Full opinion text
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 twice run unsuccessfully for Principal Chief of the Creek Nation. Defendants include the Secretary of the Interior and subordinate employees of the federal government with general responsibility for executing laws passed or approved by Congress relating to Indians. Defendants 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. 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. 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 Seminóles) were being administered by Principal 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 (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. 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. 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. 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. 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 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: “ . . . 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. * * * ” 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. 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 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. III. THE MERITS 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 federal 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 toward 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 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, 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. 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. 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 Seminóles shall be secured in the unrestricted right of self-government 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 3,250,560 acres, for $975,168, and was in general highly disadvantageous to the Creeks. 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.” 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, 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. 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. 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. 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 purposes; by 1896 about one-third of Creek lands were so held. 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. 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. 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. The transition to federal law as the governing body of civil and 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. 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. 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 government 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 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. By 1898 all five tribes had drawn up compacts with the Commission, and the Seminole Agreement 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 tribal tenure without the Indians’ consent. 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. 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 (§ 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.” 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. 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 securing 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. 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 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. 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 legal 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. 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. 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 allotments, per capita payments, or for other expenditures arising from the agreement itself. 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, except to the extent those funds were needed for equalization of allotments or for other expenditures resulting from the act. 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. 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. 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. 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 Interi- or 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). It is important to note that this section empowers the President to fill the office of principal chief in only three limited circumstances: the removal, disability, or death of the incumbent. It is quite clear from the circumstances in which the provision was enacted and from its legislative history that it was intended by the Congress simply to ensure that the office whose occupant was charged by statute with signing the allotment deeds would at all times be filled, and not to deprive the tribes of the right to continue electing their Principal Chiefs — under ordinary circumstances— as long as their tribal governments continued to exist. Apart from the specified occurrences, the section provided no warrant or authority for Presidential appointment of a Principal Chief. The act also dealt in limited ways with the authority of the Creek Nation over its financial affairs. Section 10 in effect ratified the Secretary’s earlier seizure of control over the tribal schools, directing that he run those schools until such time as either a Territorial or State school system was established which adequately provided for the education of Indian children. The section also limited the amount of tribal funds the Secretary could spend on the schools in any one year to that amount spent for the school year ending June 30, 1905. Section 11 of the act provided as follows: “Sec. 11. That all revenues of whatever character accruing to the tribes, whether before or after dissolution of the tribal governments, shall, after the approval hereof,'be collected by an officer appointed by the Secretary of the Interi- or under rules and regulations to be prescribed by him; and he shall cause to be paid all lawful claims against said tribes which may have been contracted after July first, [1902], or for which warrants have been regularly issued, such payments to be made from any funds in the United States Treasury belonging to said tribes . . . Provided, That all taxes accruing under tribal laws or regulation of the Secretary of the Interior shall be abolished from and after [Dec. 31, 1905], but this provision shall not prevent the collection after that date nor after dissolution of the tribal government of all such taxes due up to and including [Dec. 31, 1905] . . . * * * >> The legislative history of this section indicates that it was intended to establish a mechanism to ensure the collection of revenues accruing to the tribes after the contemplated dissolution of the tribal governments, when there would be no tribal officer authorized to do so. The section had no effect on the tribes’ authority to manage their financial affairs as long as the tribes were in existence; indeed, it implicitly confirmed that power by authorizing payment of tribal contracts and warrants. Also noteworthy is the recognition that until that time the tribes had retained the power of taxation; this provision, enacted at the urging of the white settlers in the Territory, does in effect modify the Creek constitution by abolishing the functions of the National Treasurer. That section 11 intended