Harjo v. Kleppe

• Decision Date: 02 September 1976
• Docket Number: Civ. A. No. 74-189.
• Citation: 420 F. Supp. 1110
• Parties: Allen HARJO et al., Plaintiffs, v. Thomas S. KLEPPE et al., Defendants.
• Court: U.S. District Court — District of Columbia

420 F. Supp. 1110

Allen HARJO et al., Plaintiffs, v. Thomas S. KLEPPE et al., Defendants.

Civ. A. No. 74-189.

United States District Court, District of Columbia.

September 2, 1976.

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Thomas E. Leubben, Jr., National Indian Youth Council, Albuquerque, N. M., Robert G. Vaughn, Institute for the Development of Indian Law, Washington, D. C., for plaintiffs.

Rembert A. Gaddy, Dept. of Justice, Scott Keep, Dept. of Interior, Washington, D. C., for defendants.

OPINION AND ORDER

BRYANT, District Judge.

I. INTRODUCTION

This matter is now before the Court on the parties' cross-motions for summary judgment. The parties have stipulated that no genuine issues of material fact exist. Plaintiffs in this action seek declaratory and injunctive relief against the policy and practice of the Interior Department in recognizing and dealing with defendant Cox, Principal Chief of the Creek Nation, as the sole embodiment of the Creek tribal government, and in refusing to recognize, facilitate, or deal with a Creek National Council as a coordinate branch of the tribal government responsible for certain legislative and financial functions.

The Creek Nation is one of the Five Civilized Tribes of Oklahoma. Each of the four plaintiffs is a resident of Oklahoma, a citizen of the United States, and a Creek Indian who is a citizen of the Muskogee (Creek) Nation and of a Creek Tribal Town. Each of the plaintiffs is a duly qualified elector under the laws or customs of his or her respective tribal town and under the laws of the Creek Nation, as to the election of tribal town representatives to the Creek national legislature. Each of the male plaintiffs is also a duly qualified elector under the original laws and 1867 Constitution of the Creek nation as to the election of the Principal Chief and Second Chief of that Nation. In addition, named plaintiff Allen Harjo is an elected representative of Fish Pond Tribal Town. Harjo has also twice run unsuccessfully for Principal Chief of the Creek Nation.¹

Defendants include the Secretary of the Interior and subordinate employees of the federal government with general responsibility for executing laws passed or approved by Congress relating to Indians. Defendants also include the Secretary of Treasury and a subordinate official with responsibility for executing the federal laws pertaining to revenue-sharing funds payable to Indian tribes. Defendant Claude A. Cox is sued in his capacity as the officially recognized Principal Chief of the Creek Nation. Cox was twice elected as Principal Chief pursuant to regulations and procedures devised under the October 22, 1970 Act of Congress, 84 Stat. 1091.²

Primarily at issue is the legitimacy of Cox's authority to disburse tribal funds and enter into contracts on behalf of the Creek Nation without the approval of the Creek National Council. Specifically, the first cause of action alleges: (1) Article I of the 1867 constitution of the Creek Nation lodges the lawmaking power of that Nation in the Creek National Council; (2) The Constitution of the Creek Nation places the financial affairs of the Nation exclusively under the control of the Creek National Council; (3) Congress, between 1866 and 1906, on several occasions specifically recognized the Creek National Council as the ultimate repository of power within the Creek national government; (4) Under the terms of the Act of 1906, 34 Stat. 137, and the Treaties of 1856 and 1866 Congress imposed on defendants the duty to respect and follow the provisions of the constitution of the Creek Nation; and (5) Federal defendants have approved the disbursement of tribal funds by defendant Cox on behalf of the Creek Nation and have paid federal funds to Cox contrary to the intent of Congress.³

Defendants argue that (1) This Court lacks jurisdiction over the action; (2) The action is a nonjusticiable controversy; (3) The Court should dismiss the action due to the absence of certain indispensable parties; (4) Various congressional acts have relieved the Creek Nation of sufficient authority that it has been rendered incompetent to handle the affairs of the tribe under the 1867 Constitution; (5) Congress was aware of the fact that the affairs of the Five Civilized Tribes (Creeks, Cherokees, Choctaws, Chickasaws, and Seminoles) were being administered by Principal Chiefs or Governors and therefore ratified this form of government when it enacted the Act of October 22, 1970, 84 Stat. 1091.

II. PRELIMINARY ISSUES

A. Jurisdiction and Justiciability

Defendants contend that the Court lacks jurisdiction over the subject matter of this action on the grounds that: (1) The question involved is political and not subject to the control of the judiciary; and (2) The issue involves an intratribal dispute which traditionally is not within the jurisdiction of the federal courts.

In making these arguments under the rubric of jurisdiction, defendants have failed to distinguish between judicial power (jurisdiction) and the appropriateness of the subject matter for judicial consideration (justiciability). The Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), explained that distinction:

"In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not `arise under' the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III § 2), or is not a `case or controversy' within the meaning of that section; or the cause is not one described by any jurisdictional statute." 369 U.S. at 198, 82 S.Ct. at 700.

Plaintiffs contend that defendants are acting beyond and contrary to the authority prescribed by Congress through various statutes. Thus the question clearly arises under the laws of the United States. Since among the matters governed by these statutes is federal defendants' authority to dispense and defendant Cox's authority to spend over $10,000 in revenue sharing funds and over $2 million in Indian claims appropriated by Congress, the amount in controversy requirement of 28 U.S.C. § 1331 is also satisfied. There is clearly a jurisdictional predicate for this action therefore.

With regard to the question of justiciability, defendants seem to misapprehend the nature of the nonjusticiable political question doctrine. The political question doctrine does not preclude the Court from resolving issues that may be otherwise properly raised, merely because the personal motivations of those raising the issues may be political in nature; the political question doctrine is rather basically a function of the separation of powers. The Supreme Court in Baker v. Carr, supra, articulated various indicia for recognizing when a case presents a political question best left to a different branch of government for resolution. These indicia include:

". . . a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." 369 U.S. at 217, 82 S.Ct. at 710.

The issues in this case do not fall within any of these formulations. The plaintiffs contend that defendants are acting contrary to and beyond their statutory authority. There is certainly no textually demonstrable constitutional commitment of issues involving statutory interpretation to a coordinate branch of government. While Congress has the power to regulate commerce with Indian tribes and based on that authority delegates certain duties to executive departments, it remains to the Courts to interpret such statutes. Similarly, there is no lack of judicially discoverable and manageable standards here; the Court employs ordinary principles of statutory construction in resolving the issue of interpretation, while fashioning relief within its equitable powers. Nor does the interpretation of statutes require an initial policy determination for nonjudicial discretion, demonstrate a lack of respect for a coordinate branch of government, ignore any unusual need for adherence to a political decision, or present any potential for multifarious pronouncements. While review of statutes spanning over 100 years may be arduous, it is clearly, even uniquely, a judicial task. Indeed, in Baker v. Carr, supra, the Supreme Court stated that application of the political question doctrine to Indian questions is "limited and precise". Baker v. Carr, supra, at 215, n. 43, 82 S.Ct. 691. The Supreme Court explained that while the status of an Indian tribe qua Indians is usually considered a matter for political departments, even that determination might be left to the Court if Congress acts arbitrarily. For the courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power". Id. at 217, 82 S.Ct. at 710. Therefore, while the question of what constitutes an Indian tribe is not ordinarily a matter for determination by the courts, the courts have always resolved questions of legislative intent even when the questions deal with Indians. See, Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388 F.Supp. 649, at 664 (D.Mai...