United States v. City of Tacoma, Washington

evidence, we the other conjunction with that, should defense counsel

conclude while requested to the access given

have been

documents, nothing those doc- there was -ulti- changed that would

uments agents had

mate determination support their suspicion

reasonable cause probable tank and gas

search of the Cedano-Arellano. arrest

IV. Conclusion. dog’s pertaining

The documents case were ma- sought this

qualifications They the defense. preparing

terial disclosed to the defen-

should have been circumstances of this

dant. Under

ease, failure to do so was find that the we error, sug- bywe no means

harmless but cases. will be true all

gest that

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, TACOMA, WASHINGTON,

CITY OF

Defendant-Appellant.

No. 00-35070. Appeals,

United States Court

Ninth Circuit.

Argued Oct. 2001.

Submitted Feb.

Filed June

Kenneth G. Kieffer and L. Timothy Ash- Gordon, craft, Thomas, Honeywell, Malan- ca, Daheim, PLLC, Tacoma, Peterson & WA, appellant. for the Stahr, H. Appellate Section, John Envi- Division, ronment Natural Resources Justice, Department WA, D.C., for the appellee. FERGUSON, KLEINFELD,

Before: GOULD, Judges. Circuit GOULD; by Opinion Judge by Dissent Judge FERGUSON.

OPINION GOULD, Judge. Circuit action, brought The United States behalf itself and as for the trustee (the “Tribe”) Skokomish Indian Tribe members, asking declaratory judg- ment to invalidate the 1921 condemnation brought Taco- (“Tacoma”) seeking ma land void thought made long transfers the Tribe by Tacoma to be settled. After cross mo- summary judgment, tions for the District motion, granted the United States’ invalidating proceedings. the condemnation jurisdiction We pursuant 28 U.S.C. and we affirm. Indian Superintendent I Taholah School, By about the condemnation. letter History Factual A. October Brush told Sams of Proceedings 1. Funk Condemnation clerk of and said that the plans develop began Shelton, to Washington Tacoma court in held the hydroelectric power project by judgment, the Cushman sub- required amounts Riv- of Skokomish the North Fork on ject government’s approval. to the federal end, Tacoma con- instituted To er.1 up “take Brush asked to this matter Sams court, in en- state demnation take such proper with the authorities and Funk, No. 1615 Tacoma titled necessary protecting as are towards' steps against private landown- (Wash.Super.Ct.), government.” pro- in the of the area property ers with responded, by Sams letter of November The landowners included posed project. 14, 1921, that the “are each and allotments who held allotted five tribal members allotments, the title patented all trust held in fee allotments were lands.2 Three in the remaining the land Government of reversionary with a by tribal members and such lands are not in States. Two were interest the United subject proceedings.” to condemnation On for by in trust held day Sams also wrote the Commission- benefit. The United tribal members’ of Indian Affairs at the Department er Funk. was not a States the Interior: “I have the Assistant notified 20,1920, a bench trial was On November Attorney City of the that con- Tacoma project of the on whether construction held against demnation these trust later, year a public use. About was lie; patented lands will not that the title project court state held yet remains the Government public use and condemnations only United States and their method appropriate necessary and for the were securing title lands the fee to such project. The state court ordered Act of 1910.” pursuant June $1,411.61 damages for pay portions perpetual allotments and easements two By letter of December E.B. three. The court entered condi- across Meritt, of Indian Assistant Commissioner order, subject this tional Interior, at Department Affairs of the government’s approval, the United States al- instructed Sams that condemnation of through “proper authorities.” public purposes lotted lands for was autho- Thereafter, Brush, by March Percy P. Assistant rized Section 3 Act of (codified Sams, Attorney, B. City contacted William Stat. 1083-84 190-91, ed.1993); (3d project two dams. Portions of see also United 1. The includes Arenas, project the Skokomish Indian Res- are on States v. Cir. ervation, including at the Powerhouse No. 1946). Congress implemented policy end of reservation. Some transmis- north Getches, through allotment See several acts. 2 to Tacoma sion lines from Powerhouse No. portions supra, at the Sko- 190-98. Some go here across the five Skokomish allotments komish reservation were allotted under the at issue. (the Point), Treaty treaty Tribe’s of Point No portions other under allotted Communally tribal was allotted held land General Act of 25 U.S.C. Allotment pursuant Congressional policy of assimi- 331-34, 341-42, 348-49, §§ began and extended lation 1880s many which have been subse sections of Getches, al., David H. et until repealed. quently Materials, Federal Law: Cases and Indian 357). May acres of By § letter United States Forest land. U.S.C. Service ¶ Mount, Tacoma, Assistant United At- City 61,197 61,- 87 FERC W.W. torney for the Western District Wash- 732 n. 1999 WL 323705 “In ington, similarly advised Sams: view of FPC order said that “the will license 357,] I am inclined believe U.S.C. [25 interfere be inconsistent with the procedure adopted that the purpose for which reservation affected respects suit this condemnation is in all thereby acquired.”3 was created or Id. legal.” passed along Mount’s letter Sams After the FERC issued an order the appraisement Meritt said that extending right by granting the same Ta- “fully of the lands was sufficient and fair coma annual licenses years. next 24 just to all concerned.” 1998, started, In after this action

