___________ 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. *

___________

### The Honorab le Andrew W. Bogue, Senior United States District 1 

### Judge for the District of South Dakota, sitting by designation. The Honorable Richard H. Kyle, United States District Judge 2 

### for the District of Minnesota.

We use the term "members" loosely, realizing that thi s 3 

### dis pute turns on whether or not those so designated ar e legitimately eligible for membership.
-3- Submitted: June 10, 1996 Filed: November 7, 1996

___________ Before BEAM and HEANEY, Circuit Judges, and BOGUE, District Judge. 1

BEAM, Circuit Judge.

Louise Smith, et al., appeal the district court's dismissal of their 2 actions alleging, inter alia , violations of the Indian Gaming Regulation Act. Because this dispute essentially involves a question of triba l membership, an intra- tribal matter, this court is without jurisdiction to consider this appeal. Consequently, we affirm t he district court's orders granting summary judgment and dismissing this action.

I. BACKGROUND

The Mdewa kanton Sioux Tribe (the Tribe) runs a gaming establishment

on fed eral trust land located near Prior Lake, Minnesota. Th e establishment has, thus far, been a rather lucrative enterprise. A portio n of the gaming revenues are distributed, per capita, to the Tribe' s memb ers. According to the allegations in the amended complaint, thes e

3 distributions amount to over $400,000, per year, per adult recipient.

Several tribal members and nonmembers (appellants) brought thi s action in federal court against both tribal and federal

### For ease of reference, the defendants will be separated into 4 

### two groups: (1) "the tribal defendants," including the Shakope e MdewakantonSioux (Dakota) Community, the Shakopee Mdewakanto n Sioux (Dakota) Community Business Council, Stanley R. Crooks , Ke nnethAnderson, and Darlene McNeal; and (2) "the federa l defendants," including Bruce Babbitt, Denise Homer, and Harold A. Monteau. The defenda nts' motion was titled a "Motion to Dismiss or in 5 

### the Alternative for Summary Judgment." The district court , however, in considering eviden ce 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.
-4- officials alleging that some inelig ible persons were improperly receiving

4
pay ments, and that other eligible persons were being denied payments t o whichthey were entitled. Appellants alleged violations of the India n Gaming Regulation Act (IGRA), 25 U.S.C. §§ 2701-2721, the Indian Civi l Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, the Indian Reorganization Act (IRA), 25 U.S.C. §§ 461-479, the Racketeer Influenced and Corrup t Organi zations Act (RICO), 18 U.S.C. §§ 1961-1968, and the Tribe' s Const itution. Plaintiffs sought injunctive, monetary, declaratory, an d equitable relief, as well as a writ of mandamus.

Initially , the district court dismissed the tribal defendants based

on t ribal sovereign immunity and denied preliminary injunctive relief

. Smith v. Babbitt , 875 F. Supp. 1353, 1371 (D. Mi nn. 1995). The plaintiffs app ealed. That appeal, No. 95-1784, was treated as an appeal from a n interlocutoryorder and was dismissed by an administrative panel of this court. The dismissal was later vacated and clarified by the administrativ e panel. The panel's c larification 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 distr ict court later granted the federal defendants' motion for summary judgment, incorporating by reference its earlier order dismissing 5 the tribal defendants. Smith v. Babbitt ,

### -5-

No. 3-94-14 35, mem. op. at 14 (D. Minn. Aug. 21, 1995). Again, th e plaintiffs appealed. That appeal, No. 95-3392, involves both the dismissa l of the tribal defendants and the grant of summar y judgment for the federal defendants and subsumes the prior appeal in this matter. Therefore, w e 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 th e tribal defendants and in granting summary judgment to the federa l defendants. Appellan ts argue, in part, that the district court: (1) has the duty to prevent future violations of federal law by both the tribal an d federal defendants; (2) has the authority to enf orce IGRA and to determine compliance with its provisions; and (3) has jurisdiction to review th e 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 t o tribal members if suc h distribution is according to an adopted plan which protects the rights o f minors (and certain other persons) and is approved by the Secretary of the Interior. 25 U.S.C. § 2710(b)(3). The Tribe' s alloca tionplan for per capita payments, the "Gaming Revenue Allocatio n Amendments to Business Proceeds Distribution Ordinance" (Revenue Allocatio n Amendm ents), has received approval from the Secretary of the Interior

. Despite this approval , appellants allege that the Mdewakanton Sioux Tribe is dispersing funds t o nonmembers in violation of this provision of IGRA, whichexpressly limits distribution of proceeds to tribal members

. Appellants also argue that such distributions vi olate ICRA, IRA, RICO, and the Tribe's Constitut ion. On its face, the distribution plan only allows for the payments to tribal members.

