Tonkawa Tribe of Oklahoma v. Richards

• Decision Date: 09 February 1996
• Docket Number: Nos. 94-50369,94-50541,s. 94-50369
• Parties: The TONKAWA TRIBE OF OKLAHOMA, in its sovereign capacity and as a representative of its members, Plaintiff/Appellant/Cross-Appellee, v. Ann RICHARDS, individually, George W. Bush, Jr., in his official capacity as the Governor of the State of Texas, Garry Mauro, individually and in his official capacity as Land Commissioner of the State of Texas, and the State of Texas, Defendants/Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1039

75 F.3d 1039

The TONKAWA TRIBE OF OKLAHOMA, in its sovereign capacity and as a representative of its members, Plaintiff/Appellant/Cross-Appellee, v. Ann RICHARDS, individually, George W. Bush, Jr., in his

official capacity as the Governor of the State of Texas,

Garry Mauro, individually and in his official capacity as

Land Commissioner of the State of Texas, and the State of

Texas, Defendants/Appellees/Cross-Appellants.

Nos. 94-50369, 94-50541.

United States Court of Appeals, Fifth Circuit.

Feb. 9, 1996.

Rande K. Herrell, Mary A. Keeney, Priscilla M. Hubenak, Asst. Attys. Gen., Energy Division, and Dan Morales, Atty. Gen. for Texas, Austin, TX, for Ann Richards, et al.

Thomas A. Graves, Andrew C. Whitaker, and William J. Albright, Figari & Davenport, L.L.P., Dallas, TX, for the Tonkawa Tribe of Oklahoma.

Appeals from the United States District Court for the Western District of Texas.

(Opinion October 23, 1995, 5th Cir., 1995, 67 F.3d 103)

Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

The State's Petition for Rehearing was granted in order to correct a factual error contained in the original opinion. That opinion, Tonkawa Tribe of Oklahoma v. Richards, 67 F.3d 103 (5th Cir.1995) is vacated and the following opinion is substituted in its place.

Appellant, the Tonkawa Tribe of Oklahoma ("the Tribe" or "the Tonkawas") brought suit against the State of Texas, its Governor and Land Commissioner ("the State") to compel the State to donate unspecified Texas lands to the Tribe for use as a homeland, and seeking damages on the basis of an 1866 Act of the Texas Legislature. The district court granted summary judgment for the State. We affirm.

FACTS

Prior to the Spanish colonization of Texas, the Tonkawas lived in what later became central Texas. During the Indian Wars, the Tonkawas served as scouts and fought alongside the Texans against other Indian tribes. In 1859, the Tonkawas were removed from Texas to an Indian reservation in Oklahoma. On March 2, 1861, Texas seceded from the Union and joined the Confederacy. Despite their removal to Oklahoma, the Tonkawas remained loyal to Texas. In 1862, the Tonkawas learned of plans for an Indian raid on Texas and forewarned the Texans. Because of this act of loyalty to the Texans, the Tonkawas were massacred by the Delaware, Shawnee, and Caddo tribes. In the massacre, 137 of the 300 Tribe members and the Tribe's chief were killed. In recognition of the Tribe's sacrifices, the Confederate Texas Legislature passed a Joint Resolution in 1864 ¹ to provide temporary support and land to the Tonkawas.

When the Civil War ended in 1865, Texas entered a period of Reconstruction that lasted through January 1874. By letter of September 20, 1866, Texas Governor J.W. Throckmorton appealed to the federal government to allow a Texas agent to care for the Tonkawas and advised the Commissioner of Indian Affairs that he intended to request support for the Tribe from the Provisional Texas Legislature. On November 1, 1866, the Provisional Texas Legislature, passed an Act to Provide for the Tonkawa Indians ("1866 Act") ² which included a section setting aside a league of land to be used by the Tonkawas "as a home, as long as they shall live on the same." The Tonkawas have never resided on any land as provided for under the 1866 Act.

After the massacre of the Tonkawas by the Delaware, Shawnee and Caddo tribes, the Tonkawas returned to Texas, settling near Austin. In April 1867, the Tonkawas were moved to Jacksboro, Texas, where they were turned over to the care of Major Starr, the Federal Commandant at the Jacksboro post.

Later in 1867, the Tonkawas were settled near Fort Griffin, originally called Camp Wilson, in present-day Shackleford County. During the time the Tonkawas resided near Fort Griffin, they continued to serve as scouts for federal troops located at the Fort. In September of 1874, the Tonkawas fought beside federal troops against the Comanches in Palo Duro Canyon in the last major battle of the Indian Wars. The Tonkawas remained at Fort Griffin until 1884, at which time the Army left and the Tribe was once again removed to Oklahoma.

