The opinion of the court was delivered by: SIRICA
The plaintiff in this action is General Counsel and Claims Attorney for the Navajo Tribe. The Tribe has a population of approximately 100,000 members and occupies a reservation in Arizona, New Mexico, Utah and Colorado of approximately 24,000 square miles. It has extensive resources, including approximately $ 80,000,000 on deposit in the United States Treasury, and has a monthly income from mineral leases of approximately $ 1,000,000.
The defendant Secretary and his subordinates are restrained, by a preliminary injunction issued by Judge McGarraghy of this Court on November 29, 1963, from terminating plaintiff's contract with the Navajo Tribe; from suspending or otherwise improperly interfering with plaintiff's performance of said contract; or from withholding payments due thereunder. Defendant appealed from Judge McGarraghy's ruling; the Court of Appeals for this Circuit affirmed, 338 F.2d 537 (Aug. 13, 1964, petition for rehearing denied, Oct. 16, 1964). This Court is now asked to decide whether a permanent injunction should be issued.
As background, the following facts are relevant:
Mr. Littell has been General Counsel and Claims Attorney for the Navajo Tribe since August of 1947. Since that time, the Tribe's economic status has risen from a position of poverty to that of prosperity, largely due to discovery of vast mineral resources on the reservation. Plaintiff's duties have materially increased as the complexity of the Tribe's legal problems have multiplied with its increasing wealth. Correspondingly, his annual retainer as General Counsel has been raised from $ 5,000 beginning in 1947, to a present figure of $ 35,000. He has as yet received no fee for claims work during this period.
Plaintiff negotiated a ten-year contract in 1947 with the Navajo Tribal Council, the governing body of the Tribe, and renewed it for another ten years in 1957 after a short interim agreement. Pursuant to 25 U.S.C. § 81, the Secretary of the Interior, or his authorized representatives, have approved these contracts and the several amendments thereto.
Until early 1963 relations between attorney and client were cordial. Then, in a hotly-contested campaign for the office of Navajo Tribal Chairman, which is the Chief Executive position of the Tribe, this relationship became subject to considerable stress and strain. The successful candidate, Raymond Nakai, had promised during the campaign to remove plaintiff from his position. Mr. Nakai campaigned for the office of Navajo Tribal Chairman primarily on a platform 'to get rid of Mr. Littell.' He advocated less interference by the plaintiff in tribal affairs and also charged that the plaintiff had misrepresented to the Tribe the result in the Navajo-Hopi boundary dispute involved in Healing v. Jones. The nature of the dispute is discussed infra.
Nakai was elected Chairman in March of 1963 and was inaugurated the next month. Even before his inauguration, Nakai visited the Secretary and sought his help in eliminating Littell.
An old friend of the Secretary, one Barry DeRose, an Arizona attorney, was one of the collaborators. On June 14, 1963, he boasted that he could contact the Secretary 'at any time.' On June 18, DeRose phoned the Secretary's office for an appointment. Just one day later, he was in the Secretary's office. Several other persons opposed to Littell were present. At this meeting, the Secretary could have guided the dispute back to the limits of propriety by urging airing of it before the Tribal Council. Instead, he unwisely counseled that the charges against Littell should be expressed in a resolution passed by the nine-man Advisory Committee, a group appointed by Nakai, beholden to him, and quite prepared to rubberstamp anything he wanted. The result was an attempt to cloak this whole plan to eliminate Littell with the guise of legitimacy by getting a resolution passed by Nakai's hand-picked puppet committee.
Apparently, the Secretary preferred to accept the word of the Advisory Committee, which he himself described as a 'stacked body,' rather than submit the dispute to the duly-elected Tribal Council, representing all 100,000 Navajos on the reservation. He followed this course despite a written protest to him by several members of the Council concerning the circumvention of the Council.
The resolution was adopted by the Advisory Committee on June 25, 1963. There followed a concerted effort to 'get rid of Littell' as General Counsel and Claims Attorney.
