Warren E. Burger: We will hear arguments next in Santa Clara Pueblo v. Martinez. Mr. Prelo, you may proceed whenever you are ready.
Marcelino Prelo: Mr. Chief Justice and may it please the Court. This case is before this Court on a writ of certiorari to the Tenth Circuit Court of Appeals. The case involves the application of Section 13028 of the Indian Civil Rights Act of 1968, as it applies to a Santa Clara Pueblo membership ordinance enacted in 1939. The ordinance provides that children born of Santa Clara males and Santa Clara females shall be Santa Clara members. Children born of Santa Clara males and non- Santa Clara females would likewise be members of tribe whereas children born of Santa Clara females and non-Santa Clara males would not be members of the tribe. The plaintiffs alleged the ordinance, violates the Indian Civil Rights Act and the defendants have continuously raised the lack of jurisdiction and the sovereign immunity of the tribe. The District Court of the District of New Mexico found that there was in fact jurisdiction but that the ordinance did not violate the Indian Civil Rights Act. The Tenth Circuit reversed not discussing tribal immunity to any extent whatsoever and finding that in fact there was jurisdiction and that the ordinance was violated. A little factual background on Santa Clara Pueblo, I believe would be beneficial before going into further argument. It is a small reservation, some 4,800 acres. The membership is small approximately 1,200 members, located in the northern part of the State of New Mexico. It is a Pueblo tribe --
Speaker: What are whereabouts in the other Northern part of the city?
Marcelino Prelo: It is a near Santa Fe, I mean that the Northern Santa Fe. The tribe has organized pursuant to constitution, one of the Organization Act of 1934 and it is un-contradicted that the tribe has existed as a distinct social and cultural unit for at least 700 years and has existed at its present location for some 300 years. It has been surrounded first by the Spaniards and now by the United States of America and has continued to exist notwithstanding the fact that it has been surrounded by an alien culture.
Speaker: Mr. Prelo, does it make any difference in your argument whether this is in fact a reservation or whether the Santa Clara Pueblo is an Indian Tribe?
Marcelino Prelo: May it please the Court. I would use then identical ---
Speaker: Interchangeable --
Marcelino Prelo: The Governor, the Chief Executive Officer of the tribe that is empowered to run a day-to-day functions of the tribe primarily and he serves on the council and can only vote on the council at such time as the council may have a tribe vote. The council under the constitution has the authority to determine membership in the tribe and has thus done under the 1939 ordinance. The defendants in this case, Santa Clara Pueblo have from the very outset, claimed that the 1939 ordinance is a written embodiment of pre-existing unwritten rules of membership and I might point out that prior to 1935, nothing was written within the Pueblo culture. They had no written rules. They have further alleged throughout and do so that the ordinance is essential to the cultural and religious heritage and vital to the very existence of the tribe. There has been no variants from that ordinance from the time it was enacted. The plaintiffs Mrs. Martinez is a Santa Clara Pueblan daughter of both parents who were of Santa Clara. Under the ordinance, her children are not members of the Santa Clara because she is married to an Navajo from a separate reservation. The testimony was clear that the children could be registered in an Idaho nation, had they so desired. The question presented for this Court as I see them are whether or not there is an implied waiver of sovereign immunity in the 1968 Civil Rights Act and whether in fact, the Civil Rights Act gives Federal Court’s jurisdiction in anything other than habeas corpus provisions.
Speaker: That is rather first question is it not?
Marcelino Prelo: Yes, Sir, that is the threshold question. If we get passed that question assuming that the Court should find that there is in fact a --
Speaker: There is in fact a sovereign immunity?
Marcelino Prelo: Yes Sir. The immunity would go to jurisdiction and if they are immune there would be no jurisdiction today in Court.
Speaker: Well, yes that is correct, but there might be federal jurisdiction over individuals who were not immune?
Marcelino Prelo: Under the habeas corpus Your Honor, we submit that there would be jurisdiction over the individual that might be paying any given (Inaudible)--
Speaker: Even against the Governor for example.
Marcelino Prelo: The Act states that it applies to tribe. It does not say anything about the executives. The argument has been made that it would apply to the Governor and based on what I have indicated a while ago, the Governor just has the power to run the day-to-day affairs and has no power beyond that into the counciliary. So I do not know what effect that would have. If as Your Honor pointed out, there is jurisdiction then we get to the question of what standard of Equal Protection should apply under the Indian Civil Rights Act. We have submitted and have argued consistently that there is something less under Fourteenth Amendment standard and that has been admitted by the plaintiffs at the early stages of this proceeding.
Speaker: Everybody at least, all the parties here, plus the amicus all seem to agree on that --
Marcelino Prelo: I think that is correct.
Speaker: If that is correct, the question is how much lesser?
Marcelino Prelo: Speaking of the waiver of the sovereign immunity, there has been over 145 years that this Court held the tribes are sovereign nations. Notwithstanding in the quasi-sovereign at this particular time. They still retain the independent political sovereignty that was found by the Court over 100 years ago, 82 years ago at least it has been recognized that as sovereigns are immune from suit in federal courts unless Congress and Congress has plenary power to do so, unless Congress enacts legislation saying that they can be sued, if their immunity is waived, such waiver has never been implied and we submit that it should not be at this time. It must be an expressed waiver and Congress must spell this out. This Court in the recent cases, Pequot tribe of Washington decided just in June again reaffirmed the common law principle of sovereign immunity. The reasons for this principle have been pointed out are two-fold, one is because of the limited resources of the tribes to be constantly in Court defending their culture, their way of living and the other is so that they may continue to perpetuate their culture without interference from an outside alien culture if you will. The plaintiffs in, I might point it out that there has been a half-a-million dollar judgment under the Indian Civil Rights Act in the Tenth Circuit as is pointed out by amicus, just recently.
