Petition — Southern Pacific Transportation Co. v. Secretary of the Interior
Supreme Court brief1983
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| VECO. Supreme Court, W
; ; ‘ ae FILED
JU 12
NO. , a
ALEXANDER L. STEVA
os shied oe cone CLERK
OF THE va
UNITED STATES
OCTOBER TERM 1983
SOUTHERN PACIFIC TRANSPORTATION COMPANY,
Petitioner
vs.
JAMES G. WATT, et al., and WALKER RIVER
PAIUTE TRIBE OF NEVADA,
Respondents
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
FOLEY, MC INTOSH & FOLEY
PROFESSIONAL CORPORATION
By ROBERT J. FOLEY
(counsel for service)
By WILLIAM R. FOLEY
1225 Solano Avenue
Albany, CA 94706
Telephone (415) 524-4123
ECHEVERRIA AND OSBORNE,
CHARTERED
By PETER ECHEVERRIA
By NATHAN M. JENKINS
555 South Center Street
Reno, Nevada 89501
Attorneys for Petitioner
QUESTIONS PRESENTED FOR REVIEW
[Rule 21.1(a)]
Can the Secretary of the
Interior lawfully require Indian
consent as a precondition to the
processing of an application for a
railroad right-of-way across Indian
land, created by a federal statute
characterized by the Eighth and Tenth
{put not by the Ninth) Circuits as an
eminent domain statute?
_ Can the Secretary of the
Interior lawfully refuse to process an
application (for a Congressionally
granted railroad or public utility
right-of-way across Indian land)
because unaccompanied by Indian con-
sent; does that refusal violate
=j<
applicable decisions of this Court
concerning nondelegation and subdele-
gation of legislative power, pro-
cedural due process, and unlawful
amendment of federal statutes by
administrative regulation?
3. Does Indian sovereignty make
permissible the Secretary's grant of a
veto power to an Indian tribe whose
property would be subjected to an
interstate railroad right-of-way when
that right-of-way was granted by
Congress?
4. Was the Secretary's failure
to provide for standards, findings,
and review of Indian consent a viola-
tion of procedural due process?
LIST OF PARTIES TO PROCEEDING
[Rule 21.1(b)]
PETITIONER:
SOUTHERN PACIFIC TRANSPORTATION
COMPANY, a Delaware corporation
(SOUTHERN PACIFIC TRANSPORTATION
COMPANY is a wholly owned subsidiary
of SOUTHERN PACIFIC COMPANY, a
Delaware corporation).
RESPONDENTS :
1. JAMES G. WATT, SECRETARY OF THE
INTERIOR.
2. WALKER RIVER PAIUTE TRIBE OF
NEVADA.
(Brief Amicus Curiae filed in United
States Court of Appeals for the Ninth
Circuit in support of Petition for Re-
hearing en Banc of Southern Pacific
Transportation Company by Transwestern
Pipeline Company).
TABLE OF CONTENTS
[Rule 21.1(c)]
Questions Presented
for Review
List of Parties to
Proceeding
Table of Authorities
Reference to Reports of
Opinions Below
Statement of Grounds
Invoking Jurisdiction
Reference to Constitution,
Statutes Involved
Statement of the Case
Ar ent
A. Background of Pertinent
Statutes and the Consent
Regulation
1. The 1899 Act
2. The 1948 Act
3. The Consent Regulation
15
17
19
21
B. Argument 35
1.
The Consent Regulation
Does Not Apply to an
1899 Act Application 35
If the Consent Regulation
is Applicable to an 1899
Act Application, the Regu-
lation .s Beyond the Scope
of the Authority Given the
Secretary and is, Therefore,
an Unlawful Attempt to
Amend the Statute 40
If the Consent Regula-
tion is Within the Scope
of the Secretary's
Authority, Congress has,
by Granting such Autho-
rity, Unconstitutionally
Delegated its Legislative
Power to the Secretary 48
If the Delegation to the
Secretary is Permissible,
the Secretary's Subdele-
gation to the Indian
Tribe, of an Uncontrolled
Veto Power is Repugnant
to Fifth Amendment Due
Process Requirements 65
5. Indian Sovereignty
Does Not Cure the
Subdelegation 67
Cc. Conclusion 72
Appendices (Index to Appendices) 75
Appendix A i
Appendix B 1i
Appendix C vi
Appendix D x1
Appendix E xvil
TABLE OF AUTHORITIES
(Rule 21.1(c)]
