Iron Crow v. Oglala Sioux Tribe of Pine Ridge Res.

• Decision Date: 06 March 1956
• Docket Number: No. 15387.,15387.
• Citation: 231 F.2d 89
• Parties: Thomas IRON CROW, Marie Little Finger and David Black Cat, Appellants, v. The OGLALA SIOUX TRIBE OF the PINE RIDGE RESERVATION, SOUTH DAKOTA; Moses Two Bulls, President, and Charles Little Hawk, Secretary, of the Oglala Sioux Tribal Council of the Pine Ridge Indian Reservation, South Dakota, East Section; Peter Mesteth as Judge of the Oglala Sioux Tribal Court, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F.2d 89 (1956)

Thomas IRON CROW, Marie Little Finger and David Black Cat, Appellants, v. The OGLALA¹ SIOUX TRIBE OF the PINE RIDGE RESERVATION, SOUTH DAKOTA; Moses Two Bulls, President, and Charles Little Hawk, Secretary, of the Oglala Sioux Tribal Council of the Pine Ridge Indian Reservation, South Dakota, East Section; Peter Mesteth as Judge of the Oglala Sioux Tribal Court, Appellees.

No. 15387.

United States Court of Appeals Eighth Circuit.

March 6, 1956.

John C. Farrar, Rapid City, S. D., for appellants.

Richard Schifter (Arthur Lazarus, Jr., Washington, D. C., H. R. Hanley, Rapid City, S. D., Strasser, Spiegelberg, Fried & Frank, Washington, D. C., and Hanley & Costello, Rapid City, S. D., were with him on the brief), for appellees.

Fred W. Smith, Atty., Dept. of Justice, Washington, D. C., appeared for United States.

Rufus G. Poole, Washington, D. C., and Charles L. Black, Jr., New York City, Association on American Indian Affairs, Inc., filed brief amicus curiae.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

Inasmuch as the appellants' "statement of the case" is completely concurred in by the appellees, this court will adopt it as follows:

Marie Little Finger and David Black Cat, two of the plaintiffs herein, were tried and convicted in the Oglala Sioux Tribal Court of the crime of adultery under the provisions of § 61 of the Revised Code of the Oglala Sioux Tribe. Jurisdiction was exercised under §§ 1 and 1.2 of said Code, they both being enrolled members of the Oglala Sioux Tribe and the crime having been committed on the Pine Ridge Reservation. The Tribal Court, after reaching a verdict of guilty, imposed fines on both the plaintiffs and sentenced David Black Cat to 30 days in jail, said jail sentence being suspended on condition of the payment of the fine and good behavior for one year. The fines have not been paid and the tribal authorities intend to proceed with the enforcement of the sentences.

These plaintiffs have brought this suit to enjoin the tribe and its officers from proceeding as intended, alleging that the Tribal Court did not have jurisdiction to try and convict them of the crime of adultery, and that enforcement of the sentences of the Tribal Court would deprive said plaintiffs of liberty and property without due process of law in violation of the Fifth Amendment to the Constitution of the United States.

The facts which were the basis for the verdict of guilty in the proceedings before the Tribal Court and the fairness of the procedures of the Tribal Court are not disputed or involved in this case.

The third plaintiff in this case, Thomas Iron Crow, is an enrolled member of the Oglala Sioux Tribe who possessed allotted land on the Pine Ridge Reservation, the title to which is held by the United States in trust for him. Originally all reservation lands were owned by the Oglala Sioux Tribe as a unit, but subsequently parcels of land, including that used by Thomas Iron Crow, were allotted to individual members of the tribe under applicable federal law. These separate tracts remained in trust status and still are classified as Indian country.

In past years, plaintiff has leased some of his land within the Pine Ridge Reservation for grazing purposes to nonmembers of the Oglala Sioux Tribe and he plans to continue this practice in the future. The Oglala Sioux Tribe has, under the provisions of Tribal Council Resolution 147-50, assessed a tax against plaintiff's lessee for the privilege of grazing stock on land within the reservation, and it in turn plans to continue to assess the tax in the future. Plaintiff now brings this action to enjoin the tribe from proceeding with that tax assessment.

