Wichita and Affiliated Tribes of Oklahoma v. Hodel

Decision Date18 April 1986
Docket Number85-5347,Nos. 85-5306,s. 85-5306
Citation788 F.2d 765
Parties, 5 Fed.R.Serv.3d 869 WICHITA AND AFFILIATED TRIBES OF OKLAHOMA, Appellant v. Donald P. HODEL, Secretary, Department of Interior, et al. WICHITA AND AFFILIATED TRIBES OF OKLAHOMA v. Donald P. HODEL, Secretary, Department of Interior, et al. Appeal of CADDO TRIBE OF OKLAHOMA, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (Civil Action No. 83-00602).

Patricia L. Brown, Indianapolis, Ind., for appellant in No. 85-5306, Wichita and Affiliated Tribes of Oklahoma.

John A. Bryson, Atty., Dept. of Justice, with whom Dirk D. Snel, Atty., Dept. of Justice, Washington, D.C., was on brief, for appellees in Nos. 85-5306 and 85-5347, Dept. of Interior, et al.

Rodney J. Edwards, Duluth, Minn., for appellee in No. 85-5306 and appellant in No. 85-5347, Caddo Tribe of Oklahoma.

Jap W. Blankenship, Oklahoma City, Okl., was on brief, for appellee in No. 85-5347, Delaware Tribe of Western Oklahoma.

Before WALD, SCALIA, and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This case deals with a 1963 Department of the Interior order restoring land to an Indian tribe that no longer existed in its original form, but which had been succeeded by three separate tribes. For approximately 15 years the three tribes were able to agree that each tribe would withdraw approximately equal amounts from the fund representing the income from the land. After that agreement broke down in the late 1970s, the Interior Board of Indian Appeals ("IBIA") held that the proceeds of the land, which the government holds in trust for the tribes, should be distributed to each tribe according to its relative population as of the time that funds accrue. Delaware Tribe of Western Oklahoma v. Acting Deputy Assistant Secretary--Indian Affairs (Operations), 10 I.B.I.A. 40 (1982). The Wichita and Affiliated Tribes of Oklahoma ("Wichitas") challenge this ruling, arguing that the three tribes should receive equal distributions notwithstanding their disparity in size. The largest of the three tribes, the Caddo Tribe of Oklahoma ("Caddos"), challenges the IBIA's decision that income distributions made from 1966 until the time of the IBIA decision should not be retroactively reallocated. The Caddos argue that since the government breached its fiduciary duties in wrongfully distributing past funds, it should make future distributions in such a way as to compensate the Caddos for lost income over this period. Finally, the Wichitas challenge the Assistant Secretary of Indian Affairs' ("Assistant Secretary") decision implementing the IBIA ruling. In that decision, the Assistant Secretary announced that the tribal population figures would be assessed as of the date of the IBIA decision, with no future readjustments. The United States District Court for the District of Columbia granted the government's motion for summary judgment on all three claims.

We affirm the District Court's award of summary judgment rejecting the Wichitas' claim that the population-based distribution scheme ordered by the IBIA was arbitrary,

capricious, or contrary to law. We vacate the District Court's award of summary judgment, however, on the Caddos' claim for retroactive relief. That claim should have been dismissed under Federal Rule of Civil Procedure 19(b) because the Wichita and Delaware tribes were indispensable parties who could not be joined because of their tribal immunity, which they never waived with regard to the cross-claim. Lastly, we reverse the District Court's award of summary judgment for the government with respect to the Wichitas' claim that the Assistant Secretary acted improperly in deciding not to undertake future periodic readjustments of population figures. The District Court is instructed to order the Department to develop a plan for assessing current population that is consistent with the IBIA decision.

I. BACKGROUND
A. Historical Backdrop

In 1859, the United States settled a number of Indian tribes on a site located in the Washita River in the Indian Territory, in what is now the State of Oklahoma. The site, commonly known as the Wichita Reservation, had originally been leased from the Choctaw and Chickasaw nations. See generally Caddo Tribe of Oklahoma v. United States, 614 F.2d 272, 273-74, 222 Ct.Cl. 306 (1980) (discussing history of the settlement). For some time after their settlement, the tribes on the Wichita Reservation were known as the Wichita and Affiliated Bands of Indians (hereinafter "Affiliated Bands").

