Crowe v. Eastern Band of Cherokee Indians, Inc.

• Decision Date: 13 November 1974
• Docket Number: 74-1429 and 74-1432,Nos. 74-1428,s. 74-1428
• Citation: 506 F.2d 1231
• Parties: Nettie S. CROWE, a member of the Eastern Band of Cherokee Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., and Eastern Cherokee Tribe of Indians, Defendants, United States of America, Appellant. Nettie S. CROWE, a member of the Eastern Band of Cherokee Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., Appellant. Eastern Cherokee Tribe of Indians, and United States of America, Defendants. Nettie S. CROWE, a member of the Eastern Bank of Cherokee Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., et al., Defendants, v. Living HEIRS OF William T. SAUNOOKE, Deceased, Intervenors, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1231

506 F.2d 1231

Nettie S. CROWE, a member of the Eastern Band of Cherokee

Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., and Eastern Cherokee

Tribe of Indians, Defendants, United States of

America, Appellant.

Nettie S. CROWE, a member of the Eastern Band of Cherokee

Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., Appellant.

Eastern Cherokee Tribe of Indians, and United States of

America, Defendants.

Nettie S. CROWE, a member of the Eastern Bank of Cherokee

Indians, Appellee, v. EASTERN BAND OF CHEROKEE INDIANS, INC., et al., Defendants, v. Living HEIRS OF William T. SAUNOOKE, Deceased,

Intervenors, Appellants.

Nos. 74-1428, 74-1429 and 74-1432.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1974.

Decided Nov. 13, 1974.

Ben Oshel Bridgers, Sylva, N.C. (Holt & Haire, Sylva, N.C., on brief), for appellants, Eastern Band of Cherokee Indians, Inc., in Nos. 74-1428 and 74-1429.

Charles A. Hobbs, Washington, D.C. (Wilkinson, Cragun & Barker, Washington, D.C., and Orville D. Coward, Sylva, N.C., on brief), for appellant Living Heirs of William T. Saunooke in No. 74-1432.

Herbert L. Hyde and Albert L. Sneed, Jr., Asheville, N.C., for appellee in Nos. 74-1428, 74-1429 and 74-1432.

Before HAYNSWORTH, Chief Judge, and BUTZNER and FIELD, Circuit judges.

FIELD, Circuit Judge:

This action was instituted by Nettie S. Crowe ¹ against the Eastern Band of Cherokee Indians, Inc., an Indian Tribe, and the United States of America, alleging that her rights of equal protection and due process under the Indian Civil Rights Act of 1968, 25 U.S.C.A. 1301 et seq., (hereinafter 'Act'), were violated by the Tribe in assigning part of her lands to another. The questions raised on this appeal are (1) whether the district court properly entertained jurisdiction of the complaint, and (2) whether the court erred in finding that the plaintiff had a vested right in the tract of land claimed by her, and in setting aside the assignment by the Tribe of a portion thereof to another.

The plaintiff is one of eight surviving children of William T. Saunooke, deceased, who at the time of his death occupied a tract of land of some 59.60 acres on the Cherokee Reservation as a possessory holding pursuant to the consent of the Tribal Council. All of the lands comprising the Cherokee Reservation were conveyed to the United States of America in trust for the Eastern Band of Cherokee Indians, Inc., by deed dated July 21, 1925, and the legal title to the land, including the tract here in question, is held by the United States as such trustee. ² On March 14, 1960, the heirs of William T. Saunooke signed a 'Land Division Agreement' under which Nettie S. Crowe was assigned the possessory interest in the eleven acre tract of land here in dispute. At the time the Land Division Agreement was executed by Saunooke's heirs, they also executed a lease to one H. R. Mitchell conveying the entire 59.60 acres upon which the lessee proposed to construct and operate 'Cherokee Wonderland.' This lease agreement, which contained a description of the eleven acre tract of land and referred to it as the possessory holding of Nettie S. Crowe, was approved by the Tribal Council on March 17, 1960, as well as by the Secretary of the Interior. Thereafter, a controversy developed between the Saunooke heirs and the lessee which was resolved by a consent judgment entered in the federal court for the Western District of North Carolina on May 14, 1962, in an action brought by Cherokee Wonderland, Inc., against the Saunooke heirs and the Cherokee Tribe. The settlement and consent order which were approved by the Tribal Council again referred to the lease and the possessory rights of Nettie S. Crowe in the tract of eleven acres. In 1970 one of the heirs of William T. Saunooke, formally requested the Tribe to divide Saunooke's land holdings and, acting upon this request, the Tribal Council instructed the Lands Committee to make an equitable division among the Saunooke heirs. The Lands Committee made a division and drafted a plat showing the respective portions assigned to each heir. The action of the Lands Committee was upheld by the Tribal Council in June of 1971. Under the division made by the Lands Committee the plaintiff was awarded 4.48 acres exclusively, plus a joint undivided interest in certain mountainside land, instead of the 11 acres claimed by her.

