White Mountain Apache Tribe v. United States

8 Cl. Ct. 677, 1985 U.S. Claims LEXIS 925
CourtUnited States Court of Claims
DecidedSeptember 4, 1985
DocketNo. 22-H
StatusPublished
Cited by24 cases

This text of 8 Cl. Ct. 677 (White Mountain Apache Tribe v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White Mountain Apache Tribe v. United States, 8 Cl. Ct. 677, 1985 U.S. Claims LEXIS 925 (cc 1985).

Opinion

ORDER

NETTESHEIM, Judge.

On July 12, 1984, defendant moved pursuant to RUSCC 12(b) for an order dismissing the claims of plaintiff White Mountain Apache Tribe of Arizona (“plaintiff”) concerning range and water resource mismanagement. Alternatively, defendant moved for an order providing that no evidence be admitted at trial with respect to these claims. Plaintiff has opposed and defendant has replied. Ruling on this matter was deferred pending appellate review of a judgment terminating this litigation. See White Mountain Apache Tribe v. United States, 6 Cl.Ct. 575, 577 n. 2 (1984), vacated & remanded, Nos. 85-895 & 85-1348 (Fed.Cir. Aug. 7, 1985).

FACTS

Plaintiff filed its petition with the Indian Claims Commission on October 27, 1959. As it relates to plaintiff’s general accounting claim, the petition states:

13. Plaintiffs1 further allege that in accordance with defendant’s established and long continued policy and practice in dealing with Indian tribes, and by virtue of the acts of defendant alleged in paragraph 6 hereof, and by other acts of Congress, Executive acts, and acts of officers and agents of defendant, including, but without limitation, Executive Order of November 1871, Executive Order of December 14, 1872, Act of February 20, 1893 (27 Stat. 469), Act of June 10, 1896 (29 Stat. 358), Act of June 7, 1897 (30 Stat. 64), Act of March 2, 1901 (31 Stat. 952), and by the Act of March 3, 1883 (22 Stat. 582, 590) and the Act of March 2, 1887 (24 Stat. 449, 463) as amended by the Act of May 17, 1926 (44 Stat. 560), and the Act of February 12, 1929 (45 Stat. 1164) as amended by the Act of June 13, 1930) (46 Stat. 584), the defendant undertook various obligations to plaintiffs, including moral obligations, and further undertook, as a trustee, guardian and fiduciary, to manage, dispose, sell, lease, use, hold, invest and otherwise deal with lands, funds and other property belonging to plaintiffs, and to provide services and other benefits to plaintiffs.
16. Plaintiffs allege, upon information and belief, that a true and complete accounting will disclose that substantial sums of money are owed by defendant to [680]*680plaintiffs, arising out of mismanagement by defendant of plaintiffs’ affairs, arising out of failure [of] defendant to collect fees, compensation and damages for plaintiffs’ property which was sold or used, arising out of negligently permitting plaintiffs’ lands to be over-grazed, arising out of erroneous surveys made by defendant of plaintiffs’ lands, arising out of improper disbursements by defendant from plaintiffs’ funds for purposes and expenses which were in contravention of defendant’s long continued policy and practice in dealing with Indian tribes, and in contravention of fair and honorable dealing and in violation of defendant’s duties to plaintiffs as a trustee and guardian, and arising out of breaches of other obligations of defendant to plaintiffs.

On May 26, 1983, plaintiff filed a motion for additional time to prepare the claims encompassed by its petition. The motion, like the petition, contained allegations of governmental mismanagement of tribal properties and emphasized plaintiff’s claims concerning overgrazing by trespassing livestock insofar as it caused erosion and insofar as defendant failed to collect grazing fees for use of plaintiff’s lands. In that pleading, however, plaintiff, by counsel, stated:

Although no claim for remuneration appears to have been made on behalf of the White Mountain Apache Tribe for the trespasses upon the White Mountain Indian Reservation, all as pleaded above, the former claims attorney made specific reference to the protracted misconduct and mismanagement by the Secretary of the Interior of the White Mountain Apache Indian Reservation for a period of almost thirty years. On the subject, the former claims attorney had this to say: “Shortly after the reservation was established,' white ranchers, with their cattle, trespassed upon the grazing lands and over the years these trespasses increased. By the early 1890’s, thousands of white owned cattle were being illegally grazed upon the reservation, [notwithstanding] the assurance and promise by the government that it would protect the tribal group from encroachment in the reservation ...” [sic] [citing the opening statement of plaintiff’s then counsel before the United States Court of Claims on May 1, 1978].

Plf’s. Mot. filed May 26, 1983, at 9-10 (footnote omitted). This statement could be viewed as an admission that plaintiff’s claims for erosion caused by overgrazing and failure to collect fees for overgrazing were not contained in the 1959 petition. However, a review of the earlier pleading, as discussed in the body of this order, reveals that such a concession was unwarranted and will be ignored.

Specific reference to the water and range claims which defendant now seeks to dismiss again was made through interrogatories served on plaintiff’s counsel on September 21, 1983. The first paragraph of defendant’s interrogatories states that its inquiry is “organized into two broad areas: (1) range management; and (2) water resource management.” Plaintiff was requested to address the following questions with respect to range management:

5. Does plaintiff contend that the United States had a legal duty to prevent any erosion of the range lands of the White Mountain and Fort Apache Reservations?
sjt * 5k
9. Does the plaintiff contend that the defendant had a legal duty to maximize the potential income from the range lands of the two reservations?

Among other interrogatories of a similar nature concerning water resource management, defendant posed the following:

18. Does the plaintiff assert that its Winters Doctrine rights were diminished or lost by appropriations of water from the Salt River or its tributaries for use [by the federal government] on adjacent National Forest lands? (Emphasis in original.)
[681]*68122. Does plaintiff assert that the United States had a legal obligation to develop all the potentially (or practicably) irrigable acreage on the reservation?

The Winters Doctrine is derived from the decision in Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). Under the doctrine the United States Government’s reservation of land for a federal purpose, such as the creation of an Indian reservation, carries with it an intention to reserve rights to the use of water for the land “to the extent needed to accomplish the purpose of the reservation.” Gila River Pima-Maricopa Indian Community v. United States, 231 Ct.Cl. 193, 212, 684 F.2d 852, 864 (1982). On October 28, 1983, plaintiff answered all of these interrogatories in the affirmative, supplying a narrative of plaintiff’s view of its claims.2

Section 12 of the Indian Claims Commission Act of 1946, Pub.L. No. 726, 60 Stat. 1049, 1052 (1946) (codified at 25 U.S.C. § 70k (1976)) (repealed in 1978), sets forth the statute of limitations governing claims such as plaintiff’s.

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Bluebook (online)
8 Cl. Ct. 677, 1985 U.S. Claims LEXIS 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-mountain-apache-tribe-v-united-states-cc-1985.