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CHEROKEE NATION v. BABBITT

October 30, 1996

CHEROKEE NATION OF OKLAHOMA, Plaintiff,
v.
BRUCE BABBITT, et al., Defendants.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 TABLE OF CONTENTS

 INTRODUCTION

 BACKGROUND

 DISCUSSION

 THE COURT SHALL GRANT THE DEFENDANTS' MOTION TO DISMISS BECAUSE THE DELAWARE TRIBE OF INDIANS IS A NECESSARY AND INDISPENSABLE PARTY THAT CANNOT BE JOINED DUE TO ITS SOVEREIGN IMMUNITY

 I. THE DELAWARE TRIBE IS A NECESSARY PARTY TO THIS ACTION UNDER FED. R. CIV. P. 19(a)

 II. THE DELAWARE TRIBE'S SOVEREIGN IMMUNITY BARS ITS JOINDER AS A NECESSARY PARTY

 
A. Indian Tribes Are Sovereign Entities
 
B. The Delaware Tribe has Sovereign Immunity
 
1. Delaware Tribe of Indiana is an Indian tribe
 
2. The Delaware Tribe's sovereign immunity was not lost by implication as a necessary result of its dependent status or relinquished under the terms of the 1867 Agreement with the Cherokee Nation

 III. THE CASE MUST BE DISMISSED BECAUSE THE DELAWARE TRIBE IS AN INDISPENSABLE PARTY UNDER FED. R. CIV. P. 19(b)

 
A. The Delaware Tribe Will Suffer Prejudice If It Is Absent From This Suit
 
B. There Are No Alternative Remedies That Would Lessen the Prejudice to the Delaware
 
C. An Adequate Remedy Can Be Awarded Without The Delaware Tribe
 
D. There is No Alternative Judicial Remedy for the Cherokee if the Case is Dismissed

 CONCLUSION

 INTRODUCTION

 The defendants in the above-entitled case move this Court to dismiss this case for failure to join a necessary and indispensable party. The Defendants' Motion was filed October 9, 1996. The Delaware Tribe of Indians' Memorandum of Amicus Curiae in support thereof was filed October 9, 1996; and the plaintiff's Memorandum in opposition thereto was filed October 15, 1996.

 The plaintiff's claims arise from the U.S. Department of Interior's September 23, 1996 Final Decision retracting a May 1979 letter. The May 1979 letter stated that the Department of Interior ("the Department") would engage in government-to-government relations with the Delaware Tribe of Indians *fn1" ("the Delaware Tribe") only through the Cherokee Nation and that the Department would deal directly with the Delaware Tribe only for purposes of its claims against the United States. In retracting this letter in 1996, the Department acknowledged that the Delaware Tribe was a tribal entity recognized and eligible for funding and services from the Bureau of Indian Affairs ("the Bureau") by virtue of its status as an Indian tribe separate and independent from that of the Cherokee Nation.

 Upon consideration of the parties' pleadings, the entire record herein, the law applicable thereto, and for the reasons set forth below, the Court finds that the Delaware Tribe is a necessary and indispensable party to this action that cannot be joined due to its sovereign immunity. Accordingly, the Court shall grant the defendants' Motion to Dismiss for Failure to Join an Indispensable Party.

 BACKGROUND

 This dispute stems from the settlement of Delawares in Cherokee Nation territory in eastern Oklahoma over one hundred years ago. Prior to the settlement in America by Europeans, the Cherokee and Delaware Indians resided in the eastern portion of what is now the United States. In the 1830s, the federal government removed many Cherokee from the eastern United States to Indian Territory where they eventually settled in what is now northeastern Oklahoma. *fn2" The Delaware were removed west as well. In the period after the Civil War, pressure from railroads and white settlers forced removal of Indians from Kansas and elsewhere. By a treaty of 1866 ("1866 Treaty"), the Cherokee Nation agreed to accept groups of resettled Indians in its territory under certain conditions set forth therein, and, many, including groups of Delaware and Shawnee, were resettled in Cherokee territory. *fn3"

 The terms and conditions on which the Delaware Tribe settled on Cherokee land are contained in an agreement of April 8, 1867 ("1867 Agreement") between the two groups, which was approved by President Johnson on April 11, 1867. The 1867 Agreement provided for the settlement of Delaware in Cherokee Nation territory in accordance with Article 15 of the 1866 Treaty between the Cherokee Nation and the United States. Article 15 of the Treaty provided that Indian groups could settle in Cherokee Nation territory east of the 96 [degrees] of longitude by either: (1) becoming members of the Cherokee Nation, with the same rights and immunities, and the same participation in the national funds, as native Cherokees, with their children born thereafter being regarded as native Cherokee in all respects; or (2) maintaining their tribal laws, customs, and usages, and receiving a district of land set off for their use.

 Since the time of the 1867 Agreement, there has been some uncertainty as to the Delaware Tribe's political status. After three United States Supreme Court decisions touching on the issue *fn4" and a long history of agency action, the Bureau issued a letter on May 24, 1979 to the Chairman of the Cherokee Delaware Business Committee notifying him that the Bureau was withdrawing its prior approval of the Committee's 1958 By-Laws because the Committee was "not capable of adequately protecting the interests of the Cherokee Delaware people" as required by a federal appropriation to satisfy Delawares' claim awards, and because the Committee had failed to meet a deadline the Bureau previously set for forming a Committee to draft adequate By-Laws.

 In addition, the May 24, 1979 letter summarized the Bureau's position as to the Delaware Tribe's status. It stated that the Bureau's prior dealings with the Committee with respect to pre-1867 treaty claims had led to "misunderstandings" by some that those dealings "established for the Delawares a relationship with the Federal Government separate from that of the Cherokee Nation; such is not the case." See Letter of Acting Deputy Commissioner of the ...


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