United States v. Fort Sill Apache Tribe of Oklahoma, Appeal No. 3-72.

• Citation: 480 F.2d 819
• Decision Date: 20 June 1973
• Docket Number: Appeal No. 3-72.
• Parties: The UNITED STATES of America v. The FORT SILL APACHE TRIBE OF OKLAHOMA and the Chiricahua Apache Tribe et al.
• Court: Court of Federal Claims

480 F.2d 819 (1973)

The UNITED STATES of America v. The FORT SILL APACHE TRIBE OF OKLAHOMA and the Chiricahua Apache Tribe et al.

Appeal No. 3-72.

United States Court of Claims.

June 20, 1973.

I. S. Weissbrodt, Washington, D. C., attorney of record, for appellees. Weissbrodt & Weissbrodt, Abe W. Weissbrodt, Richmond F. Allan, Ruth W. Duhl, Washington, D. C., of counsel.

A. Donald Mileur, Washington, D. C., with whom was Asst. Atty. Gen. Kent Frizzell, for appellant. Dean K. Dunsmore, Christopher Smith, Washington, D. C., of counsel.

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

DURFEE, Senior Judge:

The United States appeals (a) from the final judgment and order of the Indian Claims Commission dated August 25, 1971,¹ in Dockets 30, 30-A, 48 and 48-A, awarding compensation under Section 2, Clause 4, of the Indian Claims Commission Act (60 Stat. 1049) for the forcible taking by the United States of certain lands in southwestern New Mexico and southeastern Arizona to which appellees held aboriginal title and (b) from the order of the Commission dated June 9, 1971,² denying the Government's motion to consolidate the four dockets with Docket 182.

This appeal presents three issues: (1) Whether the Commission abused its discretion in denying the Government's motion to consolidate Dockets 30, 30-A, 48, 48-A and 182; (2) Whether substantial evidence supports the Commission's holding that the date of extinguishment of appellees' aboriginal title was September 4, 1886; and (3) Whether the Commission erred in valuing appellees' mineral interests taken on the basis of capitalized anticipated net profits from mining enterprises rather than on the basis of capitalized hypothetical royalty payments.

We affirm.

FIRST ISSUE

The first petition, Docket No. 30, in these cases was filed by the Fort Sill Apache Tribe of Oklahoma claiming to be composed of descendants of the "Warm Springs and Chiricahua Bands of Apache Indians." The second petition, Docket No. 48, was filed by individuals on the Mescalero Reservation in New Mexico, alleging to represent the "Chiricahua and Warm Springs Tribes of Apache Indians."

By order of July 1962, the Commission consolidated Dockets 30 and 48 for trial because it appeared that the subject matter and real parties in interest were the same. Trial in these consolidated cases was held in December 1962 on the issues of the extent and boundaries of the Indian title and the date of the taking.

In another case not here involved the Navajo Tribe had made a claim of aboriginal title to an area which in part overlapped the northern portion of the area claimed in Dockets 30 and 48. After requested findings and briefs on the issues of Indian title and the taking date had been filed in consolidated Dockets 30 and 48, the Commission, on motion of appellees and without objection by the United States, entered an order in January 1968, severing from the consolidated cases the portion of the area which was claimed solely by appellees. This severed claim was assigned consolidated Docket Nos. 30-A and 48-A. This left in Docket Nos. 30 and 48 the claim to the tract to which the Navajo Tribe was asserting a conflicting claim.

In June 1968, the Commission issued its findings, opinion and interlocutory order in Docket Nos. 30-A and 48-A. The Commission determined the boundaries of the land there involved to which appellees held aboriginal title and held that the land had been taken by the United States on September 4, 1886, without payment of compensation. 19 Ind.Cl.Comm. 212-268. In April 1970, the Commission issued its findings, opinion and interlocutory order in Dockets 30 and 48, segregating the land to which appellees held aboriginal title from the Navajo lands and likewise determining the date of taking to be September 4, 1886. 22 Ind.Cl.Comm. 527-545.

After Docket Nos. 30-A and 48-A had proceeded to trial in January 1970 on the valuation of the land as of the 1886 taking date and the matter was pending determination by the Commission, the Government on June 4, 1970 filed a motion for rehearing the determination made in June 1968 that September 4, 1886 was the date of taking. In August 1970, the Commission issued an "Order Denying Defendant's `Motion for Rehearing and Reconsideration of Date of Taking'" on three grounds, ruling that the motion was not timely filed, that defendant had failed to state any valid grounds for rehearing under the Commission's Rules of Procedure or applicable decisions, and that the Commission's findings with respect to the 1886 date of taking were supported by substantial evidence. 23 Ind.Cl.Comm. 417-418.

