United States v. Fort Sill Apache Tribe of Oklahoma

480 F.2d 819, 202 Ct. Cl. 134, 1973 U.S. Ct. Cl. LEXIS 67

• Court: United States Court of Claims
• Decided: June 20, 1973
• Docket: Appeal No. 3-72; Ind Cl. Comm. Dockets Nos. 30, 30-A, 48, 48-A
• Status: Published

Opinions

DuReee, Senior Judge,

delivered the opinion of the court:

The United States appeals (a) from the final judgment and order of the Indian Claims Commission dated August 25, 1971.¹ in Dockets 30, 30-A, 48 and 48-A, awarding compensation under Section 2, Clause 4, of the Indian Claims Commission Act (60 Stat. 1049) for the forcible taking by the United States of certain lands in southwestern New Mexico and southeastern Arizona to which appellees held aboriginal title and (b) from the order of the Commission dated June 9, 1971.² denying the Government’s motion to consolidate the four dockets with Docket 182.

This appeal presents three issues: (1) Whether the Commission abused its discretion in denying the Government’s motion to consolidate Dockets 30, 30-A, 48, 48-A and 182; (2) Whether substantial evidence supports the Commission’s holding that the date of extinguishment of appellees’ aboriginal title was September 4, 1886; and (3) Whether the Commission erred in valuing appellees’ mineral interests taken on the basis of capitalized anticipated net profits from mining enterprises rather than on the basis of capitalized hypothetical royalty payments.

We affirm.

FIRST ISSUE

The first petition, Docket No. 30, in these cases was filed by the Fort Sill Apache Tribe of Oklahoma claiming to be composed of descendants of the “Warm 'Springs and Chiricahua Bands of Apache Indians.” The second petition, Docket No. 48, was filed by individuals on the Mescalero Beservation in New Mexico, alleging to represent the “Chiricahua and Warm Springs Tribes of Apache Indians.”

By order of July 1962, the Commission consolidated Dockets 30 and 48 for trial because it appeared that the subject matter and real parties in interest were the same. Trial in these consolidated cases was held in December 1962 on the issues of the extent and boundaries of the Indian title and •the date of the taking.

In another case not here involved the Navajo Tribe had made a claim of aboriginal title to an area which in part overlapped the northern portion of the area claimed in Dockets 30 and 48. After requested findings and briefs on the issues of Indian title and the taking date had been filed in consolidated Dockets 30 and 48, the Commission, on motion of appellees and without objection by the United States, entered an order in January 1968, severing from the consolidated cases the portion of the area which was claimed solely by appellees. This severed claim was assigned consolidated Docket Nos. 30-A and 48-A. This left in Docket Nos. 30 and 48 the claim to the tract to which the Navajo Tribe was asserting a conflicting claim.

In June 1968, the Commission issued its findings, opinion and interlocutory order in Docket Nos. 30-A and 48-A. The Commission determined the boundaries of the land there involved to which appellees held aboriginal title and held that the land had been taken by the United States on September 4, 1886, without payment of compensation. 19 Ind. Cl. Comm. 212-268. In April 1970, the Commission issued its findings, opinion and interlocutory order in Dockets 30 and 48, segregating the land to which appellees held aboriginal title from the Navajo lands and likewise determining the date of taking to be September 4, 1886. 22 Ind. Cl. Comm. 527-545.

After Docket Nos. 30-A and 48-A had proceeded to trial in January 1970 on the valuation of the land as of the 1886 taking date and the matter was pending determination by the Commission, the Government on June 4, 1970 filed a motion for rehearing the determination made in June 1968 that September 4, 1886 was the date of taking. In August 1970, the Commission issued an “Order Denying Defendant’s ‘‘Motion for Behearing and Keconsideration of Date of Taking’ ” on three grounds, ruling that the motion was not timely filed, that defendant had failed to state any valid grounds for rehearing under the Commission’s Buies of Procedure or applicable decisions, and that the Commission’s findings with respect to tbe 1886 date of taking were supported by substantial evidence. 23 Ind. Cl. Comm. 411-418.

After both parties bad filed their requested findings and briefs on the valuation issues in Dockets 30-A and 48-A and the matter was still awaiting the Commission’s decision, on March 10, 1971 ³ the'Government filed a “* * * Motion to Consolidate * * *” the two groups of dockets (:30-A, 48-A and 30, 48) with a fifth case, Docket No. 182. The Fort Sill Apaches and individual associated Indians had filed the petition in Docket No. 182. Alleging the same aboriginal title boundaries as in Docket No. 30, those petitioners sought inter alia to hold the United States liable for alleged “trespass damages” prior to the date of extinguishment of aboriginal title.

