Ordinance 59 Ass'n v. U.S. Dept. of Interior Secretary, 97-8079

• Decision Date: 01 December 1998
• Docket Number: No. 97-8079,97-8079
• Citation: 163 F.3d 1150
• Parties: 1999 CJ C.A.R. 270 ORDINANCE 59 ASSOCIATION, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR SECRETARY, in his official capacity, a.k.a. Bruce Babbitt; Bureau of Indian Affairs; Eastern Shoshone Tribe Business Council, John Washakie; Vernon Hill; Bud McAdams; Mike Lajeunesse; Ivan Posey, and John Wadda, individually, and as Eastern Shoshone Tribe Business Council Members, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1150

163 F.3d 1150

1999 CJ C.A.R. 270

ORDINANCE 59 ASSOCIATION, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF THE INTERIOR SECRETARY, in his official capacity, a.k.a. Bruce Babbitt; Bureau of Indian Affairs; Eastern Shoshone Tribe Business Council, John Washakie; Vernon Hill; Bud McAdams; Mike Lajeunesse Ivan Posey, and John Wadda, individually, and as Eastern Shoshone Tribe Business Council Members, Defendants-Appellees.

No. 97-8079.

United States Court of Appeals Tenth Circuit.

Dec. 1, 1998.

Timothy C. Kingston, Graves, Miller & Kingston, Cheyenne, Wyoming, for Plaintiff-Appellant.

Marta Hoilman (Lois J. Schiffer, Assistant Attorney General; David D. Freudenthal, United States Attorney, District of Wyoming; Nicholas Vassallo, Assistant United States Attorney, District of Wyoming; and M. Alice Thurston, Attorney, Department of Justice, Washington, D.C., with her on the brief), Attorney, Department of Justice, Environment and Natural Resources Division, Washington, D.C., for Defendants-Appellees.

John C. Schumacher (Michael Chiropolos with him on the brief), Law Office of John Schumacher, Fort Washakie, WY, for Defendant-Appellee Eastern Shoshone Tribe.

Before PORFILIO, McWILLIAMS and ANDERSON, Circuit Judges.

JOHN C. PORFILIO, Circuit Judge.

The Ordinance 59 Association is composed of 43 individuals who applied for membership in the Eastern Shoshone Tribe (Tribe). The Association sought declaratory and injunctive relief against the Eastern Shoshone Tribe Business Council and the members of the Business Council, in their individual and official capacities, (collectively, tribal defendants); and the Secretary of the Department of the Interior and the Bureau of Indian Affairs, (collectively, federal defendants) for failing to enroll members of the Association in the Tribe. The district court dismissed the claims for lack of subject matter jurisdiction. Further, plaintiffs failed to state a claim upon which relief may be granted against the federal defendants. We affirm.

Our jurisdiction arises under 28 U.S.C. § 1291. We review de novo the trial court's decision to dismiss under either Fed.R.Civ.P. 12(b)(1) or 12(b)(6), Pelt v. Utah, 104 F.3d 1534, 1540 (10th Cir.1996), and its determinations on sovereign immunity. Fletcher v. United States, 116 F.3d 1315, 1323-24 (10th Cir.1997). Our independent determination of the issues uses the same standard employed by the district court. Olguin v. Lucero, 87 F.3d 401, 403 (10th Cir.1996). Accepting the complaint's allegations as true, Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.1995), we consider whether the complaint, standing alone, is legally sufficient to state a claim upon which relief may be granted. Swoboda v. Dubach, 992 F.2d 286, 288 (10th Cir.1993).

Background

The Shoshone Tribe of the Wind River Reservation is a sovereign government recognized by the United States with authority over its members and its territory. 62 Fed.Reg. 55270, 55237 (1997). The General Council, comprising all adult tribal members, is the Tribe's supreme legislative body and exercises authority over all aspects of tribal governance. Shoshone Indian Tribe Resolution No. 6298 (1988). The General Council has delegated to a six-member Business Council authority to make legislative decisions on a day-to-day basis. Certain matters, including enrollment, remain exclusively under the jurisdiction of the General Council. The Shoshone and Arapahoe Tribal Court (Tribal Court) is a court of limited jurisdiction with authority over matters designated by tribal law and approved jointly by the Shoshone and Arapahoe Tribes of the Wind River Reservation.

In 1988, the General Council passed Enrollment Ordinance No. 59 providing criteria and procedures for establishing tribal membership. To enroll in the Tribe, an individual had to submit an application to the Shoshone Enrollment Committee. The Enrollment Committee would then review the applications for sufficiency and forward them with recommended dispositions to the Business Council. Ordinance 59 empowered the Business Council to make preliminary acceptances or rejections or table any application. Preliminary dispositions were posted for thirty-days; during that time enrolled tribal members could submit a written protest on any preliminary action. Applicants had the right to appeal to the General Council if the Business Council took any adverse action on their application. Jurisdiction over these appeals was vested exclusively in the General Council, and the General Council's decision on appeal was final.

