In a reorganization proceeding in the District Court for the
Western District of Missouri under § 77B of the Bankruptcy Act, the
United States filed a claim in behalf of the Choctaw and Chickasaw
Nations. The court allowed it, but allowed the debtor's cross-claim
for a larger amount and decreed the balance in favor of the debtor
against the Nations to be "collected in the manner provided by
law." The validity of the judgment, to the extent that it satisfied
the principal claim was, conceded. In another suit in Oklahoma by
the United States for the Indian Nations against the surety on a
bond given by the debtor, the debtor pleaded the former judgment as
res judicata, and asked for a determination of
accounts.
Held:
1. The Indian Nations and the United States acting for them are
exempt from suits and also from cross-suits, except when
authorized, and in the courts designated, by Act of Congress. P.
309 U. S.
512.
2. The judgment, insofar as it undertakes to fix a credit
against the Indian Nations, is void, and cannot be given the effect
of
res judicata in other litigation. P.
309 U. S.
512.
3. The immunity from suit of the United States and of Indian
Nations in tutelage cannot be waived by official failure to object
to the jurisdiction or to appeal from the judgment. In the absence
of statutory consent to the suit, the judgment is subject to
collateral attack.
Chicot County Drainage Dist. v. Baxter State
Bank, 308 U. S. 371,
distinguished. P.
309 U. S.
513.
4. Where a judgment in the District Court was entered before the
effective date of the Rules of Civil Procedure, questions as to
parties are governed by the Conformity Act. P.
309 U. S.
516.
Semble that, under the procedure of Oklahoma, a
principal in a bond, though he cannot compel his admission as a
party defendant in a suit against the surety, becomes such, in
effect, if allowed without objection to file his intervening
petition.
5. Under the Act of April 26, 1906, which provided that, where
suit is brought in any United States court in the Indian Territory
by or on behalf of any of the Five Civilized Tribes to recover
Page 309 U. S. 507
money claimed to be due and owing such Tribe, the party
defendants shall have the right to set up and have adjudicated
claims against the Tribe, and that any balance that may be found
due by the Tribe shall be paid by the Treasurer of the United
States out of its funds, etc., the question who are "defendants" is
a federal question. P.
309 U. S.
516.
106 F.2d 804 reversed.
Certiorari, 308 U.S. 548, to review the affirmance of a judgment
of the District Court for the Eastern District of Oklahoma, 24 F.
Supp. 961, which, in reliance upon a judgment of the District Court
for the Western District of Missouri, rejected a claim made by the
United States on behalf of the Choctaw and Chickasaw Nations and
allowed against them a counterclaim of interveners.
Page 309 U. S. 509
MR. JUSTICE REED delivered the opinion of the Court.
This certiorari brings two questions here for review: (1) is a
former judgment against the United States on a cross-claim, which
was entered without statutory authority, fixing a balance of
indebtedness to be collected as provided by law,
res
judicata in this litigation for collection of the balance, and
(2) as the controverted former judgment was entered against the
Choctaw and Chickasaw Nations, appearing by the United States, does
the jurisdictional act of April 26, 1906, 34 Stat. 137, authorizing
adjudication of cross demands by defendants in suits on behalf of
these Nations, permit the former credit, obtained by the principal
in a bond guaranteed by the sole original defendant here, to be set
up in the present suit.
Certiorari was granted [
Footnote
1] because of probable conflict, on the first question, between
the judgment below and
Adams v. United States [
Footnote 2] and because of the
importance of clarifying the meaning of the language in
United
States v. Eckford [
Footnote
3] relating to the judicial ascertainment
Page 309 U. S. 510
of the indebtedness of the government on striking a balance
against the United States where cross-claims are involved. A
somewhat similar question arises in
United States v. Shaw.
[
Footnote 4] The second
question was taken because its solution is involved in certain
phases of this litigation.
