Wednesday, April 30, 2008

Additional reference to Nero vs Cherokee Nation

No. 91-3561; United States Court of Appeals,Eighth Circuit (1993)

Because the tribe's specific right of self-government would be affected, the general rule of applicability does not apply. Accord Cherokee Nation, 871 F.2d at 938 ("ADEA is not applicable because its enforcement would directly interfere with the Cherokee Nation's treaty-protected right of self-government").4 See also Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457, 1463 (10th Cir.1989) (plaintiffs could not assert claims under 42 U.S.C. §§ 1981 and 2000d because they would affect the tribe's right to self-governance in a purely internal matter); Donovan v. Navajo Forest Products Indus., 692 F.2d 709, 712 (10th Cir.1982) (OSHA held inapplicable to tribe in part because enforcement "would dilute the principles of tribal sovereignty and self-government recognized in the treaty"); but contra Smart v. State Farm Ins., 868 F.2d 929, 935 (7th Cir.1989) (the "argument that ERISA will interfere with the tribe's right of self-government is overbroad"); Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116 (9th Cir.1985) (right of self-government is too broad to defeat applicability of OSHA). Therefore, we find that the ADEA, as a statute of general applicability, does not apply to the Band absent a clear and plain congressional intent.

(If the Cherokee Nation has a treaty protected right of self-government and treaty rights as to the US government having a trust responsibility to the Cherokee Nation to provide education and health care - seems the Congressional Black Caucus is in violation of other treaty obligations when they seek through legislation to deny these benefits to the Cherokee Nation-seems they're asking the Cherokee Nation to do what they themselves are not doing)

Clear and plain congressional intent:

In determining whether such clear and plain intent exists, we are guided by United States v. Dion, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986).

Congress' 1962 action, we conclude, reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle, except pursuant to permit, is inconsistent with the need to preserve those species. We therefore read the statute as having abrogated that treaty right.

(interesting case - this court held that congress abrogated a treaty right with later legislation - another solution to the current situation rather than terminating the Cherokee Nation - just pass legislation recognizing the Freedmen as their own Indian Tribe and then they can deal directly with the US government or DOI - why hurt a lot, when you can help a few? oh, that's too simple, my mistake again, that might resolve the situation. Why resolve a long standing festering problem when you can show you have *the power* This is never going to get resolved without letting the court make a decision - this same situation will just rear it's ugly head again and again, so why not just resolve it?)

Cases in the DC Courts Memo and Order

A look at the Court's order in Vann vs DOI

1. The order cites this as Red Bird vs United States
U.S. Supreme Court
Cherokee Intermarriage Cases, 203 U.S. 76 (1906)
Cherokee Intermarriage Cases
Nos. 125, 126, 127 and 128
Argued February 19, 20, 1906
Decided November 5, 1906
203 U.S. 76


Judgment of the Court of Claims affirmed to effect that all those white persons who married Cherokee Indians by blood subsequently to the enactment of the Cherokee law, which became effective November 1, 1875, acquired no rights of soil or interest in the lands and vested funds of the Nation as citizens, and that those white persons who married Cherokee citizens by blood prior to said date did acquire rights as citizens in the lands belonging to the Nation, and held and owned as national lands, except such of them as lost their rights as Cherokee citizens by abandoning their Cherokee wives or by marrying other white or non tribal men or women having no rights of citizenship by blood in said Cherokee Nation.

The rule that the language of a statute is to be interpreted in the light of the particular matter in hand and the object sought to be accomplished as manifested by other parts of the act, and that the words used may be qualified by their surroundings and connections, applied to the construction of the acts of Congress relating to citizenship in, and distribution of tribal property of, the Cherokee Nation.

It is a settled rule of construction that, as between the whites and the Indians, the laws are to be construed most favorably to the latter.

40 Ct.Cl. 411 affirmed.

2. Allen vs Cherokee Nation Council

(It is the amendment to the Cherokee Constitution which is still in limbo at the BIA and which was in response to this Cherokee Case interpreting the Cherokee Constitution - once again the Cherokee people are merely refining it's membership requirements which has been upheld as within their inherent sovereign powers.)

(there is nothing in either of these cases to show that the Cherokee Nation should not be allowed to determine it's own membership requirements; the first has to do with white intermarriages prior to 1875 and after that time period and the second has to do with the Cherokee Constitution and it's interpretation by the Cherokee courts)

(Since the Freedmen are on the Dawes Roll as non Cherokee, no blood quantum listed - then it seems the supporting documentation to those rolls would necessarily be conclusive records of what the Freedmen Roll was based on including whether or not there was any blood quantum - otherwise this roll will be interpreted outside it's historical context - these records are now at least 100 years old)

3. Wheeler vs DOI
United States Court of Appeals, Tenth Circuit. - 811 F.2d 549
Feb. 13, 1987

Conversely, the Cherokee Nation has a system for interpreting tribal law, and, when a tribal forum is available, courts have specifically held that the aggrieved party must seek relief in that forum. Learned v. Cheyenne Arapaho Tribe, 596 F.Supp. 537 (W.D. Okla. 1984); Ike v. United States Dept. of Interior, 9 Indian L. Rep. (Am. Indian Law. Training Program) 3043, No. CV-R-81-293-ECR (D. Nev. Mar. 10, 1982). Furthermore, in Goodface, 708 F.2d at 335, the court, in an election dispute, ordered the Department to recognize the newly elected tribal government, but only until the tribal forum resolved the election dispute. Since a tribal forum existed, neither the district court nor the Department had power to resolve the election dispute. Goodface, 708 F.2d at 339. Therefore, without deciding whether the Department should become involved when a tribal forum is not available, we hold that when a tribal forum exists for resolving a tribal election dispute, the Department must respect the tribe's right to self-government and, thus, has no authority to interfere.*

Indian tribes have a right to self-government, and the Federal Government encourages tribes to exercise that right. Consequently, while the Department may be required by statute or tribal law to act in intratribal matters, it should act so as to avoid any unnecessary interference with a tribe's right to self-government. Plaintiffs have not cited, and we have not found, any federal statute or any provision of Cherokee law that requires the Department to intervene in a Cherokee election dispute. Rather, the Cherokee Nation provides a tribal forum for resolving such disputes. Consequently, the Department has no authority to take action contrary to the tribal resolution of such disputes. In the present case, the Department does not have authority to invalidate the Cherokee election, and the courts have no authority to order the Department to grant such relief. The district court correctly granted defendants' motion for summary judgment, and its decision is accordingly AFFIRMED.

(Modern cases all recognize that Indian Tribes have self governance over their internal affairs; among those internal affairs is the right to determine their membership criteria; this order is in disagreement with all the other circuits on the issue of the 13th amendment and the Indian Civil Rights Act and it's effect on Indian Tribes - if this 1866 Treaty is a Badge of Slavery, why would the court wish to uphold it? In South Carolina the Confederate Flag was considered a badge of slavery and as such it was ordered removed from their Capital; it appears to this writer that the Freedmen are seeking citizenship within the Cherokee Nation solely based on their status as descendants of Slaves - there is no indication that any of the Freedmen are subject to involuntary servitude-nor did the Treaty of 1866 impose any responsibility onto the Cherokee Nation for *taking care of the Freedmen* - they only include the right to be treated like other Indians in the Territory, which could mean they would have the right to seek Federal Recognition as Freedmen like all the other Tribes in the Indian Territory - so many solutions to this problem but only force seems to come from the Congressional Black Caucus)

(It also appears this case is being handled as a straight Black Civil Rights case without regard to any of the Indian Cases involved; apparently there are some self ID'd descendants of slaves that didn't get on the Dawes Roll as Freedmen, who are now trying to claim that status under the 1866 Treaty - the court of claims has rightly ruled they are well over 100 years to late to state such a claim)

Freedmen sue in Federal Claims court for land from 100+ year Treaty

Some interesting Court of Claims cases, these only go back to 1997 on the web:

1. Harvest Institute vs US (this is the Freedmen case in the Court of Claims)
Court dismissed the action for lack of jurisdiction, failure to state a claim and outside the statute of limitations. The court states any obligation the US had was at the turn of the century (I assume that was the 1900s)

2. UKB vs US and Cherokee Nation
This case is in reference to the Arkansas River Bed settlement

3. Osage Tribe vs US
US Constitution recognizes tribes as sovereign nations in Article 1 section 8.

Attacking tribal sovereignty

The Hill
Washington, DC

Attacking tribal sovereignty
From Jared Hautamaki

As a former Congressional Black Caucus staffer, Native American attorney, and recent attendee of the Federal Bar Association Indian Law Conference, I am torn by the unnecessary divisions being caused by the CBC to relations between African Americans, Democrats and Native Americans (Frank sides with CBC, holds fast on Cherokee funding, April 21, and related articles).

