Sekaquaptewa v. MacDonald

619 F.2d 801, 1980 U.S. App. LEXIS 17276
Court of Appeals for the Ninth Circuit·Decided May 23, 1980·No. Nos. 78-3504, 78-3505·Published·Cited by 14 cases

Opinion

SKOPIL, Circuit Judge:

These are interlocutory cross-appeals from a partial summary judgment in a quiet title action. The action was brought to determine the respective property interests of the Navajo and Hopi tribes in the reservation withdrawn by the act of June 14, 1934, 48 Stat. 960 (hereafter “the 1934 Act”). We are also asked to decide whether the district court had jurisdiction over the Hopi claim for an accounting for all Navajo activities on land in which the Hopi Tribe has an interest. We affirm in part and reverse in part.

The Hopis have inhabited the area in controversy “[a]s far back as the Middle [803]*803Ages.” Healing v. Jones, 210 F.Supp. 125, 134 (D.Ariz.1962), aff’d, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963). The Navajos probably entered the area in the last half of the eighteenth century. Id. By treaty in 1868 the United States granted the Navajos an extensive reservation in the northeast corner of Arizona. 15 Stat. 667. The reservation was gradually expanded by a series of executive orders beginning in 1880 and continuing to 1918. An 1882 executive order withdrew a reservation (hereafter “the 1882 reservation”) for the Hopis “and such other Indians as the Secretary of the Interior may see fit to settle thereon”. Title to this reservation, on which the Navajos and Hopis are intermingled, has been extensively litigated in a separate line of cases.1

Neither the 1868 treaty reservation nor the 1882 reservation is at issue here. The lands at issue are those withdrawn by other executive orders from 1880 to 1918. These lands became known as the Navajo reservation. Hereafter we refer to this area as “the Reservation”. They surround the 1882 executive order reservation.2

A 1934 Act of Congress, 48 Stat. 960, defined the exterior boundaries of the Reservation. The Act provided, inter alia:

All vacant, unreserved, and unappropriated public lands, including all temporary withdrawals of public lands in Arizona heretofore made for Indian purposes by Executive order or otherwise within the boundaries defined by this Act, are hereby permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as may already be located thereon; however, nothing herein contained shall affect the existing status of the Moqui (Hopi) Indian Reservation created by Executive order of December 16, 1882.

In 1974 Congress authorized both tribes to sue “for the purpose of determining the rights and interests of the tribes in and to [the lands covered by the 1934 Act] and quieting title thereto in the tribes”. 25 U.S.C. § 640d-7 (hereafter “the 1974 jurisdictional act”).

I — PROCEEDINGS BELOW

The Hopis filed this action. Their amended complaint requests: (1) a declaration that the Hopis have an undivided one-half interest in the lands at issue; (2) that jointly held lands be partitioned; and (3) that the court order an accounting for all Navajo activities on all land in which the Hopis have an interest.

The district court limited the proceedings to a determination of the nature of the title conferred in the 1934 Act. Following discovery the parties filed cross motions for summary judgment. In a thorough opinion the district court held that it had jurisdiction of the first two claims but not of the accounting claim. It declared that the Hopi Tribe has an undivided one-half interest in all land it “possessed, occupied or used” in 1934. It declared further that the Navajo Tribe has (1) an undivided one-half interest in all reservation land “possessed, occupied or used” by the Hopis in 1934; and (2) exclusive trust title to the rest of the reservation. The district court took no action on the claim for partition, pending final resolution of title. It also did not identify specific lands “possessed, occupied or used” by the Hopis in 1934. We granted leave to appeal under 28 U.S.C. § 1292(b).

II — DISCUSSION

We must first address the broad question of what rights were conferred by the 1934 Act. Two subordinate issues must be settled to resolve the broader question:

[804]*804(1) What parts of the Reservation were “vacant, unreserved, and unappropriated Public lands, including all temporary withdrawals of public lands in Arizona heretofore made by executive order”?
(2) What property interests are conferred by the phrase “for the benefit of the Navajo and such other Indians as may already be located thereon”?

Next, we must determine whether the 1974 jurisdictional act confers jurisdiction of the Hopi Tribe’s claim for accounting.

A. What Rights are Conferred by the 1934 Act?

1. What lands are included in the phrase, “all vacant unreserved, and unappropriated . . . lands, including all temporary withdrawals?” Does the 1934 Act apply to all prior executive order withdrawals or only some of them?

The Navajos contend first that “including” means that “temporary withdrawals” are a subclass (or example) of “vacant, unreserved, and unappropriated” lands. The district court held that “including” meant “and”. In the district court’s view the 1934 Act withdrew: (a) vacant . . . lands, and (b) temporary withdrawals.

We agree with the district court. The primary purpose of the 1934 Act was to consolidate land ownership within the boundaries of the Reservation. Prior to 1934 neither tribe had recognized (compen-sable) title to areas withdrawn by executive order. To effectuate consolidated land ownership, the 1934 Act should be read to confirm land title to the greatest possible amount of land. The district court’s conclusion is consistent with this.

The Navajos’ suggestion that title was conferred only to “vacant” lands would have anomalous results. The district court’s holding makes Hopi title hinge on possession, occupancy, or use. Hopi possession would preclude a finding of vacancy. The Hopis would have no title. Navajo title would be limited to lands vacant in 1934. We therefore reject this suggestion.

The Hopis contended that “temporary withdrawals” include all executive order withdrawals except the 1882 reservation exempted by the 1934 Act. The district court agreed, equating “temporary withdrawals” with executive order withdrawals. Its conclusion was based on the 1934 Act’s purpose to consolidate reservation land ownership. It was necessary to confirm title in all executive order withdrawals since such withdrawals in themselves confer no recognized or compensable title. See U. S. v. So. Pac. Transp. Co., 543 F.2d 676 (9th Cir. 1976).

The Navajos argue that “temporary” has acquired special meaning in United States Attorney General and Interior Department opinions which were based on dicta in a Supreme Court case, U. S. v. Midwest Oil, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (1914). In the Navajos’ view, executive order withdrawals made to preserve a status quo

Free access — add to your briefcase to read the full text and ask questions with AI

Sekaquaptewa v. MacDonald, 619 F.2d 801, 1980 U.S. App. LEXIS 17276 (9th Cir. 1980).

619 F.2d 801 (Sekaquaptewa v. MacDonald) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Navajo Nation v. United States
631 F.3d 1268 (Federal Circuit, 2011)
Hopi Tribe v. United States
55 Fed. Cl. 81 (Federal Claims, 2002)
Masayesva v. Zah
794 F. Supp. 899 (D. Arizona, 1992)
MASAYESVA FOR HOPI INDIAN TRIBE v. Zah
793 F. Supp. 1495 (D. Arizona, 1992)
Manybeads v. United States
730 F. Supp. 1515 (D. Arizona, 1989)
Taylor v. Bradley
6 Navajo Rptr. 147 (Navajo Nation Supreme Court, 1989)
King v. Superior Court
673 P.2d 787 (Arizona Supreme Court, 1983)
SEKAQUAPTEWA v. MacDONALD
626 F.2d 113 (Ninth Circuit, 1980)