United States v. Northern Paiute Nation

• Decision Date: 23 January 1974
• Docket Number: Appeal No. 18-72.
• Citation: 490 F.2d 954
• Parties: The UNITED STATES of America, Appellant, v. The NORTHERN PAIUTE NATION et al., Appellees.
• Court: U.S. Claims Court

490 F.2d 954 (1974)

The UNITED STATES of America, Appellant, v. The NORTHERN PAIUTE NATION et al., Appellees.

Appeal No. 18-72.

United States Court of Claims.

January 23, 1974.

Marvin E. Schneck, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for appellant.

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

Before LARAMORE, Senior Judge, and NICHOLS and BENNETT, Judges.

NICHOLS, Judge.

This is an appeal by the United States. It calls on us to review an interlocutory determination, an order of the Indian Claims Commission, 28 Ind.Cl.Comm. 256 (1972), which holds that the defendant is liable to the plaintiffs for the resources removed (by any and all persons, apparently) from the Nevada portion of the Paviotso tract prior to the date of extinguishment of plaintiffs' aboriginal title, December 31, 1862, but after the United States acquired the area from Mexico on February 2, 1848. We have jurisdiction to conduct a review of such an interlocutory determination under 25 U.S.C. § 70s. We hold that the order is in error, and we reverse.

The appellees' original claims to and respecting the Mono, Snake and Paviotso tracts in California, Oregon and Nevada, were stated in the Commission's Docket No. 87. By order of April 24, 1957, the Commission severed all claims, except for extinguishment of title to aboriginal lands, into Docket 87-A, and on that date the Indians filed an amended petition which alleged that they suffered damages when the United States permitted third persons to remove minerals and timber from their lands. Thereafter, Docket No. 87 proceeded to a determination, as to the Paviotso tract in Nevada, that plaintiffs had aboriginal title, that defendant took the tract extinguishing plaintiffs' title, and that the value of the tract on the date of taking was $15,790,000. 7-A Ind.Cl.Comm. 322, 420 (1959); 7-B Ind.Cl.Comm. 615, 616 (1959); 16 Ind.Cl.Comm. 215, 340 (1965). We affirmed, 393 F.2d 786, 183 Ct.Cl. 321 (1968). What precisely was determined, by the Commission and by us, respecting the date of taking used, December 31, 1862, is not agreed and is an issue we must now decide.

The Paviotso tract included, on December 31, 1862, part of the famed Comstock Lode and that celebrated mining community, Virginia City. Mining had commenced in the area over three years earlier in mid-1859 and substantial quantities of ore had been removed before the found extinguishment date, 135,867 tons worth $9,500,000, though much more remained. According to plaintiffs, a value of $26,200,000 was mined in 1863-65 and $153,700,000 from 1866-80. A major portion of the award was due to the enhancement of the value of the tract by its mineral wealth, as then known. So much is clear from the record in Docket 87, and further details of the relevant history may be found in our decision therein. It is not so apparent whether timber was removed from this parched and desolate area, to the extent necessary for a viable claim, and it will be the task of the Commission to determine this, if relevant.

The Commission reactivated Docket 87-A after Docket 87 was finally disposed of. The opinion of Commissioner Blue that accompanies the order appealed from, indicates that defendant is liable under the "fair and honorable dealings" clause of the Act (25 U.S.C. § 70a), Clause 5 Section 2, because it sanctioned, encouraged or assisted third parties in taking and removing resources out of the Indians' lands while their aboriginal title thereto was unextinguished and outstanding. He further holds that the extinguishment date of December 31, 1862, is res judicata and not now open to challenge. The Commission relies, as authority, on our decision in Tlingit and Haida Indians of Alaska v. United States, 389 F.2d 778, 182 Ct.Cl. 130 (1968), and on the Commissions' in Washoe Tribe v. United States, 21 Ind. Cl.Comm. 447 (1969). The latter involved another portion of the Comstock Lode which lay west of the Paviotso tract. The Commission used the same extinguishment date and awarded damages for pre-extinguishment trespasses by miners, on the theory employed here. That case did not come before this court for review and cannot be considered to bind us now. Defendant, for reasons sufficient to it, did not appeal.

The parties debate at length whether defendant can ever be liable for pre-extinguishment trespasses against Indians who held aboriginal title. We think so broad an issue does not confront us here. This case goes off on factors peculiar to itself, and possibly to the Washoe decision, which we have not examined.

Before applying res judicata or collateral estoppel one must study the former decision with care. It does not bind a party to anything, fact or law, that was not actually held and decided. When one looks at the extinguishment date, as found in Docket 87, one sees that actually nothing at all was found to have happened on December 31, 1862, relevant to this lawsuit. Finding 30, establishing the taking date, recites in support a series of events stretching from 1859 to 1874. By the end of 1862, many of the Indians had expressed the desire to remain at peace (with the United States) provided a reservation be set apart for their permanent home; the Pyramid Lake and Walker River reservations had come into operation and had been accepted by a substantial number of Indians. They were not, however, established by Executive Order until 1874. The Commission could not have supposed that any of the facts it recited respecting the end of 1862 constituted takings in and of themselves, though it used the strong word "taken" instead of the weaker one "extinguishment" used in Commissioner Blue's opinion. As to the settlement of Indians on a reservation as abandoning aboriginal lands, see Turtle Mountain Band of Chippewa Indians v. United States, 490 F.2d 935, 203 Ct.Cl. ___ (decided today). The explanation seems and is obvious: they were laying down an average, composite, or jury verdict taking date. It was called an "average date" in the joint submission on which the Commission framed Finding 30. The Commission previously had asked the parties to try to agree on an "average date". 7 I.C.C. at 419. Such a legal shortcut is often necessary in Indian claims litigation, if it is ever to be concluded, and has the sanction of the Supreme Court. Creek Nation v. United States, 302 U.S. 620, 58 S.Ct. 384, 82 L. Ed. 482 (1938). The record was void of any single clearcut extinguishment. The miners staked their claims, the miners mined, the Indians attacked, United States troops came to the rescue of the miners, the troops defeated the Indians, the United States agents hopefully established reservations they wished the Indians to move into, but did not compel them to, some Indians nevertheless did, the Congress retroactively validated the miners' claims, vis a vis one another, and vis a vis the United States, the President at long last established the reservations. As to non-mineral portions of the tract, there was even less. It was arguable, and defendant argued, that the Indian title had never been extinguished. Somehow by the concatenation of events, at some unknown date or dates, it was. The Commission closed its eyes and picked a date; the parties, relieved, went on to prove things that could be proved. Such a composite or average date is not res judicata or collateral estoppel that every parcel in the Paviotso tract was taken on the composite or average date. It is so only as to what the composite or average date was.

On our review, a majority of this court took the selected date as given. Commissioner Blue quite rightly regards the writer's concurring opinion, criticizing the date, as not binding on the Commission. Our majority opinion, however, deals, as it was obliged to do, with improvements installed by the mining companies before the chosen taking date. Defendant asserted that on account of them some three and a half million dollars should be taken off the value awarded. We held that so large an adjustment would be speculative in light of the fact that many so-called improvements did not add value commensurate with their cost, and others were actually destructive of value. We said at 393 F.2d 797, 183 Ct.Cl. 340:

The Government referred to the miners as "others," disassociating them from the United

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