The United States, acting for the Choctaw and Chickasaw Nations,
leased some coal lands to the Kansas and Texas Coal Company, with
the respondent United States Fidelity and Guaranty Company acting
as surety on a bond guaranteeing payment of the lease royalties. By
various assignments, the leases became the property of the Central
Coal and Coke Company, as substituted lessee, the Guaranty Company
remaining as surety. The Central Coal and Coke Company went into
receivership in the Western District of Missouri, and the United
States filed a claim for the Indian Nations for royalties due under
the leases. Answering this claim, the Central Coal and Coke Company
denied that any royalties were owing, and claimed credits against
the Nations for $11,060.90. By order of the court, reorganization
of the Coal Company under Section 77B of the Bankruptcy Act was
instituted, and the trustee took possession from the receivers. In
the reorganization proceedings, the claim of the Nations was
allowed for $2,000, the debtor's cross-claim was allowed for
$11,060.90, and the court, on February 19, 1936, decreed a balance
of $9,060.90 in favor of the debtor, to be "collected in the manner
provided by law." No review of this judgment of the Missouri
district court was ever sought.
On December 24, 1935, the United States, on its own behalf and
on behalf of the Indian Nations, filed the present suit in the
Eastern District of Oklahoma against the Guaranty Company, as
surety on the royalty bond, for the same royalties involved in the
Missouri proceedings.
Page 309 U. S. 511
After the judgment of the Missouri district court, the Guaranty
Company pleaded that judgment as a bar to recovery by the United
States. The trustee of Central Coal and Coke Company, and the
Central Coal and Coke Corporation, which had taken over certain
interests in the assets of the Coal Company, alleged by a petition
for leave to intervene, and, upon its allowance without objection,
by an intervening petition, that they were necessary and proper
parties because each had an interest in the judgment of the
Missouri court; they pleaded the Missouri judgment as
determinative, and pleaded the merits of the counterclaims by
setting up the facts which supported the judgment; they asked for a
decree that the Missouri judgment was valid, for a determination of
accounts between themselves and the Indian Nations, and for all
other proper relief. Replying to the answer of the surety and the
petition of the interveners, the United States pleaded that the
Missouri judgment was void as to the interveners' cross-claims
because the court was "without jurisdiction to render the judgment"
against the United States, and denied the cross-claims on the
merits. The district court concluded that the Missouri judgment
barred the claim against the surety and entitled the interveners to
a judgment against the Indian Nations in the amount of the balance
found by the Missouri court. This judgment the Circuit Court of
Appeals affirmed. [
Footnote
5]
A. -- By concession of the Government, the validity of so much
of the Missouri judgment as satisfies the Indian Nations' claim
against the lessee is accepted. This concession is upon the theory
that a defendant may, without statutory authority, recoup on a
counterclaim an amount equal to the principal claim. [
Footnote 6]
Page 309 U. S. 512
B. -- We are of the view, however, that the Missouri judgment is
void insofar as it undertakes to fix a credit against the Indian
Nations. In
United States v. Shaw, [
Footnote 7] we hold that cross-claims against the
United States are justiciable only in those courts where Congress
has consented to their consideration. Proceedings upon them are
governed by the same rules as direct suits. In the Missouri
proceedings in corporate reorganization, the United States, by the
Superintendent of the Five Civilized Tribes for the Choctaw and
Chickasaw Nations, filed a claim on behalf of the Indian Nations.
This is authorized to do. [
Footnote
8] No statutory authority granted jurisdiction to the Missouri
Court to adjudicate a cross-claim against the United States.
[
Footnote 9] The public policy
which exempted the dependent as well as the dominant sovereignties
from suit without consent [
Footnote 10] continues this immunity even after
dissolution of the tribal government. These Indian Nations are
exempt from suit without Congressional authorization. [
Footnote 11] It is as though the
immunity which was theirs as sovereigns passed to the United States
for their benefit, as their tribal properties did.
Page 309 U. S. 513
Possessing this immunity from direct suit, we are of the opinion
it possesses a similar immunity from cross-suits. This seems
necessarily to follow if the public policy which protects a
quasi-sovereignty from judicial attack is to be made
effective. The Congress has made provision for cross-suits against
the Indian Nations by defendants. [
Footnote 12] This provision, however, is applicable only
to "any United States court in the Indian Territory." Against this
conclusion, respondents urge that, as the right to file the claim
against the debtor was transitory, the right to set up the
cross-claim properly followed the main proceeding. [
Footnote 13] The desirability for complete
settlement of all issues between parties must, we think, yield to
the principle of immunity. The sovereignty possessing immunity
should not be compelled to defend against cross-actions away from
its own territory or in courts not of its own choice merely because
its debtor was unavailable except outside the jurisdiction of the
sovereign's consent. This reasoning is particularly applicable to
Indian Nations, with their unusual governmental organization and
peculiar problems.
