Short v. United States, 102-63.

• Decision Date: 23 September 1981
• Docket Number: No. 102-63.,102-63.
• Citation: 661 F.2d 150
• Parties: Jessie SHORT, et al. v. The UNITED STATES, Defendant, and Hoopa Valley Tribe of Indians, Defendant-Intervenor.
• Court: U.S. Claims Court

661 F.2d 150

Jessie SHORT, et al. v. The UNITED STATES, Defendant, and Hoopa Valley Tribe of Indians, Defendant-Intervenor.

No. 102-63.

United States Court of Claims.

September 23, 1981.

Harold C. Faulkner, San Francisco, Cal., atty. of record, William C. Wunsch, Weyman I. Lundquist, San Francisco, Cal., and William K. Shearer, San Diego, Cal., for certain plaintiffs. Wallace A. Sheehan, Faulkner, Sheehan & Wunsch, and Heller, Ehrman, White & McAuliffe, San Francisco, Cal., of counsel.

Clifford L. Duke, Jr., San Diego, Cal., atty. of record for certain plaintiffs. Bryan R. Gerstel and William K. Shearer, Duke & Gerstel, San Diego, Cal., of counsel.

James E. Brookshire, Springfield, Va., with whom was Acting Asst. Atty. Gen. Anthony C. Liotta, Washington, D. C., for defendant. Duard R. Barnes, Dept. of the Interior, Washington, D. C., of counsel.

Jerry C. Straus, Washington, D. C., atty. of record for defendant-intervenor. Edward M. Fogarty, Jerry R. Goldstein, and James A. Michaels, Wilkinson, Cragun & Barker, Washington, D. C., of counsel.

Before FRIEDMAN, Chief Judge, DAVIS, Judge, SKELTON, Senior Judge, and NICHOLS, KUNZIG, BENNETT and SMITH, Judges, en banc.

ON REQUEST FOR REVIEW OF TRIAL JUDGE'S OPINIONS DENYING DEFENDANT'S MOTION TO SUBSTITUTE AND DEFENDANT-INTERVENOR'S MOTION TO DISMISS

FRIEDMAN, Chief Judge:

In this suit, some 3,800 individuals who claim to be Indians of the Hoopa Valley Indian Reservation in Northern California (the Reservation) seek to recover their shares in the income from the sale of Reservation timber that the government distributed exclusively to another group of Indians of the Reservation. In Short v. United States, 202 Ct.Cl. 870, 486 F.2d 561 (1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1981, 40 L.Ed.2d 313 (1974) (the 1973 decision), we held the government liable to qualified Indians of the Reservation who were entitled to but did not receive shares in this income, and we rendered judgment in favor of 22 individual plaintiffs who had proved their entitlement. We also permitted the Hoopa Valley Tribe, the group of Indians to whom the government theretofore had distributed the timber income exclusively, to intervene as a party defendant.

The case is now before us on requests for review by the United States and the Hoopa Valley Tribe (collectively, the defendants) of two decisions of Trial Judge Schwartz denying (i) the United States' motion to substitute for the plaintiffs as the real party in interest an entity called the Yurok Tribe, and (ii) the Hoopa Valley Tribe's motion to dismiss the suit on the ground that it involves nonjusticiable political questions. The government states that if its motion to substitute is denied, it then joins in the motion to dismiss. We agree with and affirm the trial judge's decisions.

I.

A. The facts relevant to the case's present posture, which we briefly review here, were the subject of extensive findings in our 1973 decision. See 202 Ct.Cl. at 885-987, 486 F.2d 561, passim.

The timber revenues at issue derive from unallotted, trust-status lands on a portion of the Reservation known as the Square. This is an area 12 miles square, which constituted the entire original Hoopa Valley Reservation when that reservation was established in 1864. Fdgs. 10-21, 202 Ct.Cl. at 888-99, 486 F.2d 561. An area contiguous to the Square, inhabited then as now primarily by Yurok Indians and known as the Addition, was added to the Reservation in 1891. Fdgs. 33-34, 202 Ct.Cl. at 902-03, 486 F.2d 561.

In 1950, the Indians of the Square established an organization known as the Hoopa Valley Tribe (fdg. 145, 202 Ct.Cl. at 962, 486 F.2d 561), whose membership excludes the plaintiffs. Fdg. 143, 202 Ct.Cl. at 961, 486 F.2d 561. Beginning in 1955, the Secretary of the Interior, pursuant to requests by the Hoopa Valley Tribe's Business Council, distributed the revenues from the timber sales annually in per capita payments to the Indians on the official roll of the Hoopa Valley Tribe, to the exclusion of the Indians of the Addition. Fdgs. 171, 173, 202 Ct.Cl. at 971-72, 973, 486 F.2d 561. The Secretary took this action on the basis of an opinion of the Solicitor of the Department, 65 Dec. Dep't Int. 59 (1958), reprinted in 2 U.S. Department of the Interior, Opinions of Solicitor of the Department of The Interior Relating to Indian Affairs, 1917-1974, at 1814, that the Square and the Addition were separate reservations. Fdg. 174, 202 Ct.Cl. at 973, 486 F.2d 561. Between 1955 and February 1969, these payments totaled approximately $12,650,000. Fdg. 172, 202 Ct.Cl. at 972, 486 F.2d 561.

