“Nothing in the [QTA] or its history suggests that the United States was to be put to the burden of establishing its title when it has a color-able claim and has chosen to assert its immunity on behalf of land of which the Government declares that it is the trustee for Indians.”
How later courts described this case
- “Nothing in the [QTA] or its history suggests that the United States was to be put to the burden of establishing its title when it has a color-able claim and has chosen to assert its immunity on behalf of land of which the Government declares that it is the trustee for Indians.”
- “The ordinary reason[s] for enforcing sovereign immunity ... are reinforced when Indian lands are in question.”
Written by the judges who cited it.
The opinion
HUG, Circuit Judge,
separately concurring:
I concur in the majority opinion, but write separately to emphasize that we do not need to determine whether a bare assertion of a claim would be sufficient to invoke the Indian land exception, because it is clear that the claim of the United States that the land is Indian land is substantial. There are legitimate questions of law and fact that are present. Whether the land became connected to Calzona’s land on the west bank by accretion, and whether the land later became connected to the Indian land on the east bank by accretion or avulsion, are legitimate questions of law and fact that would require resolution.
Had there been a final and binding judicial adjudication of title against the Tribe, the reassertion of a claim by the Government would be insufficient to invoke the exception. However, there was no such adjudication. The question of title was not resolved in Sherrill v. McShan, 356 F.2d 607 (9th Cir.1966). We held that the questions of fact resolved by the district court were not clearly erroneous and that, under the facts presented in that case, the territorial jurisdiction of the United States District Court of Arizona did not extend to the Goat Island property. However, the opinion carefully noted:
[W]e are not concerned on this appeal with questions of ownership of, or title to, the real property involved in this case or the conflicting claims of title thereto asserted by the respective parties to this appeal. The district court expressly declared that it was without jurisdiction to do so.
356 F.2d at 610 .
Although the Government contended in that case, as in this case, that Goat Island was a part of the east bank, questions of title were excluded from the resolution of that case. There would, in any event, be a serious question of whether nonmutual offensive collateral estoppel could be applied against the Government. See United States v. Mendoza, 464 U.S. 154, 162 , 104 S.Ct. 568, 573 , 78 L.Ed.2d 379 (1984). The important fact is that a substantial unresolved claim is made by the Government that the land in question is Indian land.