___________

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 Honorable 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 this

3

dispute turns on whether or not those so designated are

legitimately eligible for membership. 

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 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 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. According to the allegations in the amended complaint, these

3

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

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. 

 The defendants' motion was titled a "Motion to Dismiss or in 5

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.

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officials alleging that some ineligible persons were improperly receiving 4

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. §§ 2701-2721, the Indian Civil

Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, the Indian Reorganization Act

(IRA), 25 U.S.C. §§ 461-479, the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. §§ 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, incorporating by reference its earlier order dismissing 5

the tribal defendants. Smith v. Babbitt,
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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. § 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. 
 The initial adoption ordinance (No. 10-27-93-001) failed to

6

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.

-6-

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). This adoption ordinance increased the 6
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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 

§ 14.5(B). Several of the appellants involved in this action have

previously brought similar actions in tribal court. In fact, at
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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 selfdetermination; 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 intratribal 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. 
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A true copy.

Attest:

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