CASES
Baker-Chaput v. Cammett,
406 F. Supp. 1134 (1976).
Carlson v. Landon,
342 U.S. 524 (1952).
Carter v. Carter Coal Co.,
1 P ;
Cherokee Nation v. Kansas
Railway a, Lee Cele 641
Clarke v. Boysen, 39 F.2d 800
(10th Cir. TeaOy.
58,
27,
DeCoteau v. District County Court,
420 U.S. 425 (1975).
Environmental Defense Fund v.
Ruckelshaus, 439 F.2d 564 (1971).
Espinoza v. Farah Mfg. Co.,
414 U.S. 66 (1973).
Eubank v. Richmond, 226 U.S.
137 (1912).
Fahe va Mallonee, 332 U.S. 245
aL :
ote
41
FEC v. Democratic Senatorial
Campal Comm. 454 U.S. 27
CISsiy- 63
FMC v. Seatrain Lines, Inc.,
ee ; 64
FPC v. New England Power Co.,
4i5 U.S. 345 qi574). 50, 54
Francis v. Francis,
203 U.S. loo (1906). 46
FTC v. Colgate-Palmolive,
380 U.S. 543 (1964). 64
Hampton & Co. v. United States,
276 U.S. 394 (1928). 54
Hampton v. Mow Sun Wong,
426 U.S. 88 (1975). 55, 59
Holmes v. New York Cit
Housing Auth. 398 F.2d 262
(2d Cir. 1968). 67
Industrial Union Dept. v.
American Petrol inst., 448 U.S.
607 (1960).
Kent v. Dulles,
1958). 46, 47
54
Morrill v. Jones,
106 U.S. 466 (1882). 46
-8<
Page
Morton v. Ruiz,
415 U.S. 199 (1974). 64
National Cable Television
Ass'n v. United States,
415 U.S. 336 (1974). fs
New York State Dept. of Social
Services v. Dublino,
413 U.S. 405 (1973). 63
Nicholas v. Kahn,
389 N.E.2d 1086, (1979). 67
>
NLRB v. Brown,
380 U.S. 278 (1964). 64
Oliphant v. Suquamish Indian
TT 435 U.S. 191 (1978). 70
Panama Refining Co. v. Ryan,
293 U.S. 388 (1935). 50,51,52
Reliance Electric Co. v.
Emerson Electric Co.,
404 U.S. 418 (1971). 63
Santa Clara Pueblo v. Martinez,
436 U.S. 47 (1978). 71
Schechter Poultry Corp. v.
United States, 295 U.S. 49
(1935).
50,51
Page
Seattle Trust v. Roberge,
278 U.S. 116 (1928). 67
SEC v. Sloan,
436 U.S. 103 (1978). 64
Skidmore v. Swift & Co.,
323 U.S. 134 (1944). 64
Soglin v. Kauffman, 418 F.2d
163 (7th Cir. 1969). 67
Soriano v. United States,
494 F.2d 681 (9th Cir. 1974). 64
Southern Pacific 36,41,
Transportation Co. v. Watt, 65,68,
700 F.2d 550 (1983). 71
Sunshine Coal Co. v. Adkins,
310 U.S. 381 (1940). 54
Teamsters v. Daniel,
439 U.S. 551 (1978). 63
United States v. Eaton,
144 U.S. 677 (1891). 46
United States v. Fort Smith &
W.R. Co., 195 F.211 (8th Cir.
1912). 41
U.S. v. Mazurie, 419 U.S. 544,
(1975). 68,69,70
@10e
United States v. Southern
Pacific Transportation Co.,
543 F.2d 676 (9th Cr. 1976).
United States v. United Verde
Copper Co., 196 U.S. 20
United States v. Wheeler,
313 (19
435 U.S.
Volkswagenwerk v. FMC,
390 U.S.
Washington v. Confederated
261 (1968).
