Groundhog v. Keeler
| Decision Date | 05 May 1971 |
| Docket Number | No. 34-70.,34-70. |
| Citation | 442 F.2d 674 |
| Parties | George GROUNDHOG et al., Plaintiffs-Appellants, v. W. W. KEELER et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Stuart Trapp, Tahlequah, Okl., for plaintiffs-appellants.
Andrew C. Wilcoxen, Muskogee, Okl., and Earl Boyd Pierce, Ft. Gibson, Okl., for defendants-appellees W. W. Keeler, United Keetoowah Band of Cherokee Indians in Okl., and The Members of the Cherokee Executive Committee.
Dirk D. Snell, Atty., Dept. of Justice, (Shiro Kashiva, Asst. Atty. Gen., Dept. of Justice, Nathan G. Graham, U. S. Atty., Robert P. Santee, Asst. U. S. Atty., and Edmund B. Clark, Atty., Dept. of Justice, were with him on the brief), for Federal defendants-appellees.
Before LEWIS, Chief Judge, and PHILLIPS and JOHNSEN,* Circuit Judges.
This is a declaratory judgment action brought by Groundhog, Blair, Guess, Tanner and Proctor,1 descendants of enrolled citizens of the Cherokee Nation, against Keeler, who now holds, and since 1949 has held, the office of Principal Chief of the Cherokee Nation, Walter J. Hickel, as United States Secretary of the Interior, Virgil Harrington, Area Director of the Bureau of Indian Affairs in the Muskogee Area, and Day, Starr, Morton, Crawford, Masters, Chuculade, Johnson, Ballard and Mayes, members of the Cherokee Executive Committee, which was formed in 1948.
The Cherokees are one of the Five Civilized Tribes of Indians.
They were the largest and most important tribe of Indians originally east of the Alleghanies. Compared with other Indian tribes, they ranked high in culture and intellectual receptivity. Their high degree of civilization was probably due to their own inherent character and the fact that many of their purebloods intermarried with fine members of Scotch families, and pureblood Cherokees intermarried with half-blood or less than half-blood Cherokees. The admixture of Cherokee and white blood began long before the Revolutionary War.
Their Principal Chief for nearly 40 years (1828-1866) was John Ross, who was one-half-blood Cherokee and one-half-blood Scotch.
During the third decade of the 19th century, they adopted a constitution, organized a system of government, and adopted a code of laws.
In 1825, they invented a Cherokee alphabet of 85 letters, one for each sound in Cherokee. And in 1828, they began the publication of a Cherokee newspaper, one-half of which was printed in the Cherokee alphabet.
The Cherokees gradually migrated south and west, first into Virginia, the Carolinas, and Georgia, and later into Alabama and Louisiana. Still later, part of the Tribe crossed the Mississippi River, and by 1817 there were about 3,000 of them north of the Arkansas River in what later became Indian Territory.
In the Civil War, some Cherokees supported the Union and some the South. Each furnished a large body of troops to the chosen side.
Like most of the Indians located in the South, they kept slaves. After the Civil War ended, they freed their slaves and made them full members of the Cherokee Tribe. They were thereafter called freedmen.
In 1892, the Cherokees sold their western extension, known as the Cherokee outlet. Their occupied area, thereafter, was the whole of Indian Territory, later part of Oklahoma, north of the Arkansas River.
We have recited the above facts, taken from the Encyclopedia Americana, Vol. 6, pp. 415-417, to show that there were many part blood Cherokee members of the Tribe and to show the high degree of civilization the Cherokees attained.
Cherokee tribal existence continues by virtue of § 28, Act of April 26, 1906, 34 Stat. 137, 148. Such Act (§ 6) authorized the President to appoint a citizen by blood of the Cherokee Tribe as the Principal Chief of such Tribe. In 1949, the President appointed W. W. Keeler as Principal Chief of such Tribe. By Executive Order of June 7, 1951, No. 10250, 16 F.R. 5385, the power to appoint such Chief was delegated to the Secretary of the Interior. Since then, Keeler has acted as Principal Chief of the Cherokee Tribe by appointment of the Secretary of the Interior.
The defendants moved to dismiss the action for want of jurisdiction. The trial court sustained the motion on the ground that the controversies the plaintiffs sought to adjudicate arose out of intratribal disputes and were not within the jurisdiction of the federal courts.
Whether the federal district court had jurisdiction of the action must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.2 The allegations of the complaint necessary to be considered in determining the question of jurisdiction are set out in Appendix I to this opinion. We have omitted allegations to the same effect as those set out in Appendix I, where they were stated in slightly different verbiage.
