Masayesva v. Zah, CIV 74-842 PCT EHC.

• Decision Date: 13 March 1992
• Docket Number: No. CIV 74-842 PCT EHC.,CIV 74-842 PCT EHC.
• Citation: 792 F. Supp. 1165
• 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. 1165

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, Mary Gabrielle Sprague, Arnold & Porter, Denver, Colo., and Lawrence Hammond, W. Scott Bales, Meyer, Hendricks, Victor, Osborn & Maledon, Phoenix, Ariz., for plaintiff.

Terry E. Fenzl, Randolph H. Barnhouse, Brown & Bain, P.A., Phoenix, Ariz., for defendant.

K. Jerome Gottschalk, Robert M. Peregoy, Edgar T. Bristow, Native American Rights Fund, Boulder, Colo., and Philip Shea, Shea & Wilks, Phoenix, Ariz., for intervenors.

ORDER

CARROLL, District Judge.

In order to enter Findings of Fact and Conclusions of Law, this Court must decide whether it has jurisdiction to adjudicate the rights of the San Juan Southern Paiute Tribe ("Paiutes") in the 1934 Reservation ("Reservation") and what remedy is available to the Paiutes.

In summary, the Paiutes claim that they fall within the jurisdictional provision of 25 U.S.C. § 640d-7(a), contending that they qualify as "any other tribe of Indians claiming any interest in or to the area described in the Act of June 14, 1934", and that this Court has authority to partition land to the Paiute Tribe under section 7(b). The Navajo Nation¹ argues in turn, that the Paiutes are not a "tribe" under section 7(a), and even if found to be a tribe, the Paiutes' remedy is restricted to the allotment provision of section 8.²

The issues of whether the Paiutes are "any other tribe" within section 7(a) and whether partition is an available remedy under section 7(b) are analytically distinct and will be addressed separately.³

1. Does this Court have jurisdiction to determine the rights and interests of the Paiutes in the 1934 Reservation?

This Court's jurisdiction is strictly limited to that authorized by Congress. Sekaquaptewa v. MacDonald, 591 F.2d 1289, 1292 n. 8 (9th Cir.1979). To determine what jurisdiction was authorized by Congress, this Court must first focus on the language of 25 U.S.C. § 640d-7 and 640d-8. Section 640d-7 states, in relevant part:

(a) Authorization to commence and defend actions in District Court. Either tribe, acting through the chairman of its tribal council for and on behalf of the tribe, is each hereby authorized to commence or defend in the District Court an action against the other tribe and any other tribe of Indians claiming any interest in or to the area described in the Act of June 14, 1934, except the reservation established by the Executive Order of December 16, 1882, for the purpose of determining the rights and interests of the tribes in and to such lands and quieting title thereto in the tribes.

(b) Allocation of land to respective reservations upon determination of interests. Lands, if any, in which the Navajo Tribe or Navajo individuals are determined by the District Court to have the exclusive interest shall continue to be a part of the Navajo Reservation. Lands, if any, in which the Hopi Tribe, including any Hopi village or clan thereof, or Hopi individuals are determined by the District Court to have the exclusive interest shall thereafter be a reservation for the Hopi Tribe. Any lands in which the Navajo and Hopi Tribes or Navajo or Hopi individuals are determined to a have a joint or undivided interest shall be partitioned by the District Court on the basis of fairness and equity and the area so partitioned shall be retained in the Navajo Reservation or added to the Hopi Reservation, respectively.

Section 640d-8 states:

Notwithstanding any other provision of this subchapter, the Secretary is authorized to allot in severalty to individual Paiute Indians, not now members of the Navajo Tribe, who are located within the area described in the Act of June 14, 1934 (48 Stat. 960), and who were located within such area, or are direct descendants of Paiute Indians who were located within such area, on the date of such Act, land in quantities as specified in section 331 of this title, and patents shall be issued to them for such lands having the legal effect and declaring that the United States holds such land in trust for the sole use and benefit of each allottee and, following his death, of his heirs according to the laws of the States of Arizona.

