Martinez v. Santa Clara Pueblo

Decision Date16 August 1976
Docket NumberNo. 75-1615,75-1615
Citation540 F.2d 1039
PartiesJulia MARTINEZ, on behalf of herself and all others similarly situated, and Audrey Martinez, on behalf of herself and all others similarly situated, Plaintiffs-Appellants, v. SANTA CLARA PUEBLO, and Lucario Padilla, Individually and as Governor of the Santa Clara Pueblo, Defendants-Appellees. Association on American Indian Affairs, Inc., et al., Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Richard B. Collins, Window Rock, Ariz. (Alan R. Taradash and Tim Vollmann, Window Rock, Ariz., on the brief), for plaintiffs-appellants.

Marc Prelo, Jr., Albuquerque, N. M. (Richard J. Grodner, Albuquerque, N. M., on the brief), for defendants-appellees.

Arthur Lazarus, Jr., Washington, D. C., for Amici Curiae, Association on American Indian Affairs, Inc., and The Seneca Nation of Indians of New York.

Marvin J. Sonosky, Washington, D. C., for Amicus Curiae, Shoshone Indian Tribe of the Wind River Reservation, Wyoming; W. Richard West, Jr., Washington, D. C., of counsel.

Philip R. Ashby, Albuquerque, N. M., for Amicus Curiae, Pueblo of Laguna; Richard Schifter, Washington, D. C., of counsel.

Before BARRETT and DOYLE, Circuit Judges and STANLEY, * District Judge.

DOYLE, Circuit Judge.

This case draws into question the validity of a membership ordinance of the Santa Clara Pueblo in New Mexico. The challenge is by appellants, on behalf of themselves and others similarly situated. This appellant class is composed of female members of the Pueblo, who are married to non-members, together with their children. Appellees, on the other hand, are the Pueblo and Lucario Padilla, individually and as governor of the Pueblo. The ordinance grants membership in the Pueblo to "(a)ll children born of marriages between male members of the Santa Clara Pueblo and non-members. . . ." It precludes membership for "(c)hildren born of marriages between female members of the Santa Clara Pueblo and non-members. . . ." Appellants have alleged that the ordinance contravenes the equal protection and due process provisions of the Indian Civil Rights Act of 1968, 25 U.S.C. Section 1302(8). 1 In a trial to the court the decision was in favor of defendants. Martinez v. Santa Clara Pueblo, 405 F.Supp. 5 (D.N.M.1975).

The subject membership ordinance was enacted on December 15, 1939, in response to a marked increase in marriages between Pueblo members and non-members. Prior to 1930 these had been rare. Prior to the enactment, membership in the Pueblo for children of mixed marriages had been determined on an individual basis. In addition, witnesses for the Pueblo testified that there had been several instances, prior to 1939, in which the offspring of female line mixed marriages had been granted membership. The increase in mixed marriages produced concern about the enlarged demands for allocation of land and other tribal resources. The Pueblo's elders were apprehensive that the population increase resulting from intermarriage would strain the Pueblo's finite resources. It was, then, in response to the economic consequences of mixed marriages that the Pueblo Council determined that the offspring of female line mixed marriages would be denied membership while the offspring of male line mixed marriages would be admitted to membership. 2

Appellant Julia Martinez, whose parents were Santa Clarans, is a member of the Pueblo. Her husband is a full-blooded Navajo and is not a member of the Pueblo. Their eight living children, including appellant Audrey Martinez, are as a result of the ordinance barred from membership in the Pueblo. The Martinezes have lived at the Pueblo continuously since their marriage in 1941. All of the Martinez children were reared at the Pueblo; all speak Tewa, the traditional and official language of the Pueblo; all are allowed to practice the traditional religion. In effect, the Martinez children are, culturally, members of the Pueblo.

Since 1946, Ms. Martinez has attempted to enroll her children in the Pueblo through all of the procedures available under the Pueblo government. When her resort to Pueblo remedies proved unavailing, she brought this action.

Appellants have alleged that the ordinance deprives the non-member children of various rights, including residence at the Pueblo as a matter of right; certain political rights, such as voting, holding secular office, bringing matters before the Pueblo Council; sharing in the material benefits of Pueblo membership, such as using the land, hunting and fishing. Appellants also contended that the ordinance prevents Ms. Martinez from passing her possessory interest in land 3 on to her children.

