Navajo Tribe of Indians v. United States, 229.

• Decision Date: 18 April 1979
• Docket Number: No. 229.,229.
• Citation: 597 F.2d 1362
• Parties: The NAVAJO TRIBE OF INDIANS v. The UNITED STATES.
• Court: U.S. Claims Court

597 F.2d 1362

The NAVAJO TRIBE OF INDIANS v. The UNITED STATES.

No. 229.

United States Court of Claims.

April 18, 1979.

William C. Schaab, Albuquerque, N. M., attorney of record for plaintiff. Rodey, Dickason, Sloan, Akin & Robb, Paul D. Barber and Sarah W. Barlow, Albuquerque, N. M., of counsel.

Dean K. Dunsmore, Washington, D.C., with whom was Asst. Atty. Gen. James W. Moorman, Washington, D.C., for defendant.

Jack Joseph, Chicago, Ill., amicus curiae.

Frances L. Horn, Washington, D.C., for Three Affiliated Tribes of the Fort Berthold Reservation, Shoshone Bannock Tribe of the Fort Hall Reservation, Blackfeet and Gros Ventre Tribes of the Blackfeet and Fort Belknap Reservations, Klamath and Modoc Tribes and Yahooskin Band of Snake Indians, Te-Moak Bands of Western Shoshone Indians, Yankton Sioux Tribe, and Turtle Mountain Band of Chippewa Indians, amicus curiae. Wilkinson, Cragun & Barker, Charles A. Hobbs, Jerry C. Straus, and Jerry R. Goldstein, Washington, D.C., of counsel.

Before FRIEDMAN, Chief Judge, and DAVIS, NICHOLS, KUNZIG, BENNETT and SMITH, Judges, en banc.^*

ON DEFENDANT'S REQUEST FOR REVIEW OF ORDERS OF THE TRIAL JUDGE

PER CURIAM:

This case is before the court on the government's request for review of two orders of Trial Judge C. Murray Bernhardt, dated March 22, 1978 and May 3, 1978, granting rehearing of an order of the Indian Claims Commission that limited the claim the plaintiff Indian tribe could present in this case. After considering the briefs, which include filings by amici curiae, but without oral argument, we affirm those orders of the trial judge.

I.

On August 8, 1951, the Navajo Tribe filed a timely petition with the Indian Claims Commission seeking compensation under section 2 of the Indian Claims Commission Act, 25 U.S.C. § 70a, for the extinguishment of the tribe's title to lands by the Treaty of June 1, 1868, 15 Stat. 667. The plaintiff sought judgment "in the amount of the fair value of the lands and interest in lands, wrongfully taken from petitioner, . . . saving and excepting only those lands partially restored to the petitioner embraced within its present reservation, . . . and such other further and general relief as to the Commission may seem just and warranted." (Emphasis added.) In 1954, well beyond the applicable limitations period (25 U.S.C. § 70k), the tribe filed an amended petition which did not contain the italicized language, supra.

In December 1976, the government filed with the Commission a motion for summary determination that the United States was not required to compensate the plaintiff for any lands it returned to the tribe after the date of the treaty. The government now contends, although it did not explicitly so argue in support of its motion, that (1) in the initial petition the plaintiff limited its claim to the value of lands located beyond the exterior boundaries of the Navajo Reservation, and (2) since the amended petition was filed after the statute of limitations had run, that document could not expand the claim to include compensation for lands that, when added to the reservation territory, were unavailable for tribal use and occupancy. These latter lands, located within the boundaries of the reservation, were added to the original reservation after 1868 but were subject to prior third-party rights.¹ The extent of the tribe's total aboriginal land holdings, which the Commission determined in Navajo Tribe v. United States, 23 Ind.Cl.Comm. 244 (1970), is no longer in dispute.

The Commission granted the government's motion for summary determination and limited the plaintiff's claim to lands "which the United States did not subsequently return to the Navajo Tribe." Navajo Tribe v. United States, 41 Ind.Cl. Comm. 85, 96 (1977). On November 29, 1977, the tribe filed a motion for rehearing with the Commission. The Commission heard oral argument on it, but, without ruling upon the motion, on February 15, 1978, transferred the case to this court pursuant to the Act of October 8, 1976, Pub.L. No. 94-465, 90 Stat. 1990.

