of the right to continue electing their principal chiefs under ordinary circumstances as long as the tribal governments continued to exist; apart from the specified circumstances, the section provided no warrant or authority for presidential appointment of a principal chief or for entirely supplanting the Creek constitutional government and replacing it with a principal chief serving at the pleasure of the President; rather, the combined effect of sections 6 and 28 was to continue indefinitely the Creek constitutional government and its underlying electoral processes. Act April 26, 1906, §§ 6, 28, 34 Stat. 137.

Section of Five Tribes Act continuing the tribal existence and tribal governments of five tribes in full force and effect for all purposes authorized by law did not merely continue in office the incumbent tribal officers while abolishing the Creek constitutional procedures for regularly filling those positions but was intended to permit the Creek government to continue to operate under the 1867 constitution as modified by the various statutory limitations and the Creek government remained competent to deal with tribal affairs relating to the distribution of the tribal estates and with other matters not relating to the allotment

Presidential appointment of the second chief of the Creek Nation to be principal chief upon the death of the prior holder of office, when the second chief would have succeeded to that office automatically under the Creek Constitution, constituted a preemption of the constitutional processes of the tribe by the Department of Interior in a manner that was of questionable legality, given the congressional intent, in the "Five Tribes Act," that the appointment power would be used at the discretion of the President when necessary to allow allotment deeds to be signed. Act April 26, 1906, § 6, 34 Stat. 137. 19. Indians

2

With respect to the tribal government of the Creek Nation, the Creek convention, as it developed in decades following 1909, can effectively be regarded as the successor in function to the Creek national council. 21. Indians 2

Limitation on the authority of the Secretary of Interior to make disbursements from tribal funds, except for certain limited purposes, without congressional authorization was enacted for the benefit of the tribes and was not intended to constitute a restriction on the tribes themselves, and did not eliminate legal authority for meetings of the Creek national council. Act Aug. 24, 1912. 37 Stat. 518, 531. 22. Indians

2

The Oklahoma Indian Welfare Act did not have any effect on the status of the Creek national government under existing law. 25 U.S.C.A. § 503.

93-643 - 77 - 6

23. Indians 2

Where influence and control of the bureau of Indian affairs over the Creek national government between 1920 and 1970 was exercised wholly without the benefit of any specific congressional mandate, it provided no support for position that principal chief could disburse tribal funds and enter into contracts on behalf of the Creek Nation without participation by a Creek legislative institution.

24. Statutes 223.5(3)

In order to ratify an originally erroneous administrative interpretation of earlier legislation, Congress must give express consideration or make specific reference to the question at issue in the later legislation. 25. Statutes 158

Implied repeal is not a favored tenet of construction, and court must try to give effect to earlier legislation which has not been expressly repealed.

Although Congress had power to terminate the authority of the Creek national council to initially determine the tribal purposes for which Creek funds would be spent and to invest the principal chief with that authority, since such an abolition of the Creek constitutional government would have been tantamount to a total repudiation of the tribe's right guaranteed by treaties to determine its own form of organization and government, such congressional action would have to be clear and explicit and where the statutes and their legislative histories failed to clearly establish such intent, court could not supply one by judicial interpretation. Treaty with the Creeks and Seminoles, art. 15, 11 Stat. 699; Treaty with the Creek Indians, art. 10, 14 Stat. 785; Act April 26, 1906, § 28, 34 Stat. 137; Act Oct. 22, 1970, 84 Stat. 1091. 31. Indians

2

Nothing in the Acts of 1898, 1901 and 1906 or any other legislation abolished the Creek national council or stripped it of its power to determine uses to which tribal funds are to be put, except with respect to certain mandatory expenditures and uses connected with the allotments and equalization program and with the abolition of the tribe's territorial jurisdiction, and the elected legislature created by the 1867 Creek constitution remains the authoritative body for essential allocation of tribal funds. Act June 28, 1898, 30 Stat. 495; Act March 1,

Inasmuch as under the 1867 constitution and the relevant federal law the expenditures of Creek tribal funds which federal defendants permitted to be made under authority of the principal chief could not be legally made with the assent of the Creek national legislature, but no such legislature was in existence, in view of broad concensus on the general framework of institutional arrangements to be implemented by proposed constitution providing for the creation of a national legislature, and considering the fundamental nature of certain proposed changes, the members of the tribe should be consulted by means of referendum on the basic questions posed by the draft constitution and court would order the creation of a commission to carry out an educational program designed to make vote on the questions a meaningful and informed one though ratification of the final docu

ment by the bureau of Indian affairs would still be necessary. 25 U.S.C.A. § 501 et seq.

Thomas E. Leubben, Jr., National Indian Youth Council, Albuquerque, N. M., Robert G. Vaughn, Institute for the Development of Indian Law, Washington, D. C., for plaintiffs.

Rembert A. Gaddy, Dept. of Justice, Scott Keep, Dept. of Interior, Washington, D. C., for defendants.

OPINION AND ORDER BRYANT, District Judge.

I. INTRODUCTION

This matter is now before the Court on the parties' cross-motions for summary judgment. The parties have stipulated that no genuine issues of material fact exist. Plaintiffs in this action seek declaratory and injunctive relief against the policy and practice of the Interior Department in recognizing and dealing with defendant Cox, Principal Chief of the Creek Nation, as

the sole embodiment of the Creek tribal government, and in refusing to recognize, facilitate, or deal with a Creek National Council as a coordinate branch of the tribal government responsible for certain legislative and financial functions.

