544 F.2d 396 (9th Cir. 1976), 74-1936, Sekaquaptewa v. MacDonald

Docket Nº:74-1936, 74-2215 and 76-1006.
Citation:544 F.2d 396
Party Name:Abbott SEKAQUAPTEWA, 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 December 16, 1882, Plaintiff-Appellee, v. Peter MacDONALD, Chairm
Case Date:September 27, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 396

544 F.2d 396 (9th Cir. 1976)

Abbott SEKAQUAPTEWA, 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 December

16, 1882, Plaintiff-Appellee,

v.

Peter MacDONALD, Chairman of the Navajo Tribal Council of

the Navajo Indian Tribe for and on behalf of the Navajo

Indian Tribe, including all Villages and Clans thereof, and

on behalf of any and all Navajo Indians Claiming any

Interest in the Lands Described in the Executive Order Dated

December 16, 1882, Defendant-Appellant,

Edward H. Levi, Attorney General of the United States, on

behalf of the United States, Defendant.

Nos. 74-1936, 74-2215 and 76-1006.

United States Court of Appeals, Ninth Circuit

September 27, 1976

Page 397

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

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

Before ELY and WALLACE, Circuit Judges, and CRARY, District Judge.*

Page 398

CRARY, District Judge:

The three consolidated appeals here before the Court are the most recent in the line of cases, the genesis of which is the Executive Order of December 16, 1882, creating a Hopi and Navajo Reservation of some 2,500,000 acres in northeastern Arizona. The portion of the Reservation in controversy is the area designated as the joint use area of the two tribes. In Healing v. Jones, 174 F.Supp. 211 (D.C.Ariz., 1959) (Healing I ), a 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 the Act conferring jurisdiction (Act of July 22, 1958) was a proper exercise of Congressional power. The Three-Judge Court in Healing v. Jones, 210 F.Supp. 125 (D.C.Ariz., 1962), aff'd 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963), (Healing II ), decided on the merits that the Hopi was 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 two tribes had joint, undivided and equal interests, subject to the trust title of the United States.

The District Judge, Chief Judge Walsh, whose orders are involved in each of the three appeals before this Court, was a member of the Three-Judge Court in Healing I and II.

The Navajo far outnumber the Hopi and over the years had taken over the area of the Reservation to a great extent. Neither the Government nor the Navajo sought to comply with the decree of the District Court, and in 1970 the Hopi Tribe petitioned the District Court for an order of compliance or writ of assistance to enforce its rights in the Reservation area. The District Court denied the petition on the grounds it did not have jurisdiction to issue the order or writ. By decision in Hamilton v. Nakai, 453 F.2d 152, 162 (9th Cir. 1971) (Hamilton I ), this Court reversed and remanded the matter holding that the District Court had jurisdiction and authority to issue a writ to enforce the judgment in Healing II, supra, and remanded the case for further proceedings.

On remand, the District Court held evidentiary hearings and on October 14, 1972, signed and filed its Findings of Fact and Conclusions of Law and entered an order of compliance and writ of assistance. 1 In summary,

Page 399

the order of compliance required that the Navajo reduce their livestock to one-half of the carrying capacity of the joint use area as determined by a 1964 soil and range inventory of the Reservation. They had one year, until October 14, 1973, within which to complete this reduction. Within a year from the date of the order a new survey was to be made by the United States and further reductions of livestock, to one-half of the actual carrying capacity as evidenced by that survey, was to be accomplished within six months thereafter. The order further provided that on October 14, 1973, all grazing permits were to be deemed cancelled and new permits were to be issued by the Bureau of Indian Affairs. Such cancellation was reaffirmed by the Court's order of January 25, 1974, but no new permits were issued as of the date of the contempt order, May 29, 1974. The new permits were to be allotted by the Tribes to their individual members and each Tribe was to be limited to permits up to one-half of the carrying capacity of the area. The order also restricted construction of new Navajo dwellings in the joint use area and required the United States to present to the Court within sixty days a plan to facilitate and implement the order as to the reduction of livestock by the Navajo and prevention of damages to and misuse of the range land in effecting such reduction.

