# Opposition — Shortbull v. Looking Elk > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0504%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 907 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0504%3A3. Public record. Not legal advice.