United States Court of Appeals,
Fifth Circuit.
No. 93-8804
Summary Calendar.
Raymond Duran APODACA, et al., Plaintiffs-Appellants,
v.
Manny SILVAS, et al., Defendants-Appellees.
April 28, 1994.
Appeal from the United States District Court for the Western
District of Texas.
Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:
I.
The appellants were members of the Ysleta del Sur Pueblo, a
federally recognized Indian tribe. They sued members of the tribal
counsel and the tribal census officer because they have been
removed from the tribal membership roster. The appellants claimed
that their removal was an unlawful action and seek declaratory and
injunctive relief.
The appellants sued under 25 U.S.C. § 1300g-7, a provision of
the Ysleta Del Sur Pueblo and Alabama and Coushatta Indian Tribes
of Texas Restoration Act of 1987. That provision, entitled Tribal
Membership, states:
(a) In general
The membership of the tribe shall consist of—
(1) the individuals listed on the Tribal Membership Roll
approved by the tribe's Resolution No. TC-5-84 approved
December 18, 1984, and approved by the Texas Indian
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Commission's Resolution No. TIC-85-005 adopted on January 16,
1985; and
(2) a descendant of an individual listed on that Roll if
the descendant—
(i) has 1/8 degree or more of Tigua-Ysleta del Sur
Pueblo Indian blood, and
(ii) is enrolled by the tribe.
(b) Removal from the tribal roll
Notwithstanding subsection (a) of this section—
(1) the tribe may remove an individual from tribal
membership if it determines that the individual's enrollment
was improper; and
(2) the Secretary, in consultation with the tribe, may
review the Tribal Membership Roll.
25 U.S.C. § 1300g-7. The appellants point to subsection (b), which
they claim prohibits the tribe from excluding members absent a
finding that the original enrollment was "improper." They contend
that the tribe did not make any finding of impropriety.
The appellants also claim that the appellees violated Title II
of the Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-1303
(1986) (ICRA). They recognize that the U.S. Supreme Court in Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d
106 (1978), held that Congress did not intend the ICRA to form the
basis for a federal civil cause of action. The appellants seek to
bring their ICRA claim under federal supplemental jurisdiction. 28
U.S.C. § 1367(a).
The district court found that the Restoration Act did not
authorize a civil cause of action against either the tribe or the
tribal officers. It also referred to considerations of Indian
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sovereignty and cited Santa Clara Pueblo. We find that the
considerations of Indian sovereignty mentioned in Santa Clara
Pueblo control this case. The Pueblo have the right to control
their membership roster, and any federal litigation on that subject
would disrupt the conduct of intratribal affairs, an area that the
federal government has left to the tribe itself. We affirm the
order of dismissal.
II.
Santa Clara Pueblo addressed concerns about the composition of
a tribe's membership roster, and states that providing a federal
forum for the resolution of such disputes would illegitimately
interfere with tribal autonomy and self-government. 436 U.S. at
59-60, 98 S.Ct. at 1677. It set forth the considerations of tribal
sovereignty that form the backdrop against which § 1300g-7 must be
read. The appellants argue that Santa Clara Pueblo sovereignty
considerations notwithstanding, the Restoration Act places specific
limits on the removal of tribal membership, making removal of
tribal membership a proper subject for federal litigation.
The Restoration Act states that the tribe may remove an
individual from tribal membership if it determines that the
individual's enrollment was improper. 25 U.S.C. § 1300g-7(b)(1).
The appellants see this provision as creating a federal cause of
action against the tribe because such a limitation on removal
procedures would be hollow without a private ability to bring suit.
We disagree with this contention, and concur with the district
court that, if anything, § 1300g-7(b)(1) protects either the
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federal government by restricting the number of people who can
claim entitlement of federal benefits as tribal members or the
tribe itself by reaffirming its sovereign ability to determine its
membership. The provision does not protect tribal members and
cannot create a private right of action on their behalf.
As did the Court in Santa Clara Pueblo, we must turn from
background considerations to those factors relevant for determining
whether a cause of action is implicit in a statute not expressly
providing one. An examination of the factors outlined in Cort v.
Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for
determining whether Congress intended to establish a federal cause
of action suggests that the appellant cannot bring a federal case.
These factors further indicate that the Santa Clara Pueblo
reasoning is compelling in this tribal membership dispute.
In terms of the first Cort factor, an investigation into
whether the plaintiffs belong to the class protected by the statute
does not weigh in favor of the appellants because, as mentioned
above, the federal government and the tribe benefit most from §
1300g-7. Second, there is no evidence that Congress created a
federal civil remedy, especially because Congress probably would
have used explicit language in doing so given the presence of Santa
Clara Pueblo on the books. Third, any such private remedy would be
inconsistent with a statute seeking to protect Indian sovereignty.
And fourth, the cause of action is one that has traditionally been
relegated to tribal law because, as mentioned in Santa Clara
Pueblo, the right to determine tribal membership is crucial to the
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existence of the tribe as an independent political community.
AFFIRMED.
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