AM. INDIANS RESIDING ON MARICOPA-AK CHIN v. US

• Citation: 667 F.2d 980
• Decision Date: 02 December 1981
• Docket Number: No. 235.,235.
• Parties: The AMERICAN INDIANS RESIDING ON the MARICOPA-AK CHIN RESERVATION v. The UNITED STATES.
• Court: Court of Federal Claims

667 F.2d 980

The AMERICAN INDIANS RESIDING ON the MARICOPA-AK CHIN RESERVATION v. The UNITED STATES.

No. 235.

United States Court of Claims.

December 2, 1981.

COPYRIGHT MATERIAL OMITTED

Alan J. Cox, Phoenix, Ariz., attorney of record, for plaintiff, Z. Simpson Cox, Phoenix, Ariz., Ira I. Schneier, Tucson, Ariz., Sandra L. Massetto, Cox & Cox, Phoenix, Ariz., of counsel.

Richard L. Beal, Washington, D. C., with whom was Asst. Atty. Gen., Carol E. Dinkins, Washington, D. C., for defendant.

Before FRIEDMAN, Chief Judge, and BENNETT and SMITH, Judges.

OPINION

PER CURIAM:

This case comes before the court on the exceptions of the parties to the recommended decision of Trial Judge Kenneth R. Harkins, filed September 16, 1980, pursuant to Rule 134(h), having been submitted on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge's comprehensive opinion, as hereinafter set forth,^* we hereby affirm and adopt the decision as the basis for our judgment in this case, with the deletion of his discussion as to plaintiff's remedies on potential claims that arose after August 13, 1946. As to this matter, we add the following paragraph.

As set forth in the trial judge's decision, the record is to be closed on any further claims of plaintiff that arose before August 13, 1946. This conclusion is required in view of the difficulty and expense of further accountings and the doubtful existence of any additional substantive claims. But plaintiff is not precluded from pursuing claims that arose after August 13, 1946. Such claims are cognizable in this court. 28 U.S.C. § 1505 (1976). However, these claims must be developed independently and not as the result of an accounting ordered by this court. Unlike the Indian Claims Commission, this court has no equity jurisdiction to entertain a suit for an accounting except in aid of a judgment of liability against the Government. Klamath & Modoc Tribes v. United States, 174 Ct.Cl. 483 (1966). Finally, it should be noted that any such claims are subject to the appropriate statute of limitations and must be filed within 6 years after the claim first accrues. 28 U.S.C. § 2501 (1976).

OPINION OF THE TRIAL JUDGE

HARKINS, Trial Judge:

This case involves the last remaining cause of action — for a general accounting — in the petition filed August 8, 1951, by plaintiff, the American Indians residing on the Maricopa-Ak Chin reservation. The case was transferred to the court on July 13, 1978,¹ after trial by the Indian Claims Commission (the Commission) on May 16, 1977, on the general accounting cause of action. Proof was closed in this court on February 27, 1979, and posttrial briefing was completed February 11, 1980. Plaintiff is entitled to recover. Defendant has failed to account, in accordance with the fiduciary standards applicable to Indian funds and property, for funds received and held for plaintiff's benefit and for property it managed.

Plaintiff's 1951 petition stated six causes of action against the United States, as plaintiff's guardian: (1) failure to develop the water and agricultural resources of the reservation; (2) failure to prevent encroachments on reservation lands by the State of Arizona, other non-Indian organizations, and individuals; (3) failure to protect plaintiff from predatory attack by warlike tribes of Indians and by whites; (4) failure to provide an adequate educational system, equal to standards required by the State of Arizona; (5) failure to provide sufficient medical, dental, and sanitation facilities; and (6) for a full and complete accounting of income and disbursements and for funds, assets, and properties administered by defendant. The second and third causes of action were dismissed on March 7, 1968, on plaintiff's motion without trial;² the fourth and fifth causes of action were dismissed on October 15, 1969, on defendant's unopposed motion;³ the first cause of action was dismissed with prejudice on September 19, 1973, after trial.⁴

Plaintiff's demand for a general accounting was not expeditiously handled at the Commission. The General Services Administration's (GSA) accounting report, filed April 16, 1971, applied to four Indian Claims Commission dockets.⁵ The GSA report, which contained 96 pages, purported to be a general accounting for all of the Pima-Maricopa Indian tribes of Arizona for the period from March 3, 1883, to June 30, 1951. The portion concerned with plaintiff's money and properties was contained on a scant eight pages.

