Respondents, a female member of the Santa Clara Pueblo and her
daughter, brought this action for declaratory and injunctive relief
against petitioners, the Pueblo and its Governor, alleging that a
Pueblo ordinance that denies tribal membership to the children of
female members who marry outside the tribe, but not to similarly
situated children of men of that tribe, violates Title I of the
Indian Civil Rights Act of 1968 (ICRA), 25 U.S.C. §§ 1301-1303,
which, in relevant part, provides that "[n]o Indian tribe in
exercising powers of self-government shall . . . deny to any person
within its jurisdiction the equal protection of its laws." 25
U.S.C. § 1302(8). The ICRA's only express remedial provision, 25
U.S.C. § 1303, extends the writ of habeas corpus to any person, in
a federal court, "to test the legality of his detention by order of
an Indian tribe." The District Court held that jurisdiction was
conferred by 28 U.S.C. § 1343(4) and 25 U.S.C. § 1302(8),
apparently concluding that the substantive provisions of Title I
impliedly authorized civil actions for declaratory and injunctive
relief, and also that the tribe was not immune from such a suit.
Subsequently, the court found for petitioners on the merits. The
Court of Appeals, while agreeing on the jurisdictional issue,
reversed on the merits.
Held:
1. Suits against the tribe under the ICRA are barred by the
tribe's sovereign immunity from suit, since nothing on the face of
the ICRA purports to subject tribes to the jurisdiction of federal
courts in civil actions for declaratory or injunctive relief. Pp.
436 U. S.
58-59.
2. Nor does § 1302 impliedly authorize a private cause of action
for declaratory and injunctive relief against the Pueblo's
Governor. Congress' failure to provide remedies other than habeas
corpus for enforcement of the ICRA was deliberate, as is manifest
from the structure of the statutory scheme and the legislative
history of Title I. Pp.
436 U.S.
59-72.
(a) Congress was committed to the goal of tribal
self-determination, as is evidenced by the provisions of Title I
itself. Section 1302 selectively incorporated and in some instances
modified the safeguards of the Bill of Rights to fit the unique
needs of tribal governments, and other parts of the ICRA similarly
manifest a congressional purpose to protect tribal sovereignty from
undue interference. Creation of a federal cause
Page 436 U. S. 50
of action for the enforcement of § 1302 rights would not comport
with the congressional goal of protecting tribal self-government.
Pp.
436 U. S.
62-65.
(b) Tribal courts, which have repeatedly been recognized as
appropriate forums for adjudicating disputes involving important
interests of both Indians and non-Indians, are available to
vindicate rights created by the ICRA. Pp.
436 U. S.
65-66.
(c) After considering numerous alternatives for review of tribal
criminal convictions, Congress apparently decided that review by
way of habeas corpus would adequately protect the individual
interests at stake while avoiding unnecessary intrusions on tribal
governments. Similarly, Congress considered and rejected proposals
for federal review of alleged violations of the ICRA arising in a
civil context. It is thus clear that only the limited review
mechanism of § 1303 was contemplated. Pp.
436 U. S.
66-70.
(d) By not exposing tribal officials to the full array of
federal remedies available to redress actions of federal and state
officials, Congress may also have considered that resolution of
statutory issues under § 1302, and particularly those issues likely
to arise in a civil context, will frequently depend on questions of
tribal tradition and custom that tribal forums may be in a better
position to evaluate than federal courts. Pp.
436 U. S.
71-72.
540 F.2d 1039, reversed.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, POWELL, and STEVENS, JJ.,
joined, and in all but Part III of which REHNQUIST, J., joined.
WHITE, J., filed a dissenting opinion,
post, p.
436 U. S. 72.
BLACKMUN, J., took no part in the consideration or decision of the
case.
Page 436 U. S. 51
MR. JUSTICE MARSHALL delivered the opinion of the Court.
*
This case requires us to decide whether a federal court may pass
on the validity of an Indian tribe's ordinance denying membership
to the children of certain female tribal members.
Petitioner Santa Clara Pueblo is an Indian tribe that has been
in existence for over 600 years. Respondents, a female member of
the tribe and her daughter, brought suit in federal court against
the tribe and its Governor, petitioner Lucario Padilla, seeking
declaratory and injunctive relief against enforcement of a tribal
ordinance denying membership in the tribe to children of female
members who marry outside the tribe, while extending membership to
children of male members who marry outside the tribe. Respondents
claimed that this rule discriminates on the basis of both sex and
ancestry in violation of Title I of the Indian Civil Rights Act of
1968 (ICRA), 25 U.S.C. §§ 1301-1303, which provides in relevant
part that "[n]o Indian tribe in exercising powers of
self-government shall . . . deny to any person within its
jurisdiction the equal protection of its laws." § 1302(8).
[
Footnote 1]
Title I of the ICRA does not expressly authorize the bringing of
civil actions for declaratory or injunctive relief to
Page 436 U. S. 52
enforce its substantive provisions. The threshold issue in this
case is thus whether the Act may be interpreted to impliedly
authorize such actions, against a tribe or its officers, in the
federal courts. For the reasons set forth below, we hold that the
Act cannot be so read.
I
Respondent Julia Martinez is a full-blooded member of the Santa
Clara Pueblo, and resides on the Santa Clara Reservation in
Northern New Mexico. In 1941, she married a Navajo Indian with whom
she has since had several children, including respondent Audrey
Martinez. Two years before this marriage, the Pueblo passed the
membership ordinance here at issue, which bars admission of the
Martinez children to the tribe because their father is not a Santa
Claran. [
Footnote 2] Although
the children were raised on the reservation and continue to reside
there now that they are adults, as a result of their exclusion from
membership, they may not vote in tribal elections or hold secular
office in the tribe; moreover, they have no right to remain on the
reservation in the event of their
Page 436 U. S. 53
mother's death; or to inherit their mother's home or her
possessory interests in the communal lands.
After unsuccessful efforts to persuade the tribe to change the
membership rule, respondents filed this lawsuit in the United
States District Court for the District of New Mexico, on behalf of
themselves and others similarly situated. [
Footnote 3] Petitioners moved to dismiss the complaint
on the ground that the court lacked jurisdiction to decide
intra-tribal controversies affecting matters of tribal
self-government and sovereignty. The District Court rejected
petitioners' contention, finding that jurisdiction was conferred by
28 U.S.C. § 1343(4) and 25 U.S.C. § 1302(8). The court apparently
concluded, first, that the substantive provisions of Title I
impliedly authorized civil actions for declaratory and injunctive
relief, and second, that the tribe was not immune from such suit.
[
Footnote 4] Accordingly, the
motion to dismiss was denied.
402 F. Supp.
5 (1975).
Following a full trial, the District Court found for petitioners
on the merits. While acknowledging the relatively recent origin of
the disputed rule, the District Court nevertheless
Page 436 U. S. 54
found it to reflect traditional values of patriarchy still
significant in tribal life. The court recognized the vital
importance of respondents' interests, [
Footnote 5] but also determined that membership rules were
"no more or less than a mechanism of social . . . self-definition,"
and, as such, were basic to the tribe's survival as a cultural and
economic entity.
Id. at 15. [
Footnote 6] In sustaining the ordinance's validity under
the "equal protection clause" of the ICRA, 25 U.S.C. § 1302(8), the
District Court concluded that the balance to be struck between
these competing interests was better left to the judgment of the
Pueblo:
"[T]he equal protection guarantee of the Indian Civil Rights Act
should not be construed in a manner which would require or
authorize this Court to determine which traditional values will
promote cultural survival and should therefore be preserved. . . .
Such a determination should be made by the people of Santa Clara,
not only because they can best decide what values are important,
but also because they must live with the decision every day. . .
."
". . . To abrogate tribal decisions, particularly in the
delicate area of membership, for whatever 'good' reasons, is to
destroy cultural identity under the guise of saving it."
402 F.
Supp. at 119.
On respondents' appeal, the Court of Appeals for the Tenth
Circuit upheld the District Court's determination that 28 U.S.C. §
1343(4) provides a jurisdictional basis for actions
Page 436 U. S. 55
under Title I of the ICRA. 540 F.2d 1039, 1042 (1976). It found
that,
"since [the ICRA] was designed to provide protection against
tribal authority, the intention of Congress to allow suits against
the tribe was an essential aspect [of the ICRA]. Otherwise, it
would constitute a mere unenforceable declaration of
principles."
Ibid. The Court of Appeals disagreed, however, with the
District Court's ruling on the merits. While recognizing that
standards of analysis developed under the Fourteenth Amendment's
Equal Protection Clause were not necessarily controlling in the
interpretation of this statute, the Court of Appeals apparently
concluded that, because the classification was one based upon sex,
it was presumptively invidious, and could be sustained only if
justified by a compelling tribal interest.
