Sekaquaptewa v. MacDonald

• Decision Date: 05 April 1978
• Docket Number: No. Civ. 74-842 Pct. WPC.,Civ. 74-842 Pct. WPC.
• Citation: 448 F. Supp. 1183
• Parties: Abbott SEKAQUAPTEWA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe and all villages, clans, and Individual members of the Hopi Tribe, Plaintiff, 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, Defendant.
• Court: U.S. District Court — District of Arizona

448 F. Supp. 1183

Abbott SEKAQUAPTEWA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe and all villages, clans, and Individual members of the Hopi Tribe, Plaintiff, 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, Defendant.

No. Civ. 74-842 Pct. WPC.

United States District Court, D. Arizona.

April 5, 1978.

John S. Boyden, George J. Romney, Scott C. Pugsley of Boyden, Kennedy, Romney & Howard, Salt Lake City, Utah, Philip E. von Ammon, Donald R. Gilbert of Fennemore, Craig, von Ammon & Udall, Phoenix, Ariz., for plaintiff.

Paul F. Eckstein, Terry E. Fenzl of Brown & Bain, Phoenix, Ariz., Richard Schifter of Fried, Frank, Harris, Shriver & Kampelman, Washington, D. C., for defendant.

MEMORANDUM AND ORDER

COPPLE, District Judge.

Pursuant to 25 U.S.C. § 640d-7, the Hopi tribal chairman commenced an action in this district to determine the Hopi tribal rights and interests in the area described by the Act of June 14, 1934, 48 Stat. 960 (1934 Act). The 1934 Act describes the exterior boundaries of the Navajo Reservation in northeastern Arizona, and conveys an equitable interest in certain of these lands to the Navajo and "such other Indians as may already be located thereon." Before passage of the 1934 boundary bill, this area consisted of a patchwork of treaty, legislative, and executive order reservations.¹ The Hopi and Navajo tribes stipulate to the admission of the following map to illustrate the area. Events surrounding the 1882 rectangle, although not directly related to this case, form the backdrop of this suit. The 1882 parcel was withdrawn by Executive Order of December 16, 1882, for the benefit of the Hopi tribe and "such other Indians as the Secretary of the Interior may see fit to settle thereon." The 1934 Act does not affect the status of the 1882 Reservation, which is the subject of continuing litigation in another court within this district. See Healing v. Jones, 210 F.Supp. 125 (D.Ariz. 1962), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963). Healing documents both the bitter antagonism between the Navajo and the Hopi and the difficulties attending a judicial resolution of Navajo-Hopi land controversies. See Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. 1974).

This action is now before the Court upon the Navajos' motion to dismiss certain allegations in the amended complaint,² and on cross-motions for partial summary judgment regarding the meaning of the 1934 Act.³ These motions raise questions of subject matter jurisdiction and collateral estoppel, and three overlapping issues as to the construction of the 1934 Act: (1) what property was granted by the 1934 Act, (2) who are the holders of the vested equitable interests in the 1934 Act lands, and (3) what is the nature and extent of their respective holdings.⁴ Each question will be discussed seriatim.

A. Subject Matter Jurisdiction

The original complaint, brought by the tribal chairman on behalf of the Hopi tribe, simply requests a declaration of Hopi rights in the area described by the 1934 Act. See 25 U.S.C. § 640d-7(a). The amended complaint differs in three ways. First, the amended complaint alleges a broader representional capacity for the tribal chairman. The chairman is now representative of the tribe, villages, clans, and individual members of the tribe. Next, a second claim for relief requests a partition of lands the Court may find jointly held by the Navajo and Hopi. Finally, a third claim for relief asks for an accounting for all Navajo activities on land found to be exclusively or jointly held by the Hopi tribe. The Navajos argue that the amended complaint exceeds the subject matter jurisdiction conferred on the Court. 25 U.S.C. §§ 640d to 640d-20.

The statute granting federal jurisdiction over the Hopi-Navajo land dispute within the 1882 Reservation authorized the tribal chairman to represent both tribe, villages, clans, and individual Indians. Act of July 22, 1958, Pub. L. No. 85-547, 72 Stat. 403; see Healing v. Jones, 174 F.Supp. 211 (D.Ariz.1959). The jurisdictional statute for this dispute is narrower in representational terms. 25 U.S.C. § 640d-7(a) ("Either tribe, acting through the chairman of its tribal council for and on behalf of the tribe . . ."). Nonetheless, other sections of the jurisdictional statute assume a broad representational capacity. Section 640d-7(b) orders the Court to determine any lands in which the Hopi tribe, including villages, clans, and individuals, have an exclusive interest. Section 640d-17(c) authorizes supplemental actions on behalf of the tribe, villages, clans, and individual members. Construing the jurisdictional statute as a whole, the Court concludes that the alleged representational capacity is proper.

