Navajo Tribe of Indians v. State of N.M.
| Decision Date | 09 January 1987 |
| Docket Number | Nos. 84-1418,84-1764,s. 84-1418 |
| Citation | 809 F.2d 1455 |
| Parties | NAVAJO TRIBE OF INDIANS, Plaintiff-Appellant, v. STATE OF NEW MEXICO, et al, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Paul E. Frye (Elmer J. Lincoln, Jr. with him on the briefs), Window Rock, Ariz., for plaintiff-appellant.
Norman S. Thayer of Sutin, Thayer & Browne, Albuquerque, N.M. , for defendant-appellee State of N.M.
Lynn H. Slade of Modrall, Sperling, Roehl, Harris & Sisk, P.A., Albuquerque, N.M. (John R. Cooney, John S. Thal and Walter E. Stern of Modrall, Sperling, Roehl, Harris & Sisk, P.A., and Gary Crosby and Ellen Falk of Santa Fe Mining, Inc., Chicago, Ill., with him on the brief), for defendant-appellee Santa Fe Mining, Inc.
Maria A. Iizuka, Atty., Dept. of Justice, Washington, D.C. (F. Henry Habicht, II, Asst. Atty. Gen., William L. Lutz, U.S. Atty. for the D. N.M., Richard L. Beal, Atty., Dept. of Justice, San Francisco, Cal., and Jacques B. Gelin, Atty., Dept. of Justice, Washington, D.C., with her on the brief), for defendant-appellee U.S. of America.
William J. Darling of Eaves, Darling, Anderson & Porter, P.A., Albuquerque, N.M., on the brief, for defendant-appellee Norman Ashcroft.
James Bruce of Hinkle, Cox, Eaton, Coffield & Hensley, Santa Fe, N.M., on the brief, for defendants-appellees Fernandez Co., Ltd. and Don R. Smouse.
Before BARRETT and McKAY, Circuit Judges, and THEIS, Senior District Judge *.
The primary issue in this appeal is whether Section 12 of the Indian Claims Commission Act (ICCA) 1 divests the district court of jurisdiction over the Navajo Tribe's cause of action against the United States to affirm its title to unallotted lands within an Executive Order reservation that was "restored to the public domain" before all congressionally mandated allotments had been made to the Navajos living on the reservation.
On November 9, 1907, President Theodore Roosevelt issued Executive Order Number 709 which added approximately 1.9 million acres to the Navajo Indian Reservation in the territories of Arizona and New Mexico. 2 Shortly thereafter, when it was discovered that the boundaries of the reservation created by Executive Order 709 encroached upon the Jicarilla Apache Reservation, President Roosevelt issued Executive Order Number 744, 3 amending Executive Order Number 709 to correct the encroachment. 4 The President intended "that a temporary reservation of the lands be made until such time as the Indian occupants could be allotted." 5
The ink was barely dry on Executive Order Number 744 when a New Mexico congressman, in response to concerns of non-Indian settlers, introduced a joint resolution in Congress seeking to statutorily ensure prompt return to the public domain of all surplus, unallotted lands. The legislative report reflects the purpose of the joint resolution:
The committee on Indian Affairs, to whom was referred the resolution (H.J. Res. 152) concerning the Navajo Indian Reservation in New Mexico, report the same back with the recommendation that it do pass.
In view of the fact that the land in question was withdrawn from the public domain for allotment to the Indians in the northwestern part of New Mexico the necessity for and advisability of immediate legislation of this character is very apparent, for unless the resolution be passed before the adjournment of Congress the President will not have jurisdiction to restore the land as withdrawn and, furthermore, not allotted to public entry. The committee therefore has unanimously agreed upon, respectfully submits, and urgently recommends the passage of the resolution.
This resolution was referred to the Office of Indian Affairs, Department of the Interior, and the Favorable report of that Office, which is made a part of this report, authenticates the virtue of this resolution.
Washington, April 30, 1908.
Sir: I am in receipt, by your reference for report thereon, of copy of House joint resolution No. 152, entitled "Joint resolution concerning the Navajo Indian Reservation in New Mexico."
The resolution authorizes the President, whenever he is satisfied that all the Indians in any part of the Navajo Reservation in New Mexico and Arizona, created by Executive orders of November 9, 1907, and January 28, 1908, have been allotted to restore the surplus lands to the public domain.
