LOUISE SMITH v BRUCE BABBIT
___________
No. 95-1784
___________
Louise B. Smith; Winifred *
Feezor; Cecilia M. Stout; *
Todd D. Brooks; Mary Jo *
Gustafson; Jay C. Hove; *
Tina A. Hove; Alan M. *
Prescott; Cynthia L. *
Prescott; Denise Prescott; *
Leonard L. Prescott; Patricia *
Prescott; Robert Prescott, Jr.; *
Tanya Prescott; Kimberly *
Amunsen; John Bluestone; *
Brian Hester; David Hester; *
Kaye Hester; Teresa Johnson; *
Beverly Kosin; Forest Leith; *
Kirk Leith; Shahn Leith; *
Gary Prescott; Jacqueline *
Prescott; Jerome Prescott; * Appeals from the United States
Stacy Prescott; Kathleen * District Court for the District
Rykus; Teri Schmitt; Richard * of Minnesota.
Scott; Robert Scott; Karen *
Swann; Dorothy Whipple, and *
all others similarly situated, *
*
Appellants, *
*
v. *
*
Bruce Babbitt, in his official *
capacity as Secretary of the *
Interior; Denise Homer, in her *
official capacity as acting *
Minneapolis Area Director of *
the Bureau of Indian Affairs; *
Harold A. Monteau, in his *
official capacity as Chair *
of the National Gaming *
Commission, *
*
Appellees. *
___________
No. 95-3392
___________
Louise B. Smith; Winifred *
Feezor; Cecilia M. Stout; *
Todd D. Brooks; Mary Jo *
Gustafson; Jay C. Hove; *
Tina A. Hove; Alan M. *
Prescott; Cynthia L. *
Prescott; Denise Prescott; *
Leonard L. Prescott; Patricia *
Prescott; Robert Prescott, Jr., *
Tanya Prescott; Kimberly *
Amunsen; John Bluestone; *
Brian Hester; David Hester; *
Kaye Hester; Teresa Johnson; *
Beverly Kosin; Forest Leith; *
Kirk Leith; Shahn Leith; *
Gary Prescott; Jacqueline *
Prescott; Jerome Prescott; *
Stacy Prescott; Kathleen *
Rykus; Teri Schmitt; Richard *
Scott; Robert Scott; Karen *
Swann; Dorothy Whipple, and *
all others similarly situated, *
*
Appellants, *
*
v. *
*
Bruce Babbitt, in his official *
capacity as Secretary of the *
Interior; Denise Homer, in *
her official capacity as *
acting Minneapolis Area *
Director of the Bureau of *
Indian Affairs; Shakopee *
Mdewakanton Sioux (Dakota) *
Community; Shakopee *
Mdewakanton Sioux (Dakota) *
Community Business Council; *
Stanley R. Crooks; Kenneth *
Anderson; Darlene McNeal, *
individually and jointly; *
Harold A. Monteau, in his *
official capacity as Chair *
of the National Gaming *
Commission, *
*
Appellees. *
___________
Submitted: June 10, 1996
Filed: November 7, 1996
___________
Before BEAM and HEANEY, Circuit Judges, and BOGUE,(1) District Judge.
BEAM, Circuit Judge.
Louise Smith, et al., appeal the district court's(2) dismissal
of their actions alleging, inter alia, violations of the Indian
Gaming Regulation Act. Because this dispute essentially involves
a question of tribal membership, an intra-tribal matter, this court
is without jurisdiction to consider this appeal. Consequently, we
affirm the district court's orders granting summary judgment and
dismissing this action.
I. BACKGROUND
The Mdewakanton Sioux Tribe (the Tribe) runs a gaming
establishment on federal trust land located near Prior Lake,
Minnesota. The establishment has, thus far, been a rather
lucrative enterprise. A portion of the gaming revenues are
distributed, per capita, to the Tribe's members.(3) According to the
allegations in the amended complaint, these distributions amount to
over $400,000, per year, per adult recipient.
Several tribal members and nonmembers (appellants) brought
this action in federal court against both tribal and federal
officials(4) alleging that some ineligible persons were improperly
receiving payments, and that other eligible persons were being
denied payments to which they were entitled. Appellants alleged
violations of the Indian Gaming Regulation Act (IGRA), 25 U.S.C.
