Housing Authority of Seminole Nation v. Harjo

1990 OK 35, 790 P.2d 1098, 1990 Okla. LEXIS 41, 1990 WL 43812

• Court: Supreme Court of Oklahoma
• Decided: April 17, 1990
• Docket: 67999
• Status: Published

Opinions

SUMMERS, Justice:

Josephine Harjo, a fullblood Seminole Indian, fell behind on her monthly housing payments to the Seminole Housing Authority. The Housing Authority brought suit in the District Court of Seminole County under the state’s Forcible Entry and De-tainer statutes. Harjo moved to dismiss asserting that the state court had no jurisdiction over her home because it was in Indian country. She also claimed, in the alternative, certain other defenses and set-offs. The Housing Authority won below on all issues, and she appealed. The Court of Appeals affirmed but we have granted certiorari. Finding that her home was indeed in Indian country as defined by 18 U.S.C.A. § 1151(b) we reverse and order the matter dismissed.

THE FACTS AND POSTURE OF THE CASE

Josephine Harjo inherited an undivided one-ninth interest in forty acres of restricted Seminole Indian land from her fullblood husband. The other eight-ninths interest in the land was inherited by her children and stepchildren. In 1973 she, along with three of her children, partitioned four tracts from the larger tract (comprising about six and one-half acres in all), and deeded them to the Seminole Housing Authority. The parties agree that the non-deeded land continued to hold its restricted status.

The Housing Authority agreed to build a house on each tract of land. The agreement between the Housing Authority and Harjo, termed a Mutual Help and Occupancy (MHO) Agreement, stated that Harjo would pay a specified amount each month, and that after a period of seventeen years she would own the house and the land. This agreement was part of a federally-funded program involving the Department of Housing and Urban Development (HUD), and required minimal payments of no more than seventy ($70.00) dollars, rather than requiring payment of the prevailing market rate. During the seventeen year period Harjo was considered a tenant in the house.

After approximately twelve years of payments Harjo stopped making them. The parties stipulated that she was in arrears to the extent of $1,990.00 in back payments. The housing authority filed a Forcible Entry and Detainer action, asking that judgment be entered againt Harjo for the back payments, and that the Housing Authority be given possession of the house. Harjo objected to the Court’s jurisdiction. She also protested the constitutionality of 16 O.S.1981 § 11A.¹ At trial she agreed that back payments were due, but urged that a set-off be granted inasmuch as the plumbing did not work. The trial court granted judgment in favor of the Housing Authority, denied the relief requested by Harjo, and assessed attorneys’ fees of $2500.00 against Harjo.

From this the defendant perfected her appeal. The Court of Appeals in an unpublished opinion affirmed the judgment of the trial court. Harjo’s petition for certiorari to this Court has been granted.

“DEPENDENT INDIAN COMMUNITY”

Harjo maintains that her house is part of a “dependent Indian community,” is thus located in “Indian country”, and therefore falls within federal, not state jurisdiction. Under the federal constitution, Congress has exclusive authority over Indian affairs. U.S. Const., Art. I, § 8. 18 U.S.C.A. § 1151 defines “Indian country” as

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,

(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and

(c) all Indian allotments, the Indian titles to which have not been extinguished.... (emphasis added)

If indeed her house lies within Indian country then the state court was without jurisdiction to proceed in the forcible entry and detainer action. Ahboah v. Housing Authority Kiowa Tribe, 660 P.2d 625 (Okl.1983).²

The Seminole Housing Authority disagrees with Harjo’s argument, stating that the land lost its classification as Indian country when Harjo’s application to have the restricted status removed from the land was granted by the court in 1973 in order to approve her deed to the Housing Authority. The Housing Authority argues that the allotted land is no longer under the superintendence of the federal government.

Both parties agree that United States v. South Dakota, 665 F.2d 837 (8th Cir.1981), cert. denied, 459 U.S. 823, 103 S.Ct. 52, 74 L.Ed.2d 58 (1982) and United States v. Martine, 442 F.2d 1022 (10th Cir.1971) establish the prevailing view in defining the term “dependent Indian community.” See, e.g., Alaska v. Native Village of Venetie, 856 F.2d 1384 (9th Cir.1988); United States v. Azure, 801 F.2d 336 (8th Cir.1986); United States v. Levesque, 681 F.2d 75 (1st Cir.1982), cert. denied, 459 U.S. 1089, 103 S.Ct. 574, 74 L.Ed.2d 936 (1982); Blatchford v. Gonzales, 100 N.M. 333, 670 P.2d 944 (1984), cert. denied, 464 U.S. 1033, 104 S.Ct. 691, 79 L.Ed.2d 158 (1984). These two cases set forth the factors to be considered when deciding whether a particular area falls within the definition of “dependent Indian community.” In Martine, 442 F.2d at 1023, the Tenth Circuit Court of Appeals considered “the nature of the area in question, the relationship of the inhabitants of the area to Indian Tribes, and to the federal government, and the established practice of government agencies toward the area.” In South Dakota the court at P. 839 applied a more detailed analysis, adding to the factors discussed in Martine:

