THLOPTHLOCCO TRIBAL TOWN, a federally-recognized Indian Tribe, Plaintiff - Appellant,
GREGORY R. STIDHAM, Judge of the District Court of the Muscogee (Creek) Nation; RICHARD LERBLANCE, Chief Justice of the Muscogee (Creek) Nation Supreme Court; ANDREW ADAMS, III, Vice-Chief Justice of the Muscogee (Creek) Nation; GREGORY BIGLER, Judge of the District Court of the Muscogee (Creek) Nation, Defendants-Appellees
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. NO. 4:09-CV-00527-JHP-FHM).
Michael Salem, Salem Law Offices, Norman Oklahoma, for Appellant.
W. William Rice, G. William Rice, P,C., Cushing, Oklahoma, for Appellees.
Before TYMKOVICH, HOLMES, and BACHARACH, Circuit Judges.
TYMKOVICH, Circuit Judge.
The Thlopthlocco Tribal Town is a federally recognized Indian tribe in Oklahoma. An election dispute arose about which individuals were properly elected or appointed to govern the Thlopthlocco people. Seeking to resolve that dispute, the Tribal Town filed suit in the tribal court of the Muscogee (Creek) Nation and, accordingly, voluntarily submitted to that court's jurisdiction.
The Tribal Town subsequently concluded it did not want to maintain its suit in tribal court and dismissed its claims. But the defendant in that suit had, by that time, filed cross-claims. Arguing that the Tribal Town's sovereign immunity waiver did not cover proceedings on the cross-claims, the Tribal Town attempted to escape Muscogee court jurisdiction, but, in various decisions, several judges and justices of the Muscogee courts held that they may exercise jurisdiction over the Tribal Town without its consent.
The Tribal Town then filed a federal action in the Northern District of Oklahoma against those Muscogee judicial officers, seeking to enjoin the Muscogee courts' exercise of jurisdiction. The district court dismissed the case, finding that the federal courts lacked subject matter jurisdiction, the defendants were entitled to sovereign immunity, the Tribal Town had failed to join indispensable parties, and the Tribal Town had failed to exhaust its remedies in tribal court. We conclude, however, that the Tribal Town has presented a federal question and that the other claims do not require dismissal. But we agree the Tribal Town should exhaust its remedies in tribal court while its federal court action is abated.
Exercising jurisdiction under 28 U.S.C. § 1331, we AFFIRM in part and REVERSE in part the decision of the district court and remand for further proceedings.
Before turning to the legal issues, a brief consideration of the Tribal Town's origins and history is helpful.
A. Tribal History
The Thlopthlocco Tribal Town is a town of Creek Indians who originate from Mexico but, in the 1500s, migrated to what is now Georgia and Alabama, where they resided until forcibly relocated in the 1820s and 1830s. For a more detailed account of the relocation, see Grant Foreman, The Emigration of the Five Civilized Tribes of Indians (1932). See also Angie Debo, The Road to Disappearance: A History of the Creek Indians (1979).
The Creeks have historically governed themselves through a confederacy of geographic units called tribal towns. " The Creek Nation, historically and traditionally, is actually a confederacy of autonomous tribal towns, or Talwa, each with its own political organization and leadership." Harjo v. Andrus, 581 F.2d 949, 952, 189 U.S.App.D.C. 171 at n.7 (D.C. Cir. 1978). The members of a talwa generally lived together, but membership was determined by ancestry rather than geography; a child became a member of his or her mother's talwa.
The term " talwa" " was generally translated into the English word 'town,' but rather covers the conception contained in the word 'tribe.'" Frederic Kirgis, Memorandum to the Commissioner of Indian Affairs 1 (July 15, 1937). As one analysis puts it, " [t]he Creeks had a peculiar form of government in that the confederation seemed to have no central control. The
population of a town, regardless of the number of clans represented, made up a tribe ruled by an elected chief or 'miko,' who was advised by the council of the town on all important matters." Ohland Morton, Early History of the Creek Indians, 9 Chronicles of Okla. 17, 20 (March 1931). Thus, " [t]he Creek town . . . represented an autonomy such as is usually implied by the term 'tribe.'" Id. at 21; see also Harjo, 581 F.2d at 952 n.7 (D.C. Cir. 1978) (discussing the historic role of autonomous talwa). Though autonomous, the many talwa were closely affiliated throughout most of the Creeks' history, giving rise to references to the " Creek Confederacy" or the " Muscogee Nation," named for the talwa's shared language.
