PICKETT, Circuit Judge.
Mary Martinez brought this action for a declaration of her status as a member of the Southern Ute Tribe of Indians and a finding that she should receive per capita payments to which the members of the tribe are entitled. Lack of diversity of citizenship is conceded and it was alleged that the controversy "arises under the laws of the United States, including 25 U.S.C. § 163 and § 676," and federal jurisdiction is asserted pursuant to the provisions of 28 U.S.C.A. § 1331.
In substance, the plaintiff alleges in this case that the Southern Ute Tribe of the Southern Ute Reservation is a recognized tribe of Indians, duly incorporated under the provisions of 25 U.S.C.A. § 477, with the corporate name of "Southern Ute Tribe"; that pursuant to the provisions of 25 U.S.C.A. § 676, the tribe, with the approval of the Secretary of the Interior, has designated the expenditure of tribal funds for the purpose of making per capita payments to all members of the tribe; that a membership roll of the tribe has been established by the Secretary of the Interior as authorized by the statutes of the United States, including 25 U.S.C.A. § 163; that according to said membership roll the plaintiff is a member of the tribe and entitled to per capita payments in excess of $4,500; that the defendant tribe wrongfully denies that the plaintiff is a member of the tribe and thereby prevents her from receiving the payments due her as such member.
It is quite clear from the allegations and prayer of the complaint in the first
Plaintiff contends that the specific allegations in her complaint that she is a member of the tribe by virtue of a membership roll prepared by the Secretary of the Interior pursuant to the provisions of 25 U.S.C.A. § 163, and that the tribal council has designated, and the Secretary has approved, the expenditure of tribal funds for per capita payments to all members, are sufficient to establish that there is a controversy between the parties arising under the laws of the United States. Section 163 is a general statute authorizing the Secretary of the Interior to cause a final roll to be made of the membership of any Indian tribe, which roll, when approved, shall constitute a legal membership of the respective tribes for the purpose of segregating the tribal funds as provided for in 25 U.S. C.A. § 162.
In unmistakable language, this controlling statute permits the defendant tribe, subject only to the approval of the Secretary of the Interior, to designate how its funds shall be disposed of, which includes the power to designate that per capita payments be made to its members. It becomes operative as to the plaintiff only when the tribal council designates her as a member of the tribe for the purpose of per capita payments, and the designation is approved by the Secretary of the Interior. While it is true that if the plaintiff is to receive per capita payments they will be paid to her as authorized by the provisions of § 676, it does not follow that a federal question is presented. As stated in our former decision, the case of Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70, sets forth the essential test to determine the presence of a federal question, where it is said:
Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205, was an action brought to determine conflicting claims to a tract of allotted land in the Creek Indian Nation. With reference to federal jurisdiction arising out of federal law, the court said:
In Andersen v. Bingham & Garfield Railway Co., 10 Cir., 169 F.2d 328, 330, 14 A.L.R.2d 987, 990, this court used similar language wherein it was said:
The law is settled that "a mere statement that a construction of certain federal statutes is involved in a case is not sufficient to bestow such jurisdiction. The dispute must involve a substantial question as to construction of the federal statutes, and not a colorless or frivolous one, * * * or a mere makeshift, for the purpose of securing such jurisdiction." Jefferson v. Gypsy Oil Co., 8 Cir., 27 F.2d 304, 305. An Indian, because he is an Indian, has no greater right to sue in Federal Court than any other litigant. Deere v. St. Lawrence River Power Co., 2 Cir., 32 F.2d 550.
Plaintiff's claim does not depend upon a construction of a Federal statute. It is based entirely upon a failure of the tribe to designate her as one entitled to per capita payments. If the plaintiff has rights under § 676, the relief sought in the complaint does not involve the application of that section. The plaintiff seeks a decree which, in effect, would direct the tribe to designate her as one of its members and thereby entitle her to tribal benefits. There is no allegation that the Secretary, who is not a party to the action, refused to make designated payments provided for in § 676. In the former case, following the general rule, we held that "in [the] absence of express litigation by Congress to the contrary, a tribe has the complete authority to determine all questions of its own membership, as a political entity." [249 F.2d 920.] Plaintiff's statement of her claim plainly discloses that it is one entirely between plaintiff and the tribe,
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States." The action was filed prior to the amendment of this section.