By late 1988, the Business Council preliminarily approved 81 applications under Ordinance 59. Approximately 382 additional applications were in various stages of consideration. In December 1988, the Business Council voted to table action on all pending applications. Two months later, the General Council repealed Ordinance 59. The Business Council has not since submitted any of the 463 applicants under Ordinance 59 (Ordinance 59 applicants) ¹ to the Bureau of Indian Affairs (BIA) as enrolled members of the Tribe.

Enrolled tribal members filed an action in Tribal Court seeking to compel the Business Council to enroll the Ordinance 59 applicants. The Tribal Court granted summary judgment to the plaintiffs and ordered the Business Council to enroll the applicants. The Tribal Court of Appeals affirmed and then denied the Business Council's petition for reconsideration. The Business Council neither processed the outstanding applications nor enrolled any of the Ordinance 59 applicants as tribal members. The Tribal Court then found the Business Council in contempt for failing to abide by its order, and the Tribal Court of Appeals affirmed. On March 10, 1994, the Tribal Court issued an Order on Remand that the Ordinance 59 applicants "are enrolled members of the [Tribe]." The Business Council has not submitted any of the Ordinance 59 applicants to the BIA as enrolled members of the Tribe.

While the Tribal Court litigation was proceeding, the Tribal Court plaintiffs brought an action in federal court to order the federal defendants to enroll the Ordinance 59 applicants in the Tribe. The federal defendants argued the dispute was not ripe for adjudication because the Tribe had never officially asked the BIA to act on the applications. However, after the Tribal Court ordered the Ordinance 59 applicants were enrolled members of the Tribe, the parties stipulated to dismiss the federal suit without prejudice.

Three years later, counsel for 43 of the Ordinance 59 applicants ² wrote to the Superintendent of the BIA on the Wind River Reservation and requested information on obtaining BIA recognition of enrolled tribal member status. The Superintendent responded the BIA had no statutory, regulatory, or Tribal authority to intervene on behalf of the individuals seeking enrollment. Nevertheless, the 43 individuals submitted applications for enrollment to the BIA. The BIA Area Director replied, "the Eastern Shoshone Tribe has complete authority over the enrollment procedures and the tribe can enroll anyone meeting their criteria," but agreed to forward the applications to the Superintendent. The Superintendent denied all authority to intervene, stating, "I will again reiterate, we are not the forum to address this issue. I would suggest you contact the Tribal court or the Tribal Council."

The Association then brought this action for declaratory and injunctive relief based on violations of the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303. It sought a declaration the members of the Association are enrolled members of the Tribe and are entitled to all the rights, privileges, and benefits thereof; a mandatory injunction requiring the BIA to proceed with the administrative steps required to enroll the plaintiffs as members of the Tribe without further action by the Business Council; and a mandatory injunction ordering the Business Council to proceed with the administrative procedures necessary to enroll the members of the Association as full members of the Tribe and to submit their names as enrolled members to the BIA. ³ In addition, the Association alleged other statutory violations. The district court dismissed the action because the Tribe's sovereign immunity precluded the exercise of jurisdiction over the tribal defendants, and there was no claim for which relief may be granted against the federal defendants. The Association appeals, and we affirm.

The Tribal Defendants

The Supreme Court has held Indian tribes retain sovereign immunity from suit absent either an explicit waiver of immunity or express authorization of the suit by Congress. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). The Association's First Amended Complaint asserted jurisdiction over the Business Council and its individual members under the ICRA, 25 U.S.C §§ 1301-1303. In Santa Clara, however, the Court explained no jurisdictional basis for declaratory or injunctive relief exists within the ICRA. Id. at 56-59, 98 S.Ct. at 1676-77.

The Association contends jurisdiction exists in this case not only because it is factually and legally distinguishable from Santa Clara, but also because it falls within the "Dry Creek exception" to Santa Clara. In Dry Creek Lodge, Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir.1980), we did announce an exception to Santa Clara and allowed a suit to proceed against a tribe when the dispute involved a non-Indian the matter in dispute was not intra tribal, and no tribal forum for the dispute existed. Id. at 685. However, the Association's arguments fail because it has not established a Dry Creek exception to Santa Clara.

Santa Clara involved a tribal enrollment ordinance denying membership to children of female members who married outside the tribe, but extending membership to children of male members who married outside the tribe. A female tribal member brought suit in federal...