See id. at
1047-1048. Because of the ordinance's recent vintage, and because
in the court's view the rule did not rationally identify those
persons who were emotionally and culturally Santa Clarans, the
court held that the tribe's interest in the ordinance was not
substantial enough to justify its discriminatory effect.
Ibid.
We granted certiorari, 431 U.S. 913 (1977), and we now
reverse.
II
Indian tribes are "distinct, independent political communities,
retaining their original natural rights" in matters of local
self-government.
Worcester v.
Georgia, 6 Pet. 515,
31 U. S. 559
(1832);
see United States v. Mazurie, 419 U.
S. 544,
419 U. S. 557
(1975); F. Cohen, Handbook of Federal Indian Law 122-123 (1945).
Although no longer "possessed of the full attributes of
sovereignty," they remain a "separate people, with the power of
regulating their internal and social relations."
United States
v. Kagama, 118 U. S. 375,
118 U. S.
381-382 (1886).
See United States v. Wheeler,
435 U. S. 313
(1978). They have power to make their own substantive law in
internal matters,
see Roff v. Burney, 168 U.
S. 218 (1897) (membership);
Page 436 U. S. 56
Jones v. Meehan, 175 U. S. 1,
175 U. S. 29
(1899) (inheritance rules);
United States v. Quiver,
241 U. S. 602
(1916) (domestic relations), and to enforce that law in their own
forums,
see, e.g., Williams v. Lee, 358 U.
S. 217 (1959).
As separate sovereigns preexisting the Constitution, tribes have
historically been regarded as unconstrained by those constitutional
provisions framed specifically as limitations on federal or state
authority. Thus, in
Talton v. Mayes, 163 U.
S. 376 (1896), this Court held that the Fifth Amendment
did not "operat[e] upon" "the powers of local self-government
enjoyed" by the tribes.
Id. at
163 U. S. 384.
In ensuing years, the lower federal courts have extended the
holding of
Talton to other provisions of the Bill of
Rights, as well as to the Fourteenth Amendment. [
Footnote 7]
As the Court in
Talton recognized, however, Congress
has plenary authority to limit, modify or eliminate the powers of
local self-government which the tribes otherwise possess.
Ibid. See, e.g., United States v. Kagama,
supra,
Page 436 U. S. 57
at
118 U. S.
379-381,
118 U. S.
383-384;
Cherokee Nation v. Hitchcock,
187 U. S. 294,
187 U. S.
305-307 (1902). Title I of the ICRA, 25 U.S.C. § §
1301-1303, represents an exercise of that authority. In 25 U.S.C. §
1302, Congress acted to modify the effect of
Talton and
its progeny by imposing certain restrictions upon tribal
governments similar, but not identical, to those contained in the
Bill of Rights and the Fourteenth Amendment. [
Footnote 8]
Page 436 U. S. 58
In 25 U.S. C. § 1303, the only remedial provision expressly
supplied by Congress, the "privilege of the writ of habeas corpus"
is made "available to any person, in a court of the United States,
to test the legality of his detention by order of an Indian
tribe."
Petitioners concede that § 1302 modifies the substantive law
applicable to the tribe; they urge, however, that Congress did not
intend to authorize federal courts to review violations of its
provisions except as they might arise on habeas corpus. They argue,
further, that Congress did not waive he tribe's sovereign immunity
from suit. Respondents, on the other hand, contend that § 1302 not
only modifies the substantive law applicable to the exercise of
sovereign tribal powers, but also authorizes civil suits for
equitable relief against the tribe and its officers in federal
courts. We consider these contentions first with respect to the
tribe.
III
Indian tribes have long been recognized as possessing the common
law immunity from suit traditionally enjoyed by sovereign powers.
Turner v. United States, 248 U. S. 354,
248 U. S. 358
(1919);
United States v. United States Fidelity & Guaranty
Co., 309 U. S. 506,
309 U. S.
512-513 (1940);
Puyallup Tribe v. Washington Dept.
of Game, 433 U. S. 165,
433 U. S.
172-173 (1977). This aspect of tribal sovereignty, like
all others, is subject to the superior and plenary control of
Congress. But "without congressional authorization," the "Indian
Nations are exempt from suit."
United States v. United States
Fidelity & Guaranty Co., supra at
309 U. S.
512.
It is settled that a waiver of sovereign immunity "
cannot be
implied, but must be unequivocally expressed.'" United States
v. Testan, 424 U. S. 392,
424 U. S. 399
(1976), quoting United
Page 436 U. S. 59
States v. King, 395 U. S. 1,
395 U. S. 4
(1969). Nothing on the face of Title I of the ICRA purports to
subject tribes to the jurisdiction of the federal courts in civil
actions for injunctive or declaratory relief. Moreover, since the
respondent in a habeas corpus action is the individual custodian of
the prisoner,
see, e.g., 28 U.S.C. § 2243, the provisions
of § 1303 can hardly be read as a general waiver of the tribe's
sovereign immunity. In the absence here of any unequivocal
expression of contrary legislative intent, we conclude that suits
against the tribe under the ICRA are barred by its sovereign
immunity from suit.
IV
As an officer of the Pueblo, petitioner Lucario Padilla is not
protected by the tribe's immunity from suit.
See Puyallup Tribe
v. Washington Dept. of Game, supra at
433 U. S.
171-172;
cf. Ex parte Young,
209 U.
S. 123 (1908). We must therefore determine whether the
cause of action for declaratory and injunctive relief asserted here
by respondents, though not expressly authorized by the statute, is
nonetheless implicit in its terms.
In addressing this inquiry, we must bear in mind that providing
a federal forum for issue arising under § 1302 constitutes an
interference with tribal autonomy and self-government beyond that
created by the change in substantive law itself. Even in matters
involving commercial and domestic relations, we have recognized
that
"subject[ing] a dispute arising on the reservation among
reservation Indians to a forum other than the one they have
established for themselves,"
Fisher v. District Court, 424 U.
S. 382,
424 U. S.
387-388 (1976), may "undermine the authority of the
tribal cour[t] . . . and hence . . . infringe on the right of the
Indians to govern themselves."
Williams v. Lee, 358 U.S.
at
358 U. S. 223.
[
Footnote 9]
Page 436 U. S. 60
A fortiori, resolution in a foreign forum of
intra-tribal disputes of a more "public" character, such as the one
in this case, cannot help but unsettle a tribal government's
ability to maintain authority. Although Congress clearly has power
to authorize civil actions against tribal officers, and has done so
with respect to habeas corpus relief in § 1303, a proper respect
both for tribal sovereignty itself and for the plenary authority of
Congress in this area cautions that we tread lightly in the absence
of clear indications of legislative intent.
Cf. Antoine v.
Washington, 420 U. S. 194,
420 U. S.
199-200 (1975);
Choate v. Trapp, 224 U.
S. 665,
224 U. S. 675
(1912).
With these considerations of "Indian sovereignty . . . [as] a
backdrop against which the applicable . . . federal statut[e] must
be read,"
McClanahan v. Arizona State Tax Comm'n,
411 U. S. 164,
411 U. S. 172
(1973), we turn now to those factors of more general relevance in
determining whether a cause of action is implicit in a statute not
expressly providing one.
See Cort v. Ash, 422 U. S.
66 (1975). [
Footnote
10] We note at the outset that
Page 436 U. S. 61
a central purpose of the ICRA and in particular of Title I was
to "secur[e] for the American Indian the broad constitutional
rights afforded to other Americans," and thereby to "protect
individual Indians from arbitrary and unjust actions of tribal
governments." S.Rep. No. 841, 90th Cong., 1st Sess., 5-6 (1967).
There is thus no doubt that respondents, American Indians living on
the Santa Clara Reservation, are among the class for whose especial
benefit this legislation was enacted.
Texas & Pacific R.
Co. v. Rigsby, 241 U. S. 33,
241 U. S. 39
(1916);
see Cort v. Ash, supra, at
422 U. S. 78.
Moreover, we have frequently recognized the propriety of inferring
a federal cause of action for the enforcement of civil rights, even
when Congress has spoken in purely declarative terms.
See,
e.g., Jones v. Alfred H. Mayer Co., 392 U.
S. 409,
392 U. S. 414
n. 13 (1968);
Sullivan v. Little Hunting Park, Inc.,
396 U. S. 229,
396 U. S.
238-240 (1969).
See also Bivens v Six Unknown Fed.
Narcotics Agents, 403 U. S. 388
(1971). These precedents, however, are simply not dispositive here.
Not only are we unpersuaded that a judicially sanctioned intrusion
into tribal sovereignty is required to fulfill the purposes of the
ICRA, but, to the contrary, the structure of the statutory scheme
and the legislative history of Title I suggest that Congress'
failure to provide remedies other than habeas corpus was a
deliberate one.