On March 17, 1978, this court en banc entered an order authorizing Trial Judge Bernhardt to pass upon plaintiff's undecided motion. The trial judge issued two orders, dated March 22, 1978 and May 3, 1978, in which he concluded that the plaintiff's claim did include lands that, although added to the reservation after 1868, were unavailable to the tribe because they were subject to the prior rights of other persons.

In his order of March 22, 1978, the trial judge held that, at the time of the original petition, neither party was aware of the problem of third-party rights to lands within the reservation; that the plaintiff had intended by its exclusion of "restored" lands to exclude from its claim only those lands that were added to the reservation after 1868 and were actually available for tribal use and occupancy;² and that the 1954 amended petition merely clarified the ambiguous language in the original petition by seeking to place upon the government the burden of proving, as gratuitous offsets under 25 U.S.C. § 70a, any post-1868 cessions of aboriginal title lands to the tribe. The trial judge found that, when it granted the government's original motion for summary determination, the Commission itself was not apprised of the lurking problem of third-party rights.³ The trial judge therefore concluded that, in allowing the motion, the Commission misunderstood the issue to be whether the tribe could be compensated for all the aboriginal lands ceded to the United States in 1868, including lands actually restored to tribal use and occupancy, and that such a claim would have been an impermissible expansion of the original claim. The trial judge viewed the "delimiting" language of the original petition and its absence without explanation from the amended petition as reflecting the tribe's failure to focus upon the issue of third-party rights, not a conscious attempt to limit the scope of the claim.⁴ The trial judge concluded that the original petition placed the defendant on reasonable notice that the tribe would seek recovery for all aboriginal lands not in the tribe's actual possession, and that the 1954 amendment did not expand the scope of the original claim.

The trial judge determined that the real issue in the case was allocation of the burden of proving restoration of lands to the tribe after 1868. Unlike the Commission, which merely stated that the existence of third-party rights reducing the value of later additions to the reservation was "subject to proof," Navajo Tribe v. United States, 41 Ind.Cl.Comm. 140, 143 (1977), the trial judge placed the burden of proving offsetting transfers on the government. He reasoned that (1) any cessions of land to the tribe following the original taking were offsets, (2) the plaintiff in its original petition did not assume the burden of proving such offsets, and in the amended petition sought to place the burden expressly on the defendant, (3) the government affirmatively asserted such offsets as a defense, and (4) the government, as fiduciary and in practical terms, was better able to produce records of land transfers than were the Indians. The trial judge therefore ordered the government to provide specific information regarding post — 1868 cessions in order to determine their extent and eligibility as offsets under 25 U.S.C. § 70a.

The government's request for review raises both substantive and procedural questions. The substantive questions are (1) whether the plaintiff's claim covers third-party lands located within the reservation, (2) whether the provision for gratuitous offsets (25 U.S.C. § 70a) is applicable in this case, and (3) whether the defendant properly was required to prove post-1868 transfers of land to the tribe. The procedural issues concern the review of nonfinal rulings of trial judges in cases the Indian Claims Commission has transferred to this court.

II.

The threshold issue is whether the rulings of the trial judge are reviewable at this time. This depends upon (A) whether review is governed by the Rules of this court or by the Indian Claims Commission Act, 25 U.S.C. § 70s(b), and (B) if the Rules of this court apply, whether the trial judge's rulings were "dispositive" and hence reviewable as of right, or procedural and not reviewable as of right.

A. Under the Indian Claims Commission Act, interlocutory appeal from Commission orders to this court was limited to determinations "establishing the liability of the United States." 25 U.S.C. § 70s(b). If, in determining the motion for rehearing that was filed with the Commission, the trial judge in effect were functioning as the Commission and appeal of his rulings were subject to the same limitations that would have governed the Commission's decision on the motion, then his rulings probably would not be appealable, since they do not establish the liability of the United States. They merely decide that the plaintiff may assert a claim that the United States contends plaintiff cannot assert, and place upon the United States the burden of proving certain facts that are significant in determining that claim. Under the trial judge's rulings, the United States might never be held liable on the claim that the plaintiffs now may assert; his rulings, therefore, did not establish any liability of the United States.

Neither the parties nor the amici who have filed briefs on the procedural issues in this case urge this limitation upon our review of the trial judge's rulings, and we reject it. The existence of the Indian Claims Commission ended on September 30, 1978, and all of its pending cases were transferred to this court. When we consider those cases, we function as a court, not as the Commission. To treat the trial judge's rulings in this case as though he were the Commission would be to adopt a legal fiction that would be unnecessary and unwise.

Whatever may have been the reasons that led Congress to impose...