TEMOAK BAND OF WESTERN SHOSHONE I., NEV. v. US, Appeal No. 1-78.

• Decision Date: 21 February 1979
• Docket Number: Appeal No. 1-78.
• Citation: 593 F.2d 994
• Parties: The TEMOAK BAND OF WESTERN SHOSHONE INDIANS, NEVADA, Appellant, v. The UNITED STATES and the Western Shoshone Identifiable Group Represented by the Temoak Bands of Western Indians, Nevada, Appellees.
• Court: U.S. Claims Court

593 F.2d 994

The TEMOAK BAND OF WESTERN SHOSHONE INDIANS, NEVADA, Appellant, v. The UNITED STATES and the Western Shoshone Identifiable Group Represented by the Temoak Bands of Western Indians, Nevada, Appellees.

Appeal No. 1-78.

United States Court of Claims.

February 21, 1979.

Reid Peyton Chambers, Washington, D.C., for appellant. Sonosky, Chambers & Sachse and Marvin J. Sonosky, Washington, D. C., of counsel.

Dean K. Dunsmore, Washington, D.C., with whom was Asst. Atty. Gen. James W. Moorman, Washington, D.C., for appellee U.S.

Robert W. Barker, Washington, D.C., for appellee Western Shoshone Identifiable Group, etc. Wilkinson, Cragun & Barker, Jerry C. Straus and John M. Facciola, Washington, D.C., of counsel.

Before FRIEDMAN, Chief Judge, and NICHOLS and BENNETT, Judges.

ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

NICHOLS, Judge:

Both sides appeal from a judgment of the Indian Claims Commission relating to the claim of the Western Shoshones for taking of aboriginal title lands in the present States of California and Nevada. The claimants long prosecuted the claim on the basis that the entire tract was taken on a date to be determined, and because of this the claim of the Indians was money compensation only. In 1974 a group of Shoshones attempted to intervene, asserting that the claimants still own much of the tract. They wanted a stay or suspension to allow their position to be developed and presented. See Western Shoshone v. United States, 531 F.2d 495, 209 Ct.Cl. 43, cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976). Now new counsel representing the tribe itself, or purporting to do so, make a like contention. Defendant as appellee opposed below and opposes here any such suspension. We hold that far too much water had gone under the bridge even in 1974; we think the Commission effectuated the will of Congress more perfectly by allowing this case to come to final judgment, and we therefore affirm on appeal its decision not to suspend. In defendant's cross-appeal, its contention, which we reject, is that the Commission erred in awarding $4,604,600 as compensation for minerals removed from the tract before the stipulated valuation date of July 1, 1872. The former counsel for the Indians, not the new ones, argued for them this portion of the case. Our analyses of these issues follow, part I discussing the Indians' appeal, and part II the government's appeal.

I

The desire of the Indians to make the water flow back under the bridge is explained as a natural reaction to a visible change in legal climate, where Indian claims to own large tracts are reported in litigation or settled favorably to them, whereas, they say, in 1946 the pursuit of a money award, as made possible by the Indian Claims Commission Act, 25 U.S.C. § 70a and ff, seemed the only hope for justice. The instant claim is one of many where the Commission was unable to discover any formal extinguishment of Indians' legal title, only gradual encroachment by settlers and others, and takings, the exact date of which could not be definitely set. 11 Ind.Cl.Comm. at 416. The Indians now claim, as not taken, only vacant land, not settled, patented, improved or mined, and no town sites. In United States v. Northern Paiute Nation, 393 F.2d 786, 807, 183 Ct.Cl. 321, 358 (1968), it was suggested by one judge of those participating that as to vacant, unimproved land in the public domain, in Nevada, where Indian title was not formally extinguished, it had not "been taken yet" (i. e., by 1968). There might be a considerable difference between an award for desert land "taken" over a century ago, but not carrying interest, and the selling price of even such desert land today, and counsel say the Indians would be able to use much of the involved land in their present way of life. Much of it is grazing land.

The proceeding was started in 1951. By stipulation filed February 11, 1966, the parties agreed that the "valuation date" for Shoshone Nevada land would be July 1, 1872. Findings as to the extent of the land taken, 22,211,753 acres in Nevada, and 2,184,650 acres in California, had already been made. A trial on valuation took place in September 1967, and following oral argument and briefing, the Commission awarded plaintiffs $21,350,000 for the Nevada land, to which it added $200,000 for California land, and $4,604,600 for removal of minerals from the Nevada land before the taking date. It deducted $9,410.11 as payment on the claim, and nothing for offsets, making a total judgment of $26,145,189.89, as entered. 40 Ind.Cl.Comm. 318, 452 (August 15, 1977).