See National Railroad Passenger
Corp. v. National
Page 436 U. S. 62
Assn. of Railroad Passengers, 414 U.
S. 453 (1974);
Cort v. Ash, supra.
A
Two distinct and competing purposes are manifest in the
provisions of the ICRA: in addition to its objective of
strengthening the position of individual tribal members
vis-a-vis the tribe, Congress also intended to promote the
well established federal "policy of furthering Indian
self-government."
Morton v. Mancari, 417 U.
S. 535,
417 U. S. 551
(1974);
see Fisher v. District Court, 424 U.S. at
424 U. S. 391.
[
Footnote 11] This
commitment to the goal of tribal self-determination is demonstrated
by the provisions of Title I itself. Section 1302, rather than
providing in wholesale fashion for the extension of constitutional
requirements to tribal governments, as had been initially proposed,
[
Footnote 12] selectively
incorporated and in some instances modified the safeguards of the
Bill of Rights to fit the unique political, cultural, and economic
needs of tribal governments. [
Footnote 13]
Page 436 U. S. 63
See n 8,
supra. Thus, for example, the statute does not prohibit
the establishment of religion, nor does it require jury trials in
civil cases, or appointment of counsel for indigents in criminal
cases,
cf. Argersinger v. Hamlin, 407 U. S.
25 (1972). [
Footnote
14]
The other Titles of the ICRA also manifest a congressional
purpose to protect tribal sovereignty from undue interference. For
instance, Title III, 25 U.S.C. §§ 1321-1326, hailed by some of the
ICRA's supporters as the most important part of the Act, [
Footnote 15] provides that States
may not assume civil or criminal jurisdiction over "Indian country"
without
Page 436 U. S. 64
the prior consent of the tribe, thereby abrogating prior law to
the contrary. [
Footnote 16]
Other Titles of the ICRA provide for strengthening certain tribal
courts through training of Indian judges, [
Footnote 17] and for minimizing interference by
the Federal Bureau of Indian Affairs in tribal litigation.
[
Footnote 18]
Where Congress seeks to promote dual objectives in a single
statute, courts must be more than usually hesitant to infer from
its silence a cause of action that, while serving one legislative
purpose, will disserve the other. Creation of a federal cause of
action for the enforcement of rights created in Title I, however
useful it might be in securing compliance with § 1302, plainly
would be at odds with the congressional goal of protecting tribal
self-government. Not only would it undermine the authority of
tribal forums,
see supra at
436 U.S. 59-60, but it would also
impose serious financial burdens on already "financially
disadvantaged" tribes. Subcommittee on Constitutional Rights,
Senate Judiciary Committee, Constitutional
Page 436 U. S. 65
Rights of the American Indian: Summary Report of Hearings and
Investigations Pursuant to S.Res.194, 89th Cong., 2d Sess., 12
(Comm.Print 1966) (hereinafter cited as Summary Report). [
Footnote 19]
Moreover, contrary to the reasoning of the court below,
implication of a federal remedy in addition to habeas corpus is not
plainly required to give effect to Congress' objective of extending
constitutional norms to tribal self-government. Tribal forums are
available to vindicate rights created by the ICRA, and § 1302 has
the substantial and intended effect of changing the law which these
forums are obliged to apply. [
Footnote 20] Tribal courts have repeatedly been
recognized as appropriate forums for the exclusive adjudication of
disputes affecting important personal and property interests of
both Indians and non-Indians. [
Footnote 21]
See, e.g., 424 U.
S. District Court, 424 U.S.
Page 436 U. S. 66
382 (1976);
Williams v. Lee, 358 U.
S. 217 (1959).
See also Ex parte Crow Dog,
109 U. S. 556
(1883). Nonjudicial tribal institutions have also been recognized
as competent law-applying bodies.
See United States v.
Mazurie, 419 U. S. 544
(1975). [
Footnote 22] Under
these circumstances, we are reluctant to disturb the balance
between the dual statutory objectives which Congress apparently
struck in providing only for habeas corpus relief.
B
Our reluctance is strongly reinforced by the specific
legislative history underlying 25 U.S.C. § 1303. This history,
extending over more than three years, [
Footnote 23] indicates that Congress' provision for
habeas corpus relief, and nothing more, reflected a considered
accommodation of the competing goals of
"preventing injustices perpetrated by tribal governments,
Page 436 U. S. 67
on the one hand, and, on the other, avoiding undue or
precipitous interference in the affairs of the Indian people."
Summary Report 11.
In settling on habeas corpus as the exclusive means for federal
court review of tribal criminal proceedings, Congress opted for a
less intrusive review mechanism than had been initially proposed.
Originally, the legislation would have authorized
de novo
review in federal court of all convictions obtained in tribal
courts. [
Footnote 24] At
hearings held on the proposed legislation in 1965, however, it
became clear that even those in agreement with the general thrust
of the review provision -- to provide some form of judicial review
of criminal proceedings in tribal courts -- believed that
de
novo review would impose unmanageable financial burdens on
tribal governments and needlessly displace tribal courts.
See
id. at 12; 1965 Hearings 22-23, 157, 162, 341-342. Moreover,
tribal representatives argued that
de novo review would
"deprive the tribal court of all jurisdiction in the event of an
appeal, thus having a harmful effect upon law enforcement within
the reservation," and urged instead that "decisions of tribal
courts . . . be reviewed in the U.S. district courts upon petition
for a writ of habeas corpus."
Id. at 79. After considering
numerous alternatives for review of tribal convictions, Congress
apparently decided that review by way of habeas corpus would
adequately protect the individual interests at stake while avoiding
unnecessary intrusions on tribal governments.
Similarly, and of more direct import to the issue in this case,
Congress considered and rejected proposals for federal review of
alleged violations of the Act arising in a civil context. As
initially introduced, the Act would have required the Attorney
General to "receive and investigate" complaints
Page 436 U. S. 68
relating to deprivations of an Indian's statutory or
constitutional rights, and to bring "such criminal or other action
as he deems appropriate to vindicate and secure such right to such
Indian." [
Footnote 25]
Notwithstanding the screening effect this proposal would have had
on frivolous or vexatious lawsuits, it was bitterly opposed by
several tribes. The Crow Tribe representative stated:
"This [bill] would in effect subject the tribal sovereignty of
self-government to the Federal government. . . . [B]y its broad
terms, [it] would allow the Attorney General to bring any kind of
action as he deems appropriate. By this bill, any time a member of
the tribe would not be satisfied with an action by the [tribal]
council, it would allow them [
sic] to file a complaint
with the Attorney General and subject the tribe to a multitude of
investigations and threat of court action."
1965 Hearings 235 (statement of Mr. Real Bird). In a similar
vein, the Mescalero Apache Tribal Council argued that,
"[i]f the perpetually dissatisfied individual Indian were to be
armed with legislation such as proposed in [this bill], he could
disrupt the whole of a tribal government."
Id. at 343. In response, this provision for suit by the
Attorney General was completely eliminated from the ICRA. At the
same time, Congress rejected a substitute proposed by the Interior
Department that would have authorized the Department to adjudicate
civil complaints concerning tribal actions, with review in the
district courts available from final decisions of the agency.
[
Footnote 26]
Page 436 U. S. 69
Given this history, it is highly unlikely that Congress would
have intended a private cause of action for injunctive and
declaratory relief to be available in the federal courts to secure
enforcement of 1302. Although the only Committee Report on the ICRA
in its final form, S.Rep. No. 841, 90th Cong., 1st Sess. (1967),
sheds little additional light on this question, it would hardly
support a contrary conclusion. [
Footnote 27] Indeed, its description of the purpose of
Title I, [
Footnote 28] as
well as the floor
Page 436 U. S. 70
debates on the bill, [
Footnote 29] indicates that the ICRA was generally
understood to authorize federal judicial review of tribal actions
only through the habeas corpus provisions of§ 1303. [
Footnote 30] These factors, together with
Congress' rejection of proposals that clearly would have authorized
causes of action other than habeas corpus, persuade us that
Congress, aware of the intrusive effect of federal judicial review
upon tribal self-government, intended to create only a limited
mechanism for such review, namely, that provided for expressly in §
1303.
Page 436 U. S. 71
V
As the bill's chief sponsor, Senator Ervin, [
Footnote 31] commented in urging its
passage, the ICRA "should not be considered as the final solution
to the many serious constitutional problems confronting the
American Indian." 113 Cong.Rec. 13473 (1967). Although Congress
explored the extent to which tribes were adhering to constitutional
norms in both civil and criminal contexts, its legislative
investigation revealed that the most serious abuses of tribal power
had occurred in the administration of criminal justice.