Speaker: What are the elements beside persuasion of particular cultures of it?
Marcelino Prelo: The elements are the preservation of the culture, the preservation of the tribal cohesiveness, the unit of the tribe, their religious beliefs and to some extent their economic holdings which are as I have indicated small. It is the overall keeping of a tribe which existed for years that it is slowly under this approach going to be destroyed.
Speaker: Well, the Anglo-Saxon adversary legal system is quite inconsistent with the tradition of many Indian tribes, is it not?
Marcelino Prelo: It is totally inconsistent I would say Your Honor.
Speaker: But in so far as sovereign immunity goes that has historic roots as much as anything in the earlier years, the dealings of our country with the Indian tribes were very similar to the dealings of our country with the Government of England or France?
Marcelino Prelo: That is correct Your Honor --
Speaker: As separate nations and made treaties with them.
Marcelino Prelo: And that this was done because we were on --
Speaker: And sovereign immunity has its historic roots in that concept of what Indian nations were and the Indian Tribes were?
Marcelino Prelo: Based on the more equal footing. At that time the tribes were stronger compared to what they are today, as compared to the United States and it was beneficial to this country to make such treaties and agreements and we should continue to honor these.
Speaker: But that regime was pretty well destroyed, was it not by that 1870 or 71 statute? It used to be that treaties has to be ratified only by the Senate and the House complained of that fact in the late 60's?
Marcelino Prelo: Well, I would not argue that treaties would be entered into this particular time, Your Honor.
Speaker: Well, to the extent that there are some sovereignties, as no longer that this situation. Well, as it works in the concept to reflect in this Court’s decision in Worcester v. Georgia?
Marcelino Prelo: Worcester v. Georgia.
Speaker: Which within the last two or three times on opinion for the Court by Mr. Justice Marshall was given a good deal of to waive that that whole concept?
Marcelino Prelo: Going on Your Honor, if there is a waiver it must be expressed and should not be implied. We were talking about the reasons for it, again the plaintiffs have not told us how they would propose to limit judgments to equitable relief and not have money judgments. The waiver also, I might point out would have an excessive workload for the courts that the courts may not be geared to and it would do unduly interfere with tribal law and order systems. This was considered --
Speaker: Part of the argument is that the Civil Rights Act clearly intended to protect individuals from tribal Governments in some respects --
Marcelino Prelo: Your Honor, my argument no that is the intention primarily was to avoid criminal type lack of due process in the tribal courts, that was the the bulk of a legislative history there are other mentions with budgeting.
Speaker: Could you tell me whether tribal court have any authority to invalidate a tribal ordinance on the grounds that it was inconsistent with the Civil Rights Act?
Marcelino Prelo: If they did not the Secretary of the Interior would definitely --
Speaker: I know, but I did not ask you whether they would or not. Do they have the authority of invalidating an ordinance or are they just supposed to enforce an ordinance the way it is written?
Marcelino Prelo: I missed the initial thoughts what --
Speaker: Whether they have the authority to say that we know what the ordinance says but we refuse to enforce it because it is invalid. Do they have the power of judicial review? And do they have the power to say this ordinance is inconsistent with the Civil Rights Act and therefore it is invalid?
Marcelino Prelo: Do the courts have that authority?
Speaker: The tribal courts?
Marcelino Prelo: The tribal courts do not. Well, the tribal courts could certainly change this ordinance because they have that authority under the constitution.
Speaker: They did not --
Marcelino Prelo: To make it --
Speaker: Under the tribal constitution?
Marcelino Prelo: They have the authority to make the ordinance by assuming that they have the authority to unmake that the way they can pass such ordinance.
Speaker: How can they invalidate it, not repeal it, can they invalidate?
Marcelino Prelo: I think that they can.
Speaker: Well, they are governed by the Civil Rights Act only governed by the Civil Rights Act. They not only have the right but the duty I would think, involve the Civil Rights Act, do not they?
Marcelino Prelo: Within the tribe, I think that that is true.
Speaker: It is another way of phrasing the question which is supreme in an Indian Tribal Court, Federal statutory law or Indian tribal law?
Marcelino Prelo: We would like to think it Indian tribal law is subject to --
Speaker: Is supreme and whether the conflict between that in the federal statute?
Marcelino Prelo: Subject to the Indian Civil Rights Act now, as applied in the context of the Indian tribal courts.
Speaker: But if an Indian tribal court concluded that the federal civil right, Indian Civil Rights Act were violated would not the federal tribal court have a duty to obey the federal statute?
Marcelino Prelo: I think you are correct on that Your Honor.
Thurgood Marshall: Your point was that providing Congress a move?
Marcelino Prelo: Providing Congress as so indicated and we take the position that Congress had not so indicated, Congress has only indicated that there should be a specific remedy which is habeas corpus.
Speaker: It may be that my question is wholly inappropriate because I gathered from what you said and what now, I think is in the briefs that legislative and judicial authority are vested in the same body?
Marcelino Prelo: In the tribe?
Speaker: In the tribe.
Marcelino Prelo: That is correct.
Speaker: Pueblo council?
Marcelino Prelo: But they do have and are getting more codes and setting up separate judges under modal codes of the Interior Department as promulgated.
Speaker: And I presume the matter varies from tribe to tribe, does it not?
Marcelino Prelo: Your Honor, in all of these areas, it varies from tribe to tribe.
Speaker: Would you just give me an answer to rather practical problem, assuming that there is sovereign immunity or jurisdiction or no implied cause of action whatever the theory might be and looking at the portions of the statute other than the criminal procedural portions, provision such as you can take property without just compensation and Equal Protection, does the statute have any practical significance if there is no federal remedy?