(1) [Wjhether the United States has retained ‘title to the lands which it permits the Indians to occupy’ and ‘authority to enact regulations and protective laws respecting this territory,’ (2) ‘the nature of the area in question, the relationship of the inhabitants of the area to Indian tribes and to the federal government, and the established practice of government agencies toward the area,’ (3) whether there is ‘an element of cohesiveness ... manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality,’ and (4) ‘whether such lands have been set apart for the use, occupancy and protection of dependent Indian peoples.’ (Citations omitted)

The phrase “dependent Indian community” describes and affords federal jurisdiction to those “communities which, while neither part of a federal reservation nor Indian ‘allotments,’ are both ‘Indian’ in character and federally dependent.” Levesque, 681 F.2d at 77. In general terms, the question to be answered is whether the land was “validly set apart for the use of the Indians, as such, under the superintendence of the government.” United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676 (1914). See also May v. Seneca-Cayuga Tribe, 711 P.2d 77, 82 (Okla.1986); Abhoah v. Housing Authority of Kiowa Tribe, supra. In United States v. McGowan, 302 U.S. 535, 538-9, 58 S.Ct. 286, 287-8, 82 L.Ed. 410 (1938), the United States Supreme Court instructed that the name given to the settlement, whether it be an Indian colony or an Indian reservation, is not determinative. Rather, the Pelican test is the ultimate test of whether a particular area is a “dependent Indian community.” “[T]he ultimate conclusion as to whether an Indian community is Indian country is quite factually dependent.” Village of Venetie, 856 F.2d at 1391. No one factor is determinative; all facts and circumstances must be considered in such a case.

To resolve the issue under the Pelican rule, application of the factors enunciated in the later Martine and South Dakota cases is necessary. First, we must look to whether the United States retained title to the Indian land and has authority to regulate and protect the land. We note that in United States v. Mazurie, 419 U.S. 544, 555, 95 S.Ct. 710, 716, 42 L.Ed.2d 706 (1974), the Supreme Court explained that land can be considered “Indian country” even though the title to the land is held by non-Indians.³ See also Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). Harjo inherited her restricted Indian allotment from her husband. The land maintained its restricted status until 1973 when she deeded a portion of the land to the Housing Authority in order for a house to be built. Thus, because it was a restricted or, as sometimes called, a “restricted fee” allotment, Harjo, the individual Indian, held the title to the land. See Cohen, Federal Indian Law 617 (1972). The non-deeded tract maintained its restricted status and is clearly under the control of the federal government. Thus, although the United States did not have title to the deeded land, it did continue its “superintendence” of the property for the duration of the MHO Agreement.

This “superintendence” is evident in the comprehensive federal regulations which govern MHO programs. All procedures for participation in the housing program administered by the Seminole Housing Authority are determined by HUD, a federal agency. These procedures are found in some 75 pages of federal regulations at 24 CFR Ch. IX (4-1-89 Ed.) §§ 905.101-905.-430. The Housing Authority can.only participate in this program after first being approved by both HUD and the Department of the Interior. See § 905.108. They provide for how each Indian Housing Authority (such as the Seminole Housing Authority here) must select applicants based on federal preferences for low income Indian families on Indian reservations “and other . Indian areas”. See § 905.406(a). They provide that in the event of the death, mental incapacity, or abandonment of the home by the Indian homebuyer, such home-buyer may be succeeded only by a member of the homebuyer’s family who is an authorized occupant of the home in accordance with the MHO Agreement. See § 905.425(b)(d). The regulations also specifically require compliance with federal laws involving environmental protections, wage controls and health and safety precautions. See § 905.107. Although the “restrictions were removed” by the District Court in order for Harjo to deed the land to the Housing Authority, it would not be correct to conclude that such land owned by the Authority subject to an MHO Agreement is free of U.S. governmental superintendence — The U.S. Government through the HUD regulations controls virtually every foreseeable legal consideration touching the property until the MHO Agreement runs its course or sooner terminates. Later we will refer to a few more examples of how this is so.

