June 17, 1998
The Cherokee Observer On-Line

United States Court of Appeals
Argued May 6, 1997 Decided July 15, 1997
No. 96-5337



Appeal from the United States District Court for the District of Columbia (No. 96cv02284) James Hamilton argued the cause for appellant, with whom William J. Mertens and Robert V. Zener were on the briefs.

Edward J. Shawaker, Attorney, U.S. Department of Justice, argued the cause for appellees, with whom Lois J. Schiffer, Assistant Attorney General, and Robert L. Klarquist, Attorney, were on the brief. Jill E. Grant argued the cause and filed the brief for amicus curiae Delaware Tribe of Indians.

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: The Cherokee Nation of Oklahoma appeals from the dismissal, pursuant to Fed. R. Civ. P. 19(b), of its complaint challenging a Final Decision by the Department of the Interior extending formal recognition to the Delaware Tribe of Indians. It contends that the district court erred in ruling that the Delaware Tribe is a necessary and indispensable party that cannot be joined because it has sovereign immunity. The Cherokee Nation maintains that the Delawares do not have sovereign immunity because they were "incorporated" into the Cherokee Nation pursuant to an 1866 treaty and a subsequent agreement between the two tribes. We hold that the district court erred in concluding that the Delawares can assert sovereign immunity in this lawsuit, and reverse.

The history of the migration of the Delawares from what is now the northeastern part of the United States to the State of Oklahoma is set forth in Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 75-77 (1977). For our purposes, it suffices to observe that over time the Delawares were repeatedly forced westward and fragmented into separate groups. The main body of the tribe settled in Kansas under the terms of an 1829 treaty between the Delawares and the United States. Treaty of 1829, 7 Stat. 327; Weeks, 430 U.S. at 76.

Although that Treaty contemplated the establishment of a "permanent residence" for the Delawares to be "forever secured" by the United States, the Delawares were soon forced to move again. In 1866, the Delawares entered into a new treaty under which their land in Kansas would be sold to a railroad company and the United States would find new land for them in the Indian Territory, which is now the State of Oklahoma. Treaty of 1866, 7 Stat. 793, 794; Weeks, 430 U.S. at 77.

This Treaty of 1866 also permitted any Delawares who wished to remain in Kansas to sever their relations with the tribe and become citizens of the United States. 1 7 Stat. 794. It is the legal status of the Delawares who moved to Oklahoma pursuant to the 1866 treaty (and their descendants) that is at issue in this litigation. Shortly after the Treaty of 1866 with the Delawares was concluded, the United States entered into a Treaty with the Cherokee Nation, which resided in the Indian Territory. 2

Treaty of 1866, 14 Stat. 799 (1866). Article 15 of this second Treaty of 1866 provided that:

The United States may settle any civilized Indians, friendly with the Cherokees and adjacent tribes, within the Cherokee country, on unoccupied lands east of 96 , on such terms as may be agreed upon by any such tribe and the Cherokees, subject to the approval of the President of the United States, which shall be consistent with the following provisions, viz:

[FIRST:] Should any such tribe or band of Indians settling in said country abandon their tribal organization, there being first paid into the Cherokee national fund a sum of money which shall sustain the same proportion to the then existing national fund that the number of Indians sustain to the whole number of Cherokees then residing in the Cherokee country, they shall be incorporated into and ever after remain a part of the Cherokee Nation, on equal terms in every respect with native citizens. 

[SECOND:] And should any such tribe, thus settling in said country, decide to preserve their tribal organizations, and to maintain their tribal laws, customs, and usages, not inconsistent with the constitution and laws of the Cherokee Nation, they shall have a district of country set off for their use by metes and bounds equal to one hundred and sixty acres, if they should so decide, for each man, woman, and child of said tribe, and shall pay [1] for the same into the national fund such price as may be agreed on by them and the Cherokee Nation, subject to the approval of the President of the United States, and in cases of disagreement the price to be fixed by the President. And the said tribe thus settled shall also pay [2] into the national fund a sum of money, to be agreed on by the respective parties, not greater in proportion to the whole existing national fund ... than their numbers bear to the whole number of Cherokees then residing in said country, and thence afterwards they shall enjoy all the rights of native Cherokees....

Id. at 803-804.