Marcelino Prelo: Your Honor, it does because it would be applied within a tribal courts and it would have the Secretary looking over it as far as approving ordinances and reviewing anything that the tribe does that is subject to the Secretary’s approval, they would have.
Speaker: Does the Secretary of the Interior invalidate this particular ordinance?
Marcelino Prelo: I think that is probable.
Speaker: If he fairly violated the statues?
Marcelino Prelo: That is correct. He would have to approve it initially.
Speaker: This ordinance has been approved by the Secretary.
Marcelino Prelo: This ordinance was approved I believe or not I do not want to be held to that Your Honor I think it was approved and it was patched.
Speaker: But that meant that it was approved that means it was approved if you are correct before the enactment of the Indian Civil Rights Act?
Marcelino Prelo: That is correct. The jurisdictional issue, reliance has been placed on 28 U.S.C. 13434, I submit that this reliance is misplaced. That requires that the District Courts to have the jurisdiction of any civil action authorized by laws to be commenced and we submit that nothing has been authorized in the Civil Rights Act except habeas corpus and as a result reliance on this is improper and this Court has ruled in similar cases under the Tucker Act and the Administrative Procedure Act in Califano v. Sanders and in Testan recently.
Speaker: I believe the Governors -- the party defended here isn't he?
Marcelino Prelo: Yes, Your Honor.
Speaker: So even assuming that you are right on the jurisdiction question as to the tribe, does it make any difference as long as the relief that sought can be intent against the Government, could it not?
Marcelino Prelo: Your Honor, it makes a difference because I think that the Act specifically applies to tribes number one, and secondly because the Governor himself would not have the authority, the council would have the authority to promulgate ordinances concerning membership.
Speaker: But in a dispute over whether the ordinance is consistent with the Rights Act, would that not be determined and if found inconsistent and invalid because inconsistent with the Civil Rights Act, could that not be appropriate remedy just against the Governor without reference to the tribe?
Marcelino Prelo: It is my position that it would not be proper.
Speaker: I see, why?
Marcelino Prelo: Because I think the Act speaks to the tribe itself and not an individual and that the Governor does not have the requisite authority in any event to tell the council, I would assume then a council would have to become also involved because the Governor does not have the authority to tell the council.
Thurgood Marshall: Going with the Civil Rights Act what authority does the Governor have? Is he the Chief Executive Officer?
Marcelino Prelo: He is the Chief Executive and he is entitled --
Thurgood Marshall: Well, I thought you said that he did enforce the ordinance?
Marcelino Prelo: He enforces the law and order portions of it, but he does not have the authority to pass an ordinance or to not get an ordinance. That would be against the council.
Thurgood Marshall: But he has the authority to enforce it?
Marcelino Prelo: He has the authority to enforce it.
Thurgood Marshall: But then why is he not subject to suit?
Marcelino Prelo: If he enforces it wrongfully, he perhaps could be subject to suit.
Thurgood Marshall: I think this Court said that a Governor of State of Ohio was subject to suit.
Marcelino Prelo: And therefore in the Indian context that would not necessarily follow because of the different power --
Thurgood Marshall: I want to understand what you say the Governor is nothing, he just sits there and that cannot be true?
Marcelino Prelo: He did not just sit there, he runs the day-to-day affairs.
Thurgood Marshall: And why is he not subject to suit if he runs the day-to-day affairs?
Marcelino Prelo: Because the Act addresses tribes.
Thurgood Marshall: And he does what?
Marcelino Prelo: Addresses the tribes, he said no tribe show. He did not say no person.
Thurgood Marshall: But who owns the tribe?
Marcelino Prelo: I submit that the council, and I do not know the religious leader. These are things we do not know the people behind -- the secular people.
Thurgood Marshall: But what did Congress mean when they said tribe?
Marcelino Prelo: I think they meant the political body that council --
Thurgood Marshall: And do you think that that meant little better than thinking.
Marcelino Prelo: They must have meant the political body which would be the council.
Thurgood Marshall: You mean there is nothing there one way or the other?
Marcelino Prelo: No, it is not clear what is that? As to the standard of Equal Protection it is clear that this Court has consistently taken the approach that Indians are sure generous and different from any other body in the country. That have been treated with difference, things have been considered by this Court that had been in the other group, but a different ruling would have been arrived at, for example, Morton v. Mancari, the Fisher case. We think that Congress intended that the remedy of habeas corpus be utilized and that they would later look at the entire case and if that was not sufficient they can enact new legislation and mandate to the courts what they want. Congress did not intend to prohibit Indian tribes from maintaining their traditional criteria for establishing their membership. I might point out that not only Santa Clara is affected by the Court of Appeals’ decision but every tribe in the nation, 13 tribes as noticed in amicus briefs, 13 other tribes in the nation have either female or male descendancy rules, so it is not just a question of Santa Clara, it is a question of all Indian nations throughout the country. All tribes are struggling to remain culturally and politically viable. Right now, they are finding it difficult because tremendous amount of lawsuits are being filed against them and Congress and this Court have continually stressed that they are in favor of tribal self-determination and tribal self-autonomy, if we read the ICRA in the context of all of these laws, it appears fairly obvious to me that the full impact of the Fourteenth Amendment was not intended.
Speaker: How big is this tribe? Of course the answer of that question may depend upon the outcome of this lawsuit, but approximately how big is that?
Marcelino Prelo: 48 --
Speaker: How many?
Marcelino Prelo: 48,000 acre and 1,200 members.
Speaker: 1,200 men, women and children?