Section 640d-7(b) affirmatively requires the district court to partition any lands found to be jointly held by the Navajo and Hopi. The Court plainly has jurisdiction over the Hopi second claim for relief. The third claim for an accounting is more troublesome. Section 640d-17(c) allows supplemental actions "as may be necessary or desirable to insure the quiet and peaceful enjoyment of the reservation lands of the tribes . . . and to fully accomplish all objects and purposes of sections 640d to 640d-24." The Hopi tribe argues this section allows an action for an accounting. However, section 640d-17(c) merely codifies the equitable jurisdiction of a federal court to issue ancillary bills to effectuate a court decree. See Hamilton v. Nakai, 453 F.2d 152, 157 (9th Cir. 1972), cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972). An action for an accounting is not necessary to effectuate any decree this Court might make, or "to insure the quiet and peaceable enjoyment of the reservation lands." Moreover, the legislative directive to accomplish all purposes of the title does not detract from "the principle that the power of a court to afford a remedy must be coextensive with its jurisdiction over the subject matter." Id. at 156. Section 640d-7 grants the Court jurisdiction to quiet title and partition jointly held land. Damages is not the object or purpose of the jurisdictional grant. Furthermore, Congress explicitly authorized an action for an accounting in supplemental proceedings in Healing. See 25 U.S.C. § 640d-17(a). Congressional silence presumably bars such a remedy in this action. Indeed, it is unlikely Congress would allow a damage remedy without first ascertaining the extent and nature of the Hopi interest in the 1934 Act lands. Otherwise, if a district court ruled the Hopi tribe has an undivided one-half interest in all the 1934 Act lands, then a concomitant damage remedy probably would obliterate the Navajo treasury. Therefore, the third claim for relief will be dismissed.

B. Collateral Estoppel

In 1951 the Hopi tribe brought an action against the United States before the Indian Claims Commission alleging the government occupied and possessed without compensation the tribe's aboriginal land. See 25 U.S.C. §§ 70 to 70v. "Aboriginal title" depends upon a factual determination. "Aboriginal title must rest on actual, exclusive, and continuous use and occupancy `for a long time' prior to the loss of the property." Sac & Fox Tribe v. United States, 161 Ct.Cl. 189, 315 F.2d 896, 903 (1963), cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed.2d 165 (1963); see also Strong v. United States, 207 Ct.Cl. 254, 518 F.2d 556, 560 (1975), cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975); F. Cohen, Handbook of Federal Indian Law 291-94 (N.Mex. ed. 1942). The Hopi tribe asserted an aboriginal title claim extending approximately over three-quarters of the 1934 Act lands. The Hopi action was consolidated with a petition filed by the Navajo tribe also alleging the uncompensated taking of Navajo aboriginal land.

The Indian Claims Commission denied the Hopi tribe's aboriginal title claim to all of the territory alleged. Rather, the Commission held the Hopi tribe possessed aboriginal title to a smaller area which included the 1882 Reservation. This title was extinguished without compensation as to all lands outside the 1882 Reservation when the Executive Order of December 16, 1882 issued. The Hopis' aboriginal title to land within the 1882 Reservation was extinguished partially in 1937 when the Navajo tribe was administratively settled within the area. See Healing v. Jones, 210 F.Supp. 125 (D.Ariz.1962), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963). The Commission ordered the case to proceed to a determination of damages. See Hopi Tribe v. United States, 31 Ind.Cl.Comm. 16 (1973); Hopi Tribe v. United States, 23 Ind.Cl. Comm. 277 (1970).

The defendant claims this decision collaterally bars the Hopi tribe from asserting title to the lands litigated before the Indian Claims Commission. However, in this action the Hopi tribe seeks to quiet title to land under the doctrine of "recognized title." Recognized title differs from aboriginal title.

Where Congress has by treaty or statute conferred upon the Indians or acknowledged in the Indians the right to permanently occupy and use land, then the Indians have a right or title to that land which has been variously referred to in court decisions as "treaty title", "reservation title", and "acknowledged title." As noted by the Commission, there exists no one particular form for such Congressional recognition or acknowledgement of a tribe's right to occupy permanently land and that right may be established in a variety of ways.

Miami Tribe v. United States, 146 Ct.Cl. 421, 175 F.Supp. 926, 936 (1959). "The significance of the recognized title doctrine generally lies in the fact that a plaintiff successful on this issue need not present proof demonstrating aboriginal use and occupancy." Strong v....