Navajo Tribe of Indians v. United States

• Decision Date: 28 May 1980
• Docket Number: 299 and 353.,No. 69,69
• Citation: 624 F.2d 981
• Parties: The NAVAJO TRIBE OF INDIANS v. The UNITED STATES.
• Court: U.S. Claims Court

624 F.2d 981

The NAVAJO TRIBE OF INDIANS v. The UNITED STATES.

Nos. 69, 299 and 353.

United States Court of Claims.

May 28, 1980.

William C. Schaab, Albuquerque, N.M., attorney of record, for plaintiff. Paul D. Barber, Albuquerque, N.M. 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. Marvin E. Schneck, A. Donald Mileur, George R. Hyde and Glen R. Goodsell, Washington, D. C., of counsel.

Charles A. Hobbs, Washington, D. C., for The Three Affiliated Tribes of The Fort Berthold Reservation, Angelo A. Iadarola, Washington, D. C., for the Nez Perce Tribe of the Nez Perce Reservation, Jerry C. Straus, Washington, D. C., for the Blackfeet and Fort Belknap Reservations, and Frances L. Horn, Washington, D. C., for the Shoshone-Bannock Tribes of the Fort Hall Reservation, amici curiae. Wilkinson, Cragun & Barker, Patricia L. Brown and Robin A. Friedman, Washington, D. C., of counsel.

Before FRIEDMAN, Chief Judge, and DAVIS and SMITH, Judges.

ON REQUESTS FOR REVIEW OF TRIAL JUDGE'S OPINION

DAVIS, Judge:

Perhaps the most complex and troublesome of the remaining litigations under the Indian Claims Commission Act are the accounting claims of the Navajo Tribe (Nos. 69, 299 and 353). Since the transfer of those cases to us from the Commission in December 1976, the court has already passed five times upon separate aspects of one or another of the claims.¹ The present appeal concerns another very large chunk of those accounting problems.

The matrix of the case, as it comes to us, consists of a series of six accounting reports filed by the Government in 1953, 1958, 1959, and 1961 with respect to these accounting claims — mainly in docket No. 69. With the permission of the Commission, the Tribe filed, successively, numerous exceptions to these reports. The exceptions now before us are the supplementary exceptions. The Government then filed a motion to dismiss most of these supplementary exceptions (or to strike or for a more definite statement), giving its reasons in 145 separate parts of its motion.² Trial Judge Bernhardt has laboriously and carefully considered all aspects of this motion in an opinion (filed September 19, 1978) of some 188 pages which is now before us on requests for review by both sides.³

I

Our first task is to clear the field — to separate out the items which we should review at this time from those interlocutory rulings which are not appropriate for present appellate consideration but should be left for review (to the extent the issues survive) at the final conclusion of the Trial Division's determination. In Navajo Tribe, supra, 220 Ct.Cl. at ___, 597 F.2d at 1365-66 (1979), the court decided that it would automatically review, as of right, decisions of the Trial Division on dispositive motions in transferred Indian cases. The corollary of that ruling is that interlocutory, procedural rulings of the trial judges are not to be reviewed as of right unless certified by the trial judge under Rule 53(c)(2)(i). In the absence of certification, such procedural rulings will not be reviewed on an interlocutory basis unless the strict conditions of Rule 53(c)(2)(ii) are satisfied.⁴ Those are the provisions for interlocutory review which govern all non-appeal cases being handled in this court by a trial judge. No exception exists for Indian cases or, more specifically, for Indian accounting cases.⁵

In our view, most of the trial judge's rulings now brought before us fall into the category of interlocutory procedural decisions which do not merit prompt or immediate review under Rule 53(c)(2)(ii).⁶ On the Government's appeal, many of the challenged rulings deal with such routine procedural, non-dispositive matters as (a) the need for a more definite statement of a plaintiff's exception, (b) the necessity to cite specific statutes as the basis for an exception, (c) citation of irrelevant or incorrect statutes in an exception, (d) whether later filings or submissions by the defendant, or actions of the trial judge or the court, have mooted or answered an exception by the plaintiff, (e) whether plaintiff or defendant has better access to certain information or records, (f) whether the Government should hand over or make available to the Tribe certain records, documents, or materials, (g) how far the Government must go in explaining to plaintiff its handling of tribal funds or property, (h) deferral of decision by the trial judge until further clarification by the parties or until a later stage in the proceedings,⁷ (i) whether certain issues are more appropriately considered in later or separate proceedings, (j) denial by the trial judge of parts of the defendant's motion to dismiss an exception without prejudice to the Government's later renewal of the same issue, (k) claims by the Government that plaintiffs have split a single cause of action, (l) consolidation of various claims, and (m) rulings on plaintiff's motion to renew interrogatories. In addition, the defendant complains of several statements in the trial judge's opinion which are obviously dicta or preliminary observations rather than firm holdings. We include in the same class of interlocutory rulings holdings that the facts are not clear or developed enough to permit a proper disposition of the exception at this time.

