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COVELO INDIAN COMMUNITY v. WATT

November 17, 1982

COVELO INDIAN COMMUNITY, et al., Plaintiffs,
v.
James WATT, Secretary of the Interior, et al., Defendants



The opinion of the court was delivered by: CORCORAN

 CORCORAN, District Judge.

 Plaintiffs in this action seek declaratory and mandatory injunctive relief to secure rights and duties they claim are owed them, and all others similarly situated, by the defendant federal officials.

 As will be more fully set forth herein, the nature of this case required that the proceedings be significantly expedited. Consequently, to accommodate time limits, the parties stipulated to essential facts, and further stipulated to the authenticity of nearly all the documents appended to their briefs. Finally, they agreed to consolidate a trial on the merits with the hearing on the preliminary injunction and other motions. Due to that cooperative effort, several issues are now ready for decision.

 Presently before us are the motion of plaintiffs for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure, and the motion of plaintiffs for preliminary mandatory injunctive relief. Defendants have opposed these motions and have themselves moved to dismiss this action, or in the alternative for summary judgment in their favor.

 In addressing the merits of this action pursuant to consolidation under Rule 65(a) (2), we have based our factual findings on the stipulated statement of facts, transcripts of certain depositions, the authentic exhibits submitted by the parties, and the November 4, 1982 hearing.

 II. BACKGROUND

 Prior to 1966 there was no general statute of limitations applicable to the United States, as plaintiff, seeking money damages on contract and tort claims, although time limitations were imposed upon private individuals. In 1966, Congress sought to correct that apparent inequity and enacted 28 U.S.C. § 2415 which imposes a six-year time period in which the federal government must bring actions based on contracts with the United States, and a three-year limitations period for most tort claims. Subsection g of § 2415 specifically provides that any claims which arose prior to 1966 were deemed to have accrued on the date of enactment of the new statute of limitations, i.e. July 18, 1966.

 In late 1971, certain government officials and many Indians became concerned that pre-1966 money damage claims which the United States could pursue as trustee on behalf of Indians whose lands were held in trust or restricted status, might be extinguished with the running of the statute of limitations on July 18, 1972, unless the federal government took action to identify, evaluate, and where appropriate, file lawsuits to assert those Indian claims. The Department of Interior ardently supported an extension of the statute of limitations for pre-1966 Indian claims. 118 Cong.Rec. 28117 (August 14, 1972), reprinted in [1972] U.S.Code Cong. & Ad.News 3592, 3595. Consequently, in 1972, Congress extended the time in which the U.S. could assert pre-1966 claims on behalf of Indians to July 18, 1977. P.L. 92-485, 86 Stat. 803 (Oct. 13, 1972).

 Once again in 1977, at the urging of the Department of Interior and the Department of Justice, Congress extended the federal statute of limitations insofar as it applied to actions for money damages brought on behalf of Indians with pre-1966 claims. P.L. 95-103, 91 Stat. 842 (August 15, 1977). Interior and Justice Department spokespersons testified that many tribes had only recently become aware of their remedies for pre-1966 claims, and that hundreds of these claims, already identified and being researched, could not be filed by the U.S. in time to meet the statutory deadline. H.R. Rep. No. 95-375, 95th Cong., 1st Sess. 6 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 1616, 1621. This time, Congress granted an extension until April 1, 1980. P.L. 95-103, supra.

 The most recent extension of the statute of limitations occurred on March 27, 1980, in P.L. 96-217, 94 Stat. 126, and is the subject of this lawsuit. In its deliberations on this extension, Congress heard testimony from several high-ranking Interior and Justice Department officials. Both executive departments favored another extension. S.Rep. 96-569, 96 Cong., 2d Sess. 5 (1980). Congress reacted by extending the limitations period for pre-1966 Indian damage claims until December 31, 1982.

 But in addition, Congress added a critical Section 2 to P.L. 96-217, which provides:

 
Not later than June 30, 1981, the Secretary of the Interior, after consultation with the Attorney General, shall submit to the Congress legislative proposals to resolve those Indian claims subject to the amendments made by the first section of this Act [extending the limitations period] that the Secretary of the Interior or the Attorney General believes are not appropriate to resolve by litigation.

 Plaintiffs' complaint, filed on September 23, 1982, alleges that defendants have violated the mandate of Section 2 in that they have decided not only not to litigate the vast majority of pre-1966 Indian claims subject to the statute of limitations, but they have also declined to submit legislative proposals to Congress to resolve those claims deemed inappropriate for litigation. *fn1" Plaintiffs contend that, as a class, all Indians and Indian tribes that have pre-1966 money damage claims affecting lands held in trust or restricted status, have been materially injured by this allegedly unlawful agency action. We agree.

