activities thereon. Since plaintiffs do not possess the type of property right which would be necessary for the maintenance of a quiet title action, it is clear that 28 U.S.C. § 2409a is inapplicable to this suit, and may not, therefore, force dismissal of this suit due to the doctrine of sovereign immunity. This suit does require review of administrative action, and sovereign immunity for such suits has been waived in 5 U.S.C. § 702. In the interests of "fairness and accountability in the administrative machinery of the Government," H.Rep. No. 94-1654, Supra, at 9, As reprinted in (1976) U.S.Code Cong. & Admin.News at 6130, defendants' argument must be rejected.
IV. The Sault Ste. Marie Indian Tribe as an Indispensable Party: The Problem of Tribal Sovereign Immunity.
Defendants' second argument in support of their motion to dismiss is that the purported Indian tribe in this suit is an indispensable party. Defendants further indicate that despite the tribe's status as an indispensable party, this court cannot compel joinder since this court has no jurisdiction over the tribe, which is located in Michigan, and because the tribe, as a quasi-independent nation, is protected from suit by the doctrine of sovereign immunity. As for this second advancement of the doctrine of sovereign immunity, although it is true that an Indian tribe or nation may not be sued without its consent, Lomayaktewa v. Hathaway, 520 F.2d 1324, 1326 (9th Cir. 1975), Cert. denied, 425 U.S. 903, 96 S. Ct. 1492, 47 L. Ed. 2d 752 (1976), this protection applies only to the tribe and not to individual Indians. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S. Ct. 1670, 1677, 56 L. Ed. 2d 106 (1978). Congress, in the exercise of its plenary power to limit the right of self-government of the Indian nations, has indicated that certain prerequisites exist before a group of Indians may be considered a tribe and thereby be eligible for a special status in the law. See 25 U.S.C. §§ 477-479 (the Indians must all live on the same reservation, and must have adopted an organizational plan or constitution). Neither Congress nor the Department of the Interior may create a tribe where none exists within the meaning of the Indian Reorganization Act. United States v. State Tax Commission of the State of Mississippi, 535 F.2d 300, 306 (5th Cir. 1976). Cognizant of the fact that this court must view the facts in the light most favorable to the plaintiffs in determining this motion to dismiss, it appears that the complaint does raise a genuine issue with regard to the legality of the Interior Department's dealing with this group of Indians as a tribe. Without a valid tribal status, these Indians are unprotected by the doctrine of sovereign immunity. It would be anomalous indeed to permit this disputed tribal status to serve as a bar to the disposition of this case which has as one of its central issues the validity of that status. Therefore, tribal sovereign immunity does not bar this suit.
As for defendants' contention that this group of Indians as a tribe is an indispensable party, and that this court must therefore dismiss this suit for lack of jurisdiction over that indispensable party, it should be noted that the Indians' primary interest in this suit is as beneficiary of the land trust. Plaintiffs do not question the validity of the sale of the 76-acre tract to the Indians, nor would they have standing to do so. Rather, plaintiffs challenge an administrative action taken by defendants after the Indians purchased the land in question. It is apparent that the full resolution of the issues presented in this case will require this court to decide whether the Interior Department acted in accordance with the law in treating the Indians as a tribe for the purposes of taking the land in question in trust. Although the tribe might be expected to be an indispensable party when such a legal determination is at issue, See Fed.R.Civ.P. 17 & 19, there is a well-recognized exception in light of the special relationship between the federal government and the Indian nations. The Indians occupy, rather than enjoy, "a peculiar and protected status as wards of the Federal government." Gray v. United States, 394 F.2d 96, 98 (9th Cir. 1967). The provisions in the Indian Reorganization Act providing that the United States may take land in trust for Indian tribes is one manifestation of this special relationship since it allows the government to secure areas in which the Indian nations may operate as the semi-autonomous peoples the law recognizes them to be. Although this relationship may have abused the Indian nations as often as it has benefited them, the court is not in the position of questioning this Congressional policy of stewardship. Rather, it appears that the United States in this case occupies its traditional role of guardian along with its statutory position of trustee. Congress' power in this area is plenary; whatever autonomy the Indian nations enjoy, even down to their very status as tribes, exists only due to Congressional action. Under the present state of the law, harsh though it may be, if this case raises issues in which the United States may adequately represent and protect the Indian group herein involved, then the purported tribe is not an indispensable party to this action. Cheyenne River Sioux Tribe v. United States, 338 F.2d 906, 910 (8th Cir.), Cert. denied 382 U.S. 815, 86 S. Ct. 34, 15 L. Ed. 2d 62 (1964); Pan American Petroleum Corp. v. Udall, 192 F. Supp. 626, 628 (D.D.C.1961).