After both parties had filed their requested findings and briefs on the valuation issues in Dockets 30-A and 48-A and the matter was still awaiting the Commission's decision, on March 10, 1971³ the Government filed a "* * * Motion to Consolidate * * *" the two groups of dockets (30-A, 48-A and 30, 48) with a fifth case, Docket No. 182. The Fort Sill Apaches and individual associated Indians had filed the petition in Docket No. 182. Alleging the same aboriginal title boundaries as in Docket No. 30, those petitioners sought inter alia to hold the United States liable for alleged "trespass damages" prior to the date of extinguishment of aboriginal title.

In its "* * * Motion To Consolidate * * *" the Government reasoned that all five dockets constituted essentially one claim, arguing that the Indians involved were entitled to be compensated only once for the extinguishment of their aboriginal title. In its motion to consolidate the Government concluded: "Accordingly, the cases alleging the extinguishment of aboriginal title and Docket No. 182 should be consolidated in order that, if necessary, the date of extinguishment should be moved back. * * *"

In its order denying the Government's "* * * Motion to Consolidate * * *", 25 Ind.Cl.Comm. 382-83 (1971), the Commission viewed the motion in part as a second motion for hearing to "determine a new date of taking applicable to all five cases." As grounds for rejecting the "* * * Motion to Consolidate * * *" the Commission separately cited its "Order Denying Defendant's `Motion for Rehearing and Reconsideration of Date of Taking'" in Dockets 30-A and 48-A and the Commission's decision in the case of Washoe Tribe v. United States, 21 Ind. Cl.Comm. 447 (1969). In Washoe the Commission held the Government liable on two claims, essentially recognizing as separate one claim under Section 2, Clause 4, of the Indian Claims Commission Act (60 Stat. 1049) for the taking of aboriginal title lands and another claim under Section 2, Clause 5, of the Act for "trespass damages" prior to the time of extinguishment of title.

The Commission's Rules of Procedure provided that leave of the Commission was required before the same party could file a second motion for rehearing.⁴ The United States failed to comply with this rule. The Commission did not abuse its discretion in treating the "* * * Motion to Consolidate * * *" in part as a motion for rehearing. The United States sought "further litigation" in its motion to consolidate on the identical issue, i.e., the date of taking, as it sought in its first motion for rehearing.

Although the "* * * Motion to Consolidate * * *" cannot be said to have been filed too late since neither the June 28, 1968 opinion and order (in Dockets 30-A and 48-A) nor the April 1, 1970 opinion and order (in Dockets 30 and 48) were a "final determination"⁵ commencing the period for filing,⁶ we do not read the Commission's order denying the "* * * Motion to Consolidate * * *" as being grounded on untimeliness.

Moreover, the Commission did not abuse its discretion in denying the "* * * Motion to Consolidate * * *" based upon its Washoe decision. That decision recognized the distinctness of a claim for the taking of Indian lands without compensation and a claim for damages to Indian lands prior to the taking. This distinction went to the heart of the Government's claim that the five dockets involved only one claim.

In affirming the order of the Commission denying the "* * * Motion to Consolidate * * *", we do not pass upon the merits of the Washoe decision and merely hold that the Commission did not abuse its discretion in relying upon one of its own decisions on point. The correctness of the Washoe decision is not an issue here.

SECOND ISSUE

The Commission, referring to appellees collectively as the "Chiricahua Apaches", found in consolidated Dockets 30-A and 48-A that: "September 4, 1886, the date of the final surrender of the Chiricahua Apaches under Geronimo and the time of the removal of the members of the tribe from their homelands, marks the date on which the United States took from the Chiricahua Apache tribe its Indian title to its lands in New Mexico and Arizona. * * *" 19 Ind. Cl.Comm. 212, 245 (1968). In Dockets 30 and 48 the Commission concluded: "The Fort Sill record Dockets 30-A and 48-A is the record in this proceeding, with the addition of that evidence offered by the Navajos in Docket No. 229. In like manner, the date of taking in the Fort Sill case, September 4, 1886, applies herein with respect to the extinguishment by the United States of whatever interest the Apaches may have enjoyed in the overlap area." 22 Ind.Cl.Comm. 527, 529 (1970).

Were we to rule upon the merits of appellant's claim that the date of taking is not supported by substantial evidence, we might agree on the present record. The record could be said to establish that Indian title was extinguished before September 4, 1886, when the Act of August 15, 1876, 19 Stat. 176, 195, was passed. Congress may extinguish Indian title by a "clear and plain indication" in the public records that the sovereign "intended to extinguish all of the claimants' rights" in their property. United States v. Santa Fe Pac. R. R. Co., 314 U.S. 339, 353, 62 S.Ct. 248, 255, 86 L. Ed. 260 (194...