LEWIS, Circuit Judge.
Alleging that she is entitled to but has been denied membership and the benefits of membership in the defendant corporation, plaintiff seeks to adjudicate her claims through complaint lodged with the United States District Court for the District of Colorado. 151 F.Supp. 476. Named as defendants are the Southern Ute Tribe of the Southern Ute Reservation, a federal corporation organized and chartered in accordance with 25 U.S.C.A. § 476, and the individuals comprising the governing body or Council of the corporate defendant.
Plaintiff is the legitimate daughter of one Juan (John) Green, who is a full-blood Indian and member of the Southern Ute Tribe of the Southern Ute Reservation. Although plaintiff's mother was not an Indian, plaintiff was accepted and recognized as a member of the tribe and was enrolled as a member under the provisions of 25 U.S.C.A. § 163. The tribe by vote accepted the provisions of 25 U.S.C.A. §§ 476 and 477 and organized into a membership corporation; its constitution and by-laws were approved November 4, 1936, and it received its charter as a federal corporation. After the incorporation, plaintiff continued to be recognized as a member until the year 1950.
Upon its incorporation, the defendant corporation succeeded to the ownership of all of the property of the tribe and, after its incorporation, acquired additional property. It is alleged that the corporation now controls the reservation and receives from other properties income of great value.
In about 1950, plaintiff was excluded from the reservation and denied the rights and privileges of a member of the tribe, including education for her children, medical care, and participation pro rata in the income of the tribe by the members of the Council. She asserts
The federal courts are courts of limited jurisdiction and can take cognizance of only those matters which Congress has entrusted to them by statute. In the absence of a federal statute they do not have jurisdiction merely because an Indian who is a ward of the government is a party, Deere v. St. Lawrence River Power Co., 2 Cir., 32 F.2d 550, affirming Deere v. State of New York, D. C., 22 F.2d 851, or because property or contracts of Indians are involved, Kennedy v. Public Works Administration, D. C.N.Y., 23 F.Supp. 771; Button v. Snyder, D.C.N.Y., 7 F.Supp. 597.
Because of distinctions between the tribes, differences in treaties separately negotiated, and social and economic changes of the country, responsibility for Indian legal administration has rested variously with the tribal courts, the federal courts, and the state courts. Recognizing the sovereign, though dependent, nature of a tribal organization, Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; United States v. U. S. Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894, Congress was slow to impose restrictions upon those governments in the management of their internal affairs. The tribal courts had exclusive jurisdiction over suits between members of the tribes and over crimes committed by Indians against Indians, Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L. Ed. 196; Nofire v. U. S., 164 U.S. 657, 17 S.Ct. 212, 41 L.Ed. 588; Cornells v. Shannon, 8 Cir., 63 F. 305.
By Act of March 3, 1885 (now 18 U.S. C.A. § 3242) Congress provided for the trial and punishment of Indians committing any of ten major enumerated crimes within the Indian country in accordance with the extension of general laws of the United States concerning crimes committed in places of exclusive United States jurisdiction, Act June 30, 1834 (now 18 U.S.C.A. § 1152). Other offenses committed by one Indian against another on an Indian reservation are not punishable under the laws of the United States in the absence of specific statutory reference to Indians, but are to be dealt with in accordance with tribal customs and law. United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196. See 18 U.S.C.A. § 1152. More recently certain states have been specifically granted jurisdiction over offenses committed by or against Indians on Indian reservations, e. g. 25 U.S.C.A. § 232, 18 U.S.C.A. § 3243.
A similar pattern of piecemeal legislation has developed the jurisdiction of the different courts in civil actions concerning Indians, their rights and property. The doctrine that Indian affairs are subject to control of the federal, rather than state government, arises from the constitutional powers of Congress to make treaties, to regulate commerce with the Indian tribes, to admit new states, and to administer the property of the United States and legislation enacted in pursuance of these powers. The states of Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota, Utah and Washington were admitted to the union under enabling acts expressly disclaiming jurisdiction over Indian affairs and this provision was consequently written into their constitutions.
In accordance with these powers, Congress has enacted and repealed a welter of laws dealing with the protection of Indians beginning with the four Indian Acts of the First Congress in 1789. Significant legislation which in modified form continues in the law today has been concerned generally with the regulation of trade with the Indians, the sale of Indian lands, and the protection of those lands against trespass;
The 1934 extensive legislation, 25 U.S. C.A. § 461 et seq., had for its purpose the protection of Indian resources needed for tribal existence. It was under these sections that the Southern Ute Tribe was organized.
A further attempt to give reservation Indians equal protection of the laws of the state wherein they reside in accordance with the rights afforded other citizens of that state was made in Public Law 280, August 15, 1953, c. 505, 67 Stat. 588, 28 U.S.C.A. § 1360, wherein jurisdiction of the states of California, Minnesota, Nebraska, Oregon, and Wisconsin over criminal and civil causes within Indian territory was recognized. Tribal customs and ordinances not in conflict with state law were preserved. The Act further gave consent of the United States for those states inhibited by their enabling acts and constitutions to pass amendments providing for the assumption of jurisdiction over civil and criminal causes concerning Indian affairs.
