United States v. FT. SILL APACHE TRIBE OF S. OF OKL., Appeal No. 19-74.
Decision Date | 14 April 1976 |
Docket Number | Appeal No. 19-74. |
Citation | 533 F.2d 531 |
Parties | The UNITED STATES of America, Appellant, v. The FORT SILL APACHE TRIBE OF the STATE OF OKLAHOMA, Appellee. |
Court | U.S. Claims Court |
Dean K. Dunsmore, with whom was Asst. Atty. Gen. Peter R. Taft, Washington, D.C., for appellant.
I. S. Weissbrodt, Washington, D.C., attorney of record for appellee. Richmond F. Allan, Billings, Mont., Abe W. Weissbrodt, Ruth W. Duhl, Howard L. Sribnick, and Weissbrodt & Weissbrodt, Washington, D.C., of counsel.
Before COWEN, Chief Judge, DURFEE, Senior Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT, Judges, en banc.
This appeal is against an award for "trespass damages" and is another phase of a litigation almost as full of dramatic contest, confrontation, and strange turns of fate, as is the history of the claimant tribe or band in the period to which its claims relate, the nineteenth century. From the filing of the petition, August 1, 1951, there were pending simultaneous claims under the Indian Claims Commission Act, 25 U.S.C. Sec. 70 and ff., for the taking by conquest of a vast area to which it claimed aboriginal title, and for removal of resources from the same area before the date of title extinguishment. The Commission severed these claims. As to the former, it determined that the taking date was September 4, 1886. The Commission awarded $15,975,000 for the land as it was on that date, better or worse because of the defendant's previous activity. The land consisted of 14,802,387 acres in New Mexico and Arizona. On the valuation date the land benefited from good rail transportation and telegraph lines. The white population was 26,000 and value was enhanced by several townsites. The railroads had brought the tract into prominence as a livestock producing area, and it was producing minerals.
The defendant had at first acquiesced in the severance, and in the 1886 taking date, but at some point came to realize that the severance, together with the late taking date, brought forward the possibility that besides a value enhanced by the white man's occupancy and use of the tract, it might also be called on to pay "trespass damages" for mineral extraction and timber cutting, etc., before the taking date. In its appeal before us, No. 3-72, defendant sought to undo both the severance of the two types of claims and the taking date of September 4, 1886. We held that the former, the severance, was within the Commission's discretion, and the choice of date, though patently erroneous, could not be departed from because of defendant's conduct in the litigation down to a then recent date. If we were to rule on the merits, we said, we would hold the taking date or title extinguishment would not be not later than the Act of August 15, 1876, 19 Stat. 176, 195, which directed that the Indians be confined to and not allowed to leave their proper reservations, which were remote from the tract in issue. United States v. Fort Sill Apache Tribe, 480 F.2d 819, 202 Ct.Cl. 134 (1973).
The severance issue came before us again in two separate and unsuccessful appeals, 481 F.2d 1294, 202 Ct.Cl. 525 (1973), and 507 F.2d 861, 205 Ct.Cl. 805 (1974), as the Government continued to try to thrash itself out of the trap it had helped to dig for itself and into which it had fallen.
As the Commission, in the decision here appealed from, has now found, before 1876 no appreciable removal of minerals had occurred. It commenced with the discovery of the Tombstone silver mining district in 1877. With use of 1876 for valuation purposes, it would have been possible to determine a single uncomplicated award for the Indians with no possible unfairness to either side.
The Commission has now awarded $10,830,860.40 damages under Sec. 2, Cl. 5 of the above Act, in addition to the almost 16 million previously awarded, this time for minerals extracted by miners after 1876 but before the taking date as found: the so-called "trespass damages." The figure represents a 20% royalty on the estimated gross value of ore produced on the land before September 4, 1886. The Government appeals and we reverse.
Facts found in the previous case are repeated in this: The population of the tract by non-Indians by 1886 was 26,000. There were numerous settlements. The main line of the Southern Pacific crossed it and there were several branch lines of the Atcheson, Topeka and Santa Fe within it. The railroads brought the tract into prominence for livestock production. The United States encouraged development by laws, e. g., Act of March 3, 1871, 16 Stat. 573, and May 10, 1872, 17 Stat. 91. It also conducted military campaigns against the Chiricahua Apaches, and tried to confine them to statutory reservations distant from the tract here involved. The Commission says it assumed responsibility for the intrusions and exploitation, dealing unfairly and dishonorably in violation of Sec. 2, Cl. 5.
