ment and thrown open to homesteading. The Five Civilized Tribes were exempted from the Act's provisions, but regarded it as handwriting on the wall.

The next blow fell on March 3, 1893, when Congress created a commission to negotiate with the Five Tribes for the extinction of their communal titles and the eventual creation of a state. 27 Stat. 612, 645. The Commission was headed by Henry Dawes, who by then had retired from the Senate, and it became known as the Dawes Commission. During the next several years the Commission attempted to negotiate the dissolution of the tribes, but had minimal success; as a result they continued to report to Congress and to the public of what they regarded as the pressing need for dissolution of the tribes and allotment of the land. By 1895, the tribes still refused to deal with the Dawes Commission. In that year Congress responded by authorizing a survey of all the Indian land, and in 1896 directed the Commission to make a complete roll of the members of each tribe.25 Bills were also introduced in Congress each year calling for the forcible abolition of tribal status. In the 1897 Appropriations Act (30 Stat. 62), Congress began to force the issue by subjecting all laws passed by the National Council to Presidential veto, with the significant exceptions of resolutions of adjournment and acts relating to negotiations with the Dawes Commission. As a result of all this pressure, and apparently preferring a negotiated settlement to an imposed one, the tribes began to deal with the Commission.26 By 1898 all five tribes had drawn up compacts with the Commission, and the Seminole Agreement I had even been ratified. It appeared likely, however, that the other agreements would not be ratified by the tribes' membership, and on June 28, 1898 Congress enacted the Curtis Act, which provided for forced allotments and the eventual termination of the

24. Id. at pp. 23-27; Debo, The Road To Disappearance, pp. 346-348.

25. Debo, And Still The Waters Run, p. 32; Debo, The Road To Disappearance, pp. 368369.

tribal tenure without the Indians' consent.27 The Act incorporated the provisions of the tentative agreements with each of the four remaining tribes, providing that if the agreement with any tribe was ratified by the tribe the provisions of the agreement would substitute for the more drastic allotment provisions of the Act. The Creeks did in fact reject their agreement, and the Act went into effect in their country.

[10] The Curtis Act, 30 Stat. 495, is the first of the four pieces of federal legislation critical to the resolution of this suit. In

general, the Act provided for compulsory

allotment of tribal lands to those determined by the Dawes Commission to be entitled to a place on the final rolls of the tribe (§ 11); ratified an 1895 decision of a federal territorial court that towns in the Territory had the right to establish municipal governments under sections of the Arkansas statutes placed in effect by the court act of 1890 28 (§ 14); made the civil law of the tribe unenforceable in the federal courts while abolishing the tribal courts (§§ 26, 28); and made various other provisions to facilitate the allotment process and assumption of control of the Territory by the increasingly numerous white settlers.

The feature of the Act most relevant to the question of continuing tribal governmental power is section 19, which provided:

"That no payment of any moneys on any account whatever shall hereafter be made by the United States to any of the tribal governments or to any officer thereof for disbursement, but payments of all sums to members of said tribes shall be made under direction of the Secretary of the Interior by an officer appointed, by him; and per capita payments shall be made direct to each individual in lawful money of the United States, and the same shall not be liable to the payment of any previously contracted obligation."

26. Debo, The Road To Disappearance, p. 369. 27. Debo, And Still The Waters Run, pp. 32 33.

28. Debo, The Road To Disappearance, p. 364.

While there is apparently no explanatory legislative history to assist in illuminating the ultimate purpose of this section, it is quite clear that Congress did not intend it as a limitation upon the constitutional power of the Creek government to allocate and spend tribal funds. It was, rather, a limited device intended to prevent any possible illegitimate diversion or embezzlement of the payments to be made to individual members of the tribes under the allotment programs and the general distribution of the value of tribal property rights.29 If the section had any impact at all on the authority of Creek government, it was only to eliminate the function of the Treasurer in the actual disbursement of such moneys. This construction is confirmed by the very few judicial interpretations that section 19 has received. In Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942), the Supreme Court was faced with the question of whether certain payments which had been made by the U. S. government violated the section. The Court reasoned:

"The text of that section and its legislative history demonstrate that it prohibits only payments to tribal officers which are 'for disbursement'-i. e., payments to be distributed by them to members of the tribe. If the first clause of Section 19 is construed as prohibiting all payments to the tribe or its officers, then the later clauses, providing only for payments to members and per capita payments, are inadequate to dispose of the problems raised by the first clause. For then no provision is made for the expenses of maintaining and conducting the tribal government, despite the fact that the Seminole tribal government was not only to continue after the Curtis Act but was in fact relieved of the necessity of secur

29. As a result of the incessant allegations by the Dawes Commission and other federal agencies of pervasive corruption and venality on the part of many tribal officials, there was a widespread perception in Congress that no tribal officials could be trusted to make these payments. For examples of the allegations and the perception, see Stephens v. Cherokee Nation, 174 U.S. 445, 450-460, 19 S.Ct. 722, 43 L.Ed.