There was, however, a major obstacle to removal of the plaintiff. The 1957 contract provided that the termination of that contract could be accomplished only by the 74-member Tribal Council. It is clear that the majority of the Council membership was opposed to termination.
To detour this legal roadblock, the Secretary decided in November of 1963 that he himself should remove Littell. By a letter dated November 1, the Secretary transmitted to the plaintiff copies of two memoranda prepared by Frank J. Barry, the Secretary's Solicitor (the nature of the charges of alleged misconduct contained in the two memoranda are discussed infra in the section dealing with the defendant's assertion that the plaintiff has sought equitable relief with unclean hands). In the Secretary's letter of November 1 to plaintiff, he said:
'The conclusions which arise from the findings and conclusions on the memoranda mentioned above leave me no recourse but to take the following action:
'(a) Your personal performance under the Attorney Contract of the Navajo Tribe dated October 8, 1957, as amended, is hereby suspended;
'(b) Your contract will be terminated as of December 1, 1963, unless, in the interim, you can adduce convincing evidence that the conclusions justifying suspension and termination are unwarranted; and
'(c) Approval of said contract and all amendments thereto, insofar as such approval relates to your personal performance and right to compensation, is hereby rescinded and withdrawn. Furthermore, I have directed that no payments be made to you under said contract until further notice.'
Plaintiff then filed this action. Judge McGarraghy's preliminary injunction followed on November 29, 1963. It prohibited the Secretary or his subordinates from terminating or suspending or improperly interfering with the plaintiff's performance under said contract, and further enjoined the Secretary's withholding of voucher approvals for monthly salary payments.
Within a few weeks, the regular quarterly meeting of the Navajo Tribal Council was held in Window Rock, Arizona. A further interference with the plaintiff's duties occurred when he was ejected from the meeting by Chairman Nakai with the tacit approval of several of the people present, including employees of the Bureau of Indian Affairs, an arm of the Interior Department, and one Stanley Zimmerman, the personal representative of the Secretary and Barry. The plaintiff moved to cite the Secretary and Zimmerman for contempt, alleging that the Secretary and his officers, agents, and employees, including Zimmerman, violated the terms of the injunction in that they confederated and conspired with divers others persons to prevent plaintiff from acting as General Counsel for the Navajo Tribe. The evidence available to this Court at the time of the hearing (March 1964) of that motion failed to prove such a conspiracy in a manner that was 'clear and convincing,' and the Court denied the motion. The Court's oral opinion, rendered at the conclusion of the contempt hearing, is included as Appendix I. At this point, it might be noted that if all of the evidence that was introduced by both parties in the present action had been available for the Court's consideration at the contempt proceeding, the conclusion reached by the Court in that case undoubtedly would have been different.
Following the affirmance of Judge McGarraghy's preliminary injunction by our Court of Appeals, Udall v. Littell, supra, the defendant filed an answer and the hearing on the merits for a permanent injunction was held.
Attached hereto as Appendix II are the Court's findings of fact and conclusions of law.
The Court will now comment upon the principal legal issues raised in this case, namely:
(1) Did the Secretary have the legal authority to terminate the contract?
(2) Did the plaintiff exhaust his administrative remedies?
(3) Does the plaintiff seek equitable relief with unclean hands?
DID THE SECRETARY HAVE THE LEGAL AUTHORITY TO TERMINATE THE CONTRACT?
The crucial question to be determined, if it has not already been decided by the Court of Appeals, Udall v. Littell, supra, is whether or not under the circumstances of this dispute, with the language of plaintiff's contract providing for termination only by the Tribal Council, the Secretary had the power to himself terminate the plaintiff's contract. Paragraph 12 of the current contract reads as follows:
'12. Termination: (a) The Tribal Council may terminate this contract for good cause shown in respect to any one or all of second parties' services as General Counsel after giving sixty days' notice to any of second parties in respect to which termination is sought, the said termination to become effective upon approval of the Commissioner of Indian Affairs, PROVIDED, HOWEVER, that in the event of disagreement between the parties as to the sufficiency of the cause, the question shall be submitted to the Secretary of the Interior. In such event, the parties of the second part or any one of them so terminated, shall receive compensation on the basis of the annual retainer provided for in Paragraph 4, above, prorated to the date of termination, together with such sums as may be properly due for expenses incurred prior to the date of termination; PROVIDED, FURTHER that if the services of Norman M. Littell or C. J. Alexander as General Counsel are so terminated by request of first party, the said Littell and Alexander and their assigns, if any, shall have the option to terminate the contract in its entirety, subject, however, to the provisions of Paragraph (b) hereof.' (Emphasis added.)