'In its “* * * Motion To Consolidate * * *” the Government reasoned that all five dockets constituted essentially one claim, arguing that the Indians involved were entitled to be compensated only once for the extinguishment of their aboriginal title. In its motion to consolidate the Government concluded: “Accordingly, the cases alleging the extinguishment of aboriginal title and Docket No. 182 should be consolidated in order that, if necessary, the date of extinguishment should be moved back. * * *”

In its order denying the Government’s “* * * Motion to Consolidate * * 25 Ind. Cl. Comm. 382-83 (1971), the Commission viewed the motion in part as a second motion for rehearing to “determine a new date of taking applicable to all five cases.” As grounds for rejecting the “ * * * Motion to Consolidate * * *” the Commission separately cited its “Order Denying Defendant’s Motion for (Rehearing and Reconsideration of Date of Taking’ ” in Dockets 30-A and 48-A and the Commission’s decision in the case of Washoe Tribe v. United States, 21 Ind. Cl. Comm. 447 (1969). In Washoe the Commission held the Government liable on two claims, essentially recognizing as separate one claim under Section 2, Clause 4, of the Indian Claims Commission Act (60 Stat. 1049) for the taking of aboriginal title lands and another claim under Section 2, Clause 5, of the Act for “trespass damages” prior to the time of extinguishment of title.

The Commission’s Eules of Procedure provided that leave of the Commission was required before the same party could file a second motion for rehearing.⁴ The United States failed to comply with this rule. The Commission did not abuse its discretion in treating the “* * * Motion to Consolidate * * *” in part as a motion for rehearing. The United States sought “further litigation” in its motion to consolidate on the identical issue, i.e., the date of taking, as it sought in its first motion for rehearing.

Although the “* * * Motion to Consolidate * * *” cannot be said to have been filed too late since neither the June 28, 1968 opinion and order (in Dockets 30-A and 48-A) nor the April 1, 1970 opinion and order (in Dockets 30 and 48) were a “final determination”⁵ commencing the period for filing,⁶ we do not read the Commission’s order denying the “* * * Motion to Consolidate * * *” as being grounded on untimeliness.

Moreover, the Commission did not abuse its discretion in denying the “* * * Motion to Consolidate * * *” based upon its Washoe decision. That decision recognized the distinctness of a claim for the taking of Indian lands without compensation and a claim for damages to Indian lands prior to the taking. This distinction went to the heart of the Government’s claim that the five dockets involved only one claim.

In affirming the order of the Commission denying the “* * * Motion to Consolidate * * we do not pass upon the merits of the Washoe decision and merely hold that the Commission did not abuse its discretion in relying upon one of its own decisions on point. The correctness of the Washoe decision is not an issue here.

SECOND ISSUE

The Commission, referring to appellees collectively as the “Chiricah.ua Apaches”, found in consolidated Dockets 30-A and 48-A that: “September 4, 1886, the date of the final surrender of the Chiricah.ua Apaches under Gerónimo and the time of the removal of the members of the tribe from their homelands, marks the date on which the United States took from the Chiricahua Apache tribe its Indian title to its lands hi New Mexico and Arizona. * * *” 19 Ind. Cl. Comm. 212, 245 (1968). In Dockets 30 and 48 the Commission concluded: “The Fort Sill record [Dockets 30-A ana 48-A] is the record in this proceeding, with the addition of that evidence offered by the Navajos in Docket No. 229. In like manner, the date of taking in the Fort Sill case, September 4,1886, applies herein with respect to the extinguishment by the United States of whatever interest the Apaches may have enjoyed in the overlap area.” 22 Ind. Cl. Comm. 527, 529 (1970).

Were we to rule upon the merits of appellant’s claim that the date of taking is not supported by substantial evidence, we anight agree on the present record. The record could be said to establish that Indian title was extinguished before September 4, 1886, when the Act of August 15, 1876, 19 Stat. 176, 195, was passed. Congress may extinguish Indian title by a “clear and plain indication” in the public records that the sovereign “intended to extinguish all of the [claimants’] rights” in their property. United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 353 (1941); Lipan, Apache Tribe v. United States, 180 Ct. Cl. 487, 492 (1967). See Tlingit v. Haida Indians v. United States, 147 Ct. Cl. 315, 177 F. Supp. 452 (1959); Three Affiliated Tribes of the Fort Berthold Reservation v. United States, 182 Ct. Cl. 543, 390 F. 2d 686 (1968); Klamath & Modoc Tribes v. United States, 193 Ct. Cl. 670, 436 F. 2d 1008 (1971). The Act, applying to the “Apaches of Arizona and New Mexico”, commanded that the “Commissioner of Indian Affairs shall direct that said Indians shall not be allowed to leave their proper reservations”, the effect of which was intended to confine the ancestors of appellees to •a reservation wholly outside the aboriginal title area.⁷

However, we hold that the Government’s conduct of the litigation in these dockets amounts to a waiver of the right to challenge the September 4,1886 taking date.

