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September 30, 1987

The Muscogee (Creek) Nation, Plaintiff,
Donald Hodel, Secretary of the Interior, Defendant

Louis F. Oberdorfer

The opinion of the court was delivered by: OBERDORFER

In Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976), aff'd sub nom. Harjo v. Andrus, 189 U.S. App. D.C. 171, 581 F.2d 949 (D.C. Cir. 1978), this Court extensively reviewed the history of the federal government's relations with the Muscogee (Creek) Nation, an Indian tribe located in the state of Oklahoma, and concluded 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.

 420 F. Supp. at 1118. Accordingly, the court determined that the Secretary of the Interior and other federal officials had acted illegally in recognizing the Principal Chief of the Creeks as the sole embodiment of their Nation. Id. at 1142. In order to ensure that the tribe could effectively assert its right to democratic self-government in the future, the court created a five member commission to supervise the reorganization of the Creek government under a new constitution. Id. at 1143-47. Following the decision in Harjo, the Muscogee Nation held an election at which a majority of the tribe's voting members ratified a new constitution. This constitution was approved by the Secretary of the Interior on August 17, 1979.

 The Muscogee constitution provides for a tripartite government containing executive, legislative and judicial branches. Article VII, Section 1 of the constitution provides that

 In 1982, the Muscogees adopted a judicial code establishing a tribal court system with general civil and criminal jurisdiction over tribally enrolled citizens of the Nation. See Administrative Record ("AR"), Exhibit 3, Document 4. The present dispute arose when the tribe applied to the Bureau of Indian Affairs for funding for their courts and law enforcement agency. On April 6, 1983, the Bureau denied the request for funding on the ground that the tribe was precluded from exercising either civil or criminal jurisdiction by virtue of the Curtis Act of 1898. Act of June 28, 1898, ch. 517, 30 Stat. 495. See AR, Exhibit 3, Documents 7 & 8. This decision was appealed by the Muscogees on May 12, 1983 and was affirmed by the Interior Board of Indian Appeals ("the Board") on July 22, 1985. The Board's decision addressed the following legal questions:

Did Congress deprive the Creek Nation of general civil and criminal judicial authority, and, if so, has such authority been returned to the tribe?

 13 IBIA 211, 219 (1985). The Board concluded that "the Nation's civil and criminal judicial authority was abolished by acts of Congress and has not been restored." Id. at 220.

 This action for declaratory and injunctive relief was filed on August 21, 1985. Although plaintiff's complaint states eight separate claims for relief, plaintiff's more recent pleadings appear to acquiesce in defendant's contention that this is an action for judicial review of the Board's decision pursuant to the Administrative Procedure Act, 5 U.S.C. § 551, et seq. See Response in Support of Plaintiff's Motion for Summary Judgment and In Opposition to Defendant's Motion for Summary Judgment at 3. This Court has jurisdiction over this action by virtue of 5 U.S.C. § 702. *fn1" Review is limited to determining whether the agency's decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." See 5 U.S.C. § 706(2)(A). Generally speaking, agency action is entitled to considerable deference, especially when the action at issue involves the construction of a statute which specifically affects the agency. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). This rule of deference is grounded in the recognition that the agency usually has considerable expertise in the controversies placed before it. When, however, an agency is asked to determine the scope and meaning of several acts of Congress which are separate from the statute under which the agency itself is established or which the agency is charged with administering, the case for deference is weakened. See Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914 (3d Cir. 1981). In this case, both the agency and the court are called upon to answer the "narrow legal questions," see 13 IBIA at 219, whose resolution depends upon the interpretation of several acts of Congress. There is no reason to believe that the agency will be in a better position than the court to consider the relevant legislative history and to apply the appropriate rules of statutory construction. The opinion of the Indian Bureau of Appeals concerning these questions is entitled to careful consideration. But that opinion cannot survive a judicial determination based on an independent examination of the record that the Board's decision is not "in accordance with law." 5 U.S.C. § 706. See I.N.S. v. Cardoza-Fonseca, 489 U.S. 421, 107 S. Ct. 1207, 1220-21, 94 L. Ed. 2d 434 (1987).


 The case is currently before the Court on cross motions for summary judgment. There are no material facts in dispute. In order to determine whether the Board's decision not to fund the Muscogee court system was or was "not in accordance with law," it is necessary to examine briefly the history of the federal government's relations with the Creek Nation. *fn2"

 When European settlers arrived in America, the Creek Nation occupied a large territory in the present states of Georgia, Alabama and Florida. From time to time over more than a century, beginning in 1707, the tribe was forced to cede portions of its territory to Great Britain, to the American colonies, and ultimately to the United States. Finally, in 1832, the portion of the Creek Nation of which plaintiff is a part ceded all lands east of the Mississippi River and moved to an area in the present state of Oklahoma. Because of their cultural and political sophistication, the Creeks and four other Indian Tribes who were removed to Oklahoma became known as the Five Civilized Tribes. See 420 F. Supp. at 1119.

 The Creek Removal Treaty of March 24, 1832, which formalized this move, guaranteed the Creek Nation the right to perpetual self-government. 7 Stat. 366. While two later treaties continued to erode the boundaries of the Creek Nation at its Oklahoma site, both treaties reaffirmed the groups' right to self government. See Treaty with Creeks and Seminoles of August 7, 1856, 11 Stat. 699; Treaty with the Creeks of June 14, 1866, 14 Stat. 785. *fn3" In 1867, the Creek Nation established a constitutional form of government which included a separation of powers into executive, legislative and judicial branches. Judge Bryant previously described the Creek court system established by this constitution in the following terms:

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.

 420 F. Supp. at 1120.

 In the last few decades of the nineteenth century, the Creek Nation faced a number of problems which were caused by a dramatic increase in the number of white settlers living illegally in the Indian Territory. The white settlers sought an end to the traditional Creek system of land ownership which provided that all land was held by the tribe communally and reverted to the nation upon the death of a member who was cultivating it. See id. at 1121. Indeed, expansion in the entire western area of the United States lead to pressure in Congress for a new Indian land policy called "allotment." See generally Felix S. Cohen, Handbook of Federal Indian Law 127-144 (1982). Under the allotment system, individual members of the tribe were given separate plots of land which were transferrable to non-members. Proponents of allotment argued that individual plots would be a more efficient means of agriculture and would therefore provide surplus land for white settlers. See id. at 128. Allotment was also justified as a means of assimilating Indians into white culture. Id. at 128-29. In response to this pressure, Congress passed the General Allotment Act of ...

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