Western Shoshone Legal Defense & Ed. Ass'n v. US, Appeal No. 3-75.

• Decision Date: 18 February 1976
• Docket Number: Appeal No. 3-75.
• Citation: 531 F.2d 495
• Parties: WESTERN SHOSHONE LEGAL DEFENSE AND EDUCATION ASSOCIATION, and Frank Temoke, Appellants, v. The UNITED STATES and the Western Shoshone Identifiable Group, Represented by the Temoak Bands of Western Shoshone Indians, Nevada, Appellees.
• Court: U.S. Claims Court

531 F.2d 495

WESTERN SHOSHONE LEGAL DEFENSE AND EDUCATION ASSOCIATION, and Frank Temoke, Appellants, v. The UNITED STATES and the Western Shoshone Identifiable Group, Represented by the Temoak Bands of Western Shoshone Indians, Nevada, Appellees.

Appeal No. 3-75.

United States Court of Claims.

February 18, 1976.

Kathryn Collard, Salt Lake City, Utah, for appellants; John D. O'Connell, Salt Lake City, Utah, attorney of record.

Robert W. Barker, Washington, D. C., attorney of record, for appellee Western Shoshone Identifiable Group; Wilkinson, Cragun & Barker, Donald C. Gormley and Steven C. Lambert, Washington, D. C., of counsel.

Dean K. Dunsmore, Washington, D. C., with whom was Acting Asst. Atty. Gen. Walter Kiechel, Jr., Washington, D. C., for appellee The United States.

Before DAVIS, SKELTON and KUNZIG, Judges.

ON MOTION TO DISMISS APPEAL FROM THE INDIAN CLAIMS COMMISSION AND ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

DAVIS, Judge:

In August 1951 the Shoshones timely filed a petition with the Indian Claims Commission setting forth, among other claims, a cause of action on behalf of the Western Bands of the Shoshone Nations (represented by plaintiff-appellee Temoak Bands of Western Shoshone Indians) for the taking without compensation of large acreage in Nevada and California, including lands covered by the Treaty with Western Bands of Shoshone Indians (Treaty of Ruby Valley), Oct. 1, 1863, 18 Stat. 689 (1875). The United States denied this alleged taking. In 1957 the Indians' title to this land was tried before the Commission and in 1962 the Commission decided that the claimants held aboriginal title to 24,396,403 acres — 22,211,753 in Nevada and 2,184,650 in California. 11 Ind.Cl.Comm. 387, 413-14; see 29 Ind.Cl. Comm. 5, 6. For the California property this aboriginal title was found to have been extinguished in March 1853. With respect to the Nevada portion, the Commission determined that the land was continuously used and occupied "until by gradual encroachment by whites, settlers and others, and the acquisition, disposition or taking of their lands by the United States for its own use and benefit, or the use and benefit of its citizens, the way of life of these Indians was disrupted and they were deprived of their lands. For these reasons the Commission may not now definitely set the date of acquisition of these lands by the United States." 11 Ind.Cl.Comm. at 415-16.

In 1966 the plaintiff-appellee and the defendant-appellee stipulated that the valuation date of the Nevada portion would be July 1, 1872, and on that basis the parties tried, in 1967, the fair market value of this area. In October 1972 the Commission decided the valuation issues, awarding the claimant $21,550,000 as value on the respective valuation dates and an additional $4,604,600 for minerals removed from the Nevada tract before the valuation date. 29 Ind.Cl.Comm. 5, 7, 57-58. The Government filed a motion for rehearing which was denied in 1973. 29 Ind.Cl.Comm. 472. In that same year the Government filed its set-offs against the award; these issues were tried and submitted to the Commission by March 5, 1974.

It was at this stage of the proceedings that, on April 18, 1974, appellants Western Shoshone Legal Defense and Education Association and Frank Temoke, as part of the Western Shoshone Identifiable Group, filed their petition to stay proceedings and for leave to present an amended claim. The gist of this petition was that the Western Shoshone still have title to approximately twelve million acres of Nevada land to which the Commission had held Indian title to have been extinguished and for which it had made a large award (subject to offsets).¹ Appellants fear that this award, if paid, will bar any future attempt to litigate elsewhere the present title to these lands. See 25 U.S.C. § 70u.² Acknowledging that Section 10 of the Claims Commission Act, 25 U.S.C. § 70i, gives a tribal organization recognized by the Secretary of the Interior "the exclusive privilege of representing such Indians, unless fraud, collusion, or laches on the part of such organization be shown to the satisfaction of the Commission," the appellants claimed "collusion" between the appellee Temoak Bands and the Government to treat the title to the lands as extinguished rather than as still held by the Indians.

