U.S. v. Dann

• Decision Date: 19 May 1983
• Docket Number: 80-4345,Nos. 80-4298,s. 80-4298
• Citation: 706 F.2d 919
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary DANN and Carrie Dann, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 919

706 F.2d 919

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

Nos. 80-4298, 80-4345.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 13, 1982.

Decided May 19, 1983.

Dean K. Dunsmore, Washington, D.C., B. Mahlon Brown, U.S. Atty., Shirley Smith, Asst. U.S. Atty., Reno, Nev., for plaintiff-appellee.

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

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

Before FLETCHER, POOLE, and CANBY, Circuit Judges.

CANBY, Circuit Judge:

In 1974, the United States filed this trespass action against Mary Dann and Carrie Dann, alleging that the Danns were grazing their livestock on nine sections of public land without a permit, in violation of the Taylor Grazing Act, 43 U.S.C. Sec. 315 et seq. (1976), and the regulations issued pursuant to it, 43 C.F.R. pt. 4100 (1981). The Danns defended primarily on the ground The government countered this defense with the arguments that any title that the Western Shoshone ever had to the land in question had been extinguished, and that this fact had been conclusively established in proceedings brought before the Indian Claims Commission (ICC or Commission) on behalf of the Western Shoshone. In 1975, the district court accepted the government's collateral estoppel argument and granted summary judgment against the Danns. This court reversed and remanded to the district court in United States v. Dann, 572 F.2d 222 (9th Cir.1978) (per curiam) (Dann I ). We held that collateral estoppel did not preclude litigation of the issue of extinguishment of title, because that question was "neither actually litigated nor actually decided in the proceedings before the ICC." Id. at 226. We further held that neither collateral estoppel nor res judicata (claim preclusion) could be applied because no final judgment had been entered in the claim proceedings, and that " '[f]inality' for this purpose does not attach until the Commission has filed its final report with Congress and the Indians have actually been paid the compensation owed them. (25 U.S.C. Sec. 70u.)" Id. (footnote omitted).

                that they were Western Shoshone Indians and that they, along with others of that group, still retained aboriginal title to the land in issue.  Aboriginal title is a right of occupancy arising from exclusive aboriginal possession of land, and it is valid against all parties until it is "extinguished" by the United States.   See Johnson v. McIntosh, 21 U.S.  (8 Wheat.) 543, 587, 5 L.Ed. 681 (1823);  Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 669, 94 S.Ct. 772, 778, 39 L.Ed.2d 73 (1974). 1
                

Our opinion in Dann I fully set forth the background of this trespass action, as well as that of the Western Shoshone's suit before the Commission, but we will briefly restate the facts here. In 1951, the Western Shoshone made a claim against the United States under clause 4, section 2 of the Indian Claims Commission Act, 25 U.S.C. Sec. 70a (1976). ² The claim was based on the United States' having taken a vast expanse of Western Shoshone land in Nevada and California. The claim was prosecuted by the Temoak Band on behalf of the Western Shoshone identifiable group.

In 1974, a group of Western Shoshone, including the Danns, attempted to intervene in the ICC proceedings to remove from the pending claim certain lands, including those that are the subject of the present trespass action. The ICC rejected the intervention, and that ruling was affirmed by the Court of Claims, which viewed the attempted intervention as an intratribal disagreement over the proper litigation strategy. Western Shoshone Legal Defense & Education Ass'n v. United States, 531 F.2d 495 (Ct.Cl.), cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976). In 1976, however, the Temoak Band itself reversed its prior posture and sought to stay the claim proceedings in order to seek an administrative declaration that the Western Shoshone still had title to approximately 12 million acres that they originally had claimed to have been taken. According to the Temoak Band, its original decision to pursue the claim did not constitute an election of remedies because there was no way After our decision in Dann I, the Court of Claims affirmed the award. Temoak Band of Western Shoshone Indians v. United States, 593 F.2d 994 (Ct.Cl.), cert. denied, 444 U.S. 973, 100 S.Ct. 469, 62 L.Ed.2d 389 (1979). It held that the stay had been properly denied because the Commission proceedings had lasted many years, and the motion for stay came too late for such a major change in litigation strategy. Id. at 998-99. The court added: "we think it is only Congress that could stay and undo the course of litigation.... The essential point of the matter is that the Temoak's true appeal is to legislative grace, not as of right to this court." Id. at 999. As the Supreme Court subsequently denied certiorari, no further judicial review of the award is available. See 25 U.S.C. Sec. 70s. Accordingly, in 1979, the Clerk of the Court of Claims certified the award to the General Accounting Office.