Marcelino Prelo: That is correct Your Honor. I might point out that approximately 10 percent of those are living in Pueblo now are in the class of that plaintiff Audrey Martinez says it and it never had been asked to leave the Pueblo.
Speaker: So there might be whatever it is, 1,020 instead of 1,200?
Marcelino Prelo: That is correct Your Honor.
Speaker: 1080, I guess.
Marcelino Prelo: The cases below have held basically that equal, even handed application of the law as what should be applied, if it is in the Indian context., if it is in the Anglo-American context then they have in fact applied the Fourteenth Amendment standards and nothing could be more Indian context than memberships. The Tenth Circuit recognized this, but proceeded to apply the compelling test. They did not talk about rationale or substantially further important governmental objective, they said, they have shown no compelling interest. I submit that this Court not even in Frontier and Richardson or any other case is agreed totally that the compelling interest should be shown in a gender type case. Further, I submit that the Court has retreated to some extent from that holding and now holds that they must show substantially further important governmental objective that the ordinance would do so and I submit that nothing could be more important than the culture and the actual existence of a tribe and that it clearly comes within the standard in Craig v. Burton; however, the Tenth Circuit did apply the improper rule. We have also asked the Court to consider treating this case similar to immigration laws in the United States. The tribes in the countries are quite similar and the membership in a tribe is similar to citizenship in a country. This Court in Fiallo has taken the position that they will not interfere in that, that Congress should make those decision and that the Court will not second guess Congress. I submit that that is certainly a proper test to apply in this particular case, when we look at the background concerning whether or not the ordinance is proper, we would need to see that the rule has been uniformly applied since it was enacted. The undisputed testimony was that from a Dr. Allis who was hired by the Government not by the tribe initially that the culture would eventually break down and be lost if this ordinance were not allowed. This type of the testimony was listed also from the Governor and other members of the tribe. And I submit that they feel very strongly that this is true, because the father is a party that passes down the custom and culture and it is through him that all of his things were talked to the children. Without this ordinance it is just a question of time before this tribe would cease to exist notwithstanding the fact that it existed for 700 plus years. The Court below found that the tribe was patrilocal, patricultural indicating that everything descended through the father and that the ordinance itself was rooted in deep tradition. To say that the ordinance cannot stand, would be determinate to the very tribe that these plaintiffs would be members of and that clearly they do not want. The record is clear that the cultural impact of a non Santa Clara mother is very minimal as compared to that of the Santa Clara father. My time has run out.
Warren E. Burger: Mr. Collins.
Richard B. Collins: Mr. Chief Justice and may it please the Court. One of the basic disagreements between the parties in this case has been the defendants’ characterization of what tribal interest is represented by this ordinance, that is at issue here. They have said as counsel just said at the close of his argument that without this ordinance the culture and religion of Santa Clara would be lost and destroyed. We submit that this cannot possibly be the case. The Court below and the District Court in their opinions each state that the Martinez children are culturally Santa Clara Indians. They found that to be a fact. That finding is undisputed so far before this Court. Furthermore, that finding is based on a number of significant subsidiary facts that are also undisputed that the Martinez children are full blood American Indians that their mother is a full blood Santa Clara Indian, that they speak and understand the Tewa language which is the official and legal language of the Santa Clara Pueblo. In fact, the expressed witness for defendants to which counsel just referred to find the Santa Clara Indian as a Tewa Indian as one who speaks the Tewa language. He defined the Indians in question according to the language.
Speaker: Mr. Collins, is your point addressed to the factual question of whether or not these children will kind of fit in the Santa Clara Pueblo or whether the federal District Court as opposed to the Indian tribe should determine what the traditions of the tribe are?
Richard B. Collins: Mr. Justice, my point is addressed to the tribal interest asserted as a justification for this ordinance. They have constantly said that without the ordinance their culture would be lost and we submit that cannot be the case because the persons who were so closely identified with the culture as these persons are excluded by the ordinance and conversely the ordinance mandates the admission of male line children, even if they grow up in Chicago or Los Angeles or what have you, even if there are half or quarter or less Indian ancestors, even if they have never seen Santa Clara Pueblo, even if they know nothing of its language.
Speaker: But this is like a Baptist telling the Pope that he is wrong about the Immaculate Conception in that sense, is it not? Presumably the best authority as to the Indian tribal standards or culture, is the word of the tribe itself, if we are simply talking about that?
Richard B. Collins: Well, Your Honor the issue of culture was raised by the defendants not by the plaintiffs. The plaintiffs suggested that the record is clear that this ordinance was not based on any cultural interest of the Pueblo, but based on a desire to limit membership to keep up the amount of the per capita payments that the Government was making to the tribe. We think the record is clear on that. Culture was raised by them as a defense and we are forced to meet that, but we did not raise the issue, and furthermore Your Honor, in any Indian Civil Rights Act case a tribe that has any differing traditions from a state or a local Government under the United States is going to have some cultural involvement in that decision and therefore the Indian Civil Rights if tradition or culture were an automatic and absolute defense to an Indian Civil Rights Act action then the Act is meaningless.
Speaker: That I can understand that Congress has said, “Tradition and culture will have to be overwritten in some situations” but I thought your point was that here even though the tribe says its cultural and tradition, it being overwritten the tribe is really mistaken because Judge Mitcham and Judge Doyle decided that it would not be?
Richard B. Collins: No, Your Honor not that at all. We are only saying that the record we think is overwhelmingly clear that the cultural defense is mistakenly raised by the defendants because it cannot possibly maintain culture to enforce a rule like this. That is what Judge Doyle had clearly said in defense of the --
Thurgood Marshall: It is not the point as to who is to be member of the tribe involved in the cultural survival of that tribe?