By letter of Meritt re- FERC an granting June issued order Tacoma a Sams, sponded approving 40-year the state operating license to continue judgment directing court’s conditional and project. City Cushman Tacoma^ “present original Sams to of this letter 61,107, (1998); FERCT WL Shelton, ¶ to the clerk of the court at Wash- Tacoma, 61,311, see 86 FERC ington, request with that the amount (1999). recog- 1999 WL 177637 The order you be han- awards be turned over property nized Tacoma’s interests enti- dled for benefit Indians allotments, five but acknowledged that this approved signed tled.” The letter was and litigation materially would affect whether Goodwin, by Secretary F.M. Assistant the lands were considered “reservations.”4 July In Department the Interior. ¶ 61,107 61,547 55, 84 FERC & n. 1922, directions, with complied Sams these WL In 608611. March the FERC court, gave letter to the clerk of the rehearing, issued order on that finding to him given and asked the funds be the five allotments fell within FPA’s for distribution. definition of “reservations” based on the grant summary judg- District Court’s Subsequent Proceedings

2. and ¶ 61,311, ment. 86 FERC 1999 WL Events 62,075. 177637at parties point The also several events

that occurred between the 1921Funk deci- b. Tribe Skokomish Indian v. France sion and institution of this action in In against 1996. an action the State of Wash- Tacoma, ington, corporations and several Agency Proceedings a. individuals, sought quiet the Tribe title on next to the tidelands reservation Federal Power Commission (“FPC”), by the Canal. predecessor Hood See Skokomish Indi- the Federal (9th France, Energy Regulatory an Tribe v. Commission Cir.1963). (“FERC”), 50-year part” issued a “minor not a United States was license, authorizing Tacoma to flood 8.8 action. reservations, military the FPC determined that its licens- within Indian reserva- authority ing encompassed project. tions, the entire land lands other and interests in Elec., See Pac. Gas & 29 F.P.C. States, withdrawn, by owned 4558WL private appropria- reserved or withheld from disposal public tion and under the land laws.” 4. The Federal Power Act defines reservations 796(2). 16 U.S.C. forests, tribal "national lands embraced for damages trespass. September court held that the Tribe’s On

The district barred filed a challenges the FPC license were motion It held by equitable estoppel. entry judgment laches and of final to terminate discovery. contending was a collateral attack opposed, also that the action by judicata, identify the issues all discovery res was needed to barred judgment. raised the Tribe The dis- parties should have been bound hearings. in the granted the United FPC trict court the motion and entered affirmed, holding 14,1999. there was Ta- final on December We findings timely on which January clear error in coma appealed its conclusions District Court based part the reserva-

the tidelands were II tion. grant summary We review judgment de Delta Bank v. novo. Sav.

