Martinez v. Southern Ute Tribe of Southern Ute Res., 5650.

• Decision Date: 17 December 1957
• Docket Number: No. 5650.,5650.
• Citation: 249 F.2d 915
• Parties: Mary MARTINEZ, Appellant, v. The SOUTHERN UTE TRIBE OF the SOUTHERN UTE RESERVATION, a corporation; and Samuel Burch, Julius Cloud, Virgil Red, Bonny Kent, John Baker and Sunshine C. Smith, as the Members of the Council of the Southern Ute Tribe of the Southern Ute Reservation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

249 F.2d 915 (1957)

Mary MARTINEZ, Appellant, v. The SOUTHERN UTE TRIBE OF the SOUTHERN UTE RESERVATION, a corporation; and Samuel Burch, Julius Cloud, Virgil Red, Bonny Kent, John Baker and Sunshine C. Smith, as the Members of the Council of the Southern Ute Tribe of the Southern Ute Reservation, Appellees.

No. 5650.

United States Court of Appeals Tenth Circuit.

November 15, 1957.

Rehearing Denied December 17, 1957.

Bentley M. McMullin, Denver, Colo. (Lewis M. Perkins and Howell W. Cobb, Durango, Colo., were with him on the brief), for appellant.

LaVerne H. McKelvey and R. Franklin McKelvey, Durango, Colo., for appellees.

Before MURRAH, PICKETT and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Alleging that she is entitled to but has been denied membership and the benefits of membership in the defendant corporation, plaintiff seeks to adjudicate her claims through complaint lodged with the United States District Court for the District of Colorado. 151 F.Supp. 476. Named as defendants are the Southern Ute Tribe of the Southern Ute Reservation, a federal corporation organized and chartered in accordance with 25 U.S.C.A. § 476, and the individuals comprising the governing body or Council of the corporate defendant.¹ The action was dismissed by the trial court as not involving a substantial federal question under 28 U.S.C.A. § 1331. There being no contention that jurisdiction otherwise exists, the single question is presented on appeal: Does plaintiff's complaint state a claim arising under and so requiring the interpretation or construction of the Constitution, laws or treaties of the United States?

Plaintiff is the legitimate daughter of one Juan (John) Green, who is a full-blood Indian and member of the Southern Ute Tribe of the Southern Ute Reservation. Although plaintiff's mother was not an Indian, plaintiff was accepted and recognized as a member of the tribe and was enrolled as a member under the provisions of 25 U.S.C.A. § 163. The tribe by vote accepted the provisions of 25 U.S.C.A. §§ 476 and 477 and organized into a membership corporation; its constitution and by-laws were approved November 4, 1936, and it received its charter as a federal corporation. After the incorporation, plaintiff continued to be recognized as a member until the year 1950.

Upon its incorporation, the defendant corporation succeeded to the ownership of all of the property of the tribe and, after its incorporation, acquired additional property. It is alleged that the corporation now controls the reservation and receives from other properties income of great value.

In about 1950, plaintiff was excluded from the reservation and denied the rights and privileges of a member of the tribe, including education for her children, medical care, and participation pro rata in the income of the tribe by the members of the Council. She asserts this alleged wrong to be attributable to the tribal corporation and its Council and subject to redress under federal judicial jurisdiction.

The federal courts are courts of limited jurisdiction and can take cognizance of only those matters which Congress has entrusted to them by statute. In the absence of a federal statute they do not have jurisdiction merely because an Indian who is a ward of the government is a party, Deere v. St. Lawrence River Power Co., 2 Cir., 32 F.2d 550, affirming Deere v. State of New York, D. C., 22 F.2d 851, or because property or contracts of Indians are involved, Kennedy v. Public Works Administration, D. C.N.Y., 23 F.Supp. 771; Button v. Snyder, D.C.N.Y., 7 F.Supp. 597.

Because of distinctions between the tribes, differences in treaties separately negotiated, and social and economic changes of the country, responsibility for Indian legal administration has rested variously with the tribal courts, the federal courts, and the state courts. Recognizing the sovereign, though dependent, nature of a tribal organization, Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; United States v. U. S. Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894, Congress was slow to impose restrictions upon those governments in the management of their internal affairs. The tribal courts had exclusive jurisdiction over suits between members of the tribes and over crimes committed by Indians against Indians, Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L. Ed. 196; Nofire v. U. S., 164 U.S. 657, 17 S.Ct. 212, 41 L.Ed. 588; Cornells v. Shannon, 8 Cir., 63 F. 305.

