Sekaquaptewa v. MacDonald

• Decision Date: 16 December 1882
• Citation: 626 F.2d 113
• Parties: 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
• Court: U.S. Court of Appeals — Ninth Circuit

Page 113

626 F.2d 113

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,

Benjamin R. Civiletti, Attorney General of the United

States, on behalf of the United States, Defendant-Appellee.

No. 79-3339.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Feb. 11, 1980.

Decided Aug. 21, 1980.

Belinda K. Barrington, Phoenix, Ariz., on brief, for defendant-appellant.

John S. Boyden, Scott C. Pugsley, Salt Lake City, Utah, on brief; John Paul Kennedy, Salt Lake City, Utah, for plaintiff-appellee.

On Appeal from the United States District Court for the District of Arizona.

Before ANDERSON and SKOPIL, Circuit Judges, and BONSAL, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

This appeal represents the most recent chapter in the continuing controversy between the Navajo and the Hopi over disputed reservation lands. At issue here is approximately 50,000 acres which the Navajo claim is held exclusively by itself, and which the Hopi claim is held jointly by the two tribes. The resolution of this issue is dependent upon the location of a disputed boundary line. The court below granted summary judgment in favor of the Hopi. We affirm.

I. FACTUAL BACKGROUND

In 1882, President Arthur started the wheels of the present dispute in motion when he set aside, by an Executive Order, 2.5 million acres of land in northeastern Arizona (referred to as the 1882 Reservation). This was done for the use and occupancy of the Hopi and "such other Indians as the Secretary of the Interior may see fit to settle thereon." The 1882 Reservation is rectangular, about seventy miles long and fifty-five miles wide. In the Executive Order the boundaries to the reservation were described solely by lines of longitude and latitude. ¹

In 1900, 1901, and 1907, the lands along the southern and western boundaries of the 1882 Reservation were withdrawn, by Executive Order, for the use of the Navajo. Additionally, the Navajo were the "other Indians" which the Secretary of the Interior "saw fit" to settle on the 1882 Reservation with the Hopi.

For three quarters of a century, the Hopi and the Navajo coexisted on the 1882 Reservation; neither tribe had a clear right to the land. The Hopi claimed that they had exclusive beneficial use to all of the 1882 Reservation. The Navajo claimed an exclusive interest to almost four-fifths of the reservation.

To resolve the question created by the tribes' conflicting claims, Congress, in 1958, passed Public Law 85-547, 72 Stat. 403 (the 1958 Act). This act ratified the 1882 Reservation and authorized either tribe to initiate a quiet title action to determine their respective rights and interests to the land. Proceeding under this Act, the chairman of the Hopi filed suit against the Navajo and William Rogers, who was then the Attorney General of the United States. Pursuant to the terms of the act, a three-judge court was constituted to hear the case.

The first of what was to become a long line of published opinions in the present litigation was Healing v. Jones, 174 F.Supp. 211 (D.Ariz.1959) (Healing I ). ² The three-judge court found that the determination of the equitable interests and rights of the tribes presented a justiciable controversy and that the Act which conferred jurisdiction on the court was a proper exercise of Congressional power.

The second opinion was a thorough and exhaustive analysis of the merits of the controversy between the two tribes. Healing v. Jones, 210 F.Supp. 125 (D.Ariz.1962), aff'd 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963) (Healing II ). Healing II held that the Hopi were entitled to the exclusive possession of a portion of the 1882 Reservation, the area within Land Management District 6. As to the remainder of the 1882 Reservation, the court held that the Hopi and Navajo held joint, undivided, and equal interests to it. The jointly held area is referred to as the Joint Use Area. Unfortunately, the court concluded that it could not partition the Joint Use Area since the 1958 Act had not given the court that power.

The co-tenancy of the Navajo and Hopi in the Joint Use Area proved to be not only unsatisfactory to the tribes, but unworkable as well. Several other court decisions attest to this. ³ Finally, in 1974, Congress re-entered the dispute by passing another statute. 25 U.S.C. §§ 640d, et seq. This provided for the appointment of a mediator to assist in negotiating a settlement and partition of the Joint Use Area. If no voluntary agreement was reached within 180 days, the district court was given the authority to make a final partition of the Joint Use Area.