See
ibid., quoting Summary Report 24. In light of this finding,
and given Congress' desire not to intrude needlessly on tribal
self-government, it is not surprising that Congress chose at this
stage to provide for federal review only in habeas corpus
proceedings.
By not exposing tribal officials to the full array of federal
remedies available to redress actions of federal and state
officials, Congress may also have considered that resolution of
statutory issues under § 1302, and particularly those issues likely
to arise in a civil context, will frequently depend on questions of
tribal tradition and custom which tribal forums may be in a better
position to evaluate than federal courts. Our relations with the
Indian tribes have "always been . . . anomalous . . . and of a
complex character."
United States v. Kagama, 118 U.S. at
118 U. S. 381.
Although we early rejected the notion that Indian tribes are
"foreign states" for jurisdictional purposes under Art. III,
Cherokee Nation v.
Georgia, 5 Pet. 1 (1831), we have also recognized
that the tribes remain quasi-sovereign nations which, by government
structure, culture, and source of sovereignty, are in many ways
foreign to the constitutional institutions of the Federal and State
Governments.
See Elk v. Wilkins, 112 U. S.
94 (1884). As is suggested by the District Court's
opinion in this case,
see supra at
436 U. S.
54,
Page 436 U. S. 72
efforts by he federal judiciary to apply the statutory
prohibitions of § 1302 in a civil context may substantially
interfere with a tribe's ability to maintain itself as a culturally
and politically distinct entity. [
Footnote 32]
As we have repeatedly emphasized, Congress' authority over
Indian matters is extraordinarily broad, and the role of courts in
adjusting relations between and among tribes and their members
correspondingly restrained.
See Lone Wolf v. Hitchcock,
187 U. S. 553,
187 U. S. 565
(1903). Congress retains authority expressly to authorize civil
actions for injunctive or other relief to redress violations of §
1302, in the event that the tribes themselves prove deficient in
applying and enforcing its substantive provisions. But unless and
until Congress makes clear its intention to permit the additional
intrusion on tribal sovereignty that adjudication of such actions
in a federal forum would represent, we are constrained to find that
§ 1302 does not impliedly authorize actions for declaratory or
injunctive relief against either the tribe or its officers.
The judgment of the Court of Appeals is, accordingly,
Reversed.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
* MR. JUSTICE REHNQUIST joins Parts I, II, IV, and V of this
opinion.
[
Footnote 1]
The ICRA was initially passed by the Senate in 1967, 113
Cong.Rec. 35473, as a separate bill containing six Titles. S. 1843,
90th Cong., 1st Sess. (1967). It was reenacted by the Senate in
1968 without change, 114 Cong.Rec. 5838, as an amendment to a
House-originated bill, H.R. 2516, 90th Cong., 2d Sess. (1968), and
was then approved by the House and signed into law by the President
as Titles II through VII of the Civil Rights Act of 1968, Pub.L.
90-284, 82 Stat. 77. Thus, the first Title of the ICRA was enacted
as Title II of the Civil Rights Act of 1968. The six Titles of the
ICRA will be referred to herein by their title numbers as they
appeared in the version of S. 1843 passed by the Senate in
1967.
[
Footnote 2]
The ordinance, enacted by the Santa Clara Pueblo Council
pursuant to its legislative authority under the Constitution of the
Pueblo, establishes the following membership rules:
"1. All children born of marriages between members of the Santa
Clara Pueblo shall be members of the Santa Clara Pueblo."
"2. . . . [C]hildren born of marriages between male members of
the Santa Clara Pueblo and non-members shall be members of the
Santa Clara Pueblo."
"3. Children born of marriages between female members of the
Santa Clara Pueblo and non-members shall not be members of the
Santa Clara Pueblo."
"4. Persons shall not be naturalized as members of the Santa
Clara Pueblo under any circumstances."
Respondents challenged only subparagraphs 2 and 3. By virtue of
subparagraph 4, Julia Martinez' husband is precluded from joining
the Pueblo and thereby assuring the children's membership pursuant
to subparagraph 1.
[
Footnote 3]
Respondent Julia Martinez was certified to represent a class
consisting of all women who are members of the Santa Clara Pueblo
and have married men who are not members of the Pueblo, while
Audrey Martinez was certified as the class representative of all
children born to marriages between Santa Claran women and men who
are not members of the Pueblo.
[
Footnote 4]
Section 1343(4) gives the district courts
"jurisdiction of any civil action
authorized by law to
be commenced by any person . . . to secure equitable or other
relief under any Act of Congress providing for the protection of
civil rights."
(Emphasis added.) The District Court evidently believed that
jurisdiction could not exist under § 1343(4) unless the ICRA did in
fact authorize actions for declaratory or injunctive relief in
appropriate cases. For purposes of this case, we need not decide
whether § 1343(4) jurisdiction can be established merely by
presenting a substantial question concerning the availability of a
particular form of relief.
Cf. Bell v. Hood, 327 U.
S. 678 (1946) (jurisdiction under 28 U.S.C. § 1331).
See also United States v. Memphis Cotton Oil Co.,
288 U. S. 62,
288 U. S. 67-68
(1933) (Cardozo, J.) .
[
Footnote 5]
The court found that
"Audrey Martinez and many other children similarly situated have
been brought up on the Pueblo, speak the Tewa language, participate
in its life, and are, culturally, for all practical purposes, Santa
Claran Indians."
402 F. Supp. at 18.
[
Footnote 6]
The Santa Clara Pueblo is a relatively small tribe.
Approximately 1,200 members reside on the reservation; 150 members
of the Pueblo live elsewhere. In addition to tribal members,
150-200 nonmembers live on the reservation.
[
Footnote 7]
See, e.g., Twin Cities Chippewa Tribal Council v. Minnesota
Chippewa Tribe, 370 F.2d 529, 533 (CA8 1967) (Due Process
Clause of Fourteenth Amendment);
Native American Church v.
Navajo Tribal Council, 272 F.2d 131 (CA10 1959) (freedom of
religion under First and Fourteenth Amendments);
Barta v.
Oglala Sioux Tribe, 259 F.2d 553 (CA8 1958),
cert.
denied, 358 U. S. 932
(1959) (Fourteenth Amendment).
See also Martinez v. Southern
Ute Tribe, 249 F.2d 915, 919 (CA10 1957),
cert.
denied, 356 U.S. 960 (1958) (applying
Talton to Fifth
Amendment due process claim);
Groundhog v. Keeler, 442
F.2d 674, 678 (CA10 1971).
But see Colliflower v. Garland,
342 F.2d 369 (CA9 1965), and
Settler v. Yakima Tribal
Court, 419 F.2d 486 (CA9 1969),
cert. denied, 398
U.S. 903 (1970), both holding that, where a tribal court was so
pervasively regulated by a federal agency that it was, in effect, a
federal instrumentality, a writ of habeas corpus would lie to a
person detained by that court in violation of the Constitution.
The line of authority growing out of
Talton, while
exempting Indian tribes from constitutional provisions addressed
specifically to State or Federal Governments, of course, does not
relieve State and Federal Governments of their obligations to
individual Indians under these provisions.
[
Footnote 8]
Section 1302 in its entirety provides that:
"No Indian tribe in exercising powers of self-government shall
-- "
"(1) make or enforce any law prohibiting the free exercise of
religion, or abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and to petition for a
redress of grievances;"
"(2) violate the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable search
and seizures, nor issue warrants, but upon probable cause,
supported by oath or affirmation, and particularly describing the
place to be searched and the person or thing to be seized;"
"(3) subject any person for the same offense to be twice put in
jeopardy;"
"(4) compel any person in any criminal case to be a witness
against himself;"
"(6) take any private property for a public use without just
compensation;"
"(6) deny to any person in a criminal proceeding the right to a
speedy and public trial, to be informed of the nature and cause of
the accusation, to be confronted with the witnesses against him, to
have compulsory process for obtaining witnesses in his favor, and
at his own expense to have the assistance of counsel for his
defense;"
"(7) require excessive bail, impose excessive fines, inflict
cruel and unusual punishments, and in no event impose for
conviction of any one offense my penalty or punishment greater than
imprisonment for a term of six months or a fine of $500, or
both;"
"(8) deny to any person within its jurisdiction the equal
protection of its laws or deprive any person of liberty or property
without due process of law;"
"(9) pass any bill of attainder or ex post facto law; or"
"(10) deny to any person accused of an offense punishable by
imprisonment the right, upon request, to a trial by jury of not
less than six persons."
Section 1301 is a definitional section, which provides,
inter alia, that the "powers of self-government" shall
include
"all governmental powers possessed by an Indian tribe,
executive, legislative and judicial, and all offices, bodies, and
tribunals by and through which they are executed. . . ."