In reporting the bill the Indian Affairs Subcommittee of the House Committee on Interior and Insular Affairs stated:
It is interesting to note that in those states which clearly have jurisdiction by reason of statute, tribal laws not inconsistent
Congress has retained jurisdiction in the federal district courts to "determine any action, suit, or proceeding * * * involving the right of any person * * * of Indian blood * * * to any allotment of land under any law of treaty" where the claimant is the plaintiff and the United States the defendant. 25 U.S.C.A. § 345.
It is clear that Congress at no time intended to provide for federal supervision of private civil actions by Indians. It is equally clear that the Due Process clause of the Fifth Amendment does not apply to the activities of the tribe or corporation for, although the Interior Department has ruled that for certain purposes Indian tribes are to be regarded as agencies of the federal government (Op.Sol.I.D.,M.29156, June 30, 1937; Op.Sol.I.D.,M.27810, December 13, 1934), the doctrine that an Indian tribe is not a federal instrumentality within the various statutory and constitutional restrictions upon federal instrumentalities has not been changed since it was laid down in Talton v. Mayes, supra.
Plaintiff argues, ignoring the purpose of the 1934 Acts to retain the tribal organization through incorporation, that because the corporation is organized under the laws of the United States membership rights are inherently a federal question. Although originally incorporation under federal law was sufficient to invoke the jurisdiction of the federal courts as raising a federal question, see 14 A.L.R.2d 1017, such an interpretation was effectively curtailed by the enactment of 28 U.S.C.A. § 1349:
Plaintiff cites a number of the sections of the 1934 Reorganization Acts, the interpretation of which she claims is necessary to the disposition of her complaint. We see no such legal necessity.
Section 476 provides that any Indian tribe residing on the same reservation shall have the right to organize for its common welfare, and may adopt an appropriate constitution and by-laws, to be ratified by voting tribal members and approved by the Secretary of the Interior. This section also provides that, "In addition to all powers vested in any Indian tribe * * * by existing law", the tribe or its tribal council should also have certain additional powers with respect to protection of tribal lands.
Section 477 authorizes the issuance by the Secretary of the Interior of a charter of incorporation, to become effective only upon ratification by a majority vote of the adult Indians living on the reservation. And, Section 479, defines "Indian" as used in the preceding sections to include "all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction and all persons who are descendants of such members * * * and all other persons of one-half or more Indian blood."
There is nothing in the text or context of these acts which purports to grant a member of the Ute Tribe membership in the corporation. Indeed, the purpose and tenor of the legislation was to make the power of self-government more effectual.
Nor can it be said that by excluding plaintiff's participation in the corporation that the tribe or the Council have usurped powers granted to or reserved to a federal agency.
Article II of the Constitution & Bylaws of the Tribe is:
The courts have consistently recognized that in absence of express legislation by Congress to the contrary, a tribe has the complete authority to determine all questions of its own membership, as a political entity. Patterson v. Council of Seneca Nation, 245 N.Y. 433, 157 N.E. 734; Waldron v. United States, C.C., 143 F. 413; Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442. But it has been held that 25 U.S.C.A. § 163 and its predecessors qualify that power of an Indian tribe where the question involved is the distribution of tribal funds and other property under the supervision and control of the federal government. U. S. ex rel. West v. Hitchcock, 205 U.S. 80, 27 S.Ct. 423, 51 L.Ed. 718; Mitchell v. United States, 9 Cir., 22 F.2d 771; 55 I.D. 14, 39 (1934); cf. Raymond v. Raymond, 8 Cir., 83 F. 721; Nofire v. United States, 164 U.S. 657, 17 S.Ct. 212, 41 L.Ed. 588. See also United States v. Rogers, 4 How. 567, 11 L.Ed. 1105. It appears that for purposes of which the tribe has complete control, the tribe conclusively determines membership; but where departmental action is authorized, the department may approve or disapprove the membership rolls of the tribe.
But the questions of membership or whether there is a conflict between the tribal constitution and the enrollment statute are not raised by the complaint. Plaintiff alleges that she was duly enrolled as a member of the Southern Ute Tribe in accordance with 25 U.S.C.A. § 163 and remained a recognized member for some time after the tribe's incorporation. She complains that her privileges as a member have been denied her as a consequence of the wrongful acts of the defendant corporation and individuals. She does not allege that the question of her status as a shareholder or member of the tribe is in any way involved, but rather her action is in the nature of a shareholder's suit for an accounting or tort for conversion.
In Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70, some of the tests of a federal question were set forth as follows:
Plaintiff's claims as set forth in her pleadings do not meet this test nor otherwise properly raise a federal question. The suit is a private one, unique only in its background of Indian origin. The order of dismissal for want of jurisdiction was proper and the judgment of the trial court is affirmed.