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

                                                                        MAR 20 2003
                   UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                                TENTH CIRCUIT



 EDWARD KENNEDY; CATHERINE
 A. SINGER,

            Plaintiffs - Appellants,

   v.

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

            Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and McCONNELL, Circuit Judges.




        This order and judgment is not binding precedent, except under the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

doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiffs, members of two different Indian tribes, filed suit in federal

district court against several officials of the Santa 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. Concluding that ICRA does not

authorize plaintiffs’ suit, the district court dismissed 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 the extent to which Congress

created a private cause of action under ICRA. We have jurisdiction pursuant to

28 U.S.C. § 1291 and affirm.

                                          I

      Edward Kennedy, a member of the Blackfeet Indian Tribe, and his wife

Catherine A. Singer, a member of the Santa Clara Pueblo (collectively,

“plaintiffs”), both reside on the Santa Clara Pueblo reservation. In 1996,

plaintiffs filed a suit in the Santa Clara Tribal Court against Chief Judge Silva of

that court and fourteen Santa Clara Tribal Council (“Council”) members, claiming

that their civil rights were violated when Chief Judge 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 Court


      1
        Judge Silva incarcerated Kennedy and seized Singer’s property when
Kennedy failed to pay two default judgments entered against him in lawsuits
brought by plaintiffs who are not parties to the instant case.

                                         -2-
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 remanded 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 continued 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, however, the Council reenacted

the 1981 Code, but, according to the Council, the reenactment was “subject to all

intervening changes, including the repeal of [the waiver provision].” (Appellant’s

App. at 75.) Nonetheless, Hughes advised the Council following the remand of

plaintiffs’ suit that the status of the waiver was uncertain, and suggested a

proposed resolution reaffirming the tribe’s sovereign immunity in civil rights

cases. This resolution was passed in November 1998 as Resolution No. 98-29.




      2
         According to the parties, this action was still pending on remand to the
Santa Clara Tribal Court as of August 2002 (the date defendants filed responsive
briefing before this court).

                                         -3-
      Following the enactment of this resolution, the plaintiffs 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 violated their rights under the Santa

Clara Pueblo Constitution and their rights under the 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 “Tribal Defendants”) and Hughes. In

this action, plaintiffs claimed that the Tribal Defendants and Hughes had violated

their constitutional rights as protected by ICRA, 25 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 or deprive any person of liberty or

property without due process of law.”). Specifically, plaintiffs made the same

argument they had raised in their second suit in tribal court, claiming that the

enactment of Regulation No. 98-29 violated the Santa Clara Pueblo Constitution,


      3
         After Judge DeMolli dismissed plaintiffs’ second case in tribal court, the
Council concluded that the cost of maintaining a separate tribal court of appeals
was not justified, and transferred appellate jurisdiction over decisions of the
Tribal Court to the Southwest Intertribal Court of Appeals (“SWITCA”). While
the attorney for Kennedy and Singer was aware of this transfer of appellate
jurisdiction, Kennedy and Singer apparently did not pursue an appeal before
SWITCA.

                                         -4-
the United States Constitution, and § 1302 of ICRA, insofar as it denied them due

process and equal protection of the law. Plaintiffs sought compensatory and

punitive damages as well as declaratory relief.

      Hughes and the Tribal Defendants filed separate motions to dismiss,

arguing, among other grounds, that § 1302 of ICRA does not create a cause of

action for this claim in federal court. The district 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 jurisdiction. 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 reviewing a

dismissal for failure to state a claim under Rule 12(b)(6), we accept all well-

pleaded factual allegations in the complaint as true and view them in the light

most favorable to the nonmoving party. Sutton v. Utah 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 12(b)(6) dismissal is reviewed de

novo. Id.

      Because plaintiffs’ federal suit in the instant case is based on § 1302 of

ICRA, we consider as a threshold matter whether a private cause of action may be


                                          -5-
brought under that section. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 69

(1978), the Supreme Court held that the only provision of ICRA that authorizes a

private cause of action is § 1303, the habeas corpus provision. The Court held

that § 1302, the section under which plaintiffs bring the instant action, “does not

impliedly authorize actions for declaratory or injunctive 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 Shoshone Tribes, 623 F.2d

682 (10th Cir. 1980), and plaintiffs claim that their action falls under the Dry

Creek exception to Santa Clara.

      In Dry Creek, the plaintiffs were non-Indians involved in a land dispute

with two Indian tribes. Id. at 683–84. Although we acknowledged Santa Clara as

governing authority, we nonetheless noted that the Dry Creek plaintiffs had “no

remedy within the tribal machinery nor with the tribal officials in whose election

they cannot participate.” Id. at 685. We accordingly distinguished Santa Clara on

the grounds that Santa Clara involved “entirely an internal matter concerning

tribal members” and that “[t]he members of the Tribe 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. Pueblo


                                          -6-
of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984). In order for the Dry Creek

exception to apply, “[a] plaintiff must demonstrate: the dispute involves a non-

Indian party; a tribal forum is not available; and the dispute involves an issue

falling outside internal tribal affairs.” Ordinance 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 that plaintiffs had failed to

satisfy the second two requirements for the Dry Creek exception 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 available in this case, as plaintiffs

have filed two actions before the Santa Clara Tribal Court, the second of which

involved the same claim as in the instant federal case.

      In this Court, plaintiffs assert that they “have demonstrated that no tribal

forum is viable to hear and decide their claims.” (Appellants’ Br. at 9.)

According to plaintiffs, “[a] pro tem judge appointed by the Tribal Defendants

determined that Appellants’ second complaint should be dismissed because the


      4
        Subsequent decisions have limited the Dry Creek exception to cases
involving “particularly egregious allegations of personal restraint and deprivation
of personal rights.” Ramey Constr. Co. v. Apache Tribe 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 requirement in light of its
determination that the other two requirements were not met. Kennedy v. Hughes,
slip op. at 4.

                                          -7-
Santa Clara Tribal Defendants’ actions were not subject to judicial review.” (Id.

at 6.)

         This misrepresents the tribal court’s decision. Judge Frank Demolli,

appointed to hear plaintiffs’ case in tribal court, expressly ruled that the court had

“both subject matter and personal jurisdiction” over 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 precedent, 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 that “[a]ny civil rights claim

shall be reviewed using the background of tribal sovereignty and in the context of

the Pueblo of Santa Clara’s unique tribal law and custom.” (Id. at 106.) Judge

Demolli then proceeded to explain why plaintiffs’ claims of due process, equal

protection, and bill of attainder violations were deficient on the merits to state a

claim on which relief may be granted. Plaintiffs did not appeal. 6

         The Dry Creek exception 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 available for vindication of such


         6
             See supra note 3.

                                          -8-
rights. This is precisely as contemplated by the Supreme Court: “Tribal forums

are available to vindicate rights created by the ICRA . . . . Tribal courts have

repeatedly been recognized as appropriate forums for the exclusive adjudication

of disputes affecting important personal and property 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 their 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 elements of the Dry Creek exception.

Because Santa Clara holds that there is no private cause of action under ICRA

outside the habeas context and plaintiffs fall under no exception to this rule, the

district court correctly dismissed this suit for lack of subject matter jurisdiction or

failure to state a claim upon which relief may be granted.

                                                III

      The judgment of the district court is AFFIRMED.




                                                 ENTERED FOR THE COURT



                                                 Carlos F. Lucero
                                                 Circuit Judge

                                          -9-