Plaintiffs make two demands: (1) For an injunction prohibiting the Oglala Sioux Tribal Court from proceeding with the enforcement of the sentences against David Black Cat and Marie Little Finger; and (2) for an injunction to enjoin the tribe from proceeding with assessment and collection of the tax.

The court entered its findings of fact, conclusions of law, and judgment for the defendants and dismissed the action upon its merits.

This is an appeal from these findings of fact, conclusions of law and the judgment.

For purposes of convenience, the parties will be designated as they were referred to in the court below.

In dismissing this action, the trial court prepared an excellent and comprehensive memorandum which will be found in Thomas Iron Crow v. Ogallala Sioux Tribe, D.C., 129 F.Supp. 15. In the appeal to this court, the plaintiffs set forth six separate points which will be individually discussed. Plaintiffs claim:

1. The court erred in refusing to grant plaintiffs' request for injunction.

This point is so inextricably tied in with the ultimate conclusion of the case that it does not require separate discussion.

2. The court erred in its finding that defendant is a sovereign, dependent nation.

The status of Indian tribes or nations first received important consideration in the case of Cherokee Nation v. State of Georgia, 1831, 5 Pet. 1, 30 U.S. 1, 8 L.Ed. 25. The opinion, by Chief Justice Marshall, held that, page 15 of 5 Pet., "the acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts", and that, page 18 of 5 Pet., "* * * an Indian tribe or nation within the United States is not a foreign state, in the sense of the constitution, and cannot maintain an action in the courts of the United States". (Emphasis supplied.) The court stated, however, at page 17 of 5 Pet., "they may more correctly perhaps be denominated domestic dependent nations".

The proposition that the Constitution of the United States recognized the sovereignty of Indian tribes obtained greater acknowledgment in the case of Worcester v. State of Georgia, 1833, 6 Pet. 515, at page 535, 31 U.S. 515, at page 535, 8 L.Ed. 483, with Chief Justice Marshall again delivering the opinion of the court, wherein he stated:

"The legislative power of a state, the controlling power of the constitution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved in the subject now to be considered." (Emphasis supplied.)

Page 559 of 6 Pet.:

"The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution. 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. They are not limited by any restrictions on their free actions; the shackles imposed on this power, in the confederation, are discarded. Emphasis supplied.

"The Indian nations had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, * * *."

With reference to the constitutionally granted power of making treaties with the Indian tribes, the Supreme Court said, 6 Pet. at page 559:

"The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently, admits their rank among those powers who are capable of making treaties." (Emphasis supplied.)

It would seem clear that the Constitution, as construed by the Supreme Court, acknowledges the paramount authority of the United States with regard to Indian tribes but recognizes the existence of Indian tribes as quasi sovereign entities possessing all the inherent rights of sovereignty excepting where restrictions have been placed thereon by the United States itself.

The Supreme Court, in the case of United States v. Kagama, 1886, 118 U.S. 375, 381, 6 S.Ct. 1109, 1112, 30 L.Ed. 228, stated:

"Following the policy of the European governments in the discovery of America, towards the Indians who were found here, the colonies before the Revolution, and the states and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its land, or any part of it, or the state or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relations are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the state within whose limits they resided." (Emphasis supplied.)

Felix S. Cohen's "Handbook of Federal Indian Law" states, at page 122:

"Section 2. The Derivation Of Tribal Powers.

"From the earliest years of the Republic the Indian tribes have been recognized as `distinct, independent, political communities\', (citing Worcester v. State of Georgia 1832, 6 Pet. 515, 559 31 U.S. 515, 559, 8 L.Ed. 483, and, as such, qualified to exercise powers of self-government, not by virtue of any delegation of powers from the Federal Government, but rather by reason

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