Grosz v. Andrus, 75-3186
| Decision Date | 07 July 1977 |
| Docket Number | No. 75-3186,75-3186 |
| Citation | 556 F.2d 972 |
| Parties | Donna GROSZ, Bruce Wilkie, and Patrick Wilkie, Jr., Plaintiffs-Appellants, v. Cecil ANDRUS, Secretary of the United States Department of the Interior, George Felshaw, Superintendent, Western Washington Agency, Bureau of Indian Affairs, Makah Tribal Court, and Hary McCarty, Jr., and Loretta Cooke, Individually, Judges of the Makah Tribal Court, and Timber Traders, Inc., and Del Hur Construction, a Washington Corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sidney J. Strong, Halverson, Strong, Moen & Chemnick, Seattle, Wash., argued, for plaintiffs-appellants.
Walter Kiechel, Jr., Acting Asst. Atty. Gen., Carl Strass, Michael A. McCord, Attys., Civ. Div., U. S. Dept. of Justice, Washington, D. C., argued, for defendants-appellees.
Appeal from the United States District Court for the Western District of Washington.
Before LUMBARD, * WRIGHT and ANDERSON, Circuit Judges.
Appellants are Indian landowners seeking to quiet title to a portion of their trust lands. The suit was brought against the United States and others. The district court dismissed the claims against all of the original defendants. However, before this court, the Indian landowners contest only the dismissal of their claim as it relates to the United States.
This suit arises from a dispute over the ownership of a road running through appellants' trust lands on the Makah Indian Reservation, Neah Bay, Washington. Appellants, enrolled Makah Indians, contend that they are the exclusive and individual owners, by virtue of inheritance, of that portion of the Shi Shi Beach Road that passes through their property on the reservation. The United States contends that it obtained a right-of-way over appellants' land in 1939 from appellants' predecessors in interest and that it maintained the road as a public road ever since.
The facts disclose that in 1939 the Bureau of Indian Affairs (BIA) investigated the desirability of constructing a new road on the reservation. Subsequently, on December 6, 1939, the Makah Indian Tribal Council, by resolution, agreed that a right-of-way should be granted. The resolution stated that the road was to be used by the public and the Makah Indians. The resolution also stated that the road would be an improvement on the reservation and that the consideration would be the performance of the improvement work and the benefits to accrue to the tribal lands (C.R. 53). On December 9, 1939, the BIA obtained the written consent of appellants' great-grandparents and their grandmother authorizing the United States "to use a right of way on and across" the lands in question (C.R. 54-55). This document, entitled "Right of Way Easement," recited the same consideration as stated in the Tribal Council's resolution. The Shi Shi Beach Road was then constructed in 1940.
In 1966 the Makah Tribal Council passed a resolution restricting the use of the road to non-commercial uses. Beginning in 1970, appellants attempted to deny access to Shi Shi Beach Road to the general public first by physical blockade and then by charging a toll. The BIA, on August 23, 1972, then petitioned the Tribal Council for an order directing plaintiffs to remove all blockades. 1 The Tribal Council issued a temporary order on the same day, and then on March 15, 1973, issued a permanent council order requiring appellants to refrain from preventing access to the road. This suit was filed on March 14, 1973.
The district court, first finding that this suit was "essentially one against the United States to quiet title to property," relied upon the 1972 amendment to 28 U.S.C. § 1346, which created a new section 28 U.S.C. § 2409a, 2 to find jurisdiction. The court then granted the government's summary judgment motion, stating:
(C.R. 99a)
Assuming, without deciding, that 28 U.S.C. § 2409a applies to the lands in question, we affirm the district court's actions, but for different reasons, 3 specifically, that the twelve-year statute of limitations contained in 28 U.S.C. § 2409a(f) has run.
28 U.S.C. § 2409a(f) states:
The crucial question is when the appellants or their predecessors in interest knew or should have known of the government's claim.
It is undisputed that appellants' predecessors in interest executed the right-of-way documents in 1939. While there is no evidence that these documents were read to or translated to appellants' predecessors, it is noted that the documents were witnessed by two persons, one of which has since died and the other's whereabouts are unknown. Appellants, by their own affidavits, contend that the execution of these documents was invalid, by alleging that their great-grandparents had no formal schooling and could not read or write English. Appellants also allege that their grandmother was addicted to alcohol and had other physical ailments that affected her competency to sign such a document during the last years of her life.
The district court, however, found that appellants' predecessors in interest "should have known about the easement and the tribal council resolution.", which were executed in 1939. This finding is supported by the...
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