Rockbridge v. Lincoln
Decision Date | 01 September 1971 |
Docket Number | No. 25437.,25437. |
Citation | 449 F.2d 567 |
Parties | John ROCKBRIDGE and Henry Zah, Individually and On Behalf of All Others Similarly Situated, Plaintiffs and Appellants, v. Anthony LINCOLN, Area Director, Bureau of Indian Affairs, et al., Defendants and Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Donald Juneau (argued), Theodore R. Mitchell, Window Rock, Ariz., for appellants.
George R. Hyde (argued), S. Billingsley Hill, Dept. of Justice; Shiro Kashiwa, Asst. Atty. Gen., Land & Nat. Resources Div., Washington, D. C.; Richard K. Burke, U. S. Atty., Michael Lasher, Asst. U. S. Atty., Phoenix, Ariz., for appellees.
Before MERRILL and ELY, Circuit Judges, and FERGUSON,* District Judge.
The question presented is whether a system of unregulated trading post monopolies allegedly imposed upon the Navajo Indians by governmental officials can be challenged in court. The district court held that it lacks jurisdiction. We reverse.
This appeal, pursuant to 28 U.S.C. § 1291, is from a judgment dismissing appellants' action to require the Secretary of the Interior, the Commissioner of Indian Affairs, and the Area Director of the Navajo Indian Reservation to adopt and enforce certain rules and regulations governing traders doing business on the Navajo Indian Reservation. The appellants filed their complaint as a class action on their own behalf and on behalf of all Navajo Indians residing on the reservation.
Appellants claim that a duty to adopt and enforce such regulations arises out of 25 U.S.C. §§ 261 and 262. The appellees contend that the sections grant them such discretion within the meaning of the Administrative Procedure Act (5 U.S.C. § 701 et seq.) as to preclude litigation. These sections provide as follows:
By their motion to dismiss, the appellees concede for the purpose of this appeal the truthfulness of the allegations set forth in the complaint. Delesdernier v. O'Rourke & Warren Company, 305 F. 2d 929 (5th Cir. 1962). In summary, these allegations are:
The appellants seek orders which would (1) require the appellees to adopt adequate rules and regulations which govern traders on the reservation for the protection of the Navajos, including specification of "the kind and quantity of goods and the prices at which such goods shall be sold"; and (2) require appellees to enforce those regulations and the regulations which are now in effect.
Appellants allege jurisdiction under a variety of statutes, treaties and constitutional provisions. They are 25 U.S.C. §§ 261-264; Article 1, Sec. 8, clause 3 of the Constitution; the Fifth Amendment; Treaty of 1849 between the Navajo Tribe and the United States (9 Stat. 974); Navajo Treaty of 1868 (15 Stat. 667); the Administrative Procedure Act, 5 U.S. C. § 701 et seq.; 28 U.S.C. § 1331, involving a federal question and $10,000; 28 U.S.C. § 1361, the Mandamus Statute; and 28 U.S.C. § 1651, the All Writs Statute.
The district court granted the appellees' motion to dismiss holding that the Administrative Procedure Act (5 U.S.C. § 701 et seq.) did not confer jurisdiction on the court. The court reasoned that 25 U.S.C. §§ 261 and 262 are purely discretionary and therefore specifically exempted from the Act. The district court further held that the Mandamus Statute (28 U.S.C. § 1361) was likewise inapplicable, and that since the appellees had not "acted" in violation of their statutory powers, the doctrine of sovereign immunity is a bar to the action.
We hold that the district court has jurisdiction under the Administrative Procedure Act, and that the doctrine of sovereign immunity is not a bar to this action.
Section 702 of the Administrative Procedure Act (5 U.S.C. § 702) provides that "a person suffering legal wrong because of agency action * * * is entitled to judicial review thereof". Section 703 sets forth that "the form of proceeding for judicial review is * * * any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction. * * *" Section 706 (1) directs the reviewing court to "compel agency action unlawfully withheld". The Act has been interpreted to permit the relief sought. Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969); United States v. Walker, 409 F.2d 477 (9th Cir. 1969); Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959). Appellees contend, however, that this is a case within 5 U.S.C. § 701(a) (2), which provides that the Act is not applicable when "agency action is committed to agency discretion by law". Whether agency action is "committed to agency discretion" depends upon whether Congress has manifested in the statutes governing the agency action in question an intent to cut off review. See 4 Davis, Administrative Law Treatise § 28.16; Jaffe, Judicial Control of Administrative Action 374-75 (1965). A permissive statutory term, like "as he may deem just and proper", 25 U.S.C. § 261, is not by itself to be read as a congressional command precluding judicial review. The question is whether nonreviewability can fairly be inferred from the over-all statutory scheme. Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).
In order to properly determine whether inaction is "* * * committed to the Commissioner's discretion" by Sections 261 and 262, it is thus necessary first to focus upon the legal relationship between the United States and the Indians. In Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831), Chief Justice Marshall set forth that relationship. "The Indians are in a state of pupilage; their relationship to the United States resembles that of a ward to his guardian." 30 U.S. at 17. In United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886), the duty of the government was defined. "From their the Indians' very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power." 118 U.S. at 384, 6 S.Ct. at 1114. See also Choctaw Nation v. United States, 119 U.S. 1, 75 S.Ct. 75, 30 L.Ed. 306 (1886).
In Seminole Nation v. United States, 316 U.S. 286, 62 S.Ct. 1049, 96 L.Ed. 561 (1942), the Court stated:
...
To continue reading
Request your trial-
COYOTE VALLEY BAND OF POMO IND. v. United States
...under the mandamus statute may also be appropriate. See, e.g., Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir.1986); Rockbridge v. Lincoln, 449 F.2d 567, 573 (9th Cir.1971). Finally, since three plaintiffs are Indian tribes or bands with governing bodies recognized by the Secretary, they al......
-
Heckler v. Chaney
...F.2d 1159 (CADC 1973) (en banc); International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973); Rockbridge v. Lincoln, 449 F.2d 567 (CA9 1971); Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971); Environmental Defense Fund, Inc.......
-
Parker v. Califano
...639, 89 L.Ed. 901 (1945); 3 A. Sutherland, Statutes and Statutory Construction § 72.02 (4th ed., Sands, ed. 1974).16 Rockbridge v. Lincoln, 449 F.2d 567, 571 (9th Cir. 1971); United States v. Blasius, 397 F.2d 203, 206 (2d Cir.), cert. granted, 393 U.S. 950, 89 S.Ct. 375, 21 L.Ed.2d 361 (19......
-
Central Machinery Co. v. State
...to force the Commissioner of Indian Affairs to adopt rules and regulations pursuant to the Indian trader statutes. In Rockbridge v. Lincoln, 449 F.2d 567 (9th Cir.1971) the Ninth Circuit held that the Indian trader statutes did not grant the Commissioner of Indian Affairs unlimited discreti......