'We have been shown no basis upon which the Secretary rather than the Tribal Council might declare the contract at an end. We have discovered no source of power -- and none has been cited to us -- which vests in the Secretary a predicate for rescission by him of his previous approval granted pursuant to 25 U.S.C. § 81 (1958).'
Since the majority withheld any opinion 'on the merits' of the case, ibid, and since the 'merits' may mean either the issue of the power of the Secretary to cancel the contract or the issue of unclean hands or both, this Court feels that it can only consider the Court of Appeals' opinion as holding that Judge McGarraghy did not abuse his discretion by issuing a preliminary injunction.
However, the Court of Appeals did note that 'the District Court clearly contemplated that the Secretary simply lacked authority to terminate the Attorney Contract in the manner attempted and to rescind his earlier approval of the contract and the amendments thereto.' (ibid.)
This language refers to the following conclusion of law made by Judge McGarraghy:
'5. The action taken by the defendant Secretary on November 1, 1963, and the further action imminently threatened to be taken by him on December 1, 1963, violates the rights of the plaintiff under his approved contract with the Navajo Tribe, and are in excess of any power or authority vested in the defendant Secretary by law.'
During the hearing on the application for a permanent injunction, defendant cited no legal authority to support his position that he had the power to suspend and terminate the contract and to rescind his previous approval of the contract and its amendments.
The Secretary has cited many case which hold in effect that he is the legal guardian of the Indians. But the Court cannot find in any of these cases a basis for holding that the Secretary could suspend, terminate, or rescind approval of this contract. The Secretary admits that he has never done it before. (Defendant's Reply Brief, p. 2.) Moreover, the memorandum from Solicitor Barry to the Secretary (page 209 of Plaintiff's Exhibit A), prepared by the Solicitor shortly before the October 11, 1963 meeting of plaintiff and the Secretary in the latter's office, informed the Secretary in unambiguous language that 'it is clear that authority to act effectively for the Navajo Tribe with respect to the employment of an attorney under 25 U.S.C. § 81 is lodged in the Navajo Tribal Council. The Advisory Committee of the tribal council has no authority to speak effectively for the tribe in such matters.' (Emphasis added.) After suggesting that an examination of tribal records should be made, the Solicitor gave the following advice:
'* * * Should the examination and audit of the records disclose the unauthorized diversion of general counsel services, it is our opinion that all remedies available to the tribe should be pursued. The tribe is certainly not obligated to pay twice for legal services incident to the claims work or to pay in any way save as provided by valid contract. Any contingent fee due under the contract would be subject to offset so as to reimburse the tribe for any unauthorized payments made to general counsel staff attorneys for claims work.
'Another action available to the tribe upon the discovery of unauthorized payments would be to invoke the cancellation provisions of the contract, and in such event you would be fully justified in approving the action of the tribal council. Indeed, if unauthorized payments are discovered you would be fully justified in initiating the cancellation procedure by recommending tribal council action, if you desire to do so.' (Emphasis added.)
Thus it is clear to this Court that as of October 11, 1963, no suggestion had been made to the Secretary that he had any legal right to attempt the unprecedented move that he made several days later when he in effect fired the plaintiff.
What caused the change in the position taken by the Secretary?