In its appeal the appellant, United States, urges error in that appellees, the Indians, have estopped themselves to urge that they did not have exclusive use and occupancy up to the found taking date of September 4, 1886, and it phrases its argument in several different ways, making, however, essentially the same point. In plain terms, it is saying the Indians got the benefit of an illegitimately delayed taking date and ought to accept the burdens too. We think that the real issue is whether the Indians have a moral claim under Clauses 4 and 5 that remains unsatisfied by the award already made for the taking found to have occurred on September 4, 1886, and if so, whether the Commission has gone about satisfying it in the correct manner.
The Commission has found, 19 Ind.Cl. Comm. 212, 238, affirmed by this court, Fort Sill Apache Tribe v. United States, 477 F.2d 1360, 201 Ct.Cl. 630 (1973), cert. denied, 416 U.S. 993, 94 S.Ct. 2406, 40 L.Ed.2d 772 (1974), that the treaty of July 1, 1852, 10 Stat. 979, was dead, having been violated by both sides, and no one was in a position to assert rights thereunder. In the case above cited, we concluded that there existed no special relationship with the Tribe, from which a duty to protect might be inferred. As a matter of fact, the records in the various Chiricahua Apache cases are replete with evidence that that Tribe and the United States were at war throughout the period when the alleged "trespass damages" were inflicted, though the above treaty had been intended as one to establish peace. In Scott v. United States, 33 Ct.Cl. 486 (1898), this court held that the relationship then obtaining was war. While the Commission selected the September 4, 1886, date as it was the end of organized Apache resistance, the surrender by Geronimo and his band, deep in Mexico, the claimant Tribe, all sexes and ages alike, were held as prisoners of war for some time thereafter. 1 Ind.Cl.Comm. 137, 139 (1949).
A duty to protect Indians against depredations by third persons may arise by treaty or statute, the breach of which duty displays a want of fair and honorable dealings under Clause 5. Lipan Apache Tribe v. United States, 180 Ct.Cl. 487 (1967); United States v. Sioux Nation, 518 F.2d 1298, 207 Ct.Cl. 234, cert. denied 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975); United States v. Goshute Tribe, 512 F.2d 1398, 206 Ct.Cl. 401 (1975); Aleut Community v. United States, 480 F.2d 831, 202 Ct.Cl. 182 (1973). Such a duty can hardly be said to arise with respect to a hostile or enemy Tribe, one with which no treaty exists. There is then not the "special relationship" or "special duty to protect" that we have considered may, if unfulfilled, display a want of fair and honorable dealings. Lipan Apache Tribe v. United States, supra. We think it follows that the United States is not liable for the pre-September 4, 1886 depredations of the miners because it had any duty, as it did in United States v. Sioux Nation, supra, to keep them out. It is liable only if the miners' acts can be imputed to the United States and are deemed in contemplation of law to be the acts of the United States.
We indicated in United States v. Northern Paiute Nation, 393 F.2d 786, 183 Ct.Cl. 321 (1968), and on the "trespass damages" phase, 490 F.2d 954, 203 Ct.Cl. 468 (1974), that we considered that the ravages of miners could be imputed to the United States and would make the United States a taker when (a) the United States military forces excluded the Indians from the mining areas and protected the miners in their possession, and (b) the United States mining laws recognized or retroactively validated titles obtained by staking claims, even though on lands whose aboriginal Indian titles had not been previously extinguished. This theory would, it would seem, require the thing taken to be at least as extensive as the staked claim. This is not the Commission's theory. By that, minerals within the claim but still in the ground remained the property of the Indians until September 4, 1886, and the United States is mulcted now only for what the miners actually removed, before that date. The Commission has further scotched the imputed taking idea by saying that its September 4, 1886 taking date here is not an average or composite date. Everything was taken then, contrary to Northern Paiute, where we concluded that the taking date was an average or composite, not necessarily the actual taking date for every part of the tract. The difficulty therefore shapes up to be that in the earlier Apache decision, as construed by the Commission in this case, the Commission of necessity found that acts constituting the United States a taker did not occur before September 4, 1886, while to sustain the imputed taking theory here, it would be necessary now to find that such acts did occur. The Commission in the earlier decision in effect found that United States troops did not drive the Apaches off the tract involved, and keep them off, on or before 1876, that miners did not thereafter enter and...
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