GILA RIVER PIMA-MARICOPA INDIAN COM. v. United States

• Decision Date: 17 April 1974
• Docket Number: Appeal No. 14-72.
• Citation: 494 F.2d 1386
• Parties: GILA RIVER PIMA-MARICOPA INDIAN COMMUNITY et al. v. The UNITED STATES.
• Court: U.S. Claims Court

494 F.2d 1386 (1974)

GILA RIVER PIMA-MARICOPA INDIAN COMMUNITY et al. v. The UNITED STATES.

Appeal No. 14-72.

United States Court of Claims.

April 17, 1974.

Alfred S. Cox, Phoenix, Ariz., for Gila River Pima-Maricopa Indian Community et al.; Z. Simpson Cox, Phoenix, Ariz., attorney of record. Cox & Cox, L. J. Cox, Jr., George S. Livermore, Stephen L. Cox, Phoenix, Ariz., Ira I. Schneier, C. M. Wright, Samuel P. Goddard, Jr., Tucson, Ariz., Wilkinson, Cragun & Barker, Washington, D. C., of counsel.

David M. Marshall, Washington, D. C., with whom was Asst. Atty. Gen., Wallace H. Johnson, for the United States.

Before DAVIS, SKELTON and NICHOLS, Judges.

ON APPEALS FROM THE INDIAN CLAIMS COMMISSION

DAVIS, Judge.

These are interlocutory cross-appeals from a ruling of the Indian Claims Commission setting the date of extinguishment of aboriginal title to an area in south-central Arizona previously found by the Commission to have been held by the Pima-Maricopa Indians (see 24 Ind. Cl.Comm. 301 (1970)). Neither side challenges, on these appeals, the extent of the acreage determined to have been held by Indian ownership; the only issue now before us is the date of "taking" (in the non-eminent-domain sense) by the Federal Government.¹

The Pimas² and Maricopas are two distinct tribes who have lived together along the Salt and Gila Rivers, in Arizona, since prehistoric times. Although speaking different languages, the two tribes form one unit for political, social, economic and military purposes, and have long cooperated in their use and occupation of the land. Before contact with whites, the Indians had developed successful irrigation techniques for farming, and had also established permanent villages and cultivated fields along the river banks. In spite of their generally sedentary nature, they used and occupied a large surrounding area.³ In an average year, farming produced only about one-half the tribes' subsistence, and the remainder was obtained by groups which travelled substantial distances to gather wild vegetation and fuel, as well as to hunt and fish, and also for grazing.

This ancestral homeland of the Pima-Maricopas came under United States sovereignty through the Treaty of Guadalupe Hidalgo in 1848 (acquiring from Mexico the portion north of the Gila River), and the Gadsden Purchase of 1853 (south of the river). The Indians were distinguished by their consistently friendly attitude toward whites, before and during the period of American migration and settlement. This characteristic was well known, and was remarked upon in Congress. Cong.Globe, 35th Cong., 2d Sess. 735 (1859) (Sen. Sebastian).

In 1859, Congress ordered that a reservation not to exceed 100 square miles be established for these two tribes. The specific location was to be determined by a survey (later promptly made) of the existing Pima-Maricopa villages. From 1876 to 1915, the Gila River Reservation was enlarged seven times by Executive Order of the President, the largest single addition coming in 1883 when President Arthur doubled its size from 180,000 to 360,000 acres, bringing it almost to its present-day extent (372,000 acres). (The reservation was at all times much smaller than the aboriginal area awarded below. See note 3, supra.)

During this period, white settlers established themselves in Arizona. The Civil War slowed migration for a while, but thereafter it resumed in good measure. In 1873 Congress set up the Gila Land District, which included almost all the lands occupied by the Pima-Maricopas. Act of February 18, 1873, 17 Stat. 465. In the same year, a land office was established at Florence, within the award area.⁴ But the finding below was that, by the mid-1880's, the amount of land patented at the Florence office had only minimal effect on Pima-Maricopa aboriginal title.⁵

Evaluating all the circumstances, the Commission found that the Pima-Maricopa aboriginal land was "taken" by the United States on the date of the 1883 Executive Order, except for individual tracts entered by white settlers before that time (these tracts were held to have been "taken" at the date of entry). 27 Ind.Cl.Comm. 11 (1972).

Both sides are dissatisfied with the 1883 date. The Pima-Maricopas urge that the land was acquired on a parcel-by-parcel basis through the entry of white settlers, until the establishment of districts under the Taylor Grazing Act of 1934, 48 Stat. 1269, effected (they say) a complete extinguishment of all their remaining Indian title. The Government counters that the Congressional authorization of the 1859 reservation was a clear and complete expression of the legislative purpose to end the Indians' aboriginal title in all the award area outside the reservation as then contemplated. Alternatively, defendant suggests that the 1873 creation of the Gila Land District is a more logical date than that of the 1883 Executive Order.