There were two memos from Barry to the Secretary included in that November 1 letter. One discussed the various charges against Littell. The other memo, marked 'confidential,' recommended termination of plaintiff's contract. This Court has found (finding No. 36) that Barry prepared these two memos at defendant's direction after plaintiff had refused to resign. This Court has further found that the decision to circumvent the Tribal Council, the only authorized entity legally capable of terminating the contract, was motivated by the realization that more than half of the 74 regularly elected members of that body wanted to keep Littell. Thus it appears that the change in attitude by Barry and the Secretary was not motivated by a recognition of any existing legal power to cancel the contract, but by their creation of an assumed power not authorized by law but only motivated by their desire to 'get rid of Littell.'
The right course of conduct -- the fair and just course of conduct -- that should have been followed by the Secretary under the circumstances would have been to use his prestige and influence to get this controversy placed before the Tribal Council as soon as possible after the receipt of the Advisory Committee's charges against plaintiff in June of 1963. It appears to the Court that the Tribal Council would have been the proper tribunal to assure an adequate investigation of the facts relating to plaintiff's alleged misconduct.
Since the Court of Appeals offered no guidelines for this Court's consideration of the 'possible applicability of 25 U.S.C. § 82 (1958),' 338 F.2d at 542, the Court will now consider this statute. 25 U.S.C. § 82 reads as follows:
' § 82. Payments under contracts; aiding in making prohibited contracts
'No money shall be paid to any agent or attorney by an officer of the United States under any such contract or agreement, other than the fees due him for services rendered thereunder; but the moneys due the tribe, Indian, or Indians, as the case may be, shall be paid by the United States, through its own officers or agents, to the party or parties entitled thereto; and no money or thing shall be paid to any person for services under such contract or agreement, until such person shall have first filed with the Commissioner of Indian Affairs a sworn statement, showing each particular act of service under the contract, giving date and fact in detail, and the Secretary of the Interior and Commissioner of Indian Affairs shall determine therefrom whether, in their judgment, such contract or agreement has been complied with or fulfilled; if so, the same may be paid, and, if not, it shall be paid in proportion of the services rendered under the contract. R.S. § 2104.'
It would be wholly unrealistic for this Court to accept the Secretary's interpretation of this statute so as to permit him to do indirectly what he cannot do directly, i.e., effectively frustrate the plaintiff in the performance of his contract by withholding approvals of his voucher payments. In other words, the Secretary by withholding approval of vouchers, can accomplish his desire to 'get rid of Littell.' Such practice will not be condoned by this Court.
The refusal of the Interior Department to approve pay increases recommended by the Tribal Council, and Nakai himself, for assistant attorneys who have since resigned for economic reasons, has resulted in the virtual destruction of its legal staff.
There has been no showing by the Secretary that he can withdraw prior approval of this contract. Once the 1957 contract, with its termination clause, was approved by the Interior Department, the Secretary lost his administrative power to terminate this contract.
DID THE PLAINTIFF EXHAUST HIS ADMINISTRATIVE REMEDIES?
Since this Court has determined that the entire administrative attempt to remove plaintiff was invalid, it seems pointless to re-explore this issue.
It is clear that the Court of Appeals considered this question in its review of Judge McGarraghy's preliminary injunction, because Judge McGarraghy had made a conclusion of law (no. 4) that 'there was no administrative remedy available to the plaintiff.' Obviously, if the Court of Appeals had determined that there was an administrative remedy available, it would not have allowed the preliminary injunction to stand and would have directed the plaintiff to first exhaust his administrative remedy.
Under the facts and circumstances of this case, where else could the plaintiff have gone for relief other than to this Court?
The Solicitor, who had already found that 'Mr. Littell's conduct must be characterized as contrary to and inconsistent with his responsibilities as the Tribe's attorney,' was designated by the Secretary to act as the judge or tribunal in determining the plaintiff's status. Faced with this prejudgment by Barry, plaintiff had no alternative other than to seek relief from this Court.
DOES THE PLAINTIFF SEEK EQUITABLE RELIEF WITH UNCLEAN HANDS?
The Secretary contends that plaintiff has not come into Court with clean hands and, therefore, should be denied the relief he has requested.
