*After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 16 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KAW NATION, ex rel. Clyde

McCauley, Martha Spotted Bear, Clark

Pepper and Jesse Mehojah; and

CLYDE McCAULEY; JESSE

MEHOJAH; CLARK PEPPER; and

MARTHA SPOTTED BEAR,

individually,

Plaintiffs - Appellants,

v. No. 03-6213

PHIL LUJAN; CHARLES BRADY

MORRIS; GUY MUNROE; and

CHARLES HENRY TRIPP,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. NO. CIV-03-39-M)

Submitted on the briefs *

:

Michael Minnis and David McCullough of Michael Minnis & Associates, P.C.,

Oklahoma City, Oklahoma, for Plaintiffs - Appellants.
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John W. Hunt, Broken Arrow, Oklahoma, for Defendant - Appellee Phil Lujan. 

Michael Salem of Salem Law Offices, Norman, Oklahoma, for Defendant -

Appellee Guy Munroe. 

Before HENRY , BRISCOE , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

Plaintiffs appeal the dismissal of their suit for lack of subject matter

jurisdiction. They contend that the district court erred in characterizing their

claims as involving a purely intratribal dispute and assert that the district court

had jurisdiction to determine whether certain persons were properly appointed to

the Kaw Nation District Court (KNDC) and the Kaw Nation Supreme Court. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

A. Tribal Proceedings

This case arises from a dispute among officials of the Kaw Nation of

Oklahoma (the Tribe), a federally recognized Indian tribe. The Tribe adopted its

present constitution in 1990 under authority granted by the Oklahoma Indian

Welfare Act of 1936. Under this constitution the Tribe has two legislative bodies,

a seven-member Executive Council and a General Council composed of all adult

tribal members. Among the Executive Council’s powers is that of selecting
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judges to the Tribe’s supreme and inferior courts. Those selected must then be

confirmed by the General Council. The individual Plaintiffs are members of the

Tribe and are or were members of its Executive Council. Apparently, Clyde

McCauley and Clark Pepper have been removed from the Executive Council, and

Martha Spotted Bear and Jesse Mehojah are the subject of removal proceedings. 

The Executive Council selected Defendant Phil Lujan as judge of the

KNDC on June 8, 2002. Plaintiffs contend that he was not properly confirmed

under the Tribe’s constitution and hence may not exercise judicial authority. 

Plaintiff McCauley first challenged Lujan’s judicial authority in early November

2002. Lujan rejected McCauley’s argument on November 7, 2002, ruling that he

was properly appointed under tribal “rules of procedure establishing the Court by

Tribal law,” rather than under the Tribe’s constitution. Aplt. App. at 91 (internal

quotation marks omitted). 

Defendants Charles Tripp and Charles Morris have served as justices of the

Kaw Nation Supreme Court since 1999. Plaintiffs contend that the two men were

not properly selected or confirmed as justices. According to the district court, it

is unclear whether they were ever selected by the Executive Council; but Morris

was confirmed by the General Council on September 12, 1999, and the General

Council has indicated that it confirmed Tripp on June 27, 1999. 
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On December 5, 2002, Defendant Guy Munroe, the Tribe’s chairman, filed

suit in the KNDC to remove the individual Plaintiffs from the Executive Council. 

Lujan, acting as a KNDC judge, enjoined the individual Plaintiffs from voting as

members of the Council. On December 12, 2002, the Executive Council passed

resolutions withdrawing its prior motion to select Lujan and instructing the court

clerk to cease sending case information to Lujan, Morris, and Tripp. 

Nevertheless, the General Council confirmed Lujan on December 15, 2002. A

hearing in the KNDC was scheduled for January 13, 2003, on charges that the

individual Plaintiffs committed contempt by violating the injunctions. 

