Masayesva v. Zah

• Citation: 792 F. Supp. 1172
• Decision Date: 13 March 1992
• Docket Number: No. CIV 74-842 PCT EHC.,CIV 74-842 PCT EHC.
• Parties: Vernon MASAYESVA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe, Plaintiff, v. Peterson ZAH, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe, for and on behalf of the Navajo Indian Tribe, Defendant, v. Evelyn JAMES, et al., Intervenors.
• Court: U.S. District Court — District of Arizona

792 F. Supp. 1172

Vernon MASAYESVA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe, Plaintiff, v. Peterson ZAH, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe, for and on behalf of the Navajo Indian Tribe, Defendant, v. Evelyn JAMES, et al., Intervenors.

No. CIV 74-842 PCT EHC.

United States District Court, D. Arizona.

March 13, 1992.

James E. Scarboro, David C. Warren and Richard P. Barkley, Arnold & Porter, Denver, Colo., for plaintiff.

Terry E. Fenzl and John W. Rogers, Brown & Bain, P.A., Phoenix, Ariz., for defendant.

K. Jerome Gottschalk, Robert M. Peregoy and Edgar T. Bristow, Native American Rights Fund, Boulder, Colo., for intervenors.

ORDER

RE: SCHOOL LANDS

CARROLL, District Judge.

Defendant Peterson Zah, on behalf of the Navajo Nation,¹ moves for partial summary judgment, requesting that this Court find that the Hopi Tribe and San Juan Southern Paiute Tribe ("the Paiutes" or "Paiute Tribe") do not have a claim to lands designated to the State of Arizona "for the support of common schools" in the Arizona Enabling Act. This is one of a number of motions for partial summary judgment by the Navajo Nation seeking to exclude certain categories of land from the adjudication of Hopi and Paiute interests in the 1934 Navajo Reservation.² The Hopi Tribe has cross-motioned for partial summary judgment.

Under Section 1 of the Act of June 14, 1934, 48 Stat. 960 (the 1934 Act), "all vacant, unreserved, and unappropriated public lands ... are permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as may already be located thereon ..." The Navajo Nation claims that the "school lands" designated in the Arizona Enabling Act are not "vacant, unreserved, and unappropriated", and thus are not subject to Hopi and Paiute claims. In order to be successful in this argument, the Navajo Nation must demonstrate both that the land at issue was granted to the State of Arizona pursuant to the Enabling Act, and that this grant renders the school lands "reserved" or "appropriated" within the meaning of the 1934 Act.

In relevant part, Section 24 of the Arizona Enabling Act states as follows:

That in addition to sections sixteen and thirty-six heretofore reserved for the Territory of Arizona, sections two and thirty-two in every township in said proposed State not otherwise appropriated at the date of the passage of this Act are hereby granted to the said State for the support of common schools and where sections two, sixteen, thirty-two, and thirty-six, or any part thereof ... have been sold, reserved, or otherwise appropriated or reserved by or under the authority of any Act of Congress, ... the provisions of section 2275 and 2276 of the Revised Statutes, 43 U.S.C. §§ 851 and 852, and Acts amendatory thereof or supplementary thereto, are hereby made applicable thereto and to the selection of lands in lieu thereof to the same extent as if sections two and thirty-two, as well as sections sixteen and thirty-six, were mentioned therein ...

Act of June 20, 1910, § 24, 36 Stat. 557, 572 (1910) (emphasis added). "The Enabling Act of each of the public-land states admitted into the Union since 1802 has included grants of designated sections of federal lands for the purpose of supporting public schools." Andrus v. Utah, 446 U.S. 500, 506, 100 S.Ct. 1803, 1807, 64 L.Ed.2d 458, reh. denied, 448 U.S. 907, 100 S.Ct. 3051, 65 L.Ed.2d 1137 (1980).

The Hopi Tribe argues that land previously withdrawn "for Indian purposes" pursuant to Executive Orders did not pass to the State pursuant to the "school lands" provision since land included in Executive Order Reservations had been otherwise appropriated at the date of the passage of the Enabling Act.³

The Navajo Nation, in turn, argues that Executive Order Reservation land was not "sold, reserved, or otherwise appropriated or reserved by or under the authority of any Act of Congress" as that land was withdrawn for Indian use pursuant to executive action. The Navajos contend that Indians are tenants at will while occupying an Executive Order Reservation, and "Congress has plenary authority to control use, grant adverse interests or extinguish Indian title", citing Sekaquaptewa v. MacDonald, 448 F.Supp. 1183, 1189 (D.Ariz. 1978), aff'd in part, rev'd in part, 619 F.2d 801 (9th Cir.), cert. denied, 449 U.S. 1010, 101 S.Ct. 565, 66 L.Ed.2d 468 (1980).

The Hopi Tribe counters that requiring an Act of Congress would read the first "reserved" out of the phrase "sold, reserved, or otherwise appropriated or reserved by or under the authority of any Act of Congress", and argues that effect must be given to every word or clause of a statute, citing 2A N. Singer, Statutes and Statutory Construction, § 46.06 (1984 ed. and 1989 Cum.Supp.).

