531 F.2d 495 | Ct. Cl. | 1976
delivered the opinion of the court:
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. 01. 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
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).
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.
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, 173 Ct. Cl. 928, 934-35, 355 F. 2d 936, 939-40 (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, 174 Ct. Cl. 131, 135-39, 355 F. 2d 945, 947-49 (1966). In particular we have held that an order definitely denying intervention, on the ground that the intervenor had no right, is sufficiently
Though it was not formally labeled a motion for intervention, the appellants’ petition to the tribunal below was equivalent to such an application.
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.
n.
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
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 underlying dispute, which has culminated in this appeal, in reality is, and has for many years, been between appellants (and their predecessors) and the Counsel of Record for the Identifiable
It is in the light of these cardinal facts — (1) that appellants waited so many years to move before the Commission (2) although fully aware of, and opposed to, what was occurring in those proceedings, and (3) without giving any adequate excuse for the long delay — that we must assess their right to come in and participate at the current stage.
As we have already noted, appellants concede that Congress has addressed itself to that question in the Indian Claims Commission Act. Section 10, 25 U.S.C. § 70i, gives the exclusive privilege of pursuing the claim to a recognized tribal organization “unless fraud, collusion, or laches on the part of such organization be shown to the satisfaction of the Commission.”
The exception for “fraud” (as separate from “collusion”) can be disposed of summarily. Before the Commission appellants did not claim that the Temoak Bands or their counsel had defrauded the other members of the Western Shoshone Identifiable Group nor did the various proffers of proof made by appellants suggest such fraud. In this court appellants have expanded their argument to include strong intimations that the counsel for the Indian appellees deliberately misled the Indians as to the nature and scope of the Commission proceedings.
As for collusion,
The parties, instead of having a further trial on the valuation date or dates, then agreed to stipulate that the Nevada lands should be valued as of July 1, 1872, and the Commission accepted this agreement as an implementation of its prior finding of extinguishment. This stipulation was not collusion but a proper application of the admonition that parties to such litigation should attempt to agree, if possible, upon one or a few valuation dates rather than undertake a burdensome individual computation of value as of the date of disposal of each separate tract. See Creek Nations v. United States, 302 U.S. 620, 622 (1938); United States v. Northern Paiute Nation, 203 Ct. Cl. 468, 473, 490 F. 2d 954, 957 (1974); United States v. Pueblo of San Ildefonso, 206 Ct. Cl. 649, 664, 513 F. 2d 1383, 1391 (1975). Appellants gave
This determination of no collusion is inevitable under the record of this case. Appellants’ proffers to the Commission add nothing which is pertinent, and even if accepted at face value do not call for any change in the conclusion.
Appellants attempt to avoid this result by arguing that “collusion,” in Section 10 of the Claims Commission Act, is not restricted to its normal meaning of an underhanded, non-adversary agreement in derogation of the rights of the Indians but embraces also the presentation of any contention, even without bad faith or improper conduct, by the exclusive representative which happens not to accord with the view of other members of the identifiable group as to the entity’s best interests. In this instance, appellants say that there was collusion, as a matter of law, because the exclusive representative urged that the Indians’ title had been extinguished — 'and therefore compensation was due — rather than arguing that the Indians still owned the land under the Treaty of Euby Valley — and therefore that there was no claim under the Indian Claims Commission Act.
There are two main answers to this point. The first is that there is nothing to indicate that Congress used “collusion” in that expanded and strained sense, far different from its
Secondly, appellants’ unique understanding of “collusion” would undercut the position of the exclusive representative to which Congress assigned the chief management of the litigation. If “collusion” 'automatically exists every time a segment of the Indian entity disagrees with the litigating position taken by the exclusive representative, then there is little left to the “exclusive privilege of representing such Indians” granted by the statute to a recognized tribal organization. Congress could not have meant to leave the status of the exclusive representative so vulnerable to attack by any part of the represented group, no matter how minor or uninformed or how often voted down in the internal proceedings of the recognized entity.