A federal mediator was appointed, but no voluntary settlement could be worked out. In 1975, the mediator submitted a report to the district court with a recommendation for the judicial partition of the Joint Use Area.

The mediator's report also raised a question as to the proper boundary for the southern and western sides of the 1882 Reservation. This is important because it affects the size of the Joint Use Area and therefore the total acreage subject to partition.

As previously noted, the Executive Order creating the 1882 Reservation described it in terms of longitude and latitude. The only official survey of the 1882 Reservation is referred to as the 1965 Survey. The 1965 Survey was begun in 1964 and approved by the Bureau of Land Management on August 9, 1965. There is no dispute over the fact that the 1965 Survey correctly established the boundary lines as they were originally described by President Arthur in his 1882 Executive Order.

Nevertheless, the Navajo maintain that the southern and western boundary lines of the 1965 Survey should not be followed. According to the Navajo, "by means of official surveys, protractions, and historical use, reliance, and estoppel," the southern boundary to the 1882 Reservation was approximately one and one-quarter miles north of the 1965 surveyed boundary, and the western boundary was approximately one-quarter mile east of the 1965 surveyed boundary for a distance of twenty-four miles. Since the Navajo Reservation abuts the southern and western lines of the 1882 Reservation, the net result of this argument is to add approximately 50,000 acres to the exclusively Navajo reservation lands.

Essentially, the Navajo argue in favor of the southern and western boundaries as they were shown by the so-called 1914 Survey. Actually, there never was a 1914 Survey; however, we will use that term as a description for the Navajo version of the boundary line. The Navajo rely upon the following series of erroneous partial surveys and protractions as having established the "true" southern and western boundaries to the 1882 Reservation. A partial survey was made of the area along the southern boundary in 1882 and 1883. This survey mistakenly placed the southern boundary north of its true location. The Commissioner of the General Land Office never saw and never approved this survey. A railroad protraction, based on the 1883 survey line, was approved by the Acting Commissioner of the General Land Office in 1904. This protraction repeated the erroneous location of the southern boundary and compounded the mistake by the inaccurate location of the western boundary. Another railroad protraction was approved by the General Land Office in 1907 which contained an inaccurate description of the southern and western boundaries to the 1882 Reservation. And, in 1909 and 1910 there was a resurvey of a portion of the southern boundary. This survey followed the 1883 line and repeated the earlier survey's erroneous location of the southern boundary. The plats from this survey were approved by the United States Surveyor General in 1914.

In addition to the previously explained survey evidence, the Navajo also rely upon the following evidence in support of their altered boundary. There are several maps prepared over the years by different federal agencies. These maps were apparently prepared in reliance upon the erroneous surveys and protractions which all followed from the original erroneous 1883 survey. Within the disputed area are some 758 acres of allotments which have been issued to individual members of the Navajo tribe and over 13,000 acres of railroad grant lands which have been placed in trust for the Navajo.

The Hopi, of course, favor the 1965 surveyed lines since they include another 50,000 acres into the Joint Use Area which is therefore subject to partition. The net result of this argument would mean that the Hopi and the Navajo, in theory, would equally divide the disputed 50,000 acres.

The first time it faced the boundary question, the district court agreed with the Hopi that the 1965 survey lines should be followed. The court held that the southern and western boundaries were determined in Healing II and that the Navajo argument was foreclosed by res judicata.

On appeal, this court reversed, finding that the "boundary issue was not foreclosed by the prior litigation (Healing II ) upon the application of the doctrine of either res judicata or law of the case." Sekaquaptewa v. MacDonald, 575 F.2d 239, 246 (9th Cir. 1978).

Following the remand, the tribes filed statements of their contentions and identification of their evidence on the boundary issue. After fully considering the question the court granted summary judgment in favor of the Hopi and the 1965 survey lines. ...