State of Idaho v. Andrus

• Decision Date: 01 December 1983
• Docket Number: No. 80-3013,80-3013
• Citation: 720 F.2d 1461
• Parties: STATE OF IDAHO, Plaintiff-Appellee, and Membership of Heyburn State Park Leaseholders Association, Plaintiff/Intervenor Appellee, v. The Honorable Cecil D. ANDRUS, Secretary of the Department of the Interior of the United States of America, Defendant/Appellant, and The Coeur d'Alene Tribe of Indians, Defendant/Intervenor Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1461

720 F.2d 1461

STATE OF IDAHO, Plaintiff-Appellee and Membership of Heyburn State Park Leaseholders Association Plaintiff/Intervenor Appellee, v. The Honorable Cecil D. ANDRUS, Secretary of the Department of the Interior of the United States of America Defendant/Appellant and The Coeur d'Alene Tribe of Indians, Defendant/Intervenor Appellant.

No. 80-3013.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 1981.

Remanded Aug. 5, 1981.

Resubmitted on Filing of

Supplemental Briefs.

Decided Dec. 1, 1983.

Robie G. Russell, Deputy Atty. Gen., David W. Hyde, Martin, Chapman, Martin & Hyde, Boise, Idaho, for plaintiff/appellee.

Robert D. Dellwo, Dellwo, Rudolf, & Schroeder, P.S., Spokane, Wash., for defendant/appellant.

Appeal from the United States District Court District of Idaho.

Before: KILKENNY and SNEED, Circuit Judges, and QUACKENBUSH, District Judge. ^*

KILKENNY, Circuit Judge:

FACTS

On April 30, 1908, Congress authorized the State of Idaho to purchase from the United States land withdrawn from the Coeur d'Alene Indian Reservation, Act of 1908, ch. 153, 35 Stat. 70, 78. In 1911, the land was conveyed to the state by patent, which contained language requiring that the property be used solely for park purposes. The United States was given a reversionary interest and a right of re-entry to the land if it were not maintained as a public park.

After the state began a private cottage leasing practice, the Coeur d'Alene Indian Tribe (Tribe) claimed that the practice violated the condition subsequent language of the patent. Following investigation into the uses to which the land was being put, the state brought suit in the Idaho District Court seeking a declaratory judgment that it was in compliance with the patent condition. The United States later filed suit, claiming that the patent's condition had been breached and seeking to quiet title to the property. The suits were consolidated for trial and the Tribe was granted limited leave to intervene as a defendant.

The district court, 566 F.Supp. 15, granted summary judgment in favor of the state. Both the United States and the Tribe appealed. A panel of this court granted the United States' motion for voluntary dismissal of its appeal and denied the Tribe's motion for reconsideration of the dismissal.

Prior to oral argument on the Tribe's appeal, the state moved to dismiss the appeal on the ground that the reversionary interest flowed solely to the United States and, therefore, no case or controversy existed as to the Tribe. This panel then remanded to the district court for the limited purpose of determining whether the Tribe possessed a beneficial interest in the reversion. The district court held that the Tribe lacked a beneficial interest. The Tribe appeals. We reverse.

HISTORICAL BACKGROUND

The Coeur d'Alene Indian Reservation was established by Executive Order in 1873 and comprises roughly 590,000 acres. In consideration, the Tribe agreed through an unratified 1873 Parley and Agreement to cede approximately four million acres of aboriginal land to the United States. In 1891 the Tribe formally ceded to the United States the tribal aboriginal land outside the 1873 reservation, Act of 1891, ch. 543, 26 Stat. 989, 1027. Appropriation bills were passed to compensate the Tribe and its members for the land ceded.

Pursuant to the Allotment Act of 1906, ch. 3504, 34 Stat. 325, 335, Congress authorized allotment of 160 acres of reservation land to each tribal member, and opened for homestead entry the unallotted lands. The Act provided in part as follows:

That the Secretary of the Interior ... is hereby, authorized and directed, as hereinafter provided, to sell or dispose of unallotted lands in the Coeur d'Alene Indian Reservation, ....

