United States v. Fort Sill Apache Tribe of State of Okl.

• Decision Date: 13 July 1973
• Docket Number: Appeal No. 2-73.
• Parties: The UNITED STATES v. The FORT SILL APACHE TRIBE OF the STATE OF OKLAHOMA et al.
• Court: U.S. Claims Court

481 F.2d 1294 (1973)

The UNITED STATES v. The FORT SILL APACHE TRIBE OF the STATE OF OKLAHOMA et al.

Appeal No. 2-73.

United States Court of Claims.

July 13, 1973.

I. S. Weissbrodt, Washington, D. C., attorney of record, for appellees. Richmond F. Allan, Billings, Mont., of counsel.

Dean K. Dunsmore, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for appellant.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.

PER CURIAM:

This case comes before the court on the appellee-plaintiffs' motion to dismiss the appeal of the defendant. Resolution of the issue involved in this case rests on the interpretation to be given section 20(b) of the Indian Claims Commission Act, 60 Stat. 1049, 1054, now 25 U.S.C. § 70s(b), dealing with the appealability of interlocutory orders of the Indian Claims Commission (ICC). The court has considered the case, without oral argument, upon the authorities and contentions presented in the motion, the response thereto and reply. It is concluded that the standards set by statute defining which interlocutory orders are appealable have not been met by the orders now the object of the appellant-defendant's appeal, necessitating, thus, the granting of the appellees' motion to dismiss.

On September 13, 1972, the ICC issued an opinion implementing an order¹ in which it granted the plaintiffs' motion to separate the claims raised in Docket No. 182 into two groups. The "group A claims" dealt with the removal of certain resources and the use of Indian lands prior to the date of taking.² The "group B claims" called for an accounting of the appellant-defendant's handling of the plaintiffs' land and property while they were prisoners of war on the Fort Sill Reservation. The defendant filed a motion for rehearing of the Commission's order allowing the separation of the Docket No. 182 claims, which was denied on October 18, 1972.³

Thereafter, the appellant-defendant filed a motion to dismiss the group B claims in which it presented five grounds for the dismissal: (1) Lack of subject matter jurisdiction; (2) failure to state a claim upon which relief can be granted; (3) statute of limitations; (4) res judicata; and (5) the doctrine against splitting a cause of action. In an opinion issued on November 29, 1972,⁴ the Commission denied the appellant-defendant's motion to dismiss the group B claims, and allowed the appellee-plaintiffs to amend their petition on February 27, 1973, the appellant filed its appeal in this court seeking review of both the September 13, 1972, and November 29, 1972, determinations of the Commission.

The Indian Claims Commission Act, 25 U.S.C. § 70s(b), defines those decisions of the ICC which may be appealed to this court.⁵ In pertinent part, that section states:

* * * In similar manner and with like effect either party may appeal to the Court of Claims from any interlocutory determination by the Commission establishing the liability of the United States notwithstanding such determination is not for any reason whatever final as to the amount of recovery; * * *. Emphasis added.

The focus of the case now before the court is whether these orders of the ICC (particularly the order announced on November 29, 1972) were determinations "establishing the liability of the United States." If they were not, the appellant-defendant must clearly wait until such determinations are made, or until a final decision is reached on the case as a whole, for its appeal to be timely.

I. APPEALABILITY OF THE NOVEMBER 29, 1972 ORDER

The appellant-defendant admits that the November 29, 1972 order did not establish the liability of the United States in the traditional sense of the word "liability" but argues that said order "was directed to matters of law which go to liability," such as jurisdiction. If further contends that liability can only be shown where Indian title to the land is demonstrated and where unconscionable consideration was paid for such land. Yet, the Court of Claims in cases such as Sac & Fox Tribe v. United States, 315 F.2d 896, 161 Ct.Cl. 189, cert denied, 375 U.S. 921, 84 S.Ct. 226, 11 L.Ed.2d 165 (1963), and Minnesota Chippewa Tribe v. United States, 315 F.2d 906, 161 Ct.Cl. 258 (1963), has heard appeals from interlocutory orders of the ICC where only the issue of Indian title was decided adversely to the Government, leaving open the issue of valuation. Appellant concludes from this that the term "liability" found in 25 U.S.C. § 70s(b) must be defined broadly. The plaintiffs, of course, press for a stricter interpretation.

The interlocutory appeal portion of 25 U.S.C. § 70s was added to the Act in 1960⁶ as the result of appropriation hearings before the Congress. At that time the Department of Justice was seeking a $500,000 appropriation to cover the costs of appraising aboriginal lands in California after the Commission had found that the Indians of California had valid title to lands for which they received no compensation.⁷ Rather than pay for the appraisal while there was still a chance that it would become unnecessary if the Government were later to successfully appeal the liability portion of the Commission's decision, the Congress made it possible for either party to appeal interlocutory orders of the Commission wherein the United States is found liable. As the Sac & Fox and Minnesota Chippewa cases make clear, this court has not strictly defined the terms of 25 U.S.C. § 70s, at least in cases in which the Commission has already dealt with the issue of Indian title. The Department of Justice would like to see the money-saving purpose of this section extended to cases like the one now at issue where the Commission has ruled adversely to the defendant on issues of law (such as jurisdiction, statute of limitations, etc.) which could be dispositive of the case as a whole since they go to the ultimate issue of liability.

Anytime interlocutory appeals are permitted, the possibility exists for the saving of the time and expense of unnecessary litigation, but still at a definite cost. That cost is the recurring interruption of the trial proceedings, an evil sought to be avoided by the finality doctrine. The 1960 addition to the Indian Claims Commission Act made a clear exception to the finality doctrine in force up to that time. The issue now is how large an exception it made and whether it will accommodate defendant-appellant's present contentions.

It is understandable that the appellant wishes to avoid the expense that would result from the accounting called for by the group B claims, where it still feels it has viable threshold defenses (jurisdiction, statute of limitations, etc.) that are reviewable on appeal. The major problem created by the appellant's position is that it just does not fit the statutory language. Disposition of a motion questioning the jurisdiction of the ICC would not reach the issue of the liability on the merits. In cases like Minnesota Chippewa, where the ICC decision has settled the issue of Indian title, while leaving open the valuation issue, it is easier to see the decision as one establishing liability and that is the way Congress apparently saw it. For the appellant to use cases like Minnesota Chippewa as an example of the flexible definition which the word "liability" has been given, and then use this to justify a still further extension of the already liberal definition, carries a good thing too far.

The legislative history which accompanies the 1960 change to § 70s(b) is, admittedly, narrow in its scope. For example, S.Rep.No.1925, 86th Cong., 2d Sess. (1960), states at page 17: "The amendment covers only those interlocutory orders establishing liability of the United States and is not intended to allow appeals from routine or procedural rulings of the Indian Claims Commission preliminary to such determinations of liability." Is the denial of a motion to dismiss, presenting threshold problems, a routine or procedural ruling?

Congress may not have considered the variety of determinations...