c. Resolution Tribal F.3d In March the Skokomish Tribal Cir.2001) (citations omitted). We deter passed a resolution on the Funk Council mine, viewing light the evidence in the effect the state proceedings, to the nonmoving party, most favorable jurisdiction the court lacked to condemn any genuine whether there are issues property and that neither the United material fact and whether the district party nor Tribe was a the States the correctly applied court substantive law. action, resolution required. as was The omitted). (citation Id. the of Indian Affairs asked Commissioner (1) Tacoma contends: that the United steps litigation to “undertake and all other standing bring lacks this action States necessary aside or otherwise secure to set (2) that, notwithstanding and the conten- illegal from relief condemnations.” Tribe, tions of States and the United proceedings the Funk or the History actions of B. Procedural effectively conveyed proper- United States May 1, filed On United States ty interests in the five allotments. We action, seeking this federal court for that the standing hold United States has declaratory judgment Tribe that would action, pursue this and that the United proceedings, invalidate the condemnation convey did in the States not interest and for The seeking damages trespass. five allotments. liability district trial of court bifurcated summary remedy. motions for Cross Standing A. judgment liability followed. (1) requires: Standing that 20,1998, court On the district November (2) plaintiff fact; injury an suffered judgment granted summary to the United that there is causal “a connection between motion States denied Tacoma’s cross of’; injury conduct complained and the court summary judgment. The district that the there is likelihood standing, held the United States had injury will be redressed a favorable it equitably estopped, not was Lujan Wildlife, decision. v. Defenders of condemnation 555, 560-61, 112 504 U.S. 119 S.Ct. brought

void court and because state (1992). 351 L.Ed.2d not party. the United States gaining summary judgment After on lia- The meets the United States See, bility, e.g., requirement. States to seek first United declined

579 Hellard, v. 64 322 U.S. S.Ct. Tacoma also contends that the United (1944) (“Restricted 88 L.Ed. 1326 Indian States cannot the redressability meet re- property quirement, land is in which the United because the United States has interest.”). it, Tribe, States The not proved has United or the Tribe’s injury States to its property has suffered members have a current interest in the allotments, rights Thus, runs, all whether five allotments. argument United States’ interest for Tribe is fee it is unclear declaratory judgment how a simple reversionary. See Heckman v. can alleged However, redress the wrong. States, 413, 431, 437-47, we conclude that alleged injury would (1912). through S.Ct. L.Ed. be redressed the cancellation of injury United States also suffered an setting the state and the aside of See Nation conveyances. trustee. Seminole v. Although Unit- be not 286, 296-97, ed yet known precisely S.Ct. which individuals or (1942). generally relief, 86 L.Ed. 1480 entities would from benefit U.S.C. And United States United States would benefit as land owner governmental has an independent, Thus, interest and trustee. Tacoma’s redressabili- when it made a ty argument has been fails. We hold that the Unit- In- standing condemnation restricted ed proceed States in this Hellard, dian lands. 322 U.S. at action. 985; Candelaria, Validity Conveyances B. 432, 443-44,

L.Ed. 1023 pub- Condemnations of allotted lands for purposes lic are governed by 25 U.S.C. argues the United States 357, § provides: which cannot fulfill the causal connection require severalty Lands allotted in to Indians ment, alleged harm not urging is may be condemned for public pur- fairly to traceable Tacoma’s actions be pose under laws of State or approval cause the federal officials’ Territory where located in the same judgment intervening conditional manner as land owned in fee be alleged ig cause of the harm. But this condemned, money and the awarded as primary nores the fact that the initial and damages paid shall be to the allottee. alleged injury causes of the were Tacoma’s § institution of the Funk to appears give power While 357 a broad Tacoma, failure to name the United States a of Supreme as condemnation to fairly defendant. There remains “a interpreted provision trace Court has nar- plaintiffs States, able in rowly. connection between In Minnesota v. United jury complained-of 382, 386, 292, an the conduct 305 U.S. 83 59 S.Ct. L.Ed. (1939), that, defendant.” Steel Co. v. Citizens Court held Supreme , § Better 523 U.S. 118 S.Ct. under is an in- “[t]he States Env’t (1998) (citation 140 L.Ed.2d 210 dispensable party ... con- defendant to omitted); States, Bowling see v. United [regarding demnation trust al- 233 U.S. A proceeding against property 58 L.Ed. lotments]. (1914) (“the capaci United States has which United States has an interest (cita- ty to the purpose setting against sue for is aside a suit the United States.” omitted). conveyances of lands allotted to Holding Indians tions the state care, under its where upon initially restrictions court which the suit was transgressed.”). jurisdiction, alienation have been brought lacked not- not a to to which the United States is permission § 357 “contains ed that 389, 59 a state.” binding in the court of Id. has no effect but that the United sue explained 292. The Court further may sue cancel the States “[tjhere why persuasive reasons are conveyance pur- and set aside the made construed as autho- should not be [§ 357] suant thereto. and that a suit in a state court” rizing States, (citing Id. Sunderland judicial of controver- determination “[t]he 64, 69 L.Ed. 45 S.Ct. lands been com- has concerning sies (1924); States, Privett v. United exclusively to federal