This Court has previously held that the BIA's recognition of the Paiutes as an Indian tribe will be upheld, and the language of section 7(a) therefore clearly encompasses the Paiutes as "an Indian tribe." The BIA's decision requires a finding that the Paiutes historically existed as a separate tribal entity, therefore the Paiutes existed as an Indian tribe in 1934 as well. 25 C.F.R. § 83.7.⁴

The Navajo Nation argues that Congress did not intend to include the Paiutes within the scope of section 7, regardless of whether they are determined to be a tribe. The Navajo Nation contends that section 7(b) does not authorize partition to the Paiutes as it refers only to the Navajo and Hopi Tribes, that the provision for allotments in section 8 bars this Court from providing any other remedy to the Paiutes, and that Congress retains exclusive authority to create a reservation pursuant to 25 U.S.C. § 211. However, all of the Navajo arguments go to the remedy available if the Paiutes are found to have an interest in the 1934 Reservation, not to whether this Court has jurisdiction to adjudicate the rights and interests of the Paiutes in the Reservation.⁵

Moreover, the Navajo Nation's argument that the remedies provided indicate Congressional intent that this Court not exercise jurisdiction over Paiute rights in the 1934 Reservation is unpersuasive: Congress provided that this Court had jurisdiction over any tribe's claim to rights in the Reservation, but explicitly included only the Navajo and Hopi Tribe in the provision granting the Court authority to partition. The Navajo argument renders the statutory language authorizing an action against "any other tribe of Indians" superfluous.

Further, neither the Navajo nor Hopi Tribe cites any evidence that Congress would have excluded the Paiute Tribe from this Court's jurisdiction to determine rights under section 7(a) if Congress had been aware of the existence of the Paiutes as a tribe at the time of the Settlement Act. At the time of the Act, Congress believed that there were only a few Paiute Indians living on the 1934 Reservation. See H.R.Rep. No. 909, 93rd Cong.2d Sess 10 (1974) ("Sections 8 and 9 make allotments to a few Paiute Indians who were settled in the 1934 Reservation on the date of that Act and their descendents and confirms the remainder of the 1934 area in the Navajo"). It is not likely that Congress would have excluded the Paiute Tribe given that the legislation was intended to achieve "final settlement of all title claims." Sekaquaptewa v. MacDonald, 619 F.2d 801, 809 (9th Cir.), cert. denied, 449 U.S. 1010, 101 S.Ct. 565, 66 L.Ed.2d 468 (1980).

Finally, Congress' adoption of a judicial settlement between the Navajo and Hopi Tribes, versus legislative allocation of land to the Hopi Tribe, indicates a clear intention to avoid governmental liability for a "taking" of tribal land.⁶ Although a taking of Paiute tribal land was not discussed since Congress was not aware of the Paiute Tribe's existence, it is reasonable to assume that Congress would have had similar concerns with a taking of Paiute land. Statutes are interpreted to avoid takings absent explicit statements by Congress. Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). The exclusion of the Paiutes from a determination of the rights and interests in the 1934 Reservation may constitute a taking of Paiute land, though that issue is not before this Court.

The Paiutes also argue that the law of the case requires that this Court exercise jurisdiction to determine Paiute rights and interests in the Reservation.⁷ In a memorandum decision reversing Judge Copple's denial of the Paiutes' motion to intervene, the Ninth Circuit held that an evidentiary hearing on whether the Paiutes were a tribe was necessary before deciding whether this Court had jurisdiction pursuant to section 7(a). The Court stated:

The Paiutes allege that they are a "tribe" and thus that they fall within the explicit grant of district court jurisdiction under 25 U.S.C. § 640d-7(a). When, as here, the question of jurisdiction is so intertwined with the merits of the action, it is inappropriate for the district court to find that there was no subject matter jurisdiction without holding an evidentiary hearing on that issue. Citation omitted.

Sidney v. Zah, 725 F.2d 691 (9th Cir.1983).

The Navajo Nation argues that the doctrine of law of the case does not apply here because the Ninth Circuit did not address the merits of the issue, citing Mirchandani v. United States, 836 F.2d 1223, 1225 (9th Cir.1988) (the law of the case applies "only with respect to issues previously determined by the appellate court"). The Nation contends that the Ninth Circuit merely held that an evidentiary hearing was required to determine the Paiutes' tribal status.

Though conceding that the Ninth Circuit did not expressly hold that this Court had jurisdiction over the Paiutes under section 7(a) if the Paiutes were found to be a tribe, the Paiutes argue that the Ninth Circuit necessarily decided that issue; i.e. the Court had to reject the Navajo argument on appeal that there was no jurisdiction to determine Paiute rights regardless of whether they were a tribe due to the provision for Paiute allotments. In Mirchandani, the Ninth Circuit recognized that "district courts are not free to decide issues on remand that were previously decided either expressly or by necessary...