Cherokee Nation v. State of Oklahoma

• Decision Date: 27 June 1972
• Docket Number: No. 71-1210,71-1295.,71-1210
• Citation: 461 F.2d 674
• Parties: The CHEROKEE NATION, etc., Plaintiffs-Appellees, v. The STATE OF OKLAHOMA et al., Defendants, The Choctaw Nation and the Chickasaw Nation, Intervenors-Appellants. The CHEROKEE NATION, etc., Plaintiffs-Appellees, v. The STATE OF OKLAHOMA et al., Defendants-Appellants, The Choctaw Nation and The Chickasaw Nation, Intervenors-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

461 F.2d 674 (1972)

The CHEROKEE NATION, etc., Plaintiffs-Appellees, v. The STATE OF OKLAHOMA et al., Defendants, The Choctaw Nation and the Chickasaw Nation, Intervenors-Appellants.

The CHEROKEE NATION, etc., Plaintiffs-Appellees, v. The STATE OF OKLAHOMA et al., Defendants-Appellants, The Choctaw Nation and The Chickasaw Nation, Intervenors-Appellants.

Nos. 71-1210, 71-1295.

United States Court of Appeals, Tenth Circuit.

June 1, 1972.

Rehearings Denied June 27, 1972.

COPYRIGHT MATERIAL OMITTED

Lon Kile, Hugo, Okl., for The Choctaw Nation and The Chickasaw Nation.

S. M. Groom, Jr., and Odie Nance, Oklahoma City, Okl., for the State of Okl. and others (with them on the briefs were Larry Derryberry, Atty. Gen. of Okl., for The State of Okl.; N. A. Gibson, Midwest City, Okl., and James E. Slater, Oklahoma City, Okl., for Commissioners of the Land Office; Jay R. Bond of Ross, Holtzendorff & Bond, Oklahoma City, Okl., for Eason Oil Co.; Frederic Dorwart of Holliman, Langholz & Runnels, Tulsa, Okl., and W. Douglas Weisbruch, Legal Depart., Dallas, Tex., for Lone Star Producing Co.; Riley B. Fell and David O. Cordell, Tulsa, Okl., for Marathon Oil Company; Sam C. Oliver, Tulsa, Okl., for Skelly Oil Co.; Luther Hudson of Hudson, Keltner, Smith & Cunningham, Ft. Worth, Tex., for Southland Royalty Co.; Robert W. Richards for Mobil Oil Corp.; Varley Taylor, Oklahoma City, Okl., and Robert L. Norris, Jr., Houston, Tex., for Humble Oil & Refining Co.; Millard F. Carr, Denver, Colo., for Tenneco Oil Co.; H. B. Watson of Walker & Watson, Oklahoma City, Okl., for Tenneco Oil Co. and Union Oil Co. of Cal.; and Roy Z. Johnson, Bartlesville, Okl., for Cities Service Oil Co.).

Earl Boyd Pierce, Fort Gibson, Okl., and Andrew Wilcoxen, Muskogee, Okl., for The Cherokee Nation (with them on the brief were Paul M. Niebell, Michael S. Yaroschuk, Washington, D. C., and Joseph C. Muskrat, Chesterton, Ind.).

John D. Helm, Washington, D. C., for The United States, amicus curiae, in both cases (with him on the brief were Shiro Kashiwa, Asst. Atty. Gen. and Edmund B. Clark and Robert S. Lynch, Attys., Dept. of Justice, and Richard A. Pyle, U. S. Atty.).

Before LEWIS, Chief Judge, and BREITENSTEIN and McWILLIAMS, Circuit Judges.

BREITENSTEIN, Circuit Judge.

We have again the three-pronged controversy over ownership of the bed of the Arkansas River, a navigable stream, in Oklahoma. When the case was first here we affirmed the district court holding that title was in Oklahoma, Cherokee Nation v. Oklahoma, 10 Cir., 402 F.2d 739. The Supreme Court reversed sub nom. Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615. The case was remanded to the district court for further proceedings consistent with the opinion of the Supreme Court.

Cherokee Nation brought the action, claiming title to the entire bed of the stream between the Grand River and the Canadian River and to the northerly one-half of the bed between the Canadian and the state border, and asking for an accounting and injunction. Oklahoma answered praying that title be quieted in it. Various lessees of Oklahoma also answered setting forth their lease claims and denying the claim of the Cherokees. The Choctaw Nation and the Chickasaw Nation, herein referred to as the Choctaws, see 402 F.2d 739, 742, n. 2, intervened claiming ownership of the entire bed between the Canadian and the state border, and asking that title to that portion be quieted in them. That portion of the bed between the Grand and the Canadian is in dispute only between the Cherokees and Oklahoma.

