Weeks v. United States

• Decision Date: 18 December 1975
• Docket Number: No. CIV-73-586-E and CIV-74-368-D.,CIV-73-586-E and CIV-74-368-D.
• Citation: 406 F. Supp. 1309
• Parties: Wanda June WEEKS, Plaintiff, v. UNITED STATES of America et al., Defendants. Dorothy FRAZIER and Ruth Rattler, on their own behalf and on behalf of all those similarly situated, Plaintiffs, v. Stanley K. HATHAWAY, Individually and in his capacity as Secretary of the Interior of the United States of America, Defendant, The Delaware Tribe of Indians et al., Intervenors.
• Court: U.S. District Court — Western District of Oklahoma

406 F. Supp. 1309

Wanda June WEEKS, Plaintiff, v. UNITED STATES of America et al., Defendants.

Dorothy FRAZIER and Ruth Rattler, on their own behalf and on behalf of all those similarly situated, Plaintiffs, v. Stanley K. HATHAWAY, Individually and in his capacity as Secretary of the Interior of the United States of America, Defendant, The Delaware Tribe of Indians et al., Intervenors.

Nos. CIV-73-586-E and CIV-74-368-D.

United States District Court, W. D. Oklahoma.

December 18, 1975.

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Delmer L. Stagner and Stephen P. Friot, Oklahoma City, Okl. (Halley, Spradling, Stagner & Alpern, Oklahoma City, Okl., and Henry B. "Boots" Taliaferro, Jr., Casey, Lane & Mittendorf, Washington, D. C., of counsel, on the briefs), for plaintiff Weeks.

John G. Ghostbear, Tulsa, Okl., for plaintiffs Frazier and Rattler.

Duard R. Barnes, Asst. Sol. of Indian Affairs, U. S. Dept. of Interior, Washington, D. C., and Givens L. Adams, Asst. U. S. Atty., Oklahoma City, Okl. (William R. Burkett, U. S. Atty., Oklahoma City, Okl., on the briefs), for defendant Secretary of the Interior.

Bruce Miller Townsend, Tulsa, Okl., and Clyde J. Watts, Oklahoma City, Okl. (Watts, Looney, Nichols, Johnson & Hayes, Oklahoma City, Okl., on the briefs), for defendant and intervenors, The Delaware Tribal Business Committee, and others.

Granville Tomerlin and B. J. Rothbaum, Jr., Oklahoma City, Okl. (Tomerlin, High & Patton, Oklahoma City, Okl., on the brief), for defendant The Absentee Delaware Tribe of Oklahoma Business Committee.

Before HOLLOWAY, Circuit Judge, DAUGHERTY, Chief District Judge, and EUBANKS, District Judge.

MEMORANDUM OPINION

HOLLOWAY, Circuit Judge.

These suits challenge the constitutionality of two federal statutes. The first, Pub.L. 90-508, 82 Stat. 861, 25 U.S.C.A. §§ 1181-1186, determines the Indian descendants who may participate in the distribution of an Indian Claims Commission award redressing a wrong by the United States under an 1818 treaty with the Delaware Tribe. 7 Stat. 188.¹ The second statute, Pub.L. 92-456, 86 Stat. 762, 25 U.S.C.A. §§ 1291-1297, performs the same function for a separate Indian Claims Commission award redressing a breach by the United States of an 1854 treaty with the Delawares. 10 Stat. 1048.²

Three classes of Delaware Indian descendants are represented by the parties in these cases. The plaintiffs represent a group known as the Kansas Delawares. The defendants represent two groups of descendants known as the Cherokee Delawares and the Absentee Delawares.

In 25 U.S.C.A. §§ 1181-86, relating to the 1818 wrong, Congress devised distributive classifications that permitted descendants in all three classes to share in the award. Invoking the Fifth Amendment Due Process Clause and equal protection principles incorporated by it, and the Just Compensation Clause, the Kansas Delawares challenge the constitutionality of the statute's inclusion of the Cherokee Delawares in these distribution provisions.

In 25 U.S.C.A. §§ 1181-86, relating to the 1854 wrong, Congress provided distributive classifications that permitted only the Cherokee Delawares and the Absentee Delawares to share in the award. With respect to this statute, the Kansas Delawares challenge the constitutionality of (1) their exclusion from the distributive provisions, specifically under the Due Process Clause and equal protection principles incorporated by it, and under the Just Compensation Clause, and (2) the inclusion of the Cherokee Delawares and Absentee Delawares, invoking the same Fifth Amendment principles.

Plaintiffs seek declaratory, injunctive and mandamus relief against distributions under both statutes.

We find merit in plaintiffs' challenge to 25 U.S.C.A. §§ 1291-97 as an irrational classification, insofar as the statute excludes the plaintiff class of Kansas Delawares³ from participating in the distribution of the award in Indian Claims Commission Dockets Nos. 72 and 298, relating to the 1854 wrong, and enjoin the defendant Secretary of Interior from making distribution of funds thereunder. We reject all other contentions of the Kansas Delawares concerning the validity of that statute.

