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Carr, supra, at 215, n. 43, 82 S.Ct. 691. The the Secretary has acted lawfully in refusing Supreme Court explained that while the to permit the Creek National Council to status of an Indian tribe qua Indians is participate in the determination of the uses usually considered a matter for political to which tribal funds will he put and other departments, even that determination tribal matters. In sum, the Court perceives might be left to the Court if Congress acts no relevance of the "intra-tribal dispute" arbitrarily. For the courts "will not stand doctrine to the circumstances of this case, impotent before an obvious instance of a
nor any other reason why this controversy manifestly unauthorized exercise of power". is inappropriate for resolution by federal Id. at 217, 82 S.Ct. at 710. Therefore, while judicial power. the question of what constitutes an Indian tribe is not ordinarily a matter for determi
C. Indispensable Parties nation by the courts, the courts have always
Defendants argue that the Court must resolved questions of legislative intent even
dismiss this action because of the absence of when the questions deal with Indians. See, Joint Tribal Council of Passamaquoddy allegedly indispensable parties are the three
three indispensable parties to the suit. The Tribe v. Morton, 388 F.Supp. 649, at 664
Creek "tribal towns" which have chosen to (D.Maine, 1975), aff'd, 528 F.2d 370 (C.A.1, organize under the provisions of the Okla1975).
homa Indian Welfare Act of 1936, 25 U.S.C. B. Intra-Tribal Dispute
§ 503, which provides in relevant part:
any recognized tribe or band  Defendants also maintain that the
of Indians residing in Oklahoma shall Court lacks “jurisdiction" over this case be
have the right to organize for its common cause it constitutes what defendants char
welfare and to adopt a constitution and acterize as an “intra-tribal dispute”. De
bylaws, under such rules and regulations fendants rely primarily on this Tenth Cir
as the Secretary of the Interior may precuit doctrine, established in Martinez v.
scribe. The Secretary of the Interior Southern Ute Tribe of Southern Ute Reser
may issue to any such organized group a vation, 249 F.2d 915 (1957); Motah v. Unit
charter of incorporation, which shall beed States, 402 F.2d 1 (1968), and Prairie
come operative when ratified by a majorBand of Pottawatomie Tribe of Indians v.
ity vote of the adult members of the Udall, 355 F.2d 364 (1966), in arguing that
Such charthe instant dispute is essentially a factional split within the tribe and should therefore
ter may convey to the incorporated be dismissed. While factional rivalries do
group, in addition to any powers which appear to have played a significant part in
may properly be vested in a body corpo
rate under the laws of the State of Oklamotivating plaintiffs to file the suit, the only relevant question for the Court, as
homa, the right to participate in the reindeed the above cases recognize, is whether
volving credit fund and to enjoy any oththe issues raised by plaintiffs are internal
er rights or privileges secured to an ortribal issues or whether they arise under
ganized Indian tribe under sections 476 the constitution laws of the United
and 477 of this title. States. In each of those cases the courts  In general indispensable parties are determined that the controversy was one those persons who not only have a direct internal to the tribe and over which the and tangible interest in the controversy, but tribal governing body had exclusive author- also whose interest would necessarily be ity. In sharp contrast, this case questions affected in such a way by the judgment not the propriety of tribal actions, but the that it would be inequitable to proceed legality of actions of federal officials pursu
without them. See generally Shicles 1. ant to federal statutes. The issue is not Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158 who is entitled to membership in the tribe (1854); 3A Moore's Federal Practice 19.07 or to vote in tribal elections, but whether
Defendants maintain that these case.5
three towns would be "affected" in the towns now have with the federal governfollowing ways: (1) female members of the ment by virtue of their incorporation under towns would not be permitted to vote for the 1936 Act is independent of their role the Principal Chief; (2) membership in the under the 1867 constitution, and—being towns as they now exist may well be lost if statutorily based—will not be affected by the plaintiffs prevail; and (3) the towns' the decree in this case. The Court thererelationship with the federal government fore holds that these tribal towns are not would be altered if plaintiffs prevail. necessary or indispensable parties to this
 These contentions are without merit. As to the first, as plaintiffs point out, the towns as corporate bodies are wholly unaf- III. THE MERITS fected by whatever provisions Creek law
 The central issue to be resolved in may make for voting.in Creek national elec
this case is whether the tribal government tions. Should plaintiffs prevail here, re
of the Creek Nation has survived statutory quiring elections for a Second Chief or a
dismemberment, and if so, whether the fedNational Council, the determination of those eligible to vote will be made pursuant
eral government is acting legally in recogto Creek law as modified by federal law; nizing the Principal Chief as the sole emthe three tribal towns as corporate bodies
