* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 20 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDWARD KENNEDY; CATHERINE A. SINGER, Plaintiffs - Appellants,

v. RICHARD HUGHES; WALTER DASHENO; EDWIN TAFOYA; DALE BACA; CHARLES SUAZO; JOSEPH VAL GUTIERREZ; C. ANTHONY SUAZO; JOSE N. CHAVARRIA; JOHN SHIJE; FRANCIS TAFOYA; ALVIN WARREN; DENNY GUTIERREZ; GEORGE GUTIERREZ, Defendants - Appellees. No. 02-2112 (D.C. No. CIV-01-1183-WJ/LFG) (D. New Mexico)

ORDER AND JUDGMENT *

Before LUCERO , BALDOCK , and McCONNELL , Circuit Judges.1 Judge Silva incarcerated Kennedy and seized Singe r’s property when

Kennedy failed to pay two default judgments entered against him in lawsuits brought by plaintiffs who are not parties to the in stant case. -2- Plaintiffs, members of two different Indian tribes, filed suit in federal district court against several officials of the San ta Clara Pueblo Tribe, claiming violations of their civil and constitutional rights as protected by the Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1301 et seq. Conc luding that ICRA does not authorize plaintiffs’ suit, the district court dism issed the action. Kennedy v. Hughes , No. CIV 01-1183 WJ/LFG, slip op. at 5 (D.N.M. Mar . 27, 2002). In order to resolve the issue presented, we reassess t he extent to which Congress created a private cause of action under ICRA. We h ave jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I Edward Kennedy, a member of the Blackfeet Indian Tr ibe, and his wife Catherine A. Singer, a member of the Santa Clara Pu eblo (collectively, “plaintiffs”), both reside on the Santa Clara Puebl o reservation. In 1996, plaintiffs filed a suit in the Santa Clara Tribal C ourt against Chief Judge Silva of that court and fourteen Santa Clara Tribal Council (“Council”) members, claiming that their civil rights were violated when Chief Ju dge Silva incarcerated Kennedy and seized property belonging to Singer. 1 Richard Hughes was retained by the Council to defend this suit. On September 11, 1997 , Santa Clara Tribal Court2 According to the parties, this action was still p ending on remand to the

Santa Clara Tribal Court as of August 2002 (the dat e defendants filed responsive briefing before this court). -3- Judge H. Paul Tsosie granted defendants’ motion to dismiss the complaint. Plaintiffs then appealed to the Santa Clara Pueblo Tribal Court of Appeals, which reversed the tribal court’s dismissal in 1998 and r emanded for further proceedings. 2 Central to the tribal appeal of plaintiffs’ Tribal Court suit against Silva and the Tribal Council members was whether a waiver of the tribe’s sovereign immunity for purposes of civil rights actions conti nued to be in effect. In 1981, the Council had enacted a Law and Order Code (“Code ”) that contained a waiver of immunity for civil rights actions. In December 1983, the Council repealed this waiver by resolution, reaffirming its immunity from suit and that of its members, officers, employees, and staff. In March 1985, how ever, the Council reenacted the 1981 Code, but, according to the Council, the r eenactment was “subject to all intervening changes, including the repeal of [the w aiver provision].” (Appellant’s App. at 75.) Nonetheless, Hughes advised the Counc il following the remand of plaintiffs’ suit that the status of the waiver was uncertain, and suggested a proposed resolution reaffirming the tribe’s soverei gn immunity in civil rights cases. This resolution was passed in November 1998 as Resolution No. 98-29.3 After Judge DeMolli dismissed plaintiffs’ second case in tribal court, the