Richard B. Collins: Well, it is Your Honor, that goes to a different point.
Thurgood Marshall: But is that not basic?
Richard B. Collins: Yes, it is basic Mr. Justice but --
Thurgood Marshall: It is as important as citizenship is to the citizen of United States?
Richard B. Collins: It is basic to the plaintiffs --
Thurgood Marshall: Is it as important?
Richard B. Collins: I cannot answer that Your Honor I think they are rather different. I do not think that they are necessarily equivalent.
Thurgood Marshall: Different to what extent, as to the culture of the two?
Richard B. Collins: Well, United States citizenship issue usually arise in the case of an alien someone who is not brought up in the culture of the United States, if these plaintiffs are denied membership in the tribe that they were brought up. They have lived all their lives on the reservation, the loss to them would be much greater than the effect on a true alien who is --
Thurgood Marshall: I am not talking about the loss to the individual, I am talking about the culture?
Richard B. Collins: Yes sir.
Thurgood Marshall: I am saying that who is eligible to be a member of a tribe as it is important as anything I know to a culture?
Richard B. Collins: But I am saying Your Honor that there is a --
Thurgood Marshall: C-U-L-T-U-R-E is what I am talking about?
Richard B. Collins: Yes, Your Honor, but I am talking about the fact that there is a crucial difference in the cultural impact between outsiders, persons who have not grown up in the society and persons insiders those who have --
Thurgood Marshall: But could they not have set up a culture and said you cannot be a member of the tribe, get out; unless you are full blooded tribal Indian of this tribe get out, is anything wrong with that --?
Richard B. Collins: Well, Your Honor --
Thurgood Marshall: But the council adopts that, it is approved.
Richard B. Collins: That presents very different questions. What they have done here?
Thurgood Marshall: Do they do that?
Richard B. Collins: I do not know Your Honor, what they have done here is to pass a rule that discriminates between members of the tribe. It says to one group, it says to women, your children may not become members.
Thurgood Marshall: Well, you assume that they are members of the tribe and I thought that is why we were here to decide?
Richard B. Collins: Your Honor, there is no doubt the plaintiff Julia Martinez is a member it is her --
Thurgood Marshall: For certain purposes?
Richard B. Collins: For all purposes.
Thurgood Marshall: No Sir,? Not in her --
Richard B. Collins: Yes, Your Honor that is a mistake that counsel made. There is nothing in the record to indicate that there is an inheritance rule to the man only in this tribe, nothing in the record. That is a mischaracterization of the record because it is clear enough that if Mrs. Martinez had married a member of the tribe, her children could inherit from her. There is no prohibition against inheritance through the female line. The only thing is there is a prohibition against passing membership to your children, but not a prohibition against inheritance as a general matter. She is --
Speaker: Mr. Collins, it is far for me to direct the order of your argument, but I hope before you sit down you will address what I consider to be very important preliminary questions i.e. whether or not there was federal court jurisdiction of this case and if so whether or not the tribe could be sued because only if the answer to both of those questions is yes to get into any of these issues that some members of bench have been discussing?
Richard B. Collins: Mr. Justice I will be happy to address those --
Speaker: You do it in your own time and in your own order, of course.
Richard B. Collins: Well, the two jurisdictional issues that have been raised that whether they are federal court subject matter jurisdiction and whether the sovereign immunity of the tribe precludes such jurisdiction. The inquiry into those is fairly to tell that I must refer in part to our briefs, but I will outline our answers to the contentions. The main answer is we contend that the Congress contemplated that these kinds of reviews would be heard by the federal courts and in fact, this is the tenth year of the statute, the lower federal courts, all four Court of Appeals that have looked at this statute have said we have power to review and that sovereign immunity does not bar that review.
Speaker: Mr. Collins in 251303 of the Act, Congress expressly conferred habeas jurisdiction on the federal courts, it did not expressly confer any other kind of jurisdiction. Do you not have to meet the argument that Expressio unius est exclusio alterius.
Richard B. Collins: Yes, Your Honor. There are several responses to that. In the first place, there is not legislative history to suggest that Congress thought that was an exclusive remedy. In the second place habeas corpus in the federal court is always a statutory remedy at the present time and has been for some years and equitable remedies are specially exercised against Government officers have usually not been a statutory remedy that is the normal assumption. Furthermore, the legislative history is a confusing point here because we are relying on different parts of the legislative history and I think it is really essential to answer this question and some others to make clear where the legislative history lies. Counsel for defendants has principally relied upon hearings, upon testimony before hearings including testimony of persons who oppose passage of the Act. We submit that that does not accurately reflect what Congress intended to do. There is one and only one committee report on the bill that became this Act or any of the bills leading up to it. A report of the Senate Judiciary Committee in 1967, in that report the Senators state, they have a section on unconstitutional actions of tribal governments, discussing the subject, in that Section the referred to five decisions of the lower federal courts denying a civil remedy in a civil non-custody context to Indians in disputes with their tribes and they are obviously expressing disapproval of those decisions, one of those five arose in the context of tribal membership. We submit that the report of the Senators themselves indicates that they contemplated that the federal courts would review membership cases and the other cases in that report are there two cases on freedom free exercise of religion, and there is a case on tribal taxation of members and there is a case on tribal taxation of non-Indians on the reservation and all of those the Senators were expressing disapproval of the lack of a remedy for those plaintiffs and they were saying that this is why this Act was passed.
William H. Rehnquist: Is the Free Exercise of Religion Clause incorporated in the Indian Bill of rights?
