Klamath and Modoc Tribes v. United States

• Decision Date: 22 January 1971
• Docket Number: 87-62.,No. 125-61,125-61
• Citation: 436 F.2d 1008
• Parties: KLAMATH AND MODOC TRIBES and Yahooskin Band of Indians et al. v. The UNITED STATES. Elva G. ANDERSON et al. v. The UNITED STATES.
• Court: U.S. Claims Court

436 F.2d 1008 (1971)

KLAMATH AND MODOC TRIBES and Yahooskin Band of Indians et al. v. The UNITED STATES.

Elva G. ANDERSON et al. v. The UNITED STATES.

Nos. 125-61, 87-62.

United States Court of Claims.

January 22, 1971.

COPYRIGHT MATERIAL OMITTED

Glen A. Wilkinson, Washington, D. C., attorney of record, for Klamath and Modoc Tribes and Yahooskin Band of Indians and others. Angelo A. Iadarola, Richard A. Baenen and Wilkinson, Cragun & Barker, Washington, D. C., of counsel.

William E. Rollow, Washington, D. C., attorney of record for Elva G. Anderson and others.

Floyd L. France, Washington, D. C., with whom was Asst. Atty. Gen., Shiro Kashiwa, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

DAVIS, Judge.^*

These cases present challenges to the Federal Government's disposition of Indian lands in Oregon. The Klamath Indian Reservation, in that state, was created by the Treaty of October 14, 1864 (16 Stat. 707) for the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians. As of November 1953, the reservation consisted of approximately 860,000 acres, the bulk of which was forest, but also included open range, marshland, bush, and farm property. During the 1930's and 1940's continual pressures were exerted both from within and outside of the tribe for termination of federal supervision over it. Internally, two factions favored termination, but differed as to the proper method of accomplishment. One, led by the tribal governing body, demanded the retention of the tribal entity and of tribal rights. The other, headed by Wade Crawford, a member of the tribe and of its executive committee, favored the immediate creation of individual Indian rights, dissolution of the tribe, and distribution of the tribal assets to the individual Indians.

In 1953 the Congress adopted a resolution¹ declaring its policy to be to effect termination, at the earliest possible time, of federal control over various Indian tribes, including the Klamath. The resolution directed the Secretary of the Interior to submit appropriate drafts of legislation to implement this policy, which he did, and on August 13, 1954 Congress enacted the Klamath Termination Act.² The basic scheme of that statute, which was acceptable to all tribal factions, was to give each adult member whose name appeared on the final tribal roll an election between withdrawing from the tribe and having his interest in tribal property commuted to money to be paid to him, and, on the other hand, remaining in the tribe and participating in a nongovernmental tribal management plan.³

To pay the withdrawing members, the Secretary of the Interior was authorized to employ management experts who would (1) have an appraisal made of all tribal property; (2) determine and select the portion of tribal property which, if sold at the appraised value, would cover the claims of withdrawing members; (3) arrange for the sale of such property and the distribution of the proceeds; and (4) have a tribal management plan prepared for the remaining Indians. These tasks were to be completed at the earliest practicable time but not later than August 13, 1958.⁴

The tribal membership was to be determined by closing the tribal rolls as of midnight, August 13, 1954.⁵ Upon publication in the Federal Register of the final roll, the rights in tribal property of each person whose name appeared on the roll were to become personal property which was descendible and devisable.⁶ (The final roll appeared in the Federal Register on November 21, 1957.)

The management specialists retained by the Secretary in turn engaged the Stanford Research Institute to formulate guidelines for the apportionment, selection, sale and distribution of the tribal assets. The Institute's preliminary report submitted in 1956 predicted that between fifty and seventy per cent of the members would elect to withdraw from the tribe. The 1954 Act had been drafted on the assumption that only a small proportion of the tribe would so elect. Withdrawal of the larger number would call for the sale of a considerable portion of the tribal assets to generate the money needed to pay the withdrawing members. The Stanford Institute report noted that, since the principal tribal asset was the forest, a massive withdrawal would require the liquidation within a few years of the major part of the timber lands. Such a liquidation, the report stated, would not be in the best interests of either the withdrawing or remaining Indians, or of the regional economy or the nation as a whole. The harm would result because so much timber would have to be sold that it would glut the local market and reduce prices on all timber sold in the area.⁷ Moreover, the sales, in the Institute's judgment, if not restricted by a sustained yield requirement,⁸ would severely deplete the timberlands and adversely affect the watershed, jeopardizing farm production and water power developments in the Klamath Basin, and subjecting both the remaining timberland and adjacent forests to increased fire hazards and insect attacks.

