United States v. Santa Fe Pac. R. Co., 9271.

• Decision Date: 30 August 1940
• Docket Number: No. 9271.,9271.
• Citation: 114 F.2d 420
• Parties: UNITED STATES v. SANTA FE PAC. R. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

114 F.2d 420 (1940)

UNITED STATES v. SANTA FE PAC. R. CO.

No. 9271.

Circuit Court of Appeals, Ninth Circuit.

August 30, 1940.

Norman M. Littell, Asst. Atty. Gen., Norman MacDonald and Charles R. Denny, Attys., Dept. of Justice, both of Washington, D. C., Richard H. Hanna, Sp. Asst. to Atty. Gen., of Albuquerque, N. M., and Harlow Akers, Sp. Asst. to Atty. Gen., of Phoenix, Ariz., for appellant.

Charles H. Woods and Joyce Cox, both of Chicago, Ill., and Fennemore, Craig, Allen & Bledsoe, of Phoenix, Ariz., for appellee.

Before WILBUR, MATHEWS, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

This suit was brought by the United States in its own behalf and as guardian of the Walapai¹ Tribe of Indians of Arizona to enjoin the defendant, Santa Fe Pacific Railroad Company (hereinafter called the Santa Fe Railroad Company, or, the Railroad Company) from interfering with the alleged possessory rights of that tribe to certain lands in northwestern Arizona.

The lands to which these possessory rights are claimed were included within the grant made to defendant's predecessor, the Atlantic and Pacific Railroad Company, by Act of Congress of July 27, 1866, 14 Stat. 292. This act granted the odd-numbered sections of land within specified distances on each side of the line of railroad to be constructed, the specific sections to be identified later. This identification was fixed March 12, 1872, when the map of the proposed railroad was filed and accepted.

In 1865 a reservation for the Walapai Tribe was created by Congress, 13 Stat. 559, on lands on the lower Colorado River not within the limits of the railroad grant.

In 1883 another reservation for this tribe was created by proclamation of President Arthur. This reservation was in northwest Arizona and included lands covered by said railroad grant.

The complaint contains two counts: the first, for interference with the possession of lands within the boundaries of the reservation created in 1883; the second, for interference with the possession of lands within the odd numbered sections outside this reservation and within the limits of the grant.

Defendant moved to dismiss the complaint on the ground that it failed to state a cause of action, in that matters of which the court took judicial notice showed that the Walapai Tribe had no possessory rights as alleged. The court granted the motion and the plaintiff appeals.

The act of 1866 limited its grant of alternate sections with these words: "whenever * * * the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights". Literally this requires that no section is within the grant unless it is free from "all other claims or rights" and certainly a right of possession would fall within that description. A logical consequence of that interpretation would be that if the Walapai Tribe had their alleged possessory rights the lands to which they applied were not covered by the grant and the Railroad Company would be entitled to lieu lands. Act of 1866, sec. 3. However, in construing a similar grant of lands in Dakota, made by Congress July 2, 1864, 13 Stat. 365, to the Northern Pacific Railroad, in Buttz v. Northern Pacific Railroad Co., 119 U.S. 55, 7 S.Ct. 100, 107, 30 L.Ed. 330, the Supreme Court held that an identical limitation did not exclude from the grant lands to which the Indians had a right of occupancy only. This conclusion was partly based upon the provision in the granting act wherein the United States agreed to extinguish the Indian title to all lands falling under the operation of the act. The same provision is in the granting act to the Atlantic and Pacific. Sec. 2, Act of July 27, 1866, 14 Stat. 292, 294. The Supreme Court said: "In our judgment, the claims and rights mentioned in the third section are such as are asserted to the lands by other parties than Indians, having only a right of occupancy."

The word "occupancy" is used interchangeably with "possession" in appellant's brief.

Appellant concedes that the grant of 1866 to defendant's predecessor in interest, the Atlantic and Pacific Railroad Company passed the fee to the lands in question; but it contends nevertheless that the grant was subject to the Tribe's possessory rights in whatever lands they actually occupied.

The first question then is as to the origin of the right of Indian occupancy which is herein asserted to be superior to the railroad grant. The right, if any, at the time the grant became effective in March, 1872, is the one involved for after the grant vested it could not be subsequently divested by any act of the government or of the Indians.

