Opposition Brief — Kennedy v. Hughes

{ a

1 i

oe 5) Supreme Court, U.S.

FILED

No. 02-1853 JUL 2 4 2003

OFFICE OF THE CLERK

In the

Supreme Court of the Anited States

EDWARD KENNEDY AND CATHERINE SINGER,

Petitioners,

v.

RICHARD HuGHES, WALTER DASHENO, EDWIN TAFOYA, ~

DALE Baca, CHARLES SUAZO, JOSEPH VAL GUTIERREZ,

C. ANTHONY SUAZO, JosE N. CHAVARRIA, JOHN SHUE,

‘Francis TAFOYA, ALVIN WARREN, DENNY GUTIERREZ

AND GEORGE GUTIERREZ,

Respondents.

On PETITION For Writ OF CERTIORARI

To THe UnNrrTED STATES Court Or APPEALS

For Tue Tents Circuit

RESPONDENTS' BRIEF IN OPPOSITION

C. BRYANT ROGERS RICHARD W. HUGHES

Rotu, VANAMBERG, ROGERS, ROTHSTEIN, DONATELLI,

Ortiz, FAIRBANKS & YEPA, LLP HuGuHEs, DAHLSTROM &

Post OFFICE Box 1447 SCHOENBURG, LLP

SANTA Fe, NM 87504-1447 Post OFFice Box 8180

(505) 988-8979 SANTA Fe, NM 87504-8180

(505) 988-8004

Counsel of Record for _

Respondent Richard W. Hughes —_ Counsel of Record for

All Other Respondents

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

TABLE OF CONTENTS

pp ye ge ys as orn reee

STATEMENT OF JURISDICTION .............

SEAT MER GP SEM CADE 605 cece ve eeen

1. Proceedings in the Santa Clara Tribal Court ...

2. Proceedings in the Federal District Court......

3. Proceedings in the Tenth Circuit Court of

rrr rn ee ene eee en ee

REASONS FOR DENYING THE WRIT ..........

i I a ore ane ae eer Gin aoe eh eke Bes

2. The Tenth Circuit’s ICRA Rulings Do Not

Conflict with the Rulings of this Court or Any

oe eee eee eee ee

A. The Tenth Circuit Correctly Adhered to

the Rule of Santa Clara Pueblo v.

Martinez in Affirming the Dismissal For

Lack of Subject Matter Jurisdiction or

Failure to State a Claim ..............-

CONCLUSION

B. Santa Clara Pueblo v. Martinez Applies

With Equal Force to All Persons Whether

Indian or Non-Indian ...............

. Since Neither Lower Court Ruled Upon Any

-Issue Respecting Exhaustion of Tribal

Remedies, This Case Is Not a Suitable Vehicle

_ for Addressing Such Issues .............

. Kennedy’s Status as an “Indian” or “Non-

Indian” is Irrelevant to the Decision in This

CWO on ieee vane ee eee

. Kennedy’s Nevada v. Hicks Arguments Were

Not Timely Raised and Are Without Merit ....

A. Kennedy Did Not Timely Raise and

Neither Lower Court Ruled On Any Issue

Relevant to Nevada v. Hicks ..........

B. Hicks is Irrelevant to the Issues in This

Case, as There Was No Assertion of

Jurisdiction Over Kennedy by Santa Clara

Pueblo in the Action of Which Petitioners

Complain, and Nothing in Hicks Changed

the Jurisdictional Rules Respecting ICRA . .

oem oeseoeaeeeeqgeeene op vsevweesse 8 ee 8 8 6 @

. 18

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APPENDICES

Appendix A

Opinion and Order in Kennedy, et al. v. Hughes, et

al., Santa Clara Tribal Court Cause No. CV-98-504

(September 17, a Pee a epee la

Appendix B

Memorandum Opinion and Order in Kennedy, et al. v.

Hughes, et al., U.S. States District Court for the

District of New Mexico, Cause No. CIV 01-1183

rm ae; Te) wd. eee. 19a

Appendix C

Order and Judgment in Kennedy, et al. v. Hughes, et

al., Tenth U.S. Circuit Court of Appeals No. 02-2112

“ote ae | a rr rs 25a

Appendix D

Pueblo of Santa Clara Tribal Council Resolution No.

98-29 (November 10, A Ree ee eee 34a

ili

Lee

TABLE OF AUTHORITIES

Cases:

Akins v. Penobscot Nation,

rope £ fh) tk ef) ree eee eae 8

Crowe v. Eastern Band of Cherokee Indians Inc.,

ew Le Lk a a ere 9

Dement v. Oglala Sioux Tribal Court,

S74 F.28 Si GCM. TF we we cet enensn 12

Demontiney v. United States,

Rae Fe RCE GAs OPED 6 6 bb ce eee ee een 9

Dodge v. Nakai,

ae ©. See. 17 GD. GE: THO 6c ete casneenes 13

Dry Creek Lodge, Inc. v. Arapahoe

and Shoshone Tribes,

623 F.2d 682 (10th Cir. 1980), cert. denied,

GaP Us SERED 8 eke teres eke ees 6, iz, 3

Dry Creek Lodge, Inc. v. United States,

515 F.2d 926 (10th Cir. 1975) ............ 15-17

Florida Paraplegic v. Miccosukee

Tribe of Indians of Florida,

166 F.3d 1126 (11th Cir. 1999) .......... 9-10, 13

Gaming Corporation Of America v. Dorsey & Whitney,

be bg fo || 6a ee re re 9

iV

Garcia v. Akwesasne Housing Authority,

268 F.3d 76 (2nd Cir. se are RE 8-9, 12

Grimes v. Pearl River Valley Water Supply Dist,

930 F.2d 441 (5th Cir. cichin, MOE Oe 19

Jicarilla Apache Tribe v. Andrus,

687 F.2d 1324 (10th Cir. WEE 640g ey eee 16

Johnson v. Gila River Indian Cmty.,

174 F.3d 1032 (9th Cir. cng: SER EE PC 16

Towa Mutual. Ins. Co. v. LaPlante,

ee OE oa ay pg a, De ee 14

Martinez v. Santa Clara Pueblo,

402 F.Supp. 5 (D.N.M. van: LEER OC oS 11

Montana v. United States,

450 U.S. 544 (1981) .................. 19, 20

National Farmers Union Ins. Cos. v. Crow

Tribe of Indians,

Ore Ua OD oo ee Se 13, 14

Nevada v. Hicks, 533 U.S. 353 Gee oka ox 13, 18-20

Oneida Tribe of Indians of Wisconsin v. Wisconsin,

951 F.2d 757 (7th Cir. aa:, SER Pe rire Ger 9

Ordinance 59 Ass'n v. United States Dept.

of the Interior,

163 F.3d 1150 (10th Cir. ois, RET Oe 16

ee

Poodry v. Tonawanda Band of Seneca Indians,

85 F.3d 874 (2nd Cir. 1996), cert. denied,

SID UB. EGE Cpe 6 ek ee eee Pewee eee ens 16

Pyca Industries, Inc. v. Harrison Co.

Waste Water Mgt. Dist.,

Si F.38 1412 GC. TEP ccc ecu reteanvs 19

R. J. Williams Co. v. Ft. Belknap Hsg. Auth.,

719 F.2d 979 (9th Cir. 1983), cert. denied,

S72 US. TORR CESS ns cy sasenesteese 9,12

Sandman v. Bradley Dakota,

816 F.Supp. 448, 451 (W.D. Mich 1992)

aff'd 7 F.3d 234 (6th Cir. 1993) (table) ......... 9

Santa Clara Pueblo v. Martinez,

496: U3. SR Cle eee « 6s td dn passim

TTEA Corp. v. Ysleta del Sur Pueblo,

Fie we fy te To A. ee ee 9

White v. Pueblo of San Juan,

728 F.2d 1307 (10th Cir. 1984) ......... 12-13, 16

Statutes:

y~ RES A Oe Be FO eee eee an passim

25 USA; BOR 60s eistiseeknee eee 2,6

28 UDA. & ERD 8 0 0 06.4 eee eee 1

ae UB. S100: ehh esate eee 5

2a USL. GS EeeR e466 v6 00 00 oe eee 5

Miscellaneous:

Sup. Ce. R. IO OF) ove ccccvcvesvesuees 10

vi

re HH a

OPINIONS BELOW

The order and judgment of the court of appeals (Pet. App.

7a-13a) is not reported. A complete copy of this order and

judgment (including the footnotes omitted from the version

provided by Petitioners) is included in Respondent’s Appendix

(“Resp. App.”) at 25a-33a. This unreported order and

judgment can also be found at 60 F. Appx. 734.

The district court’s memorandum opinion (Pet. App. 2a-

6a) is not reported. A complete copy of this memorandum

opinion (including the footnotes omitted from the version

provided by Petitioners) is attached at Resp. App. 19a-24a.

STATEMENT OF JURISDICTION

The court of appeals issued its order and judgment on

March 20, 2003 (Resp. App. 25a) (not March 19, 2003, as

Stated in the Petition at 2). This Court’s jurisdiction was

invoked by Petitioners pursuant to 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

Respondents submit that the Statement of the Case in the

Petition is incomplete and confusing, and contains

misstatements as to the nature of this proceeding. For

example, the opening sentence in the Statement of the Case in

the Petition, that “Petitioner filed a civil complaint to contest

the Santa Clara tribe’s regulatory authority over him,” (Pet.

2) is untrue, as is the implication contained in the next

fragmentary sentence, that the case presented to this Court

arose from Petitioner Kennedy’s incarceration for contempt of

court. As will be explained below, this case arose from a suit

for damages filed by Petitioners claiming Petitioner Kennedy

was injured by the Pueblo of Santa Clara Tribal Council’s

1

\

enactment of a resolution reaffirming the Pueblo’s sovereign

immunity from unconsented suit. A complete and accurate

account of the somewhat convoluted circumstances leading to

the filing of the Petition follows.

1. Proceedings in the Santa Clara Pueblo

Tribal Court

In 1993, Petitioner Edward Kennedy (“Kennedy”), a

member of the Blackfeet Indian Tribe and long-time resident

of the Santa Clara Pueblo married to Santa Clara Pueblo

member and Petitioner Catherine Singer (“Singer”), was sued

by two creditors in the Santa Clara Pueblo Tribal Court. None

of Respondents herein were parties to those lawsuits. After

Kennedy failed to pay the money judgments awarded the

creditors, he was held in contempt of court and was

incarcerated by order of Santa Clara Tribal Court Judge

Dennis Silva for 33 days. (Pet. 2). Kennedy never appealed

either judgment, or challenged the Santa Clara Tribal Court’s

jurisdiction in either proceeding, nor did he ever seek habeas

corpus relief under 25 U.S.C. § 1303 of the Indian Civil

Rights Act (“ICRA”) to challenge the validity of his

incarceration.

Instead, three years later, in August, 1996, Kennedy and

Singer filed a suit for money damages in the Santa Clara

Tribal Court against Judge Silva, styled Kennedy, et al. v.