The second inquiry is into the nature of the area, and the relationship of the inhabitants to Indian tribes and to the federal government. South Dakota, 665 F.2d at 839; Marline, 442 F.2d at 1023. Also important is the the established practice of government agencies with regard to the territory. Testimony revealed that Harjo was a fullblood Seminole Indian and was associated with the Tribe. The Seminole Tribe appoints the commissioners of the Housing'Authority. The Tribe also created the Indian Health Service, which contracted to build the sewage lagoon for Harjo’s house and the three surrounding houses of her children. This organization also provides other health services to the community. The Tribe provides various services to the community such as vocational training, commodity food distribution programs, manpower programs and a head-start program. The schools receive scholarships and funds through the Bureau of Indian affairs, a federal agency. These funds include money from the Johnson O’Malley program, which is a federal program to provide money to Indian children for additional educational benefits.

The Seminole Housing Authority receives all of its funding from HUD. As we have said the program under which Harjo’s house was built was designed to provide housing to Indian people with low incomes. All participants in this program are Indian. A policy of the program is to keep the houses within the Indian family, especially if the land was donated. Indian contractors are given preference in construction of such programs. See § 905.309. The procedures and requirements for participation in the program are established in great detail by HUD. Under the supervision of HUD, the Housing Authority is required to conduct yearly inspections of the premises to determine whether federal regulations are met and followed.

Clearly, the federal government remains involved and concerned in the well-being of the Seminole Indians in this area. The government administers the various programs, such as school funding and the Mutual Help and Occupancy program, by overseeing the procedures used and the criteria for the receipt of benefits. Government agencies, such as HUD and the Bureau of Indian Affairs, are the conduit through which the benefits are distributed.

The third South Dakota consideration is whether there is an element of cohesiveness shown by the economic pursuits and common interests of the locality. There was testimony that Harjo and her family were part of a particular band, or political unit, of the Seminole Tribe. Dr. Richard Sattler, an anthropologist, testified that the bands attempted to settle into communities by obtaining joint parcels of land. He further testified that traditional Seminole settling patterns were “such that a woman and her daughters would be living in the house[s] adjacent to each other, also especially unmarried men related to them would be living in the same area in a pattern.” Tr. 83 (October 14, 1986). This pattern of families remaining geographically close has continued, although it is not as strong. A total of twenty-one Indians live within the boundaries of the original 40 acre allotment, with four households in a cluster of homes on the 6V2 acres deeded to the Housing Authority for the construction of their homes, and another household in the old homestead.

In the area surrounding Harjo there are three Indian churches and a ceremonial ground. Although non-Indians may attend the churches, the expert testified that he had never seen a non-Indian at any of the services. Much of the services is conducted in the native Indian language. As for the ceremonial ground, non-Indians are not allowed to attend ceremonies unless they have special permission from the ceremonial chief. This ceremonial ground is located only a few miles from Harjo’s house. A large number of the Indians living in the area maintain their native language, which indicates an “ongoing native community.” Tr. 85.

The last factor considered in South Dakota was whether the lands were “set apart for the use, occupancy and protection of dependent Indian peoples.” Id. 665 F.2d at 839. In the present case, the land owned by Harjo and deeded to the Housing Authority was a restricted allotment, inherited from her husband. Her husband, a fullblood Seminole Indian, inherited the land from his mother, also a Seminole. The Seminole Housing Authority built the house with federal money specifically for the Indian occupant, with a contractual obligation to deed it back to her after a certain number of low monthly payments. The land was clearly set apart for the benefit of Indians.

The reasoning in South Dakota is a helpful guide when considering the facts presented in the ease at bar. The Court there, finding that the housing project was a “dependent Indian community,” explained that the test was a “flexible one, not tied to any single technical standard such as percentage of Indian occupants.” Id. at 842, quoting United States v. Mound, 477 F.Supp. 156, 160 (D.S.D.1979). The South Dakota court found it important that the housing project was originated to provide for the health, safety, morals and welfare of the Sisseton-Wahpeton Sioux Tribe. The land was leased by the Housing Authority to build and operate a low-income housing project. Similar to our case, in South Dakota the commissioners of the Housing Authority were appointed by the Tribe. The Tribe provided a broad range of services to those living in the housing community, such as a food stamp program and senior citizen program. The federal government, through agencies like the BIA and HUD, administered the programs and its procedures. The federal government, working with the state government, provided services such as street repair. The children attended public schools, which were at least partially funded by the federal government. The project, although predominately occupied by Indians, was open to non-Indians.

We find the South Dakota rationale persuasive when applied to the facts before us. Harjo’s house was built in order to provide her with sanitary and safe living quarters. She, in exchange for the house, deeded a portion of her inherited land to the Housing Authority. The federal government was extensively involved in the building and financing of the house. The Tribe also participated in the transaction by providing other needed services. Harjo’s house was situated in an area heavily populated by Seminole Indians, and she was in fact living in a traditional arrangement, with her children living within a few feet of her own home.

