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THE SIX NATIONS CONFEDERACY v. ANDRUS

July 12, 1977

THE SIX NATIONS CONFEDERACY, Plaintiff
v.
CECIL ANDRUS, et al., Defendants



The opinion of the court was delivered by: GREEN

 In this action for declaratory and injunctive relief, plaintiff challenges the constitutionality of the procedures of the Indian Claims Commission under the Act of August 13, 1946, ch. 959, 60 Stat. 1049, 25 U.S.C. § 70 et seq., and in particular, the validity of the judgment entered by the Indian Claims Commission in Docket No. 84, Six Nations, et al v. United States, 23 Ind.Cl.Comm. 376 (1970).

 This Court has jurisdiction pursuant to 28 U.S.C. § 1331. *fn1"

 This matter first came before the Court on plaintiff's motion for a temporary restraining order which was denied in an order dated May 4, 1977. It is currently before the Court on plaintiff's motion for preliminary injunction seeking to enjoin defendants from paying any moneys awarded by the Indian Claims Commission in Docket No. 84. Defendants have filed a motion to dismiss for want of subject matter jurisdiction; for failure to state a claim upon which relief can be granted; and for failure to join indispensable parties under Rule 19.

 On May 26, 1977, a hearing was held on plaintiff's motion for a preliminary injunction and testimony was taken from three of plaintiff's witnesses. The Court subsequently afforded plaintiff the opportunity to further brief the issues raised by its motion for preliminary injunction and to reply to defendants' motion to dismiss. Defendants filed a reply to plaintiff's submissions.

 The background of plaintiff's claim is briefly as follows: Plaintiff Six Nations is a confederacy composed of the Onondaga, Seneca, Mohawk, Oneida, Cayuga and Tuscarora Nations. Docket No. 84 originated with the filing of a petition on or about December 11, 1950, by the Seneca Nation, the Seneca-Cayuga Tribe of Oklahoma, the Tuscarora Nation, the Oneida Tribe of Wisconsin and several named individuals on behalf of the respective tribes forming the Six Nations and allegedly on behalf of the Six Nations itself. Plaintiff in the instant case contends that these persons acted without authority of the Grand Council which has the responsibility for making policy and determining who will represent the Six Nations in its affairs. *fn2"

 In Docket No. 84, it was alleged that the United States had not fulfilled its obligations under some 21 enumerated treaties and a judgment and accounting were sought. During the course of the proceedings, the petitioners therein limited their claims to alleged deficiencies under only two of the treaties. *fn3" An interlocutory order of liability was entered in favor of the petitioners in Docket No. 84 consolidated with Docket No. 300-B brought by the Stockbridge-Munsee Community on August 11, 1970. Six Nations, et al v. United States, supra. A final award, following proceedings related to setoffs claimed by the United States, was entered on December 28, 1973 in the amount of $29,930.25 in favor of the petitioners in Dockets 84 and 300-B, and in addition, an amount of $25,399.50 was awarded separately in favor of the Seneca Nation of Indians. Six Nations, et al v. United States, 32 Ind.Cl.Comm. 440, 460 (1973).

 The final award as entered by the Commission was reported to Congress by letter from the Chairman of the Indian Claims Commission dated March 29, 1974. Notification of this report to Congress was published in the Congressional Record on April 3, 1974, and April 9, 1974. 120 Cong. Rec. 9630, 10249. The funds to pay the judgment entered were appropriated by Congress, Act of December 27, 1974, Pub. L. No. 93-554, 88 Stat. 1771, 1782, and immediately thereafter, the $29,930.25 was placed in Account No. 14x9426 to the credit of the petitioners in Docket No. 84. *fn4"

 Chief Leon Shenandoah, Fire Keeper or head of the plaintiff Six Nations Confederacy, testified that he received the first formal notice of the award made in Docket No. 84 and of a hearing to be held concerning disposition of the award on July 23, 1975. *fn5" He responded with a letter to the President of the United States. An exchange of correspondence and meetings between plaintiff and the Department of the Interior followed. One such letter from the Under Secretary of the Interior indicated that only the governing bodies of the successor (modern day) tribes, defined by plaintiff as those tribes governed by an elective system and not the Grand Council, could or should represent the members of the respective tribes. *fn6" Plaintiff continued to maintain that none of the petitioners in Docket No. 84 were authorized to represent the Six Nations. However, plaintiff made no attempt to appear at the hearings on disposition of the award in order to make its position known to the Indian Claims Commission.

 On September 21, 1976, pursuant to the Act of October 19, 1973, Pub.L. No. 93-134, 87 Stat. 466, 25 U.S.C. § 1401, et seq., the Department of the Interior submitted a plan to Congress for the distribution of the judgment funds. 42 Fed. Reg. 21665. Notice of the receipt of this plan was published in the Congressional Record. 122 Cong. Rec. H. 11031 (Daily Ed. Sept. 23, 1976); 122 Cong. Rec. S. 17071 (Daily Ed. Sept. 29, 1976). When neither House of Congress passed a resolution disapproving the plan so submitted, the plan of distribution became effective on March 4, 1977. 25 U.S.C. § 1405; 42 Fed. Reg. 21665 (1977). Plaintiff now seeks to enjoin any further distribution of the funds for petitioners in Docket No. 84, alleging that the payment of the award will irreparably injure plaintiff by impairing or even barring its rights under the treaties involved in Docket No. 84 without due process of law in violation of the Fifth Amendment to the United States Constitution. In the alternative, plaintiff seeks a determination by this Court that any judgment or award in Docket No. 84 is not binding upon its rights, such determination to be without prejudice to its right to receive a share of any monetary award that is made pursuant to Docket No. 84, or that Docket No. 84 should be remanded to the Indian Claims Commission to permit plaintiff a reasonable opportunity to petition for leave to intervene.

 Defendants in their response to plaintiff's motion and in their motion to dismiss contend that any irreparable harm has already occurred since any possible bar against the presentation of further claims which plaintiff seeks to avoid is in effect, and therefore this action is moot. 25 U.S.C. § 70u states:

 
The payment of any claim, after its determination in accordance with this Act, shall be a full discharge of the United States of all claims and demands touching any ...

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