Richard B. Collins: Yes, it is Your Honor, but there is no established Anti-Establishment Clause. How one differentiates between those is yet to come? Now, returning to the sovereign immunity question, the terms of the Act are mandatory on their face. The Act is a limitation on the tribes themselves. Congress, it is conceded has plenary power to limit the tribes in this way. Defendants have conceded that. That is not the power of Congress to do this. Is that not issue. It is only a question of what Congress did do?
Speaker: If as you say, it is a limitation on the tribes, it is a limitation on the tribal courts is it not?
Richard B. Collins: Yes, sir. In fact, Your Honor --
Speaker: And it sets out paramount substantive law that the tribal courts must follow?
Richard B. Collins: Well, in this case the tribal court and the tribal legislature are one and the same. The lower courts have developed a rule with which we have no quarrel, or salutary rule saying that a plaintiff to bring a case to the federal courts must first exhaust all his internal remedies within the tribes. We have no quarrel with that rule of the District Court found without contradiction that we had done that in this case and of course, that I am sure has resolved in the context of some other tribes and number of disputes, the existence of that rule, but this tribe has no separate court. There is no separate review. All you need to go to do is go back to the same officers with whom you have a quarrel and in addition the Act --
Speaker: And point out the provision of these Indian Civil Rights Act upon which you rely?
Richard B. Collins: Well, that was attempted for two years before this case was filed.
Speaker: But that is in any court system that you have reached the end of the line somewhere, you will never think you have been wrong to come to this Court, that is the end of the line if there were reviewing court for this Court it would not be? But you do agree that it is not like the court because all I can do is change the rule --
Richard B. Collins: Yes, sir.
Speaker: They cannot say that the rule violates decision of outset.
Richard B. Collins: Yes. I was just answering the inquiry really that was made during my brother’s argument.
Speaker: But do you agree basically on the structure of the counsel, of the Governor etcetera that he has, that the Governor has no more power than he just sits there?
Richard B. Collins: Well, the written constitution of the Pueblo says that he has all the executive authority of the Pueblo, the authority to enforce all the laws and we assume that included membership laws, we still assume that. We take the written laws at their word, it is in the appendix. We would point out in connection with the scope of the Act again that the Act on its face limits and these are the words of the statute, “All governmental powers possessed by an Indian tribe executive, legislative and judicial and all offices, bodies and tribunals by and through which they are executed including courts”. So it is comprehensive the Act on its face and its terms is comprehensive in defining what it limits. That relates to one of arguments that has been made by my brother which is that the Equal Protection clause of this Act should be interpreted only to enforce existing tribal rules evenhandedly, I believe they call it. In the first place of course, the Act says that the legislative councils of the tribe are limited as well as the administrative and this evenhanded rule of course would only go to the administration of a law, and in the second place such a rule would make a marker here of the Equal Protection Clause because as soon as an uneven application arose all that would be necessary to make it immune from any review would be for the legislature to codify that rule, so that rule makes no sense to us and we submit that Congress could not possibly have intended such an undertaking as particularly since Congress paid special attention, the Senators paid special attention to the Equal Protection Clause in this law. When the law was drafted by the Interior Department, there was an Equal Protection Clause in it, that guaranteed equal protection only to members of the tribe and the Senators did not like that and they changed it in guaranteed equal protection to all persons under tribal jurisdiction. A point which has been noted by lower courts in some other cases. So the Senators took a particular look at the question of Equal Protection and they rejected an error with clause, in which regard I might add, there a reply brief was just filed by petitioners in which they quote some legislative history about Equal Protection and they quote legislative history about that rejected clause applying only to members of the tribe and they do not disclose that and so I think the Court should note that that legislative history does not apply to the clause that was actually enacted by the Congress.
Speaker: What standard do you think applies here if there is jurisdiction and you reach the merits. Do you defend the opinion of the Court of Appeals?
Richard B. Collins: I suppose not in every last particular Your Honor --
Speaker: But what standard do you suggest?
Richard B. Collins: Again, I must refer to our briefs because it is a detailed discussion of the subject, but what we say there is that a lot of the faulty analysis, I think, lot of the fears that had been raised under Equal Protection analysis with regard to Indian tribes derived from a totally faulty source. They have taken the result in state cases and transferred that laterally to Indian tribes and we clearly say that that is not correct. The Equal Protection Clause must be applied in the context of whatever Government or societies being applied to and for that reason we concede that the sensitive issue of membership is entitled to wait in an analyzing in equal protection situation.
Speaker: You mean the tribe’s judgment?
Richard B. Collins: The tribe’s judgment and the tribe’s standards and the tribe’s traditions are entitled to wait but the problem with this particular rule is that if they claim it is a rule based in culture and that actually has a counterproductive effect on culture. Again, I am not trying to say that is the function of the courts to determine every last cultural nuance of the tribe, but I am saying that --
Speaker: So you think judge for the Tenth Circuit’s approach is generally acceptable of balancing?
Richard B. Collins: Yes Your Honor, the balancing approach of that kind. Well, I do not know if balancing is a correct word.
Speaker: Well whatever it was?
Richard B. Collins: Governmental justifications in all the different formulas that are used with regard to the Equal Protection Clause, and different verbal formulas, governmental interests are always accorded weight according to the circumstances and --
Speaker: You cannot get it up anymore bald up than we have and speak freely?
Richard B. Collins: I was trying to address different points of view, but whatever verbal formula is used the governmental interest are accorded weight and since the Indian governmental interest in many context will be different, we think that that raises different analysis for application of the clause.
Speaker: Membership is rather fundamental question, is it not?