The district court interpreted the Supreme Court opinion as conclusively denying the Oklahoma claim. It held that subject to the dominant power of the United States over navigation and to possible avulsive changes, the Cherokees owned the entire bed between the Grand and the Canadian and, between the Canadian and state border, they owned that part of the bed lying north of the main channel. The Choctaws were held to own that portion of the bed lying south of the main channel between the Canadian and the state border. It required Oklahoma to account for all money received by it from its lessees and to deposit the amount thereof into the registry of the court. The lessees were to account for, and deposit into the court registry, all money held by them in suspense and owing to Oklahoma under their leases. The leases were cancelled. It appears without contest that the oil and gas leases all cover land lying between the Canadian and the state border. The money to be deposited was to be divided equally between the Cherokees and the Choctaws.

Oklahoma and its lessees have appealed in No. 71-1295 from that portion of the judgment denying their claims and ordering accounting. In these respects we affirm the district court. The Choctaws have appealed in No. 71-1210 from that portion of the judgment denying their claim to the north portion of the bed between the Canadian and the state border and requiring the payment to them of only one-half of the money to be deposited with the court. We believe that we have no jurisdiction over the controversy between the Cherokees and the Choctaws and accordingly conclude that the judgment must be reversed to the extent that it determines the conflicting claims of the two tribes.

I

Oklahoma and its lessees argue that the Supreme Court did not confirm present title to the river bed in the Indians but decided only that they received ownership under the grants and treaties of 1830 and 1835. Hence, they say that the question of present ownership is still open. We do not agree.

Present ownership has been at stake since the inception of the suit. The Cherokees sued for an accounting for money received under the Oklahoma leases, for future rentals or royalties, and for an injunction against interference with the use of the bed. Without present ownership, they could not be entitled to the relief sought. Oklahoma and its lessees denied the claims of the Indians. The fact that the arguments in the court of appeals and in the Supreme Court centered around the construction and effect of grants and treaties did not remove the question of present ownership. Unless present ownership was at stake, the opinions of both the court of appeals and the Supreme Court were futile, academic exercises. If the Indians had divested themselves of ownership, a determination of past ownership was valueless so far as the presented issues were concerned. Without a claim of present ownership, there was no case or controversy within the meaning of Art. III, § 2, of the United States Constitution. Federal courts decide only cases and controversies. Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 55 L.Ed. 246. The Supreme Court does not decide "abstract, hypothetical or contingent questions." Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 284, 89 S.Ct. 518, 21 L.Ed.2d 474.

A fair reading of the opinions, majority, concurring, and dissenting, of the Supreme Court requires the conclusion that the Supreme Court decided present ownership. See 397 U.S. at 621, 638-639, and 643, 90 S.Ct. 1328. The mandate to the district court was for further proceedings consistent with the Supreme Court decision. The opinion of the Court may be consulted to ascertain the intent of the mandate. In re Sanford Fork and Tool Company, 160 U.S. 247, 256, 16 S.Ct. 291, 40 L.Ed. 414. The Supreme Court decision is the law of the case. Banco Nacional de Cuba v. Farr, 2 Cir., 383 F.2d 166, 177-178 and cases there cited, cert. denied 390 U.S. 956, 88 S.Ct. 1038, 20 L.Ed.2d 1151. The rule that a lower court must follow the decision of a higher court at an earlier stage of the case applies to everything decided "either expressly or by necessary implication." Munro v. Post, 2 Cir., 102 F.2d 686, 688; see also The Santa Maria, 10 Wheat. 431, 442-445, 23 U.S. 431, 6 L.Ed. 359, and Briggs v. Pennsylvania Railroad Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403. We believe that the question of ownership, both past and present, was decided in favor of the Indians by the Supreme Court and may not now be relitigated.

If we are wrong in what we believe to be the fair import of the Supreme Court decision, consideration must be given to claims now asserted by Oklahoma and its lessees. Divestiture is claimed on the ground that the Indians received title to the bed in their sovereign capacity as a public trust for the common benefit, that sovereignty was lost prior to Oklahoma's statehood, that the bed reverted to the United States, and that title passed to Oklahoma under the equal footing doctrine upon its admission to the Union in 1907.

Loss of sovereignty is said to have occurred by reason of the Act of March 3, 1893, 27 Stat. 612, 645, creating the Dawes Commission; the following negotiations for the extinguishment of tribal titles; the Act of June 28, 1898, 30 Stat. 495, 505, providing for the allotment of Choctaw lands; the agreement with the Choctaws for land allotment and the nullification of inconsistent treaties, Act of July 1, 1902, 32 Stat. 641; a similar agreement with the Cherokees, Act of July 1, 1902, 32 Stat. 716; and the Act of April 26, 1906, 34 Stat. 137, which provides for the final disposition of the affairs of the Five Civilized Tribes.

The mentioned statutes did eliminate whatever sovereignty the Indians then had. However, we are not concerned with sovereignty, a political issue, but with land ownership. The question is not whether the Indians have sovereignty but whether the tribes are still in existence and capable of land ownership. We believe that this question is answered by the 1906 Act. Section 27 thereof provides that, upon dissolution of the tribes, lands belonging to them shall not become public lands nor the property of the United States but shall be held by the United States in trust for the Indians. 34 Stat. 148. Section 28 provides for the continuation of tribal existence...