You are advised that, because of the large number of Indians residing on public lands adjacent to the Navajo Indian Reservation in New Mexico and Arizona without any title to the lands occupied by them, it was necessary, in order to protect them in their homes, that a temporary reservation of the lands be made until such time as the Indian occupants could be allotted. It was not and is not the intention of the Department that lands which will not be needed for allotment purposes be withheld from settlement and entry any longer than will absolutely be necessary to insure the Indians securing their homes under authority of law without interference from white settlers.
Special Allotting Agents William M. Peterson and J. D. Kent are at present engaged in making allotments to these Indians, and if the joint resolution should become a law it will be possible to restore the surplus lands to the public domain as fast as the Indians in any particular tract have all been allotted.
The resolution has the approval of the Department, and it is therefore recommended that it be enacted as a law.
Copies of the Executive Orders of November 9, 1907, and January 28, 1908, creating the extension, are enclosed as requested.
Acting Commissioner
Hon. J.S. Sherman
Chairman, Committee on Indian Affairs
House of Representatives.
H.R.Rep. No. 1663, 60th Cong., 1st Sess. 1-2 (1908). After a Conference Committee compromised House and Senate differences, the joint resolution was passed and sent to the President, who signed it into law on May 29, 1908. Section 25 of the Act provided:
That whenever the President is satisfied that all the Indians in any part of the Navajo Indian Reservation in New Mexico and Arizona created by Executive Orders of November ninth, nineteen hundred and seven, and January twenty-eighth, nineteen hundred and eight, have been allotted, the surplus lands in such part of the reservation shall be restored to the public domain and opened to settlement and entry by proclamation of the President.
Act of May 29, 1908, ch. 216, Sec. 25, 35 Stat. 444, 457.
On December 30, 1908, President Roosevelt issued Executive Order Number 1000, 6 "restoring to the public domain" 7 unallotted lands within certain sections of the reservation created by Executive Order Number 709, as amended by Number 744, except for 110 unapproved allotments. Three years later, on January 16, 1911, President Taft issued Executive Order Number 1284, 8 restoring to the public domain additional surplus lands in that reservation. The United States thereafter, and before 1946, issued patents on parts of such land to the State of New Mexico as well as to the predecessors in interest of the defendant landowners in this case. The Tribe alleges in its complaint that, at the time Executive Orders Number 1000 and 1284 were issued, less than one-half of the eligible Navajos then living on the reservation had received allotments. For purposes of this appeal, we accept the Tribe's allegations as true. 9
Until 1946, Indian tribes could not litigate claims against the United States unless they obtained specific permission from Congress. Although the Court of Claims was created nearly a century before to hear claims against the United States, Congress excluded from the court's jurisdiction Indian claims based on treaties. Act of March 3, 1863, ch. 92, Sec. 9, 12 Stat. 765, 767. Sovereign immunity barred litigation of non-treaty claims. Year after year, tribes petitioned Congress for special jurisdictional acts authorizing the Court of Claims to hear their grievances against the United States; yet few of them succeeded. For those who did succeed, the process was costly, burdensome, and time-consuming. See H.R.Rep. No. 1466, 79th Cong., 1st Sess. 6 (1945); F. Cohen, supra note 5, at 563.
In 1928, this piecemeal scheme of resolving Indian claims against the Government was severely criticized in the Meriam Report, an independent study conducted by the Institute for Government Research. 10 The Meriam Report recommended the establishment of an independent, fact-finding commission to facilitate the judicial solution of outstanding Indian claims against the United States. After studying various proposals, Congress finally enacted the Indian Claims Commission Act in 1946, 11 creating a quasi-judicial body to hear and determine all tribal claims against the United States that accrued before August 13, 1946.
The ICCA confined the Commission's jurisdiction to tribal claims that accrued before its 1946 enactment, while it conferred jurisdiction on the Court of Claims to adjudicate any tribal claim accruing after 1946 that would be cognizable in the Court of Claims if the claimant were not an Indian tribe. ICCA Sec. 24, 28 U.S.C. Sec. 1505 (1982).
Congress also limited the period for filing tribal claims with the Indian Claims Commission to five years. Any claim that accrued before August 13, 1946, and which was not filed with the Commission by August 13, 1951, could not "thereafter be submitted to any court or administrative agency for consideration," nor could such a claim "thereafter be entertained by the Congress." ICCA Sec. 12, 25 U.S.C. Sec. 70k (1976).
Although the ICCA provided that the Commission would terminate at the end of ten...
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