Carr, supra, at 215, n. 43, 82 S.Ct. 691. The Supreme Court explained that while the status of an Indian tribe qua Indians is usually considered a matter for political departments, even that determination might be left to the Court if Congress acts arbitrarily. For the courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power". Id. at 217, 82 S.Ct. at 710. Therefore, while the question of what constitutes an Indian tribe is not ordinarily a matter for determination by the courts, the courts have always resolved questions of legislative intent even when the questions deal with Indians. See, Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388 F.Supp. 649, at 664 (D.Maine, 1975), aff'd, 528 F.2d 370 (C.A.1, 1975). B. Intra-Tribal Dispute [6] Defendants also maintain that the Court lacks "jurisdiction" over this case because it constitutes what defendants characterize as an "intra-tribal dispute". Defendants rely primarily on this Tenth Circuit doctrine, established in Martinez v. Southern Ute Tribe of Southern Ute Reservation, 249 F.2d 915 (1957); Motah v. United States, 402 F.2d 1 (1968), and Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (1966), in arguing that the instant dispute is essentially a factional split within the tribe and should therefore be dismissed. While factional rivalries do appear to have played a significant part in motivating plaintiffs to file the suit, the only relevant question for the Court, as indeed the above cases recognize, is whether the issues raised by plaintiffs are internal tribal issues or whether they arise under the constitution of laws of the United States. In each of those cases the courts determined that the controversy was one internal to the tribe and over which the tribal governing body had exclusive authority. In sharp contrast, this case questions not the propriety of tribal actions, but the legality of actions of federal officials pursuant to federal statutes. The issue is not who is entitled to membership in the tribe or to vote in tribal elections, but whether the Secretary has acted lawfully in refusing to permit the Creek National Council to participate in the determination of the uses to which tribal funds will be put and other tribal matters. In sum, the Court perceives no relevance of the "intra-tribal dispute" doctrine to the circumstances of this case, nor any other reason why this controversy is inappropriate for resolution by federal judicial power. C. Indispensable Parties Defendants argue that the Court must dismiss this action because of the absence of three indispensable parties to the suit. The allegedly indispensable parties are the three Creek "tribal towns" which have chosen to organize under the provisions of the Oklahoma Indian Welfare Act of 1936, 25 U.S.C. § 503, which provides in relevant part: 66 any recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interior may prescribe. The Secretary of the Interior may issue to any such organized group a charter of incorporation, which shall become operative when ratified by a majority vote of the adult members of the organization voting. Such charter may convey to the incorporated group, in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right to participate in the revolving credit fund and to enjoy any other rights or privileges secured to an organized Indian tribe under sections 476 and 477 of this title. [7] In general indispensable parties are those persons who not only have a direct and tangible interest in the controversy, but also whose interest would necessarily be affected in such a way by the judgment that it would be inequitable to proceed without them. See generally Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158 (1854); 3A Moore's Federal Practice 19.07 et seq. Defendants maintain that these three towns would be "affected" in the following ways: (1) female members of the towns would not be permitted to vote for the Principal Chief; (2) membership in the towns as they now exist may well be lost if the plaintiffs prevail; and (3) the towns' relationship with the federal government would be altered if plaintiffs prevail. [8] These contentions are without merit. As to the first, as plaintiffs point out, the towns as corporate bodies are wholly unaffected by whatever provisions Creek law may make for voting.in Creek national elections. Should plaintiffs prevail here, requiring elections for a Second Chief or a National Council, the determination of those eligible to vote will be made pursuant to Creek law as modified by federal law; the three tribal towns as corporate bodies are simply not involved in that question. Nor would recognition of the 1867 Creek constitution, as modified by federal law, as the current basis of Creek national government affect membership in the tribal towns. The Creek Nation has always been a confederacy of tribal towns, and the 1867 Creek constitution contains no membership provision. Nothing in this Court's decree, should plaintiffs prevail, would have any effect on