Reps. Diane Watson (D-Calif.) and Mel Watt (D-N.C.) fail to grasp the very fundamental fact that tribes are sovereign nations, and under basic principles of sovereignty, as well as the Supreme Court precedent of Santa Clara Pueblo v. Martinez, tribes as nations are entitled to determine their own membership. While I am no fan of the decision to disenroll the Freedmen descendants, the Cherokee Nation is entitled to self-determination.

This principle of self-determination has undoubtedly created tensions within Indian Country, with tribes changing membership criteria in various instances for financial, cultural and other reasons, but it is a matter for Indian Country and not the Congress. While Congress has plenary power to regulate commerce ... with the Indian tribes, the trust relationship does not include meddling in tribal membership. (we can always trust congress to meddle..)

Attacking one tribe over issues of defining membership is an attack on the sovereignty of all tribes. The CBC risks years of cultivating relationships between the Democratic Party and Indian Country in one ugly misunderstanding over race and internal tribal politics. Tribes and Democrats make better allies than enemies, but I'm not sure that relationship will survive the CBCs misinformed and misguided attack on basic principles of tribal sovereignty.

Gaithersburg, Md.

(Since the Freedmen could not get anywhere in the Court of Claims they sued in Federal District Court of DC, where the court has literally taken the case on as a Black Civil Rights Case - treating the Cherokee Nation as if it were some sort of private club, rather than a respected sovereign nation, which was here long before the Europeans arrived.)

(Perhaps congress needs to wake up to the fact that within their mists is a group called the Congressional Black Caucus that needs to be opened up to all rather than a mandatory Blacks only group membership.)

Cherokee chief goes astray in CBC battle over membership

By From Sean Nordwall, Cherokee citizen

Posted: 04/30/08 05:36 PM [ET]

(Regarding article “Frank sides with CBC, holds fast on Cherokee funding,” April 21.) It is alarming for tribes to see Congress get involved in tribal disputes, but the Cherokee Nation administration under Principal Chief Chad Smith has ignored every chance to resolve the Freedmen membership issue before it got to this point, including repeatedly refusing to meet with the Freedmen at every point during this ordeal. The political theater that is unfolding is one of money, power and cronyism. (Sean, forgets that in our outlying Cherokee meetings, the Chief most graciously allowed the Freedmen faction to speak and speak for quite some time on this issue - what Sean fails to understand is, the Freedmen believe they are entitled to membership in the Cherokee Nation because they are descendants of Black slaves not because they are Cherokee.)

Smith has put over $4 million into hiring lobbyists to fight a PR battle against the Congressional Black Caucus and our own Cherokee citizens. The CN administration is framing the issue around a tribe’s right to select its membership, which is a given. However, one can also frame the issue by asking the commonsense question, Can tribes break a treaty that their relationship with the United States is soundly based on? The answer is no. … (unfortunately Sean, again does not have a grasp of the 1866 Treaty and the rights conferred under it; this PR battle was necessitated by the Freedmen - most tribes in California run TV infomercials, to let the public know, what's going on and how they help their surrounding communities, this helps to eliminate the isolationism which Newt Gingrich speaks of. This is a positive thing for the Tribes to do - it eliminates the Hollywood bias that has been created for so many years - the better question is why is only this one provision of that 1866 Treaty being enforced against the Cherokee Nation, while leaving other provisions apparently unenforced because they are outdated?)

Federal and Cherokee courts have long sided with the Freedmen. The CN administration shows no intent to follow any ruling by any court, and continues to appeal, while its members sit back and run out their terms in office. This is their strategy. (this siding he speaks of, was not true in the court of claims action, in which they were seeking money damages on a 100+ year old Treaty - and the result of the Cherokee court ruling was to amend the Cherokee Constitution to clarify the membership criteria, the Cherokee people voted on that as well and it passed - Congress does the same thing as in, if they don't like a court decision they pass legislation to change the effect of the ruling to what they want - Hello, Sean. Strategy to run out their terms - where is this coming from?)

Individuals whose campaigns were financed by Smith have a super majority on the CN Tribal Council. Smith has appointed his own personal legal counsel as the attorney general for the CN, in a clear conflict of interest. … (the at large councilors financed their own campaigns)

I believe now one can see the picture a little more clearly, and see why Rep. Barney Frank (D-Mass.) holds fast on Cherokee funding. (But Sean, you seem to be missing the point that the Congressional Black Caucus is merely treating this as a Black issue not a Cherokee issue - no one can join the Congressional Black Caucus unless you are Black - don't you find that ironic? The pot calling the kettle black!)

Scottsdale, Ariz.

(Sean Nordwell, ran for Councilor at large in the last election and lost, he is a contractor or developer out of San Clemente, California. What he fails to realize as he continues to blame the Chief for everything is the fact that the Cherokee people voted to uphold our tribal citizenship criteria to those who are Cherokee)

The Trail of Tears In Depth

For a more indepth look at this historical time period on DVD through Rich Heape Films, Inc.:

"Trail of Tears Cherokee Legacy" produced by Rich-Heape Films, Inc. is a long format Director's Cut, written by Daniel Blake Smith, it chronicles the ethnic cleansing and the hardships endured by the Indians of Southeast America in the 1830s with particular emphasis on the Cherokee Trail of Tears removal. Approximate running time 2 hours. Format: DVD


PRESIDENT ANDREW JACKSON'S INDIAN REMOVAL ACT OF 1830 AND THE FORCED REMOVAL OF THE CHEROKEE NATION TO OKLAHOMA IN 1838... Thousands of Cherokees died during the Trail of Tears, nearly a quarter of the Nation. They suffered beyond imagination and when they finally arrived in Indian Territory, they arrived almost without any children and with very few elders, in a way they arrived with no past and no future.

It's not about learning, it's about power

A move to destroy the Cherokee Nation

By Ben Nighthorse Campbell
Posted: 04/28/08 05:24 PM [ET]

Despite my years in politics, I’m still surprised by Congress’s inability to learn from past mistakes and tendency to interfere where it should not. One of the richer sources of persistent bad judgment is Congress’s tragic history of meddling in the internal affairs of Indian tribes. Yet the House is considering legislation that would destroy the Cherokee Nation, hurt some of America’s poorest citizens, and dictate the outcome of an internal political dispute, despite the fact that Cherokee tribal and federal courts are reviewing the issues.

The Cherokee Nation is involved in litigation with a group of individuals claiming to be descendants of slaves, known as Freedmen, who were held by 2 percent of Cherokees before 1863, when the Cherokees voluntarily emancipated them. The Cherokee people voted decisively in March 2007 to limit citizenship in the tribe to those who descend from Indians who were listed on a federal census taken in 1906. On its face, the fact that an Indian tribe would want to be comprised of descendants of Native Americans should not be surprising or controversial. However, the Freedmen descendants, whose ancestors were listed under the non-Indian category of Freedmen on that same census, believe they should be citizens of the tribe under treaty obligations.