Appellant argues that there is uniform governmental policy of recognizing rights of occupation as vested in all Indian tribes with respect to land actually occupied by them at the time they were brought under the sovereignty of the United States and that such rights were good against all but the government of the United States. It must be conceded that this view is consistent with what has been the common practice in dealing with the Indians occupying lands other than lands within the area ceded by Mexico to the United States. Cf. Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471; Spalding v. Chandler, 160 U.S. 394, 402, 403, 16 S.Ct. 360, 40 L.Ed. 469. Their practice has been based upon the policy of maintaining just and peaceable relations with the Indians and is discussed and considered in a number of early cases, such as Johnson and Graham's Lessee v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681, decided in 1823.

But, since the whole of the Indians' title depends entirely upon the policy of the federal government, it is obvious that what may have seemed the best policy in dealing with Indians in territories acquired prior to the treaty of Guadalupe Hidalgo might not have seemed the best policy in dealing with Indians occupying the area ceded by Mexico in that treaty.

Appellee argues that since, apart from exceptional instances as in case of the lands of the Pueblo Indians, the Mexican government recognized no rights in the Indians with respect to lands in this area at the time of the cession, they cannot be deemed to have acquired any such rights of possession in the absence of affirmative action by the United States. To this appellant replies that there is no sound reason for assuming a discrimination against the Indians of the Mexican cession. In support of appellant's contention a case decided by this court, United States v. Walker River Irrigation District, 9 Cir., 104 F.2d 334, is cited; but that case merely recognized that the government was under a moral obligation to the Indians of the ceded area of such a nature that the creation of an Indian reservation therein must have carried with it the right to the use of water from a stream within the reservation, water without which the land reserved would be worthless. It is obvious, however, that this case throws little light upon the possessory rights of Indians within the Mexican cession.

Since it is conceded that the title of the United States was absolute, except in certain cases of specific grants, and since there is no all-embracing rule governing the possessory rights of the Indians upon the public domain, their rights within the territory ceded by Mexico must be neither more nor less than what the government, whether justly or unjustly, chose to recognize. And that must be determined from the course of governmental action, as contended by appellee. That question we will now consider.

One of the most significant pieces of legislation by Congress in this connection is the Act of July 22, 1854, 10 Stat. 308, establishing the offices of Surveyor-General of New Mexico, Kansas and Nebraska. This act (sec. 2) provided for a donation of 160 acres of land to certain settlers. It excepted from the land subject to donation lands claimed under the laws, usages and customs of Spain and Mexico.²

While as to Nebraska and Kansas the Act provided that the only land subject to preemption under the preemption act of September 4, 1841, 5 Stat. 453, was land to which the "Indian title" had been or should be extinguished (Sec. 12 of Act of 1854, supra), the Act further provides in Sec. 13, "that the public lands in the Territory of Nebraska, to which the Indian title shall have been extinguished, shall constitute a new land district to be called the Omaha District; and the public lands in the Territory of Kansas, to which the Indian title shall have been extinguished, shall constitute a new land district."

It seems clear from the foregoing provisions of the Act that Congress recognized in the territory of New Mexico only those Indian rights which existed under Spanish or Mexican law at the time of the cession of the land to the United States by Mexico.

In 1870 Congress provided for the appointment of a Surveyor-General for Arizona and charged him with the duty of investigating Spanish and Mexican land titles therein, in the same manner as the Surveyor-General of New Mexico had done under the Act of 1854. Appropriation Act, July 15, 1870, 16 Stat. 291, 304. This Act is significant here only as indicating a continuing policy of recognizing only rights in land theretofore existing in the ceded territory.

On March 3, 1871, Congress enacted a statute prohibiting future treaties with Indian Tribes, 16 Stat. 544, 566, 25 U.S. C.A. § 71, thus asserting the right of the government thereafter to define the rights of Indians with or without their consent.

In 1865 Congress validated an agreement made between Arizona's first Indian superintendent and the Walapai and certain other tribes for the establishment of a reservation of 75,000 acres "from Half-Way Bend to Corner Rock on the Colorado River." (Act of March 3, 1865, 13 Stat. 541, 559). If at that time Congress regarded this whole vast area of Arizona as a body of land to which the Indians in actual occupation had possessory...