Martinez v. Southern Ute Tribe

• Decision Date: 17 September 1962
• Docket Number: No. 20068,20068
• Citation: 150 Colo. 504,374 P.2d 691
• Parties: Mary MARTINEZ, Plaintiff in Error, v. The SOUTHERN UTE TRIBE, a corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 691

374 P.2d 691

150 Colo. 504

Mary MARTINEZ, Plaintiff in Error, v. The SOUTHERN UTE TRIBE, a corporation, Defendant in Error.

No. 20068.

Supreme Court of Colorado, En Banc.

Sept. 17, 1962.

Rehearing Denied Oct. 8, 1962.

Bentley M. McMullin, Aurora, Lewis M. Perkins, Durango, for plaintiff in error.

LaVerne H. McKelvey, R. Franklin McKelvey, Durango, for defendant in error.

MOORE, Justice.

We will refer to plaintiff in error as Mary or plaintiff, and to defendant in error as the Tribe or defendant.

It was alleged in the complaint filed by plaintiff that the Southern Ute Tribe was a recognized tribe of Indians residing within the Southern Ute Reservation in La Plata and Archuleta counties, Colorado; that pursuant to the provisions of 25 U.S.C.A. § 476 said tribe adopted a constitution and by-laws which were ratified September 12, 1936 and approved by the Secretary of the Interior November 4, 1936; that said constitution and by-laws have at all times since adoption remained in full force and effect; that a Charter of Incorporation was issued to defendant July 11, 1938, and ratified November 1, 1938--all as provided by 25 U.S.C.A. § 477; that defendant at all times since November 1, 1938, has been a corporation duly organized under said statute and known as 'The Southern Ute Tribe.'

Plaintiff further alleged:

'7. The members of said corporation, including the plaintiff, are each and every one entitled, in common with the other members thereof, to reside on said reservation and to have the use thereof, including the timber and grazing privileges thereof and all oil and gas and other minerals underlying the same, and to receive all rents, royalties and other income derived therefrom, and to receive certain moneys on deposit in the Treasury of the United States held in trust for said tribe and corporation and its members, with the interest thereon, the exact amount and value of which is to the plaintiff unknown, but which she is informed and believes, and on such and belief alleges, is many millions of dollars.

'8. The plaintiff was born in La Plata County, Colorado, on March 19, 1930, and since the date of her birth has been a member of said tribe and since the date of the incorporation of the said corporation has been a member of said corporation, by reason of the following facts and circumstances:

'(a) The plaintiff was duly enrolled on the 1935 census of the Southern Ute Reservation and, by reason thereof, is a member of said tribe and corporation by virtue of the provisions of paragraph (a), Section 1, Article II, of the constitution thereof.

'(b) The plaintiff is the daughter of John or Juan Green and his wife Mary or Maria Green who were lawfully married at Ignacio, Colorado, on November 26, 1921, and who have at all times since been and now are husband and wife, respectively; the plaintiff's birth was duly registered and recorded upon the records of La Plata County, Colorado, and upon the tribal records, both of which show her to have been the daughter of said parents; the said John or Juan Green is, and since birth has been, a full blood Ute Indian and a member of said tribe; and plaintiff is the child of a member of said tribe having 1/2 or more degree of Ute Indian blood, and, by reason thereof, is a member of said tribe and corporation by virtue of the provisions of paragraph (b), Section 1, Article II, of the constitution thereof.

'9. In the year 1950, without notice to the plaintiff, and without affording her any opportunity to be heard, and wrongfully, unlawfully and in violation of the rights possessed by and conferred upon her by the circumstances and statutes above referred to, and by said tribal and corporate constitute and charter, and contrary to the provisions of the 5th and 14th Amendments to the Constitution of the United States, the defendant denied that the plaintiff was a member of said tribe and corporation, and expelled her from said reservation, and excluded her from and deprived her of all of her rights and privileges as a member of said tribe and corporation, and has since continued to deny said rights and to exclude her from said rights and privileges, notwithstanding repeated, constant and continuing efforts to obtain redress and restitution thereof since made by the plaintiff.'

It is further alleged that plaintiff has suffered damages in the sum of $500,000.00 for which she seeks judgment, and further prays for entry of a decree establishing her status as a member of said tribe and corporation.

Defendant filed a motion to dismiss plaintiff's amended complaint. The basic ground on which said motion rests is that the court has no jurisdiction over the subject matter of the action for the reason that, '* * * to determine the rights of membership in an Indian Tribe would be an invasion of the right of sovereignty of The Southern Ute Tribe of the Southern Ute Reservation, and that the rights of determination of membership in the Southern Ute Tribe * * * is a matter under the control of the Tribe solely * * *.'

The trial court sustained the motion and entered judgment dismissing the action. Plaintiff seeks reversal by writ of error.

It appears from the allegations of the amended complaint that the corporate charter of defendant contains the following provisions:

'Article II

--Membership

'Section 1. The membership of the Southern Ute Tribe of the Southern Ute Reservation shall consist of the following:

'(a) All persons duly enrolled on the 1935 census of the Southern Ute Reservation; Provided, That rights of participation shall depend upon establishment of the legal residence upon the reservation.

'(b) All children of members, if such children shall be 1/2 or more degree of...