monly committed (1921); 41 S.Ct. 65 L.Ed. 889 (footnote omitted); Id. see also courts.” & Inv. Bowling Miami Co. v. United Fid. & States United States v. United States, 34 S.Ct. 58 L.Ed. 512-14, Co., 60 S.Ct. Guar. (1914)). that a (holding 84 L.Ed. 894 Although Minnesota was issued after jurisdiction acted without Missouri court proceedings, the 1921 condemnation in- adju- judgment, purporting that its terpreted that came into effect in statute against the United dicate cross-claim 1901, two decades before the condemnation federally recognized and a Indian proceedings. interpretation Minnesota’s immu- sovereign tribe without a waiver is void). properly thus considered nity, was binding attempted as to all condemnations relevant, particularly Minnesota governed by § allotted lands re- two of the allotments that because pro- gardless whether condemnation in trust were held purported condemn ceedings predate postdate the decision as were the allot the United in Minnesota: Minnesota; three, remaining ments Indians, although held in fee individual applies [the Court] When subject restraints on alienation parties rule of federal law to the before reversionary interests in the United it, interpreta- controlling rule is the long It been settled that those States. given tion of law and must be federal are treated types two allotments to be retroactive in all cases still full effect identically Congressional control and review open direct and as all alienability. limitations on See United events, regardless whether such events of 467, 470-71, 271 46 Ramsey, States v. U.S. or predate postdate [the announcement ] (1926). 559, S.Ct. 70 L.Ed. 1039 More the rule. over, holding regarding trust Minnesota’s Taxation, Harper Dep’t v. 509 Va. U.S. allotments relied on earlier hold expressly 86, 97, 2510, 113 125 L.Ed.2d 74 S.Ct. ings allotments in which regarding (1993) added). (emphasis reversionary a interest. United States held Moreover, Supreme in Court’s Minnesota, 1, at 305 386 n. 59 S.Ct. U.S. terpretation 25 U.S.C. in Minnesota, 357 Minne ear 292. As those indicated “change” cannot considered a similarly in their sota be holdings lier strict judicial operative theory be law. The of a requirement United States adjudicat joined interpretation of a statute that the inter court is rights allotted land: ing pretation gives meaning of the statute inception, merely from its and does not with re- patents In the case of fee give interpretation be used from the on it straints alienation is established of the v. Roadway of the interest date decision. Rivers that an alienation Indian’s judicial Express, in a suit 511 114 by in the lands decision U.S. S.Ct. 128

