593 F.2d 994 | Ct. Cl. | 1979
Lead Opinion
delivered the opinion of the court:
Both sides appeal from a judgment of the Indian Claims Commission relating to the claim of the Western Shoshones for taking of aboriginal title lands in the present States of California and Nevada. The claimants long prosecuted the claim on the basis that the entire tract was taken on a date to be determined, and because of this the claim of the Indians was money compensation only. In 1974 a group of Shoshones attempted to intervene, asserting that the claimants still own much of the tract. They wanted a stay or suspension to allow their position to be developed and
I
The desire of the Indians to make the water flow back under the bridge is explained as a natural reaction to a visible change in legal climate, where Indian claims to own large tracts are reported in litigation or settled favorably to them, whereas, they say, in 1946 the pursuit of a money award, as made possible by the Indian Claims Commission Act, 25 U.S.C. § 70a and ff, seemed the only hope for justice. The instant claim is one of many where the Commission was unable to discover any formal extinguishment of Indians’ legal title, only gradual encroachment by settlers and others, and takings, the exact date of which could not be definitely set. 11 Ind. Cl. Comm, at 416. The Indians now claim, as not taken, only vacant land, not settled, patented, improved or mined, and no town sites. In United States v. Northern Paiute Nation, 183 Ct. Cl. 321, 358, 393 F.2d 786, 807 (1968), it was suggested by one judge of those participating that as to vacant, unimproved land in the public domain, in Nevada, where Indian title was not formally extinguished, it had not "been taken yet” (i.e., by 1968). There might be a considerable difference between an award for desert land "taken” over a century ago, but not carrying interest, and the selling price of even such
The proceeding was started in 1951. By stipulation filed February 11, 1966, the parties agreed that the "valuation date” for Shoshone Nevada land would be July 1, 1872. Findings as to the extent of the land taken, 22,211,753 acres in Nevada, and 2,184,650 acres in California, had already been made. A trial on valuation took place in September 1967, and following oral argument and briefing, the Commission awarded plaintiffs $21,350,000 for the Nevada land, to which it added $200,000 for California land, and $4,604,600 for removal of minerals from the Nevada land before the taking date. It deducted $9,410.11 as payment on the claim, and nothing for offsets, making a total judgment of $26,145,189.89, as entered. 40 Ind. Cl. Comm. 318, 452 (August 15, 1977).
The attempted intervention was by the Western Shoshone Legal Defense and Education Association and Frank Temoke. It was filed with the Indian Claims Commission April 18, 1974, at which time the extent and value of land and minerals taken had been determined, and only the offsets and payments then awaited adjudication. The intervenors alleged the Western Shoshones still had title to about 12 million acres, and they claimed collusion between the Temoak Bands and the government to treat the title as extinguished. The Commission, after hearing oral argument, dismissed the intervening petition. 35 Ind. Cl. Comm. 457. This court affirmed in the decision cited above. After holding the intervenor’s appeal was not premature and that we therefore had jurisdiction of it, we pointed out how belated the attempted intervention was in light of how much the Commission had done and how little remained to do; that the intervening petitioners themselves alleged they had been aware of the case for 39 years and had repeatedly protested; and that no adequate excuse was offered for the long delay. We said that the longer the delay, the better the reason for intervention that had to be shown. We held that the intervenors could not take control of the case from those then in charge unless they could show fraud, collusion, or laches, none of which was alleged except in conclusory assertions not sufficient to call for a
The Temoak Band had been determined to be entitled to control the litigation on behalf of all Western Shoshone, and the intervenors were deemed by us to be non-Temoaks. Now, however, the Temoak Band itself has ostensibly changed its position. Following our remand, it petitioned the Secretary of the Interior to determine that the Western Shoshone retained ownership of the claimed acres, terminated the contract with Wilkinson, Cragun & Barker (hereinafter called old counsel), who had been in charge of this litigation hitherto, and retained Sonosky, Chambers & Sachse (hereinafter called new counsel). Old counsel have continued to participate so far as concerns the government cross-appeal. A brief by them is on file in which they also contest the legality of their purported ouster, and say the Indians have not had a chance to vote on it, but by consent of all counsel, this issue was not argued orally. To decide it does not appear necessary for adjudication of the appeals now before us. New counsel moved for a stay of proceedings in the Indian Claims Commission, and the Commission denied the motion the same day it entered its final judgment, August 15, 1977. New counsel appealed the denial order and the judgment on November 11, 1977. It is said the Secretary is awaiting our decision on this appeal before making any move to adjudicate the title claim, but neither we nor the Commission have stayed or, it would appear, have had authority to stay, any adjudication he might engage in as to the title.