In response to these unanticipated problems, on August 14, 1957 Congress amended the Termination Act of 1954 by providing that no sales of tribal property could occur until the end of the second session of the eighty-fifth Congress (August 24, 1958), and by extending the final termination date from August 13, 1958 to August 13, 1960.⁹ (The Indians now represented by the Klamath plaintiffs agreed to these extensions, while those represented by the Anderson plaintiffs did not.)

This 1957 Act did not delay the appraisal required by the original legislation, which was performed by Western Timber Services and submitted to the Secretary of the Interior who accepted it on February 20, 1958. In April 1958 the election was held; 1660 members or 77.825 per cent of the tribe chose to withdraw, 473 members to remain. An appropriate segment of the tribal property was set aside to pay the withdrawing members, which consisted of about 78 per cent of the Klamath Forest, an area known as the Klamath Marsh, timberlands not susceptible to sustained yield management, farm and grazing lands, buildings, miscellaneous tracts, and personal property. The remaining tribal property was included in the tribal management plan, and title to it was subsequently transferred by the Secretary of the Interior to a private trustee.

Meanwhile, Congress held hearings on further modifications of the Termination Act, and the Act was again amended on August 23, 1958.¹⁰ This amendment made several significant changes in the termination scheme. First, the sale of any forest units was delayed until April 1, 1959,¹¹ and the final termination date was extended from August 13, 1960 to August 13, 1961.¹²

Second, restrictions were imposed on the manner of sale of that part of the Klamath Forest selected for disposition. It had to be offered in appropriate units, on competitive bidding, to private purchasers who had to submit plans for the management of the timber resources on sustained yield principles, as well as for the conservation of soil and water resources.¹³ These plans were required to be incorporated as conditions in the conveyancing instruments executed by the Secretary of Agriculture. If a condition were breached by the purchaser, a forfeiture clause provided for a reversion of title to the United States. In addition, a minimum price was set for each forest unit, its "realization value". The realization value was to be derived from a review by three qualified appraisers of the prior appraisal by Western Timber Services. Each appraiser was to give full consideration to all reasonably ascertainable elements of land, forest, and mineral values, and was to estimate the fair market value of the forest units as if they had been offered for sale in a competitive market, without limitation on use (emphasis added), during the interval between the adjournment of the Eighty-Fifth Congress (August 24, 1958), and August 13, 1961. In the event of disagreement among the appraisers, this realization value would be determined by averaging their estimates.¹⁴

Third, the Government was to acquire by proclamation of the Secretary of Agriculture any "sustained yield" units remaining unsold on April 1, 1961 which, together with the Klamath Marsh, did not have an aggregate realization value in excess of $90,000,000.¹⁵ The Klamath Marsh was also to be taken by the Government on April 1, 1961, and administered as the Klamath Forest National Wildlife Refuge.¹⁶

Finally, the Act provided for the termination of the services of the management specialists and for the transfer of their functions to the Secretary of the Interior.

Pursuant to this 1958 Act, a review appraisal was made by three independent appraisers who were unable to agree on one value. The realization value of these units was determined, therefore, by averaging their estimates. In December 1958 the Secretaries of the Interior and of Agriculture jointly selected the portion of the Klamath Forest to be sold, and divided it into eleven units capable of sustained yield management. The units were advertised for sale, and prospective bidders submitted a number of sustained yield management plans to the Department of Agriculture as required by the 1958 amendments. However, only one actual bid was received for any of the eleven "sustained yield" units — the Antelope Desert Unit — and was accepted. A deed covering this area was executed in May 1960 to a large private corporation.

On April 1, 1961, the ten other "sustained yield" units remained unsold, and in accordance with the 1958 Act the Secretary of Agriculture transferred these lands to the National Forest System by Proclamation of April 13, 1961. The realization value, determined by averaging the three review appraisals,¹⁷ was deposited in the Treasury for the withdrawing Indians.

In 1959, Congress changed the date for the...