Members of the House introduced H.R. 2824, a bill to terminate the Cherokee Nation and eliminate nearly $300 million of funding, and related amendments to zero out federal funding to tribal citizens in all appropriations areas, such as healthcare (in the Indian Health Care Improvement Act, H.R. 1328) and housing (in the Native American Housing Assistance and Self Determination Act, H.R. 2786), to punish the Cherokee people for their vote.

I do not claim to know which party in this litigation is correct, and I do not take a side in this argument.

Neither should Congress. The case is being heard in tribal and federal courts. Those judges have all the facts and laws before them. Congress does not. Courts are the proper and fair venue for resolving these issues. Congress is not. Furthermore, congressional interference in an internal dispute would harm all Indian tribes and set a dangerous precedent.

Despite all this, House members are not only threatening the Cherokee Nation, but they are misrepresenting the facts. For example, one of the most egregious distortions is that the Cherokees have expelled all black people from the tribe. This is not only patently false, but it’s also deeply offensive to all Indians. It’s certainly not a foundation for legislation. In fact, the Cherokee Nation is as diverse an Indian tribe that exists today. There are thousands of African Americans who are Cherokee citizens, including more than 1,500 Freedmen descendants, because they have ancestors who were Indians on the 1906 rolls.

The more than 2,800 individuals who were disenrolled have been temporarily reinstated in the tribe pending the outcome of the litigation. Furthermore, unlike hundreds of other tribes, the Cherokee Nation does not have a blood quantum for citizenship; one need only find an Indian ancestor on the 1906 rolls.

That means you’re a citizen whether you’re one sixty-fourth Cherokee or one-half Cherokee. Citizenship is colorblind. Congress has ignored this reality. (It's the Congressional Black Caucus, a group that will only allow Blacks among them to enter their hallowed meetings - whites and Indians not allowed!)

In the past, interference with tribal affairs, often justified by a paternalistic “we know best” mindset, has severely damaged the progress of tribes. Often, Congress not only didn’t know best, but it based its decision on lies, mistaken assumptions and prejudice. (Some things just don't change)

For example, believing that Indian tribes could not responsibly own land, Congress instituted a land ownership system that prevented Indians from selling their land. When a property owner died, ownership rights were distributed equally among all heirs, resulting in a fractionalization of ownership that denied the benefits of the land to its owners and cost the government millions of dollars in administrative costs. (still going on today in California, although many Native American's hold educational degrees)

Despite the fact that the policy was recognized as a failure as early as the 1930s, it was only in 2004 that Congress passed legislation I authored eliminating some of these ownership problems.
This policy also resulted in a lawsuit against the Department of the Interior alleging mismanagement of the trust accounts controlling these lands in excess of $100 billion. This lawsuit is 12 years old and still working its way through the courts. Such are the dangers of a Congress that is quick to intrude on tribal sovereignty and slow to realize it has only exacerbated the problem. (the Congressional Black Caucus should be initiating legislation to *fast track* these cases through the Courts, rather than cutting off funding to the Cherokee Nation, if they truly believe they are in the right and further more, should be making some attempt to enforce the entire Treaty, not just this one provision - oh, the other provisions are outdated, my mistake.)

Today, Congress is again rushing to judgment when it thinks it knows better than the tribe and the courts.

In this case, Congress’s chosen method is particularly disturbing and destructive. The legislation being considered would punish the Cherokees for not extending citizenship to Freedman descendants by cutting off federal support for the tribe. Astonishingly, it would also harm the tribe’s most vulnerable citizens — the old, the young, and the sick — who benefit from federal funds for essentials such as health care, housing and education services. In fact, this latest congressional action is, in my view, the constructive equivalent of the destructive termination policy of the 1950s. (actually, the cutting off of health care, which is woefully inadequate anyway, isn't really much of a punishment at this point - we've been through the Trail of Tears - now the Hammer of Congress)

Today’s Indian tribes are the survivors of centuries of persecution, genocide and the destruction of their ways of life. I’m dumbfounded that Congress wants to reward that struggle by stripping tribes of the very sovereignty they fought so long to preserve. (Slavery trumps Indians)

Ben Nighthorse Campbell, a Northern Cheyenne Indian, was a senator from Colorado from 1993 to 2005 and a House member from 1987 to 1993. He was the first American Indian to serve as chairman of the Senate Indian Affairs Committee

Other unenforced provisions of this 1866 Treaty:

IHS denial and it's impact on Cherokee Citizens

The Cherokees will loose $108 million dollars in Health Care if the Congressional Black Caucus amendment to the health care bill the full story:

News from the Front

Three courts considering Freedmen claims

By Will Chavez

TAHLEQUAH, Okla. – As the Freedmen issue is discussed in the halls of Congress, attorneys for Freedmen descendents and the Cherokee Nation are preparing for more hearings in three different courts.

The U.S. District Court in Washington, D.C., the District of Columbia Circuit Court of Appeals and the Cherokee Nation District Court have Freedmen cases pending.

Six Freedmen descendents are waiting for their case, Vann v. Kempthorne (Department of Interior), to be heard in U.S. District Court regarding their citizenship and voting rights in the CN. The plaintiffs contend the CN, with approval from the DOI secretary Dirk Kempthorne, prevented them from participating in the 2003 tribal election and seek a court order declaring the 2003 election invalid. They also want DOI to not recognize the results of the elections until Freedmen are permitted to vote.

In December 2006, a federal judge denied the CN’s motion to dismiss Vann v. Kempthorne and issued an opinion that the CN’s sovereign immunity did not prevent the tribe from being sued.

“That is the kind of order that can immediately be appealed,” said CN Attorney General Diane Hammons. “We did that. So now that part of the case is in the Federal (D.C.) Circuit Court of Appeals.”

for the rest of the story:

BIA approves amendment but not constitution

By Will Chavez

TAHLEQUAH, Okla. – The Bureau of Indian Affairs acknowledged on Aug. 9 that the federal government no longer has the authority to approve amendments to the Cherokee Nation’s Constitution. However, according to the CN attorney general, it doesn’t mean the agency approved the 2003 Constitution.

In a letter to the tribe, BIA Assistant Secretary Carl J. Artman stated the Cherokee people voted on and approved a constitutional amendment on June 23 that removes federal approval of changes to the CN Constitution. The amendment removes Section 10 of Article 15 in the 1975 CN Constitution that states no amendment or new constitution shall be effective without presidential approval or his authorized representative.

Cherokee voters initially OK’d the removal of federal approval during the 2003 general election before approving the new constitution in the runoff election.

“They (BIA) approved the (June 23) reaffirmation (of the amendment),” Attorney General Diane Hammons said. “The practical effect will be that we will not submit anything to them for approval anymore nor will they ask for it. It doesn’t necessarily mean the 2003 Constitution is also approved, and I think Artman worded his letter the way he did because the 2003 Constitution itself is the whole subject of Vann v. Kempthorne.”

for the rest of the story:


Attorney General issues opinion on term limits

By Will Chavez

TAHLEQUAH, Okla. – At the Tribal Council’s request, Attorney General Diane Hammons recently wrote an opinion stating Cherokee Nation officials elected in 2007 are serving their first term under the 1999 Constitution.

The council’s Rules Committee requested Hammons’ opinion on the term limits outlined in the 1999 Constitution, which became law in 2006. The committee asked if elected officials who took office in 2007, and who were previously elected in 2003, were serving their first or second term under the constitution.

She answered the committee stating that any official who served from 2003-07 and was re-elected in 2007 would be serving his or her first term.

In her opinion, Hammons wrote the 1999 Constitution instituted term limits for elected officials that were not included in the previous constitution. The council limitation found in the 1999 document states that councilors shall be limited to two consecutive terms and must sit out a term before seeking re-election to a council seat.

