U.S. v. Dann, 77-1696

• Decision Date: 15 March 1978
• Docket Number: No. 77-1696,77-1696
• Citation: 572 F.2d 222
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary DANN and Carrie Dann, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 222

572 F.2d 222

UNITED STATES of America, Plaintiff-Appellee, v. Mary DANN and Carrie Dann, Defendants-Appellants.

No. 77-1696.

United States Court of Appeals, Ninth Circuit.

March 15, 1978.

Appeal from the United States District Court for the District of nevada.

John D. O'Connell, Salt Lake City, Utah, for defendants-appellants.

Robert L. Klarquist, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before BROWNING and HUFSTEDLER, Circuit Judges, and BONSAL, ^* District Judge.

PER CURIAM.

The Danns, who are Western Shoshone Indians, appeal from a judgment in favor of the Government in an action brought by the Government for trespass. The Danns were charged with grazing their livestock on federal lands in the Elko Grazing District without a permit from the Bureau of Land Management. The Danns admitted that they had grazed the livestock on the lands, but they alleged that the Bureau lacked authority to exclude them because the lands were beneficially owned by the Danns and other members of the Western Shoshone Tribe. The Government and the Danns moved for summary judgment, and the district court granted the Government's motion. The district court held that collateral estoppel foreclosed the Danns from asserting that they had title to the lands because the Indian Claims Commission, in proceedings before the Commission on behalf of the Western Shoshone, had ruled that the lands had been acquired by the United States and that the Indians' title has been extinguished. The district court enjoined the Danns from grazing their livestock on the lands without proper federal authorization and assessed them $500.00 damages. This appeal followed.

Two issues are raised on appeal: (1) Are the Danns collaterally estopped from litigating the title of the Western Shoshone Tribe to the lands in question by the decision of the Indian Claims Commission; and (2) if the title issue is not precluded, do the Western Shoshone hold beneficial title to the lands? We hold that the proceedings before the Indian Claims Commission did not foreclose litigation of the title issue. We decline to reach the title question, and we remand the case to the district court for the purpose of deciding title.

A brief description of the factual background of this dispute is useful in understanding the nature of the issues which are presented before us. When the Treaty of Guadelupe-Hidalgo was signed in 1848, the Shoshone Nation used and occupied about 80 million acres of land, which now form parts of Idaho, Nevada, Utah, Colorado, and Wyoming. In northern and central Nevada, the Western Shoshone occupied 22 million acres of land. As non-Indian settlers moved across and settled in these areas, disputes erupted between the Indians and the non-Indians. In 1862, President Lincoln appointed a special commission to negotiate a peace treaty with the Shoshone. The commissioners were instructed specifically, on July 22, 1862, "that they were not expected to negotiate for the extinction of the Indian title but for the security of roads over the lands and 'a definite acknowledgement as well of the boundaries of the entire country that they (the Indians) claim.' " (Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 347, 65 S.Ct. 690, 696, 89 L.Ed. 985 (1945).) The commissioners eventually negotiated five treaties between July and October, 1863, with different Shoshone groups: Treaty of Fort Bridger with the Eastern Bands, Treaty of Box Elder with the Northwestern Bands, Treaty of Tuilla Valley with the Shoshone-Goship Bands, Treaty of Soda Springs with the Mixed Bands of Bannocks and Shoshone, and Treaty of Ruby Valley with the Western Bands. The only treaty directly involved in this case is the Treaty of Ruby Valley, signed October 1, 1863, and ratified as amended October 21, 1869 (18 Stat. 689).

Under the Treaty of Ruby Valley, the Western Shoshone agreed to the safe passage of white emigrants and travelers across their country, to the establishment of military posts and telegraph, overland stage and railway lines, and to the opening of their lands to prospecting, mining, farming, and ranching by whites. The Treaty also defined the boundaries of the Western Shoshone land, and provided that whenever the President "shall deem it expedient" to provide reservations for the Western Shoshone "within the country above described" the Indians would remove themselves to those reservations.