When the United States and the Western Shoshone Identifiable Group, as represented by the appellee Temoak Bands, both opposed this petition, the Commission had oral argument, principally on the question of collusion, and on February 20, 1975, issued its opinion and order dismissing the petition. 35 Ind.Cl.Comm. 457. Appellants then filed a timely notice of appeal which triggered a motion by the Western Shoshone Identifiable Group to dismiss the appeal.

We held oral argument on the motion to dismiss but at that time directed the parties to file briefs on the appeal itself.³ Now we deny the motion to dismiss but affirm the Commission's decision rejecting appellants' petition.

I.

Section 20(b) of the Indian Claims Commission Act, 25 U.S.C. § 70s(b), provides for an appeal to this court from any "final determination" of the Commission. We have already ruled that this provision is not limited to those determinations deciding the merits of an Indian entity's claim but embraces all types of holdings made by the Commission, provided always that the requisite finality is present. Red Lake & Pembina Bands v. Turtle Mountain Band of Chippewa Indians, 355 F.2d 936, 939-40, 173 Ct.Cl. 928, 934-35 (1965). "The Act nowhere suggests that certain areas of Commission decision are to be left without appellate review and guidance; * * *. Nor does the legislative history intimate that this court's power to review should cover fewer subjects than the Commission's power to decide." Ibid. See also Cherokee Nation v. United States, 355 F.2d 945, 947-49, 174 Ct.Cl. 131, 135-39 (1966). In particular we have held that an order definitely denying intervention, on the ground that the intervenor had no right, is sufficiently conclusive for appeal. Prairie Band of Potawatomi Indians v. United States, 165 F. Supp. 139, 141-42, 143 Ct.Cl. 131, 133-35 (1958), cert. denied, 359 U.S. 908, 79 S.Ct. 587, 3 L.Ed.2d 574 (1959).

Though it was not formally labeled a motion for intervention, the appellants' petition to the tribunal below was equivalent to such an application.⁴ It sought leave to present an amended claim on behalf of the Western Shoshone Identifiable Group and to argue in support of that position. The Commission treated the petition in the same way it would deal with an intervention motion. It considered whether appellants had a right to participate in this proceeding and, after deciding that they had not, dismissed the petition finally. On that subject nothing was left for further consideration by the Commission; appellants were definitively refused permission to enter the case and the proceedings were left to continue between the original plaintiff and the Government. Insofar as the Commission was concerned, appellants' connection with the litigation was ended; and that determination of closure was both severed and severable from the final determination of the award to be made to the Western Shoshone Identifiable Group. Cf. United States v. Fort Sill Apache Tribe, 507 F.2d 861, 863, 864, 205 Ct.Cl. 805, 807-808, 809 (1974).

Accordingly, we hold that this court has jurisdiction of the appeal and that the appellants have the right to seek review here. The motion to dismiss the appeal is denied and we proceed to the merits of the appeal.⁵

II.

In passing on the correctness of the Commission's rejection of appellants' petition, we are impressed by two intertwined and striking sets of facts. The first is that that document was first thrust upon the Commission and the parties in 1974, some 23 years after this Western Shoshone claim was first made to the Commission in 1951, some 12 years after the Commission had decided (in 1962) that the United States had extinguished the claimant's title to the large areas involved, eight years after the Commission had approved (in 1966) the parties' stipulation as to the valuation date of these lands, about one and one-half years after the Commission had determined (in October 1972) the actual value of the property, and about a month after the problem of offsets had been tried and submitted for disposition. Thus, the appellants did not seek to put their view before the Commission until after the trial and decision on liability, a separate trial and decision on valuation, and another separate hearing on offsets. On this Nevada-land phase of the Western Shoshone claims there was very little left to do; much time had passed, and much had been done.

The second noteworthy fact is that there is no doubt whatever that appellants were for a very long time quite aware of the position with respect to this Nevada land taken before the Commission by appellee Temoak Bands and its counsel. Appellants' petition presented to the Commission on April 18, 1974, said (p. 4): "Petitioners, individual members of the Petitioner Association appellant Western Shoshone Legal Defense and Education Association, and their predecessors on numerous occasions over the past thirty-nine years have resisted any legal action jeopardizing the rights and interests of the Western Shoshone Indians in their tribal lands and have made repeated protests, against the inclusion of such lands in the Claim filed in the above captioned proceeding to the officers of the Temoak Bands of Western Shoshone Indians, the Claims attorneys retained by said organization (see copy of letter from Robert W. Barker attached hereto as Exhibit A) and to representatives of The United States of America" (emphasis added). One of the incidents specifically mentioned occurred in October 1965. In this court in their response to the motion to dismiss the appeal appellants observe (pp. 1-2): "The...