The principal chief and deputy chief terms are also limited. According to the constitution, anyone having been elected principal chief in two consecutive elections shall not be eligible to file for the principal chief seat in the election following his or her second term.

for the rest of the story:

Cherokee Nation Appeal May 6, 2008

Appeals court to hear Freedmen case

By Will Chavez
Staff Writer

TAHLEQUAH, Okla. – Oral arguments for the lawsuit Vann v. Kempthorne have been set for May 6 in the District of Columbia Circuit Court of Appeals.

The three-judge appeals court is expected to review a district court judge’s denial of motions to dismiss the case filed by the Cherokee Nation in 2006.

The tribe is challenging its inclusion in a lawsuit filed in 2003 by Cherokee Freedmen descendants led by Marilyn Vann of Oklahoma City. The suit contends the CN, with approval from the Department of Interior Secretary Dirk Kempthorne, prevented Freedmen from participating in the 2003 CN elections. Freedmen are seeking a court order declaring those elections invalid and want the DOI secretary to not recognize the results until they are permitted to vote.

for the rest of the story:

Judges in this case:
Merrick B. Garland
Thomas B. Griffith
David S. Tatel

Indian Health Care or Thank you Congressional Black Caucus

Opinion: State of Indian health care is a national tragedy
Tim Giago syndicated columnist
Published Monday, April 28, 2008

Mycole James Ferguson and Leah Page will never grow up to find their potential in life. Both infants were stillborn one week apart on the Pine Ridge Reservation in South Dakota.

Sadly, this is not an uncommon occurrence on this vast Indian reservation. It is to the shame of America that its indigenous populations are at the bottom of the ladder when it comes to adequate prenatal health care.

The families of Mycole and Leah are still suffering from the loss of their children. And yet week after week, month after month and year after year, the names of stillborn Native American infants will be listed on the obituary pages of local newspapers.

Sharon Begley wrote in Newsweek that, “In international comparisons of health care, the infant mortality rate is a crucial indicator of a nation’s standing, and the United States’ position at No. 28, with seven per 1,000 live births — worse than Portugal, Greece, the Czech Republic, Northern Ireland and 23 other nations not exactly known for cutting-edge medical science — is a tragedy and an embarrassment.”
Most Americans believe that the United States has the best medical care in the world, but that is clearly not the case. One has to wonder that if America rates number 28 in the world in infant mortality rates, how do the poor and uninsured rate or the Native Americans on the Indian reservations rate? There is a gap so wide that it might as well separate the poor and the Native Americans from the rest of America by an ocean’s width.

In a letter last week to the Senate and House Budget Committee, Senator Tim Johnson, D-S.D., wrote, “The Contract Health Services Program of the Indian Health Service has an unmet need of over $1 billion dollars. This program allows for medical care and urgent health care services to be purchased when the Indian Health Service or tribal health facilities are not able to provide it. This is the program that has given rise in Indian country to the saying, “Don’t get sick after June,” because it is common for the Indian Health Service to run out of funding for Contract Health Services after June.”

Sen. Johnson said, “I have worked with my colleagues to correct President Bush’s budget proposal for the Indian Health Service which grossly neglects the needs of Indian country.” Sen. Johnson is a member of the Indian Affairs Committee.

Among the very poor Indian tribes in America there is a crisis in health care and let me be very clear about that. Diabetes, Type 2, is epidemic. The infant mortality rate is staggering. The average life expectancy is lower on Indian reservations than in any other area of America. On many reservations from the Navajo Nation to the Pine Ridge Reservation, deaths by cancer are starting to reach epidemic proportions. Death by heart disease has never been higher and it is still climbing.

And we were considered wards of the United States government? I think we were better off when we were considered the enemies because we at least had the opportunity of taking care of our own health problems. The benevolent eye of big brother looking over our shoulders has been more of a curse than a blessing.

The hardworking doctors and nurses of the Indian Health Service are not to blame. They can do only so much with the money they are allocated each year. And it seems that every year senators like Tim Johnson and representatives like Stephanie Herseth Sandlin, D-S.D., have to fight tooth and nail to squeeze out every single dollar. And oftentimes it is a losing battle for them, but the real losers are the Indian people. Earmarks? Why not?

Indian nations gave up millions of acres of land in exchange for the right to an education and adequate health care. These two provisions are a part of nearly every treaty signed between the United States of America and the Indian nations. It is not welfare the U.S. is providing, but an obligation in fulfillment of treaty rights. (so the Congressional Black Caucus is willing to violate other Treaties just to punish the Cherokee Nation. Oh, it's a treaty only enforceable against the Indians, not Congress, my mistake)

Dr. Leroy Clark is one of the doctors at the Sioux San Indian Hospital in Rapid City. He is Native American and he talked about some of the things the hospital and staff is trying to do for their patients with little money, but with a lot of enthusiasm. And there is no finer bunch of people than you will find staffing any hospital in any city. Most of the staff at the Sioux San is Native American and they are kind, gentle and genuinely concerned for their patients and that is a big plus when one is in poor health.

If America can spend $1 billion dollars a day fighting a war in Iraq, surely it can find the compassion to spend an equal amount so that babies like Mycole and Leah will have a chance to be born into this world. Prenatal care on the Indian reservations should not be so strapped for money that babies are dying because of it.

Cobell vs DOI

Federal judge promises to set dollar figure on US mismanagement of Indian trust

Brett Murphy at 2:45 PM ET

[JURIST] US District Judge James Robertson said Monday in a court hearing that he would set a dollar figure [plaintiffs press release] on the US government's alleged mismanagement of trust funds for a group of some 500,000 Native Americans in a 12-year class action lawsuit [plaintiffs website; JURIST news archive] against the US Department of the Interior [official website]. Plaintiffs led by Eloise Cobell have argued that federal government owes them $58 billion, representing its profits from land use violative of trust terms. Congress established the Indian trust in 1887 to hold proceeds from government-arranged leases of Indian lands. Lawyers for the US government have argued that little trust monies are missing from its accounts and have discouraged Robertson from setting any kind of figure. Robertson has scheduled additional hearings for June, telling the parties in the meantime that "My stewardship of this case will be something with a dollar sign." AP has more.

In an incendiary opinion [text] in 2005, District Court Judge Royce Lamberth required the Interior Department to apologize to the plaintiffs [JURIST report] for its handling of the trust, and to admit that information being provided to them regarding outstanding lost royalties on earnings from Indian land may be unreliable. In 2006, the US Court of Appeals for the District of Columbia Circuit removed Lamberth [JURIST report] and reassigned the case to Robertson.

Tuesday, April 29, 2008

Tribal Jurisdiction over non Tribal members on their reservations

(So, just who is *an Indian*, it appears the court has struggled for some time to find a *fix*)

Federal courts try to decide who is legally Indian

Wednesday, August 24, 2005

When the U.S. Supreme Court in 1990 ruled that tribal governments lack the inherent authority to prosecute members of other tribes, Congress quickly reacted by passing the "Duro fix."
The issue has already been tested. In a case involving an ex-Bureau of Indian Affairs officer who embraced his Indian heritage but isn't enrolled in a tribe, a federal judge ruled that he isn't legally Indian and therefore not subject to the jurisdiction of the Spokane Tribe of Washington, which is part of the 9th Circuit.

"At that point, though, he says, 'Wait, I'm not Indian,'" said Bethany Berger, an assistant professor of law at Wayne State University, at a recent Indian law conference. "This seems unfair -- that a guy that's taken advantage of being Indian would now be able be able to legally disclaim it when it's not working out for him."

But Berger pointed out a flip-side to the debate in another 9th Circuit case, where the court reversed a Montana woman's conviction of child abuse because federal prosecutors charged her as a non-Indian. Although she isn't enrolled in a tribe, the court said she presented enough evidence to prove she was legally Indian.

"There might have been defenses" the woman could have raised were she charged as an Indian, Berger said at the Federal Bar Association conference in April 2005. "It might have changed things a little bit."

