Shermoen v. U.S.

Decision Date24 December 1992
Docket NumberNo. 91-16045,91-16045
Citation982 F.2d 1312
PartiesLillian McCovey SHERMOEN; Carol Leigh McConnell Ammon; Leslie Ammon; Elsie McCovey Bacon; Gaylon Robert Bacon; Joseph K. Bacon; Raymond E. Bacon; George Clifford Bailey, Sr.; Ethel Mae Blake; Clarann C. (Ragain) Bray; Mary L. Carroll; Ora Collins; Dennis Costa; Joanne Barbara Wilder Costa; Barney Alva Curtice; Frank Benjamin Dowd; Gerald Ieshh Dowd; Kathy Noreen Dowd; Rocky Twa-Gah Dowd; Venola Dowd; Ollie Roberts Sorrell Foseide; Eileen Renee (Ragain) George; Frank Gist; Bonita Bacon Green; Janice Marie Greene; Earl Griffith; Colleen Guido; Dorothy Harriet Williams Haberman; Richard Lee Haberman; Mary Louise Hall; Evalina Hoffman; Linda Lee Hoffman; Virginia Howerton; Martin Kinder; Rachel Louise Knight; Pauline Rogers Kothman; Axel Roderick Lindgren; Marilyn Kay Lunsford; Ardith Evelyn McConnell; Howard Duane McConnell; Michael McConnell; Robert Brian McConnell; Allen McCovey, Sr.; Beatrice Violet McCovey; Darrell McCovey; Frank Lynn McCovey; James L. McCovey; Loren Gerhad McCovey; Vada Norma John McCovey; Vlayn Dene Harvill McCovey; David Edgar McLaughlin; Thelma Wilma McLaughlin; Gertrude Viola Mollier; Carol Griffith Moon; Edward Michael Moore; Lena Isle Nicholson; David O'Neill; Ellen J. O'Neill; Herbert Lincoln O'Neill; Barbara D. Orcutt; Lawrence E. Orcutt; Bernice Jean Roubidoux; Darlene Marie Roubidoux; Peggy Joyce Sanderson; John Denton Simpson, II; Vivian Kay Simpson; Alberta Sylvia; Maria Eileen Tripp; Georgiana Trull; Lena Cleveland Wilder; and The Coast Indian Community of Yurok Indians of the Resighini Rancheria, a federally recognized tribe, Plaintiffs-Appellants, v. The UNITED STATES of America; The United States Department of Interior, Bureau of Indian Affairs; Manuel Lujan, Secretary of the Interior; Eddie Brown, Assistant Secretary of the Interior/Indian Affairs; Ronald M. Jaeger, Area Director, Sacramento Area Office, Bureau of Indian Affairs; and Karole Overberg, Superintendent, Northern California Agency, Bureau of Indian Affairs, Defendants-
CourtU.S. Court of Appeals — Ninth Circuit

Richard B. Thierolf, Jr., Jacobson, Jewett & Thierolf, Medford, OR, for plaintiffs-appellants.

Barry M. Hartman and Michael J. Malmquist, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Thomas P. Schlosser and Frank R. Jozwiak, Pirtle, Morisset, Schlosser & Ayer, Seattle, WA, for intervenor defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before: FLETCHER, POOLE and BRUNETTI, Circuit Judges.

POOLE, Circuit Judge:

I.

Seventy individual Native Americans and the Coast Indian Community of Yurok Indians of the Resighini Rancheria, appellants, seek review of the district court's dismissal of their suit seeking injunctive relief and a declaration that the Hoopa-Yurok Settlement Act violates their constitutional rights. They also appeal the denial of their motion to amend their complaint. We affirm.

II.

On October 31, 1988, Congress enacted the Hoopa-Yurok Settlement Act, Pub.L. No. 100-580, 102 Stat. 2924 (codified at 25 U.S.C. §§ 1300i-1300i-11 (1988)) ("Act"), thereby partitioning a communal reservation on the Klamath and Trinity Rivers in Northern California for the purpose of "resolv[ing] long standing [sic] litigation between the United States, the Hoopa Valley Tribe and a large number of individual Indians." S.Rep. No. 564, 100th Cong., 2d Sess. 1 (September 30, 1988). This litigation's provenience is found in the irruption of white settlers into California following the discovery of gold in 1849, which occasioned attempts by the federal government to "secure the cession by the Indians of their lands," id. at 4, and to immure "the many small tribes or bands of Indians" within a few "small tracts of land." Id. at 2-4.

Towards this end, Congress authorized the President in 1853 "to make five military reservations from the public domain in the State of California or the Territories of Utah and New Mexico bordering on said State, for Indian purposes.... Provided, That such reservations shall not contain more than twenty-five thousand acres." Act of March 3, 1853, ch. 104, 10 Stat. 226, 238. 1 Pursuant to this authorization, by Executive Order dated November 16, 1855, President Franklin Pierce established the 25,000 acre Klamath River Reservation, "a strip of territory commencing at the Pacific Ocean and extending 1 mile in width on each side of the Klamath River." 1 Charles J. Kappler, Indian Affairs, Laws & Treaties 817 (2d ed. 1904). Most of the inhabitants of this area "were and have been Yurok Indians, also known as Klamaths." Short v. United States, 486 F.2d 561, 562, 202 Ct.Cl. 870 (1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1981, 40 L.Ed.2d 313 (1974). The reservation was not entirely successful, however, as "the Hoopa and other inland tribes refused to move onto this reservation and armed conflict ... continued." S.Rep. No. 564, at 4.