Richard B. Collins: Memberships are fundamental in fact, Your Honor you have to consider also the importance to the plaintiffs. The Interior Department issued a decision in 1969, a year after this Act was enacted in which they term, tribal membership for a person raised in the Pueblo, a child, like this was a different tribe not a Pueblo tribe to be a fundamental interest. The Interior Department decision called it that and they ruled that a tribal rule was invalid on that ground. That raises a point that was made earlier in Secretary of Interior Review. The problem with the suggestion that that is a sufficient remedy, is in the first place by the way, I must correct the record, there is nothing on the record to indicate that the Secretary of the Interior ever approved this rule. We tried mightily to find out at the time of trial if he had, there is no evidence either way, whether there was ever approved for the purpose of --
Speaker: For the purpose of applying the Indian Civil Rights Act what is the tribe? What says no Indian tribe or?
Richard B. Collins: There is a statutory definition Your Honor. It says Indian tribe means any tribe, band or other group of Indians subject to the jurisdiction of the United States and recognized as possessing powers of self-government, that is the statutory definition.
Speaker: And so, if say a group of Indians wants to be recognized as a tribe? You have to decide what the tribe is in the first place? And they just say, here is our tribe, here are our members and they list the various members?
Richard B. Collins: In Nineteenth century case law Your Honor, there were a fair number of decisions in this Court that adjudicated that kind of a question of what the Court basically said is that a political question for the Congress and the executive branch.
Speaker: And for the Indian tribe?
Richard B. Collins: Do you mean to --
Speaker: To define itself?
Richard B. Collins: I thought you are referring to tribal recognition by the United States.
Speaker: I am just wondering it seems to me that an Indian tribe wants to be recognized it says we want to be a tribe and here are our members, now can you say these in the courts if the Secretary accepts that and people who are excluded from the list complain can the courts adjudicate that?
Richard B. Collins: I think they could adjudicate. I think it presents very different substantive questions and very very different substantive questions from this case. The thing about membership is a sensitive issue and we concede that, but it is extremely important issue for the plaintiffs in this case having been raised in the culture and for that very reason it is of less importance to the tribe in this case than would be the question of an outsider. It is like the difference between a person born and raised in the United States applying for citizenship versus a person born and raised in France. That difference we think goes to the fundamental irrationality of the statute.
Speaker: So you are saying as applied to this particular plaintiff the ordinance is invalid?
Richard B. Collins: That is right Your Honor.
Speaker: Because we have 10, 12 odd amicus briefs from other tribes here, saying that it is of tremendous importance to the tribe than the particular question?
Richard B. Collins: Well, I realized that Your Honor, but I think what they are saying is they do not want any of their membership rules examined ever which I can understand their position, but I do not think they are examining the particular facts of this case very exactly when they say that to expel someone as culturally identified with the tribe as the Martinez children are, cannot possibly have the importance to the culture of the tribe as they describe it, it just cannot.
Speaker: But how can either you or I, know that with confidence?
Richard B. Collins: Your Honor again that leads down the slope to the notion that nothing is reviewable so long as there is some cultural input into it. Congress in passing the Act has said, the tribal laws are subject to review. All of those tribal laws are passed at a social and cultural milieu that somewhat different from a state and occasionally issues are bound to arise where as a defense to some Act, a tribe says, we are allowed to do that for cultural reasons. We again are only trying to meet that defense. We are not suggesting that this Court or any court should determine tribal tradition or culture.
Speaker: But I thought you were saying their cultural reasons are really not very good ones even if cultural reasons were relevant?
Richard B. Collins: Well, I am saying that though with regard only to a rather clear and dramatic and undisputed fact in this case which is the notion of insiders versus outsiders, the notion that these people are raised in the society admitted to the religion, I mean the literature if you were admitted to the religion of this Pueblo 100 years ago that was tantamount to membership. Things are changed. The Bureau of Indian Affairs came along and said to this tribe you got to have a written tribal rule, that is something new. That came along in the 30's. Then they came along and they said we have taken some land away from you and we are going to pay you some money and that gave arise to per capita payments and if you look at the legislative history in the Pueblo’s own records and the testimony in the record in this case, it is clear that what the council had in mind when they passed this rule was keeping those per capita payments up, nothing more, nothing less.
Speaker: Mr. Collins have you answered Mr. Justice question?
Richard B. Collins: I doubt entirely Your Honor. To continuing on that point Mr. Justice, on the point of jurisdiction rather, there is a long tradition in the federal courts of enforcing the constitution against future violations by equitable relief against Governments, deriving from the principle of Ex parte Young and we suggest that --
Speaker: Now, that does not go into federal jurisdiction, that goes to immunity?
Richard B. Collins: Yes sir.
Speaker: My first question is whether or not the federal courts have had jurisdiction or federal courts are courts of limited jurisdiction. The only jurisdiction is expressly and explicitly conferred by Congress within the meets and bounds of the constitution. There certainly was no explicit conferral of jurisdiction in this case. You would agree with that. The only explicit conferral of the jurisdiction upon the federal courts was with respect to habeas corpus proceedings, so the question is - is there jurisdiction implicitly conferred, is that not?
Richard B. Collins: Yes Your Honor. And we think yes --
Speaker: I know that every federal court that is passed on it to date has held that yes there is.
Richard B. Collins: Well, we think the reasoning of those courts is correct and the two statutes that have been relied upon are 1331 on the ground that these actions arise under the laws of the United States and 1343, the civil rights jurisdiction by analogy to the decisions of this Court in such cases as Allen v. The Board of Elections, that is particularly relevant case, Allen v. Board of Elections case because the Court implied a private civil remedy in that case and despite of the fact that the statute involved in that case, the Voting Rights Act of 1965 contained a narrower civil remedy, not criminal, not habeas corpus or something else within the statute and in other actions under 42 U.S.C. 1981, 42 U.S.C. 1982 and other circumstances that Court has implied a private civil remedy to enforce the constitution or enforce civil rights type laws and --
Speaker: That a private civil remedy, but then you look somewhere for jurisdiction?