The base-line in this area of the law is, of course, the supremacy of Congress over matters of Indian title based on aboriginal possession. United States v. Santa Fe Pacific R. R., 314 U.S. 339, 347, 62 S.Ct. 248, 86 L.Ed. 260 (1941); Oneida Indian Nation v. County of Oneida, 414 U.S. 661 at 670-674, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974); Turtle Mountain Band of Chippewa Indians v. United States, 490 F.2d 935, 945-947, 203 Ct.Cl. ___ (1974). In Santa Fe, the Supreme Court also admonished against lightly implying extinguishment of aboriginal ownership. 314 U.S. at 354, 62 S.Ct. 248. It is important, too, to recognize, as we stressed in Turtle Mountain Band, supra, the dominating impact of the particular circumstances and particular history in appraising when the specific land was "taken" by Congressional action or authorization.

Applying these guidelines, we cannot accept the Government's point that the establishment of the Gila River Reservation in 1859 extinguished at that time the Indians' ownership of all their other lands. The available indices of Congressional intent do not warrant such a conclusion. The provisions setting up the reservation, a rider to an Indian Department appropriations bill, "authorized and required" the President "to cause to be surveyed * * * the tract or tracts of land lying on or near the Gila River, in the Territory of Arizona, New Mexico, now occupied by the confederated bands of Pima and Maricopa Indians * * *" and to set aside the surveyed area as a reservation. Act of February 28, 1859, 11 Stat. 388, 401, § 3-4. The reservation was not to exceed 100 square miles. Ibid, § 4. Nothing is said about extinction of Indian title or cutting off the Indians from other territory they were using. The very next section of the statute appropriated $10,000 for "suitable presents to the Pimas and Maricopas, in acknowledgement of their loyality to this government and the many kindnesses heretofore rendered by them to our citizens." Ibid, § 5.

The Senator who proposed the amendment in its initial form spoke of its goals in this way: "to survey off a small reservation which shall embrace Pima-Maricopa villages * * *. It is but ordinary justice to secure them the homes on which they reside, and this amendment proposes to go no further." Cong.Globe, 35th Cong., 2d Sess. 735 (1859) (Sen. Sebastian). A joint conference committee later added the 100-square-mile-maximum provision. In reporting the conference committee recommendations to the House, a Congressman said: "The committee were of the opinion that some section of country should be marked out as their locality. They thought it best, however, to restrict them to a section of country not exceeding one hundred square miles." Cong. Globe, 35th Cong., 2d Sess., 1407 (1859) (Rep. Greenwood). The same member praised the Pima-Maricopas for aiding white settlement by keeping hostile bands at a distance (perhaps indicating an intention not to confine these Indians strictly on their reservation). Ibid. These and other legislative comments are consistent with a purpose to encompass those Pima-Maricopa lands which embraced and surrounded the then villages, without cutting off the Indians from the additional lands used for hunting, foraging and grazing.

In this connection, the Indian Claims Commission thought it significant that these Indians were friendly and nonnomadic—so friendly and helpful that Congress gave them a special present in the 1859 Act, see supra—and that no attempt was made by the Government to remove or confine them on the reservation, so as to end their use and occupancy of other land. A far more probable design to attribute to Congress was deemed to be the desire to protect Pima-Maricopa villages and the surrounding fields from incursions by white settlers. These are reasonable inferences. As the Commission found, the Pima-Maricopa groups continued to use and occupy lands outside the 1859 reservation, as they had done before, and Government agents with knowledge of this use did not interfere with their activities.

It is revealing, too, that from 1876 to 1915 the President consistently enlarged the reservation, with Congress's acquiescence, in order to include more and more of the tracts being used and occupied by the Indians.⁶ As a result of increased white settlement after the Civil War the Indians' farming activities suffered through a lack of water, and (as the Commission found) they "began to move their villages and farming activities to other portions of their aboriginal lands * * *. To protect the Pima-Maricopa farm lands in these areas from intrusions by white settlers further portions of their aboriginal lands were reserved by the Executive Orders of August 31, 1876 (1 Kapp. 806) and June 14, 1879 (1 Kapp. 806, 807). Further enlargements of the Gila River Reservation were accomplished between 1879 and 1883 by Executive order." 27 Ind.Cl. at 18. See, also, for more detail, 24 Ind.Cl. Comm. at 334. On similar grounds the Salt River Indian Reservation of 46,627 acres was created for them by Executive Order in June...