We turn first to the plaintiffs' claim that the appointment of Keeler as Principal Chief of the Cherokee Tribe was illegal. The plaintiffs predicate that claim on two grounds:
1. That Congress had no power to authorize the President to appoint the Chief of the Cherokee Tribe, because so to do violated the Fifth and Fifteenth Amendments to the Constitution of the United States; and
2. That Keeler was not a citizen by blood of the Tribe and therefore was not eligible for appointment as Chief of the Tribe.
The Indian nations or tribes are dependent political nations and wards of the United States. They possess the attributes of sovereignty, insofar as they have not been taken away by Congress. They are quasi-sovereign nations.3 The Constitution applies to Indian nations only to the extent it expressly binds them or is made binding on them by treaty or Act of Congress.4
An Indian tribe or nation is not a federal instrumentality and is not within the reach of the Fifth Amendment, and due process restraint places restrictions on the Indian tribes only when it is so provided by Congressional enactment.5
However, it is well settled that Congress has exclusive and plenary power to enact legislation with respect to the Indian tribes.6
In Sizemore v. Brady, 235 U.S. 441, at 447, 35 S.Ct. 135, at 135, 59 L.Ed. 308, the court said:
"* * * Like other tribal Indians, the Creeks were wards of the United States, which possessed full power, if it deemed such a course wise, to assume full control over them and their affairs, * * *."
The Act of April 11, 1968, 82 Stat. 77, 25 U.S.C. §§ 1301, 1302, is commonly known as the Indian Bill of Rights. (We set out the text thereof in Appendix II to this opinion.)
It imposes restrictions on Indian tribes in the exercise of the power of self-government. It imposes no restrictions on the Congress in legislating with respect to Indian tribes, nor on the Secretary of the Interior in exercising the power given to him by Congress with respect to Indian tribes and their affairs. It should be noted that its language is much narrower than the language of the Fourteenth Amendment, and it omits entirely the suffrage provisions of the Fifteenth Amendment.
We conclude that the challenge to the constitutionality of that portion of the Act of April 26, 1906, supra, which authorizes the President to appoint as the Principal Chief of the Cherokee Tribe a citizen of the Tribe by blood, is so lacking in substance and so contrary to the well established law enunciating the power of Congress to legislate with respect to the Indian tribes and their affairs that it affords no substantial basis for a claim of federal jurisdiction under 28 U.S.C.A. § 1331(a), as a civil action which "arises under the Constitution * * * of the United States."7
We turn now to the second ground upon which plaintiffs predicate the claim that Keeler's appointment as Principal Chief of the Tribe was illegal.
Whether the claim that W. W. Keeler's appointment was illegal, because he was not a citizen by blood of the Cherokee Tribe, is a matter of internal dispute over which the federal courts have no jurisdiction, we need not decide and do not decide. It may be noted in passing, however, that in the case of Martinez v. Southern Ute Tribe of Southern Ute Reservation, 10 Cir., 249 F.2d 915, this court held that the question of whether a person was a member of a tribe and whether he had the right to vote at the election of the tribal council was a matter of internal dispute, with respect to internal affairs of the tribe, and was not within the jurisdiction of a federal district court.
The Dawes Commission was provided for by the Act of March 3, 1893, 27 Stat. 612, 645, to negotiate tribal allotments with the Five Civilized Tribes, and by later legislation it was directed to enroll the members of such tribes. Enrollment criteria are set forth in § 21 of the Act of June 28, 1898, 30 Stat. 495, 502-503, as confirmed by § 27 of the Act of July 1, 1902, 32 Stat. 716, 720. The Act of June 28, 1898, 30 Stat. 495, at 503, declares that tribal enrollment, as completed by the Dawes Commission and approved by the Secretary of the Interior, has the effect of designating as tribal members the enrollees named therein, together "with their descendants thereafter born to them."
Plaintiffs do not challenge the validity of such provisions in the Act of June 28, 1898. In their complaint, plaintiffs allege only generally that W. W. Keeler was not a citizen by blood of the Cherokee Tribe. They do not allege that he was not a citizen by blood of the Cherokee Tribe under the criteria laid down by the Congress, nor that he was not a descendant of parents, each of whom was a citizen by blood of the Cherokee Tribe under the criteria laid down by Congress and who were enrolled as such on the Rolls of the Cherokee Tribe, prepared by the Dawes Commission and approved by the Secretary of the Interior.
They apparently base the allegation on what they contend were the proper criteria for determining whether a person was of Indian blood,...
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