Silva, No. CV 96-436, alleging that Judge Silva had violated

Kennedy’s civil rights. (Resp. App. 26a). Judge Silva,

represented by Respondent Hughes (who has been general

counsel to the Pueblo since October, 1995), filed a motion to

dismiss the complaint, asserting judicial immunity and failure

to state a claim on which relief could be granted. The motion

was heard by Tribal Judge Paul Tsosie, who, after full

briefing and argument, dismissed the complaint in September,

2

fev Heat

1997. Kennedy appealed the dismissal to the Santa Clara

Court of Appeals. (Resp. App. 26a-27a). That court vacated

the order of dismissal and remanded the case for further

proceedings in January, 1998, and it directed that the case be

heard by a judge specially appointed by the Tribal Council. In

the meantime, Kennedy filed a second amended complaint, in

which he added as additional defendants the Pueblo Governor,

Lieutenant Governor and all of the members of the 1994

Tribai Council, alleging wrongful failure to supervise Judge

Silva as the claimed basis for their liability. (Resp. App. 3a,

26a).

Respondent Hughes had advised Pueblo Governor Walter

Dasheno that in the course of working on the Kennedy case he

had discovered that there was uncertainty from the

documentation as to whether or not the Pueblo had or had not

waived its sovereign immunity from suits asserting violations

of civil rights. The problem arose from the fact that in 1981,

the Tribal Council had enacted a comprehensive Law and

Order Cods, that included Section 60.4, which expressly

waived the immunity of the Pueblo’s “members, officers,

employees and staff from suit in matters relating to alleged

violation of civil rights.” Two years later, however, by

Resolution enacted on December 7, 1983, the Tribal Council

repealed Section 60.4. Then, in 1985, it was discovered that

the Code had not been submitted to the Bureau of Indian

Affairs for approval, as required by the Santa Clara

constitution. The Council therefore reenacted the Code, by

Resolution No. 3-07-85, and the Bureau approved it. The

question identified by Respondent Hughes was whether the

reenactment and approval of the Code incorporated the repeal

of Section 60.4. To clarify the situation, Governor Dasheno

requested that Respondent Hughes prepare and present to the

Tribal Council a resolution addressing the issue, which the

Council enacted on November 10, 1998, as Resolution No.

3

98-29 (Resp. App. 27a-28a). That resolution confirmed the

Council’s original legislative intent that the 1983 repeal of

Section 60.4 had been incorporated into the reenactment of

the Code in 1985 (and further declared that the doctrine of

judicial immunity was implicitly adopted by the Council when

it created a tribal judiciary by its enactment of the Code).

(Resp. App. 27a-28a, 34a-37a).

After enactment of Resolution No. 98-29, the Santa Clara

Pueblo defendants again moved to dismiss Kennedy, et al. v.

Silva on the grounds that Kennedy’s and Singer’s claims

against Judge Silva were barred by judicial immunity, and that

their claims against all defendants were barred by the Pueblo’s

sovereign immunity. Although the motion was fully briefed

and argued, the pro tem judge never ruled on the motion, and

he subsequently resigned. The case has thus never been

resolved. (Resp. App. 27a, and n.2). Importantly, however,

the claims raised in Kennedy, et al. v. Silva have nothing to

do with the case Kennedy seeks to bring before this Court.

Just two weeks after the Tribal Council had enacted

Resolution No. 98-29, and before the defendants in Kennedy,

et al. v. Silva, et al. had filed their second motion to dismiss,

Kennedy and Singer filed a new lawsuit in Santa Clara Tribal

Court, naming as defendants the Pueblo’s Governor, Lt.

Governor and members of the 1998 Santa Clara Tribal

Council, and attorney Hughes (the Respondents herein).

Kennedy, et al. v. Hughes, et al., No. CV 98-504. That suit

claimed that the legislative action taken by the Tribal Council

in enacting Resolution No. 98-29, and Respondent Hughes’

role in drafting the resolution and advising the Council with

respect to its passage, violated various provisions of the

ICRA, the United States Constitution and the Santa Clara

Pueblo Constitution. (Resp. App. 2a-4a, 28a). The suit sought

$8 million in damages, plus other forms of relief.

4

ttt

The Santa Clara Tribal Court (through Tribal Judge pro

tempore Frank DeMolli) ultimately dismissed the case on the

merits in an opinion and order issued on September 19, 1999.

(Resp. App. 1a-18a). Kennedy and Singer noticed an appeal

from that ruling to the Santa Clara Court of Appeals, but as

their counsel knew, that court had been abolished by the Santa

Clara Tribal Council, and the Council had shifted appellate

jurisdiction over final decisions of the Tribal Court to the

Southwest Intertribal Court of Appeals, based at the

University of New Mexico Law School. Kennedy and Singer

never pursued an appeal to that appellate court. (Resp.

App.28a, and n.3).

2. Proceedings in the Federal District Court.

In 2001, Kennedy and Singer filed a new lawsuit - this

case -- in the United States District Court for the District of

New Mexico, making claims identical to those they had

asserted (and that had been disposed of on the merits) in

Kennedy, et al. v. Hughes, et al., in Santa Clara Tribal Court

~ that is, that their rights had been violated by the enactment

of Tribal Council Resolution No. 98-29 -- and naming the

identical parties defendant (Respondents herein). The

complaint alleged jurisdiction under 28 U.S.C. §§ 1331 and

2201-2202, asserting that the claims arose under “the Laws

and Constitution of the United States pursuant to the Indian

Civil Rights Act of 1968. 25 U.S.C. § 1302 et seq.” The

district court granted Respondents’ motions to dismiss the

complaint, ruling that “it does not have jurisdiction over

Plaintiffs’ claims, or alternatively, that Plaintiffs fail to state

claims upon which relief can be granted because ICRA does

not authorize a cause of action such as Plaintiffs’ ,” relying on

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). (Resp.

App. 19a-24a). The district court did not reach or rule upon

any of the other grounds for dismissal argued by Res, ondents

5

(legislative immunity, failure of Plaintiffs to exhaust tribal

remedies and res judicata, and as to Respondent Hughes the

additional defense of qualified immunity). (Resp. App.20a-

21a). The district court did, however, reject Kennedy and

Singer’s attempts to bootstrap Kennedy’s 1993 incarceration

into a basis for federal jurisdiction over his 2001 federal court

lawsuit. (Resp. App. 21a, n.1).

3. Proceedings in the Tenth Circuit Court of

Appeals

Because Kennedy and Singer’s federal suit was based

solely on § 1302 of ICRA, the Tenth Circuit identified the

threshold question on appeal to be “whether a private cause of

action may be brought under that section.” (Resp. App. 29a-

30a). Applying this Court’s ruling in Santa Clara Pueblo, 436

U.S. at 69, the Tenth Circuit held that “the District Court

correctly dismissed this suit for lack of subject matter

jurisdiction or failure to state a claim upon which relief may

be granted” (Resp. App. 33a), since the only provision of

ICRA that authorizes a private cause of action in the federal

courts is 25 U.S.C. § 1303, the habeas corpus provision.

(Resp. App. 29a-30a).

In so ruling, the Tenth Circuit rejected Kennedy’s effort

to evade dismissal by invocation of an anomalous “exception”

to Santa Clara Pueblo recognized only in the Tenth Circuit

decision in Dry Creek Lodge, Inc. v. Arapahoe and Shoshone

Tribes, 623 F.2d 682 (10 Cir. 1980), cert. denied, 449 U.S.

1118 (1981). (Resp. App. 30a-33a). (See discussion infra,

n.6). Kennedy and Singer’ then filed the Petition in this

‘Kennedy and Singer are both listed as Petitioners in the caption of

this matter as it appears on the front of the Petition and on page 1.

6

Court, seeking reversal of the Tenth Circuit’s decision

affirming the dismissal of the federal court suit.

REASONS FOR DENYING THE WRIT

1. Introduction.

Contrary to the suggestion in Petitioner’s Questions

Presented (Pet. i) and throughout the text of the Petition, e.

Pet. 2, 3, 6, 7, the decisions below have nothing whatever to

do with tribal assertion of jurisdiction over non-members, or

the requirement of exhaustion of tribal remedies. The only

issue addressed or decided by either the district court or the

court of appeals, and thus the only decided issue which could

properly be subjected to certiorari review in this Court, is

whether Petitioner may bring an action in federal court

asserting claims for damages arising under the Indian Civil

Rights Act, 25 U.S.C. § 1302 (“ICRA”). On that issue, the

decision below - that there is no federal cause of action

created by that Act, nor any federal court jurisdiction for

The text of the Petition begins with the plural word, "Petitioners, "

and the same word appears in the Statement of Jurisdiction, Pet. at

2. Thereafter, however, although there is no explanation for the

change, the Petition utilizes the singular form, “Petitioner,” and a

significant portion of the argument is premised on the “Petitioner”

not being a member of Santa Clara Pueblo. Kennedy is not a

member of the Pueblo, but Singer is (Resp. App.26a), and those

arguments (had they any merit or relevance to this case) could not

be asserted on her behalf. Since, however, it appears that both

Kennedy and Singer are Petitioners in this matter, all arguments set

forth in this Response should be understood as applying to both of

them, except these points where Petitioners’ argument depends on

Kennedy's status as a non-member of the Pueblo, which would

only apply to him.

claims arising under it -- is not in conflict with, and is

completely in accord with, every decision of every other court

of appeals to have addressed the question, and with the only

decision of this Court to have addressed it. Santa Clara

Pueblo v. Martinez, 436 U.S. 49 (1978). The issue has been

regarded as completely settled as a matter of federal law for

the past 25 years, since this Court’s landmark decision in

Santa Clara Pueblo. Petitioner offers no reason for departing

from this settled and consistent body of decisional law, and

instead resorts to a remarkable effort to recharacterize (and

indeed, to thoroughly mischaracterize) the issues presented by

the case.

2. The Tenth Circuit’s ICRA Rulings Do Not

Conflict with the Rulings of this Court or

Any Other Federal Circuit.

A. The Tenth Circuit Correctly Adhered to

the Rule of Santa Clara Pueblo vy.

Martinez in Affirming the Dismissal For

Lack of Subject Matter Jurisdiction or

Failure to State a Claim

The Tenth Circuit’s ruling that § 1302 of ICRA does not

authorize a private cause of action in the federal courts does

not conflict with any decision of this Court or with any

decision of any other federal court of appeals. Indeed, that

ruling was compelled by this Court’s holding in Santa Clara

Pueblo, and is in complete accord with the decisions of every

other federal court of appeals to have faced cases under the

ICRA since Santa Clara Pueblo. E.g., Akins v. Penobscot

Nation, 130 F.3d 482, 486 (1* Cir. 1997) (“With exceptions

for habeas corpus relief, Congress did not intend in the Indian

Civil Rights Act to create implied causes of action to redress

substantive rights in federal court”); Garcia v. Akwesasne

8

Housing Authority, 268 F.3d 76, 86 (2™ Cir. 2001) (“The

Indian Civil Rights Act, for instance, imposes numerous

substantive obligations on tribal governments but does not

explicitly provide a private cause of action in federal court

except via the writ of habeas corpus.”); Crowe v. Eastern

Band of Cherokee Indians Inc., 584 F.2d 45, 45-46 (4" Cir.

1978) (“We find it unnecessary to reach the merits of the

appeal since we conclude that under the Supreme Court’s

decision in Santa Clara Pueblo v. Martinez . . . the district

court was without jurisdiction to entertain the action”)

(internal citations omitted); TTEA Corp. v. Ysleta del Sur

Pueblo, 181 F.3d 676, 681 (5" Cir. 1999) (under Santa Clara

Pueblo, federal court lacked subject matter jurisdiction for

actions brought under Indian Civil Rights Act); Sandman v.