In 1867, the Delawares entered into an Agreement with the Cherokee Nation. Under that Agreement the Cherokee Nation agreed to "sell to the Delawares, for their occupancy, a quantity of land ... in the aggregate equal to 160 acres for each individual of the Delaware tribe" who moved to Oklahoma. The Delawares, in turn, agreed to pay the Cherokee Nation $1 per acre for this land, and "a sum of money which shall sustain the same proportion to the existing Cherokee national fund that the number of Delawares ... removing to the Indian country sustains to the whole number of Cherokees residing in the Cherokee Nation." In addition, the

Cherokee Nation and the Delawares agreed that: On the fulfillment by the Delawares of the foregoing stipulations, all the members of the tribe registered, as above provided, shall become members of the Cherokee Nation with the same rights and immunities, and the same participation (and no other) in the national funds, as native Cherokees save as hereinbefore provided. And the children hereafter born of such Delawares so incorporated into the Cherokee Nation shall in all respects be regarded as native Cherokees.

Pursuant to the two Treaties of 1866 and the 1867 Agreement, most of the Delawares moved to Cherokee territory "where they were gradually assimilated for most purposes into the Cherokee Nation...." Weeks, 430 U.S. at 77. 3

Although the 1867 Agreement provided that the Delawares would be "incorporated into the Cherokee Nation" and enjoy "the same rights and immunities ... as native Cherokees," conflicts developed between the two groups. In 1890, the Delawares sued the Cherokee Nation for a share of the proceeds from the rental of certain Cherokee land. In Cherokee Nation v. Journeycake, 155 U.S. 196 (1894), the Supreme

Court reviewed the 1867 Agreement and Article 15 of the 1866 Treaty with the Cherokee Nation, concluding that the Delawares had "become incorporated into the Cherokee Nation and are members and citizens thereof," and that it "follow[ed] necessarily that they are, equally with the native Cherokees, the owners of, and entitled to share in the profits and proceeds of, [Cherokee] lands." Id. at 211.

The Court did not expressly rule on whether the Delawares had settled in Cherokee territory under the first or the second provision of Article 15, but it did state that the 1867 Agreement made "no provision for the setting apart of a distinct body of land in any portion of the reservation for the Delaware Tribe...." Id. at 205. In 1904, the Delawares again sued the Cherokee Nation, pursuant to a special Act of Congress, 4 seeking a declaration of their rights in the land they acquired under the 1867 Agreement.

In Delaware Indians v. Cherokee Nation, 193 U.S. 127 (1904), the Supreme Court held that the Delawares did not acquire any permanent interest in these lands that could be passed on to their descendants, but only the right to use and occupy these lands during their lifetimes; any children of the Delawares born after the move to Oklahoma "took only the rights of other citizens of the Cherokee Nation, as the same are regulated by its laws." Id. at 143. Notwithstanding the 1867 Agreement and the Supreme Court decisions, the Delawares continued to maintain a distinct group identity separate from the Cherokee Nation. See Weeks, 430 U.S. at 77. In 1940, the Department of the Interior acknowledged that the Delawares were entitled to organize as a tribe under the Oklahoma Indian Welfare Act,

Thus, from 1979 until the Final Decision of September 27, 1996, the Department declined to recognize the Delawares as a separate tribe.In 1992, the Delawares advised the Department of their intent to petition for recognition as an Indian tribe pursuant to 25 C.F.R. Part 83, which sets forth "departmental procedures and policies for acknowledging that certain American Indian groups exist as tribes." 25 C.F.R. § 83.2 (1996); see also id. §§ 83.4, 83.6.

In 1994, the Department responded that it would not consider such a petition because Congress had already defined the relationship between the Delawares and the Cherokee Nation. Based on the language of the 1867 Agreement, the relevant treaties, and the Supreme Court's decisions in Journeycake and Delaware Indians, the Department stated, "[i]t is the position of the Department of the Interior that the Cherokee Delawares have not existed as an independent political entity since 1867, and have been absorbed into the Cherokee Nation of Oklahoma for general governmental purposes since that time.

" The Delawares requested reconsideration and retraction of the 1979 letter, and after reviewing its relationships with the Delawares since 1867, the Department published a Notice of Intent to retract the 1979 letter. 61 Fed. Reg. 33,534, 33,534-35 (1996). Following comment by the Delawares and the Cherokee Nation, the Department issued a Final Decision on September 27, 1996, retracting the 1979 letter and recognizing the Delawares as a "separate sovereign" with "the same legal rights and responsibilities as other tribes, consistent with federal law, both as to jurisdiction and as to its right to define its membership." 61 Fed. Reg. 50,862, 50,863