581 by explained L.Ed.2d 274 As was and the federal purported officials who Rivers, judicial ratify Supreme Court court’s decision au- “[a] lacked the thority independently construction of a statute is an authoritative to alienate the allot- Clarke, of what statute be- ments. See statement meant United States v. 445 fore as well as after the decision of the S.Ct. L.Ed.2d (1980) Id. giving (holding “only case rise to that construction.” in ... a 312-313, judicial proceeding S.Ct. 1510. In a formal footnote [allotted] rule, acquired” lands such as this by city attached above statement of or use). public law, the Court elaborated: state Under settled affirm we must the correct decision statute, it when this construes court district and conclude that the 1921 understanding explaining its of what the condemnation were without has continuously statute meant since the conveyed effect no interest to Tacoma. statutory date it became law. when authority cases the Court no de- Here, there can be argument part from the congressional command equitable estoppel bars the United setting effective date a law that it because, States’ action when the govern has enacted. tribe, ment acts trustee for an Indian it n. Id. at 313 1510.5 See, subject is not at all defense. sum, e.g., Minnesota and its authori Irrigation United States v. Ahtanwn Dist., Cir.1956); tative construction of section 357 control. see superior juris court in Funk lacked also Cramer v. United diction to condemn the five Indian allot L.Ed. 622 that, by ments in which the (holding United States contin suit interest, property ued to hold valid and set patent Indian-occupied aside land the proceedings granted non-Indian, are therefore void. No land to a the govern approval subsequent by or ratification fed ment could estopped bringing not be from remedy eral officials could underlying the suit on behalf posses of the Indians in jurisdictional earlier, problem, United Fid. sion by unlawful or declara “act[s] Co., & Guar. agents”); 60 S.Ct. tion[s] officers Cato v. incorrectly applied retroactively, 5. The relies dissent on a dictum in statute and that there United.States Estate "justified was no reliance” the Sixth Cir- (1970), 90 S.Ct. 25 L.Ed.2d 312 purchaser property. cuit’s view the of the argue applied that Minnesota cannot be retro- Id. at 90 S.Ct. The Court said here, actively theory on the Ta- advanced ruling provide the Sixth Circuit’s did “justifiably coma relied” on the federal "justified necessary reliance” to bar retro- authorities’ statements that the transfers were application active Court's in- permissible. Donnelly, government In added, terpretation of the statute. The Court did against filed but not a tax enforce lien cases, construing "In rare decisions federal Donnelly's property, using procedure a effect, might statutes be full denied retroactive impermissible had been deemed under the instance as where this Court overrules its interpretation Sixth Circuit's of the relevant own construction a statute ... but this is years federal statute. Seventeen after added) (cita- (emphasis a not such case.” Id. decision, year Sixth Circuit and one after omitted). Similarly, tion the case us is before Donnelly property, sold the Supreme and, Donnelly, a case as in rejected Court the Sixth Circuit's view in an justifiable theory rejected reliance should be sought government unrelated case. The then general apply and the rule followed to statuto- against purchaser enforce lien ry interpretation predating Donnelly's property. to events inter- Su- In preme interpretation pretation. Court held that its majority general cites for the Rivers United Cir.1995) judicial rule interpretations “the (noting proposition well-established as trustee retroactively applied the United States generally that a suit statutes are subject Indian is not enactment, of an tribe on behalf most the date of succinct defenses”). delay-based to state articulation of this squarely controlling principle was announced

Ill believe, I I Donnelly, the case which as v. Minnesota, we we are bound Because below, analysis. our should control discuss conveyances five allot- of the hold that the “[ajcts Although Donnelly held summary invalid. affirm ments were We applied uni Congress generally are to be to the United States. country from formly throughout onward,” their Don date of effectiveness AFFIRMED. (em at S.Ct. 1033 nelly, 397 U.S. FERGUSON, dissenting. Judge, Circuit added), it stated that certain phasis also Although “justified I respectfully kinds of reliance” could “warrant I must dissent. that, majority general as a withholding of a agree application with retroactive de rule, judicial interpretation of regard a Congress we construing a cision statute statement of as an “authoritative statute it.” Id. 90 S.Ct. intended as well as the statute meant what before Thus, pre Donnelly squarely dealt with rise to giving the decision of the case after cisely currently the issue confront. that we construction,” Ex- Roadway Rivers v. contrast, from By language Rivers 298, 312-13, 114 press, majority upon that the relies was written (1994), the in- I believe 128 L.Ed.2d response entirely legal to an different exactly kind of presents stant case than the here. question presented one case” which the Court “rare Rivers, grappling the court was with the recognized Donnelly States v. Estate of Act question altering whether [a “sole full retroac- might exempted from the be in a a rule of law established construing a stat- tive effect of decision Rights interpreting case Civil Donnelly, 397 v. ute. See United States applies to when it pending cases Act] 1033, 25 L.Ed.2d 90 S.Ct. U.S. 303, 114 S.Ct. 1510. enacted.” (1970). in cases I would hold response question, the Rivers one, the deci- such as the instant in which Congress court held “when intends to announced retroactively applied sion statute, a rule of embodied interpretation supersede “new” of the law one consid- compelling equitable in which both ... to reach our decisions its intent con finality principles erations as well as the ‘corrective’ amendment preceding duct weigh against application retroactive 313, 114 clearly appear.” Id. at must way to decision, general give must rule 1510. While the Court noted its belief that notice, rea- of fair “familiar considerations statute, this Court construes it is “when reliance, expectations.” sonable and settled understanding of what the explaining Prods., 511 Landgraf USI Film continuously has meant since the statute L.Ed.2d 114 S.Ct. law,” id. at 313 n. date when became 229 1510, squarely 114 it did not address S.Ct. scope the of retro appropriate the issue of matter, not find the an initial I do As application decisions in majority active of its own from Rivers language which statutes, preclude nor did it binding terpreting to in this case. While quotes be