Shortly after the Creeks' arrival in Oklahoma in the 1820s and 1830s, the Creek talwa came together to take several unified actions. First, they jointly entered into several treaties with the United States; during these treaty discussions, the United States interacted with chiefs or commissioners, who represented the Creeks at large rather than individual talwa. And, in 1860, the Creeks came together to adopt a single constitution.
This apparent unification was driven, at least in part, by the United States government:
[T]he Federal authorities found it advisable to insist upon centralization of the Creeks to avoid dealing with each Talwa. The Indians opposed this centralization and it was not until after the [American] Civil War, in which the towns took opposing positions, that the Federal Government achieved the formation of a single government among the Creek Indians. And, even then, the union was opposed by the full-blood element.
Kirgis at 2.
In 1867, the Creeks revised their constitution and created a centralized government that, to some extent, mirrored the United States' federal structure. For instance, the constitution provided that each of the then 44 talwa were entitled to one representative in each house of the National Council, the centralized government's legislative branch. But, largely because the centralized government had little power, the talwa continued to govern themselves, behaving more like states than municipalities. Despite several efforts to challenge it, the 1867 constitution remained the Creeks' governing document until, in conjunction with the Curtis Act's and the Dawes Allotment Act's attempt to assimilate the tribes, the United States abolished the tribal governments and incorporated the Creek citizens and territory into the new state of Oklahoma in 1907.
After 1907, the talwa were essentially governed by their respective counties and the state of Oklahoma until Congress enacted the Oklahoma Indian Welfare Act (OIWA) in 1936. The OIWA invited any " recognized tribe or band of Indians residing in Oklahoma" to adopt a constitution and bylaws and accordingly be acknowledged by a federal charter of incorporation. 25 U.S.C. § 503. Although 16 talwa were still active at that time, only the Thlopthlocco Tribal Town and two other Creek talwa, the Kailegee Tribal Town and the Alabama-Quassarte Tribal Town, sought and received federal charters in the years immediately after OIWA's enactment. See Hobia, 2012 WL 2995044 at *7.
The Thlopthlocco Tribal Town created its constitution and received its federal charter of incorporation in 1939, rendering it a federally recognized tribe. During the recognition process, the government investigated the relationship of the Tribal Town to the larger network of Creek Indians, explaining, " these towns retain sufficient
characteristics of a band to identify them as Indian bands."  Kirgis at 2. Further, " [t]hat the Indians themselves recognized the existence of the Creek tribal towns is clear from an examination of the constitutions and laws of the Muscogee Nation. . . . The towns are recognized as having an existence not derived from the constitution of the Muscogee Nation but in fact antedating and continuing alongside the constitution." Id. at 4.
It was not until 1979 that the Muscogee Nation became a " tribe or band" of Creek Indians recognized under OIWA. In conjunction with its application for a federal charter, the Muscogee Nation adopted its current constitution. Although the Muscogee constitution does not mention the Thlopthlocco, it provides that it " shall not in any way abolish the rights and privileges of persons of the Muscogee Nation to organize tribal towns." App. 1197.
Today, the governing structures of the Thlopthlocco Tribal Town and the Muscogee Nation overlap in some respects. The Tribal Town invites the descendant of any Thlopthlocco Indian to join, and the Muscogee Nation invites the descendants of any Creek Indian to join; thus, all of the Tribal Town's members seem to be eligible for Muscogee Nation membership. In practice, most but not all of the Tribal Town's memberships are also members of the Muscogee Nation. Further, while the Tribal Town has its own constitution and governing structure, it does not have its own courts. Although the Tribal Town's federal recognition empowers it to create its own judiciary, H.R. Rep. No. 103-781, at 3, it has struggled to find the necessary federal funding. The Bureau of Indian Affairs gives federal funding earmarked for judicial services for the Thlopthlocco people to the Muscogee courts.
The Thlopthlocco Constitution vests the power to govern the Tribal Town in a ten-member Business Committee, which is composed of five elected town officers--the Town King, two Warriors, a Secretary, and a Treasurer--and five advisors appointed by the elected officials. The Tribal Town holds elections every four years, but, if an elected position is vacated between elections, the remaining elected officials are empowered to fill the vacancy. Business Committee members may also be removed from office by a majority vote of Tribal Town members.
From this historical background, several points are worth noting. First, the Tribal Town and the Muscogee Nation are both federally recognized Indian tribes. Second, the governing structures of both overlap and intersect, reflecting the historical confederate nature of the Creeks. Finally, the Tribal Town is without a judiciary, but the BIA's funding ...