfy the requirements laid down in the case Griffin v.

Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338

(1971). The lower court found NE’s (non-enrolled) is not a

class and therefore could not present a class based claim.

The decision herein appealed from refers to cases inter-

preting the Griffin decision;

Great American Federal Savings and Loan Association

vs. Novotny, 442 U.S. 366, 389, 6, 99 S.Ct. 2345,

60 L.Ec..2d 957 (1959).

The Class Based Answers of 42 U.S.C. § 1985 (c): A

Suggested Approach, 64, Minnesota L.Rev. 635,

642-44 (1980).

Ward v. Connor 657 F. 2d 45 (4th Cir. 1981)

Marlowe v. Fisher Body 489 F. 2d 1057 (6th Cir. 1973)

Action v. Gannon 450 F. 2d 1227 (8th Cir. 1971)

Baer v. Baer 450 F. Supp. 481 (N.D. Cal. 1978)

Philadelphia Yearly Meeting of the Religious Society of

Friends v. Tate, 519 F. 2d 1335, (3rd Cir. 1975)

Glasgow v. City of Louisville, 528 F.2d 899, (6th Cir.),

cert. denied, 423 U.S. 930, 96 S.Ct. 280, 46

L.Ed.2d 258 (1975).

Cameron v. Brock 473 F.2d 608 (6th Cir. 1973)

Puentes v. Sullivan 425 F. Supp. 249 (W.D. Tex. 1977)

30

Harrison v. Brooks 519 F. 2d 1358, 1359-60 (1st Cir.

1975)

and distinguished this case from Means v. Wilson, 522 F.2d

83% (8th Cir. 1975), cert. denied in 424 U.S. 958, 96 S.Ct.

1496, on the basis that NE’s as they appear in this case, do

not present a “class based claim.” The court held “class bas-

ed animus” does not include personal animus:

Duff v. Sherlock 432 F. Supp. 423, 429 (E.D. Pa. 1977)

Lesonan v. McCormick, 591 F.2d 605, 608 (10th Cir.)

1979.

McNally v. Pulitzer Publishing Co., 532 F.2d 69, 75

(8th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct.

150, 50 L.Ed.2d 131 (1976).

McLellan v. Mississippi Power & Light Co., 545 F.2d

919 (5th Cir. 1977).

Oarchman v. Korman Corp., 456 F. Supp. 730, 734

(E.D. Pa. 1978), cert. denied, 444 U.S. 898, 100

S.Ct. 205, 62 L.Ed.2d 133 (1979).

then the court follows Santa Clara Pueblo v. Martinez,

supra, in holding a tribe has an important interest in setting

the standards for who may vote and run in tribal elections.

An Indian becomes an enrolled member of the tribe upon

admittance by the tribe to the list of enrolled members.

SUMMARY OF ARGUMENT

(QUESTION 1)

Under the doctrine of Santa Clara Pueblo v. Martinez,

supra, there is no real basis in this court for a complaint

against the officers and employees of the tribe and on the

record before the court there is no factual basis.

$1

ARGUMENT (QUESTION 1)

Santa Clara Pueblo v. Martinez, supra, held the

federal court did not have jurisdiction to hear an action of

an Indian vs. an Indian official in his individual capacity.

One of the defendants was Lucario Padilla and the court

concluded on page 1684 the action would not be against the

tribe or its officers. Even if 42 U.S.C. § 1985 (3) afforded

Petitioner a forum for an action against Respondents,

which Respondent does not concede, Petitioner's petition

must be denied for the reasons held in a similar suit in

Chose v. McMasters, 573 F.2d 1011 (1978):

“Local executive or administrative officials

are accorded a qualified, good faith immunity

from liability in damages under 42 U.S.C. § 1983.

See Wood v. Strickland, 420 U.S. 308, 322, 95

S.Ct. 992, 43 L.Ed.2d 214 (1975); Williams v.

Anderson, 562 F.2d 1081, 1101, (8th Cir. 1977);

Curry v. Gillette, 461 F.2d 1003,1005 (6th

Cir.)cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34

L.Ed.2d 492 (1972); Oberhelman v. Schultze, 371

F. Supp. 1089, 1090 (D. Minn.), aff'd mem., 505

F.2d 736 (8th Cir. 1974). Accordingly, the defen-

dants herein are liable only if (1) they knew, or

reasonably should have known, that their actions

violated Chose’s clearly established constitutional

rights or (2) they took the action with malicious or

impermissible motives of causing a deprivation of

constitutional rights or other injury to Chose.

Wood v. Strickland, supra at 322, 95 S. Ct. 992;

Williams v. Anderson, supra 562 F. 2d at 1101.”

Shortbull has the burden of proof to show the

Respondents knew their actions would violate Petitioner's

constitutional rights and further that their acts were

motivated to cause a deprivation of rights to Petitioner.

Petitioner's explanation of the acts of Respondents and

$2

their motives is found in the transcript of Petitioner's

Deposition of December 11, 1980, where he admits he is

unable to sustain such a burden of proof as follows:

(a) Terry Matthews, pg. 69, 70, 71

(b) Marvin Amiotte, pg. 71, 72

(c) Dave Brewer, pg. 73

(d) Deloris Whitehead, pg. 74, 75

(e) Lyman Red Cloud, pg. 92

(f) Gerald Jump Big Crow, pg. 93, 94, 95, 96

(g) Ivan Bettelyoun, pg. 96, 97

(h) James Mousseau, pg. 97, 98

(i) Elijah Whirlwind Horse, pg. 97

(j) Stanley Looking Elk

(k) Edgar High Whiteman, pg. 72

(1) Gilbert Matthews, pg. 72

Therefore, there is neither a legal or factual basis for

Petitioner's action.

CONCLUSION

The Petition for Writ of Certiorari of Thomas Short-

bull must be denied and the decision of the Eighth Court

sustained.

Respectfully submitted,

Dennis H. Hill

Costello, Porter, Hill,

Nelson, Heisterkamp & Bushnell

P.O. Box 290 .

Rapid City, South Dakota 57709

605-343-2410

Attorneys for Respondents