                that the Band could then have pursued the alternative of establishing its present title to the lands;  the Indian Claims Commission had no jurisdiction to quiet title in the Western Shoshone, and neither equitable nor declaratory relief was otherwise available against the government until 1976.   See Dann I, 572 F.2d at 227 n. 3.  The Commission denied the motion to stay its proceedings and entered its final award.  The Temoak Band appealed the award to the Court of Claims, and the only error urged on appeal was the Commission's denial of that stay.  The appeal was still pending before the Court of Claims at the time of our decision in Dann I
                

Informed of these developments, the district court in the present action rendered the decision now before us. The district court agreed with the government that, upon certification of the Commission award, the award was "automatically paid" and was therefore "final for purposes of res judicata and collateral estoppel." It further held that the effect of the award was to extinguish aboriginal Indian title to these Western Shoshone lands as of the date when the award was certified to the General Accounting Office, and that before that date title had not been extinguished. The district court accordingly issued an injunction against further trespasses by the Danns, but denied damages for previous trespasses, which had preceded the certification of the claims award. Both sides appeal the district court's judgment. We reverse the judgment granting the injunction and remand for further proceedings.

Collateral Estoppel (Issue Preclusion) and Res Judicata

(Claim Preclusion)

The government does not at this juncture dispute the fact that the Western Shoshone at one time held aboriginal title to the lands in question here. It contends, however, that the issue of extinguishment of that title was actually litigated in the claim proceedings and that the Commission decided that title had been extinguished. The district court was therefore correct, according to the government, in ruling that the Danns were estopped from asserting aboriginal title. The difficulty with this argument is that it runs directly counter to our ruling in Dann I. We held there that "the title issue in this case was neither actually litigated nor actually decided in the proceedings before the ICC." 572 F.2d at 226. We pointed out that in the claim proceedings, " 'the Government consistently maintained that the Indians never owned the lands they claimed and therefore that the question of title-extinction never arose.' " Id. at 226 (quoting Western Shoshone Legal Defense & Education Ass'n v. United States, 531 F.2d at 500). We concluded that because the extinguishment of title issue had not actually been litigated, the Danns were not collaterally estopped from raising the title defense in the present proceedings.

Our holding in Dann I is the law of the case and we must follow it "unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice." Kimball v. Callahan, 590 F.2d 768, 771-72 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979) There has been neither a change in the nature of the evidence nor a controlling intervening decision. The government contends, however, that the collateral estoppel ruling of Dann I was clearly erroneous. We do not believe that it was. It is true that the Temoak Band asserted in the claim proceedings that there had been an extinguishment of title by taking, and that the claims award necessarily rests upon such a taking. ³ But the extinguishment was not denied by the government, and the fact of the taking consequently was never actually litigated. Because an average "taking date" was stipulated, the Commission did not determine the facts of taking for any individual parcel of the vast aboriginal holdings of the Western Shoshone. Under these circumstances, issue preclusion is inappropriate. Restatement (Second) of Judgments Sec. 27 comment e (1982); see Sekaquaptewa v. MacDonald, 575 F.2d 239, 246-47 (9th Cir.1978). We therefore adhere to our ruling in Dann I that the Danns are not collaterally estopped by the claims decision from asserting aboriginal title here.

(quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)); Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833-35 (9th Cir.1982); see Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392-93 (9th Cir.1981); Adamian v. Lombardi, 608 F.2d 1224, 1228 (9th Cir.1979), cert. denied, 446 U.S. 938, 100 S.Ct. 2158, 64 L.Ed.2d 791 (1980).

The government next contends that, apart from its collateral estoppel effect, the...