The Creek Nation is one of the Five Civilized Tribes of Oklahoma. Each of the four plaintiffs is a resident of Oklahoma, a citizen of the United States, and a Creek Indian who is a citizen of the Muskogee (Creek) Nation and of a Creek Tribal Town. Each of the plaintiffs is a duly qualified elector under the laws or customs of his or her respective tribal town and under the laws of the Creek Nation, as to the election of tribal town representatives to the Creek national legislature. Each of the male plaintiffs is also a duly qualified elector under the original laws and 1867 Constitution of the Creek nation as to the election of the Principal Chief and Second Chief of that Nation. In addition, named plaintiff Allen Harjo is an elected representative of Fish Pond Tribal Town. Harjo has also

ants also include the Secretary of Treasury and a subordinate official with responsibility for executing the federal laws pertaining to revenue-sharing funds payable to Indian tribes. Defendant Claude A. Cox is sued in his capacity as the officially recognized Principal Chief of the Creek Nation. Cox was twice elected as Principal Chief pursuant to regulations and procedures devised under the October 22, 1970 Act of Congress, 84 Stat. 1091.2

Primarily at issue is the legitimacy of Cox's authority to disburse tribal funds and enter into contracts on behalf of the Creek Nation without the approval of the Creek National Council. Specifically, the first cause of action alleges: (1) Article I of the 1867 constitution of the Creek Nation lodges the lawmaking power of that Nation in the Creek National Council; (2) The Constitution of the Creek Nation places the financial affairs of the Nation exclusively under the control of the Creek National Council; (3) Congress, between 1866 and 1906, on several occasions specifically recognized the Creek National Council as the ultimate repository of power within the Creek national government; (4) Under the terms of the Act of 1906, 34 Stat. 137, and the Treaties of 1856 and 1866 Congress imposed on defendants the duty to respect and follow the provisions of the constitution of

the Creek Nation; and (5) Federal defendants have approved the disbursement of tribal funds by defendant Cox on behalf of the Creek Nation and have paid federal funds to Cox contrary to the intent of Congress.3

Defendants argue that (1) This Court lacks jurisdiction over the action; (2) The action is a nonjusticiable controversy; (3) The Court should dismiss the action due to the absence of certain indispensable parties; (4) Various congressional acts have relieved the Creek Nation of sufficient authority that it has been rendered incompetent to handle the affairs of the tribe under the 1867 Constitution; (5) Congress was aware of the fact that the affairs of the Five Civilized Tribes (Creeks. Cherokees, Choctaws, Chickasaws, and Seminoles) were being administered by Frincipal Chiefs or Governors and therefore ratified this form of government when it enacted the Act of October 22, 1970, 84 Stat. 1091.

II. PRELIMINARY ISSUES

A. Jurisdiction and Justiciability

Defendants contend that the Court lacks jurisdiction over the subject matter of this action on the grounds that: (1) The question involved is political and not subject to the control of the judiciary; and (2) The issue involves an intratribal dispute which traditionally is not within the jurisdiction of the federal courts.

In making these arguments under the rubric of jurisdiction, defendants have failed to distinguish between judicial power (jurisdiction) and the appropriateness of the subject matter for judicial consideration

contrary to their statutory authority). Defendants' cross-motion was addressed to all five of plaintiffs' causes of action. The parties have since stipulated that the Court resolve only the first cause of action at this time. The second and third causes of action generally allege that if the actions of defendants are authorized by statutes, those statutes are unconstitutional. Because of its disposition of the first cause of action, the Court need not reach those claims. The fourth and fifth causes of action are hereby dismissed, pursuant to stipulation of the parties. Oral argument was heard on the motions on April 1, 1976.

(justiciability). The Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), explained that distinction:

"In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court's inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not arise under' the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III § 2), or is not a 'case or controversy' within the meaning of that section; or the cause is not one described by any jurisdictional statute." 369 U.S. at 198, 82 S.Ct. at 700.

[1] Plaintiffs contend that defendants are acting beyond and contrary to the authority prescribed by Congress through various statutes. Thus the question clearly arises under the laws of the United States. Since among the matters governed by these statutes is federal defendants' authority to dispense and defendant Cox's authority to spend over $10,000 in revenue sharing funds and over $2 million in Indian claims appropriated by Congress, the amount in controversy requirement of 28 U.S.C. § 1331 is also satisfied. There is clearly a jurisdictional predicate for this action therefore.

[2] With regard to the question of justiciability, defendants seem to misapprehend the nature of the nonjusticiable political question doctrine. The political question doctrine does not preclude the Court from resolving issues that may be otherwise properly raised, merely because the personal motivations of those raising the issues may be political in nature; the political question doctrine is rather basically a function of the separation of powers. The Supreme Court in Baker v. Carr, supra, articulated various indicia for recognizing when a case presents a political question best left to

a different branch of government for resolution. These indicia include:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." 369 U.S. at 217, 82 S.Ct. at 710.

[3-5] The issues in this case do not fall within any of these formulations. The plaintiffs contend that defendants are acting contrary to and beyond their statutory authority. There is certainly no textually demonstrable constitutional commitment of issues involving statutory interpretation to a coordinate branch of government. While Congress has the power to regulate commerce with Indian tribes and based on that authority delegates certain duties to executive departments, it remains to the Courts to interpret such statutes. Similarly, there is no lack of judicially discoverable and manageable standards here; the Court employs ordinary principles of statutory construction in resolving the issue of interpretation, while fashioning relief within its equitable powers. Nor does the interpretation of statutes require an initial policy determination for nonjudicial discretion, demonstrate a lack of respect for a coordinate branch of government, ignore any unusual need for adherence to a political decision, or present any potential for multifarious pronouncements. While review of statutes spanning over 100 years may be arduous, it is clearly, even uniquely, a judicial task. Indeed, in Baker v. Carr, supra, the Supreme Court stated that application of the political question doctrine to Indian questions is "limited and precise". Baker v.