We do not sustain the plaintiff Kansas Delawares' challenge to 25 U.S.C.A. §§ 1181-86, relating to the 1818 wrong, and vacate the preliminary injunction restraining distribution of the remaining funds of the award in Indian Claims Commission Docket No. 337 redressing that wrong.

The plaintiff Weeks in No. Civ. 73-586-E filed her complaint alleging that this court has jurisdiction of this action "under Article III, Section 2 of the Constitution of the United States, under 28 U.S.C. § 1331 and § 1362, and 5 U.S.C. § 701 et seq." (Complaint para. 14). This three-judge court was convened to hear the case. After an evidentiary hearing we entered a preliminary injunction enjoining the defendant Secretary from distributing any of the funds held by him that were appropriated by Congress to satisfy the judgments in Indian Claims Commission Docket No. 337, dealing with the 1818 wrong, and Dockets Nos. 72 and 298, dealing with the 1854 wrong (with specified limited exceptions agreed to by all parties), pending the final determination of this action.

Plaintiffs Frazier and Rattler in No. Civ. 74-368-D filed their complaint in the Northern District of Oklahoma. Because this case involves substantially the same parties and subject matter, it was transferred to this district and consolidated with No. Civ. 73-586-E pursuant to Rule 42(a) F.R.Civ.P. The same panel was constituted to hear it.

This court sustained a motion to dismiss of the United States on the ground that the action as against the Government was an unconsented suit. Other motions to dismiss and for summary judgment were denied and we certified the action as against the remaining defendants to proceed as a class action by plaintiff class, the Kansas Delawares, against, inter alia, defendant classes, the Delaware Tribe of Indians (the Cherokee Delawares) and the Absentee Delaware Tribe of Western Oklahoma (the Absentee Delawares).⁴ No question is raised as to the propriety of the class action procedure.

We will discuss the issues under the following propositions: (1) the historical background; (2) jurisdiction and justiciability; (3) validity of the statutory exclusion of the Kansas Delawares from distribution of the award redressing the 1854 wrong; (4) validity of inclusions of the Cherokee Delawares in distribution redressing both the 1818 and 1854 wrongs, and of the inclusion of the Absentee Delawares in distribution redressing the 1854 wrong;⁵ and (5) equitable jurisdiction and remedies. This opinion will constitute our findings and conclusions pursuant to Rule 52, F.R.Civ.P.⁶

I THE HISTORICAL BACKGROUND

The Delaware Indians were originally on the eastern seaboard, but by the second decade of the 19th century they were geographically scattered. One group of Indians of Delaware ancestry, the Munsee Indians, had become associated with the Moravian Indians, later known as the Christian Indians, or Christian Munsees, and had settled in Canada. Other Munsees were living with the Stockbridge in New York. This group became known as the Stockbridge Munsee. By 1818, the nucleus of the Delaware Nation was residing principally in Indiana and Ohio. See Senate Report accompanying H.R. 16402, S.Rep.No.1518, 90th Cong., 2d Sess. 8, which contains an historical outline of the Delaware Tribe and the various groups involved here (Defendants Secretary and Cherokee Delawares' Ex. 4, hereinafter cited as Senate Report).

Several years earlier, in 1793, the Spanish Government had granted a tract of land in Missouri to certain bands of the Delawares in Indiana and Ohio who wished to move beyond the Mississippi. A number of the Delawares moved to this grant, and later, on to Arkansas, Oklahoma and Texas, but the main body of the Tribe remained behind until the Treaty of St. Mary's was made in 1818, 7 Stat. 188 (Findings of fact Nos. 4 and 47, Ind.Cl.Comm. Docket No. 337, supra n. 1, Pl. Ex. 10, Tabs A and P).

Under this 1818 Treaty, the Delawares ceded to the United States all their lands in Indiana,⁷ and in return the United States agreed to give them land west of the Mississippi (Arts. 1, 2). It appears that no Christian Munsees and only some of the Stockbridge Munsees were in residence with the main body of the Delaware Tribe at the time the Indiana lands were ceded by the 1818 Treaty (Senate Report, supra, at 8-9).

The Delawares moved to the Missouri tract where they remained until 1829. In September of that year, the Delawares entered into another treaty with the United States, which was designated as a "supplemental article" to the 1818 Treaty. 7 Stat. 327. Under the terms of this supplemental treaty the Delawares gave up their temporary residence in Missouri and accepted in lieu thereof, as their permanent residence, a reservation in Kansas. This reserve was part payment for the Delaware cession of the Indiana lands, and purported to satisfy the obligation of the United States under the 1818 Treaty to provide the Delaware Nation a permanent home west of the Mississippi (Findings of fact Nos. 5 and 6, Docket No. 337). But the trade was grossly unequal. The disparity in value between the Indiana lands ceded by the 1818 Treaty and the Kansas lands received under the 1829 Treaty later became the basis for the judgment rendered by the Indian Claims Commission in Docket No. 337. The statute distributing this award, 25 U.S.C.A. §§ 1181-86, is one of the two distribution statutes being challenged in this suit.

After the Treaty of 1829 many of the Delawares that had preceded the Tribe into Missouri, and then into Arkansas, Oklahoma and Texas, moved on to the land assigned to them in Kansas. A portion of the members of the Delaware Tribe, however, remained in section...