SSSS 2701-2721, the Indian Civil Rights Act (ICRA), 25 U.S.C. SSSS
1301-1303, the Indian Reorganization Act (IRA), 25 U.S.C. SSSS 461-
479, the Racketeer Influenced and Corrupt Organizations Act (RICO),
18 U.S.C. SSSS 1961-1968, and the Tribe's Constitution. Plaintiffs
sought injunctive, monetary, declaratory, and equitable relief, as
well as a writ of mandamus.
Initially, the district court dismissed the tribal defendants
based on tribal sovereign immunity and denied preliminary
injunctive relief. Smith v. Babbitt, 875 F. Supp. 1353, 1371 (D.
Minn. 1995). The plaintiffs appealed. That appeal, No. 95-1784,
was treated as an appeal from an interlocutory order and was
dismissed by an administrative panel of this court. The dismissal
was later vacated and clarified by the administrative panel. The
panel's clarification affirmed its dismissal as to the tribal
defendants but stated that the appeal of the denial of injunctive
relief remained pending as to the federal defendants.
The district court later granted the federal defendants'
motion for summary judgment,(5) incorporating by reference its
earlier order dismissing the tribal defendants. Smith v. Babbitt,
No. 3-94-1435, mem. op. at 14 (D. Minn. Aug. 21, 1995). Again, the
plaintiffs appealed. That appeal, No. 95-3392, involves both the
dismissal of the tribal defendants and the grant of summary
judgment for the federal defendants and subsumes the prior appeal
in this matter. Therefore, we dismiss appeal No. 95-1784 as moot
and limit our discussion to the issues raised in appeal No. 95-
3392.
Appellants contend that the district court erred in dismissing
the tribal defendants and in granting summary judgment to the
federal defendants. Appellants argue, in part, that the district
court: (1) has the duty to prevent future violations of federal
law by both the tribal and federal defendants; (2) has the
authority to enforce IGRA and to determine compliance with its
provisions; and (3) has jurisdiction to review the membership
determinations of the Tribe. Because most of the plaintiffs'
allegations deal with violations of IGRA, our discussion begins
with that statute.
II. DISCUSSION
IGRA allows for the per capita distribution of gaming proceeds
to tribal members if such distribution is according to an adopted
plan which protects the rights of minors (and certain other
persons) and is approved by the Secretary of the Interior. 25
U.S.C. SS 2710(b)(3). The Tribe's allocation plan for per capita
payments, the "Gaming Revenue Allocation Amendments to Business
Proceeds Distribution Ordinance" (Revenue Allocation Amendments),
has received approval from the Secretary of the Interior. Despite
this approval, appellants allege that the Mdewakanton Sioux Tribe
is dispersing funds to nonmembers in violation of this provision of
IGRA, which expressly limits distribution of proceeds to tribal
members. Appellants also argue that such distributions violate
ICRA, IRA, RICO, and the Tribe's Constitution. On its face, the
distribution plan only allows for the payments to tribal members.
Therefore, the determination as to whether such violations are
occurring turns on the issue of tribal membership.
Indian tribes retain elements of sovereign status, including
the power to protect tribal self government and to control internal
relations. See Montana v. United States,
450 U.S. 544, 564
(1981).
One such aspect of this sovereignty is the authority to determine
tribal membership. Id. Such membership determinations are
generally committed to the discretion of the tribes themselves.
Santa Clara Pueblo v. Martinez,
436 U.S. 49, 54
(1978). As the
United States Supreme Court has stated, "[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." Id. at 72 n.32. Essentially, therefore, a membership
dispute is an issue for a tribe and its courts. See, e.g., Equal
Employment Opportunity Comm'n v. Fond du Lac Heavy Equip. and
Constr. Co., 986 F.2d 246, 249 (8th Cir. 1993); Martinez v.
Southern Ute Tribe, 249 F.2d 915, 920 (10th Cir. 1957).
The Mdewakanton Sioux Tribe has exercised its power to
determine its membership. The membership requirements, found in
the Tribe's Constitution, provide that members must either be: (1)
listed on the 1969 census roll; (2) children of at least one-fourth
degree Mdewakanton Sioux blood born to an enrolled member of the
Tribe; or (3) descendants of at least one-fourth degree Mdewakanton
Sioux blood (subject also to successful completion of an
application process). Addendum to Appellants' Brief at 4. The
Tribe amended these requirements by enacting an "adoption"
ordinance, which has now received approval from the Bureau of
Indian Affairs (BIA).(6) This adoption ordinance increased the
number of tribal members eligible for per capita payments and
helped spur the instant dispute.
