Sekaquaptewa v. MacDonald

• Decision Date: 15 May 1978
• Docket Number: No. 77-1957,77-1957
• Citation: 575 F.2d 239
• Parties: Abbott SEKAQUAPTEWA, etc., Plaintiff-Appellee, v. Peter MacDONALD, etc., Defendant-Appellant, Griffin B. Bell, etc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 239

575 F.2d 239

Abbott SEKAQUAPTEWA, etc., Plaintiff-Appellee, v. Peter MacDONALD, etc., Defendant-Appellant Griffin B. Bell, etc., Defendant-Appellee.

No. 77-1957.

United States Court of Appeals, Ninth Circuit.

May 15, 1978.

Lawrence A. Ruzow (argued), of Vlassis, Ruzow & Linzer, Phoenix, Ariz., for defendant-appellant.

John Paul Kennedy (argued), of Boyden, Kennedy, Romney & Howard, Salt Lake City, Utah, for plaintiff-appellee.

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

Before HUFSTEDLER and KILKENNY, Circuit Judges, and GRANT, ^* District Judge.

HUFSTEDLER, Circuit Judge:

This appeal is the latest episode in the long and bitter conflict between the Hopi and Navajo Indian Tribes over the division of reservation lands.

The dispute has its origins in an Executive Order of December 16, 1882, withdrawing 2,500,000 acres of land in northeastern Arizona from the public domain "for the use and occupancy of the Moqui (Hopi), and such other Indians as the Secretary of the Interior may see fit to settle thereon." For many years thereafter, the Hopi and the Navajo asserted conflicting claims to the tract, and all attempts to resolve the controversy by agreement and administrative action failed. The two tribes, the Secretary of the Interior, and Congress then decided to resort to the courts.

In 1958, Congress enacted a statute authorizing either tribe to commence or to defend a quiet title action against the other (and against the Attorney General on behalf The Healing case unfortunately failed to live up to the promise of its name. Claiming that the Navajo were resisting implementation of the district court's judgment giving the Hopi rights to equal use of the Joint Use Area, the Hopi petitioned the district court in 1970 for an order of compliance to enforce their rights under the Healing decree. The district court's subsequent order of compliance, requiring a reduction in Navajo livestock, limitation of livestock grazing, and reduction of Navajo construction in the Joint Use Area, was affirmed by this court. (Hamilton v. MacDonald (9th Cir. 1974) 503 F.2d 1138.) The Navajo tribe was later cited for contempt for failing to reduce livestock and control construction as ordered. The Navajo appealed this order and an order implementing a Government plan to effectuate the order of compliance. In a judgment which stated that the Navajos' actions "indicate conscious foot dragging" with respect to the implementation of the orders of the district court dating back to Healing, this court affirmed the contempt citation. (Sekaquaptewa v. MacDonald (9th Cir. 1976) 544 F.2d 396, 406.)

of the United States as trustee of the territory). The Hopi brought suit, and a three-judge district court held that the Hopis were entitled to the exclusive possession of a small portion of the Reservation, known as Land Management District 6. It also held that the Hopi and the Navajo had joint, undivided and equal interests in the remainder, thereafter known as the Joint Use Area. (Healing v. Jones (D.Ariz.1962) 210 F.Supp. 125, aff'd (1963) 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703.)

In another effort to resolve this dispute, Congress enacted another statute in 1974 (25 U.S.C. §§ 640d et seq.), providing for the appointment of a mediator to assist in negotiating a settlement and a partition of the rights and interests of the Hopi and Navajo Tribes in the Joint Use Area. The statute provided that if no voluntary agreement was reached within 180 days, the district court was "authorized to make a final adjudication, including partition of the joint use area, and enter the judgment in the supplemental proceedings in the Healing case." (25 U.S.C. § 640d-3(a).) A federal mediator was appointed, but he failed to achieve a settlement. He submitted a report to the district court recommending that the Joint Use Area be judicially partitioned and suggested the formula for the partition.

On September 9, 1976, following an evidentiary hearing, the district court proposed to enter a judgment approving the partition line recommended by the mediator and stated that:

". . . rulings are reserved with respect to matters that will come before the court for determination hereafter, such as adjustments between the Navajo Tribe and the Hopi Tribe as to the Peabody leases; access to shrines; inequality in value of areas partitioned; rental payments required by (25 U.S.C. § 640d-15); life estates; phased relocations; mixed marriages; federal employees, etc."

