Short v. United States, 102-63.

Citation486 F.2d 561,202 Ct. Cl. 870
Decision Date17 October 1973
Docket NumberNo. 102-63.,102-63.
PartiesJessie SHORT et al. v. The UNITED STATES.
CourtCourt of Federal Claims

Harold C. Faulkner, San Francisco, Cal., attorney of record, and William C. Wunsch, San Francisco, Cal., for plaintiff. Wallace Sheehan and Faulkner, McComish & Wunsch, San Francisco, Cal., of counsel.

Herbert Pittle, Washington, D. C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.

Jerry C. Straus, Washington, D. C., for Hoopa Valley Tribe, amicus curiae. Wilkinson, Cragun & Barker, Angelo A. Iadarola, Richard A. Baenen and Alan I. Rubinstein, Washington, D. C., of counsel.

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

OPINION

PER CURIAM:

This case comes before the court on defendant's exceptions to a recommended decision filed May 22, 1972, by Trial Judge David Schwartz pursuant to Rule 134(h). The court has considered the case on the briefs and oral arguments of counsel for the parties and the amicus curiae. The court agrees with the decision as hereinafter set forth, rejects the objections and exceptions of defendant and amicus, and hereby affirms and adopts the decision as the basis for its judgment in this case. Insofar as defendant and amicus curiae have presented arguments to the court which differ from those presented to the trial judge, the court has considered them but does not deem any change in the trial judge's opinion or findings is called for. The court has, however, excised from the findings the trial judge's notes which he indicates were not intended as findings.

Subsequent to the trial judge's decision and the oral argument before the court, the Supreme Court decided Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). We consider the trial judge's opinion and findings, and our decision herein, to be fully consistent with the opinion and decision in that case. Although the ultimate issues in the two cases are different, several aspects of the Supreme Court's opinion tend substantially toward supporting our holding in the present case.

It is concluded, therefore, that certain of the plaintiffs are entitled to recover in amounts to be determined under Rule 131(c), and the claims of the others are set down for retrial, as provided in findings 217-218. The case is remanded to the trial judge for further proceedings. The motion of the Hoopa Valley Tribe to intervene is granted.

OPINION OF TRIAL JUDGE

SCHWARTZ, Trial Judge:

In 1876, a 12-mile square tract of land in Northern California, on the last reach of the Trinity River before it joins the Klamath River, was set aside by order of President Grant as the Hoopa Valley Indian Reservation. Most but not all of the Indians of the tract, called the Square, were and have been Hoopa Indians. In 1891 President Harrison made an order extending the boundaries of the reservation to include an adjoining 1-mile wide strip of land on each side of the Klamath River, from the confluence of the two rivers to the ocean about 45 miles away (in consequence of which the reservation took on the shape of a square skillet with an extraordinarily long handle). Most of the Indians of the added tract, called the Addition, were and have been Yurok Indians, also known as Klamaths.

The Square is heavily timbered and in the last 20 years the timber on its unallotted trust-status lands has begun to produce revenues of about $1 million annually. These revenues, administered by the United States as trustee for the Indian beneficial owners, have been divided by the Secretary of the Interior exclusively among the persons on the official roll of the Hoopa Valley Tribe, an organization created in 1950, whose membership rules limit enrollment to allottees of land on the Square, non-land-holding "true" Hoopas voted upon by the Tribe, and long-time residents of the Square of a prescribed degree of Hoopa blood, descended from natives of the Square.

The plaintiffs are 3,323 Indians, in the main Yuroks of the Addition and their descendants, who are ineligible for membership in the Hoopa Valley Tribe and have thus been denied a share in the revenues from the Square. They bring this suit against the United States as their trustee for a money judgment for their alleged share in the timber income, claiming it as all-reservation property. The Hoopa Valley Tribe, in a sense the real party defendant, is present in the case as an amicus curiae aligned with the defendant; the position of the Government and the Tribe are identical and the two have filed joint briefs. (References to defendant or to the Government will therefore mean the Hoopa Valley Tribe as well.)

To simplify the litigation, the cases of 26 plaintiffs believed to be representative of the 3,323 were chosen for trial with the expectation that if the plaintiffs as a group were upheld on the common issue, resolution of the sample cases would develop standards by which the parties could dispose of many or most of the remaining cases. The first order of business is therefore the basic issue of whether the Indians of the Addition may be excluded from sharing in the revenues of the communal lands of the Square.

The history of the reservation may be succinctly stated: It was established in 1864 pursuant to the Act of April 8, 1864, 13 Stat. 39, its boundaries were in 1865 provisionally determined to be what has since been called the Square, formally so defined by an order of President Grant in 1876 and extended to include the Addition by order of President Harrison in 1891. The act of 1864 is the basis of the claims of all parties. No claim is made of any title or right antedating or overriding the statute or the authority exercised thereunder.