We can and do assume that the Temoaks really desire to sweep the water back under the bridge, and that they have employed new counsel to assist them in this endeavor. Any question as to the rights of new and old counsel vis-a-vis
A different question would arise if the Temoaks desired to abandon this proceeding in its entirety. They do not. They make no claim to the title at present to ten million acres, more or less, which they still concede were taken, and eventually, their compensation to be awarded for that must come to judgment here, if the present one does not stand. Presumably, as to that as well as to the lands they do claim, if they work their will, the proceeding here must simply wait. After they have carved out whatever part they successfully claim to own, the award for the rest must be redetermined. That could be a simple matter if the parties were willing to use the record already made and the findings of the Commission. That matter does not rest in the discretion of the Temoaks alone. They cannot change their litigation position so drastically and not allow their adversary a like privilege. Defendant, also, now repents many of the stances it has taken in the conduct of this litigation. Most likely it would not now agree to the valuation date it once stipulated. With a different valuation date, the expert appraisals would be out of court and new ones would be necessary. This lawsuit has already lasted since 1951, for reasons peculiar to this type of litigation, which no one criticizes, and it appears the Temoaks contemplate cheerfully another quarter century of litigation. The Commission’s position was:
* * * [W]e are of the opinion that it is too late in the litigation for the Commission to be asked to stay proceedings in order to permit the adjudication of the case on a new theory, and this would be our position had the request come from the attorney of record for the plaintiff [old counsel] since the law of the case has long been established. 40 Ind. Cl. Comm. 305, 308-09.
The parties have embellished this stark proposition with citations as to the law of the case prevailing over the policy of new counsel, etc. We prefer to adopt it as our own without such embellishment, and hereby do. At the very least that can be said for it, it does not reveal an abuse of discretion.
Plaintiff says defendant is not harmed by the proposed partial and contingent abandonment, because the award does not bear interest, but defendant is the best judge of its own welfare and it is here urging us to affirm the Commission. The Temoaks were under a duty to defendant to discover and announce their claim to own the 12 million acres adjudged to have been taken, perhaps not before they filed the petition, but surely before 1976. There can be no doubt that Congress passed the Indian Claims Commission Act, 25 U.S.C. § 70 and ff, with the object of drawing in all claims of ancient wrongs, respecting Indians, and to have them adjudicated once and for all. It may have even been so optimistic as to hope to have this accomplished in the lifetimes of persons then living. It provided in Section 22 that payment of a claim as assessed under the Act would discharge not only the specific claim made, but all claims and demands touching any of the matters involved in the controversy. The object was not pecuniary, in the short-term sense, so the saving or incurring of interest is not the major matter. Congress had long-term political objects, in the non-pejorative sense of the word "political,” that are frustrated by continued delay in adjudication of claims.
Moreover, there is a third party to the controversy, whose interests litigants often neglect, the tribunal itself,
We can no longer indulge in the old notion that it is "up to the lawyers to push cases.” Once a case is filed it is public business as well as private. It is up to judges to see to it that dilatory tactics by neither party can frustrate speedy justice. [Emphasis supplied.] [Press Release by Supreme Court Public Information Office, December 21, 1978.]
We think, if this case had been sidetracked in the manner proposed, it would have been contrary to the statutory procedure under which the suit was brought, the intent and purpose of the Act, and the duty of the federal judicial system to employ its resources economically as well as to achieve the ends of justice speedily. If the Indians desire to avert the extinguishment of their land claims by final payment, they should go to Congress as recommended in Western Shoshone, 209 Ct. Cl. at 59, n. 16, 531 F.2d at 503. If Congress wishes to alter or undo the normal course of Indian Claims Commission adjudication, it knows how to do it. Cf. Act of March 13,1978, Pub. L. No. 95-243, 92 Stat. 153. The matter is somewhat changed since the Western Shoshone footnote because Congress can no longer stop the payment and defer the extinguishment of the title claim, just by not appropriating. By recent enactments, Act of March 7, 1978, Pub. L. No. 95-240, 92 Stat. 107, 116 and Act of May 4, 1977, Pub. L. No. 95-26, 91 Stat. 61, 96, Congress has amended the old standing appropriation to pay Court of Claims judgments, 31 U.S.C. § 724a, to make it available for Indian Claims Commission judgments, and to remove the old $100,000 limitation, there being now no upper limit on the amount of the judgment that can be paid. Thus it looks as if the Temoaks would have to get Congress to act affirmatively. In view of its plenary power over Indian tribal property, as spelled out in Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct. Cl. 426, 444, 490 F.2d 935, 945 (1974), we have no doubt that even after payment its action could be effective. And we think it is only Congress that could stay and undo the course of litigation at this late date, and if anybody should, it is only Congress. The essential point of the matter is that
II
The cross-appeal is against the award by the Indian Claims Commission of $4,604,600 for removal of minerals from the Nevada portion of plaintiffs aboriginal lands before July 1, 1872, the stipulated valuation date. The Commission found it could not definitely set the valuation date, whereupon the parties stipulated that as to the Nevada portion it was July 1, 1872. The Commission awarded $21,550,000 as the fair market value on the valuation date, of which $200,000 was for the California portion and the rest for the Nevada portion, not in contention in this appeal. The $4,604,600 was in addition, and supposedly the minerals removed, being no longer in place on the valuation date, did not constitute part of the then value.