Plaintiff filed ten exceptions to the GSA report on August 7, 1972; defendant's response was filed November 4, 1972. Plaintiff's principal exceptions to the GSA report were general and conclusory in form and emphasized defendant's failure to provide sufficient factual information to be meaningful.⁶ Other exceptions alleged particular transactions for which there was no accounting, such as leases of reservation lands, grants of rights-of-way, protection of water rights and disbursements of Indian funds.

In further proceedings before the Commission, plaintiff's exceptions were recast to make more definite. On January 14, 1976, five exceptions were dismissed.⁷ In its January 14, 1976, opinion, the Commission ruled that exception No. 1 as restated alleged inadequate accounting for seven agricultural leases and two rights-of-way. The Commission further concluded that information relative to the rights-of-way related to restated exception No. 2. The Commission found the following would be tried: restated exception No. 1; restated exception No. 2; exception No. 7 (disbursements of tribal funds); exception No. 9 (proper credits for interest); and exception No. 10 (reverse spending).⁸

Plaintiff's restatement of exception No. 1 asserted defendant in a wrongful continuing program leased plaintiff's reservation property seven times for agricultural purposes. In its January 14, 1976, order, the Commission concluded that six of the agricultural leases had not been shown to have been made prior to August 13, 1946. As a result, the Commission denied plaintiff's motion for a supplemental accounting and granted defendant's motion for partial summary judgment with respect to the six post-1946 agricultural leases. The T. G. Decker lease, dated February 1, 1946, clearly arose before the August 13, 1946, cutoff. Defendant was directed to supply a copy of the T. G. Decker lease, and to make a full accounting of all funds collected between February 1, 1946, and January 31, 1956. In its January 14, 1976, order, the Commission also granted defendant's motion for partial summary judgment with respect to an accounting for a right-of-way over the reservation to the Arizona Edison Company, dated March 16, 1951. With respect to an alleged right-of-way of the Southern Pacific Railroad, defendant was directed to supply plaintiff with a copy of any right-of-way agreement with the railroad, and to account for any funds collected pursuant to such agreement.

Notwithstanding defendant's partial summary judgment with respect to the six post-1946 agricultural leases, in posttrial briefing, plaintiff again has asserted a claim for damages for those leases. Plaintiff's effort in this regard is an attempt to reinvigorate claims that the Commission by interlocutory order had denied. Plaintiff's challenge to the agricultural leasing program alleges the program constituted a substantive failure of the Government as trustee for the Indians to properly manage plaintiff's reservation. It is here considered and ruled upon under the doctrine that, until final disposition, interlocutory decisions made by the Commission from which no appeal was taken may be reexamined.

The issues for decision in this case are as follows:

Exception No. 1: Was the lease of part of plaintiff's reservation to T. G. Decker on February 1, 1946, at the fair rental value for an agricultural development lease as of the date it was made? Was the Decker lease part of a continuing policy and program to lease plaintiff's reservation for agricultural development?

Exception No. 2: Was plaintiff's reservation when established on May 28, 1912, subject to a right-of-way owned by the Southern Pacific Railroad? If the operation of the railroad was a continuing trespass on the reservation since 1912, how are damages to be measured?

Exception No. 7: Has defendant made a full and complete accounting of its administration of plaintiff's funds, assets and property from May 28, 1912, to August 13, 1946, and of any obligations that commenced before August 13, 1946, and continued after that date?

Historically, the ancestors of plaintiff were Papago Indians who until approximately 1874 had subsisted as floodwater farmers on lands located around Maricopa Wells, Arizona. The band irrigated lands by floodwaters from the intermittent Santa Cruz River, and sold surplus agricultural products to the stagecoach station in Maricopa Wells. When the land became less productive and the stagecoach line through Maricopa Wells was eliminated, the band settled at Ak Chin, approximately 11 miles south.

The lands historically occupied by this band of Indians were included in the aboriginal territory of the Pima-Maricopa Indians and the band's use of the land was permissive. Aboriginal title to the land on which plaintiff's reservation is located was extinguished at the time the aboriginal lands of the Pima-Maricopa Indians were taken. The Commission determined the taking date was November 15, 1883, for lands which had not been previously entered and taken by white settlers.⁹

The band had lived and farmed at Ak Chin for approximately 38 years when the reservation was established by Executive Order on May 28, 1912. The reservation contains 21,840 acres and includes all of the lands in Pinal County previously occupied by the band. The Ak Chin reservation is located on relatively flat desert terrain. No streams are located on the reservation, and the two washes...