The plaintiffs contend that as Indians of the Addition, they are entitled to share in the resources of the entire reservation, including the Square. The enlargement of the reservation in 1891 formed, they maintain, a single, integrated reservation to which all the Indians on both the Square and the Addition got equal rights in common. The contrary position of the Government is that the Square survived the enlargement of the reservation in 1891 as an entity whose resident Indians had vested substantive rights, exclusive as against the Indians of the Addition. The executive order of 1891, the Government says, joined the Square and the Addition for administrative purposes only, not for purposes of substantive rights, and without effect on already vested rights of the Indians of the Square, now organized as the Hoopa Valley Tribe. The controversy is decided here in favor of plaintiffs, for the reasons which follow.

On August 21, 1864, Austin Wiley, the federal Superintendent of Indian Affairs for California, in a public notice "located" a reservation, to be called the "Hoopa Valley Reservation," "situated" on the Trinity River in Klamath County.1 A second notice in February of the following year defined the boundaries of the "Hoopa Reservation" as a square tract bisected by the last 12 miles of the Trinity River before its junction with the Klamath and extending 6 miles on each side of the Trinity.2 Eleven years later, on June 23, 1876, President Grant in an executive order precisely defined the "exterior boundaries" of the "Hoopa Valley Indian Reservation" in accordance with a survey, and declared that the 89572.43 acres embraced therein were "set apart for Indian purposes, as one of the Indian reservations authorized to be set apart, in California, by act of Congress approved April 8, 1864."3 The circumstances surrounding the establishment and enlargement of the reservation are described in the accompanying findings of fact.

Neither the public notices of 1864 and 1865 nor the executive order of 1876 mentioned any Indian tribe by name, nor intimated which tribes were occupying or were to occupy the reservation. In this they were consistent with the statute whose authority was being exercised, the Act of April 8, 1864, 13 Stat. 39. That act, cited by both public notices and by the executive order, authorized the President in his discretion to locate not more than four Indian reservations in California, at least one of them to be in the northern district of the state, of such extent as he deemed suitable for the accommodation of the Indians of the state, all without mention of any tribe by name.

Section 2 of the act read as follows (13 Stat. 40):

Sec. 2. That there shall be set apart by the President, and at his discretion, not exceeding four tracts of land, within the limits of said state, 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, having due regard to their adaptation to the purposes for which they are intended: Provided, That at least one of said tracts shall be located in what has heretofore been known as the northern district: * * * And provided, further, That said tracts to be set apart as aforesaid may, or may not, as in the discretion of the President may be deemed for the best interests of the Indians to be provided for, include any of the Indian reservations heretofore set apart in said state, and that in case any such reservation is so included, the same may be enlarged to such an extent as in the opinion of the President may be necessary, in order to its complete adaptation to the purposes for which it is intended.

The powers conferred by this statute are to be construed in keeping with the broad connotations of the words employed: "at his discretion," "suitable extent," "accommodation of the Indians," "practicable" and "due regard." South Puerto Rico Sugar Company Trading Corp. v. United States, 334 F.2d 622, 631-632, 167 Ct.Cl. 236, 260-261 (1964), cert. denied, 379 U.S. 964, 85 S.Ct. 654, 13 L.Ed.2d 558 (1965). It is not...

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18 cases
  • Hoopa Valley Tribe v. United States
    • United States
    • Court of Federal Claims
    • March 21, 1979
    ...of the Square of the Hoopa Valley Reservation, instead of the lesser share due plaintiff (and its members) under Short v. United States, 486 F.2d 561, 202 Ct.Cl. 870 (1973), cert. denied 416 U.S. 961, 94 S.Ct. 1981, 40 L.Ed.2d 313 (1974). The jurisdiction of this court over this kind of sui......
  • Wolfchild v. United States
    • United States
    • Court of Federal Claims
    • August 5, 2011
    ...the 1988 Hoopa-Yurok Settlement Act, 25 U.S.C. §§ 1300i to 1300i-11 (1994). That Act "nullified the Short rulings [Short v. United States, 486 F.2d 561 (Ct. Cl. 1973); Short v. United States, 661 F.2d 150 (Ct. Cl. 1981); Short v. United States, 719 F.2d 1133 (Fed. Cir. 1983)], by establishi......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • March 14, 1995
    ...the Hoopa Valley Reservation. The majority of those living on the reservation are of Yurok descent. See Short v. United States, 486 F.2d 561, 562, 202 Ct.Cl. 870 (1973) ("Short I "); Short IV, 12 Cl.Ct. at 38. Beginning in 1955, the United States made per capita payments from the proceeds o......
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    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • September 25, 2020
    ...on August 21, 1864. Mattz v. Arnett , 412 U.S. 481, 490, fn. 9, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973) ; Short v. United States , 202 Ct. Cl. 870, 875-76, 486 F.2d 561 (1973) (discussing Reservation history). On June 23, 1876, President Grant issued an Executive Order formally setting aside th......
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