Bradley Dakota, 816 F.Supp. 448, 451 (W.D. Mich 1992),

(“Congress did not provide a private right of action in the

Indian Civil Rights Act, but provided only the remedy of

habeas corpus.”), aff’d 7 F.3d 234 (6" Cir. 1993) (table);

Oneida Tribe of Indians of Wisconsin v. Wisconsin, 951 F.2d

757, 764 (7" Cir. 1991) (citing Santa Clara Pueblo v.

Martinez for ruling that Congress did not authorize the federal

courts to adjudicate civil actions under ICRA except for those

seeking habeas corpus relief); Gaming Corporation of

America v. Dorsey & Whitney, 88 F.3d 536, 550 (8" Cir.

1996) (“The district court correctly noted that there is no

private right of action under the Indian Civil Rights Act. .

.”); Demontiney v. United States, 255 F.3d 801 , 814 (9" Cir.

2001) (“. . . we have generally found federal court

jurisdiction for alleged violations of ICRA only in habeas

corpus actions, not in civil actions.”); R. J. Williams Co. vy.

Ft. Belknap Hsg. Auth., 719 F.2d 979, 981 (9" Cir. 1983),

(Santa Clara Pueblo “foreclosed any reading of [the Indian

Civil Rights Act] as authority for bringing civil actions in

federal court to request . . . forms of relief [other than habeas

corpus]”), cert. denied, 472 U.S. 1016 (1985); Florida

9

Paraplegic v. Miccosukee Tribe of Indians of Florida, 166

F.3d 1126, 1130, 1134 (11" Cir. 1999) (citing Santa Clara

Pueblo for the proposition that in enacting ICRA Congress

had imposed “substantive limitations on Indian tribes without

providing any means for most individuals to enforce their

rights in federal court.”). Thus, this case does not involve “a

decision in conflict with the decision of another United States

court of appeals on the same important matter” nor a decision

in conflict with any decision of this Court, which might

warrant certiorari review under Sup. Ct. R. 10(a) or (c).

B. Santa Clara Pueblo v. Martinez Applies With

Equal Force to All Persons Whether Indian

or Non-Indian

Kennedy” argues that the Tenth Circuit’s adherence to

Santa Clara Pueblo was error since that Court “failed to

recognize that the rule in Santa Clara does not apply to this

case because Petitioner is not a member of the Santa Clara

Indian Tribe but resides on the reservation.” (Pet. 4). This

argument primarily rests on Kennedy’s assertion that “([I]n

Santa Clara . . . all parties to the suit were members of the

Santa Clara Indian Tribe.” (Pet. 4).

2 As explained supra, n.1, although the text of the Petition

appears to treat Edward Kennedy, who is not a member of Santa -

Clara Pueblo, as the only Petitioner here, the caption and the

beginning sections of the Petition indicate that Catherine Singer is

also a Petitioner. Ms. Singer, however, is a Pueblo member, and

thus none of the arguments set forth in the Petition dealing with the

applicability of the ICRA to non-members, or the Pueblo's

authority over non-members, could properly be raised on her

behalf. The following discussion, and the discussion in sections 4

and 5.B., infra, should therefore be understood as applying only to

the arguments raised on behalf of Petitioner Kennedy.

10

ES eee

en

Kennedy’s contention is wrong. The plaintiffs in Santa

Clara Pueblo were Julia Martinez, who was a tribal member,

and her adult daughter Audrey, who was not a member’ (and,

indeed, though 100% Indian by blood, was not a member of

any Indian tribe). The point of their suit was that children of

female tribal members married to non-members were denied

membership in the Pueblo solely because their fathers were

not Pueblo members. (Children of male members who

married outside the Pueblo were fully eligible for

membership.) They had sued under the ICRA seeking to

compel their admission to membership in the Pueblo on an

equal protection theory:

Although the children were raised on the reservation

and continue to reside there now that they are adults,

as a result of their exclusion from membership they

may not vote in tribal elections or hold secular office

in the tribe; moreover, they have no right to remain on

the reservation in the event of their mother’s death, or

to inherit their mother’s home or her possessory

interests in the communal lands.

436 U.S. at 52-53 (emphasis added).

* Each of them sued in her own capacity, but also as

representative of a class of persons similarly situated. The class

represented by Audrey consisted of all children of female Pueblo

members who had married outside of the Pueblo, and which

children were, thus, denied membership in the Pueblo. Martinez v.

Santa Clora Pueblo, 402 F.Supp. 5, 12 (D.N.M. 1975).

11

RE OS BE 5

The other federal circuits addressing this issue have (like

the Tenth Circuit, with one exception‘) uniformly followed

Santa Clara Pueblo, ruling that § 1302 of ICRA does not

authorize a private right of action in federal district court

irrespective of whether the plaintiff is or is not a member of

the Indian tribe whose officials are alleged to have

contravened some provision of that statute, and whether the

plaintiff is Indian or non-Indian. The ICRA applies equally to

“any person”. (Pet. App.13a) (25 U.S.C. § 1302(8)); Santa

Clara Pueblo, 436 U.S. at 65 (“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 forums are obliged to apply. Tribal courts have

repeatedly been recognized as appropriate forums for the

exclusive adjudication of disputes affecting important personal

and property interests of both Indians and non-Indians.”

(Footnotes omitted.)); Garcia v. Akwesasne Housing

Authority, 268 F.3d at 78, 88 (2™ Cir. 2001) (remanding non-

member plaintiff's civil rights suit against tribal housing

officials in part to give her an opportunity to show that there

was some statutory basis upon which to found a private cause

of action in federal court other than the ICRA which “does

not explicitly provide a private cause of action in federal court

except via a writ of habeas corpus”); Dement v. Oglala Sioux

Tribal Court, 874 F.2d 510, 515 (8" Cir. 1989) (noting that

ICRA’s habeas corpus provision was available to “any

person”); R. J. Williams Co., 719 F.2d at 9811-982 (ICRA

protects due process rights of “all persons”, but district court

should have dismissed non-Indian’s ICRA action under Santa

Clara Pueblo); White v. Pueblo of San Juan, 728 F.2d 1307,

‘4 See discussion infra, at n.6 and accompanying text, concerning

Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d

682 (10 Cir. 1980), cert. denied, 449 U.S. 1118 (1981).

12

1312, n.1 (10" Cir. 1984) (“The protections afforded to ‘any

person’ under the ICRA are not limited to American Indians,

but apply also to non-Indians,”); Dodge v. Nakai, 298 F.

Supp. 17, 24 (D. Az. 1968) (noting legislative history of

ICRA regarding use of term “any person” instead of language

limiting its protections to Indians only); Florida Paraplegic,

166 F.3d at 1134. (quoting § 1302 language extending

ICRA’s protections to “any person” regarding suit against

tribe by non-Indian advocacy organization).

3. Since Neither Lower Court Ruled On Any

Issue Respecting Exhaustion of Tribal

Remedies, This Case Is Not a Suitable

Vehicle For Addressing Such Issues

Petitioners also seek review on the ground that the Tenth

Circuit somehow misapplied this Court’s rulings respecting

exhaustion of tribal remedies, citing National Farmers Union

Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) and

Nevada v. Hicks, 533 U.S. 353 (2001). Petitioners assert that

“(t]he Tenth Circuit held that Petitioner had not exhausted his

remedies as regarding [sic] other courts and, therefore, it had

no jurisdiction to hear the claims.” (Pet. 7). Petitioners

framed their “question presented” based on this issue as

“whether the District Court incorrectly interpreted this

Court’s rule regarding the requirement to exhaust remedies.”

(Pet. i).

In fact, however, neither the district court nor the Tenth

Circuit made any ruling respecting failure to exhaust tribal

remedies. The decisions in both courts were strictly limited to

the issue of lack of jurisdiction over claims arising under

ICRA, or alternatively, failure to state a claim upon which

relief can be granted, both arguments having been raised in

Respondents’ Motions to Dismiss. The district court noted

13

that Respondents (defendants below) had also argued inter

alia that “Plaintiffs’ claims should be dismissed based on. .

. failure of Plaintiffs to exhaust tribal remedies .. . .” (Resp.

App. 20a). But (in view of its ICRA rulings), the District

court held that it “need not address and will not decide the

other issues raised by Defendants.”(Resp. App. 20a-21a).

Likewise, the Tenth Circuit simply affirmed the district

court’s alternative rulings that it had no jurisdiction to

entertain Petitioners’ claims under ICRA or that Petitioners

had failed to state a claim upon which relief can be granted.

(Resp. App.31la-32a, 35a). Thus, there is no Tenth Circuit (or

district court) ruling on exhaustion of tribal remedies to

review in this case.°

Since there was no decision in either court below

respecting the tribal exhaustion doctrine, that issue is not

properly before this Court.

4. Kennedy’s Status as an “Indian” or “Non-

Indian” is Irrelevant to the Decision in This

Case.

Kennedy concedes he “is for all intent [sic] and purposes

considered an ‘Indian’ under the ICRA as a member of the

Blackfeet Indian Tribe” (a federally recognized Tribe) (Pet.

> Petitioner’s argument also overlooks a critical aspect of the

tribal exhaustion doctrine - it never applies unless there is already

present some basis for the exercise of federal court jurisdiction to

decide the claim presented. National Farmers Union, 471 U.S. at

853-854 (1985); Jowa Mutual Ins. Co. v. LaPlante, 480°U.S. 9,

16, n.8 (1987). Since neither lower court found any basis for

jurisdiction in this case, neither court could properly have reached

the “exhaustion of tribal remedies” defense, and neither did.

14

4), and that he is a resident of the Pueblo married to a tribal

member. Jd. Nonetheless he claims the Tenth Circuit erred in

treating him as an “Indian” rather than a “non-member

Indian” or “non-Indian” in affirming the district court’s

dismissal under Santa Clara.

This “Indian,” “non-member Indian” or “non-Indian”

issue arose in connection with Kennedy’s attempt to invoke

the Tenth Circuit’s discredited Dry Creek Lodge “exception”

to this Court’s holding in Santa Clara Pueblo. (Resp.

App.22a-23a, 30a-33a).° Plaintiffs attempting to invoke this

° Dry Creek Lodge appears to be the only decision of a federal

court of appeals that, contrary to this Court’s ruling in Santa Clara

Pueblo, found a private cause of action under § 1302 of the ICRA,

federal jurisdiction to hear the claim, and (apparently) an

abrogation of tribal sovereign immunity. The case was originally

filed in 1974, by non-Indian plaintiffs Claiming that the tribes had

barred them from access to their privately-owned land within the

Wind River Reservation, the day before the opening of a hunting

lodge that the plaintiffs had constructed on the property. The

district court had dismissed the complaint, but the Tenth Circuit

reversed. Dry Creek Lodge, Inc. v. United States, 515 F.2d 926

(10" Cir. 1975). On remand, the case was tried to a jury, which

returned a substantial verdict. The district court granted a new

trial, but before the trial could occur this Court decided Santa

Clara Pueblo, and the district court thereafter dismissed the

complaint, viewing that decision as having eliminated any basis for

a federal cause of action or federal court jurisdiction. In the second

appeal, the Tenth Circuit erroneously observed that Santa Clara

Pueblo dealt with a problem that was “strictly an internal one

between tribal members and the tribal government relating to the

policy of the Tribe as to its membership.” 623 F.2d at 685. It also

saw the decision in that case as hinging on the availability of ICRA

enforcement by the Santa Clara tribal court, even though, as the

opinion in Senta Clara Pueblo notes, at the time of that litigation

15

the only “court” at Santa Clara was the Tribal Council itself. Santa

Clara Pueblo, 436 U.S. at 66 n.22. Noting that the Wind River

tribal court had refused to hear the complaint of the plaintiffs in

Dry Creek Lodge, the Tenth Circuit lamented that “[t]here has to

be a forum where the dispute can be settled,” 623 F.2d at 685, and

it reversed the dismissal of the complaint. Judge Holloway

dissented.