Tribes of the Colville Indian
21
1904). 46
70
64
Reservation, 447 U.S. 134 (1980). 70
25 C.F.R.
Part
25
25
25
25
25
25
25
(2) fart? = 64) % fF
i’ i i i)
lle ee a i ee
169.
REGULATIONS
§161.3 (1981).
33
34,35
§§169.1-169.28(1982). 34,35
§169.3(
a).
§169.18.
§169.22.
§169.23.
§169.25.
§169.26.
-ll-
33
34
34
34,37,45
34
34
25 C.F.R. §§256.1-256.31 (1951).
25 C.F.R §256.3
Act
STATUTES
of 5 August 1882,
. 394, 22 Stat. 299.
of 15 February 1887,
130, 24 Stat. 402.
of 30 May 1888,
. 336, 25 Stat. 160.
of 8 May 1890,
198, 26 Stat. 102.
of 18 February 1895,
95, 28 Stat. 665.
of 6 March 1896,
- 42, 29 Stat. 44.
of 4 June 1898,
. 377, 30 Stat. 430.
of 18 June 1898,
- 465, 30 Stat. 475.
of 2 March 1899, ch. 374,
30 Stat. 990 (codified at
25 U.S.C. §§312-318)
("1899 Act").
i
56
56
56
56
56
56
56
56
passim
Act of 18 June 1934, ch. 576,
48 Stat. 987 (Indian Reorgani-
zation Act; "IRA") (Section 16
codified at 25 U.S.C. §476).
Act of 5 February 1948,
ch. 45, 62 Stat. 17 (codified
at 25 U.S.C. §§323-328)
("1948 Act").
5S U.8.6. $702.
5 U.S.C. §706.
25 U.S.C. §312.
25 U.S.C. §314.
25 U.S.C. §317.
25 U.S.C. §324.
25 U.S.C. §1331.
28 U.S.C. §2201.
28 U.S.C. §2202.
OTHER AUTHORITIES
Page
30,31,
32,39
passim
25
25, 67
28,43
41,43,44
42,44,45
30,57
25
25
25
Bill to Grant Indians Living Under
Tutelage the Freedom to Organi
ze for
Purposes of Local Self-Government and
Economic Enterprise: Hearings
on
$-2755 Before the Committee
on Indian Affairs, U.S. Senate,
73rd. Cong., 2nd Sess. 31 (1934).
Excerpt of Memo, Sol. I.D.
8 July 1936.
F. Cohen, Handbook of Federal
Indian Law, Univ.
New Mexico ed. undated).
47 ¥.R. 13327.
House Report No. 1896 from the
House Committee on Indian Affairs,
55th Congress, 3d. Sess. (1899).
H. Rep. No. 91-78, 9lst Cong.
lst Sess. (1969) "Disposal of
Rights in Tribal Lands Without
Tribal Consent".
K. Davis, Administrative Law
Treatise, : >
70 Mich. L. Rev. 955
(April 1972).
2 U.S. Code Cong. Serv. 1036
(1948).
71,72
27
38
50,54,
57,60
72
29
REFERENCE TO REPORTS OF
OPINIONS DELIVERED BELOW
[Rule 21.1(d)]
1. ADMINISTRATIVE AGENCY
A. Decision of the Assistant
Secretary of the Interior for Indian
Affairs, dated 19 June 1978, attached
as Exhibit "A" to complaint filed by
Southern Pacific Transportation Company
in the United States District Court for
the District of Nevada.
Included herein at Appendix B.
2. DISTRICT COURT
A. Summary Judgment, entered
14 August 1980, to which is appended
Order Granting Summary Judgment,
entered 25 July 1980.
B. Amended Summary Judgment
entered 28 August 1980.
Included herein at Appendix B.
ei$e
3. COURT OF APPEALS
A. Decision of the Court of
Appeals for the Ninth Circuit, filed
1 March 1983; reported at 700 F.2d 550
(1983).
Included herein at Appendix A.
-16-
STATEMENT OF GROUNDS ON WHICH
JURISDICTION OF THIS COURT IS INVOKED
[Rule 21.1(e)]
(i) The judgment of the Court of
Appeals sought to be reviewed herein
was dated and entered on 1 March 1983.