The decision means that courts will now have to decide who is and isn't Indian, a task that has often been left to the agencies of the executive branch. In the two cases mentioned, the 9th Circuit looked at whether the person is "perceived" as a member of a tribe, not at blood-quantum or actual enrollment.


As with the other cases, however, the 9th Circuit responded that the issue is not one of race. "The [Duro fix] subjects Means to Navajo criminal jurisdiction, not because of his race, but because of his political status as an enrolled member of an Indian tribe, even though it is a different tribe than the one that seeks to assert jurisdiction over him," the court wrote.


(are they settling on Indian means enrolled member of a tribe - I guess not)

Judge denies tribal jurisdiction over Indian descendant

Wednesday, December 8, 2004

Despite the U.S. Supreme Court's holding that tribes have sovereignty over all Indians, a federal judge has denied a Washington tribe criminal jurisdiction over a man who is Indian by blood but not enrolled in a tribe.

Indian Housing Bill

Cherokee Freedmen dispute threatens NAHASDA

Thursday, April 24, 2008

Meanwhile, the D.C. Circuit Court of Appeals is set to hear another Freedmen case on May 6. The tribe is trying to protect its sovereign immunity from a lawsuit that was originally brought against the Interior Department.

Final decisions in the tribal and federal courts could be months away. Rather than wait, members of the Congressional Black Caucus on the House side have been attaching provisions to Indian bills in order to punish the tribe for removing the Freedmen.

"They will attach it to every single Indian proposal," Cherokee Chief Chad Smith said at an Indian law conference earlier this month.

According to Smith, the Freedmen at one point were citizens of the tribe. "We were truly a republic," Smith said at the 33rd annual Indian law conference hosted by the Federal Bar Association.

But he said acts of Congress in the early 1900s terminated the Freedmen's rights under an 1866 treaty that is commonly cited by CBC members in their push to restore the Freedmen to citizenship. Now that the tribe has reorganized itself following federal policies of assimilation and termination, Smith argues the tribe has a right to determine its membership.

Indian Health Care and the Cherokee Nation

(yeah, that's right, blame the Cherokee Nation for this hold up - what part of *the Freedmen are NOT CHEROKEE, does Congress and the CBC not understand)

House committees given extension on IHCIA

Monday, April 28, 2008

Pallone said there are two main issues holding up passage. The first is the status of the Freedmen, who are the descendants of former African slaves, as citizens of the Cherokee Nation of Oklahoma.

The bill will now include a provision to ensure the Freedmen are restored to citizenship within the second-largest tribe in the U.S. The Senate's version did not address the controversy. (the Freedmen were added to the rolls way back in 2006/7 - so what does this mean *to ensure the Freedmen are restored to citizenship*? is this congressional speak for *the Cherokee Nation is still excluded from receiving funding until they *surrender* to the Congressional Black Caucus* - ya'll need to get a grip here, we're in the 21st Century, not the Dark Ages)

"We've gotten the Freedmen issue behind us now, probably not resolved in the way that the Cherokee Nation wanted," Pallone told tribal leaders. (well this is interesting, mind telling the rest of us what you mean by this)

(apparently this amendment to this bill will require a vote on the House floor before it is included in the final version of this bill - prediction: the rest of the House for whatever reasons they can muster will surrender to the Congressional Black Caucus on this matter.)

Monday, April 28, 2008

and just where is the Congressional Black Caucus?

U.S. spends $3.9 billion on water for others

By Kathy Helms

Diné Bureau

WINDOW ROCK — In the past four years, the Bush administration spent $2.3 billion on water infrastructure in Iraq, $1.6 billion on water-related issues in other countries, and $2.5 billion on water rights claims in the West outside Indian Country.

On April 19, 2005, the Navajo Nation and the state of New Mexico executed a settlement agreement to Navajo claims of water rights in the San Juan River Basin in New Mexico.

Last year, U.S. Sen. Jeff Bingaman introduced H.R. 1970 — the Northwestern New Mexico Rural Water Projects Act — which is currently pending in Congress and would authorize the settlement and the Navajo-Gallup Water Supply Project to provide safe drinking water to the Navajo Nation and Gallup.

The Department of the Interior has testified against the bill, and the Office of Management and Budget has opposed funding despite the critical lack of drinking water infrastructure on the Navajo Nation. Gallup may run out of water in less than 10 years.

The federal government is expected to be an aggressive trustee of Indian water rights, according to Navajo Nation President Joe Shirley Jr., however, Navajo is concerned that the feds’ current application of Criteria and Procedures in settlement negotiations creates incentives for the United States to oppose the interests of Indian tribes.

The Navajo Nation has considerable experience with water rights settlements.
“We are currently involved in finalizing a settlement with the state of New Mexico, and we are in discussions with the states of Arizona and Utah to quantify our water rights through negotiated settlements, rather than through the litigation process,” Shirley said.

The president explained how the United States has neglected the Navajo Nation’s water rights claims to the Colorado River, and has instead pursued a wide variety of activities concerning the management and allocation of the river without consideration of the needs of Navajo.

John Echohawk, executive director of the Native American Rights Fund of Boulder, Colo., has worked on Indian water issues for more than 38 years. In the last three decades, he said NARF has encountered one consistent challenge: the federal government’s inability to commit adequate financial and human resources to resolving tribal water rights claims.

“For centuries, the federal government has promoted and subsidized non-Indian water rights to the detriment of vested tribal water rights,” he said. “The lack of federal commitment to developing tribal water rights is especially troubling considering the conditions we see across Indian Country.

“It is not uncommon for tribal members to drive over 50 miles to haul water for their homes, many which still have no access to electricity. It is as if Native Americans fell through the web of the federal system that is charged with ensuring our well-being under the trust responsibility.”

The federal commitment to Indian water rights settlements remains inconsistent, and the lack of federal funding plagues the settlement process, Echohawk said.

U.S. Sens. Pete Domenici and Jeff Bingaman have proposed creating a permanent funding mechanism for Indian water rights settlements by using the Reclamation Fund. Though the Bureau of Reclamation has adamantly opposed this move, Echohawk and others testifying before the House subcommittee urged their support.

“The federal government has an obligation as trustee to assist in the development of tribal water rights and Congress must look to create a permanent funding mechanism for tribal water settlements. ... Indian Country can no longer tolerate the lack of water and water infrastructure that has inhibited them from developing their communities,” he said.
John F. Sullivan of Salt River Project said SRP has worked with numerous tribes and stakeholders to resolve water rights disputes in a manner that benefits both Indian communities and their non-Indian neighbors.

“We are continuing to work diligently towards the completion of the settlement of the claims of the White Mountain Apache Tribe to surface water and ground water from the Gila and Little Colorado River Basins, as well as the claims of the Navajo Nation and the Hopi Tribe to surface water and ground water from the Little Colorado River Basin and to water from the Lower Colorado River.

Sullivan said many water basins in the West are already over-appropriated. “As growth and drought persist, constructing water budgets for future settlements that are operable for all the parties involved becomes increasingly complex.”
In addition, the inability to fully fund projects prolongs construction and raises the total price. “Non-traditional funding sources may be needed to meet the financial need,” he said.

The objective of the Navajo Nation “is to obtain a water supply that meets the needs of future generations of Navajos to live and thrive on the Navajo Nation as their permanent homeland. These efforts, whether through litigation or negotiation, require the expenditure of significant resources for attorneys and experts,” according to President Shirley.

“With the reduction in federal funds available for tribes to pursue these claims, we can no longer rely on the United States to fund the tribal efforts. We believe that Congress must set aside funds to be used exclusively for Indian water rights settlements. In the absence of such set asides, funding for water rights settlements will compete with funding for other programs out of the Bureau of Indian Affairs budget.”

See this is what Congress does

(There is no reason why the CBC can not wait for a court decision in the Freedmen vs Cherokee Nation case - they always have the option to pass legislation if the decision is not in their favor - see how this all works?)