The matter of plaintiff's alleged misconduct was not the subject of a full inquiry before Judge McGarraghy, since the issue of unclean hands did not come to the surface until some time after the entry of the preliminary injunction. The Secretary had not filed his answer at the time the preliminary injunction was issued and did not raise the issue of unclean hands until he filed his answer subsequent to the affirmance of the preliminary injunction by the Court of Appeals. This Court decided that it was necessary to resolve this issue at the time of the hearing of the request for a permanent injunction, and adequate opportunity was afforded both sides to present their evidence on the charges of alleged misconduct.
It should be stated at the outset that the Secretary's argument that attorney-client contracts are presumptively invalid, Ridge v. Healy, 251 F. 798 (8th Cir. 1918), must be considered in the light of the statutory procedure in 25 U.S.C. §§ 81 and 82 for investigation and approval of Indian contracts by the Secretary. Even if the ordinary attorney-client contract is to be presumed invalid, it does not follow that the same presumption arises in an appraisal of an Indian attorney contract that has passed the scrutiny of the Secretary and been approved by him. It would be unfair to a tribal attorney if the Secretary were permitted to raise the presumption of invalidity once he had found the contract to be valid and had approved it.
In any event, this Court has concluded, after a full hearing, that the evidence simply does not constitute a showing of unclean hands on the part of Mr. Littell in his dealings either with the Tribe or with the Interior Department.
Before considering the specific charges of plaintiff's alleged misconduct made by the Secretary, it should be noted that at the trial, the Secretary denounced plaintiff for his 'gross misconduct,' his 'deception,' and his 'tricky language.' Plaintiff himself and his conduct were described as 'sneaking,' 'unconscionable,' 'unethical,' and ultimately 'dishonest.' If any of these appellations had been substantiated by proof, the Secretary would have had good reason to believe that such an undesirable person as this could do nothing but contaminate the legal affairs of the Tribe by even the slightest involvement with them.
If the Secretary really believes these charges in 1965, it is reasonable to conclude that he probably believed them on October 11, 1963, when he held a face-to-face meeting with plaintiff. Yet it is clear that at that meeting, the Secretary urged Littell to resign as General Counsel, but surprisingly, to continue to act as Claims Attorney.
The Court has as yet received no satisfactory explanation for this inconsistent position taken by the Secretary. It has been suggested that a compromise would result in Littell's confinement to claims work, in which his interest and the Tribe's interest would be more in harmony. It has also been suggested that the Secretary was primarily interested not in the welfare of the Tribe, but wanted someone more acceptable to him to become General Counsel. A consideration of all the evidence makes it difficult for this Court to conclude that the Secretary really believes Littell to be as reprehensible as he would have the Court believe.
Disregarding, for the moment, the motives of the Secretary for pressing such charges, we look at the charges themselves as framed by the Secretary in his brief (p. 12):
'(1) receiving an increase in compensation from $ 25,000 to $ 35,000 per annum in 1961, in violation of the express provision in paragraph 4(a) of his contract that there shall be no change in the attorney's compensation for the first five years, and without disclosure to the Tribe;
'(2) obtaining the approval of Amendment No. 11 to the contract, which expressly classified the case of Healing v. Jones as a claims case, without disclosing to the Tribal Council or to the Secretary that the resolution which authorized Amendment No. 11 did not authorize a change in the classification of that litigation, and that cases such as Healing v. Jones are not properly 'claims' cases in any event, and that plaintiff is guilty of a breach of trust and overreaching by placing himself in a position to claim a contingent fee of as much as 10% Of the value or of the property supposedly recovered in Healing v. Jones, and
'(3) frequently directing associate attorneys employed for General Counsel services only, to work on claims cases for plaintiff's benefit and at the expense of the Tribe and without making disclosure of that fact to either the Tribe or the Department of the Interior.'
It should be remembered that all of these allegations of misconduct are connected with activities originally approved by the Secretary or his predecessor when they were before them for their scrutiny. He is now attempting to have this Court deny plaintiff equitable relief by contending that the 'unconscionable' acts which he approved but shouldn't have, constitute 'unclean hands.'