Council concluded that the cost of maintaining a se parate tribal court of appeals was not justified, and transferred appellate jurisd iction over decisions of the Tribal Court to the Southwest Intertribal Court of Appeals (“SWITCA”). While the attorney for Kennedy and Singer was aware of th is transfer of appellate jurisdiction, Kennedy and Singer apparently did not pursue an appeal before SWITCA. -4- Following the enactment of this resolution, the pla intiffs filed a new action in the Santa Clara Tribal Court against Hughes and all the members of the Council who had voted to adopt Resolution No. 98-29 . In this action, the plaintiffs claimed that Resolution No. 98-29 violat ed their rights under the Santa Clara Pueblo Constitution and their rights under th e U.S. Constitution as protected by ICRA. Judge Frank DeMolli, appointed as Tribal Judge pro tempore, granted defendants’ motion to dismiss. Plaintiffs did not appeal this order. 3 In October 2001, plaintiffs filed the present suit in federal district court against several tribal officials (collectively “Tri bal Defendants”) and Hughes. In this action, plaintiffs claimed that the Tribal Def endants and Hughes had violated their constitutional rights as protected by ICRA, 2 5 U.S.C. § 1302 (“No Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal protection of its laws o r deprive any person of liberty or property without due process of law.”). Specifical ly, plaintiffs made the same argument they had raised in their second suit in tr ibal court, claiming that the enactment of Regulation No. 98-29 violated the Sant a Clara Pueblo Constitution,-5-

the United States Constitution, and § 1302 of ICRA, insofar as it denied them due process and equal protection of the law. Plaintiff s sought compensatory and punitive damages as well as declaratory relief. Hughes and the Tribal Defendants filed separate mot ions to dismiss, arguing, among other grounds, that § 1302 of ICRA d oes not create a cause of action for this claim in federal court. The distri ct court dismissed the action pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim or, in the alternative, for lack of subject matter jurisdictio n. Kennedy v. Hughes , slip op. at 5. Plaintiffs appeal this decision.
II A dismissal for lack of subject matter jurisdiction is reviewed de novo. U.S. West, Inc. v. Tristani , 182 F.3d 1202, 1206 (10th Cir. 1999). In reviewi ng a dismissal for failure to state a claim under Rule 1 2(b)(6), we accept all wellpleaded factual allegations in the complaint as tru e and view them in the light most favorable to the nonmoving party. Sutton v. U tah State Sch. for the Deaf & Blind , 173 F.3d 1226, 1236 (10th Cir. 1999). The legal sufficiency of a complaint is a question of law; therefore, a Rule 1 2(b)(6) dismissal is reviewed de novo. Id. Because plaintiffs’ federal suit in the instant cas e is based on § 1302 of ICRA, we consider as a threshold matter whether a p rivate cause of action may be-6-

brought under that section. In Santa Clara Pueblo v. Martinez , 436 U.S. 49, 69 (1978), the Supreme Court held that the only provis ion of ICRA that authorizes a private cause of action is § 1303, the habeas corpu s provision. The Court held that § 1302, the section under which plaintiffs bri ng the instant action, “does not impliedly authorize actions for declaratory or inju nctive relief against either [a] tribe or its officers.” Id. at 72. We recognized a limited exception to this rule in the case of Dry Creek Lodge, Inc. v. Arapahoe and S hoshone Tribes , 623 F.2d 682 (10th Cir. 1980), and plaintiffs claim that the ir action falls under the Dry Creekexception to Santa Clara

. In Dry Creek , the plaintiffs were non-Indians involved in a lan d dispute with two Indian tribes. Id. at 683–84. Although we acknowledged Santa Clara as governing authority, we nonetheless noted that the Dry Creekplaintiffs had “no remedy within the tribal machinery nor with the tri bal officials in whose election they cannot participate.” Id. at 685. We accordingly distinguished Santa Clara on the grounds that Santa Clarainvolved “entirely an internal matter concerning tribal members” and that “[t]he members of the Trib e who were seeking relief also had access to their own elected officials and their tribal machinery to settle the problem.” Id. We have held that our holding in Dry Creek must be interpreted narrowly to avoid conflict with the Supreme Court’s decision in Santa Clara . White v. Pueblo4 Subsequent decisions have limited the Dry Creek exception to cases

involving “particularly egregious allegations of pe rsonal restraint and deprivation of personal rights.” Ramey Constr. Co. v. Apache Tr ibe of Mescalero Reservation , 673 F.2d 315, 319 n.4 (10th Cir. 1982); Jicarilla Apache Tribe v. Andrus , 687 F.2d 1324, 1346 (10th Cir. 1982).

