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Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 University of Chicago Law Review 671 (1989)


In 1941, Julia Martinez, a member of the Santa Clara Pueblo, and Myles Martinez, a Navajo, were married. The couple resided on the Santa Clara Pueblo; they had several children. In 1939, the Santa Clara Pueblo promulgated an ordinance detailing its membership rules. The ordinance provided that children of female members who married outside the Pueblo would not be Santa Clarans, while children of male members who married outside the Pueblo would be members. In the early 1970s, Julia Martinez and her daughter Audrey filed a lawsuit under Title I of the Indian Civil Rights Act (ICRA) of 1968. Having been unsuccessful in their efforts to persuade the Pueblo to change its membership rules, Julia and Audrey Martinez asked the federal court for declaratory and injunctive relief—to invalidate the Santa Clara Pueblo's ordinance and to require that the Pueblo count the Martinez children as members.

In 1978, the United States Supreme Court decided the case of Santa Clara Pueblo v Martinez. Justice Thurgood Marshall, writing for the majority, interpreted Title I of the ICRA to impose "certain restrictions upon tribal governments similar, but not identical, to those contained in the Bill of Rights and the Fourteenth Amendment." However, the only express jurisdictional and remedial provision of the statute was habeas corpus. Martinez v Santa Clara Pueblo thus raised the question of whether the federal court should imply a right of action and federal court jurisdiction to hear the alleged violation of the Indian Civil Rights Act. According to the Court, implication of a right of action and federal court review for claims such as those raised by Julia and Audrey Martinez would undermine the Congressional purpose of preserving "tribal sovereignty" and "self-government." Therefore, no implied cause of action existed, and the federal courts could not hear the discrimination charge.

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