Richard B. Collins: No, if the remedy is in the intent of the statute Mr. Justice then 1343 does give you a remedy that seems to me undisputed. The only question is where the remedy comes from, if there is a remedy and we say there is then 1343 gives the Court subject matter of jurisdiction. Now, again Mr. Justice Stewart I would refer to the legislative history of the statute with the Senators saying we disapprove of these cases where the federal courts have dismissed actions by individual Indians trying to rectify a membership case, tax case, free exercise case. The Senators in the written word have indicated their intent that there would be a remedy. They are disapproving expressly of cases where a remedy was denied.
Speaker: Presumably, would you say the tribal Governments in all their branches including their judicial branch, I realize that sometimes that in some tribes, the judicial and executive are one, but if they are all governed by this substantive federal law then that is where the remedy arguably could be. They are not only there?
Richard B. Collins: Well, Your Honor it is like any other civil rights statute certainly that --
Speaker: In which that does not necessarily fall that just because Congress thought that these substantive rights should be accorded --
Richard B. Collins: Yes.
Speaker: Individual Indians that necessarily that they be invoked in federal District Courts why could they not be invoked to courts of the Indian tribe?
Richard B. Collins: Well, the federal courts have said that they must be first invoked in the courts of the tribes, but --
Speaker: Well, explicitly why is that in the electable inference that federal courts have jurisdiction?
Richard B. Collins: Because it is fundamental civil rights there at issue Your Honor and the Court has a consistent, in the Bevens case the Court found a remedy under the constitution itself and it is clear from the legislative history that --
Speaker: On the 1331 jurisdiction of the federal courts?
Richard B. Collins: But we have relied on 1331 Your Honor and the Senators over and over said we are applying certain constitutional provisions to these Indian tribes. That is what we are doing as applying the constitution in the context of disputes by any person against an Indian Tribe and it seems to me analogy is quite precise that if the action arises under the constitution it is the same kind of reasoning as in Bevens and Bell v. Hood.
Speaker: Well, are you saying that the Indian Civil Rights Act is equivalent to the constitution?
Richard B. Collins: No, Your Honor because Congress only applied certain portions of the constitution to the Indian tribes and they altered other portions, but we do say that those portions they applied are equivalent, yes, and that the legislative record is rather clear on that.
Speaker: So that you do not have to decide whether you are bringing an action whether this is a statutory action or a constitutional action?
Richard B. Collins: I think well, it is a statutory action Your Honor, because it is contained in a statute but it seems to us that the reasoning by analogy to cases like Bevens is apt because Congress intended by the statute to apply the constitution itself, in the respects in which it did so. It admitted republican form of Government, it admitted all kinds or parts of a constitution quite intentionally and for good reason, but where it did apply to constitution, we suggest that the analogy to other civil rights cases is apt in this regard. And we would also cite to the Court’s own reasoning in the Cort v. Ash, I do not have time to go down the four steps in that reasoning --
Speaker: It is the fourth step Cort v. Ash frankly is the one that seems to me raises the most difficult problem of whether the cause of action is one traditionally relegated to state law and now here of course, traditionally relegate the the Indian law. Why does that not defeat you?
Richard B. Collins: Well, Your Honor because again we are talking about Equal Protection of a law which is certainly a provision of the constitution that has generally been enforced in the federal courts and not else where not in the state courts in the analogous situation and secondly because the whole history of this Act is replete with the notion that Congress was to satisfy in certain respects with the treatment of tribal members by the Indian tribes and what they are saying --
Speaker: But surely it is correct, is that not that the tribal membership matter they are probably the classic example of the kind of thing that is traditionally relegated to the Indians to decide for themselves?
Richard B. Collins: Well, Your Honor so as every other constitutional question because the constitution has never been applied to the tribes before at all. We acknowledge the sensitivity of membership and we think that is entitled to some weight, but that does not. They are trying to say that any membership rule no matter, how arbitrary no matter, how trivial no matter, how ill conceived is entitled to any review under the statute, under the First Amendment as applied, under the Equal Protection Clause as applied, under Due Process as applied and Congress in the legislative history indicated expressed disapproval of a Tenth Circuit decision denying a remedy to an Indian in just such a dispute.
Speaker: They did not include in the statute itself a counterpart to Section 1983, that is the problem?
Thurgood Marshall: What would happen if a male member of a tribe, one of these matriarchal Tribe brings this action?
Richard B. Collins: Well, Your Honor we would, if you are talking about some other tribe I think there are other traditions and I think that the each membership rule arises in the context of that tribe and each written membership rule arises in the context of its own history. We say it is clear on this record that the sole purpose of this rule was to keep up those per capita payments. It had no purpose to retain that the rule before 1939 --
Thurgood Marshall: And the answer to my question is?
Richard B. Collins: That would be a different case.
Thurgood Marshall: Thank you that is the best you could do.
Speaker: Mr. Collins may I ask one other very brief question. You referred to the exhaustion of tribal remedies, there is no question about that here. Does the record tell us just what efforts your client did make to receive some kind of remedy from the tribe or from the Secretary of Interior or something like that?
Richard B. Collins: The transcript was Your Honor, the matter by the time it got to submission to the District Court, the matter was essentially not very much contested and so the District Court did not write very much about it. Essentially there was a long history of spending some 18 years of attempts by Mrs. Martinez to get her children at home.
Warren E. Burger: Mr. Prelo you have any time left? Thank you gentleman. The case is submitted.