Fort Sill Apache Tribe of State of Okl. v. United States

• Decision Date: 11 May 1973
• Docket Number: Appeal No. 2-72.
• Citation: 477 F.2d 1360
• Parties: FORT SILL APACHE TRIBE OF the STATE OF OKLAHOMA et al. v. The UNITED STATES.
• Court: U.S. Claims Court

477 F.2d 1360 (1973)

FORT SILL APACHE TRIBE OF the STATE OF OKLAHOMA et al. v. The UNITED STATES.

Appeal No. 2-72.

United States Court of Claims.

Decided May 11, 1973.

I. S. Weissbrodt, Washington, D. C., attorney of record, for appellants; David Cobb, Weissbrodt & Weissbrodt, Abe W. Weissbrodt, and Ruth W. Duhl, Washington, D. C., of counsel.

A. Donald Mileur, Washington, D. C., with whom was Asst. Atty. Gen., Kent Frizzell, for appellee.

Before COWEN, Chief Judge, DURFEE, Senior Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.

ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

BENNETT, Judge, delivered the opinion of the court:

The case now before the court presents several novel problems which do not appear to have been resolved before. The issues all revolve around the extent to which an Indian tribe may claim compensation for wrongdoing to the tribe unrelated to property rights, when the actual victims of the wrongdoing were the individual members of the tribe. For reasons to be detailed, the court affirms the decision of the Indian Claims Commission, 26 Ind.Cl.Comm. 281 (1971), in which it dismissed the claim without trial on the grounds of lack of jurisdiction over the subject matter, section 2, clause (2), and for failure to state a claim upon which relief could be granted under section 2, clause (5), of the Indian Claims Commission Act, 60 Stat. 1049, 1050, 25 U.S.C. § 70a(2), (5). The pertinent facts need to be outlined before examining the issues and their resolution.

The Chiricahua Apache Tribe, which is the predecessor to the appellants¹ now before the court, originally occupied ancestral lands covering large portions of the States of Arizona and New Mexico, along with portions of the Republic of Mexico. In the years 1876 and 1877, the tribe was officially removed from its ancestral tribal lands to the San Carlos Indian Reservation in Arizona. It is clear, however, that the Government authorities were less than successful in getting all of the Chiricahuas to stay on the reservation. The result was that at various times, several groups of aggressive, war-like Chiricahuas continued to occupy portions of the ancestral tribal lands, thereby coming in sporadic conflict with white settlers, miners, and ranchers. The hostile relations which existed between the Indians and the settlers reached a critical stage by 1886 when it became apparent that there was an urgent need to end the forays of the hostile groups of Apaches and attempt to bring peace to the Southwest.

There were several conflicting proposals presented for bringing about the desired peace. General Nelson Miles prepared a plan which, in part, called for relocating the Apache reservation to an area in the Oklahoma Indian territory, as a means of moving the tribe far enough from its original homelands to discourage further wanderings from the reservation. The plan ultimately adopted, however, was presented by General Sheridan and resulted in the wholesale relocation in 1886 of the entire Chiricahua Apache Tribe, men, women and children then at the San Carlos Reservation to Fort Marion near St. Augustine, Florida, where they were interned as prisoners of war. The hostile bands were likewise rounded up, one at a time, and removed to Florida. The surrender in Mexico, September 4, 1886, of Geronimo, Natchez, and other Apaches classified as hostile, represented the end of the forays by the Chiricahuas. Mangus, Geronimo, Natchez, and their followers were confined at Fort Pickens, Florida. In 1887 and 1888, the prisoners were moved to the Mount Vernon Barracks near Mobile, Alabama. It will be assumed for the purposes of this appeal, that this confinement constituted a wrongful arrest, imprisonment, and excessive punishment of some individual Indians.

During the first 3½ years of captivity, approximately 119 of the 498 Apache prisoners died, some apparently due to the effects of being moved from a high, very dry climate to a very low, humid climate. One hundred twelve of the Indian youth were sent to the Indian school at Fort Carlisle, Pennsylvania, where 30 died despite good sanitary conditions. Consumption was the principal cause of death. In the prison camps living conditions were bad. One Army report indicated the 6.8 percent death rate (as against a normal 2 percent) was aggravated among the young children by "their parents' neglect of the simplest instructions of physicians and the murderous quackery of old squaws." There was a high birthrate among the Indians in captivity so that their net loss in the first 3½ years was 38 of the original 498. The population, however, continued to decline over-all.