In her complaint, the plaintiff charged that this action on the part of the Tribal Council denied her the equal protection of its laws and deprived her of her property without due process of law in violation of 25 U.S.C.A. 1302(8). ³ The district court entertained the action, and upon the trial of the merits entered a judgment setting aside the assignment made by the Tribal Council in June, 1971, and restoring to the plaintiff her possessory holding in the eleven acres as set forth in the Land Division Agreement dated March 14, 1960, between the heirs of William T. Saunooke.

-I-

As to the jurisdictional issue, we held in United States v. Wright,53 F.2d 300 (4 Cir. 1931), that the Eastern Band of Cherokee Indians is an Indian Tribe within the meaning of the Constitution and Laws of the United States, and accordingly, absent jurisdiction under the Indian Civil Rights Act, jurisdiction of this controversy would be precluded by the well established rule 'that a tribe of Indians under the tutelage of the United States is not subject to suit without the consent of Congress * * *.' Haile v. Saunooke, 246 F.2d 293 (4 Cir. 1957); see United States v. United States Fidelity Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940). It is equally well established that a federal court has no jurisdiction over an intratribal controversy. Motah v. United States, 402 F.2d 1 (10 Cir. 1968); Pinnow v. Shoshone Tribal Council, D.C., 314 F.Supp. 1157, aff'd, 453 F.2d 278 (10 Cir. 1971). While the district judge recognized this quasi-immunity of an Indian tribe, he held that since the plaintiff was asserting rights guaranteed to her by Title II of the Civil Rights Act of 1968, jurisdiction was conferred under 28 U.S.C.A. 1343(4). ⁴ In reaching this conclusion he rejected the contention of the defendant that the Act was nothing more than a declaration of rights, stating that such an argument was at variance with the rationale of the Supreme Court's opinion in Jones v. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). We agree with this jurisdictional conclusion of the court below since section 1343(4) provides a logical and specific basis of jurisdiction and to hold otherwise would render the provisions of the Act unenforceable and an exercise in Congressional futility. See Johnson v. Lower Elwha Tribal Community, etc., Wash., 484 F.2d 200 (9 Cir. 1973). This conclusion is buttressed by the fact that it accords with the decisions of a majority of the courts who have had occasion to consider this question. Solomon v. LaRose, 335 F.Supp. 715 (D.C.Neb.1971); Spotted Eagle v. Blackfeet Tribe of Blackfeet Indian Res., 301 F.Supp. 85 (D.C.Mont.1969); Dodge v. Nakai, 298 F.Supp. 17 (D.C.Ariz. 1968).

-II-

The finding of the district court that the Tribal Council had assigned a part of the plaintiff's eleven acre tract to Bertha Saunooke and her children without giving the plaintiff any notice thereof or conducting any hearing upon the proposed division, clearly required that the defendant's action be set aside as violative of the plaintiff's due process rights under the Act. However, in going further and ordering that the plaintiff be restored to her possessory holding under the Land Division Agreement between the Saunooke heirs, it appears that the district court ignored the established doctrine of Indian sovereignty as well as the correlative concept of tribal property law.

The sovereignty of Indian tribes as 'distinct, independent, political communities' qualified to exercise the powers of self-government was first definitively recognized in the landmark case of Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832). What has been described as 'perhaps the most basic principle of all Indian law' is that the powers vested in an Indian tribe are not powers granted by express Acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. ⁵ The scope and stature of this sovereignty was avouched by Chief Justice Marshall in Worcester, Supra, at 556.

'From the Commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians, which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.'

We will not attempt a collection of the many cases which have applied the doctrine of Indian Sovereignty which was articulated in Worcester, but with few minor exceptions, it has remained viable down to the present time. In Williams v. Lee, 358 U.S. 217, 221, 223, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959), the Court, in construing a Navajo treaty, recognized the integrity of Indian tribal sovereignty, saying:

'Implicit in these treaty terms, as it was in the treaties with the Cherokees involved in Worcester v. Georgia, was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed. * * * The cases in this Court have consistently guarded the authority of Indian governments over their reservations.'

And as recently as 1973 in McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172-173, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129, Mr. Justice Marshall had occasion to comment upon the doctrine of Indian sovereignty:

'It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government. * * * '* * * They were, and always have been, regarded as having a semi-independent...