the traditional power of tribal towns to determine membership criteria. Finally, the Court perceives no way in which the relationship of these three tribal towns with the federal government will be disturbed by a recognition of the 1867 constitution, as modified, as the governing structure of the Creek Nation. If plaintiffs prevail, there will be no increase or decrease in the quantum or nature of sovereignty exercised by the Creek national government over the tribal towns; rather, some of the decisions (primarily fiscal) that are now made solely by the Principal Chief would then be made by the National Council. And whatever relationship these three 4. See, Opler, "The Creek Indian Towns of Oklahoma in 1937", Papers In Anthology, Vol. 13, No. 1, Spring 1972 (Exhibit 4 To Plaintiffs' Memorandum In Support of Summary Judgment Motion); See generally, Angie Debo, And Still The Waters Run (Gordian Press, Inc., 1966), p. 9; Angie Debo, The Road to Disap towns now have with the federal government by virtue of their incorporation under the 1936 Act is independent of their role under the 1867 constitution, and-being statutorily based-will not be affected by the decree in this case. The Court therefore holds that these tribal towns are not necessary or indispensable parties to this case.5 III. THE MERITS [9] The central issue to be resolved in this case is whether the tribal government of the Creek Nation has survived statutory dismemberment, and if so, whether the federal government is acting legally in recognizing the Principal Chief as the sole embodiment of that government. Phrased differently, the question is whether the feder al government may permit funds belonging to the Creek Nation to be expended solely on the authority of the Principal Chief, or whether Creek and federal law require the participation of the Creek National Council in the tribe's financial decision-making. After extensive investigation and careful consideration, aided by the able written and oral presentations of counsel, the Court has arrived at the inescapable conclusion that despite the general intentions of the Congress of the late nineteenth and early twentieth centuries to ultimately terminate the tribal government of the Creeks, and despite an elaborate statutory scheme implementing numerous intermediate steps to ward that end, the final dissolution of the Creek tribal government created by the Creek Constitution of 1867 was never statutorily accomplished, and indeed that government was instead explicitly perpetuated. More than is sometimes the case, the legal analysis necessary to unravel the statutory tangle present here is inextricably pearance (Univ. of Oklahoma Press, 1941), pp. 311 314. 5. It should be noted that while all three towns have been aware of this litigation since its inception, none has sought to intervene in the case. bound up with the social, political, and economic history of the times from which the legislation emerged. While the Court can offer only the briefest of synopses in this opinion, it must be emphasized that an accurate perception of the matters discussed herein is heavily dependent upon at least a perusal of the sources cited in this opinion." As a result of the increasingly substantial expansionist pressures from the white population, the federal government in the 1820's adopted a policy of forcible removal of the culturally advanced Creeks from the southeastern United States. This policy, expressed in the Indian Removal Act of 1830,8eventually resulted in the relocation of the Creek, Cherokee, Seminole, Choctaw and Chickasaw tribes to what is presently the state of Oklahoma. Among the rights granted to the Creeks by the Removal Treaty of March 24, 1832 was the right to perpetual self-government of their new lands." Because of their cultural and political sophistication relative to other Plains Indians, the Indians who had been removed from east of the Mississippi to the Oklahoma area became known as the Five Civilized Tribes. Prior to the Civil War, these tribes owned all of the present state of Oklahoma except the panhandle region.10 As a penalty for their alliances with the Confederacy during the Civil War, the tribes were compelled to cede to the federal government the western half of their lands. The remaining lands occupied by the Five Civilized Tribes continued to be known as the Indian Territory.11 6. The materials upon which the Court has chiefly relied with respect to the history of the periods involved in this case include the two books (cited above in note 4) by Angie Debo, And Still The Waters Run and The Road to Disappearance, which appear to be the pre-eminent works in the field and which were used by the Court pursuant to the agreement of the parties; University of California Publications in History, Vol. 6: "The Formation Of The State Of Oklahoma", by Roy Gittinger (University of California Press, 1917) [hereinafter, "Gittinger"]; the Congressional Record for the periods during which the Acts of 1898, 1901, and 1906 