Muscogee (Creek) Nation v. Hodel, 87-5377

• Decision Date: 15 July 1988
• Docket Number: No. 87-5377,87-5377
• Citation: 271 U.S.App. D.C. 212,851 F.2d 1439
• Parties: MUSCOGEE (CREEK) NATION, a Federally Recognized Indian Tribe, Appellant v. Donald HODEL, Secretary, U.S. Department of Interior.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1439

851 F.2d 1439

271 U.S.App.D.C. 212

MUSCOGEE (CREEK) NATION, a Federally Recognized Indian Tribe, Appellant v. Donald HODEL, Secretary, U.S. Department of Interior.

No. 87-5377.

United States Court of Appeals District of Columbia Circuit.

Argued June 1, 1988.

Decided July 15, 1988.

L. Susan Work, with whom M. Leah A. Harjo, Oklahoma City, Okl., and Sherrin Watkins, Okmulgee, Okl., were on the brief for appellant.

Laura E. Frossard, Atty., Dept. of Justice, with whom Roger J. Marzulla, Asst. Atty. Gen., and Edward J. Shawaker, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.

Dirk D. Snel, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellee.

Before ROBINSON, RUTH BADER GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

In 1982, the Muscogee (Creek) Nation (hereinafter "Creeks" or "Tribe") passed an ordinance authorizing the Creek Tribal Court to enforce civil and criminal jurisdiction over Tribal members and subsequently sought funding from the Bureau of Indian Affairs (BIA) for the Tribal Court and law enforcement program. The BIA, and thereafter the Department of the Interior (Interior), denied the request for funds, maintaining that the Tribe had no power to establish Tribal Courts with civil and criminal jurisdiction. The District Court agreed. Muscogee (Creek) Nation v. Hodel, 670 F.Supp. 434 (D.D.C.1987). We reverse.

BACKGROUND

In the 1830s, the Muscogee (Creek) Nation was forcibly removed from the Southeastern United States to land in what is now Oklahoma. The Creek Nation was granted the new land in fee simple with the right to perpetual self-government. Treaty of March 24, 1832, 7 Stat. 366. Following the Civil War, the United States forced the Creeks to cede the western portion of their territory as a penalty for the Tribe's alliance with the Confederacy, but the Tribe's title to the remaining portion of the territory and its right to self-government were reaffirmed. Treaty of June 14, 1866, 14 Stat. 785.

In 1867, the Creeks established a written constitutional form of government which included a separation of powers into executive, legislative and judicial branches. Tribal district courts tried all criminal cases and minor civil cases involving Creek citizens, and a Tribal Supreme Court tried all civil cases involving an amount in controversy in excess of one hundred dollars. Harjo v. Kleppe, 420 F.Supp. 1110, 1120 (D.D.C.1976), aff'd sub nom. Harjo v. Andrus, 581 F.2d 949 (D.C.Cir.1978).

In 1887, Congress passed the General Allotment Act of February 8, 1887, ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. Sec. 331 et seq. (1983)), which provided that lands held in trust for the Indians by the United States would be divided up and parcels given to individual Indians in fee simple. White settlers could obtain surplus parcels. Allotment was justified as a means of accomplishing the then current policy of assimilation. Felix S. Cohen, Handbook of Federal Indian Law 128 (1982 ed.). The Creek's land, as well as that of the Choctaw, Cherokee, ¹ Chickasaw and Seminole tribes ² was excluded from the General Allotment Act because of Treaty provisions, and, more importantly, because those tribes held their land in fee simple. Therefore, those tribes had to agree to allotment. See Woodward v. De Graffenried, 238 U.S. 284, 294, 35 S.Ct. 764, 768, 59 L.Ed. 1310 (1915).

In 1893, Congress created the Dawes Commission and empowered it to negotiate allotment agreements with the Five Civilized Tribes, including the Creeks. Act of March 3, 1893, ch. 209, 27 Stat. 612, 645. However, over the next several years the Commission was unable to negotiate agreements with any of the Five Tribes. As a result, in 1897, Congress added several provisions to the Indian Department Appropriations Act designed to coerce the tribes to negotiate with the Commission. Act of June 7, 1897, ch. 3, 30 Stat. 62. The 1897 Act required that, after January 1, 1898, all laws passed by the councils of the Five Tribes would be subject to Presidential veto except resolutions for adjournment or acts relating to negotiations with the Dawes Commission. It also extended jurisdiction of the federal courts in Indian Territory to Five Tribes members, but provided that any agreement between the Dawes Commission and one of the tribes would suspend conflicting provisions of the Act as to the agreeing tribe.