Recent Senate Votes

Cloture Motion; Lilly Ledbetter Fair Pay Act of 2007 - Vote Rejected (56-42, 2 Not Voting)

The Senate fell short of the sixty votes necessary to proceed to debate on H.R. 2831, a bill that effectively overturns a recent Supreme Court decision concerning pay discrimination litigation.

Sen. Dianne Feinstein voted YES
Sen. Barbara Boxer voted YES

Sunday, April 27, 2008

Where the Cherokee Casino Money Goes

Cherokee Nation Enterprises
Media Advisory
Contact: Mike Miller at (918) 384-7861
© Cherokee Nation - All Rights Reserved

April 25, 2008

Cherokee Nation reports “Where the Casino Money Goes”

After 70 percent of Cherokee Casinos’ profits are reinvested into job creation, the remaining 30 percent is paid directly to the Cherokee Nation to fund important social services. That figure also reached a record level in 2007, $34 million. That’s more than $8 million over the previous year to fund important services such as health care, education, roads, community services and much more.

TULSA, Okla. – Cherokee Nation Enterprises (CNE), which operates seven Cherokee Casinos in northeast Oklahoma, is releasing its third annual report, “Where the Casino Money Goes 2008.” The publication outlines Cherokee Casinos’ impact on job creation and the economy in northeast Oklahoma. CNE has created more than 2,100 jobs in the past four years, 400 of those in 2007 alone.

“The best service that we can provide for our citizens is a job. Gaming has always been about creating jobs and providing our people with the means to become self-sufficient,” said Chad Smith, Principal Chief of the Cherokee Nation. “These are good paying, stable jobs for Cherokee citizens and the surrounding communities. By making crucial investments now, we are creating a better future for our children and the Cherokee people.”

Per the Cherokee Nation’s Jobs Growth Act of 2005, all Cherokee Nation-owned companies, including CNE, devote 70 percent of their profits to creating jobs through reinvestment in its businesses. In 1999, for example, casino profits were $5 million. Nearly a decade later, however, the Cherokee Nation’s reinvestment strategy has skyrocketed both profits and employment. CNE’s profits now top $111 million and the company employs more than 3,200 people, making it one of the largest employers in northeast Oklahoma. Payroll for the company, including wages, taxes and benefits, totaled $119.4 million last year.

CNE is owned and managed 100 percent by the Cherokee Nation and, unlike many other tribal casinos, do not employ outside management companies. This strategy means profits from the Cherokee Nation’s casinos stay right here in Oklahoma.

“From the employees’ paychecks, to payments to local construction companies working on casino expansions, to money paid to the state of Oklahoma as part of our tribal-state gaming compact, money from Cherokee Casinos stays right here in Oklahoma,” said Smith. “There are no outside corporations and no invested shareholders, besides the Cherokee people, who reap 100 percent of the benefits.”

After 70 percent of Cherokee Casinos’ profits are reinvested into job creation, the remaining 30 percent is paid directly to the Cherokee Nation to fund important social services. That figure also reached a record level in 2007, $34 million. That’s more than $8 million over the previous year to fund important services such as health care, education, roads, community services and much more.

“The reinvestment into expanding our facilities and offerings is paying off tremendously in the number of jobs we are creating and the impact we are making across northeast Oklahoma,” said David Stewart, CEO of Cherokee Nation Enterprises. “We continue to be number one in our market, thanks second-to-none guest service; clean, safe facilities; and great entertainment. This strategy, the effort of all our employees and the outstanding loyalty of our guests have all helped us post these record profits.”

CNE is currently expanding its Tulsa and West Siloam Springs casinos. Cherokee Casino Resort, Tulsa, is undergoing a $125 million expansion and is set to be complete in early 2009. It will feature a 20-story hotel tower with 200 rooms; an approximately 1,800-seat entertainment and convention venue; more gaming space to house 750 new electronic games; a Toby Keith’s I Love This Bar & Grill restaurant; expanded Wild Potato Buffet and McGill’s restaurants; an upscale nightclub; and additional meeting space.

Later this year, Cherokee Casino West Siloam Springs will open after its $108 million dollar expansion. That property will include an 8-story, 140-room hotel; 200,000 square feet of gaming space to house more than 1,600 new electronic games and nearly 30 poker and table games; an expanded nightclub and stage; and several dining options including a fine dining restaurant, a Las Vegas-style buffet and brand-name eateries.

These projects will create more than 1,000 jobs for citizens of northeastern Oklahoma over the next year.

“Where the Casino Money Goes 2008” reports are being distributed through the Cherokee Nation tribal newspaper, the Cherokee Phoenix, during the month of April. In addition, copies are made available all year long at all Cherokee Nation casinos, retail outlets, hotels, hospitals, clinics and tag offices, as well as the W. W. Keeler Cherokee Nation tribal complex in Tahlequah or the Cherokee Nation official Web site,

Cherokee Nation Enterprises is the retail, gaming, entertainment, hospitality and tourism business of the Cherokee Nation. CNE operates casinos in Tulsa, Claremore, Roland, West Siloam Springs, Fort Gibson, Sallisaw and Tahlequah, as well as a horse racing track, three hotels, two golf courses, two convenience stores, a full-service travel plaza, six retail tobacco shops and four gift shops.

To read the report, please click here:

(the CBC is trying to stop all this as well)

It's about time...

Senate Committee Passes Bill To Promote Health Careers Among American Indians

[Apr 25, 2008]

The Senate Indian Affairs Committee on Thursday approved a bill sponsored by Sen. Jon Tester (D-Mont.) that aims to encourage American Indians to pursue careers in health care, the AP/Billings Gazette reports. The bill would provide federal grants to create nursing and other health care education programs at tribal colleges and increase staff at American Indian health clinics. According to the AP/Gazette, American Indians have higher death rates than the rest of the nation for most leading causes of death, and rates of substance abuse, diabetes, cardiovascular disease and suicide are particularly high (AP/Billings Gazette, 4/24).

The bill -- the Through Higher Education, Promoting the Advancement of Tribal Health Act -- would also allow tribal colleges to launch community outreach programs focused on disease management, substance abuse and other issues. Tester said in a release, "By training more [American Indian] students to enter the health care field, we provide their communities with good jobs, educated and self-sufficient members," adding, "And at the same time, we also improve the quality and access to culturally appropriate health care" (Tester release, 4/24).

(I suppose the CBC will find a way to stop this as well, see how this all hurts those that have nothing to do with the issues, only because the CBC is trying to once again apply *the thumb* to the Cherokee Nation, that old *bow or cease to exist* mentality; when Native Americans stand up for their civil rights Congress and now the CBC via Congress once again brutalizes the people of all Native America)

Saturday, April 26, 2008

Education has always been important to the Cherokee people

For Immediate Release

April 25, 2008
Contact: Amanda Clinton (918) 384-6944
Or Kelli Bruer (918) 384-7974

Cherokee Casino donates supplies to local schools

CLAREMORE, Okla. - Cherokee Casino Will Rogers Downs and Cherokee Casino Resort recently donated school supplies to Sequoyah-Claremore Elementary, Verdigris Elementary and Justus-Tiawah Elementary in response to the recent state education budget cuts. Cherokee Nation Enterprises, which operates Cherokee Casinos, reached out to local schools requesting a list of needed supplies to finish out the school year. The supplies were donated and collected by casino employees.

“The teachers and I are ecstatic,” said Lisa Trent, principal of Sequoyah-Claremore Elementary. “This paper is like gold to us! We can’t thank Cherokee Nation Enterprises enough to take the time to think about our school. This will honestly help us make it through the rest of the year.”