to make no further modification in the Creek government during the remaining period of its existence (originally expected by the bill’s drafters to be relatively brief) is demonstrated by the second paragraph of the section, which requires any tribal officer or member in possession of tribal property to turn such property over to the Secretary upon dissolution of the tribal government. Two other sections of the act, both in contemplation of the period after the dissolution of the tribal governments, affected Creek financial affairs. In section 24, Congress provided that any expenses incident to the establishment of public highways in the territory of any tribe be paid from tribal funds by the Secretary. Secondly, the act directed, in section 17, that after the financial affairs of any tribe had been wound up by the sale of any unallotted land or other property and the payment of any outstanding obligations, the Secretary should pay any remaining tribal funds to the members of the tribe on a per capita basis. This provision obviously presumed a prior dissolution of the tribe, since the tribal financial affairs could not be finally wound up until the tribe ceased to exist and function as such. In addition, the provision applied only to tribal assets involved in the allotment and division process; any assets accruing to the tribe at a later time would not appear to be within the ambit of the section. This construction is consistent with the fact that at the time the bill was drafted it was expected that the tribes would cease to exist as of March 4, 1906. As Congress debated H.R. 5976— which was to become the Five Tribes Act— in early 1906, it became apparent that it would be unable to complete legislative action on the bill before March 4th, the date set for tribal dissolution. There was great concern over the ramifications of tribal dissolution in the then-current state of affairs, particularly in regard to three problems. First, it was feared that if the tribal governments were dissolved without passage of the act, the tribal schools would cease to function. Secondly, in the absence of a Principal Chief the allotment process would be interrupted. Finally, it was feared that the dissolution of the tribes would cause the contingent grant of land made by the Congress immediately after the Treaty of 1866 to several railroad companies to vest in those companies by causing unallotted lands to become “public lands of the United States” upon the lapsing of tribal tenure. As a result, on March 2,1906 Congress passed a joint resolution, 34 Stat. 822, extending the life of the tribes until the allotment and property distribution process had been completed, or until otherwise provided by Congress. Shortly thereafter, on April 26, the act itself became law, and it contained a provision which superseded the joint resolution. Section 28, added to the act (over the strenuous objections of the Secretary of the Interior) to avoid the problems posed by the dissolution of the tribes at that time, provided: “Sec. 28. That the tribal existence and present tribal governments of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes or nations are hereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law, but the tribal council or legislature in any of said tribes or nations shall not be in session for a longer period than thirty days in any one year: Provided, That no act, ordinance, or resolution (except resolutions of adjournment) of the tribal council or legislature of any of said tribes or nations shall be of any validity until approved by the President of the United States: Provided further, That no contract involving the payment or expenditure of any money or affecting any property belonging to any of said tribes or nations made by them or any of them or by any officer thereof, shall be of any validity until approved by the President of the United States.” The legal effect of this provision was unmistakable: Congress had declined to terminate the tribal existence or dissolve the tribal governments, despite all of its earlier intentions to do so, and despite the fact that its failure to do so rendered some of the other provisions of the Five Tribes Act ineffective. While it was anticipated that the tribes would eventually be dissolved, the net effect of the act was to expressly preserve and ratify the then-existing authority of the tribal governments, while reiterating the necessity for Presidential approval of tribal legislation imposed earlier. That section 28 had the effect of continuing indefinitely the existence of the tribe has been confirmed by each court that has examined the question. The Supreme Court has explicitly held that the Creek Nation still exists, Board of County Commissioners v. Seber, 318 U.S. 705, 63 S.Ct. 920, 87 L.Ed. 1094 (1943), reh. den., 319 U.S. 782, 63 S.Ct. 1162, 87 L.Ed. 1726 (1943), and has described the effect of the act in these terms: “Congress at one time planned to terminate the existence of the Five Civilized Tribes in 1906, and the Act of 1906 was introduced into the House of Representatives with the object' of preserving Indian interests after tribal dissolution. In the course of discussion, Congress determined to continue the tribal existence, and the Act was amended to that effect before passage.” Creek Nation v. United States, 318 U.S. 629, 638, 63 S.Ct. 784, 789, 87 L.Ed. 1046 (1943). Accord, Creek Nation v. United States, 78 Ct.Cl. 474, 493 (1933) (“While the ultimate dissolution of the tribal government was contemplated ... its existence was continued, and thus the tribal government continued to exist and to function within the limits of its restricted jurisdiction and power during the period [through 1924].”); Groundhog v. Keeier, 442 F.2d 674 (C.A. 10, 1971). Moreover, the Interior Department’s later interpretations of this section as merely continuing in office the incumbent tribal officers while abolishing the Creek constitutional procedures for regularly filling those positions (and by logical implication therefore terminating the government itself when a sufficient number of those incumbents died or otherwise left office) is utterly untenable; such an interpretation conflicts with the legislative history and plain meaning of the section, see notes 41 and 42, supra. First, the March 2, 1906 joint resolution which initially extended the life of the tribal governments set as a termination date the completion of the distribution of the tribal estates. It would be illogical to assume (without any evidence whatever) that a provision which set a specific date for the total abolition of the tribal governments also sub silentio totally restructured those governments until that time; such a result would have been superfluous and would have served no discernible congressional purpose. And when even this termination date was removed from the extension section and replaced in section 28 of the final bill with provisions specifically allowing the functioning of that government, with certain specific limitations, the only reasonable conclusion to be reached is that — the final settlement of the tribal estates no longer appearing at all imminent— Congress concluded that