United States v. Blackfeet Tribe of Blackfeet Ind. Res.

• Decision Date: 10 October 1973
• Docket Number: Civ. No. 3197.
• Citation: 364 F. Supp. 192
• Parties: UNITED STATES of America, Plaintiff, v. BLACKFEET TRIBE OF the BLACKFEET INDIAN RESERVATION et al., Defendants.
• Court: U.S. District Court — District of Montana

364 F. Supp. 192

UNITED STATES of America, Plaintiff, v. BLACKFEET TRIBE OF the BLACKFEET INDIAN RESERVATION et al., Defendants.

Civ. No. 3197.

United States District Court, D. Montana, Great Falls Division.

October 10, 1973.

Robert P. Gannon, Asst. U.S. Atty., Butte, Mont., for plaintiff.

John P. McDermott, University of Montana, Missoula, Mont., Philip E. Roy, Browning, Mont., for defendants.

OPINION

RUSSELL E. SMITH, Chief Judge.

A statute of the United States prohibits the possession of gambling devices on an Indian reservation.¹ Notwithstanding, the Blackfeet Business Council passed a resolution authorizing gambling on the reservation and the licensing of mechanical gambling devices. Thomas Harney, an agent of the Federal Bureau of Investigation, seized four slot machines and another mechanical gambling device from one Harper (apparently a licensee of the Blackfeet Tribe) and stored the same with a special officer of the Bureau of Indian Affairs. Thereafter the Blackfeet Tribal Court issued an order restraining all persons from removing the seized articles from the reservation. The order was served upon Thomas Harney who, after consultation with the United States Attorney, removed the gambling devices from the reservation and stored them in Great Falls. One of the judges of the tribal court then cited the United States Attorney to show cause why he should not be cited for contempt of the tribal court. This application for preliminary injunction seeks to restrain the Blackfeet Tribe and its officers from further proceeding with the contempt citations or interfering with the Federal Bureau of Investigation in the investigation of violations of federal statutes.

The defendants urge that the Blackfeet Tribe is sovereign and that the jurisdiction of the tribal court flows directly from that sovereignty. No doubt the Indian tribes were at one time sovereign and even now the tribes are sometimes described as being sovereign. The blunt fact, however, is that an Indian tribe is sovereign to the extent that the United States permits it to be sovereign — neither more nor less.² In the Blackfeet Treaty (11 Stat. 657, at 659, (1855)) the Blackfeet Tribe acknowledged its "dependence on the government of the United States." While for many years the United States recognized some elements of sovereignty in the Indian tribes and dealt with them by treaty, Congress by Act of March 3, 1871 (16 Stat. 566, 25 U.S.C. § 71) prohibited the further recognition of Indian tribes as independent nations. Thereafter the Indians and the Indian tribes were regulated by acts of Congress. The power of Congress to govern by statute rather than treaty has been sustained. United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). That power is a plenary power (Matter of Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848 (1905)) and in its exercise Congress is supreme. United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192 (1916). It follows that any tribal ordinance permitting or purporting to permit what Congress forbids is void.

It is the duty of the Federal Bureau of Investigation to detect and prosecute crimes against the United States (28 U.S.C. § 533; 28 C.F.R. § 0.85), and also to seize gambling devices illegally possessed. 15 U.S.C. § 1177; 28 C.F.R. § 0.86. It is beyond the power of the tribe to in any way regulate, limit, or restrict a federal law officer in the performance of his duties, and the tribe having no such power the tribal court can have none.³

Defendants argue that the tribe has jurisdiction over personal property found on the reservation and that hence there was an in rem jurisdiction over the mechanical gambling devices. The answer to this is that the gambling devices were contraband and when seized by the United States were lawfully in the possession of the United States and that whatever in rem jurisdiction the Blackfeet Tribe might have had prior to the seizure ceased to exist.

It is urged that even though there was no jurisdiction to issue the restraining order the tribal court had jurisdiction to determine its jurisdiction and that hence those violating the restraining order were guilty of contempt. Reliance is placed upon United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Apart from the fact that there is some question as to the authoritative effect of United Mine Workers⁴ the Court did recognize that the rule that a court has jurisdiction to determine its jurisdiction is subject to the exception that the claim of...