Native Village of Noatak v. Hoffman

• Decision Date: 30 March 1989
• Docket Number: 87-4374,Nos. 87-4310,s. 87-4310
• Citation: 872 F.2d 1384
• Parties: NATIVE VILLAGE OF NOATAK; Circle Village, Plaintiffs-Appellants, and Native Village of Akiachak, Plaintiff, v. David HOFFMAN, as Commissioner, Department of Community and Regional Affairs, State of Alaska, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1384

872 F.2d 1384

NATIVE VILLAGE OF NOATAK; Circle Village, Plaintiffs-Appellants and Native Village of Akiachak, Plaintiff, v. David HOFFMAN, as Commissioner, Department of Community and Regional Affairs, State of Alaska, Defendant-Appellee.

Nos. 87-4310, 87-4374.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 3, 1988.

Decided March 30, 1989.

Lawrence A. Aschenbrenner and Robert T. Anderson, Anchorage, Alaska, for plaintiffs-appellants.

Gary I. Amendola and Douglas K. Mertz, Asst. Attys. Gen., Juneau, Alaska, for defendant-appellee Hoffman.

Appeal from the United States District Court for the District of Alaska.

Before KOZINSKI, NOONAN and THOMPSON, Circuit Judges.

NOONAN, Circuit Judge:

The Native Village of Noatak, the Native Village of Akiachak and Circle Village brought this action against the Commissioner of the Department of Community and Regional Affairs of the State of Alaska (the Commissioner). The district court dismissed the case for want of jurisdiction. The Native Village of Noatak and Circle Village (the Native Villages) appeal to this court. We reverse and remand.

The Parties

Noatak is a government with a local governing board organized under the Indian Reorganization Act, 25 U.S.C. Sec. 461 et seq. Circle Village has a traditional Council form of government. The defendant Commissioner is the principal officer of a department of the state of Alaska, responsible for administering the payment of revenue-sharing funds.

The Causes of Action

The Native Villages allege that they have been authorized to receive their pro rata share of the funds appropriated by the Alaska Legislature, up to $25,000, in accordance with Alaska Stat. Secs. 29.89.010 and 29.89.050, which provided, "the state shall pay $25,000 to a Native Village government for a village which is not incorporated as a city under this title." Alaska Stat. Sec. 29.89.050 (1980). The plaintiffs allege that the Commissioner deliberately expanded the class of eligible recipients to include entities other than the Native Villages solely because of the racial ancestry of the individual members of the villages, in violation of the federal Constitution, of 42 U.S.C. Sec. 1983 and of federal common law authorizing discrete treatment of Indian tribes, with the result that their share was diluted.

As a second cause of action the Native Villages assert that in so diluting the funds available the Commissioner violated federal laws and policy intended to further tribal self-government, including the Indian Reorganization Act, 25 U.S.C. Sec. 461 et seq.; the Indian Civil Rights Act of 1968, 25 U.S.C. Secs. 1301-1341; the Indian Financing Act of 1974, 25 U.S.C. Secs. 1451 et seq.; the Indian Self-Determination and Education Assistance Act, 25 U.S.C. Secs. 450 et seq.; the Indian Health Care Improvement Act, 25 U.S.C. Secs. 1601-1680 and the Indian Child Welfare Act of 1978, 25 U.S.C. Sec. 1901 et seq.

As a third cause of action the Native Villages allege that the Commissioner's conduct also violated 25 U.S.C. Sec. 476, which, they contend, grants native tribes the unrestricted right to contract with states. As a fourth cause of action the Native Villages claim that the Commissioner's conduct violated the First Amendment by destroying native culture and therefore their most basic form of expression, religion and association. Four additional claims are put forward as pendent state claims. The plaintiffs seek an order directing the Commissioner to pay over the monies appropriated by the Legislature and an injunction prohibiting further administration of the statute in a way that would preclude the plaintiffs from receiving a full share.

Proceedings

The district court held that the court did not have jurisdiction because the plaintiffs' suit was barred by the eleventh amendment or because, in the alternative, the case did not arise under the Constitution, laws or treaties of the United States. This appeal followed.