B. Federal Court Proceedings

On January 8, 2003, five days before the scheduled contempt hearing in the

KNDC, Plaintiffs filed suit in the United States District Court for the Western

District of Oklahoma, invoking federal jurisdiction under 28 U.S.C. §§ 1331

(cases arising under the Constitution, laws, or treaties of the United States), 1362

(actions brought by Indian tribes that arise under the Constitution, laws, or

treaties of the United States), and 1367 (supplemental jurisdiction over claims

substantially related to federal claims), and under the Indian Civil Rights Act

(ICRA), 25 U.S.C. § 1301 et seq. In Count I they seek a declaration that Lujan

was not lawfully appointed a KNDC judge and an injunction prohibiting him from

exercising the functions of that office. In Count II they allege that (1) Munroe
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has been using tribal funds to pay Lujan’s salary and to pay Lee Stout, an attorney

allegedly conspiring with Defendants to control the Tribe’s courts, and (2) these

expenditures violated 18 U.S.C. § 1163, a criminal statute prohibiting the

embezzlement or willful misapplication of tribal funds. Count II seeks to enjoin

Munroe from paying Lujan or Stout, and seeks money damages against Munroe

and Lujan for the allegedly improper expenditure of tribal funds for judicial

salaries and Stout’s attorney fees. 

On January 13, 2003, the district court entered a temporary restraining

order (TRO) prohibiting Lujan from acting as a KNDC judge and set a hearing on

Plaintiffs’ request for a preliminary injunction. The next day Plaintiffs amended

their complaint to add Morris and Tripp as defendants in Count II, and in Counts

III and IV seek (1) declarations that Morris and Tripp were not properly appointed

to the Tribe’s Supreme Court and (2) injunctions against their serving on that

court. 

Lujan and Munroe moved the district court to dismiss. On February 5,

2003, the district court dismissed Count II for failure to state a claim, holding that

18 U.S.C. § 1163 does not create a private right of action. In addition, it

dismissed the other counts without prejudice for failure to exhaust tribal

remedies, and it dissolved the TRO. Plaintiffs then filed two motions, one for an

amendment to the judgment, requesting that the district court clarify which tribal
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remedies required exhaustion, and the other for relief from the judgment under

Federal Rule of Civil Procedure 60(b). On June 6 the district court sua sponte

ordered the parties to submit briefs addressing whether it possessed subject matter

jurisdiction. The parties complied. 

On July 1 the district court dismissed the action for lack of subject matter

jurisdiction, concluding that it lacked jurisdiction to resolve what was essentially

an intratribal dispute. The district court rejected Plaintiffs’ arguments that their

claims arose under federal law. It reiterated that 18 U.S.C. § 1163 did not create

a private right of action, and it followed Supreme Court precedent, Santa Clara

Pueblo v. Martinez, 436 U.S. 49, 69-70 (1978), in ruling that relief under the

ICRA could be sought solely through a petition for a writ of habeas corpus. The

district court also ruled that Plaintiffs were contesting only issues of tribal law,

and held that even if Plaintiffs were correct that the rights of non-Indians were

affected by the exercise of judicial authority by Lujan, Morris, and Tripp, this was

insufficient to create federal subject matter jurisdiction over Plaintiffs’ case.

The district court entered judgment on July 10, 2003, and Plaintiffs timely

appealed. 

II. DISCUSSION

We review de novo the district court’s dismissal for lack of subject matter

jurisdiction. See, e.g., Ordinance 59 Ass’n v. U.S. Dep’t of Interior, 163 F.3d
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1150, 1152 (10th Cir. 1998). Plaintiffs have not appealed the district court’s

dismissal of their claim under 18 U.S.C. § 1163, and in any event that dismissal

was correct, see Kaw Nation v. Springer, 341 F.3d 1186, 1190 (10th Cir. 2003)

(“We agree that no private right of action for civil parties exists under 18 U.S.C.

§ 1163.”). We hold that none of the other statutes relied on by Plaintiffs in their

complaint—28 U.S.C. §§ 1331, 1362, & 1367, and the ICRA, 25 U.S.C. § 1301

et seq.—creates federal subject matter jurisdiction over their case. 

The district court correctly held that under Supreme Court precedent,

declaratory and injunctive relief and money damages are not available under the

ICRA. See Martinez, 436 U.S. at 69-70 (relief under the ICRA is limited to a

writ of habeas corpus). And supplemental jurisdiction under 28 U.S.C. § 1367

must be predicated upon original subject matter jurisdiction in the district court. 

As discussed below, because Plaintiffs’ complaint does not present a federal

question, there was no original jurisdiction in the district court, and hence no

basis for supplemental jurisdiction either. 

