Russ v. Wilkins
| Citation | 624 F.2d 914 |
| Decision Date | 01 August 1980 |
| Docket Number | No. 76-2776,76-2776 |
| Parties | Joseph A. RUSS, James Whipple, and the Covelo Indian Community of the Round Valley Indian Reservation, Plaintiffs, Plaintiff in Intervention and Appellees, v. Richard E. WILKINS et al., Defendants and Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Charles W. Getz, IV, Cal. Dept. of Justice, San Francisco, Cal., for defendants and appellants.
Michael A. McCord, U.S. Dept. of Justice, Washington, D. C., for United States, amicus curiae.
Art Bunce, Karshmer & Bunce, Escondido, Cal., James F. King, Jr. Willits, Cal., Cal. Indian Legal Services, Ukiah, Cal., for plaintiffs, plaintiff in intervention and appellees.
Appeal from the United States District Court for the Northern District of California.
Before BROWNING and HUG, Circuit Judges, and HOFFMAN *, Senior District Judge.
This action concerns the boundaries of the Round Valley Indian Reservation in Mendocino County, California, where the members of the Covelo Indian Community reside. The appellants contend that the Round Valley Indian Reservation, as established by a Congressional Act of 1873, was reduced in size by a Congressional Act of 1890. The appellees maintain that the Act of 1890 merely authorized the sale to non-Indians of a portion of the reservation land outside certain boundaries, without altering the boundaries of the reservation.
Appellees Russ and Whipple, enrolled members of the Covelo Indian Community, killed a deer on land that was within the reservation as established in 1873, but was outside the boundaries established pursuant to the Act of 1890. The appellees were apprehended and the deer was confiscated by appellant Wilkins, a warden of the California Department of Fish and Game. The issue presented by this appeal is whether the site upon which the deer was killed is within the Round Valley Indian Reservation and thus is "Indian country," where the California fish and game laws do not apply to the Indians, at least as to non-commercial hunting and fishing.
Appellees Russ and Whipple brought this action against Wilkins and the California Director of the Department of Fish and Game, seeking damages for the value of the confiscated deer. Russ and Whipple, together with the plaintiff in intervention, the Covelo Indian Community, also seek declaratory and injunctive relief concerning the boundaries of the reservation and the jurisdiction to regulate hunting and fishing thereon.
The court entered summary judgment, awarding to Russ and Whipple nominal damages in the amount of $10.00 as compensation for the confiscation of the deer and declared that the boundaries of the reservation are those established by the Act of 1873; that the reservation had not been diminished by the Act of 1890; and that the members of the Indian Community were immune from the California fish and game laws while hunting or fishing for subsistence on land within the boundaries of the reservation as established in 1873. 1 We reverse.
Round Valley, located in what is now Mendocino County, California, was originally set aside for Indian use in 1858 by an order of the Secretary of the Department of the Interior. The area was composed of a small, fertile valley completely ringed by coastal range mountains. On March 30, 1870, pursuant to the Four Reservations Act of 1864, 13 Stat. 39, President Grant established the Round Valley Indian Reservation by Executive Order and expanded the tract to a total size of over 31,000 acres. However, non-Indians ignored the reservation status of the land and settled upon the land within the reservation boundaries, claiming title from the State of California under the Swamp Act of 1850, 9 Stat. 519.
On March 3, 1873, Congress made a major change in the reservation, 17 Stat. 633. The southern two-thirds of the agricultural land in Round Valley, approximately 12,000 acres, was restored to the public domain, to be sold to non-Indians; and 89,000 acres of mostly mountainous land was added to the northern portion of the reservation, making the 1873 reservation approximately 102,118 acres in size. All non-Indians living within Despite this congressional compromise, non-Indian settlement on reservation land continued. The movement of non-Indians from the reservation, as provided for in the 1873 Act, was never effected because sale of land within the southern portion of the valley was not sufficient to pay for the interests of non-Indians living in the new reservation, and Congress did not appropriate sufficient money to make the payments. Neither court orders nor military action could dislodge the settlers.
the new reservation boundaries were to be required to leave upon being reimbursed for their improvements out of the proceeds from the sale of former reservation land. Indians living outside the reservation were to be relocated to the new reservation. The eastern, western and southern boundaries of the reservation were specifically outlined in the Act. The northern boundary was fixed at a later date by a commission established by the 1873 Act.
In 1884 a Senate committee was established to inquire into the conditions of certain Indians in California, particularly those at the Round Valley Reservation. This committee, chaired by Senator Dawes, noted in its report (Dawes Report) 2 submitted on February 27, 1885, that 97,000 acres of the reservation were occupied by non-Indians, leaving the 500-600 Indians confined to about 5,000 acres in the valley floor. Most of the non-Indian claims were without legal basis. The Indians were afraid to travel on Indian land and much of their livestock was lost or stolen. Deprived of the use of their land, these Indians became dependent upon the federal government, which supported them at considerable expense.
In response to the problems between Indians and non-Indians in Round Valley, on October 1, 1890 Congress again dealt with the reservation in "An act to provide for the reduction of the Round Valley Indian Reservation . . ." 26 Stat. 658. This legislation is the focus of the present appeal. The Act provided that a portion of the reservation was to be surveyed and allotted in separate tracts to individual Indians, and an additional portion of grazing and timber lands was to be set aside to be used in common by the Indians. Non-Indian claims on the land within this area selected for Indian use were to be appraised and compensated for, with payment to be made by the Secretary of the Interior, and the non-Indians were then to be removed from these lands retained for Indian use. The rest of the land was to be sold in 640-acre plots, with the proceeds from these sales to be placed in the Treasury of the United States to the credit of the Indians. The 1890 Act provided that the specific boundaries of the land reserved for the Indians would be determined by a commission composed of three disinterested persons. The commission, in carrying out this function, allotted to the Indians the southwest portion of the reservation, consisting of approximately 43,680 acres of both valley and mountain lands, to be used for farming and grazing. The surplus was offered at public sale.
The sale of land from the relinquished portions of the 1873 reservation was unsuccessful; only about 1,200 acres out of the 63,680 opened for non-Indian settlement were sold. On February 8, 1905, the unsold portions of the 63,680 acres were opened to homestead entry and settlement; the land remaining unclaimed after five years was to be sold. See 33 Stat. 706.
On February 11, 1947 the Secretary of the Interior issued an order of restoration, pursuant to the Indian Reorganization Act of 1934, 48 Stat. 984. This order returned approximately 7,531 acres of vacant land within the relinquished parts of the reservation to tribal ownership.
THE EFFECT OF THE ACT OF 1890 ON THE BOUNDARIES OF THE ROUND
We must determine the exact boundaries of the Round Valley Indian Reservation; specifically we must determine whether the Between the time that the district court rendered its decision and this appeal was taken, the United States Supreme Court, in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977), again considered the tests to be employed in determining whether a Congressional Act changes or continues the boundaries of a reservation. Thus, we are assisted in our present inquiry by an additional delineation of the proper analysis to be employed in cases of this nature, which was not available to the district court.
Congressional Act of 1890 reduced the size of the reservation as established by Congress in 1873. The district court, relying primarily on Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962), Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973), and DeCoteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975), held that the Act of 1890 did not change the boundaries of the reservation, as established by the Act of 1873. Russ v. Wilkins, 410 F.Supp. 579 (N.D. Cal. 1976).
In deciding whether the 1890 Act permanently reduced the size of the Round Valley Indian Reservation, we are guided by the pronouncements in Rosebud. The court stated:
The underlying premise is that congressional intent will control. DeCoteau v. District County Court, supra, (420 U.S.) at 444, 449, (95 S.Ct., at 1092, 1095); United States v. Celestine, 215 U.S. 278, 285, (30 S.Ct. 93, 94, 54 L.Ed. 195) (1909). In determining this intent, we are cautioned to follow "the general rule that '(d)oubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.' " McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174 (, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129) (1973), quoting Carpenter v. Shaw, 280 U.S. 363, 367, (50 S.Ct. 121,...
To continue reading
Request your trial
-
Scarborough v. Office of Personnel Management
...F.2d 150, 160 (D.C.Cir.1983); United States v. Roemer, 514 F.2d 1377, 1380 (2d Cir.1975) (quoting Brotherhood ). E.g., Russ v. Wilkins, 624 F.2d 914, 922 (9th Cir.1980); Tibke v. Immigration and Naturalization Service, 335 F.2d 42, 45 (2d Cir.1964); Motor Coach Industries, Inc. v. United St......
-
Confederated Salish and Kootenai Tribes of Flathead Reservation, Montana v. Namen
...Indian Reservation ... and for other purposes." Partly for this reason, it was held to have effected such a reduction. Russ v. Wilkins, 624 F.2d 914 (9th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 1976, 68 L.Ed.2d 296 (1981).8 Seymour involved the Act of March 22, 1906, ch. 1126, 34......
-
Pittsburg & Midway Coal Min. Co. v. Yazzie
...the surrounding circumstances revealed clear Congressional intent to redraw the boundaries of the reservation. Russ v. Wilkins, 624 F.2d 914, 917-20, 926 (9th Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1976, 68 L.Ed.2d 296 (1981).23 We note that, to date, the requirement that congress......
-
Ute Indian Tribe v. State of Utah, Civ. No. C 75-408.
...1905), LD 103 (emphasis added). The "relinquished" Round Valley lands were disestablished from that reservation, see Russ v. Wilkins, 624 F.2d 914, 921-926 (9th Cir. 1980); such language in reference to the "opened" Uintah Reservation lands is notably This Court has little trouble reconcili......