The Tonkawas were settled on a reservation of approximately 91,000 acres located In June of 1992, the Tonkawas made a written request to Texas Governor Ann Richards to select the league of land granted in the 1866 Act and apportion it to their use. By letter dated June 25, 1992, the Governor advised the Tribe that the Tribe's request had been referred to Land Commissioner Garry Mauro, and that she had requested him to investigate the Tribe's claim. In a letter dated July 30, 1992, Mauro advised the Tribe that

                near Ponca City, Oklahoma, in June of 1885.   The Tribe's population continued to decline until there were fewer than fifty tribal members left.   The reservation has since been decreased to 160 acres of land.   The Tonkawas remain a small tribe, with approximately 15 families living on the reservation.   There is no industry on the current tribal land, unemployment is high, and the majority of the Tribe lives at or below the poverty line
                

[I]n 1867, at about the same time that the Tonkawa nation was removed by the United States Army to Fort Griffin, the United States imposed military rule on the State of Texas. The imposition of Reconstruction effectively deprived the civilian government of Texas of any ability to carry out the Act of 1866.

In the years following 1867, the entire public domain of the State of Texas was appropriated to other uses, including the establishment of the Permanent School Fund. All prior grants that were not surveyed and located prior to the exhaustion of the public domain cannot now be honored because there is no longer any public domain from which to award them. The Texas Constitution of 1876 prohibits the granting of any lands belonging to the Permanent School Fund without full compensation being paid.

I regret that the State of Texas is unable at this late date to honor the commitment made by the Legislature of 1866 because there is no public domain from which to award the league of land provided for in the Act of 1866.

DISTRICT COURT PROCEEDINGS

The Tribe sought a writ of mandamus from the Texas Supreme Court. That court denied the Tribe leave to file the writ on July 8, 1993. Having exhausted its attempts to secure the league of land directly from the State of Texas, the Tonkawas filed this action.

In the Tribe's Complaint, filed November 15, 1993, they requested the district court to declare that the 1866 Act granted the Tribe an enforceable interest, claim, and right to land that was not divested by the subsequent dedication of land to the Permanent School Fund, or, alternatively, that if the Tribe's interest and claim were so divested, such divestiture violated the Nonintercourse Act, 25 U.S.C. § 177. In short, the Tribe sought a court order directing the State to designate a league of land to be used as a homeland by the Tribe and to take all steps necessary to place the Tribe in possession of the land.

The district court, upon consideration of the parties' cross motions for summary judgment, granted summary judgment for the State and dismissed the case with prejudice. The ruling was based on the district court's finding that the Tonkawas never retained a vested property interest in the proposed league of land and that the Tribe's claim does not come within the purview of the Nonintercourse Act.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, applying the same standard as the district court. Bodenheimer v. PPG Indus. Inc., 5 F.3d 955, 956 (5th Cir.1993). Summary judgment shall be rendered if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). In making its determination, the court must draw all justifiable inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986).

Additionally, treaties and statutes should be liberally construed in favor of Indian tribes, with ambiguous provisions interpreted to their benefit. See, e.g., Winters v. United States, 207 U.S. 564, 576-77, 28 S.Ct. 207, 211, 52 L.Ed. 340 (1908); Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 582, 8 L.Ed. 483 (1832).

NONINTERCOURSE ACT

a. Elements of a Nonintercourse Claim.

To establish a violation of the Nonintercourse Act ³ ("the Act") the Tribe must show that (1) it constitutes an Indian tribe within the meaning of the Act; (2) the Tribe had an interest in or claim to land protected by the Act; (3) the trust relationship between the United States and the Tribe has never been expressly terminated or otherwise abandoned; and (4) the Tribe's title or claim to the interest in land has been extinguished without the express consent of the United States. See Catawba Indian Tribe v. South Carolina, 718 F.2d 1291, 1295 (4th Cir.1983), rev'd on other grounds, 476 U.S. 498, 106 S.Ct. 2039, 90 L.Ed.2d 490 (1986); Mashpee Tribe v. New Seabury Corp., 427 F.Supp. 899, 902 (D.Mass.1977); Narragansett Tribe of Indians v. Southern Rhode Island Land Dev. Corp., 418 F.Supp. 798, 803 (D.R.I.1976). The district court expressly determined, and Appellees concede, that the Tribe has satisfied the first and third elements. There is likewise no dispute concerning the fourth element. Rather, the district court's decision was based on its holding that the Tribe failed to establish the second element--that is, the Tribe had no interest in or claim to land protected by the Nonintercourse Act.

b. The District Court's Analysis.

The district court relied on the Supreme Court's decision in United States v. Rowell, 243 U.S. 464, 37 S.Ct. 425, 61 L.Ed. 848 (1917). In Rowell, the plaintiff, an adopted member of the Kiowa, Comanche, and Apache Tribes, asserted a vested property right and a right to issuance of an...