Tlingit and Haida Indians of Alaska v. United States

• Citation: 389 F.2d 778
• Decision Date: 19 January 1968
• Docket Number: No. 47900.,47900.
• Parties: The TLINGIT AND HAIDA INDIANS OF ALASKA and Harry Douglas et al., Intervenors, v. The UNITED STATES.
• Court: Court of Federal Claims

389 F.2d 778 (1968)

The TLINGIT AND HAIDA INDIANS OF ALASKA and Harry Douglas et al., Intervenors, v. The UNITED STATES.

No. 47900.

United States Court of Claims.

January 19, 1968.

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I. S. Weissbrodt, Washington, D. C., attorney of record, for plaintiffs. Abe W. Weissbrodt and Ruth W. Duhl, Washington, D. C., of counsel.

Ralph A. Barney, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., for defendant.

James C. Peacock, Washington, D. C., for intervenors.

Before COWEN, Chief Judge, REED, Justice (Ret.) sitting by designation, JONES, Senior Judge, LARAMORE, DURFEE, SKELTON, and NICHOLS, Judges.

OPINION

LARAMORE, Judge.

The Act of June 19, 1935, 49 Stat. 388, ch. 275 (as amended by Act of June 5, 1942, 56 Stat. 323, and Act of June 4, 1945, 59 Stat. 231) gave this court jurisdiction to adjudicate all claims which the Tlingit and Haida Indians may have against the United States, including compensation owed both for land and other tribal property rights in southeastern Alaska expropriated by the United States and for the failure of, and refusal by, the United States to protect those property rights from usurpation by non-Indians.

By our decision of October 7, 1959 (Tlingit and Haida Indians of Alaska v. United States, 177 F.Supp. 452, 147 Ct.Cl. 315), we held that the Indians, as a tribe, had established aboriginal Indian title to six designated areas on the Alaskan archipelago by their exclusive use and occupancy of that territory from time immemorial. In redress for the uncompensated and uncontested taking by the United States, equitable and just compensation, as provided for in the Act, was held owed to the Tlingit and Haida tribes. The court remanded the case for further proceedings to determine the amount of recovery, the existence and amount of any offsets available to the United States, and whether or not the Indians had voluntarily abandoned any of their land prior to the date of taking by the United States.

Trial Commissioner Saul R. Gamer, in his report filed September 12, 1966, concluded that none of the land had been abandoned prior to the taking date and that no offsets are available to the United States. In addition, he awarded damages in an amount determined by two alternative methods of measurement; first, the fair market value on the date of taking, $15,934,368.80 and second, the value to the Indians, as aboriginals, for their own subsistence, $1,287,200.

Both parties except to these findings of fact and by brief and oral argument contest both the proper valuation standard and the application of that standard to the instant facts. We adopt the fair market value standard of valuation and, in part, the application of that standard by the commissioner. First, we will discuss the threshold issue of a correct standard for valuation and, subsequently, the application of that standard to fishing sites, townsite locations, and mineral and forest land areas.¹

I

Our 1959 decision developed the factual background of this case in detail and only a brief review of the development of this litigation is appropriate. It involves valuing six separate areas of over 17,500,000 acres, each area having a different valuation date ranging from 1891 to 1925, different resources, and numerous land parcels patented over a 50-year period. Over a hundred different mining properties, some 10,700,000 acres of forest land, land in several townsite areas and fishing right valuations produced voluminous appraisal reports and extensive expert testimony. The critical dates of taking, as of which a valuation must be determined, were stipulated to have occurred as follows: The Annette Islands, 86,730 acres, by the Act of March 3, 1891 (26 Stat. 1095); 14,956,312 acres in Tongass National Forest taken by Executive Proclamations of August 20, 1902, September 10, 1907 and February 16, 1909 (except parcels patented prior to those dates), issued pursuant to the Act of March 3, 1891, supra; and 2,558,246 acres set aside as the Glacier Bay National Monument by Presidential Proclamations of February 26, 1925 and June 10, 1925, issued pursuant to the Act of June 8, 1906 (34 Stat. 225). The parties have not stipulated to a taking date for Area six, some 2,634,744 acres of land, none of which was included in any other taking. The commissioner concluded that except for eight small parcels for which patents were granted, Indian title to this area has not been extinguished. We agree with that conclusion and find that the eight areas held by aboriginal title were taken by the United States on that date when the patents were granted. These are the properties for which we must now find a value.

