Apodaca v. Silvas

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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