From all of the evidence, the Court cannot find any act of intentional misconduct or inexcusable negligence which would close the door of equity on Mr. Littell.
As for Healing v. Jones, it really is of no concern to the Court whether it is a claims case or not. What does matter is whether the Tribal Council wants to pay plaintiff a contingency fee for his work on this case. Apparently, the Council has this in mind. It should have it in mind, because Mr. Littell has on several appearances before the Council called Healing v. Jones a claims case and clearly stated that claims cases involve a contingency fee. In Udall v. Littell, supra, 338 F.2d page 541, the Court stated:
'The solicitor's memorandum discussed, inter alia, a case entitled Healing v. Jones. Whether that action should have been classified as a 'claims' case or considered part of the general counsel's normal service seems to have been in question.'
For example, the evidence showed that former Solicitor Stevens at first held that this case was not a claims case, and later reversed himself and said it was a claims case. Furthermore, John S. Boyden, attorney for the Hopi Tribe in Healing v. Jones, advised the Hopi Tribal Council that it was a claims case.
In footnotes 11 through 13 in the Court of Appeals opinion, 338 F.2d at 541, there appears the following brief summary of Healing v. Jones:
'Congress in the Act of July 22, 1958, a special jurisdictional statute, had authorized this action, 72 Stat. 403, while Jones was chairman of the Tribal Council.
'In 1958, Senators Hayden and Goldwater had co-sponsored S. 692 to declare certain lands to be held by the United States in trust for the Hopi Indians and such other Indians as 'heretofore have been settled thereon by the Secretary of the Interior.' (See Exec. Order, December 6, 1882). The Navajo and the Hopi Tribes were authorized to commence or defend an action against each other for the purpose of determining their respective rights and interests in those lands. See H.R.Rep.No.1942, 85th Cong., 2d Sess.; 104 Cong.Rec. 13196, July 9, 1958. Healing v. Jones * * * followed.
'The Department of Justice challenged the jurisdiction of the court to hear the case and otherwise sought to protect the Government against the 'claims' of the contending parties. Jones for the Navajo Tribe successfully opposed the position of the Government. Healing v. Jones, 174 F.Supp. 211 (D.Ariz.1959). After extensive pretrial proceedings, the case was disposed of by a special three-judge court. The exhaustive opinion of Circuit Judge Hamley occupies some sixty-seven pages of the printed reports as he traced the history of the problems presented and explored the contentions of the respective tribes with regard to the '1882 Reservation.' The interest of Congressman, later Secretary, Udall was noted by Judge Hamley, 210 F.Supp. at 189.
'It is reasonable to deduce that preparation and presentation of the case by respective counsel must have entailed great skill and professional attainments of a high order. Substantial advantages were gained by the Navajo Tribe. Healing v. Jones, 210 F.Supp. 125 (D.Ariz.1962). The Supreme Court affirmed, 373 U.S. 758, 83 S. Ct. 1559, 10 L. Ed. 2d 703 (1963). The appellee was of counsel at all times, according to the official reports.
Since Mr. Littell has not collected a penny of compensation as yet from claims cases, the matter is still left for future resolution by the parties to the contract.
It appears to this Court that a determination of the status of Healing v. Jones, that is, whether it is or is not a claims case, is not essential to a decision in this action. The ultimate resolution of the matter might better be left to the two parties to the contract, namely, Mr. Littell and the Tribal Council.
All that need be determined at this stage is whether Mr. Littell breached his duty to the Tribe by his handling of Amendment 11. The Court finds he did not.
Finally, the use of General Counsel attorneys on claims cases has been admitted by Littell, but the Court finds no breach of ethics in this diversion of legal assistance. In fact, circumstances made such diversion unavoidable. There has been no harm done to the Tribe. No claims compensation has yet been paid to plaintiff. The Tribe can take advantage of the setoff procedure suggested by Solicitor Barry in his October 1963 memorandum.
A consideration of all the evidence in this case makes it clear to this Court that the Secretary's charges of alleged misconduct by plaintiff have not been proved.