A similar situation was presented in Ahboah v. Housing Authority of the Kiowa Tribe, supra. There, the appellant was a Kiowa Indian who was the beneficial owner of land known as a “trust” allotment. He leased his land to the Kiowa Housing Authority in exchange for a house which was built by the housing authority on the leased land. Later, the Housing Authority filed in the state District Court a Forcible Entry and Detainer action for past due rent. The Indian argued that the state did not have jurisdiction. This Court, relying on Section 1151(c),⁴ held that the lease of Indian land to the Housing Authority did not deprive it of its Indian character, that it was indeed Indian country, and that the action in state court must fail for want of jurisdiction. Citing United States v. Pelican, 232 U.S. at 449, 34 S.Ct. at 399, we agreed that the ultimate test was whether the land had been set apart for the use of the Indians, under the superintendence of the federal government. Under this test, the land was held to be “Indian country.” Although today’s case revolves around Section 1151(b), rather than 1151(c) as did Ahboah, we find that case to be consistent with our holding here. In Ahboah the Indian owned an equitable interest in the land by virtue of the trust allotment. Here the Indian (formerly the fee owner) became owner of an equitable interest in the land by virtue of the occupancy agreement with contract for deed. An affirmative determination of Indian country may be reached under any of the three subparagraphs of 18 U.S.C. § 1151.

The language and reasoning of South Dakota, Martine, and Ahboah lead us to conclude that Harjo’s house is situated in a “dependent Indian community.” Because of that it falls within the Section 1151(b) definition of “Indian country.” Hence, the state district court was without jurisdiction to hear this suit.⁵ In making this finding, “we are not expanding the definition of a dependent Indian community to include a particular locale merely because a small segment of the population consists of Indians receiving various forms of federal assistance.” South Dakota, 665 F.2d at 843. This holding is factually specific, and should not be taken to imply that any house built by an Indian housing authority will be adjudged to fall within the definition of “dependent Indian community.” Further, it has been held that Indian country may lose that status. “The important consideration is what the land in question is now, not what it may become in the future.” South Dakota, 665 F.2d at 842, citing Pelican, supra. Our holding should not be construed to extend beyond the life of the MHO Agreement, should the Housing Authority execute to Harjo or anyone else a deed free and clear of Indian restrictions.

As to Harjo’s proposition that the trial court erred by awarding attorney’s fees to the Housing Authority, we must agree. This case is not a matter properly litigable in the state courts of Oklahoma.

The opinion of the Court of Appeals is hereby vacated, the judgment of the District Court is reversed, and the case is remanded with instructions to dismiss.

LAVENDER, DOOLIN, ALMA WILSON and KAUGER, JJ., concur. HARGRAVE, C.J., OPALA, V.C.J., and HODGES and SIMMS, JJ., dissent.

1 . 16 O.S.1981 § 11A provides that all contracts for deed to real property shall be deemed mortgages except agreements (such as the one in this case) with an Indian Housing Authority.

2 . For other cases discussing Federal Court jurisdiction based on "Indian Country” see DeCouteau v. District County Court, 420 U.S. 425, 427, 95 S.Ct. 1082, 1084, 43 L.Ed.2d 300 (1975); McClanahan v. State Tax Comm'n of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973).

3 . In Mazurie, the statute in question was 18 U.S.C.A. § 1154(c), which exempts from the definition of Indian country those "fee patented lands in non-Indian communities," without defining "non-Indian communities". Apparently, large sections of land in the Indian reservation involved had been sold to non-Indians. Mazu-rie operated a bar on land within a reservation 790 P.2d — 25 but owned by non-Indians. He was convicted of introducing spiritous beverages into Indian country. The Supreme Court upheld the conviction, holding that the surrounding circumstances indicated that the bar was indeed located in an Indian community, regardless of who held the title, and qualified as being in Indian country under § 1151(a).

4 . 18 U.S.C. § 1151(c) includes within "Indian country”

“all Indian allotments, the Indian titles to which have not been extinguished.”

5 . But see Fed. Land Bank v. Burris, 790 P.2d 534 (Okl.1990), wherein we recently held that state courts have jurisdiction over foreclosure proceedings of restricted Indian land where the mortgage has been approved by the Secretary of the Interior. That holding was based on what we perceive to be an express grant of jurisdiction in 25 U.S.C. § 483a, a statute that extinguishes the "restricted Indian” nature of a land title in such foreclosure proceedings. Neither § 483a nor any counterpart serves in this case to confer state jurisdiction; we are confined to 18 U.S.C. § 1151 and its interpretations in determining the Harjo tract to be Indian Country.