Since then, though the Tenth Circuit has regularly (as in the

instant case; see Resp. Apn. 30a -33a) looked at whether an effort

to sue a tribe or tribal official under the ICRA meets the

requirements of the “Dry Creek Lodge exception” to Santa Clara

Pueblo, no such case has ever been found, and the “exception”

exists as a viable doctrine (if at all) only in the narrowest of cases

that precisely track its factual elements. See, Ordinance S59 Ass’n

v. United States Dept. of the Interior Secretary, 163 F.3d i150,

1159 (10° Cir. 1998) (citing cases rejecting invocation of

exception) (“With the exception of Dry Creek itself, we have never

found federal jurisdiction based on the Dry Creek exception.”)

(emphasis in original). No other federal appellate court has ever

followed the decision, and it has been criticized as at least

questionable, if not plainly wrong, in light of the clear holding of

Santa Clara Pueblo. See, e.g., Johnson v. Gila River Indian

Cmty., 174 F.3d 1032, 1035, n.2 (9 Cir. 1999) (declining to apply

Dry Creek Lodge and noting the Ninth Circuit recognizes habeas

corpus action as only exception to exclusive tribal jurisdiction over

ICRA claims); Poodry v. Tonawanda Band of Seneca Indians, 85

F.3d 874, 885, n.14 (2™ Cir. 1996), cert. denied, 519 U.S. 1041

(1996) . The Tenth Circuit itself has repeatedly narrowed the

decision’s application, to the point of crediting it with “minimal

precedential value.” Ordinance 59 Ass'n., 163 F.3d at 1158; see

also, Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1346 (10"

Cir. 1982) (recognizing exception only in cases involving

“particularly egregious allegations of personal restraint and

deprivation of personal rights”); White, 728 F.2d at 1312 (10" Cir.

1984) (noting necessity of construing Dry Creek Lodge narrowly to

avoid conflict with Santa Clara). To be sure, consistent with its

16

anomalous exception in the Tenth Circuit must show that their

case meets three requirements: “the dispute involves a non-

Indian party; a tribal forum is not available; and the dispute

involves an issue falling outside internal tribal affairs.” (Resp.

App. 30a). The claim, moreover, must also involve

“particularly egregious allegations of personal restraint and

deprivation of personal rights.” (Resp. App. 30a, n.4). The

district court found that Kennedy had failed to establish the

“no tribal forum” and “not an internal tribal matter”

elements, hence he could not invoke Dry Creek Lodge even if

he “were found to be a non-Indian.” (Resp. App. 22a-23a).

The Tenth Circuit affirmed, primarily on the ground that

Plaintiff had failed to demonstrate that no tribal forum was

available to him, noting that “As to the existence of a tribal

forum, the district court concluded that a tribal forum is

available in this case, as plaintiffs have filed two actions

before the Santa Clara Tribal Court, the second of which

involved the same claim as in the instant federal case. . . .

Plaintiffs have taken advantage of that forum, not once but

twice. They did not prevail on the merits, but that does not

entitle them to take their claim to federal court.”(Resp. App.

31a-33a).

Whatever the merits of Kennedy’s “Indian,” “non-

member Indian” or “non-Indian” argument in other contexts,

this case is not a proper vehicle for addressing it, since neither

the district court nor the Court of Appeals ever ruled upon it.

Both courts expressly declined to reach that issue since each

ruled that other grounds existed for dismissing Petitioners’

avoidance of any mention of the arguments actually presented by

Petitioners to the lower courts in this case, the Petition makes no

reference to Dry Creek Lodge.

17

suit under Santa Clara Pueblo even if Kennedy were “found

to be a non-Indian.” (Resp. App.22a-23a, 31a).

5. Kennedy’s Nevada v. Hicks Arguments Were

Not Timely Raised and Are Without Merit

A. Kennedy Did Not Timely Raise and

Neither Lower Court Ruled On Any

Issue Relevant to Nevada v. Hicks

Petitioners did not raise any argument based on Hicks

before the district court, nor did they even cite to Hicks in any

pleading or legal memorandum filed with that court. Since

they had failed to raise this argument in the district court, and

its outcome did not affect the Tenth Circuit’s appellate

jurisdiction, the Tenth Circuit did not consider or rule upon

Petitioners’ belated Hicks argument. Once again, Petitioners

now seek review on an issue not decided below, hence not

suitable for review by this Court in this case.

B. Hicks is Irrelevant to the Issues in This

Case, as There Was No Assertion of

Jurisdiction Over Kennedy by Santa

Clara Pueblo in the Action of Which

Petitioners Complain, and Nothing in

Hicks Changed the Jurisdictional Rules

Respecting ICRA.

Even had Kennedy timely raised his Hicks argument, and

had the Tenth Circuit ruled on it, the argument is utterly

without merit. As presented in the Petition, (Pet. 5-6), the

argument is obscure, but it appears to be that the Pueblo’s

“exercise of tribal authority over petitioner” was not

necessary to protect the Pueblo’s “interests of self-

government” and “in no way relate[s] to . . . principles of

18

necessary tribal authority.” Yet, the specific tribal action at

which Petitioners’ complaint in this case was directed was the

Tribal Council’s enactment of Resolution No. 98-29, by

which the Council simply reaffirmed the vitality of the

Pueblo’s -overeign immunity defense. This act cannot

logically be characterized as an exercise of jurisdiction over

Kennedy at all; rather, it was an appropriate and purely

defensive measure, intended to limit the exercise of court

jurisdiction over the Pueblo and its officers and employees.

Cf. Pyca Industries, Inc. v. Harrison Co. Waste Water Mgt.

Dist., 81 F.3d 1412 (5" Cir. 1996); Grimes v. Pearl River

Valley Water Supply Dist, 930 F.2d 441 (5" Cir. 1991), both

recognizing that governmental sovereign immunity is a

legitimate subject of legislative consideration; and, that

changes in the law of immunity, even those that may affect

pending litigation, do not amount to actionable violations of

rights of litigants.

Moreover, as the district court found, Petitioners’ claims

were directed at issues, in particular tribal legislation

respecting its sovereign immunity from suit, that “are plainly

internal matters and are at the very heart of tribal self-

governance and self-determination.” (Resp. App. 22a-24a).

Even if it could be somehow seen as an assertion of

jurisdiction over Kennedy, the resolution would still pass the

Hicks standard, which permits the exercise of tribal power

over non-Indians that “‘is necessary to protect tribal self-

government.’” 533 U.S. at 359 (quoting Montana v. United

States, 450 U.S. 544, 564 (1981)) (emphasis in Hicks). If

Kennedy’s Hicks argument is actually directed at the exercise

of tribal court jurisdiction over him, the obvious answer to

that complaint is that he invoked the jurisdiction of the Santa

Clara Tribal Court himself, at least twice, and never

challenged its jurisdiction to adjudicate his disputes with the

Pueblo.

19

Finally, this Court expressly limited its jurisdictional

rulings in Hicks to circumstances in which Indian tribal courts

attempt to exercise civil jurisdiction over state officials sued

for their official conduct:

Our holding in this case is limited to the question of

tribal court jurisdiction over State officers enforcing

state law.

Hicks, 533 U.S. at 359, n.2. Thus, nothing in Hicks altered

this Court’s ICRA ruling in Santa Clara Pueblo.

This Court did in Hicks reiterate the tribal court

jurisdictional principles established under “the path-marking

case” of Montana applicable when a non-Indian defendant is

involuntarily subjected to the exercise of a tribal court’s

jurisdiction. Hicks, 533 U.S. at 359. But here, the only tribal

court lawsuit affected by the exercise of the Pueblo’s

legislative authority via enactment of Resolution 98-29 was

the suit for money damages Kennedy and Singer filed in the

Santa Clara Tribal Court in 1998 against Respondents. Having

themselves invoked the jurisdiction of the Santa Clara Tribal

Court, neither can complain that they were involuntarily

subjected to the exercise of that court’s jurisdiction.

20

CONCLUSION

We therefore respectfully request that the Court deny the

Petition for Writ of Certiorari sought by Petitioners.

Respectfully submitted,

C. BRYANT ROGERS, ESQ.

Counsel of Record

For Respondent Richard W. Hughes

Roth, VanAmberg, Rogers, Ortiz, Fairbanks &

Yepa, LLP

Post Office Box 1447

Santa Fe, NM 87504-1447 '

(505) 988-8979

RICHARD W. HUGHES, ESQ.

Counsel of Record

For All Other Respondents

Rothstein, Donatelli, Hughes, Dahlstrom

& Schoenburg, LLP

Post Office Box 8180

Santa Fe, NM 87504-8180

(505) 988-8004

21

APPENDIX A

IN THE TRIBAL COURT

OF THE PUEBLO OF SANTA CLARA

COUNTY OF RIO ARRIBA

STATE OF NEW MEXICO

CASE NO: CV-98-504

[Filed September 17, 1999]

EDWARD KENNEDY and

CATHERINE A. SINGER,

Plaintiffs,

V.

RICHARD HUGHES, Individually

and

GOVERNOR WALTER DASHENO,

in his official capacity,

LT. GOVERNOR EDWIN TAFOYA,

in his own capacity,

SECRETARY DALE BACA,

in his own capacity,

TREASURER CHARLES SUAZO,

in his official capacity,

INTERPRETER JOSEPH VAL GUTIERREZ,

in his official capacity,

SHERIFF C. ANTHONY SUAZO,

in his official capacity,

la

Nm eee eee “ee”

COUNCILMAN JOHN SHUE,

in his official capacity,

COUNCILMAN FRANCIS TAFOYA,

in his official capacity,

COUNCILMAN ALVIN WARREN,

in his official capacity,

COUNCILMAN DENNY GUTIERREZ,

in his official capacity,

COUNCILMAN GEORGE GUTIERREZ,

in his official capacity,

Defendants.

a a a a a La La a a La Lae

OPINION AND ORDER

Plaintiffs are residents of the Pueblo of Santa Clara, one

of whom is an enrolled member of the Pueblo. Plaintiffs bring

this action against Pueblo of Santa Clara Tribal Council

members, the tribal sheriff, and a tribal attorney. Plaintiffs

allege violations of the Pueblo of Santa Clara Constitution, the

U.S. Constitution, and the Indian Civil Rights Act of 1968.

Plaintiffs claim defendants violated their rights when the

Tribal Council passed a resolution that reaffirmed the

sovereign immunity of the Pueblo officials and its judiciary.

The resolution effectively precluded plaintiffs’ pending case

on a different matter.