Thus Congress, in 1864, passed "An Act to provide for the Better Organization of Indian Affairs in California." Act of April 8, 1864, ch. 48, 13 Stat. 39. This measure empowered the President to:

set apart ... at his discretion, not exceeding four tracts of land, within the limits of [California], to be retained by the United States for the purposes of Indian reservations, which shall be of suitable extent for the accommodation of the Indians of said state, and shall be located as remote from white settlements as may be found practicable....

Id. at 40. Acting under this authorization, President Ulysses S. Grant issued an executive order on June 23, 1876, formally establishing the Hoopa Valley Reservation, "a 12-mile square tract of land in Northern California, on the last reach of the Trinity River before it joins the Klamath River...." Short, 486 F.2d at 562; see 1 Kappler at 815. Most of the Indians residing in "the Square," as the Hoopa Valley Reservation has been called, "were and have been Hoopa Indians." Short, 486 F.2d at 562.

Since the Act of 1864 superseded the Act of 1853 by allowing only four reservations in California, and since the Klamath River Reservation was not one of the authorized reservations, the Klamath River Reservation was held to be abandoned as a reservation. United States v. Forty-Eight Pounds of Rising Star Tea, Etc., 35 Fed. 403, 406 (N.D.Cal.1888). President Benjamin Harrison, in response to this holding, issued an Executive Order on October 16, 1891, which expanded the Hoopa Valley Reservation by adding "a tract of country one mile in width on each side of the Klamath River, and extending from the present limits of the Said Hoopa Valley reservation to the Pacific Ocean." 1 Kappler at 815. This "Addition" or "Extension" thus extended the Hoopa Valley Reservation for some forty-five miles along the Klamath River, thereby encompassing the old Klamath River Reservation. The consequence of President Harrison's order "was the creation of an enlarged, single reservation incorporating without distinction its added and original tracts upon which the Indians populating the newly-added lands should reside on an equal footing with the Indians theretofore resident upon it." Short, 486 F.2d at 567.

Despite this, it has been an inveterate practice of the Department of the Interior and the Bureau of Indian Affairs (BIA), appellees in this case, to treat the Square and the Addition "as two separate reservations and the Yurok or Klamath Indians and the Hoopa Indians ... as two separate tribes." S.Rep. No. 564, at 7. This treatment included the practice of allocating all revenues from the sale of timber grown on the Square to members of the Hoopa Valley Tribe. The "long standing [sic] litigation" which the Hoopa-Yurok Settlement Act sought to resolve has, in large part, been generated by Indians of the Addition seeking to recoup their share of profits from the previously unapportioned reservation. See Short, 486 F.2d 561. As a result of the first Short case, the federal government began an escrow fund by "sequestering 70 percent of the annual timber income pending the final decision in [that] case." Short v. United States, 661 F.2d 150, 156, 228 Ct.Cl. 535 (1981), cert. denied, 455 U.S. 1034, 102 S.Ct. 1738, 72 L.Ed.2d 153 (1982). The establishment of this trust account, in turn, led to more litigation, this time brought by the Hoopa Valley Tribe challenging the government's taking of the timber revenues. Hoopa Valley Tribe v. United States, 596 F.2d 435, 219 Ct.Cl. 492 (1979). Suit was also brought challenging the right of the Hoopa Valley Tribe to govern the whole reservation. Puzz v. United States, No. C-80-2908-TEH, 1988 WL 188462, 1990 U.S.Dist. LEXIS 4433 (N.D.Cal. April 8, 1988).

In the Hoopa-Yurok Settlement Act, Congress sought to resolve the legal conflicts by: (1) partitioning the reservation into two reservations, designating the Square as the "Hoopa Valley Reservation" and the Extension as the "Yurok Reservation," 25 U.S.C. § 1300i-1; (2) distributing the escrow funds, 25 U.S.C. § 1300i-3; (3) confirming the status of the Hoopa Valley Tribe, and designating the Square or Hoopa Valley Reservation as the reservation to be held in trust for the Hoopa Valley Tribe, 25 U.S.C. § 1300i-1(b) & 7; (4) recognizing and organizing the Yurok Tribe, and designating the Addition or Yurok Reservation as the reservation to be held in trust for the Yurok Tribe, 25 U.S.C. § 1300i-1(c) & 8.

III.

The appellants brought suit against the United States, the Department of the Interior, and the BIA in August 1990, challenging the constitutionality of the Act on a variety of grounds. Appellants assert that, by extinguishing their interest in the Square and conferring exclusive right to the Square on the Hoopa Valley Tribe, the Act...

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