Coleman v. U.S. Bureau of Indian Affairs, 82-2630

• Citation: 715 F.2d 1156
• Decision Date: 23 August 1983
• Docket Number: No. 82-2630,82-2630
• Parties: James COLEMAN, Jr., et al., Plaintiffs-Appellants, v. The UNITED STATES of America, BUREAU OF INDIAN AFFAIRS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1156

715 F.2d 1156

James COLEMAN, Jr., et al., Plaintiffs-Appellants, v. The UNITED STATES of America, BUREAU OF INDIAN AFFAIRS,

Defendant-Appellee.

No. 82-2630.

United States Court of Appeals, Seventh Circuit.

Argued June 10, 1983.

Decided Aug. 19, 1983.

As Amended Aug. 23, 1983.

Robert L. Schroeder, Emory Andrew Tate & Associates, Chicago, Ill., for plaintiffs-appellants.

Ellen J. Durkee, Appellate Section, Land Div., Dept. of Justice, Washington, D.C., for defendant-appellee.

Before PELL and BAUER, Circuit Judges, and DUMBAULD, ^* Senior U.S. District Judge.

DUMBAULD, Senior U.S. District Judge.

Plaintiffs-appellants are descendants of Creek Indians. They allege breach by the United States of its trusteeship of Indian lands held for the Creek nation. Most of the land (2,997,114 acres) was distributed to individual Creeks (and freedmen, of mixed blood, partly Creek). Appellants' ancestors duly received their allotments. Appellants' alleged grievance relates to disposition of 65,965 acres which were not allotted to individuals. Of these 65,805 have subsequently been sold, and appellants claim that inadequate consideration was received. It is also alleged that the United States permitted the State of Oklahoma to obtain Creek land without compensation, and that by improperly increasing the number of persons enrolled in the Creek tribe and making allotments to them the United States dissipated the surplus land.

Whether the District Court for the Northern District of Illinois has jurisdiction to consider the merits of these alleged breaches of trust and to award appellants an accounting in the form of pecuniary damages is the question at issue in the case at bar. The District Court, 546 F.Supp. 515, held that it did not have jurisdiction. We affirm, for reasons hereinafter elaborated. To explain the questions involved will necessitate learning "more than you ever wanted to know," as the little girl said of some other subject, about American Indians and their tribal lands. ¹

Government policy towards Indians and applicable legal enactments have been subject to many fluctuations over the course of time. The Declaration of Independence speaks of "the merciless Indian savages, whose known Rule of Warfare, is an undistinguished Destruction, of all Ages, Sexes and Conditions." The frontier inhabitants of Western Pennsylvania deemed themselves aggrieved by the parsimonious unwillingness of Quaker merchants in Philadelphia to pay taxes sufficient for effective defense against Indian incursions. In his Notes on the State of Virginia, Thomas Jefferson referred to the detrimental effect on the Indians of spirituous liquors, pox, and diminution of available land to "a people who live principally on the spontaneous productions of nature." ² War and hunting occupied the men of the tribe; domestic drudgery was the lot of the women. ³ However, Jefferson noted, "That the lands of this country were taken from them by conquest, is not so general a truth as is supposed." ⁴ Voluntary sales largely accounted for the contraction of tribal territory.

The Constitution framed in 1787 at Philadelphia empowered the federal government to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." ⁵ As stated by Chief Justice John Marshall in Worcester v. Georgia, 6 Pet. 515, 559, 8 L.Ed. 483 (1832): "That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians." The Indian nations were "considered as distinct, independent, political communities" and "capable of making treaties." Marshall concluded: "The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the Union." ⁶ Hence, Georgia could not constitutionally subject Worcester to imprisonment for four years at hard labor for preaching the Gospel to the Cherokee Indians under the authority of the President of the United States. ⁷ This decision was the occasion for the remark allegedly made by President Andrew Jackson: "Well, John Marshall has made his decision, now let him enforce it." ⁸

In this case Marshall applied the doctrine of title by discovery, giving to the European nation first settling an American colony the right of pre-emption, "the exclusive right of purchasing such lands as the natives were willing to sell." ⁹

This principle had been formulated in Johnson and Graham's Lessee v. McIntosh, 8 Wheat. 543, 574, 5 L.Ed. 681 (1823), where it was held that a title granted by Indian tribes themselves in 1773 and 1775, without the intervention of the American government, was invalid. The court held that the Indians had a right to occupy the lands which they inhabited, "but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it." The European nations "asserted the ultimate dominion to be in themselves and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy." ¹⁰

Insofar as the native Indians were concerned, Marshall explains: "The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence." ¹¹

The Indian tribes within the acknowledged boundaries of the United States, Marshall declared in Cherokee Nation v. Georgia, 5 Pet. 1, 17, 8 L.Ed. 25 (1831), are not "foreign States" entitled to bring suit under Article III, sec. 2, cl. 1 of the Constitution. "They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile, they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian."