30

ing Presidential approval of its legislation by an agreement ratified three days after the passage of that statute. See 30 Stat. 567, 569. Section 19, as originally introduced in the House, provided that payments of 'all expenses incurred in transacting their business' were to be made under the direction of the Secretary of the Interior.31 The deletion of this clause is persuasive that Congress intended that tribal officers should retain the right to disburse their funds for the expenses of their respective tribal governments. For these reasons we think Section 19 prohibits payment by the Government to the tribal treasurer only when such payments are to be distributed by him to members of the tribe. It has no application to money earmarked for educational or tribal purposes, and money intended for any purpose the tribe may designate. (emphasis added). 316 U.S. at 302-303, 62 S.Ct. at 1057.

The section received a similar construction in Choctaw Nation v. United States, 91 Ct.Cl. 320 (1940), cert. denied, 312 U.S. 695, 61 S.Ct. 730, 85 L.Ed. 1130 (1941), where the Court held that

section 19 of the Curtis Act related only to moneys intended for disbursement per capita or for the purpose of carrying out agreements or acts of Congress concerning matters over which jurisdiction was taken from the tribal government and vested in the Secretary of the Interior when the authority of such tribal government was restricted and, as so limited, continued by

subsequent acts of Congress

We think the words 'all sums' as used in the second clause of the section relate to the same 'moneys' mentioned in the first. The words 'payments

to members of said tribes' as used in the second

1041 (1899); Seminole Nation v. United States. 316 U.S. 286, 298-300, 304-305, 62 S.Ct. 1049, 86 L.Ed. 1480 (1942); Gittinger, op. cit., pp. 189-190; for a contrasting view, see Debo, And Still The Waters Run, pp. 23-25.

30. Footnote renumbered and omitted.

31. Footnote renumbered and omitted.

clause has the same meaning as the word 'disbursement' in the first clause. In other words, it appears that the restriction against payments intended for disbursement in the first clause is expressly carried over and rephrased in the second clause. For this reason we think the first clause was intended to change the method of 'making payments of all sums to members of said tribes;' and that the second clause was intended to supply a new method and directed that 'payments of all sums to members of said tribes shall be made under direction of the Secretary of the Interior by an officer appointed by him'" 91 Ct.Cl. at 392.3

32

[11] In summary, then, it is clear that with the passage of the Curtis Act, the territorial sovereignty of the Creek Nation had been seriously eroded. Territorial sovereignty, however, is not the issue in this case; the issue here is much narrower. The relevant question is whether or not the tribal government of the Creeks had been stripped of its power to deal with tribal affairs as such. While the tribe had clearly lost much of its authority in a territorial sense, or in the sense that a state has sovereignty, it is equally clear that the tribal government remained authoritative-in le

32. This holding must be taken as an overruling of the statement made earlier by the Court of Claims in Creek Nation v. United States, 78 Ct.Cl. 474, 489-490 (1933) that Congress intended in § 19 to invest the Secretary "with authority to disburse and expend the funds in such manner and for such purposes as would, in his judgment, satisfy the needs of the Creek Nation and promote the welfare and happiness of its citizens, subject to such limitations as Congress might subsequently impose", since the section cannot both grant the Secretary discretion to spend money as he judges best and at the same time relate solely to payments to tribal members. In any case, the earlier statement was conclusively overruled by the interpretation placed on § 19 by the Supreme Court in Seminole Nation v. United States, supra. The Court is unable to reconcile the passage quoted in the text immediately above (from 91 Ct.Cl. at 392) with the Court of Claims' earlier reliance in that case, id. at 376, on the language (quoted in this note) from the Creek Nation case, except to view that reliance as a reading of the Creek Nation language as being based upon the effect of the Curtis Act as

gal contemplation-as to matters of tribal organization and management, including control of tribal funds.