The record in this case, which includes (a) the record made on the motion for preliminary injunction that was before the Court of Appeals in Udall v. Littell, supra; (b) the record made on the motion to cite the Secretary and his subordinates for contempt; (c) the record made on the defendant Secretary's motion to clarify the preliminary injunction; and (d) the testimony and the exhibits adduced in the course of a trial that lasted for two full weeks, does not contain a single complaint at any time by the defedant Secretary, by Solicitor Barry, by Chairman Nakai, by the Denetsones, by Barry DeRose, or any one else, of any lack of professional competence on plaintiff's part in any matter in the course of his representation of the Navajo Tribe of Indians over the seventeen and a half years during which he has acted as their General Counsel and Claims Attorney. And during this period the plaintiff has at all times represented his client competently, faithfully, loyally and honestly.
After giving consideration to all of the evidence that was introduced during the contempt proceeding and the present action, the Court is of the opinion that the plaintiff, after more than seventeen years of hard work and faithful service in behalf of the Navajos, and after having contributed so much to helping the Tribe advance from a position of poverty to that of great wealth, was entitled to better treatment and consideration by those in a position of authority than he received.
And the Court can only characterize that treatment, under the facts and circumstances of this case, as brutal and shabby.
The Court cannot refrain from expressing the hope that all concerned will do their utmost to present this matter to the Navajo Tribal Council for its decision as to whether or not it wishes to terminate the plaintiff's contract.
It has been the policy of the Federal Government to foster and encourage self-government for the Indians. The ability of the Tribal Council to resolve this dispute has been questioned by the Secretary and others. Mrs. Annie Wauneka, a distinguished Indian leader whose dedication to the welfare of the Tribe has been recognized by the President of the United States by his awarding to her the Medal of Freedom, is a member of the Tribal Council. The wisdom, honesty, sincerity and judgment manifested by her while she was testifying in the contempt proceeding and also in this action and also that of Mr. McCabe, the Director of Administration for the Tribe, has greatly impressed the Court. The Court chooses to give more weight to their testimony than it does to that of the Secretary, Barry, DeRose, and the Denetsones, and particularly with reference to their testimony regarding the ability of the Tribal Council to conduct its own affairs and make it own decisions.
Mr. McCabe, who has attended practically every Tribal Council meeting since July, 1951, expressed confidence in the ability of the Council members to handle their own affairs. He testified that a few of the matters the Council has considered and resolved included the development of mining regulations, grazing regulations, and trading post regulations, and the preparation of an annual Tribal budget.
Mrs. Wauneka has been a Council member since 1951 and the Court has already commented upon her credibility as a witness. She testified that the Council members are 'able and capable of handling the Tribal affairs to my way of thinking.' (Tr. 1600.)
The Court finds from the evidence that the Tribal Council has the ability, knowledge, and intelligence to handle its own affairs.
It is the Court's opinion that this whole controversy could have been averted by the Secretary if he had directed Nakai and the others with whom he conferred about this dispute in his office in June 1963 to present it to the Tribal Council for their resolution rather than by handling it in the manner that he did.
Indian self-government should be a meaningful goal rather than an empty phrase. up to now, those who have suffered most as a result of this feud have been the Navajos. It is hoped that in the future they will be given the right and the opportunity to decide their own problems.
A permanent injunction will issue forthwith.
ON MOTION FOR CIVIL CONTEMPT ORDER
The Court delivered the following opinion orally in denying plaintiff's motion for an order adjudicating defendant and others in contempt for violation of the preliminary injunction entered in this Court November 29, 1963.
In this case, a preliminary injunction was issued by Judge McGarraghy on November 29, 1963, which enjoined the defendant, Mr. Udall, his officers, agents subordinates and employees, and any and all persons acting by virtue of or under his authority or direction, and all persons acting in participation and concert with them, who have actual notice thereof, from, terminating or cancelling plaintiff's contract of employment as General Counsel of the Navajo Tribe of Indians, and from suspending or ...