Analysis

1. The Sovereign Immunity of the State of Alaska

The Commissioner contends that the eleventh amendment was properly applied by the district court to deny jurisdiction. The eleventh amendment by its terms does not bar suit in the federal courts against a state by its own citizens. In Hans v. Louisiana 34 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), it was held that a state could not be sued by one of its own citizens seeking to make it perform its contracts but that "any attempt on its part to violate property or rights acquired under its contracts may be judicially resisted." Id. at 20-21, 10 S.Ct. at 509. The opinion appears to rest as much on a reading of Article III of the Constitution as on a judicial expansion of the terms of the eleventh amendment. Nonetheless since the date of its decision it has been customary to think of Hans as extending the eleventh amendment to bar suits against a state by its own citizens. See, e.g., Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

The continued vitality of Hans is in question, both by reason of the arguments directed against it and by the actual vote in Welch v. Texas Dept. of Highways, 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). With the court divided four to four and Justice Scalia declaring that he was unwilling to address Hans, it is not clear how long Hans will remain good law. We are, however, obliged to apply Hans in this case.

Whether the eleventh amendment bars an Indian tribe from suing a state is not apparent from its text, which refers only to suits against a state by citizens of another state or of a foreign state. The fundamental opinion of Chief Justice Marshall holds that an Indian tribe is not a foreign state that could bring a suit in the Supreme Court under Article III of the Constitution; rather, Indian tribes are "domestic dependent nations." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L.Ed. 25 (1831). By the same reasoning an Indian tribe is not embraced within the literal language of the eleventh amendment. On the other hand, the structure of the opinion in United States v. Minnesota, 270 U.S. 181, 193, 46 S.Ct. 298, 300, 70 L.Ed. 539 (1926), points to a bar against suit by an Indian tribe. But Arizona v. California, 460 U.S. 605, 614, 103 S.Ct. 1382, 1388, 75 L.Ed.2d 318 (1983), indicates that the matter is still open. We assume without deciding that the state does enjoy immunity unless it has been overridden by action of the United States.

2. Congressional Action Overriding the Sovereignty of Alaska.

28 U.S.C. Sec. 1362 provides that the district courts "shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States."

Two questions arise as to the applicability of this statute. The first is whether the Native Villages have been "duly recognized by the Secretary of the Interior." The Native Villages represent bodies of Indians of the same race united in a community under a single government in a particular territory--Noatak at Bering Strait, Circle Village at Upper Yukon-Porcupine. They therefore meet the basic criteria to constitute Tribes. Montoya v. United States, 180 U.S. 261, 266, 21 S.Ct. 358, 359-60, 45 L.Ed. 521 (1901).

No statute expressly outlines how a tribe may become duly recognized for purposes of Sec. 1362 jurisdiction. In Price v. State of Hawaii, 764 F.2d 623, 626 (9th Cir.1985), this court left open the question whether formal organization or incorporation of a tribe followed by approval of the organization or incorporation by the Secretary of the Interior constituted being "duly recognized" for the purpose of the statute. We see no reason to suppose that the Secretary of the Interior needs to issue a special document conferring a right to sue under the statute. Noatak Village has a governing body approved by the Secretary. 25 U.S.C. Sec. 476. It is therefore a tribe with a duly recognized governing body and qualifies for the benefits of Sec. 1362.

Circle Village, like Noatak, is listed as a Native Village in the Alaska Native Claims Act, 43 U.S.C. Sec. 1610(b)(1). The purpose of this Act was to make "a fair and just settlement of all claims by Natives and Native Groups of Alaska, based on aboriginal land claims." 43 U.S.C Sec. 1601(a). The Villages acknowledged by the Act were distinguished from ineligible villages "of a modern and urban character," where the majority of the residents were not natives. 43 U.S.C. Sec. 1610(b)(2), (3). The Villages acknowledged by the Act were possessed of aboriginal land claims and became eligible for the benefits provided under the Act. The Act was congressional recognition of the Native Villages.

In addition, in three recently enacted statutes--the Indian Self-Determination Act, 25 U.S.C. Sec. 450(b); the Indian Financing Act, 25 U.S.C. Sec. 1452(c), and the Indian Child Welfare Act, 25 U.S.C. Sec. 1903(8)--Congress treated the Native Villages as Indian tribes. Arguably, Congress intended to confer recognition only for the particular purposes of each piece of legislation. See, e.g., Alaska v. Native Village of Venetie, 856 F.2d 1384, 1386-87 (9th Cir.1988) (recognition under Indian Reorganization Act not conclusive as to tribal status). But the nature and scope of the federal government's relationship with the Native Villages, as evidenced by these Acts, indicates that the recognition extends to legal claims.

It is true that Sec. 1362 speaks of recognition by the Secretary of the Interior, not Congress, but the Secretary is only using power delegated by Congress. If Congress has recognized the tribe, a fortiori the tribe is entitled to recognition and is in fact recognized by the Secretary of the Interior. Consequently, Circle Village, as well as Noatak, qualifies under Sec. 1362.

The second question presented as...