The trial court ruled for the Tribe, holding that the ordinance did not violate the Indian Civil Rights Act. Judge Mechem recognized the Pueblo's interest in membership policies generally and in the 1939 ordinance specifically and noted that if the Pueblo's ability to define who is a Santa Claran is limited or restricted, the Pueblo's culture would be changed. He recognized also the legitimacy of the Pueblo's interest in its economic survival and that economic survival and cultural autonomy are interrelated, i. e., economics affects the Pueblo's ability to maintain its cultural autonomy and identity. While Judge Mechem found that the ordinance had no bearing on Pueblo religion, he did find that the male-female distinction was "rooted in certain traditional values," 402 F.Supp. at 16 the Pueblo's patrilineal and patrilocal traditions. In assessing the scope of the Indian Civil Rights Act, Judge Mechem found that the scope of the Act's equal protection provision was not coterminous with the constitutional guarantee of equal protection. ". . . (T)he Act and its equal protection guarantee must be read against the background of tribal sovereignty and interpreted within the context of tribal law and custom." Id. at 17. He concluded "that 25 U.S.C. Section 1302(8) should not be construed in a manner that would invalidate a tribal membership ordinance when the classification attacked is one based on criteria that have been traditionally employed by the tribe in considering membership questions." Id. at 18, and that, thus, the ordinance did not deny appellants equal protection within the meaning of the Indian Civil Rights Act.

The issues to be considered on this appeal are: one, the sovereign immunity of the Pueblo and whether this court has jurisdiction to entertain the cause; and two, the legal standard applicable to claims of denial of equal protection under the Act. Third, we must decide whether the ordinance conflicts with the Civil Rights Act and, if so, whether the Act is to prevail or must give way to tribal authority.

I. WHETHER THE COURT HAS JURISDICTION TO ENTERTAIN THE CAUSE

The Tribe maintains that sovereign immunity precludes this suit. It also argues that the Indian Civil Rights Act does not furnish a jurisdictional basis. We disagree. We have previously considered these arguments and have ruled that jurisdiction exists. Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir. 1975). We also held that to the extent that the Indian Civil Rights Act applies, tribal immunity is thereby limited. Dry Creek Lodge, Inc. v. United States, supra at 934, n. 9. On the question of jurisdiction we said that 28 U.S.C. Section 1343(4) which provides for district court jurisdiction over actions brought under "any Act of Congress providing for the protection of civil rights" constituted an appropriate jurisdictional basis for actions under the Indian Civil Rights Act. Dry Creek Lodge, Inc. v. United States, supra at 933, n. 6, citing cases. Finally, since this Act of Congress was designed to provide protection against tribal authority, the intention of Congress to allow suits against the tribe was an essential aspect. Otherwise, it would constitute a mere unenforceable declaration of principles.

II.

THE MEANING TO BE GIVEN TO EQUAL PROTECTION OF THE LAWS AS

PROVIDED IN THE INDIAN CIVIL RIGHTS ACT
A. Legislative History.

The Act of Congress in question which is found at 25 U.S.C. Section 1302, undertakes to single out the more important civil rights contained in the Constitution and to render those applicable to tribal members who reside on the reservation. The pertinent portion of the equal protection clause has been, as is apparent from n. 1 above, selected as one of the specific protections adopted. 4

The question is whether Congress intended to make the above clause, as it affects the rights of Indian people in relationship to their tribal government, co-extensive with the Federal Constitutional provision (Amendment XIV), which guarantees equal protection to all citizens including Indians. If full constitutional protection is not provided by the Act, to what extent does it furnish protection against discrimination which would under constitutional standards be held invidious and violative? 5

The Indian Civil Rights Act of 1968 was the product of considerable study, most of which was conducted during 1961-63 by the Subcommittee on Constitutional Rights of the Senate Judiciary Committee (1961-63 Hearings). 6 The authorizing Senate Resolution 53 was broad. It allowed the investigation to extend to "all matters pertaining to civil rights." 107 Cong.Rec. 997 (1961). The Subcommittee carried on a broad inquiry into Indians' constitutional rights in relation to tribal, State, and Federal authority.

The numerous abuses and denials of constitutional rights which were found to exist led to the introduction in 1965 of a series of bills designed to safeguard Indians' constitutional rights. See S.Rep. No. 841, 90th Cong., 1st Sess. (1967), pp. 5-6. The bill most pertinent to the case at bar was S. 961 which provided that an Indian tribe in exercising its powers of local self-government was subject to the same limitations and restraints as those which are imposed on the Governments,...

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  • Santa Clara Pueblo v. Martinez
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