Healing v. Jones
| Citation | 174 F. Supp. 211 |
| Decision Date | 25 May 1959 |
| Docket Number | Civ. No. 579 Prescott. |
| Parties | Dewey HEALING, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, et al., Plaintiff, v. Paul JONES, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
COPYRIGHT MATERIAL OMITTED
Boyden, Tibbals, Staten & Croft, John S. Boyden, Salt Lake City, Utah, for plaintiff. Fennemore, Craig, Allen & McClennen, Phoenix, Ariz., of counsel.
Norman M. Littell, Charles J. Alexander, Washington, D. C., for defendant Jones, Jos. F. McPherson, C. Lawrence Huerta and Walter F. Wolf, Jr., Window Rock, Ariz., Laurence Davis, Phoenix, Ariz., of counsel.
Jack D. H. Hays, U. S. Atty., Phoenix, Ariz., Floyd L. France, Atty., Dept. of Justice, Washington, D. C., for defendant William P. Rogers, Atty. Gen.
Before HAMLEY, Circuit Judge, and YANKWICH and WALSH, District Judges.
This action was instituted in the United States District Court for the District of Arizona on August 1, 1958, to obtain a determination of the rights and interests of the Navajo Tribe, Hopi Tribe, and individual Indians to the area set aside by Executive Order of December 16, 1882. The instituting of such an action was authorized by Congress by the Act of July 22, 1958, Public Law 85-547, 85th Cong., 1st Sess., 72 Stat. 402. Pursuant to that act, and on December 30, 1958, this district court of three judges was duly constituted to hear and determine the cause.1
The original plaintiff was Willard Sekiestewa, chairman of the Hopi Tribal Council of the Hopi Indian Tribe. He has since been succeeded as chairman of such council by Dewey Healing, and the latter has been substituted as party plaintiff. The defendants are Paul Jones, chairman of the Navajo Tribal Council of the Navajo Indian Tribe, and the United States, represented herein by William P. Rogers, Attorney General of the United States.
The answer filed by Paul Jones denies essential allegations of the complaint, sets up a counterclaim against plaintiff, and states a cross claim against the United States. Plaintiff moved to dismiss the counterclaim of Paul Jones, to strike certain portions thereof, and to require Paul Jones to file a more definite statement of his counterclaim.
The answer filed by the Attorney General on behalf of the United States contains two defenses, in the first of which it is asserted that this court is without jurisdiction. Pursuant to Rule 12(d) Federal Rules of Civil Procedure, 28 U.S. C.A., plaintiff moved for a preliminary hearing and determination of this first defense, which motion was thereafter granted.
The motions of plaintiff addressed to the counterclaim of Paul Jones and the matter of determining the merits of the first defense of the United States came on for hearing before this court at Phoenix, Arizona, on March 16, 1959. In disposition of these matters this court has today entered an order dismissing the first defense of the United States, denying the motion to dismiss the cross complaint, granting in part the motion to strike portions of the counterclaim, reserving for future disposition the remainder of the motion to strike and the motion for a more definite statement of the counterclaim, and giving plaintiff twenty days to serve and file his reply.
The purpose of this opinion is to explain the reasons of the court for the action taken.
The first defense of the United States in which the jurisdiction of this court is challenged is based on the ground that the rights and interests to be determined herein present a political and not a judicial question. Therefore, it is asserted, the pleadings do not present a judicial case or controversy within the meaning of Article III, § 2, of the Constitution.
Jurisdiction to hear and determine this cause was purportedly conferred upon this court by the Act of July 22, 1958, supra. But Congress is without power to assign to the judicial branch any duties other than those which are properly judicial, to be performed in a judicial manner. Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246. Duties are properly judicial and are to be performed in a judicial manner if they are of a kind contemplated by Article III, § 2 of the Constitution. In so far as here relevant, § 2 reads:
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority * * to Controversies to which the United States shall be a Party * * *."
This provision of the Constitution does not contemplate that the courts shall or may exercise general supervisory power over the executive or administrative branches of the government. Keim v. United States, 177 U.S. 290, 293, 20 S.Ct. 574, 44 L.Ed. 774; Constitution of the United States of America, Rev. and Anno., 1952, Senate Document No. 170, 82d Cong., 2d Sess., page 546. See, also, The Federal Courts and the Federal System, Hart and Wechsler, 1953, pages 192-197. As Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 170, 2 L.Ed. 60:
In Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299, the principle just stated was given application in a case involving Indian matters. The court there said (187 U.S. at page 565, 23 S.Ct. at page 221):
"Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government. * * * "
In view of the foregoing, if the United States is correct in contending that the rights to be determined herein present a political and not a judicial question, it is also correct in concluding that this court is without jurisdiction to entertain the cause.
In further support of this view, the Attorney General contends that (1) the Secretary of the Interior never exercised powers conferred upon him in the Executive Order of December 16, 1882, in such a way as to vest any rights in any particular part of the lands described in that order in any particular Indians; and (2) in the Act of July 22, 1958, Congress did not purport to settle the question as to interests in the lands described in that order, and failed to furnish the court with any criteria or standards by which this court could settle the controversy. In connection with the latter contention, the Attorney General argues that the only criterion Congress purported to establish was that the court should recognize such claims "as may be just and fair in law and equity." Memorandum of Attorney General, page 3.
Consideration of this argument calls for analysis of the Act of July 22, 1958, pursuant to which this suit was brought.
In the first sentence of § 1 of this act it is stated that the lands described in the Executive Order dated December 16, 1882, "are hereby declared to be held by the United States in trust for the Hopi Indians and such other Indians, if any, as heretofore have been settled thereon by the Secretary of the Interior pursuant to such Executive order." It is next provided (second sentence of § 1) that specified Indian tribes and persons are authorized to commence or defend an action "for the purpose of determining the rights and interests of said parties in and to said lands and quieting title thereto in the tribes or Indians establishing such claims pursuant to such Executive order as may be just and fair in law and equity."
The tribes and persons authorized to appear as plaintiffs in such action are as follows: "The Navaho Indian Tribe and the Hopi Indian Tribe, acting through the chairmen of their respective tribal councils for and on behalf of * * * any Navaho or Hopi Indians claiming an interest in the area set aside by Executive order dated December 16, 1882, and the Attorney General on behalf of the United States * * *." The tribes and persons authorized to be sued as defendants include the tribes and persons named above "and any other tribe of Indians claiming any interest in or to the area described in such Executive order * * *." Section 1, second sentence.
Section 2 of the act makes it clear that the decision of the court is to include a determination as to whether the rights or interests which particular tribes, or individual members thereof, are found to have in all or portions of the described lands are exclusive or joint. Thus, the first sentence of § 2 of the act reads:
* * *"
The remainder of the Act of July 22, 1958, is not relevant to the present inquiry.
It therefore appears that the act purports to authorize the bringing of an...
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Littell v. Morton
...that the court had no jurisdiction to hear the dispute and sought dismissal, but the court held jurisdiction did exist. Healing v. Jones, 174 F.Supp. 211 (D.Ariz.1959). The action finally terminated with a sixty-seven page opinion confirming exclusively to the Hopi approximately 500,000 acr......
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Healing v. Jones
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