For its part, plaintiff raises such comparable procedural, non-dispositive issues as (a) whether the citation in an exception of certain legislation is exclusive or illustrative; (b) the amount and detail of government information to which the Tribe is entitled; (c) the amount of specification which may be required of plaintiff at the exception stage of the accounting proceeding; (d) deferral of rulings by the trial judge until a later stage of the proceedings; and (e) rulings (or failures to rule) on burden of proof and the burden of going forward with the evidence. Like the Government, the Tribe also challenges some plain dicta in the trial judge's opinion.

We see no adequate reason why we should pass at this time on procedural or non-dispositive rulings of this type. They are truly interlocutory, subject to the trial judge's discretion, and may "wash out" in the course of the further proceedings. Nor do they meet our normal standards for immediate, interlocutory review (as described above). If we were to review, as of right, such rulings or statements in Indian accounting cases, we would be undertaking an enormous, perhaps impossible, burden — as this case demonstrates conclusively — without concomitant benefit to the proceedings or the litigation. We would also be prolonging these Indian accountings by all the months needed for the submission, argument, and decision of numerous interlocutory appeals.

Accordingly, we decline now to consider or rule upon all parts of Trial Judge Bernhardt's decision except those portions specifically mentioned and considered in the ensuing discussion (Parts III-X of this opinion). The group of rulings which we shall not consider includes, as well, the segments of the trial judge's opinion to which neither party has excepted, and in addition certain procedural questions with dispositive facets or overtones which we deem unworthy of separate consideration at this stage.

In declining to consider these parts of the trial judge's opinion, we do not adopt or refuse to adopt them. More than that, we neither approve nor reject them, nor intimate any view as to their contents or merits. The trial judge is free to reconsider them or to change them as he deems appropriate in view of later decisions, later occurrences in the litigation, or changes in his position.

II

Profiting from the unfortunate experience on these Navajo accounting claims, we direct that in the future the Trial Division, once a plaintiff has filed exceptions to an accounting, should not mechanically allow the defendant to file motions to dismiss or to strike, or for a more definite statement, etc. Instead, in Indian accounting cases the trial judge should decide in each instance — perhaps after a pretrial conference — (a) which issues raised by exception should be sent directly to trial, (b) as to which issues the parties (or one party) should be directed or permitted to file motions for summary judgment (or motions to dismiss) which can be decided separately from the trial,⁸ (c) which issues should be clarified by further filings or submissions by plaintiff or defendant (including the filing of an answer to the exception) before those issues are set for trial or scheduled for disposition by dispositive motion, and (d) if a motion to dismiss or for summary judgment is allowed to be filed, whether the trial judge or the court should initially decide that dispositive motion.

The objective should always be to conclude the litigation as speedily and simply as feasible, without needless or burdensome steps or complications. See Part IV of Navajo Tribe, supra, 220 Ct.Cl. at ___, ___, 601 F.2d at 540 (1979); Temoak Band of Western Shoshone Indians v. United States, 219 Ct.Cl. ___, ___, 593 F.2d 994, 998-99 (1979), cert. denied, ___ U.S. ___, 100 S.Ct. 469, 62 L.Ed.2d 389 (1979). As Chief Judge Friedman said in Navajo Tribe, supra: "There is a need for innovative handling and treatment, perhaps to devise new procedures that will end the delays that have plagued these cases for so many years. We have faith in the ability of the trial judges to develop such techniques." 220 Ct.Cl. at ___, 601 F.2d at 540.

There is a cognate problem to which we must also refer. In these Navajo cases, the trial judge commented unfavorably on the continuous flow of exceptions and supplemental exceptions from the plaintiff, and ruled that the supplemental exceptions then before him "must be the last." We confirm and emphasize that holding.⁹ There must be an end to the filing of exceptions to the existing accounting reports in these...