(ii) A Petition for Rehearing and
Suggestion for Rehearing In Banc was
filed on 14 March 1983.
The petition for rehearing was
denied and the suggestion for rehearing
in banc was rejected by Order filed
9 June 1983.
Petitioner filed a Motion for
Stay of Mandate on 14 June 1983.
By Order filed 27 June 1983
petitioner's motion for stay of mandate
was granted, predicated upon a petition
for writ of certiorari being filed in
f
the office of the clerk of this Court
on or before 14 July 1983.
(iii) The statutory provision
believed to confer jurisdiction on
this Court to review the judgment of
the Court of Appeals for the Ninth
Circuit is 28 U.S.C. §1254(1).
ai@e«
CONSTITUTIONAL PROVISIONS, STATUTES,
AND REGULATIONS INVOLVED IN THIS CASE
{Rule 21.1(f)]
Pertinent text of the following
is set forth in Appendices D and E.
oo United States Constitution
A. Art. = $6.
B. Amendment 5.
Be Federal Statutes
A. 5 U.S.C. §706.
B. Act of 2 March 1899, ch. 374,
30 Stat. 990 (codified at 25
U.S.C. §§312-318)("1899 Act").
c. Act of 5 February 1948, ch.
45, 62 Stat. 17 (codified at
25 U.S.C. §§323-328) ("1948
AGT").
o19<
Act of 18 June 1934, ch.
576, 48 Stat. 987 (Indian
Reorganization Act; "IRA")
(Section 16 codified at 25
U.S.C. §476).
2 Federal Regulations
A.
25 C.F.R. §§256.1-256.31
(1951).
25 C.F.R. §161.3 (1981).
25 C.F.R. §§169.1-169.28
(1982).
=20¢
STATEMENT OF THE CASE
[Rule 21.1(g), (h)]
SOUTHERN PACTFIC TRANSPORTATION
COMPANY (SP) submitted for filing with
the Secretary of the Interior (the Sec-
retary) an application to legitimize
its Central Nevada railroad right-of-way
through the reservation of the Walker
River Paiute tribe; the right-of-way
had, for technical reasons, been de-
clared invalid in 1976 by the 9th
1
Circuit. The application was pre-
pared and submitted pursuant to an
1899 statute” granting rights-of-way
through tribal lands to railroads.
1. Umited States v. Southern Pacific Trans-
portation Co., 543 F.2d 676 (9th Cir.1976).
2. Act of 2 March 1899, ch. 374, 30 Stat.990
(codified at 25 U.S.C. §§312-318) ("1899
Act").
e21l-
The right-of-way which SP sought to
validate has been in use for over 100
years; it is a part of the only railroad
service for Central Nevada shippers and
the U.S. munitions facility at Hawthorne.
The Secretary refused to file the
application, citing lack of tribal
consent.
At issue here is the legality
and/or applicability of an administra-
tive regulation requiring tribal con-
sent. That consent regulation was
enacted to regulate another right-of-
way statute governing administrative
grants of rights-of-way. We urge it
was improperly applied by the Secretary
to the Congressional grant of the 1899
Act and other special right-of-way
statutes. The regulation, as applied
-22-
by the Secretary, has the nationwide
effect of hindering and defeating the
creation or renewal of utility easements
(railroads, pipelines, electrical and
telephone transmission service) through
Indian reservations absent exorbitant
monetary tribute or other demands of
the tribes. The 1899 Act and the
special rights-of-way statutes contain
no tribal consent requirement. In
seeking tribal consent, SP found the
price unreasonable and subject to no
Secretarial supervision, review or
guidelines. After exhausting its
administrative remedies, SP filed suit
to compel the Secretary to accept and
process the application without prior
tribal consent. The District Court
for the Northern District of Nevada,
-23-
on cross motions for summary judgment,
ruled that tribal consent is not re-
quired as a condition precedent to
acquistion of a right-of-way under the
1899 Act. The tribe and the Secretary
appealed. The 9th Circuit reversed.
A petition for rehearing was timely
filed and denied.