 III. FACTS

 The following items constitute the Court's Findings of Fact, based upon the list of stipulated facts, the numerous exhibits, the depositions and the November 4, 1982 hearing. In addition, all other factual conclusions made throughout the text of this decision are incorporated in our findings.

 A. Parties

 1. Plaintiff Covelo Indian Community is a federally recognized sovereign nation of Confederated Tribes, with a governing body duly recognized by the Secretary of the Interior. The Covelo Indian Community has tribal land in the State of California.

 2. Plaintiff Dennis Allen is a member of the Skokomish Tribe of Shelton, Washington and is a resident of the Skokomish Reservation.

 3. Plaintiff Bertha Visser is a member of the Yakima Tribe of Yakima, Washington and is a resident of the Skokomish Reservation of Shelton, Washington.

 4. Plaintiff Sampson Brings Them is a member of the Standing Rock Sioux Tribe and a resident of Fort Yates on the Standing Rock Reservation in North Dakota.

 5. Plaintiff Emma Little Chief Randall is a member of the Rosebud Sioux Tribe and a resident of Rosebud, South Dakota on the Rosebud Reservation.

 6. Plaintiff Lillian Prue Janis is a member of the Rosebud Sioux Tribe and a resident of Okreek, South Dakota on the Rosebud Reservation.

 7. The Shoalwater Bay Indian Tribe is a federally recognized tribe with a governing body duly recognized by the Secretary of the Interior. The Shoalwater Bay Tribe tribal land is in the State of Washington.

 8. The Saginaw Chippewa Indian Tribe is a federally recognized tribe in the State of Michigan with a governing body duly recognized by the Secretary of the Interior.

 9. The Grand Traverse Band of Ottawa-Chippewa Indians is a federally recognized tribe in the State of Michigan with a governing body duly recognized by the Secretary of the Interior.

 10. The Coeur d'Alene Tribe of Indians is a federally recognized tribe in the State of Idaho with a governing body duly recognized by the Secretary of the Interior.

 11. The Blackfeet Tribe of Indians is a federally recognized tribe in the State of Montana with a governing body duly recognized by the Secretary of the Interior.

 12. Henry Rivers is a member of the Cheyenne River Sioux Tribe and is a resident of Eagle Butte, South Dakota.

 13. James Watt is the Secretary of Interior and has overall responsibility for the management of all Indian affairs, and all matters arising out of Indian relations, including the processing of pre-1966 Indian claims. *fn2"

 14. Kenneth Smith is the Assistant Secretary of Interior, Indian Affairs, and has delegated responsibility from the Secretary of Interior for the management of all Indian affairs and all matters arising out of Indian relations, including the processing of pre-1966 Indian claims.

 16. John Fritz is the Deputy Assistant Secretary of Interior, Indian Affairs (Operations). He has responsibility for the management of all Indian affairs and of all matters arising out of Indian relations including the processing of Indian claims within the Bureau of Indian Affairs ("BIA").

 17. Sid Mills is the Director of the Office of Trust Responsibilities of the Bureau of Indian Affairs under the Commissioner of Indian Affairs, who has direct responsibility for the management of the processing of Indian claims under the BIA's "Statute of Limitations Program."

 18. David Stockman is the Director of the Office of Management and Budget, which must approve any legislative proposals made by the Department of Interior for resolution of pre-1966 Indian claims.

 19. William Coldiron is the Solicitor of the Department of the Interior, who is charged with supervising the legal work of the Department, including that done for the BIA by the Associate Solicitor for Indian Affairs.

 20. Lawrence Jensen is the Associate Solicitor for Indian Affairs in the Department of the Interior whose office does the legal work of the BIA including all that done with regard to the processing of Indian claims.

 21. William French Smith is the Attorney General of the United States and is charged with supervising all legal work of the Department of Justice, including work done with regard to the prosecution of Indian claims on behalf of tribes and individuals.

 22. Carol Dinkins is the Assistant Attorney General of the United States, Land and Natural Resources Division. Her division is directly responsible for the prosecution of Indian claims referred to her by the Department of the Interior.

 B. Representative Claims

 23. Prior to 1966, the County of Mendocino, California, constructed roads, an airport and airport facilities on tribal land of the Covelo Indian Community without the consent of the tribe and without the approval of the Secretary of Interior. One of the roads was later conveyed to the State of California as State Highway 162. The tribe contends it is entitled to trespass damages plus interest. This claim has been characterized as an unapproved right of way claim.