The provisions of the Curtis Act were so drastic from the Creek point of view that they soon consented to a new agreement to supersede the one contained in section 30 of that Act but rejected by the tribe. The new agreement was ratified by the tribe, and by the Congress in the Act of March 1, 1901, 31 Stat. 861. A number of the agreement's provisions bear on the issues before the Court. First, the agreement provided for the actual dissolution of the tribal government (§ 46) within about five years, by which time it was expected that the tribal affairs would have been wound up: "46. The tribal government of the Creek Nation shall not continue longer than March fourth, nineteen hundred and six, subject to such further legislation as Congress may deem proper."

The agreement recognized, however, that until such time as the Creek national government was in fact dissolved, it would continue to function under the 1867 Constitution, as modified by this act and prior agreements. Section 42 of the agreement recognized specifically the legislative and financial powers of the National Council, and continued the requirement that such legislation be subject to Presidential veto.33

a whole, rather than solely upon § 19. In any event, this Court is bound in the instant case by the holding of the Supreme Court, which is in fact also the conclusion supported by the available historical evidence.

33. "42. No act, ordinance, or resolution of the national council of the Creek Nation in any manner affecting the lands of the tribe, or of individuals after allotment, or the moneys or other property of the tribe, or of the citizens thereof, except appropriations for the necessary incidental and salaried expenses of the Creek government as herein limited, shall be of any validity until approved by the President of the United States. When any such act, ordinance, or resolution shall be passed by said council and approved by the principal chief, a true and correct copy thereof, duly certified, shall be immediately transmitted to the President, who shall, within thirty days after received by him, approve or disapprove the same. If disapproved, it shall be so indorsed and returned to the principal chief; if approved, the approval shall be indorsed thereon, and it shall

Moreover, it recognized that these functions were performed pursuant to the 1867 Creek Constitution in the requirement that the agreement be ratified by the National Council "as provided in the constitution of said nation." 31 Stat. 861.

[12, 13] The agreement and act did not place any further limits on the power of the National Council to make, and the principal chief to approve, decisions with respect to tribal finances. Like the Curtis Act, however, the agreement did provide for control of the Secretary of the Interior over disbursements and cash flow arising out of the implementation of the agreement. Section 31 provided that moneys payable to the tribe under the agreement were to be deposited to their credit in the U. S. Treasury, with an itemized monthly report going to the Principal Chief. Section 32 roughly corresponded to section 19 of the Curtis Act, and provided:

"32. All funds of the tribe, and all moneys accruing under the provisions of this agreement, when needed for the purposes of equalizing allotments or for any other purposes herein prescribed, shall be paid out under the direction of the Secretary of the Interior; and when required for per capita payments, if any, shall be paid out directly to each individual by a bonded officer of the United States, under direction of the Secretary of the Interior, without unnecessary delay."

By its terms, section 32 applied only to payments needed for equalization of allot

be published in at least two newspapers having a bona fide circulation in the Creek Nation."

34. Section 9 provided that after allotments had been made, any residual lands and any funds arising under the agreement should be used for equalizing the value of the allotments in the hands of the allottees. It also provided that other tribal funds should be used if funds provided for in the agreement proved insufficient. Among the funds made available under the agreement (§ 27) for equalization purposes were any treaty funds of the tribe, e. g. any funds remaining on deposit in the U.S. Treasury which belonged to the tribe by virtue of the Treaty of 1866. See, Debo, The Road To Disappearance, p. 174; cf. Choctaw Nation Of Indians v. United States, 318 U.S. 423, 63 S.Ct. 672, 87 L.Ed. 877 (1943); Quick Bear v. Leupp,

ments, per capita payments, or for other expenditures arising from the agreement itself.35 Finally, the act and agreement explicitly reasserted the continuing authority of the National Council in controlling the use of any tribal funds not expended under the agreement:

"33. No funds belonging to said tribe shall hereafter be used or paid out for any purposes by any officer of the United States without consent of the tribe, expressly given through its national council, except as herein provided."