PROCEDURAL HISTORY

In December 1998, Plaintiff Edward M. Kennedy sued the

Chief Judge of the Santa Clara Pueblo Tribal Court and the

fourteen Santa Clara Tribal Council members serving for the

year 1998. His wife, Plaintiff Catherine A. Singer joined in

the suit. The suit is entitled Edward Kennedy and Catherine

A. Singer v. Dennis Silva, et al, Santa Clara Tribal Court

2a

Tribal Court Opinion and Order - 9/17/99

Case No. CV-96-436. Mr. Kennedy is an enrolled member of

the Blackfeet Indian Tribe and a resident of the Pueblo of

Santa Clara. Mrs. Singer is an enrolled member of the Pueblo

of Santa Clara and a resident of the pueblo of Santa Clara.

Case No. CV-96-436 was pending when the current suit

was filed. The litigation that is the subject of the current

dispute, Case No. CV-98-504, involves allegations of

violations of the Santa Clara Pueblo Constitution and the

Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§1301-

1303. Specifically, the plaintiffs claim that one of the

defendants, Attorney Richard Hughes, negligently, or,

intentionally, deceived, the 1998 Tribal Council members into

passing Resolution 98-29. The practical effect of Resolution

98-29 is to preclude any further action in the plaintiffs’

pending ease, CV-96-436.

Resolution 98-29 is entitled Reaffirming the Immunity of

the Pueblo and of its Judges and Court Personnel from Suit.

Resolution 98-29 “reaffirms the action taken by the resolution

adopted by the Tribal Council on December 7, 1983,

repealing Section 60.4 of the Tribal Code...” Section 60.4

waived the sovereign immunity defense for certain persons in

matters of alleged civil rights violations. Resolution 98-29

also recognizes the doctrine of judicial immunity for the Santa

Clara Judiciary and states that the doctrine, “...has been in

full force and effect ever since the creation of such courts...”

Resolution 98-29 passed with 10 Tribal Council members

voting in favor, 0 against, and two abstentions.

The plaintiffs claim that Resolution 98-29 was introduced

and passed “for the sole and exclusive purpose” of

3a

Ee

Tribal Court Opinion and Order - 9/17/99

eliminating plaintiffs’ claims in CV-96-436. The plaintiffs

allege that two Tribal Council members subsequently

attempted to withdraw their votes of approval. The plaintiffs

do not state the reason for the attempted withdrawal nor the

result of the attempted withdrawal.

The plaintiffs also characterize the passage of Resolution

98-29 as a bill of attainder or an ex post facto law. The ICRA

prohibits passage of any bill of attainder or ex post facto law.

The plaintiffs also allege that the passage of Resolution 98-29

violates their Santa Clara Pueblo Constitutional Rights as

those rights recognize U.S. Constitutional Rights and the

ICRA. The plaintiffs also allege that the passage of Resolution

98-29 is an invalid legislative act because it violates the Santa

Clara Pueblo Constitution, the United States Constitution as

recognized by the Santa Clara Constitution and the ICRA.

The plaintiffs also allege a conspiracy to violate civil

rights, deprivation of liberty, denial of due process, and a lack

of equal protection under the law.

Due to these alleged violations, the plaintiffs request

compensatory and punitive damages of $8,000,000, interest,

a judgment invalidating the passage of Resolution 98-29 as

unconstitutional, injunctions against enforcing or asserting

Resolution 98-29, and other relief, including a jury trial.

In December 1998, the presiding judge recused himself

because of his substantial interest in the case.

In January 1999, the defendants filed their Motion to

Dismiss on Grounds of Sovereign Immunity and

Memorandum in Support of the Motion.

4a

Tribal Court Opinion and Order - 9/17/99

In January 1999, in accord with the Tribal Law and Order

Code, Judge Frank Demolli was appointed judge pro-tempore.

The plaintiffs opposed Judge Demolli’s appointment,

Stating that Judge Christopher Harrington, presiding in Case

CV-96-436, would be able to handle an related claims and

defenses in a more effective and efficient manner.

In January 1999, the plaintiffs also filed a Memorandum

In Opposition to the Motion to Dismiss and a Motion to Strike

the Defense of Sovereign Immunity.

In March 1999, the defendants filed a Motion to Dismiss

all Claims Against Richard Hughes On Grounds of Legislative

Immunity, Other Failure to State Claims Upon Which Relief

May Be Granted and Qualified Immunity.

On July 1, 1999, Pueblo of Santa Clara Governor Walter

Dasheno reaffirmed Judge Pro Tempore Frank Demolli’s

appointment in Case No. CV 98-504.

With the reaffirmation, Judge Demolli engaged on an

exhaustive review of the controlling law, the numerous

allegations and the motions made by both parties.

For the reasons cited below, this Court finds that it has

both subject matter and personal jurisdiction in this matter.

THE PUEBLO OF SANTA CLARA

CONSTITUTION AND BYLAWS

While many of the Pueblos of New Mexico choose to be

governed by unwritten or traditional forms of government, the

Sa

Tribal Court Opinion and Order - 9/17/99

Pueblo of Santa Clara chose to be controlled, in secular

matters, by a Constitution and Bylaws. The Pueblo of Santa

Clara Constitution and Bylaws were approved by the

Secretary of the Interior on December 20, 1935. A federal

district court found that Pueblo of Santa Clara Constitution,

“which drew upon both traditional Pueblo and modern Anglo-

American institutions,” synthesized them into “a unique

structure neither wholly traditional nor wholly modern.”

Martinez v. Romney, 402 F Supp 5, 15 (D.N.M. 1975)

The pueblo of Santa Clara Constitution and Bylaws have

remained in effect since 1935 without substantial changes.

Therefore, this Court adopts the Martinez Court’s

interpretation of their genesis and finds that they are the

governing rules for this Court.

The Tribal Council’s preeminence in the Pueblo of Santa

Clara Constitution is in stark contrast to the separation or

powers in other Tribal Constitutions and the United States

Constitution.

For instance, the Constitution of the Cherokee Nation of

Oklahoma, Article IV, Distribution of Powers, states:

The powers of the government of the Cherokee

Nation shall be divided into three (3) separate

departments: Legislative, Executive and

Judicial; and except as provided in this

Constitution, the Legislative, Executive and

Judicial departments of government shall be

separate and distinct and neither shall exercise

the powers properly belonging to either of the

others.

6a

Tribal Court Opinion and Order - 9/17/99

Article IV of the Pueblo of Santa Clara Constitution, The

Pueblo Council and It: owers, vests legislative and judicial

power in the pueblo council.

Section 1. Legislative power - The legislative

power shall be vested in the pueblo council, and the

said power shall be exercised in accordance with, and

not in conflict with, the constitution or laws of the

United States of America.

The pueblo counsel shall have the following rights

and powers:

1. To employ legal counsel, the choice of

counsel and fixing of fees to be subject to

the approval of the Secretary of the

Interior...

2. To enact ordinances, not inconsistent with

the constitution and bylaws of the pueblo,

for the maintenance of law and order

within the pueblo...

Section 2. Judicial power- The Pueblo council

shall also adjudicate an matters coming before it over

which it has jurisdiction. In all controversies coming

before the pueblo council, the council shall have the

right to examine an witnesses and ascertain full details

of the controversy and after the matter shall have been

sufficiently commented upon by the interested parties,

the council shall retire to a private place to make a

decision.

7a

Tribal Court Opinion and Order - 9/17/99

Article IV of the Bylaws, entitled Personal Liberties, is a

guarantee of rights as a citizen of the United States.

Section 1. Private Rights of each member of the

pueblo. - Each member of the pueblo of Santa Clara

shall be assured his private rights as a citizen of the

United States, and no attempt shall be made by the

officers of the pueblo to enforce any order upon him

depriving him of said rights.

This Court looks to the Constitution and Bylaws for

guidance in this case. Therefore, this Court finds that while

the Pueblo of Santa Clara recognized the private rights of

members of the Pueblo and the Constitutional rights of

Americans, both the legislative and judicial powers were

placed in the Tribal Council.

PUEBLO OF SANTA CLARA JUDICIAL POWER

In December 1981, the Pueblo of Santa Clara enacted a

Civil and Criminal Tribal Law and Order Code (Code).

Chapter 2 of the Code vested the tribal judiciary with the

Judicial Power of the people of the Pueblo of Santa Clara.

The subject matter jurisdiction contained in the Santa Clara

Pueblo Constitution, Article IV, Section 2 was removed to the

tribal judiciary.

Chapter 60 of the Code also outlined civil rights

protections. Chapter 60, Civil Rights Protection, created a

Civil Rights Commission. To the best of the Court’s

knowledge, the Commissioners were never appointed by the

Governor. However, Section 60.3, Complaint of Civil Rights

Violation, authorized the Tribal Court to hear alleged

8a

Tribal Court Opinion and Order - 9/17/99

violations of the Indian Civil Rights Act. Chapter 60 also

allows the Tribal Court to hear any other civil rights

violations listed in the Pueblo of Santa Clara Constitution.

This Court notes with interest that Section 60.7, Appeals

from Orders of the Tribal Court, allows Tribal Court Orders

in civil rights cases to be appealed to the Tribal Council.

Therefore, the Court finds that: The 1981 Code transfers

judicial authority from the Tribal Council to the Tribal

judiciary; the 1981 Code also protects rights guaranteed by

the ICRA and rights guaranteed by the customs and traditions

of the Pueblo; this Court also finds that the language found in

Chapter 60, Civil Rights Protection, indicates the Pueblo’s

wish to protect civil rights guaranteed by the United States

Constitution and United States iaws.

However, this Court finds that the Tribal Council reserves

the right to hear the final appeal from Tribal Court Orders in

civil rights cases. The Court also finds that the reservation of

Tribal Council powers reflects the traditions and customs of

the Pueblo of Santa Clara as embodied in the Tribal

Constitution and Bylaws.

THE RELEVANCE OF

SANTA CLARA PUEBLO V. MARTINEZ

The seminal case of Santa Clara Pueblo v. Martinez, 436

U.S. 49 (1978) vividly portrays the inherent struggle between

an individual’s civil rights and the interpretations of those

civil rights by a Tribe:

9a

Tribal Court Opinion and Order - 9/17/99

The equal protection guarantee of the Indian

Civil Rights Act should not be construed in a

manner which would require or authorize this

Court to determine which traditional values

will promote cultural survival and should

therefore be preserved .... Such a

determination should be made by the people of

Santa Clara; not only because they can best

decide which values are important, but also

because they must live with the decision every

day...

Santa Clara Pueblo, 436 U.S. at 54, quoting

Martinez v. Romney, 402 F. Supp. 5 (D.N.M.

1975).

While the Santa Clara Pueblo Court spoke of federal

court intervention in an ICRA action, the analogy applies to

the plaintiffs’ requests in the action before this Court. Despite

any opinions a person may hold concerning the exercise of

civil rights, the Pueblo of Santa Clara traditions, customs and

the Constitution and Bylaws overwhelmingly favor the Tribal

Council interpretations of any law that governs an individual’s

civil rights.

FEDERAL AND TRIBAL COURT

INTERPRETATIONS OF

CIVIL RIGHT GUARANTIES

Federal courts have also held that the ICRA guarantees

should be interpreted against the background of tribal

sovereignty and within the context of tribal law and custom.

Martinez v. Romney, 402 F. Supp. 5 (D.N.M. 1975), Crowe

10a

Tribal Court Opinion and Order - 9/17/99

v. Eastern Band of Cherokee Indians, Inc., 506 F.2d 1231

(4th Cir. 1974); Means v. Wilson, 383 F. Supp. 378 (D.S.D.

1974).