25 U.S.C.§ 1301(2).
[
Footnote 9]
In
Fisher, we held that a state court did not have
jurisdiction over an adoption proceeding in which all parties were
members of all Indian tribe and residents of the reservation.
Rejecting the mother's argument that denying her access to the
state courts constituted an impermissible racial discrimination, we
reasoned:
"The exclusive jurisdiction of the Tribal Court does not derive
from the race of the plaintiff, but rather from the quasi-sovereign
status of the Northern Cheyenne Tribe under federal law. . . .
[E]ven if a jurisdictional holding occasionally results in denying
an Indian plaintiff a forum to which a non-Indian has access, such
disparate treatment of the Indian is justified because it is
intended to benefit the class of which he is a member by furthering
the congressional policy of Indian self-government."
424 U.S. at
424 U. S.
390-391.
In
Williams v. Lee, we held that a non-Indian merchant
could not invoke the jurisdiction of a state court to collect a
debt owed by a reservation Indian and arising out of the merchant's
activities on the reservation, but instead must seek relief
exclusively through tribal remedies.
[
Footnote 10]
"First, is the plaintiff 'one of the class for whose
especial benefit the statute was enacted,'
Texas &
Pacific R. Co. v. Rigsby, 241 U. S. 33,
241 U. S.
39 (1916) (emphasis supplied) -- that is, does the
statute create a federal right in favor of the plaintiff? Second,
is there any indication of legislative intent, explicit or
implicit, either to create such a remedy or to deny one?
See,
e.g., National Railroad Passenger Corp. v. National Assn. of
Railroad Passengers, 414 U. S. 453,
414 U. S.
458, 460 (1974) (
Amtrak). Third, is it
consistent with the underlying purposes of the legislative scheme
to imply such a remedy for the plaintiff?
See, e.g., Amtrak,
supra; Securities Investor Protection Corp. v. Barbour,
421 U. S.
412,
421 U. S. 423 (1975);
Calhoon v. Harvey, 379 U. S. 134 (1964). And
finally, is the cause of action one traditionally relegated to
state [or tribal] law, in an area basically the concern of the
States [or tribes], so that it would be inappropriate to infer a
cause of action based solely on federal law?"
Cort v. Ash, 422 U.S. at
422 U. S. 78.
See generally Note, Implication of Civil Remedies Under
the Indian Civil Rights Act, 75 Mich.L.Rev. 210 (1976).
[
Footnote 11]
One month before passage of the ICRA, President Johnson had
urged its enactment as part of a legislative and administrative
program with the overall goal of furthering "self-determination,"
"self-help," and "self-development" of Indian tribes.
See
114 Cong.Rec. 5518, 5520 (1968).
[
Footnote 12]
Exploratory hearings which led to the ICRA commenced in 1961
before the Subcommittee on Constitutional Rights of the Senate
Judiciary Committee. In 1964, Senator Ervin, Chairman of the
Subcommittee, introduced S. 3041-3048, 88th Cong., 2d Sess., on
which no hearings were had. The bills were reintroduced in the 89th
Congress as S. 961-968 and were the subject of extensive hearings
by the Subcommittee. Hearings on S. 961-968 and S.J.Res. 40 before
the Subcommittee on Constitutional Rights of the Senate Committee
on the Judiciary, 89th Cong., 1st Sess. (1965) (hereinafter cited
as 1965 Hearings).
S. 961 would have extended to tribal governments all
constitutional provisions applicable to the Federal Government.
After criticism of this proposal at the hearings, Congress instead
adopted the approach found in a substitute bill submitted by the
Interior Department, reprinted in 1965 Hearings 318, which, with
some changes in wording, was enacted into law as 25 U.S.C. §§
1302-1303.
See also n
1,
supra.
[
Footnote 13]
See, e.g., Subcommittee on Constitutional Rights of the
Senate Committee on the Judiciary, Constitutional Rights of the
American Indian: Summary Report of Hearings and Investigations
Pursuant to S.Res.194, 89th Cong., 2d Sess., 8-11, 25 (Comm.Print
1966); 1965 Hearings 17, 21, 50 (statements of Solicitor of the
Dept. of Interior);
id. at 65 (statement of Arthur
Lazarus, Jr., General Counsel for the Association of American
Indian Affairs).
[
Footnote 14]
The provisions of § 1302, set forth fully in
n 8,
supra, differ in language and in
substance in many other respects from those contained in the
constitutional provisions on which they were modeled. The
provisions of the Second and Third Amendments, in addition to those
of the Seventh Amendment, were omitted entirely. The provision here
at issue, § 1302(8), differs from the constitutional Equal
Protection Clause in that it guarantees "the equal protection of
its [the tribe's] laws," rather than of "the laws."
Moreover, § 1302(7), which prohibits cruel or unusual punishments
and excessive bails, sets an absolute limit of six months'
imprisonment and a $500 fine on penalties which a tribe may impose.
Finally, while most of the guarantees of the Fifth Amendment were
extended to tribal actions, it is interesting to note that § 1302
does not require tribal criminal prosecutions to be initiated by
grand jury indictment, which was the requirement of the Fifth
Amendment specifically at issue and found inapplicable to tribes in
Talton v. Mayes, discussed
supra at
436 U. S.
56.
[
Footnote 15]
See, e.g., 114 Cong.Rec. 9596 (1968) (remarks of Rep.
Meeds); Hearings on H.R. 15419 before the Subcommittee on Indian
Affairs of the .House Committee on Interior Insular Affairs, 90th
Cong., 2d Sess., 108 (1968) (hereinafter cited as House Hearings).
See also 1965 Hearings 198 (remarks of Executive Director,
National Congress of American Indians).
[
Footnote 16]
In 25 U.S.C. § 1323(b), Congress expressly repealed § 7 of the
Act of Aug. 15, 1953, 67 Stat. 590, which had authorized States to
assume criminal and civil jurisdiction over reservations without
tribal consent.
[
Footnote 17]
Title II of the ICRA provides,
inter alia, "for the
establishing of educational classes for the training of judges of
courts of Indian offenses." 25 U.S.C. § 1311(4). Courts of Indian
offenses were created by the Federal Bureau of Indian Affairs to
administer criminal justice for those tribes lacking their own
criminal courts.
See generally W. Hagan, Indian Police and
Judges 10125 (1966).
[
Footnote 18]
Under 25 U.S.C. § 81, the Secretary of the Interior and the
Commissioner of Indian Affairs are generally required to approve
any contract made between a tribe and an attorney. At the
exploratory hearings,
see n 12,
supra, it became apparent that the
Interior Department had engaged in inordinate delays in approving
such contracts, and had thereby hindered the tribes in defending
and asserting their legal rights.
See, e.g., Hearings
before the Subcommittee on Constitutional Rights of the Senate
Committee on the Judiciary pursuant to S.Res. 53, 87th Cong., 1st
Sess, 211 (1961) (hereinafter cited as 1961 Hearings);
id.
at 290, 341, 410. Title V of the ICRA, 25 U.S. C § 1331, provides
that the Department must act on applications for approval of
attorney contracts within 90 days of their submission or the
application will be deemed to have been granted.
[
Footnote 19]
The cost of civil litigation in federal district courts, in many
instances located far from the reservations, doubtless exceeds that
in most tribal forums.
See generally 1 American Indian
Policy Review Commission, Final Report 160-166 (1977); M. Price,
Law and the American Indian 154 160 (1973). And as became apparent
in congressional hearings on the ICRA, many of the poorer tribes
with limited resources and income could ill afford to shoulder the
burdens of defending federal lawsuits.
See, e.g., 1965
Hearings 131, 157; Summary Report 12; House Hearings 69 (remarks of
the Governor of the San Felipe Pueblo).
[
Footnote 20]
Prior to passage of the ICRA, Congress made detailed inquiries
into the extent to which tribal constitutions incorporated "Bill of
Rights" guarantees, and the degree to which the tribal provisions
differed from those found in the Constitution.
See, e.g.,
1961 Hearings 121, 166, 359; Hearings before the Subcommittee on
Constitutional Rights of the Senate Committee on the Judiciary
pursuant to S.Res. 58, 88th Gong., 1st Sess., 823 (1963). Both
Senator Ervin, the ICRA's chief sponsor, and President Johnson, in
urging passage of the Act, explained the need for Title I on the
ground that few tribal constitutions included provisions of the
Bill of Rights.
See House Hearings 131 (remarks of Sen.
Ervin); 114 Cong.Rec. 5520 (1968) (message from the President).
[
Footnote 21]
There are 287 tribal governments in operation in the United
States, of which 117 had operating tribal courts in 1976. 1
American Indian Policy Review Commission,
supra, n19, at 5, 163. In 1973, these
courts handled approximately 70,000 cases.
