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September 2, 1976

ALLEN HARJO, et al., Plaintiffs,
THOMAS S. KLEPPE, et al., Defendants

The opinion of the court was delivered by: BRYANT


 This matter is now before the Court on the parties' cross-motions for summary judgment. The parties have stipulated that no genuine issues of material fact exist. Plaintiffs in this action seek declaratory and injunctive relief against the policy and practice of the Interior Department in recognizing and dealing with defendant Cox, Principal Chief of the Creek Nation, as the sole embodiment of the Creek tribal government, and in refusing to recognize, facilitate, or deal with a Creek National Council as a coordinate branch of the tribal government responsible for certain legislative and financial functions.

 The Creek Nation is one of the Five Civilized Tribes of Oklahoma. Each of the four plaintiffs is a resident of Oklahoma, a citizen of the United States, and a Creek Indian who is a citizen of the Muskogee (Creek) Nation and of a Creek Tribal Town. Each of the plaintiffs is a duly qualified elector under the laws or customs of his or her respective tribal town and under the laws of the Creek Nation, as to the election of tribal town representatives to the Creek national legislature. Each of the male plaintiffs is also a duly qualified elector under the original laws and 1867 Constitution of the Creek nation as to the election of the Principal Chief and Second Chief of that Nation. In addition, named plaintiff Allen Harjo is an elected representative of Fish Pond Tribal Town. Harjo has also twice run unsuccessfully for Principal Chief of the Creek Nation. *fn1"

 Defendants include the Secretary of the Interior and subordinate employees of the federal government with general responsibility for executing laws passed or approved by Congress relating to Indians. Defendants also include the Secretary of Treasury and a subordinate official with responsibility for executing the federal laws pertaining to revenue-sharing funds payable to Indian tribes. Defendant Claude A. Cox is sued in his capacity as the officially recognized Principal Chief of the Creek Nation. Cox was twice elected as Principal Chief pursuant to regulations and procedures devised under the October 22, 1970 Act of Congress, 84 Stat. 1091. *fn2"

 Primarily at issue is the legitimacy of Cox's authority to disburse tribal funds and enter into contracts on behalf of the Creek Nation without the approval of the Creek National Council. Specifically, the first cause of action alleges: (1) Article I of the 1867 constitution of the Creek Nation lodges the lawmaking power of that Nation in the Creek National Council; (2) The Constitution of the Creek Nation places the financial affairs of the Nation exclusively under the control of the Creek National Council; (3) Congress, between 1866 and 1906, on several occasions specifically recognized the Creek National Council as the ultimate repository of power within the Creek national government; (4) Under the terms of the Act of 1906, 34 Stat. 137, and the Treaties of 1856 and 1866 Congress imposed on defendants the duty to respect and follow the provisions of the constitution of the Creek Nation; and (5) Federal defendants have approved the disbursement of tribal funds by defendant Cox on behalf of the Creek Nation and have paid federal funds to Cox contrary to the intent of Congress. *fn3"

 Defendants argue that (1) This Court lacks jurisdiction over the action; (2) The action is a nonjusticiable controversy; (3) The Court should dismiss the action due to the absence of certain indispensable parties; (4) Various congressional acts have relieved the Creek Nation of sufficient authority that it has been rendered incompetent to handle the affairs of the tribe under the 1867 Constitution; (5) Congress was aware of the fact that the affairs of the Five Civilized Tribes (Creeks, Cherokees, Choctaws, Chickasaws, and Seminoles) were being administered by Principal Chiefs or Governors and therefore ratified this form of government when it enacted the Act of October 22, 1970, 84 Stat. 1091.


 A. Jurisdiction and Justiciability

 Defendants contend that the Court lacks jurisdiction over the subject matter of this action on the grounds that: (1) The question involved is political and not subject to the control of the judiciary; and (2) The issue involves an intratribal dispute which traditionally is not within the jurisdiction of the federal courts.