Facing similar issues raised by the instant case, other

tribal courts have also used the background of tribal

sovereignty and the context of tribal law and custom to

address claims of civil rights violations.

In Kizer v. Walker River Housing Authority, WR-CV-95-

34 [23 Indian L. Rep. 6214] (Inter-Tr. Ct. App., Nev., June

10, 1996), the tribal appellate court reversed a lower court

decision that the Tribe’s sovereign immunity protected the

Tribe from a contractual lawsuit. The Inter-Tribal Court of

Appeals of Nevada ruled that the tribal immunity was waived

for the purpose of permitting the Tribal Court to determine

whether ICRA due process rights had been violated. “To hold

otherwise,” the Court stated, “would leave us with a right,

the breach or denial of which, is without a remedy.” See

Kizer, supra, at 6215.

In 1997, a member of the Fallon Paiute-Shosone Tribe

sought tribal court relief in an unspecified ICRA action. The

tribal court dismissed the action on grounds of the Tribe’s

sovereign immunity. The Inter-Tribal Court of Appeals of

Nevada overruled the tribal court. Citing Kizer, the tribal

appellate court held that the ICRA itself is a waiver of the

immunity of the Tribe for the narrow purpose of vindicating

rights guaranteed by the ICRA and ordering an appropriate

remedy. The Court also ruled that tribal forums must be

availabie to claimants under the ICRA. Works v. Fallon

Paiute-Shoshone Tribe, C-FT 96-014 [24 Indian L. Rep.

6078] (Inter-Tr. Ct. App., Nev., Feb. 25, 1997).

lla

Tribal Court Opinion and Order - 9/17/99

The Navajo Courts are universally recognized for

interpreting Navajo law against the background of tribal

sovereignty and in the comext of tribal law and custom. For

the Navajo Nation, the ICRA has been held not to waive the

sovereign immunity of Indian tribes, including the Navajo

Nation in any court. Johnson, et al. Navajo Nation, et al.,

No. A-CV- 16-85 [14 Indian L. Rep. 6037] (Nav. Sup. Ct,

Oct. 20, 1987). In Johnson the plaintiffs alleged that Navajo

police officers acted negligently and caused physical injuries

to one of the plaintiffs. The complaint alleged that the conduct

violated ICRA guarantees. After its ruling on sovereign

immunity, the Johnson Court conducted an enquiry into the

enforcement of civil right guarantees on the Navajo Nation.

The Johnson Court stated:

Santa Clara Pueblo v. Martinez, id., does

instruct us that Indian tribes should provide

forums “to vindicate rights created by the

ICRA.” 436 U.S. at 65. Indian tribes may

have to amend their laws, or enact laws, which

will conform to the rights created by the

ICRA, because the ICRA “has the substantial

and intended effect of changing the law which

[tribes] are obliged to apply.” 436 U.S. at 65.

The Navajo Courts have always been available

for the enforcement of civil rights created by

the ICRA and the Navajo Bill of Rights, 1

N.T.C. § et seq. (1986 Amendment).

Enforcement has generally been through suits

against tribal of officials for acting outside the

scope of their authorities.... Finally the Navajo

Bill of Rights contains substantially the same

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rights as those found in the ICRA. See 74 ILR

at 6040, 6041.

This Court finds that the many tribal and federal courts

that have considered claims of civil rights violations analyze

those claims against the background of tribal sovereignty and

in the context of the particular Tribe’s law and custom.

Unless overruled through a Tribal Council Resolution or

an express and unequivocal congressional waiver of the

Tribe’s sovereign immunity, the Santa Clara Tribal Court

Shall adopt the following analysis in reviewing civil rights

claims arising under ICRA, the Santa Clara Constitution, or

under federal law: Any civil rights claim shall be reviewed

using the background of tribal sovereignty and in the context

of the Pueblo of Santa Clara’ s unique tribal law and custom.

CONCLUSIONS, OF LAW

The Pueblo of Santa Clara Constitution and Bylaws reflect

the preeminence of the Tribal Council in matters regarding

allegations of civil rights violations. In no instance has the

Tribal Council abdicated its power to pass final judgement on

any allegation of any rights violation. Nor has the Tribal

Council abdicated its power to pass legislation clarifying

sovereign immunity. With this in mind, the Tribal Court must

take Resolution 98-29 at face value. Resolution 98-29

reaffirms prior Tribal Council actions and recognizes the

immunity of the Pueblo officials and of its judges and court

personnel from suit.

The plaintiffs” well-pled argument that the passage of

Resolution 98-29 represents a Bill of Attainder, must fail in

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light of the Pueblo of Santa Clara’s unique tribal law,

reflected in its Constitution and Bylaws, The plaintiffs

logically and passionately argue that:

The “separation of powers” was not instituted

by the United States with the idea it would

promote governmental efficiency. On the

contrary, it is looked to as a bulwark against

tyranny. If governmental power is

fractionalized, if a given policy can be

implemented only by a combination of

legislative enactment, judicial application, and

executive implementation, “no man or group

of men” will be able to impose its unchecked

will U.S. v. Brown, 85 S. Ct. 1707, 1712, 381

U.S. 437 (1965).

The plaintiffs fail to recognize that there has never been an

implied or explicit “separation of powers” of equal branches

of government in the Pueblo of Santa Clara. The Tribal

Council is preeminent over all branches of government. Such

a division of equal branches is certainly within the power of

the Pueblo of Santa Clara to create. However, the Court has

failed to find any evidence that the Pueblo of Santa has ever

considered such a division of equal branches. Therefore, this

Court must defer to any legislative resolution validly created

by the authorized government.

The Tribal Council is the legitimate government of the

Pueblo. As Resolution 98-29 was passed by the majority of

the Tribal Council members, any due process argument fails.

The passage of legislation “clarifying” a point of law is a

legitimate exercise of legislative power.

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No enrolled member is prohibited from participating in the

legislative process. Any enrolled member may effect

legislation by meeting the spiritual and secular requirements

to serve on the Tribal Council. This Court has not found any

prohibition against elected Tribal Council members presenting

pending legislation to the enrolled members for their opinions.

Likewise, this Court has also not found any prohibition

against any person presenting prospective legislation, through

a representative, to Tribal Council.

As Resolution 98-29 applies equally to all persons, the

plaintiffs’ equal protection claim fails.

Resolution 98-29 was legitimately passed by the

authorized government of the Pueblo of Santa Clara.

Therefore, the plaintiffs’ claims in the instant case are

dismissed for failure to state claims upon which relief may be

granted. Thus, the Court will not need to address the

sovereign immunity issue.

AVAILABLE REMEDIES FOR VIOLATIONS OF

CIVIL RIGHTS CLAIMS

In its wisdom, the Pueblo of Santa Clara guarantees three

avenues to remedy violations of civil rights claims- the Civil

Rights Commission, the Tribal Court, and the Tribal Council.

Both the Civil Rights Commission and the Tribal Court

have been discussed in this opinion. This Order is limited to

the facts of this case, by the boundaries outlined in the Pueblo

of Santa Clara Constitution and Bylaws, and Resolution 98-

29.

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However, the Court notes that the Pueblo of Santa Clara

Constitution, Article III, Conduct of Council Meetings,

Section 3, Matters of general interest to pueblo, outlines

another remedy to address grievances.

In all matters in which all of the people of the

pueblo of Santa Clara are interested, the

pueblo council shall cause the sheriff to notify

all members of the pueblo of the time and

place at which such business is to be

transacted... If any member of the pueblo

wants a special meeting for all the people in

the pueblo, he will first get permission from

the pueblo council through a representative, or

through the Governor.

Finally, the Constitution, Article III, Section 4, Special

meetings on grievances, states that:

If any member of the pueblo of Santa Clara

has any grievance against any other member of

the said pueblo which cannot await settlement

at the regular pueblo council meeting, he shall

report the same to the Governor who, if he

deems that the case requires speedy attention,

shall call a special meeting of the council...

While the Court has carried on its research for this

opinion and order, it kept in mind the words of trial jurist

Carey N. Vicenti:

Tribes must be left free to decide for

themselves what a system of civil rights

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enforcement is, free from the coercion of

federal investigations, American chauvinism,

American ethnocentrism, and American

insecurities about the strange Indian nations

which are developing within the American

body politic.

The burden to solve the dilemma placed upon

tribal societies by the introduction of civil -

rights is upon every person who is involved

with the legal life of the Tribes. Sincerity

among an the players is an absolute

precondition...

If it is irresponsible for an attorney to not have

adequately researched an issue, is it not also

irresponsible to not have researched the

traditions of the Tribe to determine the

traditional powers of the individual and the

government? Or the tradition respecting the

immunity of leaders?

-The Indian Civil Rights Act and the Judicial

Enhancement Acts: Revisiting and

Reexamining Their Impact, CLE Indian Law

Section Seminar, March 12, 1993.

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that all persons recognize Tribal Council

Resolution 98-29 as a valid, enforceable legislative act.

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IT IS FURTHER ORDERED that the defendants’ Motion

for Failure to State Claims Upon Which Relief May Be

Granted is granted.

IT IS FURTHER ORDERED that all counts of the

plaintiffs’ complaint against all defendants are dismissed for

failure to state claims upon which relief may be granted.

DATED SEPTEMBER 17, 1999.

/s/

Frank Demolli

Judge Pro-tempore

Pueblo of Santa Clara

FILED

IN MY OFFICE THIS

SEP 17 1999

/s/

CLERK, SANTA CLARA TRIBAL COURT

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

No. CIV 01-1183 WJ/LFG

[Filed March 26, 2002]

EDWARD KENNEDY et al,

Plaintiffs,

RICHARD HUGHES et al.,

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Defendants. )

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MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court pursuant to

Defendant Richard Hughes’ Motion to Dismiss Complaint

[Docket No. 25] and a Motion to Dismiss Complaint [Docket

No. 5] filed by Defendants Dasheno, E. Tafoya, Baca, C.

Suazo, I. Gutierrez, A. Suazo, Chavarria, Shije, F. Tafoya,

Warren, D. Gutierrez, and G. Gutierrez (the “Tribal

Defendants”).

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PROCEDURAL HISTORY AND FACTUAL

BACKGROUND

Plaintiffs filed a Complaint in this Court on October 12,

2001. Plaintiff Kennedy is a resident at Santa Clara Pueblo,

an enrolled member of the Blackfeet Indian Tribe, and

married to Plaintiff Singer. Plaintiff Singer is a resident of the

Santa Clara Pueblo and an enrolled member of the Santa Clara

Indian Pueblo. The “Tribal Defendants” are all enrolled

members of the Santa Clara Indian Pueblo and officials of the

Pueblo. These persons are sued in their individual capacities.

Defendant Hughes is an attorney who provided legal services

to the Tribal Defendants. Hughes is a non-Indian and does not

reside at the Santa Clara Pueblo.

Plaintiffs’ Complaint alleges federal question jurisdiction

under 28 U.S.C. § 1331 pursuant to the Indian Civil Rights

Act of 1968 (ICRA), 25 U.S.C. §§ 1302 et seq. Plaintiffs

essentially allege that the Hughes and the Tribal Defendants

violated their rights under the ICRA by drafting and adopting

a tribal resolution that retroactively reinstated tribal sovereign

immunity in tribal court while Plaintiffs had a claim against

the tribe pending in tribal court.

