Native Village of Noatak v. Hoffman

Decision Date12 February 1990
Docket NumberNos. 87-4310,87-4374,s. 87-4310
Citation896 F.2d 1157
PartiesNATIVE 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.
CourtU.S. Court of Appeals — Ninth Circuit

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.


The opinion filed March 30, 1989 is hereby withdrawn. The panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. General Order 5.4(b) now applies.


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. 1301-41; 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 damages, 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.


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.

1. Jurisdiction

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." Are the Native Villages "tribes" which 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, 45 L.Ed. 521 (1901).

No statute expressly outlines how a tribe may become duly recognized for purposes of section 1362 jurisdiction. In Price v. Hawaii, 764 F.2d 623, 626 (9th Cir.1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986), 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 section 1362. Cf. Alaska v. Native Village of Venetie, 856 F.2d 1384, 1387 (9th Cir.1988) (uncertainty existed concerning structure of Alaska Indian villages involved; tribal status not resolved solely by reference to organization of tribe under Indian Reorganization Act).

Circle Village, like Noatak, is listed as a Native Village in the Alaska Native Claims Settlement 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. 450b(e); 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., Native Village of Venetie, 856 F.2d at 1387. 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. "[I]t is a settled principle of statutory construction that statutes passed for the benefit of dependent Indian tribes are to be liberally construed, with doubtful expressions being resolved in favor of the Indians." Three Affiliated Tribes v. Wold Eng'g, P.C., 467 U.S. 138, 149, 104 S.Ct. 2267, 2275, 81 L.Ed.2d 113 (1984).

It is true that section 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 section 1362.

2. 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. What has been authoritatively resolved as to the jurisdiction of the federal courts of suits against the states is the following:

One state may not be sued by the citizens of another state. U.S. Const. amend. XI.

The citizens of a foreign state may not sue a state. Id.

The citizens of the same state may not sue the state. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

A corporation chartered by Congress may not sue a state. Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1140 (1900).

A foreign state may not sue the state. Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934).

The immunity of the states from suit in these cases has been addressed by the Supreme Court in terms of the Eleventh Amendment, interpreted well beyond its literal language, as Hans, Smith, and Monaco vividly illustrate. The Court, it may be felt, has constructed a jurisprudence in respect to this amendment in which the Court's own gloss, the Court's own readings of the amendment's spirit and purpose are what count. The same court that used the strongest language in stating the doctrine of sovereign immunity in Hans had no difficulty in subjecting the states to suit by the United States in United States v. Texas, 143 U.S. 621, 642, 12 S.Ct. 488, 492, 36 L.Ed. 285 (1892) (relying upon United States v. North Carolina, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336 (1890), overruled on other grounds, West Virginia v. United States, 479 U.S. 305, 311 n. 4, 107 S.Ct. 702, 707 n. 4, 93 L.Ed.2d 639 (1987)). And in South Dakota v. North Carolina, 192 U.S. 286, 24 S.Ct. 269, 48 L.Ed. 448 (1904), the Court held that a state may sue another state in federal courts.


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