34 Stat. at 335. The receipts from the sales were to be deposited in the United States Treasury to the Tribe's credit, and the monies were to be spent for their benefit. The purpose of the Act was

[m]erely to have the United States ... act as trustee for said Indians in the disposition and sales of said lands and to expend or pay over to them the net proceeds derived from the sales.... [Emphasis added]

34 Stat. at 337.

Before the reservation was opened for settlement, however, Congress withdrew a portion of the land, comprising 6,774.65 acres, from allotment and settlement by the Act of 1908, ch. 153, 35 Stat. 70. The Act authorized the Secretary of the Interior to convey the land to the State of Idaho for use as a public park:

That the land in the following subdivisions now embraced in the Coeur d'Alene Indian Reservation in Idaho, to-wit: ... is reserved and withdrawn from allotment and settlement, and the Secretary of the Interior is hereby authorized to convey any part thereof to the State of Idaho to be maintained as a public park, said conveyance to be made for such consideration ... as the Secretary of the Interior shall prescribe. The proceeds of such sale shall be deposited in the Treasury of the United States for the benefit of the Coeur d'Alene Indians in such manner as Congress shall hereafter prescribe. [Emphasis added]

35 Stat. 78, 79.

Subsequently, the land was conveyed to the state for $11,379.17 on June 28, 1911, under a patent setting forth the following conditions:

Whereas, the Act of Congress ... authorizes the conveyance to the State of Idaho of the following described subdivisions ..., formerly a part of the Coeur d'Alene Indian Reservation in Idaho ....

Whereas, by appraisement under direction of and approved by the Secretary of the Interior, the purchase price to be paid by the State of Idaho for the said lands has been fixed at $11,379.17 and said Secretary has directed that said lands be conveyed to the state, upon payment ..., upon the following terms and conditions, to-wit: the lands are to be by said state held, used, and maintained solely as a public park, ..., the title to revert to the United States ..., absolutely if the said lands, ..., shall not be, ..., so used and maintained by the state, ... and in the event of the violation by the state of any of the conditions ..., then the United States may ... enter upon, and into the exclusive possession of, the

said lands, ..., and have, hold, seize, and possess the same: .... [Emphasis added]

ISSUES

(1) Did the Act of 1908, ch. 153, 35 Stat. 70, and its related legislation create or preserve a beneficial interest in the Tribe which it could assert in this litigation?

(2) Even if the Tribe does have a beneficial interest, does the United States' voluntary dismissal from this appeal preclude the Tribe from appealing the case as well?

DISCUSSION

The State of Idaho (state) and the Heyburn State Park Leaseholders Association argue that the Act of 1908 disestablished the Coeur d'Alene Reservation and thereby extinguished Indian title and interest in the property. Consequently, the right of re-entry created in the patent of 1911 was created for the sole benefit of the United States. Further, voluntary dismissal by the United States precludes the Tribe from appealing the case.

The Tribe argues that the Act of 1908 failed to extinguish the Tribe's beneficial interest. The United States' trustee status, as created in the Allotment Act of 1906, therefore remains in force despite the Act of 1908. The Act of 1958, Pub.L. No. 85-420, 72 Stat. 121, restored title to the Tribe to the lands as well.

STANDARD OF REVIEW

Once Congress has established a reservation all tracts within it remain a part of the reservation until separated therefrom by Congress. United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 94, 54 L.Ed. 195 (1909). Extinguishment of Indian title may be accomplished "by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise." United States v. Dann, 706 F.2d 919, 928 (CA9 1983) (quoting United States v. Santa Fe R.R., 314 U.S. 339, 347, 62 S.Ct. 248, 252, 86 L.Ed. 260 (1941)).

The general rule is that doubtful expressions are to be resolved in favor of the weak and defenseless people who are wards of the nation, dependent upon its protection and good faith. McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973) (quoting Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930)). However, the general rule does not command a determination that reservation status survives in the face of congressionally manifested intent to the contrary. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 587, 97 S.Ct. 1361, 1363, 51 L.Ed.2d 660 (1977).

Congressional intent to abrogate rights reserved in Indian treaties and agreements must be expressed clearly and unequivocally. Swim v. Bergland, 696 F.2d 712, 717 (CA9 1983); see Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, at 690, 99 S.Ct. 3055 at 3076, 61 L.Ed.2d 823 ("[a]bsent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights"); Menominee Tribe v. United States, 391 U.S. 404 at 413, 88 S.Ct. 1705 at 1711, 20 L.Ed.2d 697 ("[w]e find it difficult to believe that Congress, without explicit statement, would subject the United States to a claim for compensation by destroying property rights conferred by treaty" (footnote omitted)).

The question of whether title to Indian land has been extinguished is separate from the question of disestablishment. See Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 601 n. 24, 97 S.Ct. 1361, 1370 n. 24, 51 L.Ed.2d 660 (1977). While Congress has the authority to disestablish (diminish) a reservation and extinguish title, it may do either without the other. As the court in Swim v. Bergland, 696 F.2d 712 (CA9 1983) noted:

[t]hese cases ... stand for the undisputed proposition that the federal government, by withdrawing lands formerly open to sale or settlement, may lawfully assert a power to control the use of...