On February 10, 1977, the court entered a judgment of partition and an order establishing a schedule for further proceedings. The Navajo appeal the judgment of partition, asserting that the district court abused its discretion under the 1974 Act.

A second issue presented concerns the precise size of the area to be partitioned. The mediator noted in his report that the Navajo had raised a question regarding the boundaries of the 1882 Reservation and the total acreage of the Joint Use Area. According to information provided the mediator, a survey of the Reservation was made in 1914. A subsequent survey made in 1963, and officially approved by the Department of the Interior in 1965, disclosed that the 1914 survey had reduced the size of the 1882 Reservation along its southern and western boundaries by approximately 50,000 acres. The Navajo claim that the 1914 survey, even if erroneous, permanently fixed the boundaries of the 1882 Reservation and thereby had the effect of adding those acres to the Navajo Reservation. The Navajo also claim that, within the disputed area, are some 14,000 acres covered by individual allotments and railroad grant lands The mediator did not define either the proper south and west boundaries of the Joint Use Area or the total acreage to be divided; he believed that these findings were to be made by the court. The mediator proposed four alternative plans which retained the same basic partition line but allocated two parcels of land, known as Areas A and B, differently depending on the court's determination with respect to the total acreage to be partitioned. At a pretrial conference, the Navajo raised the boundary question. In its order of March 11, 1976, the district court concluded that the issue of the boundaries of the Joint Use Area had been resolved in the Healing decision and that consideration of the Navajo claim was therefore foreclosed by the doctrine of res judicata. On this appeal, the Navajo challenge the district court's disposition of the boundary question.

which are vested for the benefit of the Navajo.

I

We must first decide whether we have jurisdiction to entertain this appeal. The specific reservation of rulings, and the scheduling of further proceedings, with respect to "issues in this case" by the district court suggest that the judgment of partition may be an interlocutory order, rather than the final appealable judgment. (28 U.S.C. § 1291. ¹)

The Supreme Court has often pointed out that a decision is "final" within the meaning of § 1291 even if it is not necessarily the last order possible in a case. (Cohen v. Beneficial Industrial Loan Corp. (1949) 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528.) "A pragmatic approach to the question of finality has been considered essential to the achievement of the 'just, speedy, and inexpensive determination of every action' . . . ." (Brown Shoe Co. v. United States (1962) 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510.) With respect to orders falling within the "twilight zone of finality," the most important competing considerations are the " 'inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other'." (Gillespie v. United States Steel Corp. (1964) 379 U.S. 148, 152-53, 85 S.Ct. 308, 311.)

While it is true that review of the judgment of partition could be characterized as piecemeal review of the case, the inconvenience and cost of trying the case will not be any greater if we review the partition order now instead of compelling the district court to determine all of the issues remaining between the parties with the validity of the partition still unresolved. On the contrary, all of the remaining questions between the Hopi and the Navajo set out by the district court presuppose the validity of the judgment of partition and the separation of the two tribes in respect of their territories. The partition order is " 'fundamental to the further conduct of the case'," within the meaning of Gillespie, supra, 379 U.S. at 154, 85 S.Ct. at 312.

Long before its expansive reaffirmation in Gillespie of the pragmatic construction to be given the finality requirement, the Supreme Court had firmly established a narrow relaxation of the finality rule for orders transferring property. In Forgay v. Conrad (1848) 47 U.S. (6 How.) 201, 12 L.Ed. 404, the Court held appealable a lower court order providing for the immediate delivery The partition order does not direct the immediate delivery of property by the Navajo to the Hopi, but the order, nevertheless, effectively transfers separate possession and use of lands previously held jointly, thereby depriving the Navajo of the right to possess and use almost one million acres of land previously open to them. By declaring that the administration of their respective halves of the Joint Use Area is to be the responsibility of the respective tribes and by requiring the surveying and fencing of the lands partitioned, the Hopi and Navajo interests are practically severed. The task of surveying, fencing, and physically separating the tribes was directed to commence "forthwith." Relocation of the Navajos now in Hopi territory is in process; the hardships of relocation will be exacerbated, not eased, by a refusal to undertake immediate review. Thus, the judgment of partition is sufficiently "final" to be appealable under Section 1291, either as an "order" directing the delivery of...