But, say appellants, their position is not that of a minority but of the majority of the Western Shoshone Identifiable Group and that majority has had no way of causing the recognized organization, the Temoak Bands, to see the light. In the Commission below, however, appellants did not 'assert that a majority of the Identifiable Group was opposed to the Temoak Bands’ position in 1951 (filing of the claim) or 1957 (hearing on title) or 1962 (determination of title extinction) or 1966 (stipulation as to date of valuation) or 1967 (trial on valuation) or 1972 (determination of valuation) —the dates of the crucial steps in this proceeding. The only proffer was that the “vast majority of the people comprising the Western Shoshone Identifiable Group now desire to have the issue of the validity of their title” (emphasis added) to the Nevada lands determined before the close of Commission proceedings, and even then there was no support for this allegation as to the balance of views in 1974. In this court appellants have apparently widened their proffers to say that a majority was at all times against the
We hark back to the long lapse of time before the appellants filed their petition in 1974, and the prejudice to the other parties which occurred because appellants (and those they say they represent) allowed years to go by before they sought to insert their viewpoint into these proceedings. In view of this long and prejudicial delay, it is fair to insist that appellants buttress their allegations by more than self-serving generalities if they are to be accorded a trial.
The law furnishes helpful analogies for the proposition that the longer the delay, while pertinent litigation has been going on, the more impressive a showing the latecomer must make to be able to participate in the proceedings or to initiate a new problem. For instance, the longer the delay the easier it is to find laches (where laches applies). Gersten v. United States, 176 Ct. Cl. 633, 636, 364 F. 2d 850, 852 (1966). Intervention under Kule 24 of the Federal Bules of Civil Procedure, the 'intervention rule, is denied where delay is undue and the rights of the original parties may well be prejudiced. See, e.g., Gerstle v. Continental Airlines, Inc., 466 F. 2d 1374, 1377-78 (C.A. 10, 1972); MacQueen v. Lambert, 348 F. Supp. 1334, 1335-36 (M.D. Fla. 1972). Also, the law is developing a critical eye toward persons who, knowing that a pending action is designed to stabilize legal relationships that concern them, deliberately stay out of that litigation although they could easily enter it. Cf. Provident
This general principle that the later a person seeks to enter and disrupt an ongoing litigation the more of a showing he must make impels us, as it did the Commission, to reject appellants’ petition. The hour is very late and the showing is not strong. The fact is that at bottom all that appellants have demonstrated is that there is a dispute between an undetermined number of supporters of appellants and the organized entity, the Temoak Bands, over the proper strategy to follow in this litigation. The Indian appellees believe it best for all the Western Shoshone Identifiable Group to contend that the Nevada lands involved were “taken” by the United States and that therefore very large amounts of money are due the Identifiable Group for that extinguishment of title. Appellants, on the other hand, believe that the correct course to pursue is to insist that the
Plaintiffs make some feints against the constitutionality of Section 10’s reposing the privilege of exclusive representation in the organized entity (subject to the exceptions for fraud, collusion or laches). But it makes sense for Con
The Commission did not err in rejecting appellants’ petition to present an amended claim and for a stay of the proceedings.
Affirmed
Appellants’ theory, In brief, is that the Western Shoshones had recognized title to the lands which was never taken in largest part, and that, even if the ownership was merely aboriginal title, that title could only be ended for the purposes specified in the Treaty of Ruby Valley, supra — and title to most of the lands has never been extinguished on those grounds.
Section 22 of the Indian Claims Commission Act which provides that (1) payment of any claim, after a determination under the Act, shall be a full discharge of the united States of all claims and demands touching any of the matters involved in the controversy, and (2) a final determination against a claimant made and reported in accordance with the Act shall forever bar any further claim or demand against the United States arising out of the matter Involved in the controversy.
The Government did not join In the motion to dismiss the appeal or take any position thereon but it has participated in the consideration of the appeal in support of the Commission’s determination.
In oral argument before the Commission counsel for appellants said (Transcript of Nov. 14, 19714, at 54) : “We are trying to intervene. We would lite to just reopen that particular question.”
A separate oral argument was not had on the appeal itself but the parties were expressly given an opportunity to argue the merits during the argument on the motion to dismiss. Appellants did not avail themselves of that opportunity (through the merits were touched on, in the Indian appellee’s motion to dismiss), but the appeal has since been thoroughly briefed and the court does not deem further oral presentation to be required.
This statement is repeated in appellants’ brief on appeal at page 4. That brief also says (pp. 13-14) : “Repeatedly over tbe years, at these ‘General Councils’ [the Councils referred to were held in 1947 and 19591 and elsewhere appellants and other members of the Identifiable Group expressed the concern of the people that pursuing the Claim before the Commission would forfeit their claim of recognized title to the vacant lands within the Treaty boundaries.”