Id. at 163-164.
Judgments of tribal courts, as to matters properly within their
jurisdiction, have been regarded in some circumstances as entitled
to full faith and credit in other courts.
See, e.g.,
59 U. S. Mackey v.
Coxe, 18 How. 100 (1856);
Standley v. Roberts, 59 F.
836, 845 (CA8 1894),
appeal dismissed, 17 S. Ct. 999, 41
L. Ed. 1177 (1896).
[
Footnote 22]
By the terms of its Constitution, adopted in 1935 and approved
by the Secretary of the Interior in accordance with the Indian
Reorganization Act of 1934, 25 U.S.C. § 476, judicial authority in
the Santa Clara Pueblo is vested in its tribal council.
Many tribal constitutions adopted pursuant to 25 U.S.C. § 476,
though not that of the Santa Clara Pueblo, include provisions
requiring that tribal ordinances not be given effect until the
Department of Interior gives its approval.
See 1 American
Indian Policy Review Commission,
supra, n19, at 187-188; 1961 Hearings 95. In these
instances, persons aggrieved by tribal laws may, in addition to
pursuing tribal remedies, be able to seek relief from the
Department of the Interior.
[
Footnote 23]
See n 12,
supra. Although extensive hearings on the ICRA were held
in the Senate,
see ibid., House consideration was
extremely abbreviated.
See House Hearings,
supra;
114 Cong.Rec. 9614-9615 (1968) (remarks of Rep. Aspinall).
[
Footnote 24]
S. 962, 89th Cong., 1st Sess. (1965), reprinted in 1965 Hearings
6-7.
See n 12,
supra.
[
Footnote 25]
S. 963, 89th Cong., 1st Sess. (1965).
See n 12,
supra.
[
Footnote 26]
The Interior Department substitute, reprinted in 1965 Hearings
318, provided in relevant part:
"Any action, other than a criminal action, taken by an Indian
tribal government which deprives an American Indian of a right or
freedom established and protected by this Act may be reviewed by
the Secretary of the Interior upon his own motion or upon the
request of said Indian. If the Secretary determines that said
Indian has been deprived of any such right or freedom, he shall
require the Indian tribal government to take such corrective action
as he deems necessary. Any final decision of the Secretary may be
reviewed by the United States district court in the district in
which the action arose and such court shall have jurisdiction
thereof."
In urging Congress to adopt this proposal, the Solicitor of
Interior specifically suggested that "Congress has the power to
give to the courts the jurisdiction that they would require to
review the actions of an Indian tribal court," and that the
substitute bill which the Department proposed "would actually
confer on the district courts the jurisdiction they require to
consider these problems."
Id. at 23-24. Congress' failure
to adopt this provision is noteworthy particularly because it did
adopt the other portion of the Interior substitute bill, which led
to the current version of §§ 1302 and 1303.
See n 12,
supra.
[
Footnote 27]
Respondents rely most heavily on a rambling passage in the
Report discussing
Talton v. Mayes and its progeny,
see n 7,
supra, some of which arose in a civil context. S.Rep. No.
841, at 8-11. Although there is some language suggesting that
Congress was concerned about the unavailability of relief in
federal court, the Report nowhere states that Title I would be
enforceable in a cause of action for declaratory or injunctive
relief, and the cited passage is fully consistent with the
conclusion that Congress intended only to modify the substance of
the law applicable to Indian tribes, and to allow enforcement in
federal court through habeas corpus. The Report itself
characterized the import of its discussion as follows:
"These cases illustrate the continued denial of specific
constitutional guarantees to litigants in tribal court proceedings,
on the ground that the tribal courts are quasi-sovereign entities
to which general provisions in the Constitution do not apply."
Id. at 10.
[
Footnote 28]
The Report states:
"The purpose of title I is to protect individual Indians from
arbitrary and unjust actions by tribal governments. This is
accomplished by placing certain limitations on an Indian tribe in
the exercise of its powers of self-government."
Id. at 6. It explains further that
"[i]t is hoped that title II [25 U.S.C. § 1311], requiring the
Secretary of the Interior to recommend a model code [to govern the
administration of justice] for all Indian tribes, will implement
the effect of title I."
Ibid. (Although § 1311 by its terms refers only to
courts of Indian offenses,
see n 17,
supra, the Senate Report makes clear
that the code is intended to serve as a model for use in all tribal
courts. S.Rep. No. 841,
supra, at 6, 11.) Thus, it appears
that the Committee viewed § 1302 as enforceable only on habeas
corpus and in tribal forums.
[
Footnote 29]
Senator Ervin described the model code provisions of Title II,
see n 28,
supra, as "the proper vehicle by which the objectives" of
Title I should be achieved. 113 Cong.Rec. 13475 (1967). And
Congressman Reifel, one of the ICRA's chief supporters in the
House, explained that "by providing for a writ of habeas corpus
from the Federal court, the bill would assure effective enforcement
of these fundamental rights." 114 Cong.Rec. 9553 (1968).
[
Footnote 30]
Only a few tribes had an opportunity to comment on the ICRA in
its final form, since the House held only one day of hearings on
the legislation.
See n 23,
supra. The Pueblos of New Mexico,
testifying in opposition to the provisions of Title I, argued that
the habeas corpus provision of § 1303
"opens an avenue through which Federal courts, lacking knowledge
of our traditional values, customs, and laws, could review and
offset the decisions of our tribal councils."
House Hearings 37. It is inconceivable that, had they understood
the bill impliedly to authorize other actions, they would have
remained silent, as they did, concerning this possibility. It would
hardly be consistent with "[t]he overriding duty of our Federal
Government to deal fairly with Indians,"
Morton v. Ruiz,
415 U. S. 199,
415 U. S. 236
(1974), lightly to imply a cause of action on which the tribes had
no prior opportunity to present their views.
[
Footnote 31]
See generally Burnett, An Historical Analysis of the
1968 "Indian Civil Rights" Act, 9 Harv.J.Legis. 557, 574-602, 603
(1972).
[
Footnote 32]
A tribe's right to define its own membership for tribal purposes
has long been recognized as central to its existence as an
independent political community.
See Roff v. Burney,
168 U. S. 218
(1897);
Cherokee Intermarriage Cases, 203 U. S.
76 (1906). Given the often vast gulf between tribal
traditions and those with which federal courts are more intimately
familiar, the judiciary should not rush to create causes of action
that would intrude on these delicate matters.
MR. JUSTICE WHITE, dissenting.
The declared purpose of the Indian Civil Rights Act of 1968
(ICRA or Act), 25 U.S.C. §§ 1301-1341, is "to insure that the
American Indian is afforded the broad constitutional rights secured
to other Americans." S.Rep. No. 841, 90th
Page 436 U. S. 73
Cong., 1st Sess.; 6 (1967) (hereinafter Senate Report). The
Court today, by denying a federal forum to Indians who allege that
their rights under the ICRA have been denied by their tribes,
substantially undermines the goal of the ICRA and in particular
frustrates Title I's [
Footnote 2/1]
purpose of "protect[ing] individual Indians from arbitrary and
unjust actions of tribal governments."
Ibid. Because I
believe that implicit within Title I's declaration of
constitutional rights is the authorization for an individual Indian
to bring a civil action in federal court against tribal officials
[
Footnote 2/2] for declaratory and
injunctive relief to enforce those provisions, I dissent.
Under 28 U.S.C. § 1343(4), federal district courts have
jurisdiction over
"any civil action authorized by law to be commenced by any
person . . . [t]o recover damages or to secure equitable or other
relief under any Act of Congress providing for the protection of
civil rights, including the right to vote."
Because the ICRA is unquestionably a federal Act "providing for
the protection of civil rights," the necessary inquiry is whether
the Act authorizes the commencement of a civil action for such
relief.
The Court noted in
Bell v. Hood, 327 U.
S. 678,
327 U. S. 684
(1946) (footnote omitted), that,
"where federally protected rights have been invaded, it has been
the rule from the beginning that courts will be alert to adjust
their remedies so as to grant the necessary relief."
The fact that a statute is merely declarative and does not
expressly provide for a cause of action to enforce its terms "does
not, of course, prevent a federal court from fashioning an
effective equitable remedy,"
Page 436 U. S. 74
Jones v. Alfred H. Mayer Co., 392 U.
S. 409,
392 U. S. 414
n. 13 (1968), for "[t]he existence of a statutory right implies the
existence of all necessary and appropriate remedies."
Sullivan
v. Little Hunting Park, Inc., 396 U.