 In making these arguments under the rubric of jurisdiction, defendants have failed to distinguish between judicial power (jurisdiction) and the appropriateness of the subject matter for judicial consideration (justiciability). The Supreme Court in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), explained that distinction:

"In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not 'arise under' the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III § 2), or is not a 'case or controversy' within the meaning of that section; or the cause is not one described by any jurisdictional statute." 369 U.S. at 198.

 Plaintiffs contend that defendants are acting beyond and contrary to the authority prescribed by Congress through various statutes. Thus the question clearly arises under the laws of the United States. Since among the matters governed by these statutes is federal defendants' authority to dispense and defendant Cox's authority to spend over $10,000 in revenue sharing funds and over $2 million in Indian claims appropriated by Congress, the amount in controversy requirement of 28 U.S.C. § 1331 is also satisfied. There is clearly a jurisdictional predicate for this action therefore.

 With regard to the question of justiciability, defendants seem to misapprehend the nature of the nonjusticiable political question doctrine. The political question doctrine does not preclude the Court from resolving issues that may be otherwise properly raised, merely because the personal motivations of those raising the issues may be political in nature; the political question doctrine is rather basically a function of the separation of powers. The Supreme Court in Baker v. Carr, supra, articulated various indicia for recognizing when a case presents a political question best left to a different branch of government for resolution. These indicia include:

". . . a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." 369 U.S. at 217

 The issues in this case do not fall within any of these formulations. The plaintiffs contend that defendants are acting contrary to and beyond their statutory authority. There is certainly no textually demonstrable constitutional commitment of issues involving statutory interpretation to a coordinate branch of government. While Congress has the power to regulate commerce with Indian tribes and based on that authority delegates certain duties to executive departments, it remains to the Courts to interpret such statutes. Similarly, there is no lack of judicially discoverable and manageable standards here; the Court employs ordinary principles of statutory construction in resolving the issue of interpretation, while fashioning relief within its equitable powers. Nor does the interpretation of statutes require an initial policy determination for nonjudicial discretion, demonstrate a lack of respect for a coordinate branch of government, ignore any unusual need for adherence to a political decision, or present any potential for multifarious pronouncements. While review of statutes spanning over 100 years may be arduous, it is clearly, even uniquely, a judicial task. Indeed, in Baker v. Carr, supra, the Supreme Court stated that application of the political question doctrine to Indian questions is "limited and precise". Baker v. Carr, supra, at 215, n. 43. The Supreme Court explained that while the status of an Indian tribe qua Indians is usually considered a matter for political departments, even that determination might be left to the Court if Congress acts arbitrarily. For the courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power". Id. at 217. Therefore, while the question of what constitutes an Indian tribe is not ordinarily a matter for determination by the courts, the courts have always resolved questions of legislative intent even when the questions deal with Indians. See, Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388 F. Supp. 649, at 664 (D. Maine, 1975), aff'd, 528 F.2d 370 (C.A. 1, 1975).

 B. Intra-Tribal Dispute

 Defendants also maintain that the Court lacks "jurisdiction" over this case because it constitutes what defendants characterize as an "intra-tribal dispute". Defendants rely primarily on this Tenth Circuit doctrine, established in Martinez v. Southern Ute Tribe of Southern Ute Reservation, 249 F.2d 915 (1957), Motah v. United States, 402 F.2d 1 (1968), and Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (1966), in arguing that the instant dispute is essentially a factional split within the tribe and should therefore be dismissed. While factional rivalries do appear to have played a significant part in motivating plaintiffs to file the suit, the only relevant question for the Court, as indeed the above cases recognize, is whether the issues raised by plaintiffs are internal tribal issues or whether they arise under the constitution of laws of the United States. In each of those cases the courts determined that the controversy was one internal to the tribe and over which the tribal governing body had exclusive authority. In sharp contrast, this case questions not the propriety of tribal actions, but the legality of actions of federal officials pursuant to federal statutes. The issue is not who is entitled to membership in the tribe or to vote in tribal elections, but whether the Secretary has acted lawfully in refusing to permit the Creek National Council to participate in the determination of the uses to which tribal funds will be put and other tribal matters. In sum, the Court perceives no relevance of the "intra-tribal dispute" doctrine to the circumstances of this case, nor any other reason why this controversy is inappropriate for resolution by federal judicial power.