On April 23, 1973, the Court approved and adopted the plans proposed by the Government for implementing the order of compliance and detailed the action to accomplish

Page 400

the reduction of Navajo livestock by October 14, 1973, and the restriction of Navajo construction on the joint use area.

The Navajo appealed from the order of compliance and portions of the Government plan. The United States did not appeal.

This Court reaffirmed the subject matter jurisdiction of the District Court and ruled that neither the order of compliance nor the adopted plan for the utilization of the joint use area constituted impermissible partition of the area, and that the order and the Government plan must be carried out, observing, "If, as appellant appears to suggest, compliance will not be voluntarily forthcoming, then the district court possesses an ample reservoir of power to command respect for its orders." Hamilton v. MacDonald, 503 F.2d 1138, 1146 (9th Cir. Sept., 1974) (Hamilton II).

The Government moved the District Court on October 17, 1973, for an order extending the period of compliance from October 14, 1973, to October 14, 1974, and the Navajo sought an extension to October 14, 1975. The District Court, on January 25, 1974, denied the motion and reaffirmed its order that all pre-existing permits were cancelled as of October 14, 1973. This portion of the order was appealed by the Navajo in 74-1936, one of the three appeals presently before this Court.

Following hearing on a Hopi motion to show cause, May 29, 1974, the defendants McDonald and the Navajo Tribe were cited for contempt of Court for failure to reduce livestock and to control new construction as ordered. The Court further ordered the Navajo to commence reduction of livestock within five days from the date of the order, the reduction to " * * * be pursued without regard to the voluntary compliance of individual Indians." A fine of $250 per day was imposed on the defendants until the livestock of the Navajo within the joint use area "is reduced to 8,139 sheep units year round."

The Navajo appealed the contempt order which is presently before this Court as appeal No. 74-2215.

Congress, on December 22, 1974, enacted Public Law 93-531 (1974 Act), 25 U.S.C. 640d, et seq. This statute provides for the appointment of a mediator to "assist in the negotiations for settlement and partition of the relative rights and interests as determined by the decision in * * * Healing v. Jones * * *." It further provided that if no voluntary agreement were reached within 180 days the District Court was "authorized to make a final adjudication including partition of the joint use area." Section 640d-18 2 of the law directed the Secretary of the Interior to forthwith commence reduction of livestock of the Navajo in the joint use area as provided in that Section.

Following this Congressional action and on July 11, 1975, this Court remanded the pending appeals 74-1936 and 74-2215 to the District Court for the purpose of that Court determining the effect of the 1974 Act on its prior orders.

District Judge Walsh, on October 14, 1975, held that the cases were not mooted by the 1974 Act and returned them to this

Page 401

Court with a memorandum in which he stated, among other things, that the Act was entirely in harmony with the Court's orders involved in the appeals and that nothing in the Act or in the legislative history discloses "any intention on the part of Congress to modify or alter the orders of this Court but on the contrary, a proposed amendment, which would have superseded the orders of the Court immediately failed of passage." The District Court, by a second order of the same date, October 14, 1975, determined that the Secretary's new five-year plan for livestock reduction was not authorized by Section 640d-18 and ruled that the Hopi motion "for an order directing the United States to proceed with reduction of livestock in the joint use area, without regard to the voluntary compliance of individual Indians is hereby granted and the United States is hereby directed to so proceed immediately and in accordance with the previous orders of this Court." (Emphasis added.)

The Navajo appeal, 76-1006, from the order of the District Court returning the two appeals to this Court, supra, is now pending. The United States also appealed from the October order but stipulated to dismiss its appeal on March 19, 1976.

This Court, on February 18, 1976, denied the Hopi motion to dismiss the Navajo appeal, 76-1006, without prejudice.

APPEAL 76-1006

The Court concludes it has jurisdiction of this appeal under Section 1291, Title 28, U.S.C., and that appellant MacDonald has standing to contest the October 14, 1975, order. The appeal is the last of the three appeals filed but is here considered first since it...

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