Hamilton v. Nakai, 26588.
Citation | 453 F.2d 152 |
Decision Date | 18 January 1972 |
Docket Number | No. 26588.,26588. |
Parties | Clarence HAMILTON, 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-Appellant, v. Raymond NAKAI, 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; John N. Mitchell, Attorney General of the United States, on behalf of the United States, Defendants-Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
John S. Boyden (argued), Stephen G. Boyden (argued), Salt Lake City, Utah, Fennemore, Craig, Von Ammon & Udall, Phoenix, Ariz., for plaintiff-appellant.
Jack E. Brown (argued), of Brown, Vlassis & Bain, Phoenix, Ariz., Glen R. Goodsell (argued), Dept. of Justice, Washington, D. C., Harold E. Mott, Albuquerque, Ariz., Shiro Kashiwa, Asst. Atty. Gen., George R. Hyde, Washington, D. C., Richard K. Burke, U. S. Atty., Phoenix, Ariz., for defendants-appellees.
Before DUNIWAY and TRASK, Circuit Judges, and FERGUSON,* District Judge.
The action in which this proceeding was filed was authorized by P.L. 85-547, the Act of July 22, 1958, 72 Stat. 403. The purpose of the action, which was brought by the Hopi Indian Tribe against the Navajo Indian Tribe and the Attorney General on behalf of the United States, was to determine the rights and interests of the Hopi and Navajo Indian Tribes and individual Indians in a reservation in northeastern Arizona established by an Executive Order of December 16, 1882, and to quiet title to that reservation. A three-judge United States District Court held that, subject to the trust title of the United States, the Hopi Tribe had the exclusive interest in that part of the reservation lying within the boundaries of a land management district administratively defined in 1943, and that the Hopi and Navajo Tribes each had an undivided and equal interest in all the reservation lying outside the boundaries of the land management district. Healing v. Jones, D.Ariz., 1962, 210 F.Supp. 125. The Supreme Court affirmed this judgment. Jones v. Healing, 1963, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703.
On March 13, 1970, the Hopi Indian Tribe petitioned the District Court for an order of compliance or writ of assistance to enforce its rights as a co-tenant. More specifically, in paragraphs 3 and 4 of their prayer for relief, the Hopi requested an order:
The District Court denied the Hopi's petition on August 3, 1970. The Hopi appeal and we reverse.
The defendants-appellees argue on a number of grounds that this court lacks jurisdiction of the appeal.
The Navajo claim that the District Court's order is not a "final decision" within the meaning of 28 U.S.C. § 1291 because it fails to satisfy the requirements of Rule 54(b). That rule states that ". . . any order or other form of decision, however designated, which adjudicates fewer than all the claims . . . shall not terminate the action as to any of the claims . . . and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims. . . ." F. R.Civ.P. Rule 54(b). The Navajo argue that the Hopi's petition requested relief in the form of an injunction and of a writ of assistance, and that the District Court's order denied only the petition for a writ of assistance. They conclude that the order lacks finality under Rule 54(b) because the District Court passed on only one of these claims. The petition, however, seeks only one thing—enforcement of the rights of the Hopi as established by the decree, and the court denied the entire petition.
The Navajo further claim that the order of the District Court does not satisfy that part of Rule 58 which requires that The Navajo apparently feel that the District Court's one-sentence explanation of the order transformed it into an opinion or a memorandum, thereby failing to satisfy Rule 58. We think not. To allow the one-sentence explanation embodied in the order to transform it into an opinion or memorandum rather than an order would be the proverbial elevation of form over substance. The document was explicitly denominated an "order," and was apparently understood to be such by the parties. The Supreme Court has held that "a pragmatic approach to the question of finality has been considered essential to the achievement of the `just, speedy, and inexpensive determination of every action. . . .'" Brown Shoe Co. v. United States, 1962, 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510. We have no doubt that the court, the parties, and the clerk considered the August 3, 1970, order as final. There is no reason to subject the parties to further expense and delay by requiring them to return to the District Court to have a new order entered.
The appellees argue that this court does not have jurisdiction under 28 U.S. C. § 1291. That section vests jurisdiction in this court over appeals from all final decisions of the United States district courts ". . . except where a direct review may be had in the Supreme Court." P.L. 85-547 provided that ". . . any party may appeal directly to the Supreme Court from the final determination of the three-judge district court." This court has indicated that it lacks jurisdiction in the face of a similar statutory provision. See, e. g., United States v. F M C Corp., 9 Cir., 1963, 321 F.2d 534. However, for the reasons set out in Part IV of this opinion, we hold that the Hopi's petition should properly be acted upon by a single district court judge, thus making the order appealable here rather than to the Supreme Court.
P.L. 85-547 contained the following provision:
The three-judge district court convened pursuant to this Act decided that as to a portion of the 1882 Executive order lands:
Despite this judgment, the Navajo contend that the P.L. 85-547 did not confer jurisdiction on the three-judge district court or any member of it to issue a writ of assistance. The Navajo reason from the premise that the ". . . three-judge requirement is a technical one to be narrowly construed. . . ." Bailey v. Patterson, 1962, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L. Ed.2d 512. See also Jehovah's Witnesses in the State of Washington v. King County Hospital Unit No. 1 (Harborview), W.D.Wash., 1967, 278 F.Supp. 488, 493; Gate Film Club v. Pesce, S.D. N.Y., 1964, 236 F.Supp. 828, 829. They point out that P.L. 85-547 does not explicitly provide for the issuance of a writ of assistance.
The cases cited deal with the question whether a three-judge court should hear an...
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