Seminole Indians of Florida v. United States, Appeal No. 15-72.

• Court: Court of Federal Claims
• Writing for the Court: COWEN, , and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT
• Citation: 200 Ct. Cl. 417,471 F.2d 614
• Parties: SEMINOLE INDIANS of the State OF FLORIDA v. The UNITED STATES.
• Docket Number: Appeal No. 15-72.
• Decision Date: 18 January 1973

200 Ct. Cl. 417, 471 F.2d 614 (1973)

SEMINOLE INDIANS of the State OF FLORIDA
v.
The UNITED STATES.

Appeal No. 15-72.

United States Court of Claims.

January 18, 1973.

Charles Bragman, Washington, D. C., attorney of record, for appellant. Roy L. Struble, Miami Beach, Fla., and Effie Knowles, Miami, Fla., of counsel.

Marvin E. Schneck, Washington, D. C., with whom was Asst. Atty. Gen. Kent Frizzell, for appellee.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.

ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

(Appellee's Motion to Dismiss Appeal)

BENNETT, Judge.

This case comes before the court on appellee's motion to dismiss appellant's appeal as untimely. The motion is granted but for reasons different than appellee has suggested. The facts pertinent to the decision follow:

On March 24, 1971, the Indian Claims Commission (ICC) issued an opinion and findings implemented by an order which determined that the appellant's claim in Count I, involving a 5-million-acre parcel

471 F.2d 615

of land known as the Macomb area or "reservation," should be dismissed. The ICC also determined that Count II of the suit which concerned another tract of land, now part of the Everglades National Park, should be scheduled for further hearings to determine the fairness of the consideration given for the land in Count II

Following this, on August 4, 1971, the appellant filed motions to modify all the findings of fact in the March 24 decision and order, to have the matter reheard, and to amend the petition to conform to the evidence. The ICC did not rule on these motions until May 17, 1972, when it denied the motion to modify the findings of fact and the motion for a rehearing on the grounds they were not timely filed, did not state valid grounds upon which the motion could be considered, and that the March 24 decision was supported by substantial evidence. The motion to amend the petition was likewise denied on the same day.

On August 14, 1972, the appellant appealed to the court the ICC orders denying its motions. In the appeal of the May 17, 1972 orders, the appellant also incorporated an appeal to the March 24, 1971 decision and order. The Government-appellee contends that the March 24 decision and order were final with respect to the dismissal of Count I of the suit; that appellant's motion for rehearing, filed August 4, 1971, was untimely since ICC Rule 33(a), 25 C.F.R. § 503.33 (a) (1971), requires that motions for rehearing be filed within 30 days of the final decision in question, which time limit was not met in this case; and that the filing of the untimely motion for rehearing does not suspend the running of the 3-month period for appeal from the ICC to the Court of Claims. Indian Claims Commission Act of August 13, 1946, ch. 959, § 20(b), 60 Stat. 1049, 1054; 25 U.S.C. §§ 70, 70s(b); Ct.Cl. Rule 171(a). Thus, appellant's appeal of August 14, 1972, was too late to act as an appeal of the March 24, 1971 decision and order. The Government's contentions have a surface validity when looking only at the statutes and the dates involved. However, the appellant contends that the March 24, 1971 determination with respect to Count I was not final and therefore the application of the time limits governing motions for rehearing and notices of appeal would be improper in this case since those time periods begin to run only from the time a final decision is filed. Standing alone, appellant's argument on this point has merit.

The issue of what constitutes a final decision within the context of the Indian Claims Commission Act, supra, was fully discussed by this court in Caddo Tribe of Okla. v. United States, 155 F.Supp. 727, 140 Ct.Cl. 63 (1957). In Caddo, the court concluded that the ICC Act did not define finality explicitly; therefore, the court applied the definitional rules that had grown up around 28 U.S.C. § 1291, the statute which confers appellate jurisdiction on the United States Courts of Appeals. The ICC Act has not been modified in this respect since the Caddo decision was handed down; therefore its analysis is applicable to the issue in this case.

The rule of finality which existed prior to the adoption of the Federal Rules of Civil Procedure with respect to actions involving several distinct claims was that a decision with respect to one or more, but not all of the claims, was not final until the entire lawsuit had been decided. See discussion in Sears, Roebock & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956), and cases cited therein. Since the present case, like many of the suits brought before the ICC, involves several distinct claims, Federal Rule of Civil Procedure 54(b) dealing with the finality of decisions in suits involving multiple claims is pertinent. FRCP 54(b), as amended December 27, 1946, changed the old rule. A...