The decision, if allowed to
stand, may lead to the District Court
granting a petition for ejectment in a
companion action, thereby eliminating
a segment of the only interstate rail
service to Central Nevada and the
Hawthorne munitions depot.
The effect of the decision below
is to permit the Secretary, without
express statutory authority, to subdele-
gate to an Indian Tribe the legislative
-24-
power to impose preconditions beyond
those specified in the 1899 Act. Addi-
tionally, under a broader view, the
decision will grant Indian tribes the
ability to frustrate utility operations
unless utilities meet tribal demands.
The effect of the consent regulation
as imposed by the Secretary will be
either termination of utility services
or increased cost to the consumer. ?
Federal jurisdiction in the
District Court for the Northern District
of Nevada was based upon 28 U.S.C.
§§1331; 2201, 2202 and 5 U.S.C. §§702,
706.
3. See Amicus Curiae Brief of Transwestern
Pipeline Company in support of petition
for rehearing in banc filed herein with
the Court of Appeals for the Ninth Circuit.
o25e
ARGUMENT
[Rule 21.1(j)]
A. BACKGROUND OF PERTINENT
STATUTES AND THE CONSENT
REGULATION
1. The 1899 Act.?+
The 1899 Act was passed at a
time in history when the transconti-
nental railroad network of this country
was being formed. Prior to its passage
a special right-of-way bill was utilized
with respect to each railroad line as
it passed over Indian land. The
number of such bills, time demands on
the Secretary of the Interior and the
Bureau of Indian Affairs for the
he Act of 2 March 1899, ch. 374, 30 Stat.
990 (codified at 25 U.S.C. §§312-318
("the Act").
=ZG<
consideration of such special bills,
and lack of uniformity in the substance
and procedure under such bills necessi-
tated a general statute providing for
railroad rights-of-way over Indian
land. The 1899 Act was passed to cure
these problems, and to promote the
growth and expansion of an interstate
railroad system in an expanding nation.
It was not passed to benefit or protect
Indians.»
- Clarke v. Boysen, 39 F.2d 800, 814 (10th
Cir. 1930).
3. See House Report No. 1896 from the House
Committee on Indian Affairs, 55th Congress,
3d. Sess. (1899), which accompanied H.R.
11868 (later enacted as the 1899 Act).
It is to be noted that this legislative
history of the 1899 Act contains no
indication that the purpose for its
passage was the protection of Indian
interests, a misconception utilized by
the Ninth Circuit as the basis for
"liberal" construction of the 1899 Act
@27e
The 1899 Act, by its express
language? is a grant jlirectly from
Congress of a right-of-way over Indian
land to any railroad company complying
with the requirements of the Act and
3.
(continued)
"in favor of the Indians". To the con-
trary, H.R. 1896 states that the statute
as framed (i.e., with no reference to
any requirement of Indian consent, but
containing provision for just compen-
sation to be determined and paid) was
fully protective of Indian rights and
interests.
Even if liberal construction in favor of
the Indians were proper, the rule is one
of statutory construction, applicable in
case of ambiguity; not a license to
disregard clear expressions of Congres-
sional intent. See DeCoteau v. District
County Court, 420 U.S. 425, 447 (1975).
The 1899 Act provides, at 25 U.S.C. 312:
"A right of way... [through
Indian land] ... is hereby granted to
any railroad. . . ." (Emphasis added)
@28@
with the implementing rules and regula-
tions prescribed by the Secretary.>
The Act has been characterized by
the Eighth and Tenth Circuits as a
condemnation statute; the Act itself
uses the phrase: "the property sought
to be condemned"; here, the Ninth
Circuit has held otherwise.
re The 1948 Act
6
The 1948 Act’ was enacted to
simplify and make uniform the provisions
by which the Secretary (as opposed to
Congress) could grant rights-of-way
over Indian land.’ Rights-of-way
Secretary of the Interior ("Secretary").
uw
6. Act of 5 February 1948, ch. 45, 62 Stat
17 (codified at 25 U.S.C. §§ 323-328)
("1948 Act").
7. See 2 U.S. Code Cong. Serv. 1036 (1948).
-29-
granted under the 1948 Act could be
for any purpose, whether solely of
local concern and effect or otherwise.