 C. Indispensable Parties

 Defendants argue that the Court must dismiss this action because of the absence of three indispensable parties to the suit. The allegedly indispensable parties are the three Creek "tribal towns" which have chosen to organize under the provisions of the Oklahoma Indian Welfare Act of 1936, 25 U.S.C. § 503, which provides in relevant part:

". . . any recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interior may prescribe. The Secretary of the Interior may issue to any such organized group a charter of incorporation, which shall become operative when ratified by a majority vote of the adult members of the organization voting. * * * Such charter may convey to the incorporated group, in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right to participate in the revolving credit fund and to enjoy any other rights or privileges secured to an organized Indian tribe under sections 476 and 477 of this title. * * *"

 In general indispensable parties are those persons who not only have a direct and tangible interest in the controversy, but also whose interest would necessarily be affected in such a way by the judgment that it would be inequitable to proceed without them. See generally Shields v. Barrow, 58 U.S. 130, 15 L. Ed. 158 (1854); 3A Moore's Federal Practice para. 19.07 et seq. Defendants maintain that these three towns would be "affected" in the following ways: (1) female members of the towns would not be permitted to vote for the Principal Chief; (2) membership in the towns as they now exist may well be lost if the plaintiffs prevail; and (3) the towns' relationship with the federal government would be altered if plaintiffs prevail.

 These contentions are without merit. As to the first, as plaintiffs point out, the towns as corporate bodies are wholly unaffected by whatever provisions Creek law may make for voting in Creek national elections. Should plaintiffs prevail here, requiring elections for a Second Chief or a National Council, the determination of those eligible to vote will be made pursuant to Creek law as modified by federal law; the three tribal towns as corporate bodies are simply not involved in that question. Nor would recognition of the 1867 Creek constitution, as modified by federal law, as the current basis of Creek national government affect membership in the tribal towns. The Creek Nation has always been a confederacy of tribal towns, and the 1867 Creek constitution contains no membership provision. Nothing in this Court's decree, should plaintiffs prevail, would have any effect on the traditional power of tribal towns to determine membership criteria. *fn4" Finally, the Court perceives no way in which the relationship of these three tribal towns with the federal government will be disturbed by a recognition of the 1867 constitution, as modified, as the governing structure of the Creek Nation. If plaintiffs prevail, there will be no increase or decrease in the quantum or nature of sovereignty exercised by the Creek national government over the tribal towns; rather, some of the decisions (primarily fiscal) that are now made solely by the Principal Chief would then be made by the National Council. And whatever relationship these three towns now have with the federal government by virtue of their incorporation under the 1936 Act is independent of their role under the 1867 constitution, and -- being statutorily based -- will not be affected by the decree in this case. The Court therefore holds that these tribal towns are not necessary or indispensable parties to this case. *fn5"


 The central issue to be resolved in this case is whether the tribal government of the Creek Nation has survived statutory dismemberment, and if so, whether the federal government is acting legally in recognizing the Principal Chief as the sole embodiment of that government. Phrased differently, the question is whether the federal government may permit funds belonging to the Creek Nation to be expended solely on the authority of the Principal Chief, or whether Creek and federal law require the participation of the Creek National Council in the tribe's financial decision-making. After extensive investigation and careful consideration, aided by the able written and oral presentations of counsel, the Court has arrived at the inescapable conclusion that despite the general intentions of the Congress of the late nineteenth and early twentieth centuries to ultimately terminate the tribal government of the Creeks, and despite an elaborate statutory scheme implementing numerous intermediate steps toward that end, the final dissolution of the Creek tribal government created by the Creek Constitution of 1867 was never statutorily accomplished, and indeed that government was instead explicitly perpetuated.

