Prairie Band of Pottawatomie Tribe of Indians v. Udall
| Decision Date | 24 January 1966 |
| Docket Number | No. 8129.,8129. |
| Citation | 355 F.2d 364 |
| Parties | PRAIRIE BAND OF the POTTAWATOMIE TRIBE OF INDIANS, Mrs. Minnie Evans, Whose Indian Name is Minnie Weshkeenoo, John P. Wahwassuck, Alfred Curtis Pequana, James P. Wahbnosah and William Hale, Appellants, v. Stewart L. UDALL, Secretary of Interior, Philleo Nash, Commissioner of Indian Affairs, and Buford Morrison, Area Field Representative, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Sam A. Crow, Topeka, Kan. (J. A. Dickinson, Ralph Skoog and Bill G. Honeyman, Topeka, Kan., on the brief), for appellants.
Roger P. Marquis, Attorney, Department of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., Newell A. George, U. S. Atty., and Elmer Hoge, Asst. U. S. Atty., on the brief), for appellees.
Before PICKETT, LEWIS and HILL, Circuit Judges.
This action represents a second effort of the appellants to interject the Federal courts into a tribal dispute over what Indians are eligible to receive part of a $3,209,217.00 award payable by Congress to the Prairie Band of the Pottawatomie Tribe of Indians. The money awarded was based on an earlier Indian Claims Commission judgment granting the tribe in question further compensation for land taken by the government in the nineteenth century. In addition to a declaration of their rights, the appellants seek injunctive relief against the appellees to prevent them from further determining who is eligible to receive the fund and from distributing any money thereto.
Appellants' first attempt to invoke Federal jurisdiction into this issue met with complete failure when this court in Prairie Band of Pottawatomie Tribe of Indians v. Puckkee, 10 Cir., 321 F.2d 767, held that there was no jurisdiction of this type of action either under 28 U.S.C. § 1353 or 28 U.S.C. § 1331 and furthermore that in essence the action was a private civil dispute between Indians of the same Tribe and Band concerning the distribution of proceeds of a sum of money. As Chief Judge Murrah said in that opinion, at page 770, "It is an intratribal controversy, over which Federal court jurisdiction has been traditionally denied." However, during the pendency of the appeal in that case, Congress enacted 28 U.S.C. § 1361, which the appellants then raised to support jurisdiction on appeal for the first time. The court there refused to consider that statute but indicated it could be raised anew in a trial court. The appellants did just that and raised 28 U.S.C. § 1361 in the court below which held that it did not have jurisdiction of the subject matter nor to grant the relief in question and that the appellants did not have standing to raise the issue and further that the Tribe and the United States are indispensable parties and cannot be joined without the consent of Congress. From that judgment, the appellants have perfected their appeal here once again.
The pertinent facts to this dispute are sufficiently set forth in the previous opinion, Prairie Band of Pottawatomie Tribe of Indians v. Puckkee, supra. Suffice it to say here that the Prairie Band of the Pottawatomie Tribe is authorized by Congress to receive a sizable sum of money based upon an Indian Claims Commission Award. That award stated, "* * * the petitioner Potawatomi Nation, as created by the treaty of June 5, 17, 1846, and as it then existed, is entitled to an award for the benefit of all descendants of said Nation as it was constituted and recognized by the United States in said treaty, * * *." Then in appropriating the money to satisfy the award Congress said the fund, "* * may be advanced or expended for any purpose that is authorized by the respective tribal governing bodies and approved by the Secretary of the Interior." See Act of September 6, 1961, 75 Stat. 474.
By appropriate resolutions, the General Council of the tribe authorized the business committee to establish the roll for the distribution of the appropriation. Thereafter in accordance with the above, a tribal membership roll was prepared indicating it "shall consist of the original allottees of the Prairie Band of Potawatomie Indians of Kansas living as of midnight December 1, 1960, and the descendants by blood of all original allottees of the Prairie Band of Potawatomie Indians living as of midnight December 1, 1960 * * *." The resolution also provided that any person not placed on the membership roll may appeal the tribe's decision to the Secretary of Interior. Furthermore, any person claiming membership rights in the tribe may file a protest concerning the inclusion of any other person on the roll with the Secretary of Interior which protest will be promptly determined by the Secretary.
Under the provisions of 25 U.S.C. § 163,1 the Secretary of Interior has approved this resolution concerning creation of a tribal membership roll. From the pleadings it appears that the appellants have filed a written protest against the inclusion on the proposed roll of approximately 2,101 names. So far as we are aware, the roll of individuals who are to receive the benefits of the award has not yet been completed. In fact the Secretary stated in the answer to the written interrogatories that the final determination on eligibility has been suspended pending a final decision here. Preparatory work has progressed through the protest filing stage where it remains at this time.
Appellants' objection to the proposed plan of distribution is on the ground that the allottees mentioned and their descendants are not part of the identifiable group of Indians who constituted the Pottawatomie Nation and their descendants as it was recognized in 1846. Apparently they wish to restrict the award only to those descendants of the Tribe as it existed at the time of the treaty of 1846. According to appellants, if the procedure now sanctioned by the Secretary of Interior is...
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