This suit concerns an area in which the federal government controls all action. The determination of tribal status and the taking of land in trust have been committed to the Department of the Interior in Congress' exercise of its plenary power. 25 U.S.C. § 2. This court must "tread lightly" so as to avoid infringing on this area reserved to Congress. Santa Clara Pueblo v. Martinez, supra, 436 U.S. at 60, 98 S. Ct. at 1678. It appears that the federal defendants, as trustees and guardians of the Indians, will adequately represent the interests of the Indians who are the beneficiaries of the trust at issue here. As such, the Indians are not indispensable parties and this court does have jurisdiction over this suit.
V. Subsidiary Claims.
In addition to the contention that the entire case should be dismissed, defendants move for the dismissal of three of plaintiffs' subsidiary claims. Specifically, plaintiffs have claimed: (1) that the government violated due process of law when it took the land in trust and then refused to grant plaintiffs an administrative hearing regarding the tax consequences; (2) that defendants have failed to file an environmental impact statement for the proposed low-income housing project to be built on the land, and that therefore construction should be enjoined; and (3) that section 5 of the Indian Reorganization Act is an unconstitutional delegation of legislative power without appropriate standards.
The latter two claims are easily disposed of. The claim pursuant to NEPA is deficient because the Department of the Interior and the other defendants in this case have no control over the proposed housing project to be built on the land, and therefore cannot be held in account for the lack of an E.I.S. The delegation claim fails because, even though the acquisition of lands in trust is discretionary with the Secretary, See 25 U.S.C. § 465, the legislative history and the Act itself, providing as it does a definition of an Indian tribe, do provide adequate standards for the exercise of this discretion. This is not to intimate any opinion as to whether those standards have been met in this case. Rather, it is simply to demonstrate that the delegation theory lacks merit.
The due process claim is somewhat more difficult to deal with. At least one court has held that a city such as plaintiff is a "person" within the meaning of the due process clauses of the Fifth and Fourteenth Amendments. Township of River Vale v. Town of Orangetown, 403 F.2d 684, 686 (2d Cir. 1968). As for the question of whether the power to tax property is itself a property right within the contemplation of the Amendments, it is apparent that the power to levy a property tax is one of those powers reserved to the states by the Tenth Amendment, See Miller v. Bauer, 517 F.2d 27, 30 (7th Cir. 1975), and that in this case the state of Michigan has delegated this authority to the City of Sault Ste. Marie. It might therefore be said that the City has a statutory expectancy that it will continue to retain this right. See Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). In the somewhat analogous area of eminent domain, it is clear that the government owes the holder of a property right some form of due process before taking such property, even if only to determine the true value of the property seized. Miles v. District of Columbia, 166 U.S.App.D.C. 235, 239, 510 F.2d 188, 192 (1975). Once again viewing the allegations in the complaint in the light most favorable to plaintiff, it cannot be said that this claim must be dismissed. Although Congress does possess plenary power in this area, such power must be exercised, either by Congress or its delegate, in a fair and orderly way. Since it does not appear that Congress in passing the Indian Reorganization Act, even contemplated that the government would take in trust land already within the organizational control of an existing municipality, a question is raised regarding the propriety of the Interior Department's actions in the absence of some sort of hearing. To be sure, neither the Act nor any state statute requires such a hearing, and the disposition of this motion will not decide the merits of this claim, but since a question exists in this area, and since this court's jurisdiction of this claim is not otherwise barred, the due process claim will not be dismissed at this time.
The court in City of Tacoma, supra, noted that it is unfortunate that the government has taken in trust Indian lands which are already subject to the jurisdiction of preexisting municipal corporations. The creation of discrete enclaves of Indian reservation land within organized municipalities creates havoc as the city or county attempts to enforce its criminal, health and land use ordinances. There are, of course, strong equitable considerations on both sides of this dispute. The parties in the present case have agreed not to allow any further taking of lands in trust within the city limits until this suit is disposed of. This self-imposed stay, along with the court's decision today to retain jurisdiction over most of the issues in this suit, will hopefully allow for a reasonable resolution to the troublesome issues presented in this case.
An appropriate Order accompanies this Memorandum.
© 1992-2004 VersusLaw Inc.