Logan v. Andrus, 79-1294

Citation640 F.2d 269
Decision Date03 February 1981
Docket NumberNo. 79-1294,79-1294
PartiesLeroy LOGAN et al., Plaintiffs-Appellants, v. Cecil D. ANDRUS, Secretary of the Interior et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Walter R. Echo-Hawk, Boulder, Colo., for plaintiffs-appellants.

Gail Osherenko, Atty., Dept. of Justice, Washington, D. C. (James W. Moorman, Asst. Atty. Gen., C. David Redmon and Carl Strass, Attys., Dept. of Justice, Washington, D. C., Hubert H. Bryant, U. S. Atty., and Hubert A. Marlow, Asst. U. S. Atty., Tulsa, Okl., with her on the brief; Scott Keep, Asst. Sol., Dept. of the Interior, Washington, D. C., of counsel), for Appellees Secretary of the Interior and Commissioner of Indian Affairs.

Ralph R. Adkisson, Tulsa, Okl. (D. E. Martin, Tulsa, Okl., with him on the brief), for Appellee Osage Tribal Council.

Before SETH, Chief Judge, McKAY, Circuit Judge, and CHRISTENSEN, District Judge. *

SETH, Chief Judge.

This action was started by appellant Logan and six other persons who assert they are Osage Indians and who each own headrights or shares in the Osage mineral estate. The defendants are the Secretary of the Interior, the Commissioner of Indian Affairs, and also the Osage Tribal Council which the trial court joined as a necessary party defendant.

The complaint sought declaratory relief in a relatively narrow area. This was a declaration that the Osage Tribal Council was limited in its powers to the administration of the Osage mineral estate and not to include authority to participate in or represent the Osage Tribe in the various federal programs made available to entities such as the Tribe. The plaintiffs asserted that the federal defendants could not properly authorize the Council to participate in such programs. The Tribal Council argued that it did have the powers and duties relating to the Osage mineral lands under the Osage Allotment Act of June 28, 1906, and that it also had the typical powers and authority of a tribal council.

The trial court concluded that the Council was vested with the powers relating to the mineral estate under the 1906 Act, and that it also had the general powers of any other tribal council as the Osage "tribal government." The court further held that the Council was required under the 1906 Act to use the funds derived from the mineral estate only for the benefit of the owners of headrights and not for the benefit of the Tribe generally or for non-owners of headrights. The trial court so entered judgment.

Thereafter the plaintiffs moved to vacate the judgment on the ground that the 1906 Act was unconstitutional in that it limited the right to vote for Council candidates to those who owned headrights. The court denied the motion on the ground that the issue had not been raised in the pleadings and the parties had not addressed it, and also because the plaintiffs were the owners of headrights and could vote. Thus there were no parties plaintiff who could assert that they were denied the right to vote.

The trial court decided the issues raised by the plaintiffs and we find no error in its refusal to consider the constitutional issue relating to voting rights raised in the post-judgment motion.

The Osage Allotment Act of June 28, 1906 set up the machinery for the administration of the Osage mineral estate and described and declared the rights vested in the individuals. The issues on appeal are concerned in this administration and it is apparent that the Osage Council was responsible under the Act for the business side and the money. The method for selection of the members of the Council and the officers of the Tribe was described in the Act. Thus the Act in paragraph 9 (34 Stat. 545) states that there shall be a biennual election "of officers for the Osage tribe as follows: A principal chief, an assistant principal chief, and eight members of the Osage tribal council." The statute was basically for allotments but this portion in no way limited the authority of the officers therein named to mineral administration or any other specific function. The officials to be elected were described in terms or titles used for typical tribal government positions, thus "principal chief" and the "Osage tribal council." The tribal government for all practical purposes was so organized under the 1906 Act and exercised general authority.

In 1929 (45 Stat. 1478) Congress again considered the matter of Osage tribal officers. This 1929 Act reenacted the portion of the 1906 Act quoted above except that it provided for quadrennial elections for the officers of the Osage Tribe and for some additional provisions for vacancies and removal of Council members. It concluded with the...

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7 cases
  • Fletcher v. U.S., 95-5208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 10, 1997
    ...left open the issues of the validity of the restriction of the franchise to headright owners and the validity of the 1881 Constitution. Id. at 270-71. II. District Court Taking up where Logan left off, Individual Plaintiffs filed this suit in federal district court in March, 1990. They alle......
  • Hall v. Gus Const. Co., Inc., 87-1900
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 25, 1988
    ...a statute is raised for the first time in a postjudgment motion, the trial court is correct in not considering the issue. Logan v. Andrus, 640 F.2d 269, 271 (10th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). Likewise, an appellate court will not consider the issue ......
  • Nation v. Constance Irby Sec'y—member Of The Okla. Tax Comm'n
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 5, 2010
    ......and tribal membership and granted the. Osage tribal council general tribal authority. See Logan v. Andrus, 640 F.2d 269, . 270 (10th Cir.1981) (noting that nothing in. the Osage Allotment Act ......
  • Pruit v. New Maxico
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • January 23, 2023
    ...without evidentiary support. (Doc. 39 at 10). Plaintiff's post-judgment argument is raised too late in the proceedings. See Logan v. Andrus, 640 F.2d 269 (10th Cir.) error where trial court refused to consider a constitutional issue raised for first time in a post-judgment motion); Bldg. & ......
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