II

This court has held that equitable and just compensation for land held by Indian title is measured by the date-of-taking fair market value of the uncompensated for property rights. Miami Tribe of Oklahoma v. United States, 175 F.Supp. 926, 146 Ct.Cl. 421 (1959); Otoe and Missouria Tribe of Indians v. United States, 131 F.Supp. 265, 131 Ct.Cl. 593 (1955), cert. denied, 350 U.S. 848, 76 S. Ct. 82, 100 L.Ed. 755 (1955); Alcea Band of Tillamooks, et al. v. United States, 87 F.Supp. 938, 115 Ct.Cl. 463 (1950), cert. granted as to valuation, 340 U.S. 873, 71 S.Ct. 121, 95 L.Ed. 635 (1950), reversed as to award of interest, 341 U.S. 48, 71 S.Ct. 552, 95 L.Ed. 738 (1951); Rogue River Tribe of Indians, et al. v. United States, 89 F.Supp. 798, 116 Ct. Cl. 454 (1950), cert. denied, 341 U.S. 902, 71 S.Ct. 610, 95 L.Ed. 1342 (1951); Shoshone Tribe of Indians v. United States, 85 Ct.Cl. 331 (1937), aff'd, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1090 (1938).

The fair market value of property, in the absence of an actual market, is the estimated or imputed fair market value based on sufficient evidence which justifies a conclusion as to the fair market value which would be established when an informed seller disposes of his property to an equally informed buyer. Miami Tribe of Oklahoma v. United States, supra; Red Lake, Pembina and White Earth Bands, et al. v. United States, 164 Ct.Cl. 389 (1964); Otoe and Missouria Tribe of Indians v. United States, supra.

Defendant has admitted that the proposed "value to the Indians" is without legal precedent and predicated solely on its interpretation of the jurisdictional act and our previous 1959 liability decision. References by this court in our earlier decision to various resources important to the Indians which could be considered in any determination of the fair market value of their land does not authorize a "value to the Indians" valuation. The jurisdictional act does not refer to a standard of valuation other than equitable and just compensation for all claims.

Ownership by Indian title, although merely a possessory right of use and occupancy and, therefore, less than full fee simple ownership, is the complete beneficial ownership based on the right of perpetual and exclusive use and occupancy. The value of land held by Indian title is the same as that held in fee simple and not the value to its primitive occupants relying upon it for subsistence. United States v. Shoshone Indians, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1090 (1938); and United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 (1938). Absent statutory modification, aboriginal title carries with it the same standard of valuation that would be applicable were the property held by recognized Indian title or by fee simple ownership. Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 161 Ct.Cl. 258 (1963). The jurisdictional act neither by its terms nor its legislative history provides for any other valuation standard. We adopt the fair market value standard as correct and expressly reject the value to the Indians valuation procedure.

Reaffirming our position as originally adopted in Alcea Band of Tillamooks, et al. v. United States, supra, and Rogue River Tribe of Indians, et al. v. United States, supra, in Otoe and Missouria Tribe of Indians v. United States, supra, we explicitly rejected the "value to the Indians" subsistence standard and stated that proper consideration must be given to:

* * * the natural resources of the land ceded, including its climate, vegetation, including timber, game and wildlife, mineral resources and whether they are of economic value at the time of cession, or merely of potential value * * *. 131 Ct.Cl. at 633, 131 F. Supp. at 290.

Defendant objects, as a matter of law, to the determination of fair market value by separately appraising each component resource — timber, fisheries, game, town-sites and other lands — and then cumulating these individually determined values to establish a fair market value. Allegedly, this violates the unit rule of valuation we stated in Yakima Tribe v. United States, 158 Ct.Cl. 672 (1962), whereby each land area is valued as a whole in light of its highest and best potential use.

The procedure adopted by the commissioner, however, was to value each area as a whole.² Each land area had several exploitable resources, each of which was independently disposable. The single highest and best potential use of the resources of each tract within the larger area was considered. The total value of all tracts was the basis for a unit fair market value determination for each of the six areas. The decision in Yakima, supra, precludes duplication of value when a single tract of land is subject to multiple use. Each possible use for the same single tract of land may not be cumulated to determine its value. The total unit value of each area is the cumulative value of each tract within that larger area to which a single highest use of timber, forest or mineral value has been assigned. No single tract value is the total of all of the various uses to which it might have been put. This valuation procedure is appropriate in the absence of an actual market. See Alcea Band of Tillamooks, et al. v....