The 1899 Act, to the contrary, is
limited to railroad, telegraph, and
telephone rights-of-way.
The 1948 Act contains a provision®
prohibiting the Secretary from granting
a right-of-way under the 1948 Act across
lands of a tribe organized under the
9 without the consent of the tribe.
IRA
The consent requirement was included
in the 1948 Act to continue protection
provided for in section 16 of the IRA,
8. 25 U.S.C. §324.
9. Act of 18 June 1934, ch. 576, 48 Stat.
987 (Indian Reorganization Act; "IRA").
=30@
to prevent abusive disposition of
Indian lands by discretionary admini-
strative actions of the government.
10
10.
Section 16 of the IRA provides that the
constitution adopted by IRA tribes shall
vest in the tribe the right and power to
prevent the sale or disposition of tribal
land without the consent of the tribe.
It is obvious that neither section 16 of
the IRA nor the 1948 Act's consent require-
ment were intended to limit the ability
of Congress or officers of the government
acting pursuant to special mandate of
Congress, to create rights-of-way across
Indian lands.
See: Bill to Grant Indians Living Under
Tutelage the Freedom to Organize for
Purposes of Local Self-Government and
Economic Enterprise: Hearings on S-2755
Before the Committee on Indian Affairs,
U.S. Senate, 73rd Cong., 2nd Sess. 31
(1934) where then Commission of Indian
Affairs, John Collier, referring to a
bill which provided the impetus for the
IRA, explained the need to curb such
administrative abuse:
"This bill takes its origin from the
absolute necessity of in some way correct~-
ing the trend of the allotment, stopping
the loss of the remaining Indian lands,
-3l-
It was not intended to and should not
apply where the right-of-way, as in
the 1899 Act, is created by Congress.
10. (continued)
making it possible to bring the remaining
lands into usable blocks so that they can
be effectively and economically operated.
This is the purpose of this bill.
keES
Paralleling this basic purpose is
another purpose just as basic. The bill
stands on two legs. At present the
Indian Bureau is a czar. It is an autocrat.
It is an autocrat checked here and there
by enactments of Congress; but, in the
main, Congress has delegated to the
Indian Office plenary control over Indian
matters. It is a highly centralized
autocratic absolutism. Furthermore, it
is a bureaucratic absolutism.
The result is that if the Indians
all over the country have had any rights
it has been by the whim of the Indian
office or the Secretary of the Interior.”
Contemporary administrative construction
of the IRA was in accord with this view:
"It is true that the United States in its
sovereign capacity may condemn tribal
land for certain purposes and may even
32
s The Consent Regulation
The consent regulation
provides in pertinent part:
"No right-of-way shall be granted
over and across any tribal land
bn without the prior written
consent of the tribe."11
10.
ll.
(continued)
appropriate tribal land by act of Congress
subject to constitutional requirements of
compensation. But the rights and powers
with respect to tribal property granted
by the Constitution... of the.
Tribes are effective against officers of
the United States not acting under direct
mandate of Congress. Indeed, unless
officers of the Department can be re-
strained by the Tribe from disposing of
tribal property, all meaning has vanished
from the provision in section 16 of the
Indian Reorganization Act. Pie
(Emphasis added)
(Excerpt of Memo, Sol. I.D. 8 July
1936); See also 70 Mich. L. Rev. 955,
966-969 (April 1972).
The consent regulation was first promul-
gated at 25 C.F.R. §256.3 in 1951 (more
than fifty years after passage ot the
1899 Act). It was later found at 25
C.F.R. §161.3(a) and, on 30 March 1982,
was redesignated as 25 C.F.R. §169.3(a)
(47 F.R. 13327).
o33<
It is found in Part 169 of
Title 25 of the Code of Federal Regula-
tions, which Part deals generally with
the subject of rights-of-way over Indian
12 the consent regulation is
lands.
general in its terms, and does not
specify any particular type or statutory
source of right-of-way to which it is
intended to apply.
