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

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e 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 Minn is & Associates, P.C., Oklahoma City, Oklahoma, for Plaintiffs - Appellant s.-2-

John W. Hunt, Broken Arrow, Oklahoma, for Defendant- Appellee Phil Lujan. Michael Salem of Salem Law Offices, Norman, Oklahom a, for Defendant - Appellee Guy Munroe.

Before HENRY , BRISCOE , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.

Plaintiffs appeal the dismissal of their suit for l ack of subject matter jurisdiction. They contend that the district courterred in characterizing their claims as involving a purely intratribal dispute an d assert that the district court had jurisdiction to determine whether certain perso ns 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 grante d by the Oklahoma Indian Welfare Act of 1936. Under this constitution the T ribe has two legislative bodies, a seven-member Executive Council and a General Coun cil composed of all adult tribal members. Among the Executive Council’s powe rs is that of selecting-3-

judges to the Tribe’s supreme and inferior courts. Those selected must then be confirmed by the General Council. The individual P laintiffs are members of the Tribe and are or were members of its Executive Coun cil. Apparently, Clyde McCauley and Clark Pepper have been removed from th e Executive Council, and Martha Spotted Bear and Jesse Mehojah are the subje ct of removal proceedings. The Executive Council selected Defendant Phil Lujan as judge of the KNDC on June 8, 2002. Plaintiffs contend that he w as not properly confirmed under the Tribe’s constitution and hence may not ex ercise judicial authority. Plaintiff McCauley first challenged Lujan’s judicia l authority in early November 2002. Lujan rejected McCauley’s argument on Novemb er 7, 2002, ruling that he was properly appointed under tribal “rules of proce dure 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 se rved as justices of the Kaw Nation Supreme Court since 1999. Plaintiffs co ntend that the two men were not properly selected or confirmed as justices. Ac cording to the district court, it is unclear whether they were ever selected by the E xecutive Council; but Morris was confirmed by the General Council on September 1 2, 1999, and the General Council has indicated that it confirmed Tripp on Ju ne 27, 1999.-4-

On December 5, 2002, Defendant Guy Munroe, the Trib e’s chairman, filed suit in the KNDC to remove the individual Plaintiff s from the Executive Council. Lujan, acting as a KNDC judge, enjoined the individ ual 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, M orris, and Tripp. Nevertheless, the General Council confirmed Lujan o n December 15, 2002. A hearing in the KNDC was scheduled for January 13, 2 003, on charges that the individual Plaintiffs committed contempt by violati ng 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 Di strict Court for the Western District of Oklahoma, invoking federal jurisdictionunder 28 U.S.C. §§ 1331 (cases arising under the Constitution, laws, or tre aties 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 underthe Indian Civil Rights Act (ICRA), 25 U.S.C. § 1301 et seq. In Count I they s eek a declaration that Lujan was not lawfully appointed a KNDC judge and an inju nction prohibiting him from exercising the functions of that office. In Count II they allege that (1) Munroe-5-

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 fu nds. 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 t emporary 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 Tr ipp were not properly appointed to the Tribe’s Supreme Court and (2) injunctions ag ainst their serving on that
court. Lujan and Munroe moved the district court to dismis s. On February 5, 2003, the district court dismissed Count II for fai lure 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 fa ilure to exhaust tribal remedies, and it dissolved the TRO. Plaintiffs the n filed two motions, one for an amendment to the judgment, requesting that the dist rict court clarify which tribal-6-

remedies required exhaustion, and the other for rel ief 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 whe ther it possessed subject matter jurisdiction. The parties complied. On July 1 the district court dismissed the action f or lack of subject matter jurisdiction, concluding that it lacked jurisdictio n to resolve what was essentially an intratribal dispute. The district court rejecte d Plaintiffs’ arguments that their claims arose under federal law. It reiterated that18 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 cont esting 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 L ujan, Morris, and Tripp, this was insufficient to create federal subject matter juris diction over Plaintiffs’ case. The district court entered judgment on July 10, 200 3, and Plaintiffs timely appealed. II. DISCUSSION We review de novo the district court’s dismissal fo r lack of subject matter jurisdiction. See, e.g. , Ordinance 59 Ass’n v. U.S. Dep’t of Interior , 163 F.3d-7-

1150, 1152 (10th Cir. 1998). Plaintiffs have not appealed the district court’s dismissal of their claim under 18 U.S.C. § 1163, an d 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 civi l 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 Suprem e 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 limit ed to a writ of habeas corpus). And supplemental jurisdict ion under 28 U.S.C. § 1367 must be predicated upon original subject matter jur isdiction in the district court. As discussed below, because Plaintiffs’ complaint d oes 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, Plai ntiffs must establish that they have a claim arising under federal law. Plain tiffs present two arguments. (We decline to consider a third argument, raised fo r 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 Int erior. Although concerns-8-

about the proper exercise of judicial power may req uire us to consider a challenge to subject matter jurisdiction first raised in a re ply brief, see Murphy v. Derwinski , 990 F.2d 540, 543 (10th Cir. 1993), we need not c onsider 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 Co urt’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 limi ts of its jurisdiction.” Aplt. Br. at 13. Plaintiffs are correct that under National Farmers the outer boundaries of tribal jurisdiction—particularly over non-members—m ay be a matter of federal law. See National Farmers , 471 U.S. at 851-53. But Plaintiffs do not contes t the limits of tribal jurisdiction; they challenge the r ight of Lujan, Morris, and Tripp to exercise judicial authority. Tribal law, not feder al 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 straightforw ard, to-wit: (1) the Kaw Nation Constitution requires judges and justice s to be selected by the Executive Council and confirmed by the Gener al Council, (2) Lujan’s hiring was not confirmed by the General Cou ncil prior to the-9-

Executive Council’s withdrawing Lujan’s hiring, and(3) no person has been selected by the Executive Council and conf irmed 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 no t purely intratribal. They recite a “litany” of “actual and potential non-intr a-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 beyondtribal members, the underlying controversy is over whether he was properly appoint ed 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 orTripp—a federal question. As discussed above, however, these appointments are governed by tribal rather than federal law. A dispute over the meaning of tr ibal law does not “arise under the Constitution, laws, or treaties of the United S tates,” as required by 28 U.S.C. §§ 1331 and 1362. This is the essential point of o pinions 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 P ottawatomie Tribe of Indians v. Udall , 355 F.2d 364, 366 (10th Cir. 1966).-10-

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 Secreta ry of the Interior affecting tribal members,” whereas in this case “the relief s ought . . . is entirely consistent with determinations by the Secretary and is sought against several non-Kaw Nation members (Lujan, Morris and Tripp) who have s et up a phony court system that is issuing orders and decrees without any judi cial 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 questio n, jurisdiction will not lie under §1331 or § 1362. Thus, the district court p roperly dismissed Plaintiffs’

case. III. CONCLUSION AFFIRMED.