But it is said that there was a waiver of immunity by a failure
to object to the jurisdiction of the Missouri District Court over
the cross-claim. It is a corollary to immunity from suit on the
part of the United States and the Indian Nations in tutelage that
this immunity cannot be waived by officials. If the contrary were
true, it would subject the government to suit in any court in the
discretion of its responsible officers. This is not permissible.
[
Footnote 14]
Page 309 U. S. 514
The reasons for the conclusion that this immunity may not be
waived govern likewise the question of
res judicata. As no
appeal was taken from this Missouri judgment, it is subject to
collateral attack only if void. It has heretofore been shown that
the suability of the United States and the Indian Nations, whether
directly or by cross-action, depends upon affirmative statutory
authority. Consent alone gives jurisdiction to adjudge against a
sovereign. Absent that consent, the attempted exercise of judicial
power is void. The failure of officials to seek review cannot give
force to this exercise of judicial power. Public policy forbids the
suit unless consent is given, as clearly as public policy makes
jurisdiction exclusive by declaration of the legislative body.
[
Footnote 15]
Chicot
County Drainage District v. Baxter State Bank [
Footnote 16] is inapplicable where the
issue is the waiver of immunity.
In the
Chicot County case, no inflexible rule as to
collateral objection in general to judgments was declared. We
explicitly limited our examination to the effect of a subsequent
invalidation of the applicable jurisdictional statute upon an
existing judgment in bankruptcy. [
Footnote 17] To this extent, the case definitely extended
the area of adjudications that may not be the subject of collateral
attack. No examination was made of the susceptibility to such
objection of numerous groups of judgments concerning status,
[
Footnote 18]
extraterritorial action of courts, [
Footnote 19] or strictly jurisdictional and
quasi-jurisdictional facts. [
Footnote 20] No solution was attempted of the legal
results of a collision between the desirable principle that rights
may be adequately
Page 309 U. S. 515
vindicated through a single trial of an issue and the sovereign
right of immunity from suit. We are of the opinion, however, that,
without legislative action, the doctrine of immunity should
prevail.
C. -- The conclusion that the Missouri judgment is void
determines this review. There is left in the case, however, an
issue which requires brief reference to the second question upon
which certiorari was granted. The intervening petition set up the
facts supporting the claim of the interveners against the Indian
Nations. An issue was made and the evidence of the Missouri
controversy stipulated for consideration in the present case. As
the district court determined that the Missouri judgment was valid,
no finding or conclusion appeared in the judgment of the district
court upon the merits. Respondents made no objection to this
omission, but call attention to it in their brief. On a new trial,
this issue obviously will be important.
It is the contention of the Government that the cross-claim
cannot be liquidated in this proceeding for the reason that, by the
statute under which this suit is brought, the right to set up a
cross-claim is limited to "party defendants." [
Footnote 21] Respondents' reply that as they
were admitted as interveners without objection, as they have an
interest in cross-claims arising from the same transactions which
form the basis of the principal suit, and as one of them is a
principal liable for any judgment against
Page 309 U. S. 516
the defendant surety, they are, to all intents and purposes,
defendants under § 18 of the Act of April 26, 1906.
As this judgment was entered before the effective date of the
Civil Procedure Rules, procedure as to parties was governed by the
Conformity Act. [
Footnote
22] Apparently, under Oklahoma law, the principal in the bond
could not compel its admission as a party defendant. [
Footnote 23] As the Government did
not object to the order filing the intervening petition, we assume
it properly filed, and that the trustee for the Coal Company was
actually a defendant. The name used is immaterial.
Whether the Coal Company was such a defendant as was meant by §
18 raises other questions. Since they depend upon an interpretation
of the federal statute, they are to be determined by federal, not
Oklahoma, law. [
Footnote 24]
As the extent and character of the interest of the assignee Coal
Corporation in the unliquidated claims of the Company do not appear
from the record, we do not pass upon the question of whether the
Company defendant has any cross-claim against the Indian Nations,
after satisfaction of the Indian Nations' claim against it, or
whether, if there is such a claim, owned jointly with the
Corporation, it is a claim the Company may enforce as defendant
under § 18.
