Hamilton v. MacDonald, s. 73-1151

Citation503 F.2d 1138
Decision Date12 September 1974
Docket NumberNos. 73-1151,73-2572,s. 73-1151
PartiesClarence HAMILTON, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe for and on Behalf of the Hopi Indian Tribe, Including All Villages and Clans Thereof, and on Behalf of Any and All Hopi Indians Claiming Any Interest in the Lands Described in the Executive Order Dated
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

George P. Vlassis (argued), Brown, Vlassis & Bain, Phoenix, Ariz., for defendant-appellant.

John S. Boyden (argued), Boyden & Kennedy, Salt Lake City, Utah, for plaintiff-appellee.

Before BARNES and KOELSCH, Circuit Judges, and FIRTH, * District judge.

OPINION

KOELSCH, Circuit Judge:

These appeals concern a further melancholy episode in the long-continuing and bitter litigation between the Hopi and Navajo Indian Tribes. By way of background, it should be noted that the Congress, by Act of July 22, 1958, P.L. 85-547, 72 Stat. 403, sought to provide for a judicial resolution of the long-standing territorial dispute between the two tribes over a reservation in Northeastern Arizona; the legislation authorized either tribe to commence or defend a suit against the other (and the Attorney General on behalf of the United States, holder of the trust title to the lands in question) in the United States District Court for the District of Arizona

'for the purpose of determining the rights and interests of said parties in and to said lands and quieting title thereto in the tribes or Indians establishing such claims pursuant to such Executive order as may be just and fair in law and equity. The action shall be heard and determined by a district court of three judges in accordance with the provisions of title 28, United States Code, section 2284, and any party may appeal directly to the Supreme Court from the final determination by such three judge district court.' 72 Stat. 403.

Thereafter the Hopi Indian Tribe brought suit, and a trial was held, extending over a period of months. The three-judge district court first decided that the determination of the tribes' equitable rights and interests in the reservation lands presented a justiciable question, and hence that the Act conferring jurisdiction was a proper exercise of Congressional power. Healing v. Jones, 174 F.Supp. 211 (D.Ariz.1959) (Healing I). It then decided, on the merits, that the Hopi were entitled to exclusive possession of a portion of the reservation (land management district 6), and that, as to the remainder (the joint use area):

'The Hopi and Navajo Indian Tribes have joint, undivided, and equal interests as to the surface and sub-surface including all resources appertaining thereto, subject to the trust title of the United States.

'It is just and fair in law and equity that the rights and interests of the Hopi and Navajo Indian Tribes be determined in the manner just stated, and that the respective titles of the two tribes in and to the lands of the 1882 reservation be quieted in accordance with that determination.' Healing v. Jones, 210 F.Supp. 125, 192 (D.Ariz.1962) (Healing II).

On direct appeal the Supreme Court, by decision 'common to both' Healing I and Healing II, affirmed the district court (Jones v. Healing, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963)), and the litigation temporarily came to rest. Some seven years later it resumed; on March 13, 1970, the Hopi Indian Tribe, alleging that it was still excluded from the joint use area, petitioned the district court for an order of compliance or writ of assistance to enforce the 1962 judgment. 1 The single-judge district court, being of the opinion that it lacked jurisdiction to issue process to enforce the judgment, denied the petition. We reversed, holding that the district court had jurisdiction, under P.L. 85-547 and the 'All Writs' Act, 28 U.S.C. 1651(a), to enforce the judgment by a writ of assistance. Hamilton v. Nakai, 453 F.2d 152 (9th Cir. 1972). We remanded the matter to allow evidence to be taken with respect to conditions existing in the joint use area, so that the district court might.

'Tailor the relief to be afforded to the facts that confront him, always bearing in mind that the objective is to achieve what the court has decreed, the exercise by the Hopi and the Navajo of their 'joint, undivided and equal interests as to the surface and subsurface and all resources appertaining thereto (in the lands in question), subject to the trust title of the United States." 453 F.2d at 162.

Certiorari was denied. 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972).