Section 169.23 of the right-of-way
regulations, however, applies specifi-
cally to railroad rights-of-way granted
under the 1899 Act and states that
rights-of-way granted under that Act
shall be subject to the provisions of
Section 169.23 "as well as other
pertinent sections" of Part 169. It
12. See, e.g., uses described at 25 C.F.R.
§§169.18, 169.22. 169.25, 169.26.
is the position of SP that the consent
regulation is not pertinent to rights-
of-way granted by Congress under the
1899 act, }*
is not. among the "other
pertinent sections" of Part 169, and
cannot apply to SP's application.
B. ARGUMENT
1. THE CONSENT REGULATION
DOES NOT APPLY TO AN
1899 ACT APPLICATION
The Secretary refused to
process SP's application because it
was unaccompanied by tribal consent.
The Court of Appeals here decided that
Congress had authorized the Secretary
to establish preconditions inconsistent
13. (as opposed to rights-of-way sought,
e.g., under the 1948 Act, where the
Secretary makes the initial determination
as to whether to grant such right-of-way).
o38e<
with and beyond those specified in the
1899 Act.
The consent regulation was never
intended to and does not apply to
railroad right-of-way applications
under the 1899 Act, as demonstrated by
the following points:
a. For over fifty (50)
years of operation of the 1899 Act, no
consent regulation existed;?°
b. The consent regulation
was promulgated after passage of the
1948 Act;
C. The 1948 Act is (but the
1899 Act is not) cited by the regulations
14. Southern Pacific Transportation Co. v.
Watt, 700 F.2d 550, 552 (9th Cir. 1983).
15. See footnote 11, supra.
-36-
themselves as the statutory authority for
the consent regulation;+®
d. The present regulations
recognize that the 1899 Act and the
1948 Act serve as alternate sources
for the procurement of the same type
of right-of-way;?’
e. The Secretary's applica-
tion of the consent regulation to an
16. The stated authority for adoption of 25
C.F.R. §§256.1 - 256.31 in 1951 designates
specific statutes which included the 1948
Act but did not include the 1899 Act.
The consent regulation itself [§256.3(c)
in 1951] expressly states (footnote 1)
that it was taken from the 1948 Act.
17. 25 C.F.R. §169.23(a) (as of 1 April 1982)
recites, in substance: 1) that the 1899
Act authorizes grants of railroad rights-
of-way; 2) that rights-of-way granted
under the 1899 Act shall be subject to
the provisions of §169.23; 3) generally,
rights-of-way granted under the 1948 Act
for railroad purposes shall also be
subject to the provisions of 169.23.
a
1899 Act right-of-way application is
not, we submit, based upon his belief
that the regulation was ever intended
to apply under the 1899 Act. Rather,
it is because the Secretary, for
reasons of self-convenience, has
adopted a policy whereby he has decided
to ignore the existence of the 1899
Act and its Congressional mandate, in
favor of processing all right-of-way
applications as if they were directed
to his administrative discretion under
the 1948 act; +8
£. The consent regulation
has no purpose in an 1899 Act setting
because the protection from administra-
18. H. Rep. No. 91-78, 91st Cong. 1st Sess.
(1969) "Disposal of Rights in Tribal
Lands Without Tribal Consent", at pages
22 and 24:
@38<
tive abuse which the IRA, the 1948
Act, and the consent regulation were
intended to protect against, is inappro-
priate and unnecessary where (as under
the 1899 Act) Congress itself has deter-
mined that the right-of-way described
in the 1899 Act should be granted.
This Court may dispose of this
case by holding that the consent regula-
tion does not apply to a railroad right-
of-way application made under the 1899
18. (continued)
"Although the 1948 Act did not
repeal other right-of-way acts, its
practical effect was to eliminate
the necessity and desireability of
using such acts. 2:
"It is also a matter of policy
that all Indian rights-of-way will
be granted under the 1948 Act.
This, we believe, will greatly
simplify and standardize the right-
of-way procedures.”
a3Ge
Act and that the Secretary's refusal
to process such application based upon
lack of tribal consent was improper.