On June 4, 1891, the Affiliated Bands entered into an agreement with the United States (commonly known as the Jerome Agreement) whereby they agreed to cede "all their claim, title and interest in and to the lands" comprising the Wichita Reservation. In return, each individual Indian was to receive an allotment of 160 acres of land, and a proportionate payment out of whatever surplus remained after certain reserves were set aside for various public purposes. Congress ratified the Jerome Agreement on March 2, 1895. 28 Stat. 876, 894-98.

During the 1930's, United States policy began to turn away from the assimilationist ideal that underlay the practice of alloting reservation lands to individual Indians, and toward a policy of strengthening Indian tribal organizations. See generally F. Cohen, Handbook of Federal Indian Law 183-87 (2d ed. 1982); V. Deloria & C. Lytle, American Indians, American Justice 12-15 (1983). This new policy culminated in 1934 with Congress' enactment of the Indian Reorganization Act ("IRA"), which, among other things, authorized the Secretary of the Interior "to restore to tribal ownership the remaining surplus lands of any Indian reservation" then in existence. 25 U.S.C. Sec. 463. The lands that would be restored were to be held in the name of the United States as trustee for the tribe. 25 U.S.C. Sec. 465.

B. The 1963 Restoration Order

In 1963 the Secretary of the Interior determined that 2,306.08 acres of land that until then had been reserved for public uses should be restored to the Affiliated Bands' tribal ownership under the IRA. In restoring the lands, however, he faced a problem of determining to which tribes the restoration should be made. The Affiliated Bands had long since ceased to exist as a single entity. Its three successor tribes, all parties to this suit, were the Wichitas, the Caddos, and the Delaware Tribe of Western Oklahoma ("Delawares"). Taking this into account, the order restored the lands "for the use and benefit of the Wichita and Affiliated Bands of Indians (Caddo Tribe and the Absentee Band of Delaware Indians of Caddo County, Oklahoma)." 28 Fed.Reg. 10157-58 (Sept. 17, 1963) (emphasis added). 1

Even before the restoration order in 1963, questions about the distribution criteria among the three tribes had been raised within the Department. Four months before The authorization of restoration ... contemplated that the land would be restored to the Wichita Band and Affiliated Bands as one group so that each member of the Wichita Band, Caddo Tribe and Absentee Band of Delaware Indians will share equally in the benefits to be derived therefrom.

the order was issued, a letter from the Assistant Secretary of the Interior for Indian Affairs to another Department official, set forth the Department's view on this issue:

In order to effectively manage this property, it is expected that the three groups will jointly form an entity acceptable to the Secretary of the Interior, and legally capable under the state law of holding, managing and disposing of real property.

The Director, Bureau of Land Management, is being instructed, by copy of this letter, to prepare the restoration order in such a manner as to clearly indicate that the land is being restored to the Wichita and Affiliated Bands as one group.

Letter to Anadarko Area Director from Assistant Secretary Petner, dated May 31, 1963, reproduced in Delaware Tribe of Western Oklahoma v. Acting Deputy Assistant Secretary--Indian Affairs, 10 I.B.I.A. 40, 42 (1982); Joint Appendix ("J.A.") at 31.

C. Management System and Distribution of Funds

In 1964, the three tribes formed an Inter-Tribal Land Management Committee to manage the land and the income it produced. The tribes were equally represented on this Committee. From 1966, when the land first produced income, until 1970, all withdrawals were made through orders of the Land Management Committee and monies were distributed equally to all three tribes. The withdrawals for this period totalled $3025 per tribe.

By 1970, the Caddos, who were by far the largest of the tribes, had grown disenchanted with the equal distribution scheme. In September, 1970, the Department of the Interior's Field Solicitor in Oklahoma, in response to an inquiry from the Caddos, wrote that he interpreted the restoration order as contemplating "that the responsibility of management and the sharing of benefits would be upon the basis of the individual members of the three tribal groups and not upon a basis of tribal equality." Notwithstanding this interpretation, the Solicitor explained that the Department had been satisfied with the tribes' own decision to split the income equally and would continue to "go along with any arrangement that is mutually agreeable to the three tribes." Letter from Lyle R. Griffis, Field Solicitor, Anadarko, to Secretary of Caddo Indian Tribe, dated Sept. 10, 1970, Admin.Rec. No. 31, ex. F.

In 1970, the Land Management Committee was dissolved. Since that date management of land has been conducted by the tribal councils of each tribe acting separately to approve all decisions with respect to the land. Under that system the tribes continued to divide the income through 1977 on the basis of one-third for each tribe....

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