Careful examination of the complaints and the record reveals
that this action is an attempt by the plaintiffs to appeal the
Tribe's membership determinations. It is true that appellants
allege violations of IGRA, ICRA, IRA, RICO, and the Tribe's
Constitution. However, upon closer examination, we find that these
allegations are merely attempts to move this dispute, over which
this court would not otherwise have jurisdiction, into federal
court. In this regard, an excerpt from the plaintiffs' amended
complaint is particularly telling. In attempting to establish the
Secretary of the Interior's liability, the plaintiffs alleged that
the "scheme" in which the Secretary participated involved:
several willful elements, including: (1) the improper
inclusion of non-members on the Tribe's membership rolls;
(2) the improper removal and exclusion of
constitutionally qualified members from those rolls; (3)
the improper exclusion from such rolls of
constitutionally qualified members whose membership
applications have been indefinitely postponed in their
consideration; and (4) improper payments of gaming
revenues to non-members who have been removed temporarily
from the Tribe's membership rolls.
Amended Complaint at 4. As plaintiffs' own words illustrate, this
conflict concerns nothing more than the Tribe's membership
determinations.
The facts of this case further show that this dispute needs to
be resolved at the tribal level. We note that the Mdewakanton
Tribe has expressly waived sovereign immunity from suit in tribal
court for actions disputing an individual's qualified status to
receive per capita payments. Revenue Allocation Amendments at
SS 14.5(B). Several of the appellants involved in this action have
previously brought similar actions in tribal court. In fact, at
different stages of this action, suits of this very nature were
pending in tribal court. Therefore, as the district court stated:
This is an internal tribal membership dispute. It is not
a dispute over compliance with IGRA, and does not belong
in federal court. Congress did not define "member" when
it enacted IGRA, nor would federally imposed criteria be
consonant with federal Indian policy. The great weight
of authority holds that tribes have exclusive authority
to determine membership issues. A sovereign tribe's
ability to determine its own membership lies at the very
core of tribal self-determination; indeed, there is
perhaps no greater intrusion upon tribal sovereignty than
for a federal court to interfere with a sovereign tribe's
membership determinations.
Smith v. Babbitt, 875 F. Supp. at 1360-61 (citations omitted).
Federal court jurisdiction does not reach this matter simply
because the plaintiffs carefully worded their complaint.
We agree with the district court that this is essentially an
intra-tribal dispute. As such, this court does not have
jurisdiction to consider this appeal. Consequently, we find that
this case is most properly left to tribal authorities, in whom the
discretion over tribal membership determinations is vested.
III. CONCLUSION
For the reasons stated above, we dismiss appeal No. 95-1784 as
moot; affirm the orders of the district court granting summary
judgment and dismissing appeal No. 95-3392; and deny appellants'
motions to supplement the record.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
The Honorable Andrew W. Bogue, Senior United States District
Judge for the District of South Dakota, sitting by designation.
(2)
The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota.
(3)
We use the term "members" loosely, realizing that this
dispute turns on whether or not those so designated are
legitimately eligible for membership.
(4)
For ease of reference, the defendants will be separated into
two groups: (1) "the tribal defendants," including the Shakopee
Mdewakanton Sioux (Dakota) Community, the Shakopee Mdewakanton
Sioux (Dakota) Community Business Council, Stanley R. Crooks,
Kenneth Anderson, and Darlene McNeal; and (2) "the federal
defendants," including Bruce Babbitt, Denise Homer, and Harold A.
Monteau.
(5)
The defendants' motion was titled a "Motion to Dismiss or in
the Alternative for Summary Judgment." The district court,
however, in considering evidence outside of the pleadings, treated
the motion as one for summary judgment. See Fed. R. Civ. P. 12(b).
We will refer to it as such.
(6)
The initial adoption ordinance (No. 10-27-93-001) failed to
win approval from the BIA, as did its successor, the amended
adoption ordinance (No. 11-30-93-002). However, following an
appeal to the Interior Board of Indian Appeals, the amended
adoption ordinance has now been approved.