620 F.2d 1159 (6th Cir. 1980), 79-1633, Sequoyah v. Tennessee Valley Authority

Docket Nº:79-1633.
Citation:620 F.2d 1159
Party Name:Ammoneta SEQUOYAH, Richard Crowe, Gilliam Jackson, Individually and representing other Cherokee Indians similarly situated; the Eastern Band of Cherokee Indians; and the United Ketooah Band of Cherokee Indians, Appellants, v. TENNESSEE VALLEY AUTHORITY, Appellee.
Case Date:April 15, 1980
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 1159

620 F.2d 1159 (6th Cir. 1980)

Ammoneta SEQUOYAH, Richard Crowe, Gilliam Jackson,

Individually and representing other Cherokee Indians

similarly situated; the Eastern Band of Cherokee Indians;

and the United Ketooah Band of Cherokee Indians, Appellants,



No. 79-1633.

United States Court of Appeals, Sixth Circuit

April 15, 1980

Argued Feb. 14, 1980.

Page 1160

Robert M. Stivers, Jr., Leibowitz, Watson, Kressin, Stivers & Erickson, Knoxville, Tenn., Ben Oshel Bridgers, Holt, Haire & Bridgers, Sylva, N. C., Walter Echo-Hawk, Kurt Blue Dog, Native American Rights Fund, Boulder, Colo., Ellen Leitzer, Susan Tomita, National Indian Youth Council, Albuquerque, N. M., for appellants.

Herbert S. Sanger, Jr., General Counsel, Tennessee Valley Authority, James E. Fox, Knoxville, Tenn., for appellee.

Bruce J. Ennis, American Civil Liberties Union, New York City, Nancy Stearns, Center for Constitutional Rights, New York City, for amici curiae Nat'l Council of Churches of Christ in USA, et al.

David H. Getches, University of Colorado, School of Law, Boulder, Colo., Bertram E. Hirsch, Bellerose, N. Y., Jon Van Dyke, Native Hawaiian Legal Corp., Honolulu, Hawaii, for amici curiae.

Before LIVELY, KEITH and MERRITT, Circuit Judges.

LIVELY, Circuit Judge.

This appeal requires the court to make a determination of the legal efficacy of a claim based on the Free Exercise Clause of the First Amendment. 1


The plaintiffs brought this class action on behalf of "all those present or future Cherokee Indians who practice the traditional Cherokee religion and adhere to Cherokee Indian tradition and culture." The principal relief sought in the complaint was an injunction to prevent completion and flooding of the Tellico Dam on the Little Tennessee River in Monroe County, Tennessee. The complaint alleged that the impoundment created by the dam will cause irreparable injury to the plaintiffs. This injury will be caused by flooding of the "sacred homeland" of the plaintiffs along the river, which will result in destruction of "sacred sites, medicine gathering sites, holy places and cemeteries, (and) will disturb the sacred balance of the land . . . ." It was further stated that the threatened actions of the defendant would cause "irreversible loss to the culture and history of the plaintiffs."

The claim of a constitutional violation based on the Free Exercise Clause was stated as follows:

. . . the individual named Plaintiffs will suffer injury by the infringement of their right to worship the religion of their choice in the manner of their choosing by the destruction of sites which they hold in reverence and in denial of access to such sites by the Defendant. This injury will also be suffered by other members of the class which these individual Plaintiffs represent.

The complaint also contained claims based upon other provisions of the First Amendment, the Fifth and Ninth Amendments, the American Indian Religious Freedom Act, 42 U.S.C. § 1996, the National Historic Preservation Act, 16 U.S.C. § 470 et seq. and various laws of the State of Tennessee.

The plaintiffs filed some 25 affidavits with the complaint in support of their motion for a preliminary injunction. The defendant filed a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P., together with an alternative motion for summary judgment pursuant to Rule 56. This motion was accompanied by three affidavits. In a brief in support of its motion for summary judgment, the defendant asserted that the plaintiffs were estopped to make their claim and were barred by laches. In their response, the plaintiffs argued that there were genuine issues of

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material fact, particularly with respect to the defense of laches, and that this was not a proper case for summary judgment.