As it appears in the United States Code, Section 10 reads as follows:
“Any claim within the provisions of this chapter may be presented to the Commission by any member of an Indian tribe, band, or other identifiable group of Indians as the representative of all its members; but wherever any tribal organization exists, recognized by the Secretary of the Interior as having authority to represent such tribe, band, or group, such organization shall be accorded 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.”
Appellants do not claim laches on the part of the exclusive representative.
We could refuse to consider these new charges of fraud since appellants failed to present them to the Commission below. Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct. Cl. 426, 435-36, 443-44, 490 F. 2d 935, 940, 945 (1974).
Plaintiff appellee correctly points out that further delay In the termination of this proceeding may very likely cost the Western Shoshone Identifiable Group a very substantial sum of money since interest does not accrue on an award for the taking of Indian title until the amount is paid. See United States V. Alcea Band of Tillamooks, 341 U.S. 48 (1951).
Before the Commission appellants agreed that they would have to show “collusion,” properly interpreted, in order to be allowed to participate in this proceeding.
The proffers before the Commission simply spelled out appellants’ legal theory that the Nevada lands still belonged to the Western Shoshone Identifiable Group, asserted that appellants had protested the conduct by plaintiff-appellee of the litigation, asserted generally that the stipulation as to date of taking was prejudicial, said generally that the “Western Shoshone people, through their traditional leaders [i.e. appellants] and by their own individual actions have continued to assert their common ownership,” and alleged that the vast majority of the members of the Identifiable Group “now” desire to hare the issue of the current validity of their title determined before an award is paid under the Claims Commission Act.
Appellants’ brief on appeal says (p. 15) : “During the entire proceeding before the Indian Claims Commission, counsel for the Identifiable Group and counsel for the united States failed to inform the Commission that a majority, of the members of the Identifiable Group asserts unextinguished aboriginal and recognized title to the lands ■within the boundaries of the Treaty of Ruby Talley."
Section 8(b) of the Commission’s General Rules of Procedure calls upon a petitioner challenging the failure of the exclusive representative to take certain action to “set forth with particularity the efforts of the petitioner to secure from the duly constituted and recognized officers of said tribal organization such action as he desires and the reasons for his failure to obtain such action (such as fraud, collusion or laches) or the reasons for not making such effort” (emphasis added). The degree of particularity may well depend on the lateness of the application.
Appellants Raye sketched their substantive arguments for us In some detail (in the form of a copy of the brief submitted to another forum on those questions). The Commission below, without passing on the issues, indicated its great doubt as to the correctness of appellants’ position on the merits. 35 Ind. Cl. Comm. 457, 471-76.
Appellants’ fear, as we have noted, is that payment of the judgment will, under Section 22 of the Claims Commission Act, 25 U.S.C. § 70u, bar the Identifiable Group from thereafter claiming the land as still its'own. They say they seek a final determination of this issue of continued ownership before an award is made, and contend that a pending suit in the District Court for Nevada furnishes that opportunity. The Commission refused to stay its proceedings pending resolution of the Nevada action. We think this was a permissible choice on the Commission’s part. Postponement of the conclusion of the present proceeding will harm the Indians monetarily if their claim to continued ownership fails. See note 10 supra. It may also be noted that the bar of Section 22 does not fail until payment (see note 2 supra). If the majority of the Identifiable Group wishes to postpone payment, in order to try out the issue of current title, it can, of course, ask Congress to delay making the appropriation and direction which will be necessary to pay the award. Cf. Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct. Cl. 426, 454-56, 490 F. 2d 935, 951-53 (1974). That course is still open if the majority of the Identifiable Group can be persuaded to follow it.
Although claiming to be members of the Western Shoshone Identifiable Group, appellants say that they do not belong to the Temoak Bands and may also be suggesting that they are not eligible to join.
In Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct. Cl. 426, 456-59, 490 F. 2d 935, 953-54 (1974), we upheld the Commission’s allowing the Little Shell Band to participate in the proceeding as an “identifiable group” along with the Turtle Mountain Band and the Pembina Band. But the Little Shells had participated from the beginning and did not seek to enter in circumstances comparable to the late and eonflictual situation present here. The .flat statement, in connection with the court’s discussion of that question, that “[tjhe'exclusive right granted [by Section 10] to such an organization extends
Section 17 of the Claims Commission Act, 25 U.S.C. § 70p, calls for “evidence” on the substantive determination of a claim, but does not preclude the Commission from deciding issues such as intervention or participation on the basis of argument and proffers of fact. Similarly, the Commission’s Rule 30 requires a trial on such issues only when ordered by the Commission.