the tribal governments should be continued into the indefinite future, with their functions limited by the proviso clauses of section 28. Secondly, the plain meaning of the words themselves point directly to that conclusion. It was the “present tribal governments” which were continued, not “incumbents” or “officers” or the like. This Court is also unaware of any instance in which the Congress has used the term “government” to mean particular individuals rather than the institution itself; given the connotations which have come to be associated with the term “government” in our political lexicon (“a government of laws, not of men”), a contrary meaning can hardly be imputed to the Congress. Nor is this conclusion undermined by the use of the adjective “present”: that term is used to contrast the effect of § 28 with the situation which would have been occasioned by the failure to repeal the termination date. Moreover, accepted principles of statutory construction lead to the same conclusion. When Congress, enacting a provision specifically dealing with the continuing powers of an ongoing governing institution, reverses a determination to dissolve that institution but places express and particularized limitations on its activities, it cannot be taken to have intended to accomplish the drastically different result represented by viewing the provision as one continuing in office the incumbent officeholders and precluding their replacement through the normal processes of the institution, when those processes are wholly unmentioned in the legislation, directly or indirectly. For all these reasons, the Court can only conclude that the intent and effect of § 28 was to permit the Creek government to continue to operate under the 1867 constitution as modified by the various statutory limitations. In particular, the 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 process. During the period immediately following the approval of the Five Tribes Act, the Interior Department behaved as though it had been successful in its efforts to prevent the enactment of § 28 and the Congressional changes made in its draft of § 6. The available evidence clearly reveals a pattern of action on the part of the Department and its Bureau Of Indian Affairs designed to prevent any tribal resistance to the Department’s methods of administering those Indian affairs delegated to it by Congress. This attitude, which can only be characterized as bureaucratic imperialism, manifested itself in deliberate attempts to frustrate, debilitate, and generally prevent from functioning the tribal governments expressly preserved by § 28 of the Act. In August 1907 the Creek National Council met for its usual session and passed a resolution calling the regular quadrennial election for Principal Chief and Second Chief. The attorney for the Creek Nation, who had been approved by and had heretofore worked closely with the Department, suggested that the Department advise the Principal Chief (Pleasant Porter, a leader of the faction resigned to cooperation with the Department in its effort to terminate the existence of the tribes) that what Congress really intended in the Five Tribes Act was to continue the present incumbents in office. Mott, the attorney, who was of course aware of the substantial body of sentiment in the tribe opposed to capitulation to the policy of tribal extinction, warned Commissioner of Indian Affairs Francis Leupp that if elections were held the result would be “bickering, confusion, and dissatisfaction”, which would be “a source of annoyance and inconvenience to the Government”. The Commissioner passed this advice on to the Secretary. Although the Commissioner apparently realized that the Creek National Council’s resolution calling on the Principal Chief to call the election did not require approval of the department (“the resolution does not appear to require executive action”), he nevertheless suggests that the Chief be told that the Department “deems it inadvisable to take any action in the matter”. The question was apparently referred by the Secretary to Assistant Attorney General George Woodruff, who naturally interpreted the Act as not restricting the tribe’s power to hold its usual elections. This opinion was expressed in a letter to Chief Porter. In response to this advice, one of Assistant Attorney General Woodruff’s subordinates, an attorney named Pollock who had been detailed to serve in the Department’s Indian Territory field office at Muskogee, immediately wrote a letter back to Woodruff. In this letter he informed Woodruff that he himself had prepared an opinion holding that § 28 had continued “the form of tribal government and not the personnel” in response to inquiries from the other four tribes. He relates that the Secretary had approved the opinion, but that after the intervention of Senator Curtis that approval was withdrawn. The other four tribes were therefore advised that the Department had refused to express an opinion. Pollock goes on to suggest that Woodruff had been unaware of the posture taken earlier by the Department with respect to the other four tribes, and he then recommends that the letter to Chief Porter be recalled and that Porter be advised that “the Department cannot offer any suggestions in the premises, or, perhaps better still, that there seems to be no necessity for such an election.” In response to Woodruff’s referral of Pollock’s letter, Commissioner of Indian Affairs Leupp concedes to Woodruff that § 28 does appear to continue tribal offices rather than officers, but suggests that the Department should at any rate recognize the incumbents and give them “de facto standing”. Events intervened however before the Department could act further when Chief Porter died suddenly a few days later. Seizing this opportunity to further frustrate the Creek constitutional government, Pollock immediately wired Leupp seeking prompt action. This wire vividly illustrates the true bases of the Department’s actions during this period: “Anticipating effect death Chief Porter may have upon Snake faction of [sic; should be “or”] other recalcitrant Indians suggest importance department promptly appointing or recognizing his successor without specifically recognizing Creek law of succession. Same result would be accomplished by President appointing present second chief under section six Curtis act [sic; should be “Five Tribes Act”] thereby continuing present satisfactory administration which action we believe more expedient than a new election which would undoubtedly give strength to Snake movement.” The Department accepted this advice and one day after the receipt of the telegram President Roosevelt appointed Moty Tiger, who as Second Chief of the Creek Nation would have succeeded to the office automatically under the Creek constitution, as Principal Chief. Thus the Department successfully pre-empted the constitutional processes of the tribe for its own purposes. While the use of the appointment power under these circumstances was of questionable legality, given the congressional intent that section 6 be used at the discretion of the President when necessary to allow allotment deeds to be signed, it nevert