### The initial adoption ordinance (No. 10-27-93-001) failed t o 6 

### winapproval from the BIA, as did its successor, the amende d adoption ordinance (No. 11-30-93-002). However, following a n appeal to the Interior Board of Indian Appeals, the amende d adoption ordinance has now been approved.
-6- Therefore, the determination as to whether such violations are occurring turns on the issue of tribal membership.

Indiantribes retain elements of sovereign status, including th e power to protect tribal self government and to c ontrol internal relations. See Montana v. United States , 450 U.S. 544, 564 (1981). One such aspect of this sovereignty i s the authority to determine tribal membership. Id. Suchmembership 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 righ t to define its own mem bership for tribal purposes has long been recognized

as central to its existence as an independent political community." Id. at 72 n.32. Essentia lly, therefore, a membership dispute is an issue for a tribe and its courts. See , e.g. , Equal Employ ment Opportunity Comm'n v. Fond du L ac 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 exer cised its power to determine its memb ership. The membership requirements, found in the Tribe' s Constitution, provide that members must either b e: (1) listed on the 1969 census roll; (2) chil dren of at least one-fourth degree Mdewakanton Sioux blood b orn to an enrolled member of the Tribe; or (3) descendants of a t least one-fourth degree Mdewakanton Sioux blood (subject also to successfu l completionof an application process). Addendum to Appellants' Brief at 4. The Tribe amended these requirements by enacting an "adoption " ordi nance, which has now received approval from the Bureau of India n Affairs (BIA). This adoption ordinance increased the 6

### -7-

number of tribal memb ers eligible for per capita payments and helped spur the instant dispute.

Careful examination of the complaints and the record reveals tha t this act ion is an attempt by the plaintiffs to appeal the Tribe' s membership determinations. It is true that appellants allege violations of IG RA, ICRA, IRA, RICO, and the Tribe's Constitution. However, upo n closer examination, w e find that these allegations are merely attempts to
move this dispute, over which this court would not otherwise hav e juris diction, into federal court. In this regard, an excerpt from th e plaintiffs' amended complaint is particularly telling. In attempting to establish the Secretary of the Interior's liability, the plaintiffs allege d that the "scheme" in which the Secretary participated involved:

sev eral willful elements, including: (1) the imprope r inclusionof non-members on the Tribe's membership rolls; (2) the improper removal and exclusion of constitutionall y qualified members from t hose rolls; (3) the improper exclusion from such rolls of constitutionally qualified members whos e mem bership applications have been indefinitely postponed i n their consideration; and (4) improper payments of gamin g 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 b e
res olved at the tribal level. We note that the Mdewakanton Tribe ha s expressly waived sove reign immunity from suit in tribal court for actions disputing an individual's qualified status to re ceive per capita payments. Revenue Allocation Amendments at § 1 4.5(B). Several of the appellants involved in this action hav e previously brought similar actions in tribal court. In fact, at

### -8-

different stages of this action, suits of this v ery nature were pending in tribal court. Therefore, as the district court stated:

Th is is an internal tribal membership dispute . It is not a dis pute over compliance with IGRA, and does not belong i n fed eral court. Congress did not define "member" when i t enacted IGRA, nor would federally imposed criteria be consonant wit hfederal Indian policy. The great weight of authorit y hold s that tribes have exclusive authority to determin e member ship issues. A sovereign tribe's ability to determin e its own membership lies at the very core of tribal self

de termination; indeed, there is perhaps no greater intrusio n upontribal sovereignty than for a federal court to interfere with a sovereign tribe's membership determinations.

Smithv. Babbitt , 875 F. Supp. at 1360-61 (citations omitted). Federa l court jurisdiction does not reach this matter simply because the plaintiff s carefully worded their complaint.

We agree with the district court that this is essentially an intratribal dispute. As such, this court does not have jurisdiction to conside r this appeal. Consequently, we find that this case is most properly left to tri bal authorities, in whom the discretion over tribal membershi p determinations is vested.

III. CONCLUSION

For the reasons stated above, we dis miss appeal No. 95-1784 as moot; affirm the orders of the district court granting summary judgment an d dismissing appeal No. 95-3392; and deny appellants' motions to supplement the record.

### -9- A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.