583 758, 1745, limiting principle to the 115 S.Ct. possibility of L.Ed.2d 820 (1995). Reynoldsville recog rale.1 Casket also general nized principles might certain limit give “due deference” generally While we application retroactive of a new rale even dicta, Supreme to Court see United States in pending cases which were when the Baird, 450, Cir.1996), v. 85 F.3d Reynolds novel decision was issued. See cannot and should not be such deference Casket, ville U.S. 115 S.Ct. Batjac Productions Inc. v. unlimited. See 1745. I believe principles these same are Corp., Home Video GoodTimes case, applicable in this in particular gener (9th Cir.1998) (citing al principles equity “reflect[ing] both CraWley, v. F.2d 292-93 significant pol reliance interests and other (7th Cir.1988) “noting as reasons for re icy justifications,” law, “principle[s] (1) dicta, jecting unnecessary such as such that of ... ‘finality’ as that limit[ ] (2) case; the outcome of the can be deleted principle retroactivity itself.” Id. at (3) not affecting argument; without 759, 115 1745. For all of these rea (4) case; in grounded the facts of the issue sons, Rivers, Donnelly, and not should as an in present addressed was issue control in this case. case.”). particular, dicta should not controlling be when there is another case Under the Court’s decision in squarely point. Humphrey’s more See States, Minnesota v. United Ex’r v. (1939), 59 S.Ct. 83 L.Ed. 235 (1935) (“ ‘general 79 L.Ed. 1611 retroactively applied should not be to the expressions, every opinion, in are to be in parties Although this case. the Su- taken connection with the case in which preme clearly Court has never set out a they go those If expressions are used. limiting principle judicial to retroactive case, beyond they may respected, statutory interpretation, I believe ought but not to control the in Donnelly Reynoldsville decisions suit, subsequent very point is when the provide ample Casket us with guidance. ”). presented Assuming for decision.’ particular, presence I believe that the language ap the broad is what it Rivers following full prohibits factors retroac- pears trump be—dicta—it should not application tive of the decision Minneso- significant equitable finality con (1) ta in presence this case: of a novel play cerns at this case. statute, regarding decision “justifiable can Rivers, claim In a subsequent case its earlier that, interpretation reliance” on general, Court also announced (2) statute; govern- fact that legal principles, applied even when “[n]ew statutory ment did not con- retroactively, already do not adhere apply cases closed,” rely particularly present upon cases that struction now seeks “special finality-related Reyn underlying proceedings; concerns.” time of the Hyde, oldsville v. underlying proceedings, Casket Co. the fact that the portion majority problems post 1. The of Rivers which the ex enormous in the crimi- facto upon, support relies which cites no or author- nal context. The made it ity reasoning, particularly frag- for its seems a abundantly application clear that retroactive rest, upon given ile foundation which to judicial interpretation of a novel of a criminal counterbalancing fairness concerns which the Tennessee, prohibited. Rogers statute is Indeed, City of Tacoma if we raises. 121 S.Ct. face, quoted language take the Rivers on its L.Ed.2d 697 do, majority appears it would raise 584 of entirety, comply explicitly subject approval their with was

when viewed Allen, at of rule the States. See 393 U.S. purposes the the United spirit the and 572, (resolution as 817 of a case not as well all but 89 S.Ct. in Minnesota announced of required give clearly to a foreshadowed when resolution elements one the (4) effect; “subject disagree- the judicata the ser- issues is to rational proceeding res ment.”); Shoe, also U.S. by vacating raised see Hanover 392 finality ious concerns 499, at The lan- parties the have 88 S.Ct. 2224. “clear proceeding upon which § years, guidance the 357 no as eighty guage” provided relied for which over con- challenge proceed not to until to how a state should government did seek when land, stating nearly intervening demning merely the reserved sixty years after decision; (5) that statutory permitted the fact that no a state was to condemn in severalty to allotted to injustice prejudice alleged actual lands Indians. or 357; Donnelly, 25 at underlying from action. U.S.C. 397 U.S. have resulted the cf. 293, 90 S.Ct. First, plaintiffs in Donnelly, unlike the assertion, Contrary majority’s City Tacoma faced the task of inter vague provided preceding no the cases preting a statute more public- provided guidance how to with Minnesota guidance proceed as to City of Tribal lands. of Tacoma than statute. use condemnation Cf. 293, Bowling at 90 S.Ct. 1033.2 & Miami Inv. Co. v. 397 U.S. words, 659, 34 City In other of Tacoma faces 233 U.S. S.Ct. of, (1914), for all application prac the retroactive L.Ed. 1080 the Court focused law, authority a new least of the purposes, scope tical rule United State’s position land, in in “the regarding holding was allotted as measured Huson, for the capacity 1921. See Chevron Oil Co. 404 United States has sue purpose setting conveyances 92 S.Ct. 30 L.Ed.2d 296 aside (1971) (A care, rule of is created allotted to Indians its new law when lands under precedent on have past upon court clear where restrictions alienation “overrul[es] relied, ... transgressed been well as litigants [de [as which authority impression whose enforce complementary] cides] an issue first foreshadowed.”) not clearly resolution restrictions.” Court did [such] Shoe, (citing Inc. v. United hold that must be Hanover Shoe United States action, instead Corp., Mach. 88 S.Ct. named as reasoning authority 20 L.Ed.2d 1231 Allen v. “[t]he Elections, ... State Bd. States enforce restraint (1969)). impaired by any At without 89 S.Ct. L.Ed.2d cannot be action proceedings, time of Funk its Minne consent.” 233 U.S. added). foregone (emphasis