Cherokee Casino employees donated much-needed school supplies to Verdigris Elementary, such as crayons, markers, construction paper, pencils and paint, at the school’s request. The team also delivered nearly 20 boxes of copy paper to Sequoyah-Claremore Elementary and Justus-Tiawah Elementary. The copy paper was donated by Cherokee Nation Distributors, Admiral Express, Duke’s Office Supply and Cherokee Data.

“Cherokee Casinos, thank you so very much. What a wonderful contribution to the school’s efforts. The students and teachers will be thrilled,” said Jim Anderson, principal of Verdigris Elementary.

As a result of this project, Cherokee Casino Will Rogers Downs has officially adopted Justus-Tiawah schools. Casino and race track employees will help throughout the school year by providing school supplies, volunteering for school events and supporting the school’s parent/teacher organization. Many of the employees at Will Rogers Downs have children attending Justus-Tiawah schools.

“No company has ever asked to help us out, and we are truly very thankful,” said David Garroutte, superintendent of Justus-Tiawah schools. “We are growing in size each year, and we appreciate the support from our community.”

Cherokee Casino Resort hopes to continue to assist local schools with supplies as needed.

“Our employees are great at volunteering and donating, especially when it comes to kids. We have a great team here at Cherokee Casino, and I’m proud of their involvement outside of the casino,” said David Stewart, CEO of Cherokee Nation Enterprises, which operates Cherokee Casinos.

Other area schools that received donations include J.W. Sam Elementary and Cherokee Elementary, both in Catoosa.

Thursday, April 24, 2008

Wahoo! Rep Thomas Cole - member of the Chickasaw Nation in OK!

Cole charges 'blackmail' over Indian housing bill

By JIM MYERS World Washington Bureau


WASHINGTON -- Rep. Tom Cole has accused a House committee chairman of "legislative blackmail" by threatening to keep an Indian housing bill from a final vote if it does not include provisions punishing the Cherokee Nation in the long-running controversy over the tribe's freedmen descendants.

"This is legislating with a gun to the head of the Cherokee Nation," Cole, R-Okla., said this week, adding that lawmakers should allow the courts to settle the issue. "This is what got the Cherokees to Oklahoma in the first place . . . the misuse of congressional power."

Cole, a member of the Chickasaw Nation of Oklahoma, also joined the National American Indian Housing Council in expressing concern that Congress' response to the Cherokee controversy could jeopardize passage of the housing bill as well as other legislation supported by tribes across the country.

"This would be an unfortunate outcome for the hundreds of thousands of American Indian and Alaska Native low-income families that would be unwitting victims in a controversy involving one Indian tribe," the council warned in an April 18 letter to hundreds of tribal leaders.

At issue is language added to the bill by the House last September that would deny housing benefits to the Cherokee Nation until it recognizes freedmen descendants as tribal citizens. A version of the housing bill that omits those sanctions awaits action in the Senate.

Cherokee Nation members voted in March 2007 to remove freedmen descendants from tribal rolls. (They aren't Cherokee!)

Although the council's letter does not take sides on the issue, a council official confirmed that it favors the Senate approach.

Cole's comments came in response to a statement by Rep. Barney Frank, chairman of the House Financial Services Committee, to The Hill newspaper that he would not take the housing bill to the House floor again without the Cherokee Nation provisions.

Frank, D-Mass., confirmed the threat as reported by The Hill but added that the issue went beyond his own position.

"I don't think I could pass it," he said, adding that the Congressional Black Caucus, whose members have been pushing the freedmen descendants' cause in Congress and with the Bureau of Indian Affairs, makes up a large percentage of his committee. (the CBC has it's hands on the nations purse strings? that's an interesting situation)

Frank also predicted that the bill would not even get out of conference unless it contained the Cherokee penalties.

"We won't pass a bill that includes the Cherokees if they have not honored the treaty rights" of the freedmen descendants, he said. (The treaty rights were honored in the late 1800s and early 1900 when ever one got their land from the Dawes Commission)

Frank agreed that the Cherokee Nation has the right to have a court decide whether it is correct to deny citizenship to certain descendants of freedmen, but he questioned Cole's support of that remedy. (What? congress does this all the time - wait for the court decision and then if they don't like the outcome, they pass a law to change the outcome)

"In the first place, when did conservative Republicans decide you are supposed to leave important issues to the court, rather than be decided by elected officials?" he asked. (Well let's see this appears to be an Andrew Jackson approach to Indian issues - the heck with the Courts even if they are an independent branch of the US government; these are subtle issues that apparently the CBC is unwilling to resolve, other than the threat of cutting off funding to all Indian Tribes, unless the Cherokee Nation adds folks to their membership who are not Cherokee, so the Courts must intervene)

Frank also cited the position taken by the BIA, which, he thinks, has sided with the freedmen descendants. (the BIA is a Federal Agency, they're just waiting for a directive, they serve at the whim of Congress as well.)

Frank is scheduled to be in Oklahoma City on Saturday for a fundraiser. Told that Cherokee officials said they would like to meet with him during his visit, Frank said he would be willing to do that.

Cherokee Nation spokesman Mike Miller said most Americans understand why it makes sense for an Indian tribe to believe that only Indians should be members of the tribe.

Rep. Dan Boren, D-Okla., won approval of an amendment to the bill that would delay any sanctions against the tribe until the legal fight ends.

He again said he hopes that Congress will give the courts time to resolve the controversy before acting against the tribe.

Jim Myers (202) 484-1424

Wednesday, April 23, 2008

United Cherokee Nation

A little about John Cornsilk and his United Cherokee Nation (UCN).

John operates also from an old document, 1839 Constitution amended in 2000, that states any Cherokee Citizen who leaves the 14 counties (Indian Territory) is considered a traitor and is denied membership in the tribe forever.

"Article I.

Sec. 1. The boundary of the Cherokee Nation shall be that described in the treaty of 1833 between the United States and Western Cherokees, subject to such extension as may be made in the adjustment of the unfinished business with the United States.

Sec. 2. The lands owned by, held in trust for, or otherwise under the superintendence of the Cherokee Nation shall remain common property; but the improvements made thereon, and in the possession of the citizens respectively who made, or may rightfully be in possession of them: Provided, that the citizens of the Nation possessing exclusive and indefeasible right to their improvements, as expressed in this article, shall possess no right or power to dispose of their improvements, in any manner whatever, to the United States, individual States, or to individual citizens thereof;

and that, whenever any citizen shall remove with their effects out of the limits of this Nation, and become a citizen of any other government, all their rights and privileges as a citizen of this Nation shall cease:

Provided, nevertheless, That the National Council shall have power to re-admit, by law, to all the rights of citizenship, any such person or persons who may, at any time, desire to return to the Nation, on memorializing the National Council for such readmission."

This group is a faction within the Cherokee Nation and has no legal authority and does not speak for the Cherokee Nation. This is an example of too many Chiefs and not enough Indians....:)

This treaty stems from an old Ross/Ridge controversy back in 1839 and the ancient blood laws of the Cherokee Nation.

Basically the Ross/Ridge dispute is this: Ancient Cherokee Law, forbid any Cherokee from selling land without the Cherokee Council's approval. Major Ridge, who was a full blood Cherokee, saw the writing on the wall in the 1830s, he knew removal was coming, it was just a matter of time, when he signed the Treaty with Washington to trade the Cherokee land in the East for Cherokee land in the West and he also got a land patent for some of that land, this being contrary to Cherokee Blood law at the time, his action evoked the Ancient Blood law. This group of Cherokee moved West prior to the rounding up of the Cherokee in the 1838 forced removal of Andrew Jackson, contrary to a Supreme Court decision of the time. John Ross and his group remained in the old Cherokee Nation in the East, it is mainly his group that was in the forced part of the Trail of Tears to the West. There was also an Old Settler's group, that removed prior the Treaty Party departing.