S. 229,
396 U. S. 239
(1969). We have previously identified the factors that are relevant
in determining whether a private remedy is implicit in a statute
not expressly providing one: whether the plaintiff is one of the
class for whose especial benefit the statute was enacted; whether
there is any indication of legislative intent either to create a
remedy or to deny one; whether such a remedy is consistent with the
underlying purposes of the statute; and whether the cause of action
is one traditionally relegated to state law.
Cort v. Ash,
422 U. S. 66,
422 U. S. 78
(1975). Application of these factors in the present context
indicates that a private cause of action under Title I of the ICRA
should be inferred.
As the majority readily concedes, "respondents, American Indians
living on the Santa Clara reservation, are among the class for
whose especial benefit this legislation was enacted."
Ante
at
436 U. S. 61. In
spite of this recognition of the congressional intent to provide
these particular respondents with the guarantee of equal protection
of the laws, the Court denies them access to the federal courts to
enforce this right because it concludes that Congress intended
habeas corpus to be the exclusive remedy under Title I. My reading
of the statute and the legislative history convinces me that
Congress did not intend to deny a private cause of action to
enforce the rights granted under § 1302.
The ICRA itself gives no indication that the constitutional
rights it extends to American Indians are to be enforced only by
means of federal habeas corpus actions. On the contrary, since
several of the specified rights are most frequently invoked in
noncustodial situations, [
Footnote
2/3] the natural assumption is
Page 436 U. S. 75
that some remedy other than habeas corpus must be contemplated.
This assumption is not dispelled by the fact that the Congress
chose to enumerate specifically the rights granted under § 1302,
rather than to state broadly, as was originally proposed, that
"any Indian tribe in exercising its powers of local
self-government shall be subject to the same limitations and
restraints as those which are imposed on the Government of the
United States by the United States Constitution."
S. 961, 89th Cong., 1st Sess. (1965). The legislative history
reflects that the decision "to indicate in more specific terms the
constitutional protections the American Indian possesses in
relation to his tribe." was made in recognition of the
"peculiarities of the Indian's economic and social condition, his
customs, his beliefs, and his attitudes. . . ." Subcommittee on
Constitutional Rights of the Senate Committee on the Judiciary,
Constitutional Rights of the American Indian: Summary Report of
Hearings and Investigations pursuant to S.Res.194, 89th Cong., 2d
Sess., 25, 9 (Comm.Print 1966) (hereinafter Summary Report). While
I believe that the uniqueness of the Indian culture must be taken
into consideration in applying the constitutional rights granted in
§ 1302, I do not think that it requires insulation of official
tribal actions from federal court scrutiny. Nor do I find any
indication that Congress so intended.
The inferences that the majority draws from various changes
Congress made in the originally proposed legislation are, to my
mind, unsupported by the legislative history. The first change the
Court points to is the substitution of a habeas corpus provision
for S. 962's provision of
de novo federal court review of
tribal criminal proceedings.
See ante at
436 U. S. 67.
This change, restricted in its concern to the criminal context, is
of limited relevance to the question whether Congress intended a
private cause of action to enforce rights arising in a civil
context. Moreover, the reasons this change was made are not
inconsistent with the recognition of such a cause of action.
Page 436 U. S. 76
The Summary Report explains that the change in S. 962 was made
only because of displeasure with the degree of intrusion permitted
by the original provision:
"No one appearing before the subcommittee or submitting
testimony for the subcommittee's consideration opposed the
provision of some type of appeal from the decisions of tribal
courts. Criticism of S. 962, however, was directed at the bill's
use of a trial
de novo in a U.S. district court as the
appropriate means of securing appellate review. . . ."
"
* * * *"
"There was considerable support for the suggestion that the
district court, instead of reviewing tribal court decisions on a
de novo basis, be authorized only to decide whether the
accused was deprived of a constitutional right. If no deprivation
were found, the tribal court decision would stand. If, on the other
hand, the district court determined that an accused had suffered a
denial of his rights at the hands of the tribal court, the case
would be remanded with instructions for dismissal or retrial, as
the district court might decide."
Summary Report 12-13 (footnote omitted).
The degree of intrusion permitted by a private cause of action
to enforce the civil provisions of § 1302 would be no greater than
that permitted in a habeas corpus proceeding. The federal district
court's duty would be limited to determining whether the challenged
tribal action violated one of the enumerated rights. If found to be
in violation, the action would be invalidated; if not, it would be
allowed to stand. In no event would the court be authorized, as in
a
de novo review proceeding, to substitute its judgment
concerning the wisdom of the action taken for that of the tribal
authorities.
Nor am I persuaded that Congress, by rejecting various proposals
for administrative review of alleged violations of Indian
Page 436 U. S. 77
rights, indicated its rejection of federal judicial review of
such violations. As the majority notes, the original version of the
Act provided for investigation by the Attorney General of
"any written complaint filed with him by any Indian . . .
alleging that such Indian has been deprived of a right conferred
upon citizens of the United States by the laws and Constitution of
the United States."
S. 963, 89th Cong., 1st Sess. (1965). The bill would have
authorized the Attorney General to bring whatever action he deemed
appropriate to vindicate such right. Although it is true that this
provision was eliminated from the final version of the ICRA, the
inference the majority seeks to draw from this fact is
unwarranted.
It should first be noted that the focus of S. 963 was, in large
part, aimed at nontribal deprivations of Indian rights. In
explaining the need for the bill, the Subcommittee stated that it
had received complaints of deprivations of Indians' constitutional
rights in the following contexts, only two of which concern tribal
actions:
"[I]llegal detention of reservation Indians by State and tribal
officials; arbitrary decisionmaking by the Bureau of Indian
Affairs; denial of various State welfare services to Indians living
off the reservations; discrimination by government officials in
health services; mistreatment and brutality against Indians by
State and tribal law enforcement officers; and job discrimination
by Federal and State agencies and private businesses."
Hearings on S. 961-968 and S.J.Res 40 before the Subcommittee on
Constitutional Rights of the Senate Committee on the Judiciary,
89th Cong., 1st Sess., 8 (1965) (hereinafter 1965 Hearings).
See also id. at 86 (testimony of Arthur Lazarus, Jr.,
General Counsel for the Association on American Indian Affairs,
Inc.: "It is my understanding . . . that the complaints to be filed
with the Attorney General are generally to be off-reservation
violations of rights along the lines of the provisions in the Civil
Rights Act"). Given this difference in focus, the elimination of
this proposal has little relevance to the issue before us.
Page 436 U. S. 78
Furthermore, the reasons for the proposal's deletion are not as
clear as the majority seems to indicate. While two witnesses did
express their fears that the proposal would disrupt tribal
governments, many others expressed the view that the proposals gave
the Attorney General no more authority than he already possessed.
Id. at 92, 104, 227, 319. The Acting Secretary of the
Interior was among those who thought that this additional
authorization was not needed by the Attorney General because the
Department of the Interior already routinely referred complaints of
Indian rights violations to him for the commencement of appropriate
litigation.
Id. at 319. The failure of Congress to adopt
the Department of the Interior's substitute provision provides even
less support for the view that Congress opposed a private cause of
action. This proposal would have allowed the Secretary of the
Interior to review
"[a]ny action, other than a criminal action, taken by an Indian
tribal government which deprives any American Indian of a right or
freedom established and protected by this Act . . ."
and to take "such corrective action" as he deemed necessary.
Id. at 318. It was proposed in tandem with a provision
that would have allowed an Indian to appeal from a criminal
conviction in a tribal court to the Secretary, who would then have
been authorized to affirm, modify, or reverse the tribal court's
decision. Most of the discussion about this joint proposal focused
on the review of criminal proceedings, and several witnesses
expressed objection to it because it improperly "mixed" "the
judicial process . . . with the executive process."
Id. at
96.
See also id. at 294. Senator Ervin himself stated that
he had
"difficulty reconciling [his] ideas of the nature of the
judicial process and the notion of taking an appeal in what is
supposed to be a judicial proceeding to the executive branch of the
Government."
Id. at 225. While the discussion of the civil part of
the proposal was limited, it may be assumed that Congress was
equally unreceptive to the
Page 436 U. S. 79
idea of the Executive Branch's taking "corrective actions" with
regard to noncriminal actions of tribal governments.
In sum, then, I find no positive indication in the legislative
history that Congress opposed a private cause of action to enforce
the rights extended to Indians under § 1302. [
Footnote 2/4] The absence of any express approval of
such a cause of action, of course, does not prohibit its inference,
for, as we stated in
Cort:
"[I]n situations in which it is clear that federal law has
granted a class of persons certain rights, it is not necessary to
show an intention to create a private cause of action, although an
explicit purpose to deny such cause of action would be
controlling."
422 U.S. at
422 U. S. 82
(footnote omitted).