sota was not con 659 Privett v. United decision merely language clusion of Tacoma was unrea reiterated believing permissible Bowling, focusing it was on the need of the sonable in protect its interest only to enter a conditional own authority question, Donnelly 2. The court that the er who considered the noted decision had case, retroactively applied to be in that with the of Con- ... in accordance will [and] opinion v. Union Central in United States gress expressed [an in ... amendment Life Co., Ins. L.Ed.2d accompanying legislative statute] [statute], (1961), “merely construed history.” Donnelly, U.S. at 90 S.Ct. language accordance with statute, clear [consistently with] ... courts and oth- case, Interior, in in at but not all of the including the land issue officials— Sams, requirement suggesting even absolute the Assistant United States Attor- party that the United States be made ney, the Assistant Commissioner of Indian any involving action Indian land. See 256 Affairs, and the Assistant of Secretary the 201, 204, 65 L.Ed. 889 Department of the agreed to Interior — short, City In the of was consent to the condemnation approve and believing by entirely reasonable sum, judgment. the the United States securing the United States’ consent to the fully explored its options and exercised they proceeding, condemnation had com- complete control over the case for almost a implied plied any requirements with year. Donnelly, § at 357. 397 U.S. Cf. facts, In viewing these it is clear that the S.Ct. 1033. given power United States was more than Second, unlike the United States court, it would have had as a party the

Donnelly, government this case did including the court It given itself. the not it now “to be “adhere” what believes power unabashedly absolute protect its interpretation the correct of the statute” own interests and the of interests the Sko- the of underlying time the condemnation Tribe, adjudicate komish Indian its own proceeding, it cannot claim that thus now claims, and or of approve disapprove the “reap it should benefits of that adher- Moreover, judgment. proper govern- Quite 294. ence.” id. 397 U.S. at Department ment officials at the of Justice contrary, in case the United States Department and the of Interior exercised proceed- reviewed consented powers these and reached the conclusion effort, ings, and made no even after conveyances were valid and decided, or Minnesota was to seek review approved. should be Under the law as it proceedings. contest Cf. judg- stood the time the condemnation 292-94, 90 S.Ct. 1033. finalized, City ment was of Tacoma and judgment explicitly The 1921 conditional entirely the state court were reasonable in required “approval proper of the au- believing they complied had with both the thorities of the United States Govern- short, spirit letter of Sams, ment.” While the Superintendent purpose of Court’s hold- of the Indian on School the reservation by ing in fulfilled Minnesota been City initially whom the of Tacoma ad- particular set forth in this circumstances notice, initially its expressed dressed con- case.3 cerns of regarding validity the con- simply suggest It is proceedings, of indefensible demnation over the course Tacoma, through nine fault its next months and after research own, must Attorney the Assistant bear burden the United investigations acting adequately protect Sams States’ failure to either be- half Department of officials at the of the own interests the interests else, nothing equity requires judicial law-making.”); If that caselaw see applied Peck, considering pur- without 26 L.Ed. 46 pose goals being laws that are equity (applying principles fundamental interpreted. Bd. Com’rs v. United against government a con- L.Ed. 313 tract); Jackson, Omaha Indian Tribe v. cf. (1939) (“Instead rule, choosing rigid (8th Cir.1988) (applying F.2d upon Court has those drawn flexible consider- action). quiet principles equity in a title equity ations which are established sources (Harlan, J., previously recognized concurring). S.Ct. 1033

