Cherokee Nation of Oklahoma v. Norton

• Decision Date: 23 July 2002
• Docket Number: No. 98-CV-903-H.,98-CV-903-H.
• Citation: 241 F.Supp.2d 1374
• Parties: CHEROKEE NATION OF OKLAHOMA, on behalf of all its members, Plaintiff, v. Gale NORTON, in her official capacity as Secretary of Interior of the United States Department of Interior; Neal McCaleb, in his capacity as Assistant Secretary of the Department of the Interior; and the Delaware Tribe of Indians, as an indispensable party pursuant to Federal Rule of Civil Procedure 19, Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

241 F.Supp.2d 1374

CHEROKEE NATION OF OKLAHOMA, on behalf of all its members, Plaintiff, v. Gale NORTON, in her official capacity as Secretary of Interior of the United States Department of Interior; Neal McCaleb, in his capacity as Assistant Secretary of the Department of the Interior; and the Delaware Tribe of Indians, as an indispensable party pursuant to Federal Rule of Civil Procedure 19, Defendants.

No. 98-CV-903-H.

United States District Court, N.D. Oklahoma.

July 23, 2002.

Julian Kroh Fite, David Alan Mullon, Jr., Janice Walters Purcell, Cherokee Nation of Oklahoma Division of Law & Justice, Tahlequah, OK, F. Browning Pipestem, Dena LaMoyne Silliman, F. Browning Pipestem & Associates, Norman, OK, James Hamilton, William J. Mertens, Wilson K. Pipestem, Swidler & Berlin Chartered, Lloyd B. Miller, Sonosky Chambers Sachse Miller & Munson, Anchorage, AK, for Plaintiff.

Phil Pinnell, Loretta F. Radford, Tulsa, OK, Rollin Anthony Rogers, US Department of Justice Environment & Natural Resources Washington, DC, Barbara Coen, US Dept of Interior Division of Indian Affairs, Washington, DC, for Defendant.

ORDER

HOLMES, District Judge.

This matter comes before the Court on motions by each of the parties with respect to a decision by the Secretary of Interior (the "Secretary") in 1996 to withdraw a letter issued by an official in the Department of Interior (the "Department") in 1979 (the "1979 letter"). The effect of such withdrawal was to re-establish certain dealings between the United States and the Delaware Tribe of Indians. For the reasons set forth below, the Court finds that the Secretary's withdrawal of the 1979 letter should be upheld as an appropriate exercise of the Secretary's authority. The Court further finds, however, that this determination may not resolve all the issues in this case and that additional questions must be addressed as described more fully herein below.

I

The procedural facts that form the basis of the present action were set forth in Federal Defendants' Response Brief to Plaintiffs Opening Brief and were not properly contested by Plaintiff.¹ Based upon this statement of facts and the administrative record in this case, the Court finds as follows:

1. In 1992, the Delaware Tribe of Indians undertook to have the Assistant Secretary-Indian Affairs review the actions taken by an official in the Department in 1979. AR6 0002.

2. The 1979 position of the Department was that the 1958 bylaws of the Delaware Tribe did not establish "a relationship with the Federal Government separate from that of the Cherokee Nation." AR 1 0105.

3. The 1979 position did not include an analysis of the historical direct government-to-government dealings with the Delaware Tribe. AR 1 0100-106.

4. The Department followed the 1979 position until 1996. AR 1 0008.

5. On February 23, 1993, the Office of Tribal Services, Bureau of Indian Affairs, requested the Associate Solicitor, Indian Affairs, to provide an opinion concerning "Delaware-Cherokee relations." AR 6 0003.

6. In 1994, the Delaware Tribe submitted a revised document to the Department of the Interior entitled "A Lesson in Administrative Termination: An Analysis of the Legal Status of the Delaware Tribe of Indians." AR 2 0002 et seq.

7. In response to receiving this Delaware Tribe submission, the Cherokee Nation presented its position to the Department on September 6, 1994. AR 6 0018.

8. Following a preliminary review of the documents submitted and a preliminary review of additional files at the Department, including documents submitted previously by the Cherokee Nation, the Acting Associate Solicitor, Indian Affairs, requested the Cherokee Nation to submit any additional information that it wanted the Department to consider. AR 6 0062.

9. The Cherokee Nation, on July 19, 1995, submitted additional comments: "The Legal Status of the Delawares vis a vis Cherokee Nation." AR 3 0002 et seq.

10. The Associate Solicitor, Indian Affairs, prepared a memorandum to the Assistant Secretary, Indian Affairs, dated June 19,1996. AR 1 0007 et seq.