More significantly, the Supreme Court has held that title to school lands cannot pass to a state subsequent to the creation of an Executive Order Reservation. See United States v. Oregon, 295 U.S. 701, 703, 55 S.Ct. 879, 879-80, 79 L.Ed. 1663 (1935) ("The surveys ... were approved subsequent to the establishment of an Executive Order Reservation, which appropriated these lots as a part of the Reservation, and no title or interest in them passed to the State of Oregon"). See also, United States v. Southern Pacific Transportation Co., 601 F.2d 1059, 1066 (9th Cir.1979) (the creation of an Executive Order Reservation appropriated school lands prior to survey under Section 7 of the California Enabling Act, 10 Stat. 244 (1853)).

Further, selection of lieu lands in the Arizona Enabling Act is subject to the provisions of 43 U.S.C. § 851, which provides for the selection of lieu lands where, before title could pass to the States, lands are "included within any Indian, military, or other reservation, or are, before title could pass to the State, otherwise disposed of by the United States." There is no requirement in 43 U.S.C. § 851 that the Indian reservation be one created by Congress.

Moreover, the State of Arizona selected lieu lands in exchange for school land sections located within the Executive Order Reservations prior to 1934. (See Exhibit 1 to Second Affidavit of Melanie Morris, attached to Hopi Reply indicating parcels selected in 1918 as indemnity lieu lands). This indicates that both Arizona and the United States treated land in Executive Order Reservations as "previously appropriated" under the Enabling Act since lieu lands were selected.

This Court therefore finds that land withdrawn pursuant to Executive Orders was "previously appropriated" within the meaning of the Arizona Enabling Act, and that the State of Arizona could not assert an interest in that land pursuant to the Enabling Act. Lands withdrawn pursuant to Executive Orders prior to the Enabling Act are therefore "unreserved" within the meaning of the 1934 Act, and not excluded from Hopi and Paiute claims.

Although this conclusion subjects a vast majority of the "school lands" to the claims of the Hopi and Paiute Tribes, in order to complete the record this Court will address the Navajo argument that both surveyed and unsurveyed "school lands" are "reserved" within the meaning of Section 1 of the 1934 Act.⁴

The Hopi Tribe concedes that surveyed school lands may be "reserved" under Section 1. When school lands are surveyed, and the survey is approved by the General Land Office, the State of Arizona's interest in those lands vests. United States v. Wyoming, 331 U.S. 440, 443-44, 67 S.Ct. 1319, 1322, 91 L.Ed. 1590, reh. denied, 332 U.S. 787, 68 S.Ct. 37, 92 L.Ed. 370 (1947); Beecher v. Wetherby, 95 U.S. 517, 524, 24 L.Ed. 440 (1877). However, the Hopi Tribe has demonstrated that some of the surveyed parcels were surveyed after land containing those parcels had been withdrawn pursuant to Executive Order.⁵ These parcels are subject to Hopi and Paiute claims since the State of Arizona did not obtain a vested interest in them, rendering the parcels "unreserved" under the 1934 Act.

Contrary to surveyed school lands, the Hopis argue that unsurveyed school lands were "unreserved" within the meaning of Section 1. The Hopi Tribe contends that where the land had not been surveyed, the State did not have a vested interest in the land. In Wyoming, 331 U.S. at 443-44, 67 S.Ct. at 1321-22, the Supreme Court stated,

Title to unsurveyed sections of the public lands which have been designated as school lands does not pass to the State upon its admission into the Union, but remains in the Federal Government until the land is surveyed. Prior to survey, those sections are a part of the public lands of the United States and may be disposed of by the Government in any manner and for any purpose consistent with applicable federal statutes. If upon survey it is found that the Federal Government has made a previous disposition of the section, the State is then entitled to select lieu lands as indemnity in accordance with the provisions incorporated into each of the school-land grants. The interest of the State vests at the date of its admission into the Union only as to those sections which are surveyed at that time and which previously have not been disposed of by the Federal Government.

The Supreme Court has reached similar results as to other state Enabling Acts. See Andrus, 446 U.S. at 507, 100 S.Ct. at 1807 (interpreting the Utah Enabling Act, 28 Stat. 109 (1894)); United States v. Morrison, 240 U.S. 192, 204-05, 36 S.Ct. 326, 330-31, 60 L.Ed. 599 (1916) (the Oregon Admission Act, 11 Stat. 383 (1859)); Heydenfeldt v. Daney Gold & Silver Mining Co., 93 U.S. 634, 640, 23 L.Ed. 995 (1877) (Nevada Enabling Act, 13 Stat. 30 (1864)).

The Navajo Nation argues that it is not necessary that the State of Arizona have title to the land, but only that the State's interest be sufficient to take the land out of the "unreserved" public lands category of Section 1. The Navajo Nation points to the...