Tribe. We Rivers majority’s application of lands of mismanagement Indian facts very significant finality of case raises to of said out character cannot to be be concerns, apparently proceedings as all Congress thing of which with the sort that the United States otherwise validated the of the Interior has Department the Minnesota decision will preceded throughout the said doing [stet.] been vacated, despite the fact that all of now be history dealings the Government’s the have parties involved relied the history ... the Indians [a] [which] with eighty resolution of these issues for over the ‘From largely supports statement: years. nation, very of this the beginnings which federal chief issue around Indian Finally, fact United States does been, not policy has revolved has how injustice not allege any or unfairness nations assimilate the Indian whose Funk from fur- proceedings resulted usurped, lands but how best trans- we ap- supports rejecting ther the retroactive fer lands and resources to non- Indian of Minnesota. plication The United States Indians’. does not contend that the Tribe did not land, a fair for the receive award or that Irrigation United States Ahtanum in Cir.1956) proceedings way other Dist., Thus, or it inequitable. untoward is not Mark, Raid The Dorothy (quoting Van de purpose declaratory Reservations, Harper’s Magazine, clear what relief on the serves, government requests except 1956). Nevertheless, “[t]he Mar. Secre it to a renegotiate allow transaction which mistakes, tary poor Interior’s] his [of every opportunity years it to negotiate had judgment, overlooking ignoring or his ago. point While one United States rights, the true of the Indian’s his measure holding against that a it asserts would lack of skill or determination bargaining “prevent meeting re- [it] from trust [its may power, add of his up to abuse but sponsibility to the tribes and individual it, or make his act ultra negative do not interest,” public and] Indians harm the it vires.” Id. at 338. While it is arguable me seems to that the United States its fidu breached if one but itself to its blame own officials ciary duty failing to protect to the Tribe fail exercise trust responsibilities their in the Funk proceed the Tribe’s interests faithfully diligently. history pretend ings, we cannot rewrite legal consequence its actions not did have case, judicial interpre- In this we have that they when it is clear did. of a that essentially operates tation statute addition, the major- fiction in which as rule of historical a new law. we have indulges ity particular problematic municipality every that made reasonable comply the case in effort to the law it context of which under- with stood at nearly a Funk lying proceedings occurred centu- the time of the proceeding. Most ry ago. importantly, process, not While the condemnation entirety, the doctrine of res formally complied bound when viewed with letter, judicata made if purpose goals, because was not not the Funk, unlike the transaction Donnel- Minnesota’s holding. Finally, we have ly, Funk proceedings “ac- no one re- now which now asserts finality quired degree inequity, that the or and which sulted unfairness decades, de- rights the-parties unchallenged should be considered remained full spite government’s knowledge frozen.” both the effect those intervening interpreting decision facts, we light

statute.4 these should

impose the burden of the United States’ protect

failure its own the Tribe’s

interests on the United not the

City Tacoma.

I unsympathetic am members

of the Tribe interests whose disadvantaged

been because disgraceful mismanagement, indif-

States’

ference, Nevertheless, and inaction.

majority’s form over approach substance the burden of the United States’

shifts a diligent

failure to act trustee onto municipality everything

state did power to ensure that the United States opportunity

had an validate the land that underlies instant case.

transfer I

Because do not believe that either ju- statutory retroactivity Court’s

risprudence principles fundamental result,

equity countenance such a I dissent.

Stephen HO, Petitioner-Appellant, CAREY,* Warden; Attorney

Thomas L. California,

General of the State of

Respondents-Appellees.

No. 01-16823. Appeals,

United States Court of Circuit.

Ninth

Argued Submitted Jan. 2003.

Filed June * Indeed, specifically requested Carey prede- Tribe Thomas L. for his substituted government intervene on its behalf in Anthony cessor Newland as Warden of Solano 1977, yet government nearly still waited 43(c)(2). R.App. State Prison. Fed. P. twenty years taking before action.

Case Details

Case Name: United States v. City of Tacoma, Washington

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 4, 2003

Citation: 332 F.3d 574

Docket Number: 00-35070

Court Abbreviation: 9th Cir.