5 The district court did not reach the first requir ement in light of its determination that the other two requirements were not met. Kennedy v. Hughes , slip op. at 4. -7- of San Juan , 728 F.2d 1307, 1312 (10th Cir. 1984). In order f or the Dry Creek exception to apply, “[a] plaintiff must demonstrate : the dispute involves a nonIndian party; a tribal forum is not available; and the dispute involves an issue falling outside internal tribal affairs.” Ordinanc e 59 Ass’n v. U.S. Dep’t of the Interior Sec’y , 163 F.3d 1150, 1156 (10th Cir. 1998). 4 In the instant case, the district court concluded t hat plaintiffs had failed to satisfy the second two requirements for the Dry Cre ekexception to apply. 5 Kennedy v. Hughes , slip op. at 4–5. As to the existence of a tribal forum, the district court concluded that a tribal forum is ava ilable in this case, as plaintiffs have filed two actions before the Santa Clara Triba l Court, the second of which involved the same claim as in the instant federal c ase. In this Court, plaintiffs assert that they “have de monstrated that no tribal forum is viable to hear and decide their claims.” ( Appellants’ Br. at 9.) According to plaintiffs, “[a] pro tem judge appoint ed by the Tribal Defendants determined that Appellants’ second complaint should be dismissed because the6 See supranote 3. -8-

Santa Clara Tribal Defendants’ actions were not sub ject to judicial review.” (Id. at 6.) This misrepresents the tribal court’s decision. Ju dge Frank Demolli, appointed to hear plaintiffs’ case in tribal court, expressly ruled that the court had “both subject matter and personal jurisdiction” ove r the case (Appellants’ App. at 101), and rejected plaintiffs’ claims on the merits under ICRA as well as the Constitution and Bylaws of the Santa Clara Pueblo. In an extensive written opinion relying on both federal and tribal court pr ecedent, Judge Demolli held that Santa Clara Pueblo tribal courts are available as forums for adjudication of civil rights claims under ICRA and other law, and t hat “[a]ny civil rights claim shall be reviewed using the background of tribal so vereignty and in the context of the Pueblo of Santa Clara’s unique tribal law and c ustom.” (Id. at 106.) Judge Demolli then proceeded to explain why plaintiffs’ c laims of due process, equal protection, and bill of attainder violations were d eficient on the merits to state a claim on which relief may be granted. Plaintiffs d id not appeal. 6 The Dry Creekexception thus plainly does not apply. In Dry Creek , there was “no forum where the dispute can be resolved and the personal and property rights asserted by plaintiffs be considered.” 623 F.2d at 684. Here, by contrast, the Santa Clara Pueblo has made its tribal courts a vailable for vindication of such-9-

rights. This is precisely as contemplated by the S upreme Court: “Tribal forums are available to vindicate rights created by the IC RA . . . . Tribal courts have repeatedly been recognized as appropriate forums fo r the exclusive adjudication of disputes affecting important personal and proper ty interests of both Indians and non-Indians.” Santa Clara Pueblo v. Martinez , 436 U.S. at 65. Plaintiffs have taken advantage of that forum, not once but twice. They did not prevail on the merits, but that does not entitle them to take thei r claim to federal court. In light of the availability of a tribal forum, we need not consider whether plaintiffs’ case satisfies any of the other element s of the Dry Creekexception. Because Santa Claraholds that there is no private cause of action und er ICRA outside the habeas context and plaintiffs fall unde r no exception to this rule, the district court correctly dismissed this suit for la ck of subject matter jurisdiction or failure to state a claim upon which relief may be g ranted.
III The judgment of the district court is AFFIRMED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge