Sekaquaptewa v. MacDonald

• Decision Date: 23 May 1980
• Docket Number: 78-3505,Nos. 78-3504,s. 78-3504
• Parties: Abbott SEKAQUAPTEWA, Chairman of the Tribe, for and on behalf of the Hopi Indian Tribe and all villages, clans, and individual members of the Hopi Tribe, Appellant-Cross-Appellee, v. Peter MacDONALD, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe, for and on behalf of the Navajo Indian Tribe and all villages, clans, and individual members of the Navajo Tribe, Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 801

619 F.2d 801

Abbott SEKAQUAPTEWA, Chairman of the Tribe, for and on

behalf of the Hopi Indian Tribe and all villages,

clans, and individual members of the

Hopi Tribe, Appellant-Cross-Appellee, v. Peter MacDONALD, Chairman of the Navajo Tribal Council of

the Navajo Indian Tribe, for and on behalf of the Navajo

Indian Tribe and all villages, clans, and individual members

of the Navajo Tribe, Appellee-Cross-Appellant.

Nos. 78-3504, 78-3505.

United States Court of Appeals, Ninth Circuit.

May 23, 1980.

George J. Romney, Salt Lake City, Utah (argued), John S. Boyden, Scott C. Pugsley, Boyden, Kennedy, Romney & Howard, Salt Lake City, Utah, on brief, for appellant-cross-appellee.

Terry E. Fenzl, Richard Schifter, Fried, Frank, Harris, Shriver & Kampelman, Washington, D. C., for appellee-cross-appellant; Brown & Bain, Phoenix, Ariz., on brief.

Appeal from the United States District Court for the District of Arizona.

Before ANDERSON and SKOPIL, Circuit Judges, and BONSAL, ^* District Judge.

SKOPIL, Circuit Judge:

These are interlocutory cross-appeals from a partial summary judgment in a quiet title action. The action was brought to determine the respective property interests of the Navajo and Hopi tribes in the reservation withdrawn by the act of June 14, 1934, 48 Stat. 960 (hereafter "the 1934 Act"). We are also asked to decide whether the district court had jurisdiction over the Hopi claim for an accounting for all Navajo activities on land in which the Hopi Tribe has an interest. We affirm in part and reverse in part.

The Hopis have inhabited the area in controversy "(a)s far back as the Middle Neither the 1868 treaty reservation nor the 1882 reservation is at issue here. The lands at issue are those withdrawn by other executive orders from 1880 to 1918. These lands became known as the Navajo reservation. Hereafter we refer to this area as "the Reservation". They surround the 1882 executive order reservation. ²

Ages." Healing v. Jones, 210 F.Supp. 125, 134 (D.Ariz.1962), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963). The Navajos probably entered the area in the last half of the eighteenth century. Id. By treaty in 1868 the United States granted the Navajos an extensive reservation in the northeast corner of Arizona. 15 Stat. 667. The reservation was gradually expanded by a series of executive orders beginning in 1880 and continuing to 1918. An 1882 executive order withdrew a reservation (hereafter "the 1882 reservation") for the Hopis "and such other Indians as the Secretary of the Interior may see fit to settle thereon". Title to this reservation, on which the Navajos and Hopis are intermingled, has been extensively litigated in a separate line of cases. ¹

A 1934 Act of Congress, 48 Stat. 960, defined the exterior boundaries of the Reservation. The Act provided, inter alia :

All vacant, unreserved, and unappropriated public lands, including all temporary withdrawals of public lands in Arizona heretofore made for Indian purposes by Executive order or otherwise within the boundaries defined by this Act, are hereby permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as may already be located thereon; however, nothing herein contained shall affect the existing status of the Moqui (Hopi) Indian Reservation created by Executive order of December 16, 1882.

In 1974 Congress authorized both tribes to sue "for the purpose of determining the rights and interests of the tribes in and to (the lands covered by the 1934 Act) and quieting title thereto in the tribes". 25 U.S.C. § 640d-7 (hereafter "the 1974 jurisdictional act").

I PROCEEDINGS BELOW

The Hopis filed this action. Their amended complaint requests: (1) a declaration that the Hopis have an undivided one-half interest in the lands at issue; (2) that jointly held lands be partitioned; and (3) that the court order an accounting for all Navajo activities on all land in which the Hopis have an interest.