bodiment of that government. Phrased difare simply not involved in that question. ferently, the question is whether the federNor would recognition of the 1867 Creek
al government may permit funds belonging constitution, as modified by federal law, as
to the Creek Nation to be expended solely the current basis of Creek national govern
on the authority of the Principal Chief, or ment affect membership in the tribal
whether Creek and federal law require the towns. The Creek Nation has always been
participation of the Creek National Council a confederacy of tribal towns, and the 1867
in the tribe's financial decision-making. Creek constitution contains no membership
After extensive investigation and careful provision. Nothing in this Court's decree,
consideration, aided by the able written and should plaintiffs prevail, would have any
oral presentations of counsel, the Court has
arrived at the inescapable conclusion that effect on the traditional power of tribal towns to determine membership criteria.* despite the general intentions of the ConFinally, the Court perceives no way in
gress of the late nineteenth and «arly twenwhich the relationship of these three tribal
tieth centuries to ultimately terminate the towns with the federal government will be
tribal government of the Creeks, and dedisturbed by a recognition of the 1867 con
spite an elaborate statutory scheme implestitution, as modified, as the governing menting numerous intermediate steps tostructure of the Creek Nation. If plaintiffs
ward that end, the final dissolution of the prevail, there will be no increase or de
Creek tribal government created by the crease in the quantum or nature of sover
Creek Constitution of 1867 was never statu
that eignty exercised by the Creek national
torily accomplished, and indeed government over the tribal towns; rather,
government was instead explicitly perpetu
ated. some of the decisions (primarily fiscal) that are now made solely by the Principal Chief More than is sometimes the case, the lewould then be made by the National Coun- gal analysis necessary to unravel the statucil. And whatever relationship these three tory tangle present here is inextricably
pearance (Univ. of Oklahoma Press, 1941), pp. 311 314.
4. See, Opler, “The Creek Indian Towns of Okla
homa in 1937", Papers In Anthology, Vol. 13, No. 1, Spring 1972 (Exhibit 4 To Plaintiffs' Memorandum In Support of Summary Judg. ment Motion); See generally, Angie Debo, And Still The Waters Run (Gordian Press, Inc., 1966), p. 9; Angie Debo, The Road to Disap
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 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 1830,8. eventually 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 the Indian Territory.11
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 pre
Civil War period, see Foreman, The Five Civi. lized Tribes, University of Oklahoma Press (1934).
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.
3,250,560 acres, for $975,168, and was in and approve or veto laws enacted and measgeneral highly disadvantageous to the ures taken by the Council. Creeks. A few days after ratification of Article V of the constitution provides for the treaty by the U. S. Senate, Congress a Treasurer of the Creek Nation, to be granted franchises to two railroads to cross selected by the Council for a four year the Indian Territory. The more important term, who is given the authority to receive one of these for present purposes granted funds and to “disburse the same as shall be the right of way across the Territory from provided by law.” The Treasurer is to reKansas to Texas with alternate sections in a port at least yearly to the Council on the twenty-mile strip “whenever the Indian ti- financial affairs of the nation. The constitle shall be extinguished by treaty or other- tution and laws provided that the National wise
Provided, That said lands Council had initial responsibility for finanbecome a part of the public lands of the cial affairs, including making determinaUnited States."
.” 13 This grant was to play tions as to the purposes for which Creek an important role in the later enactment of funds were to be spent. It also provided a provision crucial to the outcome of this that the Principal Chief had the power of suit.
veto over such measures, a veto which could
be overriden by a two-thirds vote of each No further treaties were signed between
House of the National Council. Once a the Creeks and the federal government. On October 12, 1867, the Creeks adopted a
spending measure received final approval,
the Treasurer was to perform any necessary constitution and a code of laws for the "Muskogee Nation". The constitution was
ccounting and disbursing functions.14 modeled on American federalism, with ex
The constitution also created a court sysecutive, legislative, and judicial branches.
tem, whose jurisdiction was limited to
Creek citizens. The nation was divided into Legislative power was lodged in a National Council, a bi-cameral body in which each
six districts; each had a judge elected by
the Council. tribal town or "Talwa" was entitled to one
The district court tried all delegate in the House of Kings and one in
criminal cases and minor civil cases, and the House of Warriors, plus an additional
trial by jury was provided. There was a
Supreme Court of five justices chosen by delegate in the House of Warriors for every
the Council for four year terms, which tried two hundred people. The members of the
all civil cases where the amount in controCouncil were elected for four year terms.