All issues were fully briefed and the district court heard extensive oral arguments. Thereafter the court filed a memorandum opinion and entered an order denying the plaintiffs' motion for injunction and granting the defendant's motion to dismiss. In its memorandum, the district court concentrated on the religious freedom arguments and quickly disposed of the other constitutional claims and those based on statutes. At the outset the district court stated, "The Court assumes that the land to be flooded is considered sacred to the Cherokee religion and that active practitioners of that religion would want to make pilgrimages to this land as a precept of their religion." The court found that the only "coercive effect" of the impoundment on the plaintiffs' religious beliefs or practices would consist of preventing access to certain land owned by the government. The district court then held, "the free exercise clause is not a license in itself to enter property, government-owned or otherwise, to which religious practitioners have no other legal right or access." The court stated specifically that it did not reach the defenses of estoppel and laches. Sequoyah v. TVA, 480 F.Supp. 608 (E.D.Tenn.1979).


Though the district court granted the motion to dismiss, it is clear from the transcript and from his memorandum that Judge Taylor considered the various affidavits which were in the record. Under Rule 12(b) when matters outside the pleadings are presented to the court, and not excluded, a motion to dismiss for failure to state a claim is treated as one for summary judgment. We treat the decision of the district court as one granting summary judgment. See Compania De Remorque Y. Salvamento, S. A. v. Esperance, Inc., 187 F.2d 114 (2d Cir. 1951). In reviewing summary judgment for the defendant this court must view the entire record in the light most favorable to the plaintiffs. Aetna Insurance Co. v. Loveland Gas & Electric Co., 369 F.2d 648 (6th Cir. 1966); Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).


We agree with the holding of the district court that the defendant was entitled to judgment on the plaintiffs' claim of violation of their right to freedom of speech and association, to due process and equal protection of the law, and rights reserved to them by the Ninth Amendment. Accepting all the pleadings and affidavits as true, no claim for relief was stated with respect to these theories and the defendant was entitled to judgment as a matter of law. Relief under the American Indian Religious Freedom Act, the National Historic Preservation Act and laws of Tennessee is foreclosed by a provision of the Energy and Water Development Appropriation Bill, Pub. Law No. 96-69, signed by President Carter on September 25, 1979: "(N)otwithstanding provisions of 16 U.S.C., Chapter 35 (The Endangered Species Act) or any other law, the Corporation (TVA) is authorized and directed to complete construction, operate and maintain the Tellico Dam. . . ." (italics supplied). No clearer congressional command is imaginable. No law is to stand in the way of the completion and operation of the dam. The only basis upon which the district court or this court would be empowered to enter an order contrary to the express will of Congress is that a violation of the Constitution will result from carrying out the congressional mandate.


Before analyzing the complaint and affidavits of the plaintiffs we note that the Tellico Dam has engendered controversy and litigation from the time it was first proposed. A brief description of the Little Tennessee River, the historical significance of the region and the litigation spawned by Tellico is contained in the opening paragraphs of the Supreme Court's opinion in the "snail darter" case, TVA v. Hill, 437 U.S. 153, 156-59, 98 S.Ct. 2279, 2282-84, 57 L.Ed.2d 117 (1978).

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The record in the present case discloses that some of the plaintiffs objected to the dam and sought to prevent its construction as early as 1965. However, the documents in the record indicate that the Cherokee objections to the Tellico Dam were based primarily on a fear that their cultural heritage, rather than their religious rights, would be affected by flooding the Little Tennessee Valley. Only with the filing of the complaint in this action, on October 12, 1979 less than a month before impoundment was scheduled to begin did any Cherokee make an explicit claim based on the Free Exercise Clause.


The allegations of the complaint which relate to free exercise of religion have been set forth, ante. Examination of the contents of the affidavits filed by the plaintiffs discloses the following:

(1) The plaintiff Ammoneta Sequoyah is a medicine man and a direct descendant of Sequoyah, the inventor of the Cherokee writing system. This affiant stated that he had gone to the Valley all his life and had lived in an abandoned cabin at Chota [*] for six years. His ancestor Sequoyah was born at Tuskegee, another of the Cherokee village sites in the Valley. The affiant stated that he goes to the Valley three or four times a year to get medicine which must be gathered by a medicine man "to work a cure." The Cherokees believe that all a person knows is placed in the ground with that person when he is buried. Flooding the Valley or digging up the bodies of Indians buried there will destroy "the knowledge and...

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