'In December 1962, at the outset of the only trial held in these four dockets before the Commission on the taking issue, petitioners’ counsel clearly stated one of the “main issues” to be “the date or dates of the taking of the Indian title lands by the defendant.”⁸ An eight-day trial followed.

In January 1964, the petitioners (appellees) submitted their proposed findings of fact and brief on the issues of title and taking. In Proposed Findings Nos. 88, 89 and 90 petitioners marshalled the facts in their favor to suggest September 4,1886 as the date of taking and specifically proposed September 4, 1886 at the date of taking in Proposed Finding No. 90. Petitioners argued the facts in their brief and provided supporting legal authority on the taking issue.

In its Proposed Findings of Fact, Objections to Petitioners’ Proposed Findings of Fact, and Brief on the issues of title and taking filed in May 1964, defendant-appellant proposed no finding of fact on the date of taking despite a then existing Commission rule requiring the same.⁹ Other than a bald objection to petitioners’ Proposed Finding No. 90, defendant-appellant chose not to argue for an alternative taking date and ignored the issue in its brief. Both at the trial and in its proposed findings and brief, the Government relied instead upon defenses that the petitioners never had aboriginal title and that the Apaches in the claimed area did not constitute a single tribe or band with a cognizable claim. The posture of the case at that time with respect to the taking date issue is best reflected in a footnote to Petitioners’ Reply to Defendant’s Proposed Findings of Fact, Objections and Brief: “Although defendant objects to petitioners’ proposed taking date of September 4,1886 (Pet. Fdg. 90, pp. 85-88), it presents no evidence to contradict the facts upon which this taking date is predicated (Def. Obj. 90, pp. 75-76). Defendant also offers no answer to petitioners’ discussion of the legal authorities which support petitioners’ 1886 taking date in the circumstances of this case (Pet. Br., pp. 94-98). Further discussion of the taking date in this reply is therefore considered unnecessary.”¹⁰

After the Commission issued its findings, opinion and interlocutory order in consolidated Dockets 30-A and 48-A in June 1968 on the issues of aboriginal title and date of taking, defendant-appellant. did not challenge the date of taking finding. Defendant-appellant continued to remain silent between June 1968 and April 1970 when the Commission issued its findings, opinion and interlocutory order in Dockets 30 and 48, again finding a taking date of September 4, 1886. And at the intervening and costly¹¹ valuation trial in Dockets 30-A and 48-A in January 1970, not once did the Government express objection to the taking date.¹² It was not until defendant-appellant’s rejected “* * * Motion to Consolidate * * *” filed March 10, 1971, that the Government for the first time proposed a specific alternative date of extinguishment of title.

In short, in the proceedings below at no time did defendant-appellant properly propose its alternative theories of the date of taking when the issue was pending before the Commission and seek to convince the Commission that the weight of the evidence in the record supported one or another of such theories. Likewise, at no time did defendant-appellant actively and properly oppose the taking date proposed by petitioners and found by the Commission. As we said in Suguamish Tribe v. United States, 197 Ct. Cl. 775, 777 (1972):

“■[T]hese matters should have been presented to the fact-finding tribunal; no adequate excuse is offered for the failure to do so. * * * In § 20(b) of the Act, 25 U.S.C. § 70s, Congress made it clear that, in cases coming from the Commission, we were to be an appellate or reviewing court, not a court of first instance. From the begin-ing, we have followed that concept, refusing to treat appeals ;as trials de novo or to consider the proceedings before the Commission as mere preliminaries to a ‘real trial’here. (Citations omitted.) ”

Reviewing courts have developed various rules governing appealable issues under the rubric of waiver which have been described as “positive rules of procedure based on manifest justice and, to a greater or less degree, on considerations of the orderliness, regularity, and expedition of litigation.”¹³ Reviewing courts will normally only consider questions raised and reserved in the lower court¹⁴ and will not consider grounds of defense or opposition not asserted and relied on below.¹⁵ The right to raise a particular matter on appeal may be waived by conduct indicating an intention not to insist upon the matter.¹⁶ While there are no decisions of this court dealing with the precise situation presented on this appeal, the cumulative circumstances of this case, wherein appellant repeatedly refused to raise and press the issue of the date of taking, compels us to decline review.