At any rate, when the Ross Party started arriving in the Indian Territory Major Ridge and his family (this included all the old clan families), became the subject of the old Cherokee Blood law, Major Ridge, his son and several of the Ridge Party members were murdered for signing the treaty for the land exchange. When this began to happen many families in the Ridge Party began to leave the Indian Territory for concern for their families and retribution by the opposing party. This promoted the agreement or constitution above among the Ross faction to prompt, the exclusion from tribal membership of those who had fled the Cherokee Nation at the time Major Ridge and others were being murdered. Later generations credit Major Ridge with saving the Cherokee Nation from extinction.

Interesting how he will fight for the Freedmen, who are non Cherokee but live in Oklahoma but considers those of us who are Cherokee Citizens and live outside the 14 counties of Oklahoma as Traitors. (14 counties of Oklahoma are those counties in the NE part of the state) and in the past there has been a movement to disenroll those living outside the 14 county area and we ARE Cherokee.

For a more indepth look at this historical time period on DVD through Rich Heape Films, Inc.:

"Trail of Tears Cherokee Legacy" produced by Rich-Heape Films, Inc. is a long format Director's Cut, written by Daniel Blake Smith, it chronicles the ethnic cleansing and the hardships endured by the Indians of Southeast America in the 1830s with particular emphasis on the Cherokee Trail of Tears removal. Approximate running time 2 hours. Format: DVD


PRESIDENT ANDREW JACKSON'S INDIAN REMOVAL ACT OF 1830 AND THE FORCED REMOVAL OF THE CHEROKEE NATION TO OKLAHOMA IN 1838... Thousands of Cherokees died during the Trail of Tears, nearly a quarter of the Nation. They suffered beyond imagination and when they finally arrived in Indian Territory, they arrived almost without any children and with very few elders, in a way they arrived with no past and no future.

Tuesday, April 22, 2008


U.S. Supreme Court

SANTA CLARA PUEBLO v. MARTINEZ, 436 U.S. 49 (1978) 436 U.S. 49


No. 76-682.

Argued November 29, 1977
Decided May 15, 1978

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. 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. 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 [436 U.S. 49, 50] of action for the enforcement of 1302 rights would not comport with the congressional goal of protecting tribal self-government. Pp. 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. 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. 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. 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. 72. BLACKMUN, J., took no part in the consideration or decision of the case.

Marcelino Prelo argued the cause and filed briefs for petitioners.

Richard B. Collins argued the cause for respondents. With him on the brief was Alan R. Taradash. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed by George B. Christensen and Joseph S. Fontana for the National Tribal Chairmen's Assn.; and by Reid Peyton Chambers, Harry R. Sachse, and Glen A. Wilkinson for the Shoshone and Arapahoe Tribes of the Wind River Indian Reservation et al.

Stephen L. Pevar and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.

Briefs of amici curiae were filed by Alvin J. Ziontz for the Confederated [436 U.S. 49, 51] Tribes of the Colville Indian Reservation; and by Philip R. Ashby, William C. Schaab, L. Lamar Parrish, and Richard B. Wilks for the Pueblo de Cochiti et al. [436 U.S. 49, 51]

MR. JUSTICE MARSHALL delivered the opinion of the Court.Fn

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). 1

Title I of the ICRA does not expressly authorize the bringing of civil actions for declaratory or injunctive relief to [436 U.S. 49, 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.


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. 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 [436 U.S. 49, 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. 3 Petitioners moved to dismiss the complaint on the ground that the court lacked jurisdiction to decide intratribal 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. 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 [436 U.S. 49, 54] found it to reflect traditional values of patriarchy still significant in tribal life. The court recognized the vital importance of respondents' interests, 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. 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 18-19.

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 [436 U.S. 49, 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.


Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self-government. Worcester v. Georgia, 6 Pet. 515, 559 (1832); see United States v. Mazurie, 419 U.S. 544, 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, 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); [436 U.S. 49, 56] Jones v. Meehan, 175 U.S. 1, 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 pre-existing 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 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. 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, [436 U.S. 49, 57] at 379-381, 383-384; Cherokee Nation v. Hitchcock, 187 U.S. 294, 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. 8 [436 U.S. 49, 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 the 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.


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, 358 (1919); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512 -513 (1940); Puyallup Tribe v. Washington Dept. of Game, 433 U.S. 165, 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 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, 399 (1976), quoting, United [436 U.S. 49, 59] States v. King, 395 U.S. 1, 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.


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 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 issues 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, 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 223 . 9 [436 U.S. 49, 60] A fortiori, resolution in a foreign forum of intratribal 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, 199 -200 (1975); Choate v. Trapp, 224 U.S. 665, 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, 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). 10 We note at the outset that [436 U.S. 49, 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, 39 (1916); see Cort v. Ash, supra, at 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, 414 n. 13 (1968); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 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 [436 U.S. 49, 62] Assn. of Railroad Passengers, 414 U.S. 453 (1974); Cort v. Ash, supra.


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, 551 (1974); see Fisher v. District Court, 424 U.S., at 391 . 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, 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 [436 U.S. 49, 63] governments. 13 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). 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, 15 provides that States may not assume civil or criminal jurisdiction over "Indian country" without [436 U.S. 49, 64] the prior consent of the tribe, thereby abrogating prior law to the contrary. 16 Other Titles of the ICRA provide for strengthening certain tribal courts through training of Indian judges, 17 and for minimizing interference by the Federal Bureau of Indian Affairs in tribal litigation. 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 59-60, but it would also impose serious financial burdens on already "financially disadvantaged" tribes. Subcommittee on Constitutional Rights, Senate Judiciary Committee, Constitutional [436 U.S. 49, 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). 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. 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. 21 See, e. g., Fisher v. District Court, 424 U.S. [436 U.S. 49, 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). 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.


Our reluctance is strongly reinforced by the specific legislative history underlying 25 U.S.C. 1303. This history, extending over more than three years, 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, [436 U.S. 49, 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. 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 [436 U.S. 49, 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." 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. 26 [436 U.S. 49, 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. 27 Indeed, its description of the purpose of Title I, 28 as well as the floor [436 U.S. 49, 70] debates on the bill, 29 indicates that the ICRA was generally understood to authorize federal judicial review of tribal actions only through the habeas corpus provisions of 1303. 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. [436 U.S. 49, 71]


As the bill's chief sponsor, Senator Ervin, 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 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 54, [436 U.S. 49, 72] efforts by the 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. 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, 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.

Fn [436 U.S. 49, 51] MR. JUSTICE REHNQUIST joins Parts I, II, IV, and V of this opinion.

Footnotes [ 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 re-enacted 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, 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;

"(5) 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 any 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 [436 U.S. 49, 58] 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 an Indian tribe and residents of the reservation. Rejecting the mother's argument that [436 U.S. 49, 60] 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 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, 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 [436 U.S. 49, 61] one? See, e. g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 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, 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 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 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 104-125 (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 Cong., 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 n. 19, at 5, 163. In 1973 these courts [436 U.S. 49, 66] 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., United States ex rel. 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 n. 19, 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 any 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 [436 U.S. 49, 69] 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 [436 U.S. 49, 70] 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, 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 [436 U.S. 49, 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 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 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, 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," [436 U.S. 49, 74] Jones v. Alfred H. Mayer Co., 392 U.S. 409, 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, 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, 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 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, 3 the natural assumption is [436 U.S. 49, 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 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. [436 U.S. 49, 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 [436 U.S. 49, 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. [436 U.S. 49, 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 [436 U.S. 49, 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. 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 82 (footnote omitted).

The most important consideration, of course, is whether a private cause of action would be consistent with the underlying [436 U.S. 49, 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). 5 [436 U.S. 49, 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 [436 U.S. 49, 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. 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 [436 U.S. 49, 83] 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 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 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 1 ] 25 U.S.C. 1301-1303.

[ Footnote 2 ] Because the ICRA is silent on the question, I agree with the Court that the Act does not constitute a 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 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 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 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 [436 U.S. 49, 81] 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 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 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. [436 U.S. 49, 84]