Following our mandate, the district court then held hearings, heard evidence, made Findings of Fact and Conclusions of Law, and on October 14, 1972, entered its Order of Compliance, 2 followed a few days later by a writ of assistance.

The matter is now here on the Navajo's appeals from these orders: The appeal in No. 73-1151 is from the Order of Compliance, and the appeal in No. 73-2572 is from those portions of the plan incorporated by the court in its order of April 23, 1973, which (1) restrict Navajo construction in the joint use area and (2) limit livestock grazing by members of the Navajo Tribe to one-half or less of the joint use area.

The defendant United States has not appealed; its position is that the issues now tendered by the Navajo Indian Tribe are substantially the same as those previously resolved by this court in Hamilton v. Nakai, supra. We shall consider the appeals in chronological order.

I. No. 73-1151-- The Appeal from the Order of Compliance
A. The jurisdiction of the district court

Appellant contends that the district court lacked subject-matter jurisdiction to order that the Hopi Indian Tribe be put in possession of one-half of the joint use area, on the theory that P.L. 85-547 did not confer jurisdiction on the three-judge district court to determine, as it did in Healing II, 210 F.Supp. at 192, that the Hopi Indian Tribe's joint and undivided interest is equal to that of appellant. While the Act authorized the district court to determine 'the rights and interests of said parties' in the land in question and to quiet title accordingly, appellant nevertheless argues that Congress thereby authorized the district court to determine the nature of the tribes' rights and interests in the reservation, but not their extent.

Essentially the same argument was made in Healing I. There the defendant United States, from the premise that Congress cannot assign the court a nonjudicial function, argued that the court lacked subject-matter jurisdiction because a determination of the tribes' 'rights and interests' required a nonjusticiable political judgment. The court concluded otherwise. It decided:

'Both the identity of the holders of the vested equitable interest in these lands and the extent and nature of their respective holdings may be determined through the exercise of judicial power . . .. The conclusion necessarily follows that this court has jurisdiction to hear and determine this cause . . ..' 174 F.Supp. at 218.

To paraphrase, the court interpreted its assigned task of determining the 'rights and interests' of the tribes to be that of 'identifying the holders of the vested equitable interests . . . in determining the extent and nature of the respective rights and interests of these holders, if any.' 174 F.Supp. at 218. It decided that the task could be accomplished employing traditional judicial means, that an Article III, 2 case or controversy existed, and that jurisdiction was proper. The conclusion that the court decided it had jurisdiction to determine the extent of the equitable interests follows inexorably. That the court has such jurisdiction is now the law of the case.

Moreover, in Healing II the court exercised that jurisdiction to determine that the two tribes had 'joint, undivided, and equal interests' in the joint use area. As noted earlier, the Supreme Court affirmed that judgment. (373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963).) And this court in Hamilton v. Nakai, supra, in response to the contention that the district court lacked jurisdiction to grant the relief sought by the plaintiff, observed that the relief sought, the possession of an equal portion of the joint use area, was the 'enforcement of the decree quieting title in co-tenants, which the court did have authority to enter.' 453 F.2d at 160. Particularly as no compelling reasons demonstrating those prior decisions in this case 'palpably erroneous' have been advanced, 3 see Pachmayr Gun Works, Inc. v. Olin Mathieson Chemical Corp., 502 F.2d 802, at 805 (9th Cir., filed July 12, 1974) 1B J. Moore, Federal Practice P0.404(1), at 401-403, we will not now reconsider the court's jurisdiction. 4

B. The writ of assistance

Likewise foreclosed is appellant's contention that the writ of assistance was improperly issued because such a writ does not lie against a party with a colorable claim to possession. In Hamilton v. Nakai, supra, this court expressly held that a writ of assistance to deliver joint possession in the joint use area to the excluded Hopi Indian Tribe was 'agreeable to the usages and principles of law.' 28 U.S.C. 1651(a), 453 F.2d at 157-158. 5

C. Potential equitable limitations on the relief ordered

Appellant's major contention with respect to the Order of Compliance is that under traditional equitable principles the relief granted is inappropriate for a court of equity.

1. The balance of hardships

Thus, appellant argues that...

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