The Commission considered that its decision was controlled by United States v. Goshute Tribe, 206 Ct. Cl. 401, 512 F.2d 1398 (1975). As defendant says, that is the only case where this court has sustained an award for removal of minerals before a found taking date. The facts of that case and this are indistinguishable. By almost identical and contemporaneous treaty provisions, there the Goshutes, Treaty of Tuilla Valley, 13 Stat. 681, here the Western Shoshone, Treaty of Ruby Valley, 18 Stat. 689, both in 1863, agreed with the same commissioners that the countries of the respective tribes might be explored and prospected for gold and silver, or other minerals, that mines when discovered might be worked, mining and agricultural settlements formed, and ranches established; that mills might be erected and timber taken for their use, as also for building. In recognition of the inconvenience to be anticipated to the respective tribes, including loss of game, the United States agreed to pay the Goshutes $1,000 per annum for twenty years, the Western Shoshone $5,000 per annum in such articles, including cattle, as the President might determine. Defendant does not distinguish the cases by the small differences in the treaty provisions.
We further took the view that the treaty language did not confer on the United States or the miners any ownership of the minerals in the ground, only a license to remove whatever they did remove. So here also.
The taking award in both cases is founded on clause 4 of section 2, "claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant * * *.” The right to recover a 20 percent royalty under clause 5 is deemed terminated as of the taking date, and instead the minerals remaining in the ground are considered and valued as part of the entire fee. Such is the Commission’s theory of both cases approved and adopted by us in our Goshute decision. We note that the value of the minerals in the ground on the taking date was found to be $12,500,000, while townsites were $900,000, farming land $1,500,000, good grazing land $3,750,000, fair to poor grazing land $2,700,000, all for the
Defendant makes much of the alleged distinction that in Goshute the Commission found the taking date, January 1, 1875, whereas here it was a matter of stipulation that the "valuation date” should be July 1, 1872. 29 Ind. Cl. Comm. 5, 7. Defendant says there was no stipulation as to the taking date.
Despite the similarity of the Goshute facts, defendant wants to make the controlling precedent here not Goshute, but United States v. Northern Paiute Nation, 203 Ct. Cl. 468, 490 F.2d 954 (1974). In that case there was no treaty, no "fair and honorable dealing” claim based on an unfair treaty. We held that the Northern Paiutes, having previously been awarded a substantial sum for the value of their aboriginal Nevada lands on an average or composite taking date, December 31, 1862, could not also recover "trespass damages” for failure of the United States to protect the tribal lands from ravages by miners before that date. The explanation was in part a serious doubt whether the United States was not being compelled to pay for the same thing twice. In the earlier case, 183 Ct. Cl. 321, 393 F.2d 786 (1968), the damage done by the miners before the taking date, and the value added by their improvements, had both alike been ignored, in a sort of washout. The value assigned to the mineral property on the taking date was based on speculative purchases and sales of mineral property, and there was nothing to show it was abated a single dollar because of prior removal of minerals. On the technical side, we took the view that the United States having ratified and confirmed the miners’ acts, they became acts of the United States, and takings. The found taking date having been an average or composite one, nothing having been found to have happened on the chosen date, it was not inconsistent with an earlier taking date for the mining claims actually staked before December 31, 1862. In fact, in stipulating use of that date for valuation, the parties expressly reserved the right to question any order the Commission might issue concerning taking dates. Thus our view was that the prior proceeding had adjudicated the liability of the United States for all takings,
The theory of the second Northern Paiute case thus was that against that tribe there was only one wrong, a taking, though one spread out in time, compensable under only one clause of the Act, clause 4, section 2, and that the attempt by the Commission to generate out of it two proceedings and two awards, was error. In Goshute, on the contrary, there were two wrongs, the unfair treaty of 1863 and the taking of 1875. They were compensable under two different clauses, 5 and 4, and compensation was assessed separately but simultaneously in one proceeding, a prudent joinder which gave good assurance against double compensation for the same thing. In both cases we rejected the Commission’s "trespass damages” theory. The view put forward in Northern Paiute of imputing the miners’ staking of claims to the United States, making the United States a taker pro tanto, could not apply in Goshute. As we then pointed out, the miners entered under the license the Indians had granted in the 1863 treaty, and not adversely to the Indians, and, therefore, their entries effected no takings. Conversely, as we also held, they acquired no title to minerals in the ground, and thus their entries could in no way have anticipated or forestalled the 1875 taking stipulated as the valuation date. That the 1875 date in Goshute was just as much a composite, average, or jury verdict date as the one in Northern Paiute is obvious, but the point was that the composite could not have included, as one of its elements, takings by miners, imputed to defendant. In Goshute, the Indians received royalties for pre-taking removal of minerals by way of reformation of an unfair treaty, but in Northern Paiute, no such view of the matter was possible.
