United States v. Kabinto

• Decision Date: 23 March 1972
• Docket Number: No. 26235.,26235.
• Citation: 456 F.2d 1087
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe and Wanda KABINTO, his wife, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

456 F.2d 1087 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Joe and Wanda KABINTO, his wife, et al., Defendants-Appellants.

No. 26235.

United States Court of Appeals, Ninth Circuit.

February 18, 1972.

Rehearing Denied March 23, 1972.

Warren L. Bachtel (argued), Dale H. Itschner (argued), Clifford J. Hofmann, Window Rock, Ariz., for defendants-appellants.

Jacques B. Gelin, New York City (argued), Edmund B. Clark, Dept. of Justice, Shiro Kashiwa, Asst. Atty. Gen., Lands & Natural Resources Div., Washington, D. C., Richard K. Burke, U. S. Atty., Richard S. Alleman, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.

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

PER CURIAM:

This is an appeal from a summary judgment of ejectment declaring 16 Navajo Indians to be trespassers upon a portion of the Hopi Indian Reservation and enjoining them from using or occupying the land. We affirm.

The background of the litigation:

1. In 1882, President Chester A. Arthur by executive order set aside a two and one-half million acre tract in northeastern Arizona for the use and occupancy of the Hopi Tribe "and such other Indians as the Secretary of the Interior may see fit to settle thereon".

2. For many years thereafter the Hopi and Navajo Indians asserted conflicting claims to the tract. All attempts to resolve the controversy by agreement and administrative action failed.

3. Finally, the two tribes, the Secretary of the Interior and Congress determined that resort must be had to the courts.

4. A special jurisdictional statute, the Act of July 22, 1958, 72 Stat. 403, was passed "to determine the rights and interests of the Navaho Tribe, Hopi Tribe, and individual Indians to the area set aside by Executive order of December 16, 1882 . . . ."

5. Section 1 of the Act provided that the land was to be held by the United States in trust for the Hopi Indians and such other Indians, if any, as theretofore had been settled thereon by the Secretary of the Interior pursuant to the executive order.

6. The Act further authorized the "Navaho Indian Tribe and the Hopi Indian Tribe, acting through the chairmen of their respective tribal councils for and on behalf of said tribes, including all villages and clans thereof, and on behalf of any Navaho or Hopi Indians claiming an interest in the area . . . and the Attorney General on behalf of the United States . . . to commence or defend . . . an action . . . for the purpose of determining the rights and interests of said parties in and to said lands and quieting title thereto in the tribes or Indians establishing such claims pursuant to such Executive order as may be just and fair in law and equity".

7. It provided that the action was to be heard and determined by a three-judge district court with direct appeal to the Supreme Court.

8. The result was Healing v. Jones, 210 F.Supp. 125 (D.Ariz.1962), aff'd, per curiam, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963), in which judge Hamley described the controversy as "`the greatest title problem of the West'". 210 F.Supp. at 129.

9. The Healing court, inter alia, quieted title to all the lands within Land Management District 6 in favor of the Hopi Indians, and stated as an unprophetic conclusion, "Under the judgment being entered herein . . . district 6 . . . will be completely removed from controversy, having been awarded exclusively to the Hopi Indian Tribe". 210 F.Supp. at 192.

10. The appellants, who are Navajo Indians residing within that district 6, refuse to concede the validity of the judgment in Healing.

11. That refusal caused this litigation. The United States brought the action in its capacity as sovereign and as trustee for the Hopi Tribe to evict the appellants. The case was determined on the motion of the United States for summary judgment and the Navajos' motion in opposition and an alternative motion for summary judgment. The district court granted the motion of the United States and rejected the contentions of appellants.

On appeal appellants assert (1) the subject matter of the litigation is not judicially cognizable; (2) their right to aboriginal occupancy of the land was not extinguished by Healing; (3) they were inadequately represented in Healing; (4) the Act of July 22, 1958, and Healing deprived them of property without due process of law; and (5) the United States must do equity.

The principal contention of appellants is that they hold title to the land they occupy under a claim of aboriginal right of occupancy which was not extinguished by Healing. They assert that they possess rights of occupancy which arose prior to the 1882 Executive Order which are outside the Act of 1958 and Healing, both of which were based on the executive order. In support of their contention, affidavits were filed which set forth the fact that the appellants are direct descendants of Navajos who had resided on the lands prior to 1882. The district court determined that the appellants' claim of aboriginal title did not defeat the motion for summary judgment and the affidavits were immaterial as a matter of law.

The primary claim advanced by the Navajos in Healing was that occupancy "in Indian fashion" constituted settlement under the language of the 1882 Executive Order, and "likened the character and use and occupancy by `other Indians' contemplated by the executive order to that which must be found to exist in order to establish aboriginal Indian title", as such title was defined in United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941). 210 F.Supp. at 143. The Hopi Chairman contended that the concept of aboriginal title had no relevancy in the determination of the litigation, asserting that before any Navajo Indian acquired any right in the tract he must first have been permitted by the Secretary of the Interior to enter upon and then physically occupy it. 210 F.Supp. at 144. However, the court, in Healing, rejected both contentions and specifically determined that Indians other than the Hopis acquired rights in the land (1) if they occupied the area in Indian fashion as a permanent residence and (2) if such occupancy was without advance permission by the Secretary of the Interior, it was authorized subsequently by the Secretary. 210 F.Supp. at 144.

The principal discussion of Healing was a determination of whether the Secretary had ever authorized occupancy by the Navajos. The court found the Navajo Indians used and occupied parts of the 1882 reservation in Indian fashion as their continuing and permanent area of residence long prior to the creation of the reservation in 1882, but that their rights had not become vested until the passage of the Act of 1958. 210 F.Supp. at 144-145. With reference to district 6, Healing determined that in 1940 there were 160 Navajos residing there. 210 F.Supp. at 160 n. 44. However, the court specifically found that "neither the Navajo Indian Tribe nor individual Navajos were authorized by the Secretary to settle within" district 6. 210 F.Supp. at 173.

In its unreported conclusions of law, the Healing court determined:

"Neither the Navajo Indian Tribe nor any individual Navajo Indians, whether or not living in the reservation area in 1882, gained any immediate rights of use and occupancy therein by reason of the issuance of the Executive Order of December 16, 1882, or by reason of any other fact or circumstance, save and except by the exercise, after December 16, 1882, of the authority reserved in the Secretary of the Interior, under the Executive Order of December 16, 1882, to settle other Indians in that reservation."

It thus appears that the claims which appellants make here with reference to aboriginal claims were raised and considered at length by the Healing court and decided adversely to them. Appellants stress the fact that nowhere in the Healing opinion is there a discussion of Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622 (1923). In Cramer, the Supreme Court held that Indians who settle upon the public domain and establish residency thereby acquire rights of possession. Cramer, as was United States v. Santa Fe Pacific R. Co., supra, was an action brought by the United States to protect Indian title against third parties who also claimed interests from the United States. The question was not the power of the government to extinguish aboriginal Indian title, but whether that power was exercised. Healing determined that it had been.

The judgment in Healing is res judicata, is not subject to collateral attack save for fraud, and is a bar to the claims of the appellants. "The rule of res judicata provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are thereafter bound `not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as...