DISCUSSION

Defendant Hughes and the Tribal Defendants argue that

this Court lacks jurisdiction over Plaintiffs claims, or

alternatively, Plaintiffs have failed to state a claim upon which

relief can be granted because the ICRA does not create a

private cause of action on which a party may bring a civil

action such as Plaintiffs’ complaint. Defendant Hughes and

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the Tribal Defendants also urge that Plaintiffs’ claims should

be dismissed based on legislative immunity, failure of

Plaintiffs to exhaust tribal remedies, and res judicata.

Defendant Hughes additionally argues that Plaintiffs’ claims

Should be dismissed because the tribal resolution at issue in

this case did not violate any of Plaintiffs’ rights as it was not

a bill of attainder and did not deprive Plaintiffs of liberty or

property. Defendant Hughes further asserts that there was no

conspiracy between Hughes and Tribal Defendants. Finally,

Defendant Hughes urges this Court to find that Tribal

Defendants and Hughes are entitled to qualified immunity.

This Court finds that it does not have jurisdiction over

Plaintiffs’ claims, or, alternatively, that Plaintiffs fail to state

claims upon which relief can be granted because the ICRA

does not authorize a cause of action such as Plaintiffs’.' Santa

Clara Pueblo v Martinez, 436 U.S. 49 (1978). Thus, this

Court need not address and will not decide the other issues

raised by Defendants, many of which appear to be issues of

first impression in the Tenth Circuit. The Court commends

Defendants for their briefs on these other issues, and while

tempted to engage in an academic discussion of the application

of legislative immunity, res judicata, and qualified immunity

' The Court recognizes that the factual allegations in Plaintiffs’

Complaint at {{ 28 - 36 and 46 - 50 standing alone could be read

to attempt to invoke the habeas corpus provisions of Section 1303

of the ICRA. However, the Complaint read in its entirety makes

clear that these are merely background facts to explain Plaintiffs’

first cause of action in tribal court (CV96-436) that they allege was

frustrated by Defendants when a resolution was passed reinstating

tribal sovereign immunity.

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to this case, the Court will save these issues for another day

and another case.

The ICRA provides that “No Indian tribe in exercising its

powers of self-government shall ... deny to any person within

its jurisdiction the equal protection of its laws or deprive any

person of liberty or property without due process of law....”

25 U.S.C. § 1302. As the Supreme Court noted in Martinez,

the only express remedial provision found within the ICRA is

Section 1303 which extends the writ of habeas corpus in

federal court to test the legality of a person’s detention by

order of an Indian tribe. 436 U.S. at 58. The Court in

Martinez held that, in passing the ICRA, Congress did not

intend to create a federal forum for issues arising under

Section 1302 of the ICRA and that t’.¢ failure to provide a

remedy other than habeas corpus ws a deliberate one. /d. at

59-60. Thus, in accordance with Martinez, a plaintiff alleging

a violation under the ICRA does not state a claim upon which

relief can be granted unless plaintiff is in court by writ of

habeas corpus. Additionally, courts have found that federal

question jurisdiction does not lie for a claim under the ICRA

except by writ of habeas corpus. See Olguin v Lucero, 87

F.3d 401 (10th Cir. 1996).

Plaintiffs urge this Court to allow their ICRA claim to

proceed in federal court under the exception to Martinez

found in Dry Creek Lodge, Inc. v Arapahoe and Shoshone

Tribes, 623 F.2d 682 (10th Cir. 1980). The “absolute

necessity” exception found in Dry Creek Lodge, is narrowly

construed. White v Pueblo of San Juan, 728 F.2d 1307 (10th

Cir. 1984). In order to qualify for the Dry Creek exception,

a plaintiff must demonstrate that the dispute involves a non-

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District Court Memorandum Opinion and Order -

3/26/02

Indian party, that a tribal forum is not available, and that the

dispute involves an issue falling outside internal tribal affairs.

Ordinance 59 Ass’n v United States Dep’t. of the Interior

Secretary, 163 F.3d 1150, 1156 (10th Cir. 1998).

Plaintiffs contend that Plaintiff Kennedy is a non-Indian

party to this dispute. The Court recognizes that Plaintiff

Kennedy is not a member of the Santa Clara Pueblo, but is an

enrolled member of the Blackfeet Indian Tribe. Dry Creek and

its progeny have not clarified whether a non-member Indian

would qualify as a non-Indian for purposes of the Dry Creek

exception. This Court, however, need not delve into this

delicate matter because Plaintiffs have failed to show that they

would be entitled to the exception if Kennedy was found to be

a non-Indian.

Plaintiffs have failed to show that a tribal forum is not

available to address their dispute. Plaintiffs state that a tribal

forum is effectively and practically unavailable because the

tribal forum has been dilatory in addressing Plaintiffs’ various

causes of action, and because the tribal government disbanded

its appellate court system and adopted an intertribal appellate

forum during the pendency of Plaintiffs’ appeal from the tribal

court decision on their case. Complaint {4 77, 78, 97, 98,

10i. Plaintiffs are required to show that a tribal forum is

actually unavailable; allegations of futility are insufficient. See

White v San Juan Pueblo, 728 F.2d 1307, 1313 (10% Cir.

1984); Jimi Development Corp. v Ute Mountain Ute Indian

Tribe, 930 F.Supp. 493 (D. Colo. 1996). Because Plaintiffs

admit in their pleadings that their various cases are still

pending before the tribal fora, they have failed to show that

no tribal forum is available.

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3/26/02

Plaintiffs also fail to show that their dispute involves

issues falling outside internal tribal affairs. Plaintiffs’ dispute

involves the tribal council’s decision regarding tribal

sovereignty in a civil rights suit in tribal court, and the tribal

council’s decision regarding the tribal court structure.

Complaint {{ 85, 98, 108 - 115, 117 - 121,123, 124, 125,

126. These issues are plainly internal tribal affairs and are at

the very heart of tribal self-governance and self-

determination.

Thus, Plaintiffs have failed to show that the Dry Creek

exception applies in this case. Accordingly, Defendants are

entitled to a dismissal of all claims with prejudice because

Plaintiffs have failed to state a claim upon which relief can be

granted or, alternatively, this Court lacks subject matter

jurisdiction to hear Plaintiffs claims.

CONCLUSION

IT IS THEREFORE ORDERED that Defendant Richard

Hughes’ Motion to Dismiss Complaint [Docket No. 25] and

the Tribal Defendants’ Motion to Dismiss Complaint [Docket

No. 5] are GRANTED and Plaintiff's Complaint is

DISMISSED with prejudice in its entirety.

/s/

UNITED STATES DISTRICT JUDGE

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APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 02-2112

(D.C. No. CIV-01-1183-WJ/LFG)

(D. New Mexico)

[Filed March 20, 2003]

EDWARD KENNEDY; CATHERINE A.

SINGER,

Plaintiffs-Appellants,

V.

RICHARD HUGHES; WALTER

DASHENO; EDWIN TAFOYA; DALE

BACA; CHARLES SUAZO; JOSEPH

VAL GUTIERREZ; C. ANTHONY

SUAZO; JOSE N. CHAVARRIA; JOHN

SHIJE; FRANCIS TAFOYA; ALVIN

WARREN; DENNY GUTIERREZ;

GEORGE GUTIERREZ,

Defendants-Appellees.

Before LUCERO, BALDOCK, and McCONNELL, Circuit

Judges.

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ORDER AND JUDGMENT’

Plaintiffs, members of two different Indian tribes, filed

suit in federal district court against several officials of the

Santa Clara Pueblo Tribe, claiming violations of their civil

and constitutional rights as protected by the Indian Civil

Rights Act (“ICRA”), 25 U.S.C. § 1301 et seg. Concluding

that ICRA does not authorize plaintiffs’ suit, the district court

dismissed the action. Kennedy v. Hughes, No. CIV 01-1183

WJ/LFG, slip op. at 5 (D.N.M. Mar. 27, 2002). In order to

resolve the issue presented, we reassess the extent to which

Congress created a private cause of action under ICRA. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Edward Kennedy, a member of the Blackfeet Indian Tribe,

and his wife Catherine A. Singer, a member of the Santa

Clara Pueblo (collectively, “plaintiffs”), both reside on the

Santa Clara Pueblo reservation. In 1996, plaintiffs filed a suit

in the Santa Clara Tribal Court against Chief Judge Silva of

that court and fourteen Santa Clara Tribal Council

(“Council”) members, claiming that their civil rights were

violated when Chief Judge Silva incarcerated Kennedy and

seized property belonging to Singer.' Richard Hughes was

* This order and judgment is not binding precedent, except under

the doctrines of law of the case, res judicata, and collateral

estoppel. This court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under

the terms and cenditions of 10th Cir. R. 36.3.

' Judge Silva incarcerated Kennedy and seized Singer’s property

when Kennedy failed to pay two default judgments entered against

him in lawsuits brought by plaintiffs who are not parties to the

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Tenth Circuit Order and Judgment - 3/20/03

retained by the Council to defend this suit. On September 11,

1997, Santa Clara Tribal Court Judge H. Paul Tsosie granted

defendants’ motion to dismiss the complaint. Plaintiffs then

appealed to the Santa Clara Pueblo Tribal Court of Appeals,

which reversed the tribal court’s dismissal in 1998 and

remanded for further proceedings.’

Central to the tribal appeal of plaintiffs’ Tribal Court suit

against Silva and the Tribal Council members was whether a

waiver of the tribe’s sovereign immunity for purposes of civil

rights actions continued to be in effect. In 1981, the Council

had enacted a Law and Order Code (“Code”) that contained

a waiver of immunity for civil rights actions. In December

1983, the Council repealed this waiver by resolution,

reaffirming its immunity from suit and that of itsmembers,

officers, employees, and staff. In March 1985, however, the

Council reenacted the 1981 Code, but, according to the

Council, the reenactment was “subject to all intervening

changes, including the repeal of [the waiver provision].”

(Appellant’s App. at 75.) Nonetheless, Hughes advised the

Council following the remand of plaintiffs’ suit that the status

of the waiver was uncertain, and suggested a proposed

resolution reaffirming the tribe’s sovereign immunity in civil

rights cases. This resolution was passed in November 1998 as

Resolution No. 98-29.

instant case.

2 According to the parties, this action was still pending on remand

to the Santa Clara Tribal Court as of August 2002 (the date

defendants filed responsive briefing before this court).

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Tenth Circuit Order and Judgment - 3/20/03

Following the enactment of this resolution, the plaintiffs

filed a new action in the Santa Clara Tribal Court against

Hughes and all the members of the Council who had voted to

adopt Resolution No. 98-29. In this action, the plaintiffs

claimed that Resolution No. 98-29 violated their rights under

the Santa Clara Pueblo Constitution and their rights under the

U.S. Constitution as protected by ICRA. Judge Frank

DeMolli, appointed as Tribal Judge pro tempore, granted

defendants’ motion to dismiss. Plaintiffs did not appeal this

order.?

In October 2001, plaintiffs filed the present suit in federal

district court against several tribal officials (collectively

“Tribal Defendants”) and Hughes. In this action, plaintiffs

claimed that the Tribal Defendants and Hughes had violated

their constitutional rights as protected by ICRA, 25 U.S.C. §

1302 (“No Indian tribe in exercising powers of self-

government shall . . . 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.”).