were being debated; and the exhibits furnished by counsel and filed as part of the record in this case. Two treaties were signed by the Creeks and the federal government during this period. In the treaty of August 7, 1856, 11 Stat. 699, Congress ratified once more a guarantee of Creek self-government. Article XV of that Treaty provided: "So far as may be compatible with the constitution of the United States, and the laws made in pursuance thereof, regulating trade and intercourse with the Indian tribes, the Creeks and Seminoles shall be secured in the unrestricted right of selfgovernment and full jurisdiction over persons and property, within their respective limits The treaty recognized the existence of a Creek Council, power of the Council to make laws, and authority of the Treasurer to receive and disburse funds. 11 Stat. 699, 700, 701, 702, 706. The 1866 Treaty, 14 Stat. 785, specifically reaffirmed previous treaty obligations (including those of the 1856 treaty) not inconsistent with the new treaty. Article X of the treaty provided: "The Creeks agree to such legislation as Congress and the President of the United States may deem necessary for the better administration of justice and the protection of the rights of persons and property within the Indian territory: Provided, however, said legislation shall not in any manner interfere with or annul their present tribal organization, rights, laws, privileges and customs." The treaty ceded to the United States the western half of the Indian domain, about 7. For a history of the Creeks in the colonial and revolutionary period, see Corkran, The Creek Frontier, University of Oklahoma Press (1967). 8. See also Choctaw Nation v. Oklahoma, 397 U.S. 620, 622-626, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970). 9. Debo, The Road To Disappearance, p. 99. 10. For a history of the tribes during the preCivil War period, see Foreman, The Five Civilized Tribes, University of Oklahoma Press (1934). 11. Id. 3,250,560 acres, for $975,168, and was in general highly disadvantageous to the Creeks.12 A few days after ratification of the treaty by the U. S. Senate, Congress granted franchises to two railroads to cross the Indian Territory. The more important one of these for present purposes granted the right of way across the Territory from Kansas to Texas with alternate sections in a twenty-mile strip "whenever the Indian title shall be extinguished by treaty or otherwise Provided, That said lands become a part of the public lands of the United States." 13 This grant was to play an important role in the later enactment of a provision crucial to the outcome of this suit. No further treaties were signed between the Creeks and the federal government. On October 12, 1867, the Creeks adopted a constitution and a code of laws for the "Muskogee Nation". The constitution was modeled on American federalism, with executive, legislative, and judicial branches. Legislative power was lodged in a National Council, a bi-cameral body in which each tribal town or "Talwa" was entitled to one delegate in the House of Kings and one in the House of Warriors, plus an additional delegate in the House of Warriors for every two hundred people. The members of the Council were elected for four year terms. Executive power of the Creek Nation was delegated to the Principal Chief, elected by universal adult male suffrage for a term of four years. The constitution also provided for a Second Chief, similarly elected, to succeed the Principal Chief upon his death, resignation, or impeachment. The Principal Chief was given the power and responsibility inter alia to reprieve and pardon criminals, execute and enforce the laws, make an annual report to the National Council concerning the state of the nation, 12. Id. 13. 14 Stat. 236, 237 239, 294. 14. Constitution and Laws of the Muskogee Nation as compiled and codified by A. P. McKellop, Muskogee, Indian Territory (1893). The and approve or veto laws enacted and measures taken by the Council. Article V of the constitution provides for a Treasurer of the Creek Nation, to be selected by the Council for a four year term, who is given the authority to receive funds and to "disburse the same as shall be provided by law." The Treasurer is to report at least yearly to the Council on the financial affairs of the nation. The constitution and laws provided that the National Council had initial responsibility for financial affairs, including making determinations as to the purposes for which Creek funds were to be spent. It also provided that the Principal Chief had the power of veto over such measures, a veto which could be overriden by a two-thirds vote of each House of the National Council. Once a spending measure received final approval, the Treasurer was to perform any necessary accounting and disbursing functions.14 The constitution also created a court system, whose jurisdiction was limited to Creek citizens. The nation was divided into six districts; each had a judge elected by the