 24. Dennis Allen inherited an interest in the Joseph Pulsifer Allotment # 1A on the Skokomish Indian Reservation in the State of Washington. The Joseph Pulsifer allotment was approximately 15.95 acres in size and was sold on July 27, 1955, for $2,000. Dennis Allen's interest in the allotment was determined to be 432/145,800. He alleges that the allotment was, prior to 1966, sold or transferred without his consent and without his receiving any compensation for the sale or transfer. Dennis Allen maintains that he is entitled to the return of his interest in the allotment and trespass damages plus interest. This claim has been characterized as a "secretarial transfer claim."

 25. Plaintiff Bertha Visser also has an interest in a secretarial transfer claim. She inherited an interest in the Joseph Pulsifer Allotment # 1A on the Skokomish Indian Reservation in the State of Washington. Her interest was determined to be 1080/145,000. Bertha Visser contends that that allotment was, prior to 1966, sold or transferred without her consent and without her receiving any compensation for the sale or transfer. She claims that she is entitled to the return of her interest in the allotment and trespass damages plus interest.

 27. Plaintiff Emma Little Chief Randall is the daughter and an heir with a 1/3 interest in the estate of Alice One Butte Little Chief, Allotment # RS-4132. At the death of Alice One Butte Little Chief, and prior to 1966, the BIA paid the sum of $2,757 from her Individual Indian Money Account to reimburse the State of South Dakota for state old age assistance benefits paid to Alice One Butte Little Chief. Emma Little Chief Randall contends that she is entitled to her share of the money paid to the state. This claim has been characterized as an "Old Age Assistance Claim."

 28. Plaintiff Lillian Prue Janis is the daughter and heir with 1/10th interest in the estate of Millie Nicholas Prue, Allotment ERS-121-1/2. At the death of Mrs. Prue, and prior to 1966, the BIA paid the sum of $1,136.83 from her Individual Indian Money Account to reimburse the state of South Dakota for the state old age assistance benefits paid to Millie Nicholas Prue. Lillian Prue Janis contends that she is entitled to her share of the money paid to the State. This claim is also characterized as an old age assistance claim.

 29. Plaintiff Shoalwater Bay Indian Tribe has a claim based on the issuance of a fee patent by the United States in 1872 to a non-Indian for lands reserved to the tribe by a Presidential Executive Order.

 30. Members of the Blackfeet Tribe of Indians have interests in a number of claims identified by the BIA on the Blackfeet Reservation including approximately 605 claims which can be characterized as forced fee claims, 37 claims which can be characterized as secretarial transfers and dozens of claims which can be characterized as unapproved rights of way easements. The Blackfeet Tribe itself has interests in a number of the claims characterized as unapproved rights of way.

 31. Members of the Coeur d'Alene Tribe of Indians and Grand Traverse Band of Ottawa-Chippewa Indians have interests in what are characterized as "Forced Fee Patent Claims."

 32. Heirs of deceased members of the Saginaw Chippewa Indian Tribe have what are called "Saginaw Chippewa Dual Allotment Claims." In 1871 Implementing the Treaties of August 12, 1855, and October 18, 1864, the Secretary of Interior began making allotments to the members of the signatory tribes. Two categories of allottees were established: (1) competent; and (2) not so competent. The "competent" Indians were to receive unrestricted fee patents. Errors apparently were made during the allotment process and in an attempt to remedy these mistakes, the Secretary of Interior cancelled 105 such fee patents. Twenty-eight parcels of land on which fee patents were cancelled were reallotted to "not so competent" Indians in restricted fee status. In 1925, the U.S. District Court for the Eastern District of Michigan ruled that the Secretary lacked the authority to cancel fee patents administratively. U.S. v. Nawcum-o-quay, Equity No. 60 (E.D.Mich., Oct. 28, 1925). The United States conceded the correctness of this opinion and the BIA dropped the restricted lands from its allotment rolls. As a result, the heirs of twenty-eight Saginaw Chippewas may have claims to vested treaty rights and certain present-day landowners are without clear title.

 33. Henry Rivers is the son and heir of William Rivers, Allotment # CR-24. Henry Rivers holds a 2/21 interest in the allotment. In 1979 an unrestricted fee patent on that allotment was issued to William Rivers by the Secretary of Interior without his application. In 1920 William Rivers executed three mortgages on the allotment. That allotment was sold at a county tax sale in 1935. Henry Rivers contends that he is entitled to the return of his ...


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