The agreement also interacted with the Creek government's executive branch in two primary ways. First, the act's allotment scheme provided for commissions to carry out the appraisal and allotment of land, and the sale of town lots. The Principal Chief was to appoint certain members of the commissions or committees, and if he failed or refused to do so the Secretary was directed to make the appointments (§§ 2, 10). Secondly, the deeds conveying the individual allotments to members of the tribe were to be signed and delivered by the Principal Chief on forms provided by the Secretary. The conveyances were required to be approved by the Secretary before becoming final (§ 23). In sum, then, under the agreement the Creek government through its National Council retained its general authority for dealing with tribal affairs, and for determining the purposes for which tribal funds would be spent, ex

36

210 U.S. 50, 80, 28 S.Ct. 690, 52 L.Ed. 954 (1908).

35. E. g. § 40, for education of Creek citizens (the section also stipulated that such funds were to be appropriated by the National Council, and that the Secretary could only spend Creek funds for educational purposes on his own initiative if the Council refused to make the appropriation).

36. Section 44 explicitly reconfirms the binding effect of prior treaties, except to the extent that they are inconsistent with the agreement. This of course includes treaties guaranteeing the Creeks the maximum self-government consistent with Congressional objectives. Treaty of 1856, 11 Stat. 699.

cept to the extent those funds were needed for equalization of allotments or for other expenditures resulting from the act.37

During the next few years, the federal government continued to reorganize the Indian Territory in anticipation of imminent statehood. The enrollment and allotment process moved slowly ahead, and townsites were surveyed and towns created and organized. Throughout this period, the federal officials and agents dominated the lives of the Five Civilized Tribes, using their

control over tribal disbursements and resources to ensure that the administration of the Territory during that time conformed to the preferences, values, and priorities of the Interior Department.38 As March 4, 1906 the date set for the dissolution of the tribal governments-approached, however, much remained to be done. The Interior Department, which had taken over the allotment process upon the expiration of the Dawes Commission on June 10, 1905, was still in the process of disposing of much tribal property, and it was apparent that the affairs of the tribes could not be wound up by the date set for the final dissolution of the tribes. Indeed, there was still considerable resistance to the allotment program itself among the tribal members, particularly the fullbloods.39 The tribal rolls had not been completed, and there was considerable dispute over the question of whether allotments should carry restrictions on alienation. In order to finally address these and other issues, the Congress in early 1906 debated and enacted the "Five Tribes Act", 34 Stat. 137 (April 26, 1906); this act was the last to deal comprehensively with the affairs of the tribes.

37. The agreement was amended in 1902, 32 Stat. 500, 503, to require that the Secretary pay out per capita to all Creek citizens any tribal funds not needed for equalization of allotments, upon the final dissolution of the tribal government of the Creek Nation (§ 44).

38. See, e. g., Debo, And Still The Waters Run, pp. 65-69.

39. See, e. g., id. at 53-58.

40. While Pleasant Porter, Principal Chief of the Creeks at the time of the passage of the act,

Several sections of the Five Tribes Act are relevant to the scope of the surviving authority of the Creek national government and National Council. Section 2 continued the authority of the Secretary of the Interior to disburse Creek funds for the equalization of allotments, as provided by section 9 of the 1901 agreement. In order to ensure that the conveyance of allotments would not be interrupted by the refusal of any Principal Chief to perform his duties (required by section 23 of the 1901 agreement) of signing and delivering deeds, section 6 of the act provided:

"Sec. 6. That if the principal chief of the Creek tribe shall refuse or neglect to perform the duties devolving upon him, he may be removed from office by the President of the United States, or if any such executive become[s] permanently disabled, the office may be declared vacant by the President of the United States, who may fill any vacancy arising from removal, disability or death of the incumbent, by appointment of a citizen by blood of the tribe." "If any such executive shall fail, refuse or neglect, for thirty days after notice that any instrument is ready for his signature, to appear at a place to be designated by the Secretary of the Interior and execute the same, such instrument may be approved by the Secretary of the Interior without such execution, and when so approved and recorded shall convey legal title, and such approval shall be conclusive evidence that such executive or chief refused or neglected after notice to execute such instrument (emphasis added).

had cooperated with federal authorities in this regard, it was possible in view of the remaining opposition to the dissolution of the tribes that a chief might be elected who would refuse to sign the deeds, thus halting the conveyance of allotments. Porter's predecessor, Isparhecher, was one such possibility. See, Opler, "The Creek Indian Towns of Oklahoma In 1937", Papers In Anthropology, Vol. 13, No. 1, Spring 1972, pp. 46-49 (Exhibit 4 To Plaintiffs' Memorandum, note 6, supra).