In analyzing the scope of review of this court, Judge Littleton noted in Osage Nation v. United States, 119 Ct. Cl. 592, 613, 97 F. Supp. 381, cert. denied, 342 U.S. 896 (1951): “It thus appears that it was at the instance of the Department of Justice that this court was ultimately directed to review judicially the findings of fact of the Commission, and the form of review applied to the Commission’s findings were those embodied in the Administrative Procedure Act.” It goes without saying that the Department of Justice is one of the advocates in every Indian claims case before the Commission and this court. It was fully apprised of the main issues in this case. Indeed, the issues of liability and date of taking, if any, are among the most basic issues in every land claims case under Section 2, Clause 4, of the Indian Claims Commission Act. Under the circumstances of this case we acknowledge the salutary rule that: “[I]ssues not effectively presented to an administrative agency, where ample opportunity to do so has been afforded, cannot be raised on appeal of that agency’s decision.” Hennesey v. Securities and Exchange Commission, 285 F. 2d 511, 514 (3rd Cir. 1961).

It is just and appropriate to apply this rule to this case because appellees might well have introduced other or additional evidence if they had been alerted that the Government was challenging the 1886 date. Likewise, the Commission might have decided differently if it had been made aware that the 1886 date was in contest. As it was, the entire valuation trial centered on the 1886 date which the Government first disputed after the completion of that trial.

THIBD ISSUE

Appellant complains that the Commission erred as a matter of law in selecting (for some 60,000 acres of mining properties taken) a valuation method based on the capitalized anticipated net profits from mining enterprises.

This valuation method was expressly sanctioned in Tlingit & Haida Indians v. United States, 182 Ct. Cl. 130, 148, 389 F. 2d 778, 790 (1968). Although this method is not the only possible way to value mineral interests, it certainly is a permissible method. The Commission did not err as a matter of law in selecting this method.

Affirmed.

1 26 Ind. Cl. Comm. 198-199.

2 25 Ind. Cl. Comm. 382-383.

3 Tile status of Dockets 30 and 48 at this time was as follows: In order to avoid a valuation trial, on September 4, 1970, by stipulation the parties agreed that the tract of land involved in Docket Nos. 30 and 48 embraced 804,000 acres and agreed that the per acre fair market value of this tract would be the same as the per acre value of the surface tract involved in Dockets 30-A and 48 — A which was pending determination by the Commission.

4 Rule 33(a): “Whenever cither party desires to question the correctness or the sufficiency of the Commission’s conclusions on Its findings of fact or to amend the same, the complaining party shall file a motion which shall be known as a motion for rehearing, * * * After the Commission has announced its decision upon such motion no other motion for a rehearing shall be filed by the same party unless by leave of the Commission. Motions for a rehearing shall be filed within 30 days from the time the final determination of the Commission is filed with the Clerk.” 25 C.F.R. § 503.33(a) (1971). This rule governed during all pertinent times.

5 Ibid.

6 Seminole Indiana of the State of Florida v. United States, 200 Ct. Cl. 417, 471 F. 2d, 614 (1973).

7 By May of 1877 the only officially recognized home for appellees was the San Carlos Reservation. The Commission found: “[I];n 1876, the Government embarked on a program of moving all Chiricahua Apaches from their ancestral homelands and settling them on the San Carlos Reservation located outside their homelands.” 19 Ind. Cl. Comm. 212, 229.

8 Transcript, Docket Nos. 30 and 48, December 11, 1962, p. 29.

9 25 U.S.C. § 70h gives to the Commission the power to establish its own rules of procedure. Pursuant to this authority, the Commission promulgated the following rule which governed the Commission’s proceedings during all pertinent times:

“§ 503.28 Briefs—

* * # * *

(b) Defendant, within 40 days from the filing of petitioner’s brief (or if none has been filed within the time on which it should have been filed under paragraph (a) (1) of this section) the defendant shall file with the Clerk 25 printed copies of its request for findings of fact and brief * * 25 C.E.R. § 503.28 (1958).

10 Filed May 3, 1965; p. S, n. 1.

11 Appellees note In their brief that the cost to them of the valuation trial, including fees to the appraisers, was In excess of $100,000.

12 In fact it appears that the Government thought the 1886 date was a much better date from its standpoint than a date three or four years earlier.

13 10 Ruling Case Law, Estoppel § 26, p. 698.

14 United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 36—37 (1952) ; McGrath v. Manufacturers Trust Co., 338 U.S. 241, 249-50 (1949).

15 Kay v. United States, 303 U.S. 1, 5 (1938).

16 See 5 Am. Jur. 2d, Appeal & Error, § 710. See generally 5 Am. Jur. 2d, Appeal & Error, §§ 235 et seq., 545 et seq., and 709 et seq.