The district court limited the proceedings to a determination of the nature of the title conferred in the 1934 Act. Following discovery the parties filed cross motions for summary judgment. In a thorough opinion the district court held that it had jurisdiction of the first two claims but not of the accounting claim. It declared that the Hopi Tribe has an undivided one-half interest in all land it "possessed, occupied or used" in 1934. It declared further that the Navajo Tribe has (1) an undivided one-half interest in all reservation land "possessed, occupied or used" by the Hopis in 1934; and (2) exclusive trust title to the rest of the reservation. The district court took no action on the claim for partition, pending final resolution of title. It also did not identify specific lands "possessed, occupied or used" by the Hopis in 1934. We granted leave to appeal under 28 U.S.C. § 1292(b).

II DISCUSSION

We must first address the broad question of what rights were conferred by the 1934 Act. Two subordinate issues must be settled to resolve the broader question:

(1) What parts of the Reservation were "vacant, unreserved, and unappropriated Public lands, including all temporary withdrawals of public lands in Arizona heretofore made by executive order"?

(2) What property interests are conferred by the phrase "for the benefit of the Navajo and such other Indians as may already be located thereon"?

Next, we must determine whether the 1974 jurisdictional act confers jurisdiction of the Hopi Tribe's claim for accounting.

A. What Rights are Conferred by the 1934 Act?

1. What lands are included in the phrase, "all vacant unreserved, and unappropriated . . . lands, including all temporary withdrawals?" Does the 1934 Act apply to all prior executive order withdrawals or only some of them?

The Navajos contend first that "including" means that "temporary withdrawals" are a subclass (or example) of "vacant, unreserved, and unappropriated" lands. The district court held that "including" meant "and". In the district court's view the 1934 Act withdrew: (a) vacant . . . lands, and (b) temporary withdrawals.

We agree with the district court. The primary purpose of the 1934 Act was to consolidate land ownership within the boundaries of the Reservation. Prior to 1934 neither tribe had recognized (compensable) title to areas withdrawn by executive order. To effectuate consolidated land ownership, the 1934 Act should be read to confirm land title to the greatest possible amount of land. The district court's conclusion is consistent with this.

The Navajos' suggestion that title was conferred only to "vacant" lands would have anomalous results. The district court's holding makes Hopi title hinge on possession, occupancy, or use. Hopi possession would preclude a finding of vacancy. The Hopis would have no title. Navajo title would be limited to lands vacant in 1934. We therefore reject this suggestion.

The Hopis contended that "temporary withdrawals" include all executive order withdrawals except the 1882 reservation exempted by the 1934 Act. The district court agreed, equating "temporary withdrawals" with executive order withdrawals. Its conclusion was based on the 1934 Act's purpose to consolidate reservation land ownership. It was necessary to confirm title in all executive order withdrawals since such withdrawals in themselves confer no recognized or compensable title. See U. S. v. So. Pac. Transp. Co., 543 F.2d 676 (9th Cir. 1976).

The Navajos argue that "temporary" has acquired special meaning in United States Attorney General and Interior Department opinions which were based on dicta in a Supreme Court case, U. S. v. Midwest Oil, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (1914). In the Navajos' view, executive order withdrawals made to preserve a status quo until Congress can act are "temporary", and executive order withdrawals made for public purposes where no legislative action is contemplated are "permanent". ³

The district court rejected this suggestion firmly. Its reasoning is persuasive. The overriding purpose of the 1934 Act repudiates the Navajos' interpretation. To consolidate reservation ownership it was necessary to change the status of reservation land title from a "tenancy at will to a permanent compensable interest". The proposed distinctions were developed by agency officials to justify executive withdrawals that would otherwise have conflicted with legislation. There is no reason to think that Congress approved this device or adopted this usage. If Congress had intended such a technical usage it might have said so clearly.

Finally, it is argued that "temporary withdrawals" must be construed not to apply to withdrawals made expressly for Navajos. The Navajos maintain that once lands are reserved for Indians, any subsequent grant purporting to affect those lands must be strictly construed. Leavenworth, etc., R.R. Co. v. U. S., 92 U.S. 733, 746, 23 L.Ed. 634 (1876); Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973); Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). The cited cases all involved assertions that Congress had withdrawn land from Indian reservation status, hence its status as "Indian country". See 18 U.S.C. § 1151. Among other things such a result would have terminated federal and tribal jurisdiction, both civil and criminal. 18 U.S.C. § 1151; DeCoteau v. District County Court, 420 U.S. 425, 427 n.2, 95 S.Ct. 1082, 1084 n.2, 43 L.Ed.2d 300 (1975). In view of these drastic results, a congressional intention to terminate is not to be inferred unless it is "expressed on the face of the Act or . . . clear from the surrounding circumstances and legislative history." Mattz v. Arnett, supra, 412 U.S. at 505, 93 S.Ct. at 2258.

No intent to terminate need be shown here because there has been no termination. No one contends that the 1934 Act withdrew the Reservation from Indian country. The federal government's jurisdiction and...