The cause is reversed and remanded to the district court for
further proceedings in accordance with this opinion.
Reversed.
MR. JUSTICE McREYNOLDS took no part in the decision of this
case.
[
Footnote 1]
308 U.S. 548.
[
Footnote 2]
3 Ct.Cls. 312.
[
Footnote 3]
73 U. S. 6 Wall.
484.
[
Footnote 4]
Ante, p.
309 U. S. 495.
[
Footnote 5]
106 F.2d 804.
[
Footnote 6]
Bull v. United States, 295 U.
S. 247,
295 U. S.
261.
[
Footnote 7]
Ante, p.
309 U. S. 495.
[
Footnote 8]
Heckman v. United States, 224 U.
S. 413,
224 U. S. 442;
Mullen v. United States, 224 U. S. 448,
224 U. S. 451;
United States v. Rickert, 188 U.
S. 432. These cases discuss, also, the relationship
between the United States and the Choctaw and Chickasaw Nations.
See also United States v. Choctaw, etc., Nations,
179 U. S. 494,
179 U. S. 532;
Choctaw Nation v. United States, 119 U. S.
1,
119 U. S. 28.
Act of June 7, 1897, 30 Stat. 62, 83; Atoka Agreement, 30 Stat.
495, 505; Act of March 3, 1901, 31 Stat. 1447; Act of April 26,
1906, 34 Stat. 137, 144. Under § 28 of the Act of April 26, 1906,
34 Stat. 148, the tribal existence of the Chickasaw and Choctaw
Nations is continued as modified by that and other acts.
[
Footnote 9]
Cf. United States v. Algoma Lumber Co., 305 U.
S. 415.
[
Footnote 10]
Cf. 30 U. S.
Georgia, 5 Pet. 1.
[
Footnote 11]
Turner v. United States, 248 U.
S. 354,
248 U. S. 358;
Adams v. Murphy, 165 F. 304, 308;
Thebo v. Choctaw
Tribe of Indians, 66 F. 372.
[
Footnote 12]
Act of April 26, 1906, § 18, 34 Stat. 137, 144.
[
Footnote 13]
Cf. Fidelity Ins., Trust & S.D. Co. v. Mechanics' Sav.
Bank, 97 F. 297, 303.
[
Footnote 14]
Minnesota v. United States, 305 U.
S. 382,
305 U. S. 388,
and cases cited;
Munro v. United States, 303 U. S.
36,
303 U. S. 41;
Finn v. United States, 123 U. S. 227,
123 U. S.
232.
[
Footnote 15]
Kalb v. Feuerstein, 308 U. S. 433.
[
Footnote 16]
308 U. S. 308 U.S.
371.
[
Footnote 17]
See the last paragraph of the opening statement and the
first paragraph of division
Second. 308 U. S. 308
U.S. 374,
308 U. S.
376.
[
Footnote 18]
Andrews v. Andrews, 188 U. S. 14.
[
Footnote 19]
Fall v. Eastin, 215 U. S. 1.
[
Footnote 20]
Noble v. Union River Logging R. Co., 147 U.
S. 165;
cf. Johnson v. Zerbst, 304 U.
S. 458.
[
Footnote 21]
34 Stat. 137, 144, § 18:
"
* * * *"
"Where suit is now pending, or may hereafter be filed in any
United States court in the Indian Territory, by or on behalf of any
one or more of the Five Civilized Tribes to recover moneys claimed
to be due and owing to such tribe, the party defendants to such
suit shall have the right to set up and have adjudicated any claim
it may have against such tribe, and any balance that may be found
due by any tribe or tribes shall be paid by the Treasurer of the
United States out of any funds of such tribe or tribes upon the
filing of the decree of the court with him."
[
Footnote 22]
R.S. § 914;
Sawin v. Kenny, 93 U. S.
289;
United Mine Workers v. Coronado Coal Co.,
259 U. S. 344,
259 U. S.
382.
[
Footnote 23]
Fidelity & Deposit Co. of Maryland v. Sherman Machine
& Iron Works, 62 Okl. 29, 161 P. 793.
[
Footnote 24]
Board of County Comm'rs v. United States, 308 U.
S. 343, and
Deitrick v. Greaney, ante, p.
309 U. S. 190.