Northern Cheyenne Tribe v. Hollowbreast
| Decision Date | 28 November 1972 |
| Docket Number | Civ. No. 883. |
| Citation | 349 F. Supp. 1302 |
| Parties | The NORTHERN CHEYENNE TRIBE, Plaintiff, v. William HOLLOWBREAST et al., Defendants. |
| Court | U.S. District Court — District of Montana |
Longan & Holmstrom and Richard F. Cebull, Billings, Mont., and Bert W. Kronmiller, Hardin, Mont., for plaintiff.
Otis L. Packwood, U. S. Atty., Billings, Mont., for Myron L. Littlebird.
Montana Legal Services Association and Thomas J. Lynaugh, Hardin, Mont., for Elva L. Littlechief Williamson and James Bowen.
Lewis E. Brueggemann and Marion B. Porter, Billings, Mont., for William Hollowbreast and others.
This is a class action brought pursuant to Public Law 90-424, approved July 24, 1968 (82 Stat. 424), which amended Section 3 of the Act of June 3, 1926 (44 Stat. 690), as amended by the Acts of July 24, 1947 (61 Stat. 418) and September 22, 1961 (75 Stat. 586), to reserve in perpetuity the minerals underlying the Northern Cheyenne reservation for the benefit of the plaintiff Tribe.
Under prior acts the minerals would have become the property of the allottees, their heirs and devisees, in 1976, Section 3 of the Act of June 3, 1926 providing:
44 Stat. 690, 691.
Public Law 90-424 amends Section 3 of the Act of June 3, 1926, as amended, to read:
The Northern Cheyenne Tribe was authorized by Section 2 of Public Law 90-424 to commence this action "against the allottees who received allotments pursuant to the Act of June 3, 1926, as amended, their heirs or devisees, either individually or as a class, to determine whether under the provisions of the Act of June 3, 1926, as amended, the allottees, their heirs or devisees, have received a vested property right in the minerals which is protected by the fifth amendment."1
Pursuant to this Act and Rule 23, F. R.Civ.P.2 the Northern Cheyenne Tribe3 commenced this action on July 2, 1970, within two years of the effective date of the Act, against ten named defendants,4 individually and as representatives of all allottees, their heirs or devisees who received allotments pursuant to the Act of June 3, 1926, as amended,5 seeking judgment that the allottees do not have a vested right in the minerals underlying the reservation and that the minerals are reserved in perpetuity for the benefit of the Tribe.
Ten of the named defendants are members of the plaintiff Tribe6 and are represented by Messrs. Brueggemann and Porter, who also represent nine additional defendants who are members of the Tribe. Another member of the Tribe who was not a named defendant is represented by the United States Attorney for the District of Montana. Two of the named defendants are not members of the Tribe. One of these defendants, Elva L. Littlechief Williamson, is represented by the Montana Legal Services and its Big Horn and Rosebud County branch, who also represent James Bowen.7
Numerous motions and briefs have been filed by counsel for the respective parties, as set out more fully in memorandum opinions of September 30, 1971, and January 12, 1972. All motions were denied in orders entered September 30, 1971 and January 10, 1972.
In the memorandum opinion of September 30, 1971 it was held that (1) this court has jurisdiction; (2) the United States is not an indispensable party defendant; (3) the United States should not be joined as an involuntary party plaintiff; and (4) this is a proper class action. In the January 12, 1972 opinion it was held further that (5) the notice served upon the defendants was sufficient; (6) no further notice or questionnaire was required; and (7) all defendants, both members and nonmembers of the Northern Cheyenne Tribe who would be affected by the judgment in this case, are adequately represented by counsel.8 The court adheres to all of these conclusions.9
In a pretrial order entered July 10, 1972 the parties agreed to submit the following legal issues for determination prior to trial:10
The lands comprising the Northern Cheyenne Reservation were originally part of Crow country recognized by the Treaty of September 17, 1851, 11 Stat. 749. 2 Kappler, Indian Affairs, Laws and Treaties, 594. When the Crow Reservation was created by the Treaty of May 7, 1868, 15 Stat. 649, the "Crow Nation ceded all its right and title in other lands embraced within the treaty area to the United States." United States v. Northern Pacific Ry. Co., 311 U.S. 317, 354, 61 S.Ct. 264, 281, 85 L.Ed. 210 (1940). The United States thereupon became the owner of these lands.
The Northern Cheyenne Reservation was created by an executive order issued by President Arthur on November 26, 1884 which directed that the land be "withheld from sale and settlement, and set apart for the use and occupation of the Northern Cheyenne Indians, * * * and such other Indians as the Secretary of the Interior may see fit to locate thereon * * *." 1 Kappler, supra, 860. The boundaries of the reservation were enlarged by an executive order of President McKinley on March 19, 1900, the tract of land therein described being "withdrawn from sale and settlement and set apart as a reservation for the permanent use and occupation of the Indians now occupying or belonging upon the Northern Cheyenne Reservation, * * *." 1 Kappler, supra, 860.13
The executive order of March 19, 1900 was confirmed by Congress June 3, 1926 in the enactment of the Northern Cheyenne Allotment Act (44 Stat. 690). Section 1 declares the lands "to be the property of the Northern Cheyenne Indians, subject to such control and management of said property as the Congress of the United States may direct." Section 2 provides for the allotment of agricultural and grazing lands not exceeding 160 acres to each of the duly enrolled Indians "now living, for whom said reservation was set apart. * * *."
Section 3 provides that the timber, coal or other minerals "are hereby reserved for the benefit of the tribe and may be leased with the consent of the Indian council under such rules and regulations as the Secretary of the Interior may prescribe." This is followed by two provisions critical to a determination of this case: (1) that at the expiration of fifty years the coal or other minerals "shall become the property of the respective allottees or their heirs," and (2) that the unallotted lands "shall be held in common, subject to the control and management thereof as Congress may deem expedient for the benefit of said Indians."
The question of whether under these provisions of the Act of June 3, 1926, as amended,14 the allottees, their heirs or devisees, "have received a vested property right protected by the fifth amendment" must be considered in the light of well established national policies with respect to Indians and Indian property.
First, it is clear that Congress has plenary power to deal with Indian affairs and property.15 It is true, as defendants contend, that the "power to control and manage" is not absolute. The United States, may not, for example, give tribal lands to others or appropriate them for its own purposes without just compensation.16 Here, however, we are not concerned with the taking of Indian property for others, but with a controversy between the Tribe and members and nonmembers of the Tribe who own allotted lands. This controversy must be resolved by determining the intent of Congress in the Act of June 3, 1926 and the power of Congress in the Act of July 14, 1968.17
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