By 1872, about 20,000 non-Indians resided within the Shoshone tract. The increasing displacement of the Indian population led President Hayes to create a reservation for the Western Shoshone at Duck Valley. However, the Duck Valley Reservation was outside the Western Shoshone territory, and not "within the country above described" in the language of the Treaty of Ruby Valley. A small minority of Western Shoshone moved to the Duck Valley Reservation. As of 1973, the preponderance of the Western Shoshone people still lived within the tract described by the Treaty of Ruby Valley, which had been occupied by their ancestors a century earlier.

In 1945, Congress enacted the Indian Claim Commission Act (25 U.S.C. §§ 70, et seq.) which created the Commission ("ICC") to hear and decide claims brought upon behalf of the various Indian tribes against the United States, including "claims arising from the taking of the United States, whether as a result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without . . . payment . . . or compensation." (25 U.S.C. § 70a.) ICC decisions were reviewable by the Court of Claims. Upon the filing of the ICC's report with Congress, in which the Commission decides that the Indian claimants have a right to compensation, followed by congressional appropriation to pay the claim and the acceptance of that fund, the claimant's action is deemed finally determined and the claim itself deemed fully discharged by the United States. (25 U.S.C. § 70u.)

In 1951, various Shoshone tribes brought an action before the ICC claiming damages for the deprivation of their former tribal lands. (Shoshone Tribe of Indians of the Wind River Reservation, Wyoming, et al. v. United States, ICC Docket No. 326.) One of the co-petitioners in that proceeding is the Temoak Bands of Western Shoshone, who brought suit as the representative of the Western Shoshone. Paragraph 25 of that complaint charged that the United States, in violation of the rights of the Western Shoshone and the provisions of the Treaty of Ruby Valley, "has disposed of a large part" of the land described in the Treaty of Ruby Valley "to settlers and others, or has seized and converted a large part of the said lands to its own use and benefit, without any compensation . . . ." (Quoted in Western Shoshone Identifiable Group v. United States, 35 I.C.C. 457, 461-62 (1975).) The ICC in 1962 rendered an interlocutory decision in which the Commission said that the Western Shoshone constituted an identifiable group, that they had had exclusive use and occupation of, and, hence, aboriginal title to 22 million acres in Nevada, including the acreage involved in the present case. The ICC also noted that "the United States, without payment of compensation, acquired, controlled, or treated these lands as if they were public lands." (Finding 26, Shoshone Tribe, supra, 11 I.C.C. at 416.) A stipulation was entered in 1966 in which the parties agreed that July 1, 1872, would be deemed the date of taking for the purpose of valuation, and, in 1972, the Commission entered another interlocutory order setting the value of the land as of the stipulated date. (Western Shoshone Identifiable Group v. United States, 29 I.C.C. 5 (1972).)

In 1974, a group of Western Shoshone, including the Danns, who did not belong to the Temoak Bands, tried to intervene in the proceeding before the ICC, in order to remove from the pending claim certain lands, including those which are the subjects of this litigation. The ICC rejected the intervention petition, and that decision was affirmed by the Court of Claims. (Western Shoshone Legal Defense & Education Ass'n v. United States, 531 F.2d 495, 209 Ct.Cl. 43 (1976).) As the Court of Claims observed, the intervention effort sprang from an intertribal dispute among the Western Shoshone "over the proper strategy to follow in this litigation," i. e., whether to claim that their lands had been taken by the United States and that substantial compensation was therefore due, or to insist that the lands had never been taken and are still owned by the Indians. (See 531 F.2d at 503.)

In November, 1976, the Temoak Bands changed course and adopted the position taken by the unsuccessful intervenors that Indian title to the lands described in the Treaty of Ruby Valley was retained by the Indians. They then sought recognition of their ownership, rather than money damages for the taking. The Temoak Bands petitioned the Secretary of the Interior in February, 1977, for an administrative determination that the Western Shoshone hold equitable title to the treaty lands. The Indians also requested the Commission to stay its proceedings pending the Secretary's...