In 1963, the plaintiffs, each of whom claims to be an Indian of the Addition area of the Reservation, brought this suit against the United States, as trustee and administrator of the timber resources of the Reservation, seeking their shares of the revenues the government had distributed to individual Indians of the Reservation. Following a trial and after briefing and oral argument, we held in 1973 that the Secretary's treatment of the Square and the Addition as separate reservations in which the Indians of each had exclusive rights to the resources of their area was erroneous. 202 Ct.Cl. at 884-85, 486 F.2d at 567-68. Adopting the trial judge's opinion and detailed findings (202 Ct.Cl. at 872-73, 486 F.2d at 561), we held that the Square and the Addition together constituted a single reservation, that all the Indians of that Reservation were entitled to share in all of its revenues that were distributed to individual Indians (including the timber revenues from the Square), and that the plaintiffs who were Indians of the Reservation were entitled to recover the monies the government withheld from them. Fdgs. 188-89, 202 Ct.Cl. at 980-81, 486 F.2d 561.

We also ruled that 22 of 26 named individual plaintiffs, whose cases had been chosen as representative of the plaintiff group, see 202 Ct.Cl. at 874, 486 F.2d at 562, had established that they were Indians of the Reservation. 202 Ct.Cl. at 885, 486 F.2d at 568; fdgs. 191-217, 202 Ct.Cl. at 982-87, 486 F.2d 561. We held that these 22 plaintiffs "are entitled to recover, as Indians of the Hoopa Valley Reservation, an aliquot share in the revenues of the unallotted trust-status lands of the entire reservation ..., the amount of recovery to be determined following trial of the claims of the remaining plaintiffs." Fdg. 217, 202 Ct.Cl. at 987, 486 F.2d 561. We remanded the case for a retrial of the claims of the four remaining representative plaintiffs and a determination of the rights of the remaining plaintiffs to recover. 202 Ct.Cl. at 873, 885, 987-88, 486 F.2d at 561, 568.

The Supreme Court denied petitions for certiorari filed by the Hoopa Valley Tribe and the United States. 416 U.S. 961, 94 S.Ct. 1981, 40 L.Ed.2d 313 (1974).

B. Since our 1973 decision, the parties and this court have taken a number of steps looking toward the determination and identification of the Indians of the Reservation who are entitled to recover.

In 1976, we permitted 515 additional persons to intervene as plaintiffs as of the time the suit was instituted, thus increasing the number of plaintiffs to approximately 3,800. We also closed the class. Short v. United States, 209 Ct.Cl. 777 (1976).

Each plaintiff then filled out a life-history questionnaire developed and agreed upon by the parties. See Hoopa Valley Tribe v. United States, 219 Ct.Cl. 492, ___, 596 F.2d 435, 439 (1979). Between September 1976 and May 1977, at the behest of the trial judge, the parties filed successive cross-motions for summary judgment for and against some 3,200 plaintiffs. We referred these motions to the trial judge for recommended decision. Short v. United States, 212 Ct.Cl. 522 (1976). With the consent of the defendants, we granted summary judgment for 121 additional plaintiffs whose status as Indians of the Reservation the defendants did not contest. Short v. United States, No. 102-63 (orders entered December 3, 1976, February 25, 1977, and April 27, 1978).

The trial judge has not issued any recommended decisions on the remaining cross-motions for summary judgment because of (i) protracted but unsuccessful efforts to settle the case and (ii) the filing of the motions before us.

II. The Motion to Substitute

A. After efforts to settle this case failed, the trial judge in September 1978 reconvened proceedings on the pending summary judgment motions. Shortly before a scheduled status conference to determine the course of proceedings, the government began efforts to organize a Yurok Tribe.

In November 1978, 15 days before the status conference, the Assistant Secretary for Indian Affairs of the Department of the Interior issued a letter to the plaintiffs in this case and to all members of the Hoopa Valley Tribe announcing a plan to organize a Yurok Tribe as the "first step" for "resolving the dispute over the use and benefit of the Hoopa Valley Reservation and removing the impediments to self-determination" on the Reservation.

The Assistant Secretary stated that he intended to conform to this court's 1973 decision by "designating the Hoopa Valley Tribe and the Yurok Tribe as the Indians of the Reservation who are entitled to use and benefit from the Reservation and its resources." Since no Yurok tribal organization existed and the membership of the Tribe was not established, the Assistant Secretary announced that the Interior Department would initiate organization of a Yurok Tribe.

In December 1978 and March 1979, the Interior Department proposed a set of qualifications for developing a list of persons entitled to vote in the election of an "Interim Yurok Governing Committee" that would draw up a tribal constitution for submission to the voters. 44 Fed.Reg. 12,210 (1979); 43 Fed.Reg. 60,670 (1978). In May 1979, the Department proposed rules for the conduct of this election. 44 Fed. Reg. 31,156 (1979). These proposals engendered considerable opposition by the...