In the course of the nation's westward expansion and "Manifest Destiny," the pressures on Indians to surrender their lands and to emigrate to reservations established for them in more remote regions became stronger. ¹² Emphasis was also placed on Marshall's view of the Indians as "wards" of the government rather than on his recognition of their autonomy and right to self-government as "distinct, independent, political communities." ¹³ In 1871 the practice of negotiating treaties with the Indians was abandoned. ¹⁴

The concept of "wardship" or "trusteeship" did not result in strict application by analogy of technical rules such as those expounded in Scott on Trusts. U.S. v. Mitchell, 445 U.S. 535, 542-44, 100 S.Ct. 1349, 1353-54, 63 L.Ed.2d 607 (1980); U.S. v. Mitchell, --- U.S. ----, ---- - ----, 103 S.Ct. 2961, 2972, 77 L.Ed.2d 580 (1983). Rather it came to signify a "plenary authority" or suzerain power over Indian affairs, sometimes presenting non-justiciable "political questions." Chambers, loc. cit. note 1, supra, 1223; Cherokee Nation v. Hitchcock, 187 U.S. 294, 305-308, 23 S.Ct. 115, 119-120, 47 L.Ed. 183 (1902); Lone Wolf v. Hitchcock, 187 U.S. 553, 564-68, 23 S.Ct. 216, 220-22, 47 L.Ed. 299 (1903); U.S. v. Kagama, 118 U.S. 375, 382-85, 6 S.Ct. 1109, 1113-14, 30 L.Ed. 228 (1886); Gritts v. Fisher, 224 U.S. 640, 648, 32 S.Ct. 580, 583, 56 L.Ed. 928 (1912); Shoshone Indians v. U.S., 324 U.S. 335, 354-58, 65 S.Ct. 690, 699-701, 89 L.Ed. 985 (1945) [Jackson, J. concurring]; U.S. v. Alcea Band of Tillamooks, 329 U.S. 40, 45-47, 67 S.Ct. 167, 169-170, 91 L.Ed. 29 (1946) [argued for the Government by Chief Judge Walter J. Cummings, Jr.]. Cf. Tee-Hit-Ton Indians v. U.S., 348 U.S. 272, 284-85, 75 S.Ct. 313, 319-20, 99 L.Ed. 314 (1955). When carried too far, however, the concept evoked Cardozo's apothegm that an act of confiscation is not an exercise of guardianship and that "Spoliation is not management." Shoshone Tribe v. U.S., 299 U.S. 476, 498, 57 S.Ct. 244, 252, 81 L.Ed. 360 (1937); see also U.S. v. Creek Nation, 295 U.S. 103, 110, 55 S.Ct. 681, 684, 79 L.Ed. 1331 (1935).

A policy of assimilation, rather than of preservation of ethnic heritage and tribal customs, came to the fore. As expressed in 1889 by Indian Commissioner Thomas J. Morgan: "The Indians must conform to 'the white man's way,' peaceably if they will, forcibly if they must. They must adjust themselves to their environment, and conform their mode of living substantially to our civilization.... They cannot escape it, and must either conform to it or be crushed by it ... The tribal relations should be broken up, socialism destroyed, and the family and the autonomy of the individual substituted. The allotment of lands in severalty, the establishment of local courts and police, the development of a personal sense of independence, and the universal adoption of the English language, are means to this end.... The American Indian is to become the Indian American." ¹⁵

In keeping with this philosophy Congress had in 1887 adopted an act (commonly called the General Allotment Act, or the Dawes Act, for Senator Henry L. Dawes of Massachusetts) providing for the allotment of Indian lands to individual Indians as their separate property. ¹⁶ The patents issued to allottees provided that the land so allotted would be held in trust for the allottee or his heirs for 25 years (or longer...