The most important consideration, of course, is whether a
private cause of action would be consistent with the underlying
Page 436 U. S. 80
purposes of the Act. As noted at the outset, the Senate Report
states that the purpose of the ICRA "is to insure that the American
Indian is afforded the broad constitutional rights secured to other
Americans." Senate Report 6. Not only is a private cause of action
consistent with that purpose, it is necessary for its achievement.
The legislative history indicates that Congress was concerned, not
only about the Indian's lack of substantive rights, but also about
the lack of remedies to enforce whatever rights the Indian might
have. During its consideration of this legislation, the Senate
Subcommittee pointed out that,
"[t]hough protected against abridgment of his rights by State or
Federal action, the individual Indian is . . . without redress
against his tribal authorities."
Summary Report 3. It is clear that the Subcommittee's concern
was not limited to the criminal context, for it explained:
"It is not only in the operation of tribal courts that Indians
enjoy something other than full benefit of the Bill of Rights. For
example, a Navajo tribal council ordinance prohibiting the use of
peyote resulted in an alleged abridgment of religious freedom when
applied to members of the Native American Church, an Indian sect
which uses the cactus plant in connection with its worship
services."
"The opinion of the U.S. Court of Appeals for the 10th Circuit,
in dismissing an action of the Native American Church against the
Navajo tribal council, is instructive in pointing up the lack of
remedies available to the Indian in resolving his differences with
tribal officials."
Id. at 3-4 (footnotes omitted). [
Footnote 2/5]
Page 436 U. S. 81
It was "[t]o remedy these various situations, and thereby to
safeguard the rights of Indian citizens . . . ," that the
legislation resulting in the ICRA was proposed.
Id. at
5.
Several witnesses appearing before the Senate Subcommittee
testified concerning deprivations of their rights by tribal
authorities and their inability to gain relief. Mr. Frank Takes
Gun, President of the Native American Church, for example, stated
that
"the Indian is without an effective means to enforce whatever
constitutional rights he may have in tribal proceedings instituted
to deprive him of liberty or property. While I suppose that
abstractedly [
sic] we might be said to enjoy [certain]
rights . . . , the blunt fact is that, unless the tribal court
elects to confer that right upon us, we have no way of securing
it."
1965 Hearings 164. Miss Emily Schuler, who accompanied a former
Governor of the Isleta Pueblo to the hearings, echoed these
concerns. She complained that "[t]he people get governors and
sometimes they get power hungry, and then the people have no rights
at all," to which Senator Ervin responded:
"'Power hungry' is a pretty good shorthand statement to show why
the people of the United States drew up a Constitution. They wanted
to compel their rulers to
Page 436 U. S. 82
stay within the bounds of that Constitution and not let that
hunger for power carry them outside it."
Id. at 264.
Given Congress' concern about the deprivations of Indian rights
by tribal authorities, I cannot believe, as does the majority, that
it desired the enforcement of these rights to be left up to the
very tribal authorities alleged to have violated them. In the case
of the Santa Clara Pueblo, for example, both legislative and
judicial powers are vested in the same body, the Pueblo Council.
See App. 3-5. To suggest that this tribal body is the
"appropriate" forum for the adjudication of alleged violations of
the ICRA is to ignore both reality and Congress' desire to provide
a means of redress to Indians aggrieved by their tribal leaders.
[
Footnote 2/6]
Although the Senate Report's statement of the purpose of the
ICRA refers only to the granting of constitutional rights to the
Indians, I agree with the majority that the legislative history
demonstrates that Congress was also concerned with furthering
Indian self-government. I do not agree, however, that this concern
on the part of Congress precludes our recognition of a federal
cause of action to enforce the terms of the Act. The major
intrusion upon the tribe's right to govern itself occurred when
Congress enacted the ICRA and mandated that the tribe "in
exercising powers of self-government" observe the rights enumerated
in § 1302. The extension of constitutional rights to individual
citizens is intended to intrude upon the authority of government.
And once it has been decided that an individual does possess
certain rights
vis-a-vis his government, it necessarily
follows that he has some way to enforce those rights. Although
creating a federal cause of action may "constitut[e] an
interference with tribal autonomy and self-government beyond that
created by the change in substantive law itself,"
ante at
436 U.S. 59, in my mind, it
is a further step that must be taken; otherwise, the change in the
law may be meaningless.
The final consideration suggested in
Cort is the
appropriateness of a federal forum to vindicate the right in
question. As even the majority acknowledges, "we have frequently
recognized the propriety of inferring a federal cause of action for
the enforcement of civil rights. . . ."
Ante at
436 U. S. 61.
For the reasons set out above, I would make no exception here.
Because I believe that respondents stated a cause of action over
which the federal courts have jurisdiction, I would proceed to the
merits of their claim. Accordingly, I dissent from the opinion of
the Court.
[
Footnote 2/1]
25 U.S.C. §§ 1301-1303.
[
Footnote 2/2]
Because the ICRA is silent on the question, I agree with the
Court that the Act does not constitute waiver of the Pueblo's
sovereign immunity. The relief respondents seek, however, is
available against petitioner Lucario Padilla, the Governor of the
Pueblo. Under the Santa Clara Constitution, the Governor is charged
with the duty of enforcing the Pueblo's laws. App. 5.
[
Footnote 2/3]
For example, habeas corpus relief is unlikely to be available to
redress violations of freedom of speech, freedom of the press, free
exercise of religion, or just compensation for the taking of
property.
[
Footnote 2/4]
References in the legislative history to the role of Title II's
model code in effectuating the purposes of Title I do not indicate
that Congress rejected the possibility of a federal cause of action
under § 1302. The wording of § 1311, which directs the Secretary of
the Interior to recommend a model code, demonstrates that, in
enacting Title II, Congress was primarily concerned with criminal
proceedings. Thus it requires the code to include
"provisions which will (1) assure that any individual being
tried for an offense by a court of Indian offenses shall have the
same rights, privileges, and immunities under the United States
Constitution as would be guaranteed any citizen of the United
States being tried in a Federal court for any similar offense, (2)
assure that any individual being tried for an offense by a court of
Indian offenses will be advised and made aware of his rights under
the United States Constitution, and under any tribal constitution
applicable to such individual. . . ."
The remaining required provisions concern the qualifications for
office of judges of courts of Indian offenses and educational
classes for the training of such judges. While the enactment of
Title II shows Congress' desire to implement the provisions of §
1302 concerning rights of criminal defendants and to upgrade the
quality of tribal judicial proceedings, it gives no indication that
Congress decided to deny a federal cause of action to review tribal
actions arising in a noncriminal context.
[
Footnote 2/5]
The opinion to which the Subcommittee was referring was
Native American Church v. Navajo Tribal Council, 272 F.2d
131 (CA10 1959), in which the court dismissed for lack of federal
jurisdiction an action challenging a Navajo tribal ordinance making
it a criminal offense "to introduce into the Navajo country, sell,
use or have in possession within the Navajo country, the bean known
as peyote. . . ."
Id. at 132. It was contended that the
ordinance violated plaintiffs' right to the free exercise of
religion. Because the court concluded that the First Amendment was
not applicable to the tribe, it held that the federal courts lacked
jurisdiction, "even though [the tribal laws or regulations] may
have an impact to some extent on forms of religious worship."
Id. at 135.
The Senate Report also made note of this decision in what the
majority terms a "rambling passage."
Ante at
436 U. S. 69 n.
27. In this passage, the Committee reviewed various federal
decisions relating to the question "whether a tribal Indian can
successfully challenge on constitutional grounds specific acts or
practices of the Indian tribe." Senate Report 9. With only one
exception, these decisions held that federal courts lacked
jurisdiction to review alleged constitutional violations by tribal
officials because the provisions of the Bill of Rights were not
binding on the tribes. This section of the Senate Report which is
included under the heading "Need for Legislation" indicates
Congress' concern over the Indian's lack of remedies for tribal
constitutional violations.
[
Footnote 2/6]
Testimony before the Subcommittee indicated that the mere
provision of constitutional rights to the tribes did not
necessarily guarantee that those rights would be observed. Mr.
Lawrence Jaramillo, a former Governor of the Isleta Pueblo,
testified that, despite the tribal constitution's guarantee of
freedom of religion, the present tribal Governor had attempted to
"alter certain religious procedures of the Catholic priest who
resides on the reservation." 1965 Hearings 261, 264. Mr. Jaramillo
stated that the Governor "has been making his own laws and he has
been making his own decisions and he has been making his own court
rulings," and he implored the Subcommittee:
"Honorable Senator Ervin, we ask you to see if we can have any
protection on these constitutional rights. We do not want to give
jurisdiction to the State. We want to keep it in Federal
jurisdiction. But we are asking this. We know if we are not given
justice that we would like to appeal a case to the Federal
court."
Id. at 264.