To acquire jurisdiction under §1331 or § 1362, Plaintiffs must establish that

they have a claim arising under federal law. Plaintiffs present two arguments. 

(We decline to consider a third argument, raised for the first time in their reply

brief on appeal, that the complaint raises federal issues because it simply seeks to

enforce determinations by the Department of the Interior. Although concerns
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about the proper exercise of judicial power may require us to consider a challenge

to subject matter jurisdiction first raised in a reply brief, see Murphy v.

Derwinski, 990 F.2d 540, 543 (10th Cir. 1993), we need not consider a new

argument in support of jurisdiction, see Stump v. Gates, 211 F.3d 527, 533 (10th

Cir. 2000) (“This court does not ordinarily review issues raised for the first time

in a reply brief.”).) 

First, Plaintiffs contend that under the Supreme Court’s decision in

National Farmers Union Insurance Companies v. Crow Tribe, 471 U.S. 845

(1985), “a federal court is empowered to determine under 28 U.S.C. § 1331

whether a tribal court has exceeded the lawful limits of its jurisdiction.” Aplt. Br.

at 13. Plaintiffs are correct that under National Farmers the outer boundaries of

tribal jurisdiction—particularly over non-members—may be a matter of federal

law. See National Farmers, 471 U.S. at 851-53. But Plaintiffs do not contest the

limits of tribal jurisdiction; they challenge the right of Lujan, Morris, and Tripp to

exercise judicial authority. Tribal law, not federal law, dictates which personnel

may exercise tribal judicial authority. Plaintiffs cite no federal law allegedly

violated by the manner in which Lujan, Morris, and Tripp acquired their

judgeships. On the contrary, Plaintiffs state the following: 

[Plaintiffs’] assertions are clear and straightforward, to-wit: (1) the

Kaw Nation Constitution requires judges and justices to be selected

by the Executive Council and confirmed by the General Council, (2)

Lujan’s hiring was not confirmed by the General Council prior to the
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Executive Council’s withdrawing Lujan’s hiring, and (3) no person

has been selected by the Executive Council and confirmed by the

General Council as a Kaw Nation justice. 

Reply Br. at 4-5 (internal quotation marks and footnote omitted). None of these

three claims is based on federal law. 

Second, Plaintiffs contend that the district court had jurisdiction to hear

their case because the underlying controversy is not purely intratribal. They

recite a “litany” of “actual and potential non-intra-tribal impact[s] of Lujan’s

illegal exercise of jurisdiction.” Aplt. Br. at 17. But even if the effects of

Lujan’s exercise of judicial authority reach beyond tribal members, the underlying

controversy is over whether he was properly appointed to the KNDC. To

establish jurisdiction under either §1331 or §1362, Plaintiffs must point to a law

that makes the appointment of Lujan—or of Morris or Tripp—a federal question. 

As discussed above, however, these appointments are governed by tribal rather

than federal law. A dispute over the meaning of tribal law does not “arise under

the Constitution, laws, or treaties of the United States,” as required by 28 U.S.C.

§§ 1331 and 1362. This is the essential point of opinions holding that a federal

court has no jurisdiction over an intratribal dispute. See, e.g., Motah v.

United States, 402 F.2d 1, 2 (10th Cir. 1968); Prairie Band of Pottawatomie Tribe

of Indians v. Udall, 355 F.2d 364, 366 (10th Cir. 1966). 
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Plaintiffs’ attempt to distinguish Udall, 355 F.2d at 366, misses the mark. 

According to Plaintiffs, Udall involved “a suit against the federal government

seeking to challenge a determination by the Secretary of the Interior affecting

tribal members,” whereas in this case “the relief sought . . . is entirely consistent

with determinations by the Secretary and is sought against several non-Kaw

Nation members (Lujan, Morris and Tripp) who have set up a phony court system

that is issuing orders and decrees without any judicial jurisdictional authority.” 

Aplt. Br. at 15. But even if the Secretary agrees with Plaintiffs’ position, the

propriety of the appointments of Lujan, Tripp, and Morris to tribal courts is not

governed by federal law. Without a federal question, jurisdiction will not lie

under §1331 or § 1362. Thus, the district court properly dismissed Plaintiffs’

case. 

III. CONCLUSION

AFFIRMED.