versy exceeded one hundred dollars.15 Executive power of the Creek Nation was
Generally speaking, the Creek Nation delegated to the Principal Chief, elected by
prospered during the final third of the nineuniversal adult male suffrage for a term of
teenth century. According to ancient Indifour years. The constitution also provided
an custom, all land was held by the tribe for a Second Chief, similarly elected, to
communally. Any citizen could cultivate as succeed the Principal Chief upon his death, much land as he wanted, and when he resignation, or impeachment. The Princi- ceased to work that land it reverted to the pal Chief was given the power and responsi- Nation. 16 By 1890 however ranching had bility inter alia to reprieve and pardon made serious inroads on the character of criminals, execute and enforce the laws, Creek country. Under various Creek laws, make an annual report to the National members of the tribe were able to obtain Council concerning the state of the nation, leases of land to be fenced in for grazing purposes; by 1896 about one-third of Creek criminal law was completed the following lands were so held.7 Most of the land year by the Curtis Act, discussed below, under lease was then sub-leased to cattle which rendered tribal law unenforceable in interests (often from Texas) at a large prof- the federal courts ($ 26) and, after allowing it.
parties agree that this was in fact the distribution of authority and functions under the 1867 Constitution.
14 Stat. 236, 237 239, 294.
15. Debo, The Road To Disappearance. p. 181.
14. Constitution and Laws of the Muskogee Na
tion as compiled and codified by A. P. McKellop, Muskogee, Indian Territory (1893). The
16. Debo, And Still The Waters Run. p. 14.
time for the completion of a portion of the Also during this period the number of
cases then pending in the tribal courts, white persons living in the Indian Territory abolished the tribal courts and transferred grew dramatically; numerous white towns
the remaining cases to the federal courts appeared throughout the Territory. The ($ 28). white settlers were engaged in both farm- As might be expected, the white settlers ing and cattle raising, and despite the re- were not happy with their inability to exerpeated pleas of the Creeks that the federal cise any political control over the Indian government remove the vast numbers of Territory in which they lived, with their whites living illegally on Creek lands, the inability to get title to communally held government failed to honor its obligations Indian lands, 21 and in general with the reand the number of whites continued to strictions on their ability to mold their envigrow.18 One of the recurrent problems in ronment to their liking. As their numbers the relations between the Creeks and the
grew, so too did their demand that the whites at this time was the general absence communal tenure and tribal governments of an adequate court system to deal with be abolished in favor of both individual criminal and civil disputes. The Creek tenure in which the lands could pass freely courts had no jurisdiction over whites, and into white hands and the political reorganifederal courts in the area were created very zation of the Territory into a state. Proslowly. Crime flourished, and the payment posals for forced allotment of Indian lands of debts was unenforceable. Finally, in were not new; since the end of the Civil 1895, federal courts with civil and criminal War many bills seeking the abolition of jurisdiction over United States citizens and tribal tenure had been introduced into Conover tribal citizens in mixed cases involving gress.22 By 1890, when the Oklahoma TerU.S. citizens were created for three judicial ritory adjacent to the Indian Territory was districts comprising the Indian Territory. opened and a territorial government creatThe laws of Arkansas were designated to ed, the clamor for allotment had reached a govern actions in these federal courts, in new peak. All the federal agencies responthe absence of a federal statute. 19 The sible for Indian affairs were advising Conauthority of the tribal courts was further gress of the need to change the current and fatally undermined two years later system.23 The leading congressional propowhen, in the Appropriations Act of June 7, nent of allotment and assimilation was Sen1897, 30 Stat. 62, Congress extended the ator Henry L. Dawes of Massachusetts. At reach of the federal (and the incorporated his instance, the Congress in 1887 passed Arkansas) law to cover all persons, includ- the Dawes Severalty Act, 24 Stat. 388, proing Indians, in the Territory, effective Jan- viding for allotments on Indian reservations uary 1, 1898.20 The transition to federal with the remaining unalloted lands on those law as the governing body of civil and reservations to be purchased by the govern
17. Id. at 15.
provided that such legislation was to be transmitted to the President after its enactment for his approval or veto.
18. Debo, The Road To Disappearance, pp. 316
318; 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.
21. See, e. g., Choate 1 Trapp. 224 U.S. 665,
667, 32 S.Ct. 565, 56 L Ed. 941 (1912).
22. Debo, And Still The Waters Run. p. 20.
20. It should be noted that Congress did not
intend here to divest the National Council's power to legislate; indeed, the act specifically
Id. at pp. 20 23.