11. The Associate Solicitor's memorandum included an analysis of the historical documents, administrative practice, and all comments submitted by the Delaware Tribe and Cherokee Nation. AR 1 0007 et seq.

12. The memorandum concluded that the position taken in 1979 should be reconsidered because independent government-to-government dealings with the Delaware Tribe "more accurately reflects the appropriate legal interpretation of the treaties and agreements from the 1860's and more accurately reflects the bulk of the administrative practice." AR 1 0008.

13. The Assistant Secretary, Indian Affairs, approved the Associate Solicitor's memorandum on June 26, 1996. AR 1 0006.

14. On June 27, 1996, the Federal Register published notice of the Assistant Secretary, Indian Affairs', proposed decision to retract "the position of the Department stated in the 1979 letter," because that position "did not consider the entire relevant legal record and did not construe accurately the provisions of the 1866 Treaty with the Delaware and the 1867 Agreement between the Delaware and Cherokee." AR 1 0004.

15. The Assistant Secretary, Indian Affairs, accepted comment on this proposed action. AR 1 0004.

16. Public comment was submitted but none of the comments addressed the analysis presented in the Assistant Secretary's preliminary decision. AR 1 0117 et seq.

17. The Cherokee Nation's comment was slightly over one page in length and stated that "if the Delawares can concede that their actions will not result in any diminishment of the Cherokee Nation's present funding, its service area or jurisdictional base then separate recognition would be agreeable to the tribe." The Cherokee Nation did not object to the analysis presented in the Assistant Secretary's preliminary decision and did not suggest an alternative analysis. AR 1 0118-19.

18. On September 23, 1996, the Assistant Secretary decided that based on the comprehensive legal review conducted by the Division of Indian Affairs, and based on a review of the comments received from the public, the Department would retract the position taken by the Department in 1979 and restore direct dealings with the Delaware Tribe of Indians. The Department would continue its government-to-government dealings directly with the Delaware Tribe of Indians. The Assistant Secretary gave notice that the Delaware Tribe of Indians was a tribal entity recognized and eligible for funding and services from the Bureau of Indian Affairs by virtue of its status as an Indian tribe. AR 1 0110 et seq.

19. The Assistant Secretary's decision addressed each of the public comments received. AR 1 0110-11.

20. The Assistant Secretary found that "there is nothing in these comments which indicates that the basis of the proposed decision is in error or that the legal analysis of June 19, 1996, includes errors or is incomplete. These comments, therefore, do not merit a change in the proposed decision." AR 1 0111.

21. The Assistant Secretary concluded that the Delaware Tribe of Indians "will have the same rights to demand consultation and contracting as other tribes. As a separate sovereign the Delaware Tribe of Indians will have the same legal rights and responsibilities as other tribes, consistent with federal law, both as to jurisdiction and as to its rights to define its membership." AR 1 0111.

22. The Assistant Secretary concluded that "[t]his decision in effect clarifies the government-to-government relationship between the United States and the Delaware Tribe of Indians which was understood to exist before the May 1979 letter." AR 1 0111.

23. The Assistant Secretary provided that "[t]he notice of proposed decision, 61 FR 33534, is hereby made final." AR 1 0111

24. Notice of the decision was published in the Federal Register, 61 Fed.Reg. 50, 862 (Sept. 27,1996). AR 1 0110-11.

II

At the outset, the Court must determine whether, and to what extent, deference to the Secretary's decision to withdraw the 1979 letter is appropriate. It is settled law that when Congress has "explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation," Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843-844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and any ensuing regulation is binding on the courts unless procedurally defective, arbitrary or capricious in substance, or manifestly contrary to the statute. See id. at 844, 104 S.Ct. 2778; United States v. Morton, 467 U.S. 822, 834, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984); Administrative Procedures Act ("APA"), 5 U.S.C. §§ 706(2)(A), (D) (1996). But whether or not an agency enjoys an express delegation of authority on a particular question, an agency charged with applying a statute necessarily makes all sorts of interpretive choices, and, while not all of those choices bind judges to follow them, they certainly may influence courts facing questions the agencies have already answered. "[T]he well-reasoned views of the agencies implementing a statute `constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,'" Bragdon v. Abbott, 524 U.S. 624, 642, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139-140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)), and "[the Supreme Court has] long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer ...." Chevron, 467 U.S. at 844, 104 S.Ct. 2778 (footnote omitted); see also Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980); Zenith Radio Corp. v. United States, 437 U.S. 443, 450, 98 S.Ct. 2441, 57 L.Ed.2d 337 (1978).

The fair measure of deference to an agency administering its own statute has been understood to vary with...