The attempted intervention was by the Western Shoshone Legal Defense and Education Association and Frank Temoke. It was filed with the Indian Claims Commission April 18, 1974, at which time the extent and value of land and minerals taken had been determined, and only the offsets and payments then awaited adjudication. The intervenors alleged the Western Shoshones still had title to about 12 million acres, and they claimed collusion between the Temoak Bands and the government to treat the title as extinguished. The Commission, after hearing oral argument, dismissed the intervening petition. 35 Ind.Cl.Comm. 457. This court affirmed in the decision cited above. After holding the intervenor's appeal was not premature and that we therefore had jurisdiction of it, we pointed out how belated the attempted intervention was in light of how much the Commission had done and how little remained to do; that the intervening petitioners themselves alleged they had been aware of the case for 39 years and had repeatedly protested; and that no adequate excuse was offered for the long delay. We said that the longer the delay, the better the reason for intervention that had to be shown. We held that the intervenors could not take control of the case from those then in charge unless they could show fraud, collusion, or laches, none of which was alleged except in conclusory assertions not sufficient to call for a trial. Instead of collusion, there was, we thought, a deliberate unilateral choice to claim compensation as for a "taking" of the involved lands. As regards the fear of the intervenors that they might lose the right to claim title if the case proceeded to final judgment, we pointed out that by Section 22 of the Act, 25 U.S.C. § 70u, the United States would not be discharged of any claim, including one that the Western Shoshones owned the land, until the judgment was reported to Congress, money to pay it appropriated, and payment made. The intervenors might, we said, ask Congress to delay payment.

The Temoak Band had been determined to be entitled to control the litigation on behalf of all Western Shoshone, and the intervenors were deemed by us to be non-Temoaks. Now, however, the Temoak Band itself has ostensibly changed its position. Following our remand, it petitioned the Secretary of the Interior to determine that the Western Shoshone retained ownership of the claimed acres, terminated the contract with Wilkinson, Cragun & Barker (hereinafter called old counsel), who had been in charge of this litigation hitherto, and retained Sonosky, Chambers & Sachse (hereinafter called new counsel). Old counsel have continued to participate so far as concerns the government cross-appeal. A brief by them is on file in which they also contest the legality of their purported ouster, and say the Indians have not had a chance to vote on it, but by consent of all counsel, this issue was not argued orally. To decide it does not appear necessary for adjudication of the appeals now before us. New counsel moved for a stay of proceedings in the Indian Claims Commission, and the Commission denied the motion the same day it entered its final judgment, August 15, 1977. New counsel appealed the denial order and the judgment on November 11, 1977. It is said the Secretary is awaiting our decision on this appeal before making any move to adjudicate the title claim, but neither we nor the Commission have stayed or, it would appear, have had authority to stay, any adjudication he might engage in as to the title.

We can and do assume that the Temoaks really desire to sweep the water back under the bridge, and that they have employed new counsel to assist them in this endeavor. Any question as to the rights of new and old counsel vis-a-vis one another can wait until the proper time for adjudicating such matters. We can also put aside as irrelevant whether the course now proposed will or will not be more beneficial to the Shoshone, Temoak and others, than the one previously charted.

A different question would arise if the Temoaks desired to abandon this proceeding in its entirety. They do not. They make no claim to the title at present to ten million acres, more or less, which they still concede were taken, and eventually, their compensation to be awarded for that must come to judgment here, if the present one does not stand. Presumably, as to that as well as to the lands they do claim, if they work their will, the proceeding here must simply wait. After they have carved out whatever part they successfully claim to own, the award for the rest must be redetermined. That could be a simple matter if the parties were willing to use the record already made and the findings of the Commission. That matter does not rest in the discretion of the Temoaks alone. They cannot change their litigation position so drastically and not allow their adversary a like privilege. Defendant, also, now repents many of the stances it has taken in the conduct of this litigation. Most likely it would not now agree to the valuation date it once stipulated. With a different valuation date, the expert appraisals would be out of court and new ones would be necessary. This lawsuit has already lasted since 1951, for reasons peculiar to this type of litigation, which no one criticizes, and it appears the Temoaks contemplate cheerfully another quarter...