Council. The district court tried all criminal cases and minor civil cases, and trial by jury was provided. There was a Supreme Court of five justices chosen by the Council for four year terms, which tried all civil cases where the amount in controversy exceeded one hundred dollars.15 Generally speaking, the Creek Nation prospered during the final third of the nineteenth century. According to ancient Indian custom, all land was held by the tribe communally. Any citizen could cultivate as much land as he wanted, and when he ceased to work that land it reverted to the Nation.16 By 1890 however ranching had made serious inroads on the character of Creek country. Under various Creek laws, members of the tribe were able to obtain leases of land to be fenced in for grazing parties agree that this was in fact the distribution of authority and functions under the 1867 Constitution. 15. Debo, The Road To Disappearance, p. 181. 16. Debo, And Still The Waters Run. p. 14. purposes; by 1896 about one-third of Creek lands were so held.17 Most of the land under lease was then sub-leased to cattle interests (often from Texas) at a large profit. Also during this period the number of white persons living in the Indian Territory grew dramatically; numerous white towns appeared throughout the Territory. The white settlers were engaged in both farming and cattle raising, and despite the repeated pleas of the Creeks that the federal government remove the vast numbers of whites living illegally on Creek lands, the government failed to honor its obligations and the number of whites continued to grow. 118 One of the recurrent problems in the relations between the Creeks and the whites at this time was the general absence of an adequate court system to deal with criminal and civil disputes. The Creek courts had no jurisdiction over whites, and federal courts in the area were created very slowly. Crime flourished, and the payment of debts was unenforceable. Finally, in 1895, federal courts with civil and criminal jurisdiction over United States citizens and over tribal citizens in mixed cases involving U.S. citizens were created for three judicial districts comprising the Indian Territory. The laws of Arkansas were designated to govern actions in these federal courts, in the absence of a federal statute.19 The authority of the tribal courts was further and fatally undermined two years later when, in the Appropriations Act of June 7, 1897, 30 Stat. 62, Congress extended the reach of the federal (and the incorporated Arkansas) law to cover all persons, including Indians, in the Territory, effective January 1, 1898.20 The transition to federal law as the governing body of civil and 17. Id. at 15. 18. Debo, The Road To Disappearance, pp. 316318; See also Gittinger, op cit., pp. 98-188. 19. Debo, And Still The Waters Run, pp. 18-19, Debo, The Road To Disappearance, pp. 326329. 20. It should be noted that Congress did not intend here to divest the National Council's power to legislate; indeed, the act specifically criminal law was completed the following year by the Curtis Act, discussed below. which rendered tribal law unenforceable in the federal courts (§ 26) and, after allowing time for the completion of a portion of the cases then pending in the tribal courts, abolished the tribal courts and transferred the remaining cases to the federal courts (§ 28). As might be expected, the white settlers were not happy with their inability to exercise any political control over the Indian Territory in which they lived, with their inability to get title to communally held Indian lands, and in general with the restrictions on their ability to mold their environment to their liking. As their numbers grew, so too did their demand that the communal tenure and tribal governments be abolished in favor of both individual tenure in which the lands could pass freely into white hands and the political reorganization of the Territory into a state. Proposals for forced allotment of Indian lands were not new; since the end of the Civil War many bills seeking the abolition of tribal tenure had been introduced into Congress.22 By 1890, when the Oklahoma Territory adjacent to the Indian Territory was opened and a territorial government created, the clamor for allotment had reached a new peak. All the federal agencies responsible for Indian affairs were advising Congress of the need to change the current system.23 The leading congressional proponent of allotment and assimilation was Senator Henry L. Dawes of Massachusetts. At his instance, the Congress in 1887 passed the Dawes Severalty Act, 24 Stat. 388, providing for allotments on Indian reservations with the remaining unalloted lands on those reservations to be purchased by the govern provided that such legislation was to be transmitted to the President after its enactment for his approval or veto. 21. See, e. g., Choate v. Trapp. 224 U.S. 665, 667, 32 S.Ct. 565, 56 L. Ed. 941 (1912). 22. Debo, And Still The Waters Run. p. 20. 23. Id. at pp. 20 23. |