 As a result of the increasingly substantial expansionist pressures from the white population, the federal government in the 1820's adopted a policy of forcible removal of the culturally advanced Creeks from the southeastern United States. *fn7" This policy, expressed in the Indian Removal Act of 1830, *fn8" eventually resulted in the relocation of the Creek, Cherokee, Seminole, Choctaw and Chickasaw tribes to what is presently the state of Oklahoma. Among the rights granted to the Creeks by the Removal Treaty of March 24, 1832 was the right to perpetual self-government of their new lands. *fn9" Because of their cultural and political sophistication relative to other Plains Indians, the Indians who had been removed from east of the Mississippi to the Oklahoma area became known as the Five Civilized Tribes. Prior to the Civil War, these tribes owned all of the present state of Oklahoma except the panhandle region. *fn10" As a penalty for their alliances with the Confederacy during the Civil War, the tribes were compelled to cede to the federal government the western half of their lands. The remaining lands occupied by the Five Civilized Tribes continued to be known as the Indian Territory. *fn11"

 Two treaties were signed by the Creeks and the federal government during this period. In the treaty of August 7, 1856, 11 Stat. 699, Congress ratified once more a guarantee of Creek self-government. Article XV of that Treaty provided:

"So far as may be compatible with the constitution of the United States, and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Creeks and Seminoles shall be secured in the unrestricted right of self-government, within their respective limits . . ."

 The treaty recognized the existence of a Creek Council, power of the Council to make laws, and authority of the Treasurer to receive and disburse funds. 11 Stat. 699, 700, 701, 702, 706.

 The 1866 Treaty, 14 Stat. 785, specifically reaffirmed previous treaty obligations (including those of the 1856 treaty) not inconsistent with the new treaty. Article X of the treaty provided:

"The Creeks agree to such legislation as Congress and the President of the United States may deem necessary for the better administration of justice and the protection of the rights of persons and property within the Indian territory. Provided, however, said legislation shall not in any manner interfere with or annul their present tribal organization, rights, laws, privileges and customs."

 The treaty ceded to the United States the western half of the Indian domain, about 3,250,560 acres, for $975,168, and was in general highly disadvantageous to the Creeks. *fn12" A few days after ratification of the treaty by the U.S. Senate, Congress granted franchises to two railroads to cross the Indian Territory. The more important one of these for present purposes granted the right of way across the Territory from Kansas to Texas with alternate sections in a twenty-mile strip "whenever the Indian title shall be extinguished by treaty or otherwise . . . Provided, that said lands become a part of the public lands of the United States." *fn13" This grant was to play an important role in the later enactment of a provision crucial to the outcome of this suit.

 No further treaties were signed between the Creeks and the federal government. On October 12, 1867, the Creeks adopted a constitution and a code of laws for the "Muskogee Nation". The constitution was modeled on American federalism, with executive, legislative, and judicial branches. Legislative power was lodged in a National Council, a bi-cameral body in which each tribal town or "Talwa" was entitled to one delegate in the House of Kings and one in the House of Warriors, plus an additional delegate in the House of Warriors for every two hundred people. The members of the Council were elected for four year terms.

 Executive power of the Creek Nation was delegated to the Principal Chief, elected by universal adult male suffrage for a term of four years. The constitution also provided for a Second Chief, similarly elected, to succeed the Principal Chief upon his death, resignation, or impeachment. The Principal Chief was given the power and responsibility inter alia to reprieve and pardon criminals, execute and enforce the laws, make an annual report to the National Council concerning the state of the nation, and approve or veto laws enacted and measures taken by the Council.