The question of supplemental "trespass damages” came up again in United States v. Fort Sill Apache Tribe, 209 Ct. Cl. 433, 533 F.2d 531 (1976). In that case there was likewise no previous unfair treaty, so the Goshute rationale did not apply. The findings of the Commission were such as to rule out the theory of imputing to the United States takings by
It will be obvious, we think, that whether a magic date is called a taking date or valuation date, and whether it is found by the Commission or stipulated is irrelevant in deciding whether to follow Goshute. What sets Goshute apart is that there are two kinds of wrongs, not one, with entirely different impacts on the fortunes of the Indians, and compensable under different clauses of the Act.
As we indicated in Goshute, 206 Ct. Cl. at 411, 512 F.2d at 1403, the absence of any allowance of credit to the United States for whatever it or the miners might have done to enhance the taking date value, before the taking, was troublesome. We noted, however, the nonuse in the award of speculative values that the miners might have created, the absence of any contention by defendant that the taking award was enhanced by such causes, and the predominance of actual or estimated quantities of minerals in both the pre-taking and taking portions. We cannot insist on perfect awards. The case would be different if defendant had made offers of proof before the Commission to show that the miners’ presence and activities in the area, or those of others, made possible by the treaty, did enhance the value and affect the amounts awardable for the taking. As things are, we can only guess that such an effect occurred. On the other hand, the Commission might have held that in correcting an unfair treaty it should consider what was known on the treaty date, to make a corrected treaty that fair-minded treaty commissioners and knowledgeable Indians would have thought proper then. It might be thought unlikely that such negotiators would have speculated about future rises in land value and future takings. In this regard, the Goshute case, with an unfair
At any rate, though we think Goshute was rightly decided, whether right or wrong it is an all-fours precedent here that could be overruled only by the full court en banc. The case cannot be distinguished from Goshute in any feature that is relevant.
Accordingly, the plaintiffs appeal is overruled, the defendant’s cross-appeal is overruled, and the judgment of the Commission is
Affirmed.
Rehearing
April 3, 1979
MOTION FOR REHEARING
ORDER
This case is before the court on the appellant’s motion for rehearing.
We heard oral argument on the appeals of both parties on November 28, 1978. Thereafter, the case was in the hands of the court, under submission. At that time appellee United States was strongly opposed to further delay, and no suggestion was offered that any stay for settlement negotiations was desired, at least, none by defendant. On December 4, 1978, the court met in its so-called assignment conference, a decision was tentatively agreed upon, and the writing of an opinion assigned. The opinion was written and circulated, and voted approval at a decisions con
The joint motion filed February 15, 1979, apparently was intended and understood by the parties to withdraw the case at least temporarily from submission to the court. We must strongly reject the alleged right of parties to withdraw cases from submission for settlement negotiations, except in extraordinary circumstances not here present. When parties join in submitting a case, whatever else they differ on, they agree that the next order of business is for the court to make its decision; and the sooner it makes it, the better. Settlement can come earlier or later. Any interruption of this process makes a mockery of the orderly and expeditious conduct of court business. The motion of February 15, 1979, was denied for good and sufficient grounds.
Now the court has stated its decision and it is subject to the usual right of the parties to move for rehearing or to apply to the Supreme Court for certiorari. Appellant has moved for rehearing, and both parties have again requested a stay. As a matter of fact, even without a stay, the clerk could not forward the judgment certificate to the Treasury while the motion for rehearing was pending unacted on, and the legal effect, whatever it may be, of payment, could not occur.
The parties are granted a stay of further proceedings until May 15, 1979, but in light of the apparent nonuse of settlement negotiation opportunities over the last twenty-eight years, it is on strict conditions to assure that there will be no further delay. The stay will not be extended after May 15, 1979, and the present judgment of the court will not be modified pursuant to any agreement or stipulation
It is so ordered.
On June 1, 1979 the court denied appellant’s motion for rehearing filed March 7,1979, and stated that the period of extended stay to May 15, 1979 had expired with no further supplemental stipulation, motions, briefs or filings by the parties.
No brief was filed by counsel for the Temoak Band of Western Shoshone Indians, Nevada, with regard to the motion for rehearing.