Specifically, plaintiffs made the same argument they had

raised in their second suit in tribal court, claiming that the

enactment of Regulation No. 98-29 violated the Santa Clara

Pueblo Constitution, the United States Constitution, and §

3 After Judge DeMolli dismissed plaintiffs’ second case in tribal

court, the Council concluded that the cost of maintaining a separate

tribal court of appeals was not justified, and transferred appellate

jurisdiction over decisions of the Tribal Court to the Southwest

Intertribal Court of Appeals (“SWITCA”). While the attorney for

Kennedy and Singer was aware of this transfer of appellate

jurisdiction, Kennedy and Singer apparently did not pursue an

appeal before SWITCA.

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Tenth Circuit Order and Judgment - 3/20/03-

1302 of ICRA, insofar as it denied them due process and

equal protection of the law. Plaintiffs sought compensatory

and punitive damages as well as declaratory relief.

Hughes and the Tribal Defendants filed separate motions

to dismiss, arguing, among other grounds, that § 1302 of

ICRA does not create a cause of action for this claim in

federal court. The district court dismissed the action pursuant

to Fed. R. Civ. P. 12(b)(6) for failure to state a claim or, in

the alternative, for lack of subject matter jurisdiction.

Kennedy v. Hughes, slip op. at 5. Plaintiffs appeal this

decision.

Il

A dismissal for lack of subject matter jurisdiction is

reviewed de novo. U.S. West, Inc. v. Tristani, 182 F.3d

1202, 1206 (10th Cir. 1999). In reviewing a dismissal for

failure to state a claim under Rule 12(b)(6), we accept all

well-pleaded factual allegations in the complaint as true and

view them in the light most favorable to the nonmoving party.

Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d

1226, 1236 (10th Cir. 1999). The legal sufficiency of a

complaint is a question of law; therefore, a Rule 12(b)(6)

dismissal is reviewed de novo. Jd.

Because plaintiffs’ federal suit in the instant case is based

on § 1302 of ICRA, we consider as a threshold matter

whether a private cause of action may be brought under that

section. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 69,

56 L. Ed. 2d 106, 98 S. Ct. 1670 (1978), the Supreme Court

held that the only provision of ICRA that authorizes a private

cause of action is § 1303, the habeas corpus provision. The

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Tenth Circuit Order and Judgment - 3/20/03

Court held that § 1302, the section under which plaintiffs

bring the instant action, “does not impliedly authorize actions

for declaratory or injunctive relief against either [a] tribe or

its officers.” Id. at 72. We recognized a limited exception to

this rule in the case of Dry Creek Lodge, Inc. v. Arapahoe

and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), and

plaintiffs claim that their action falls under the Dry Creek

exception to Santa Clara.

In Dry Creek, the plaintiffs were non-Indians involved in

a land dispute with two Indian tribes. Jd. at 683-84. Although

we acknowledged Santa Clara as governing authority, we

nonetheless noted that the Dry Creek plaintiffs had “no

remedy within the tribal machinery nor with the tribal

- Officials in whose eiection they cannot participate.” Jd. at 685.

We accordingly distinguished Santa Clara on the grounds that

Santa Clara involved “entirely an internal matter concerning

tribal members” and that “the members of the Tribe who

were seeking relief also had access to their own elected

officials and their tribal machinery to settle the problem.” Jd.

We have held that our holding in Dry Creek must be

interpreted narrowly to avoid conflict with the Supreme

Court’s decision in Santa Clara. White v. Pueblo of San Juan,

728 F.2d 1307, 1312 (10th Cir. 1984). In order for the Dry

Creek exception to apply, “[a] plaintiff must demonstrate: the

dispute involves a non-Indian party; a tribal forum is not

available; and the dispute involves an issue falling outside

internal tribal affairs.” Ordinance 59 Ass’n v. U.S. DOI

Sec’y, 163 F.3d 1150, 1156(10th Cir. 1998).‘

* Subsequent decisions have limited the Dry Creek exception to

cases involving “particularly egregious allegations of personal

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In the instant case, the district court concluded that

plaintiffs had failed to satisfy the second two requirements for

the Dry Creek exception to apply.* Kennedy v. Hughes, slip

op. at 4-5. As to the existence of a tribal ‘orum, the district

court concluded that a tribal forum is available in this case, as

plaintiffs have filed two actions before the Santa Clara Tribal

Court, the second of which involved the same claim as in the

instant federal case.

In this Court,- plaintiffs assert that they “have

demonstrated that no tribal forum is viable to hear and decide

their claims.” (Appellants’ Br. at 9.) According to plaintiffs,

- “fa] pro tem judge appointed by the Tribal Defendants

determined that Appellants’ second complaint should be

dismissed because the Santa Clara Tribal Defendants’ actions

were not subject to judicial review.” (/d. at 6.)

This misrepresents the tribal court’s decision. Judge Frank

Demolli, appointed to hear plaintiffs’ case in tribal court,

expressly ruled that the court had “both subject matter and

personal jurisdiction” over the case (Appellants’ App. at 101),

and rejected plaintiffs’ claims on the merits under ICRA as

well as the Constitution and Bylaws of the Santa Clara

Pueblo. In an extensive written opinion relying on both

restraint and deprivation of personal rights.” Ramey Constr. Co. v.

Apache Tribe of Mescalero Reservation, 673 F.2d 315, 319 n.4

(10th Cir. 1982); Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324,

1346 (10th Cir. 1982).

5 The district court did not reach the first requirement in light of

its determination that the other two requirements were not met.

Kennedy v. Hughes, slip op. at 4.

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Tenth Circuit Order and Judgment - 3/20/03

federal and tribal court precedent, Judge Demolli held that

Santa Clara Pueblo tribal courts are available as forums for

adjudication of civil rights claims under ICRA and other law,

and that “any civil rights claim shall be reviewed using the

background of tribal sovereignty and in the context of the

Pueblo of Santa Clara’s unique tribal law and custom.” (/d.

at 106.) Judge Demolli then proceeded to explain why

plaintiffs’ claims of due process, equal protection, and bill of

attainder violations were deficient on the merits to state a

claim on which relief may be granted. Plaintiffs did not

appeal.°

The Dry Creek exceptien thus piainly does not apply. In

Dry Creek, there was “no forum where the dispute can be

resolved and the personal and property rights asserted by

plaintiffs be considered.” 623 F.2d at 684. Here, by contrast,

the Santa Clara Pueblo has made its tribal courts available for

vindication of such rights. This is precisely as contemplated

by the Supreme Court: “Tribal forums are available to

vindicate rights created by the ICRA . . . . Tribal courts have

repeatedly been recognized as appropriate forums for the

exclusive adjudication of disputes affecting important personal

and property interests of both Indians and non-Indians.” Santa

Clara Pueblo v. Martinez, 436 U.S. at 65. Plaintiffs have

taken advantage of that forum, not once but twice. They did

not prevail on the merits, but that does not entitle them to take

their claim to federal court.

In light of the availability of a tribal forum, we need not

consider whether plaintiffs’ case satisfies any of the other

® See supra note 3.

32a

Tenth Circuit Order and Judgment - 3/20/03

elements of the Dry Creek exception. Because Santa Clara

holds that there is no private cause of action under ICRA

outside the habeas context and plaintiffs fall under no

exception to this rule, the district court correctly dismissed

this suit for lack of subject matter jurisdiction or failure to

state a claim upon which relief may be granted.

Il

The judgment of the district court is AFFIRMED.

ENTERED FOR THE COURT

/s/

Carlos F. Lucero

Circuit Judge

33a

APPENDIX D

SANTA CLARA INDIAN PUEBLO

Post Office Box 580

Espanola, New Mexico 87532

(505) 753-7326

(505) 753-7330

PUEBLO OF SANTA CLARA TRIBAL COUNCIL

RESOLUTION NO. 98-29

REAFFIRMING THE IMMUNITY OF THE PUEBLO

AND OF ITS JUDGES AND COURT

WHEREAS,

WHEREAS,

WHEREAS,

PERSONNEL FROM SUIT

the Pueblo of Santa Clara is a federally

recognized Indian Tribe having inherent

powers of sovereignty and self-government,

which powers are exercised by and through its

Tribal Council pursuant to the Pueblo’s

Constitution; and

by resolution dated December 9, 1981, the

Tribal Council originally enacted the Santa

Clara Pueblo Law and Order Code; and

as originally enacted, that Code contained

Section 60.4, entitled “Waiver of Immunity,”

by which the Tribal Council purported to

waive the immunity of the Pueblo’s “members,

officers, employees and staff from suit in

34a

Santa Clara Indian Pueblo Resolution No. 98-29

WHEREAS,

WHEREAS,

WHEREAS,

WHEREAS,

matters relating to alleged violation of civil

rights, but for no other purpose”; and

by resolution adopted by the Tribal Council on

December 13, 1983, the Tribal Council

repealed Section 60.4 of the Code, and

reaffirmed its immunity from suit and that of

its members, officers, employees and staff;

and

by Resolution 3-07-85, enacted on March 25,

1985, the Pueblo reenacted the Law and Order

Code as originally enacted in 1981, but subject

to all intervening changes, including the repeal

of Section 60.4, and the Code was thereafter

approved by the Bureau of Indian Affairs; and

a question has arisen whether the re-enactment

of the Code in 1985 revived Section 60.4 and

the waiver of tribal immunity from suit

contained therein; and

the Tribal Council has determined, and by this

resolution expressly declares, that at no time

since its repeal on December 7, 1983, has the

previous Section 60.4 of the Santa Clara Code

been in effect, and that ever since that date, the

Pueblo, its officers and employees have

enjoyed the full extent of immunity from suit

accorded them under federal law and tribal

law; and

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Santa Clara Indian Pueblo Resolution No. 98-29

WHEREAS, the Tribal Council further wishes to reaffirm

the doctrine of judicial immunity, protecting

the Pueblo’s judges and other court officials

and employees from suit for actions taken by

them in their official capacities, as that

doctrine is generally recognized in American

law, which doctrine has applied to the courts

of the Pueblo of Santa Clara since their

establishment;

NOW, THEREFORE, BE IT RESOLVED by the Tribal

Council of the Pueblo of Santa Clara, as follows:

1. The Tribal Council hereby reaffirms the action taken

by the resolution adopted by the tribal Council on December

7, 1983, repealing Section 60.4 of the Tribal Code, and

further affirms that that repealer has been in continuous effect

ever since the date of its enactment, and that at no time since

that date has Section 60.4 or any other waiver of the tribal

sovereign immunity of the Pueblo of Santa Clara been in

existence or in effect.

2. The Tribal Council further expressly recognizes that

the doctrine of judicial immunity, applying to the judges of

the Tribal Court and the Court of Appeals of the Pueblo and

to other judicial officers and employees, as generally

recognized in American law, has been in full force and effect

ever since the creation of such courts, was never intended to

be within the scope of the former Section 60.4 of the Tribal

Code, and has never been waived, limited or abrogated by the

Tribal Council in any respect.

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Santa Clara Indian Pueblo Resolution No. 98-29

CEL: TIFICATION

I, the undersigned, as Governor of the Pueblo of Santa

Clara, hereby certify that the Santa Clara Tribal Council, at

a duly called meeting that was convened with proper notice

and was held on the 10" day of November, 1998, at the Santa

Clara Pueblo, New Mexico, a quorum being present,

approved the foregoing Resolution with 10 members voting

in favor, 0 opposed, .0 abstaining and 2 being absent.

/s/

WALTER DASHENO, Governor

Attest:

/s/

Tribal Secretary