The Creeks (as well as other tribes) nevertheless resisted. When it became apparent that the Creeks, Choctaws, Chickasaws and Cherokees ³ would not cooperate, Congress passed the Curtis Act. Act of June 28, 1898, ch. 517, 30 Stat. 495. That Act provided for forced allotment and termination of tribal land ownership without tribal consent unless the tribe agreed to allotment. It also made tribal laws unenforceable in the United States Court in Indian Territory. More importantly for our purposes, the Act purported to abolish all tribal courts in Indian Territory, effective July 1, 1898 for most tribes, but effective October 1, 1898 for the Chickasaw, Choctaw and Creek Tribes. ⁴ The Curtis Act also incorporated tentative agreements reached earlier with the Creek, Choctaw and Chickasaw Tribes and provided that those agreements would supersede any inconsistent provisions of the Curtis Act if ratified by the tribes by October 1, 1898. Each tentative agreement preserved tribal courts and conferred only limited jurisdiction on the federal courts.

However, the final agreement with the Creeks (and Cherokees) unlike those of the Chickasaw and Choctaw Tribes, did not preserve the Tribal Courts. In fact, the Creek Agreement specifically stated that nothing in the agreement would be construed as reviving the Creek Tribal Courts which had been abolished by former acts of Congress. It also provided for the termination of the entire Creek government by March 4, 1906. Act of March 1, 1901, ch. 676, 31 Stat. 861. Difficulty in completing tribal rolls and resistance to allotment prevented the demise of the government and on April 26, 1906, Congress extended indefinitely the existence and government of each of the Five Tribes. Act of April 26, 1906, 34 Stat. 137. This Court has specifically held that the Creek government persisted. Harjo v. Andrus, 581 F.2d 949, 951 (D.C.Cir.1978).

In 1934, Congress passed the Indian Reorganization Act (IRA), Act of June 18, 1934, 48 Stat. 984 (codified as amended at 25 U.S.C. Secs. 461 et seq. (1983)), which provided for self-government pursuant to constitutions and permitted the tribes to organize for economic purposes pursuant to corporate charters. Certain tribes, primarily those in Oklahoma and including the Creeks, were excluded from six of the provisions of the IRA including the sections dealing with self-government and corporate charters. The legislative history reflects that one reason for the exclusion was that the tribes had made progress toward assimilation and it was thought best not to encourage return to reservations. ⁵ The need for similar legislation for the Oklahoma tribes was to be explored further. 78 Cong.Rec. 11126 (1934); See also A Bill to Promote the General Welfare of the Indians of the State of Oklahoma and for Other Purposes: Hearings on S. 2047 Before the Senate Committee on Indian Affairs, 74th Cong., 1st Sess. 9.

Two years later, Congress passed the Oklahoma Indian Welfare Act (OIWA). Act of June 26, 1936, 49 Stat. 1967 (codified at 25 U.S.C. Secs. 501 et seq. (1983)). That Act, like the IRA, provided for constitutional governments and corporate charters. However, the language used in the self-government provision of the OIWA differed from that of the IRA.

In 1979, the Tribe, pursuant to the OIWA, adopted a constitution providing for three separate branches of government, including a judiciary. In 1982, the Tribe passed an ordinance allowing Tribal Courts to enforce criminal and civil jurisdiction over Tribal members and subsequently sought funding from the BIA for the Tribal Courts and a law enforcement program. The BIA and Interior denied the request based on the Curtis Act's purported abolition of Tribal Courts together with the failure of the subsequent Creek Agreement or the OIWA to revive them. That denial precipitated this action. On cross-motions for summary judgment, the District Court ruled in favor of the Interior and the Tribe has appealed.

ANALYSIS

Abolition of the Tribal Courts

The Tribe first argues that the Curtis Act did not abolish Tribal Courts. Rather, it contends that the Curtis Act was designed only to force allotment and that Congressional intent to abrogate earlier treaties was not expressed with sufficient clarity. However, in our view, the Curtis Act unequivocally abolished the courts. That Act provided that, as of October 1, 1898 for the Creeks, "all tribal courts in Indian Territory shall be abolished, and no officer of said courts shall thereafter have any authority whatever to do or perform any act theretofore authorized by any law in connection with said courts...." Act of June 28, 1898, 30 Stat. 495, Sec. 28. The subsequent agreement with the Creeks specifically provided that the agreement would not be construed as reviving the Tribal Courts: "Nothing contained in this agreement shall be construed to revive or reestablish the Creek courts which have been abolished by former Acts of Congress." Act of March 1, 1901, 31 Stat. 861, p 47. It also contained a provision that it would have no effect on treaty provisions except insofar as it was inconsistent with the treaty provision. Id. at p 44.

The Tribe contends that the language abolishing Tribal Courts is without effect because it conflicts with an earlier treaty and a treaty cannot be abrogated by implication. Cook v. United States, 288 U.S. 102, 53 S.Ct. 305, 77 L.Ed. 641 (1933). That statement of law is unquestionably correct. " '[T]he intention to abrogate or...