In October 1894, the 259 remaining Chiricahuas were again moved; this time to the Fort Sill Military Reservation in Oklahoma. They were kept at Fort Sill as prisoners of war until April 2, 1913, when they were finally released. After the period of internment, the majority of the members of the tribe went to the Mescalero Reservation in New Mexico,² while the rest stayed at the Fort Sill Reservation.³

In their petition before the Indian Claims Commission (ICC), the plaintiffs alleged that the 27 years of internment suffered by the members of the tribe gave rise to a cause of action under both 25 U.S.C. § 70a(2) for a cause sounding in tort the clause 2 claim, and under 25 U.S.C. § 70a(5) for a claim based on the absence of "fair and honorable dealings" the clause 5 claim. It is important to note that the appellants in this case are now asserting only a tribal claim for injuries to the tribe's traditional power and structure resulting from the years of internment. The appellants are not seeking damages for false arrest and imprisonment of each member of the tribe, apparently recognizing that these would be little more than multiple individual claims and therefore outside the jurisdiction of the Indian Claims Commission.⁴ See, Cherokee Freedmen v. United States, 161 Ct.Cl. 787 (1963); Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 161 Ct.Cl. 258 (1963). In seeking tribal damages for this type of injury, appellants are presenting a novel argument. They allege that the wrongful imprisonment of the members of the Chiricahua Tribe, simply because they were members, constituted a compensable injury to the tribe as well as to the individual Indians involved. They argue that the internment of the tribe's members took from the tribe its power to hold territory, its power to gather and accumulate food, horses and other resources necessary to its communal existence, and its power to govern its people. The loss of these powers, the appellants contend, constitutes a separate and distinct compensable injury to the tribe, recoverable under both clause 2 and clause 5 of 25 U.S.C. § 70a.

Any solution to the problem posed by the appellants requires the court to construe the pertinent sections of the Indian Claims Commission Act of August 13, 1946, ch. 959, 60 Stat. 1049, 25 U.S.C. § 70. On this matter the court has said:

* * * it should be possible to construe the statute liberally to affect its remedial purpose and intent, and strictly to limit undue abrogation of fundamental rights or to prevent undue extension of extraordinary remedies.

Otoe & Missouria Tribe v. United States, 131 F.Supp. 265, 271, 131 Ct.Cl. 593, 602, cert. denied, 350 U.S. 848, 76 S.Ct. 82, 100 L.Ed. 755 (1955).

In order to determine if the claim presented by the appellants represents an undue extension of an extraordinary remedy, the court must consider separately each of the possible bases for granting the ICC jurisdiction of these claims.

The primary ground on which jurisdiction might rest is the language of clause (2) of 25 U.S.C. § 70a.⁵ The appellants have attempted to characterize a series of multiple torts committed on the individual members of this tribe as also constituting a tort against the tribe itself making clause 2 applicable. There is a separate cause of action resting with the tribe only if the Act can be read to recognize a distinct right in the tribe to foster and protect its own form and structure. The focal point here is whether clause 2 recognizes such a protectible right in the tribe.

As support for its assertion that clause 2 does cover these facts, the appellants point to Baltimore & Potomac R.R. v. Fifth Baptist Church, 108 U.S. 317, 2 S.Ct. 719, 27 L.Ed. 739 (1883). The church in that case sued the railroad for disrupting its services and destroying the value of its property for church purposes by building and operating a locomotive storage and repair shop immediately adjacent to the church. The facility was found to be noisy, smoky, smelly, and dirty. After finding that the defendant's shop constituted a private nuisance, the Court stated:

* * * The plaintiff was entitled to recover because of the inconvenience and discomfort caused to the congregation assembled, thus necessarily tending to destroy the use of the building for the purposes for which it was erected and dedicated. * * * the congregation had the same right to the comfortable enjoyment of its house for church purposes that a private gentleman has to the comfortable enjoyment of his own house, and it is the discomfort and annoyance in its use for those purposes which is the primary consideration in allowing damages. * * *. 108 U.S. at 335, 2 S.Ct. at 731.

The appellants contend that this case recognizes a right in the church to sue for the thwarting of its common purposes and the annoyance and discomfort of its members, and therefore has important parallels to the case at hand. Characterized as the appellants have done, the Baltimore & Potomac R.R. case might serve as authority for the proposition that wrongdoing with respect to the individual members of the group also results in a distinct injury to the organization itself. The court does not read the cited case in that way, however. It seems clear that the Supreme Court was not awarding damages to the church because...