 Article V of the constitution provides for a Treasurer of the Creek Nation, to be selected by the Council for a four year term, who is given the authority to receive funds and to "disburse the same as shall be provided by law." The Treasurer is to report at least yearly to the Council on the financial affairs of the nation. The constitution and laws provided that the National Council had initial responsibility for financial affairs, including making determinations as to the purposes for which Creek funds were to be spent. It also provided that the Principal Chief had the power of veto over such measures, a veto which could be overridden by a two-thirds vote of each House of the National Council. Once a spending measure received final approval, the Treasurer was to perform any necessary accounting and disbursing functions. *fn14"

 The constitution also created a court system, whose jurisdiction was limited to Creek citizens. The nation was divided into six districts; each had a judge elected by the Council. The district court tried all criminal cases and minor civil cases, and trial by jury was provided. There was a Supreme Court of five justices chosen by the Council for four year terms, which tried all civil cases where the amount in controversy exceeded one hundred dollars. *fn15"

 Generally speaking, the Creek Nation prospered during the final third of the nineteenth century. According to ancient Indian custom, all land was held by the tribe communally. Any citizen could cultivate as much land as he wanted, and when he ceased to work that land it reverted to the Nation. *fn16" By 1890 however ranching had made serious inroads on the character of Creek country. Under various Creek laws, members of the tribe were able to obtain leases of land to be fenced in for grazing purposes; by 1896 about one-third of Creek lands were so held. *fn17" Most of the land under lease was then sub-leased to cattle interests (often from Texas) at a large profit.

 Also during this period the number of white persons living in the Indian Territory grew dramatically; numerous white towns appeared throughout the Territory. The white settlers were engaged in both farming and cattle raising, and despite the repeated pleas of the Creeks that the federal government remove the vast numbers of whites living illegally on Creek lands, the government failed to honor its obligations and the number of whites continued to grow. *fn18" One of the recurrent problems in the relations between the Creeks and the whites at this time was the general absence of an adequate court system to deal with criminal and civil disputes. The Creek courts had no jurisdiction over whites, and federal courts in the area were created very slowly. Crime flourished, and the payment of debts was unenforceable. Finally, in 1895, federal courts with civil and criminal jurisdiction over United States citizens and over tribal citizens in mixed cases involving U.S. citizens were created for three judicial districts comprising the Indian Territory. The laws of Arkansas were designated to govern actions in these federal courts, in the absence of a federal statute. *fn19" The authority of the tribal courts was further and fatally undermined two years later when, in the Appropriations Act of June 7, 1897, 30 Stat. 62, Congress extended the reach of the federal (and the incorporated Arkansas) law to cover all persons, including Indians, in the Territory, effective January 1, 1898. *fn20" The transition to federal law as the governing body of civil and criminal law was completed the following year by the Curtis Act, discussed below, which rendered tribal law unenforceable in the federal courts (§ 26) and, after allowing time for the completion of a portion of the cases then pending in the tribal courts, abolished the tribal courts and transferred the remaining cases to the federal courts (§ 28).

 As might be expected, the white settlers were not happy with their inability to exercise any political control over the Indian Territory in which they lived, with their inability to get title to communally held Indian lands, *fn21" and in general with the restrictions on their ability to mold their environment to their liking. As their numbers grew, so too did their demand that the communal tenure and tribal governments be abolished in favor of both individual tenure in which the lands could pass freely into white hands and the political reorganization of the Territory into a state. Proposals for forced allotment of Indian lands were not new; since the end of the Civil War many bills seeking the abolition of tribal tenure had been introduced into Congress. *fn22" By 1890, when the Oklahoma Territory adjacent to the Indian Territory was opened and a territorial government created, the clamor for allotment had reached a new peak. All the federal agencies responsible for Indian affairs were advising Congress of the need to change the current system. *fn23" The leading congressional proponent of allotment and assimilation was Senator Henry L. Dawes of Massachusetts. At his instance, the ...

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