By Act of March 3, 1885 (now 18 U.S. C.A. § 3242) Congress provided for the trial and punishment of Indians committing any of ten major enumerated crimes within the Indian country in accordance with the extension of general laws of the United States concerning crimes committed in places of exclusive United States jurisdiction, Act June 30, 1834 (now 18 U.S.C.A. § 1152). Other offenses committed by one Indian against another on an Indian reservation are not punishable under the laws of the United States in the absence of specific statutory reference to Indians, but are to be dealt with in accordance with tribal customs and law. United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196. See 18 U.S.C.A. § 1152. More recently certain states have been specifically granted jurisdiction over offenses committed by or against Indians on Indian reservations, e. g. 25 U.S.C.A. § 232, 18 U.S.C.A. § 3243.

A similar pattern of piecemeal legislation has developed the jurisdiction of the different courts in civil actions concerning Indians, their rights and property. The doctrine that Indian affairs are subject to control of the federal, rather than state government, arises from the constitutional powers of Congress to make treaties, to regulate commerce with the Indian tribes, to admit new states, and to administer the property of the United States and legislation enacted in pursuance of these powers. The states of Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota, Utah and Washington were admitted to the union under enabling acts expressly disclaiming jurisdiction over Indian affairs and this provision was consequently written into their constitutions.

In accordance with these powers, Congress has enacted and repealed a welter of laws dealing with the protection of Indians beginning with the four Indian Acts of the First Congress in 1789. Significant legislation which in modified form continues in the law today has been concerned generally with the regulation of trade with the Indians, the sale of Indian lands, and the protection of those lands against trespass;² providing for the Bureau of Indian Affairs;³ the punishment of crimes committed in Indian territory;⁴ authorizing payment of moneys due tribes to individuals rather than tribal officers⁵ (this in effect, substituted the judgment of federal officials for that of tribal governments on the question of tribal membership for disposition of funds); recognizing the right of Indians to punish their own offenders;⁶ providing for federal criminal punishment for Indians committing certain offenses;⁷ regulation of allotments;⁸ a trusteeship of Indian moneys for the benefit of the tribe;⁹ education of Indian children;¹⁰ administrative powers in the Commission and Secretary of Interior concerning leases of Indian lands, and administration of estates of allotees;¹¹ citizenship;¹² prohibiting further allotment of Indian lands and providing for the maintenance of tribal integrity through incorporation.¹³

The 1934 extensive legislation, 25 U.S. C.A. § 461 et seq., had for its purpose the protection of Indian resources needed for tribal existence. It was under these sections that the Southern Ute Tribe was organized.

A further attempt to give reservation Indians equal protection of the laws of the state wherein they reside in accordance with the rights afforded other citizens of that state was made in Public Law 280, August 15, 1953, c. 505, 67 Stat. 588, 28 U.S.C.A. § 1360, wherein jurisdiction of the states of California, Minnesota, Nebraska, Oregon, and Wisconsin over criminal and civil causes within Indian territory was recognized. Tribal customs and ordinances not in conflict with state law were preserved. The Act further gave consent of the United States for those states inhibited by their enabling acts and constitutions to pass amendments providing for the assumption of jurisdiction over civil and criminal causes concerning Indian affairs.

In reporting the bill the Indian Affairs Subcommittee of the House Committee on Interior and Insular Affairs stated:

"As a practical matter, the enforcement of law and order among the Indians in the Indian country has been left largely to the Indian groups themselves. In many States, tribes are not adequately organized to perform that function; consequently, there has been created a hiatus in law-enforcement authority that could best be remedied by conferring criminal jurisdiction on States indicating an ability and willingness to accept such responsibility.

"Similarly, the Indians of several States have reached a stage of acculturation and development that makes desirable extension of State civil jurisdiction to the Indian country within their borders. Permitting the State courts to adjudicate civil controversies arising on Indian reservations, and to extend to those reservations the substantive civil laws of the respective States insofar as those laws are of general application to private persons or private property, is deemed desirable." 2 1953 U.S. Code Cong. & Adm. News, p. 2409.

It is interesting to note that in those states which clearly have jurisdiction by reason of statute, tribal laws not inconsistent with state law have been preserved. Further, the Bureau of Indian Affairs has provided for intra-tribal courts and a reservation code for the enforcement of law in those tribes "in which traditional agencies for the enforcement of tribal law and customs have broken down for which no adequate substitute...