2. IF THE CONSENT REGULATION
IS APPLICABLE TO AN 1899 ACT
APPLICATION, THE REGULATION
IS BEYOND THE SCOPE OF THE
AUTHORITY GIVEN THE SECRETARY
AND IS, THEREFORE, AN UNLAW-
FUL ATTEMPT TO AMEND THE STATUTE
Assuming, arguendo, that the
consent regulation applies to an 1899
Act application, the regulation is
beyond the scope of the Secretary's
authority, and is invalid because:
a. The addition of a
tribal consent condition is improper
where, as here, the statute is in the
nature of an eminent domain statute,
providing for a taking of property for
a public purpose upon payment of just
compensation.
-40-
The district court in this action,
The Eighth Circuit?? and the Tenth
20 have all characterized the
Circuit
1899 Act as a condemnation statute.
The 1899 Act itself uses the phrase
"the property sought to be condemned. "*?
The Court of Appeals recognized
that its decision that the 1899 Act
vested the Secretary with authority to
require tribal consent was necessarily
inconsistent with the view that the 1899
Act was an eminent domain statute. +?
19. United States v. Fort Smith & W.R. Co.,
195 F.211 (8th Cir. 1912).
20. Clarke v. Boysen, 39 F. 2d 800 (10th
Cir. 1930).
21. 25 U.S.C. §314.
22. 700 F. 2d. at 554. The court acknowl-
edged the definition of eminent domain as
the power of the sovereign to take prop-
erty for public use without the owner's
consent.
ale
The decision of the Court of
Appeals in this case is in conflict
with the opinions of the Eighth and
Tenth Circuits characterizing the 1899
Act as a condemnation statute. This
conflict should be resolved by this
Court.
b. The 1899 Act authorizes
the Secretary to make "all needful rules
and regulations, not inconsistent here-
with, for the proper execution and carry-
ing into effect of all the provisions of
this act."23
By enacting the 1899 Act, Congress
decided that railroads with the intent
and ability to construct a railroad
line with facilities for the public
23. 25 U.S.C. §317.
=42<
convenience should be (and were)
24 conditioned
granted rights-of-way,
upon payment of just compensation to
the Indians for the right-of-way taken
and damages caused.*>
By the consent regulation, the
Secretary has decided that regardless
of the railroad's intent and ability
to meet these requirements of Congress,
no such right-of-way may be granted
unless the Indians consent to it.
Not only is the tribal consent
condition a requirement beyond those
specified in the Act, it is inconsis-
tent with the concept of the Congres-
sional grant upon payment of just
compensation. The consent regulation,
24. 25 U.S.C. $312.
25. 25 U.S.C. §314.
o43<
being "inconsistent with" the statute
itself, is beyond the scope of regula-
tion permitted by 25 U.S.C. §317 and
is therefore invalid.
C. The Secretary's authority
is to promulgate regulations which are
necessary for the implementation of
the rather specific policy dictated by
Congress in the 1899 Act. That policy
not only says nothing about the consent
of the Indians being a condition to
the grant, it contemplates objection
by the Indians and deals with the
problem by setting forth the means by
which just compensation will be deter-
q.26
mined and pai The detailed provi-
sions of the Act implicitly limit the
26. 25 U.S.C. §314.
-44-
scope of the Secretary's rulemaking.*’
The consent regulation does not "carry
into effect" any provision of the 1899
act. 2°
d. The Secretary's attempt
to limit the benefits of the statute
to only those railroads willing to pay
the price of Indian consent is an in-
valid attempt to rewrite the statute
by adding a requirement Congress did
not prescribe. Previous attempts by
the executive branch of government to
usurp the powers reserved to the
legislative branch have been invali-
27. The Secretary has promulgated a regula-
tion implementing the policy of the 1899
Act (25 C.F.R. 169.23 (1 April 1982)].
28. See 25 U.S.C. $317.
u4Se
29 so should this
dated by this Court;
regulation when applied to the 1899
Act.
e. In the briefs submitted
to the Court of Appeals, the Tribe
argued that the Secretary, under the
1899 Act, had “unfettered authority to
establish grant preconditions in addi-
tion to those established by the Act's
provisions."?°
31
In Kent v. Dulles, this Court
avoided serious questions of unconsti-
tutional delegation of the power of
29. Morrill v. Jones, 106 U.S. 466 (1882);
United States v. Eaton, 144 U.S. 677, 687
(1891); United States v. United Verde
Copper Co., 196 U.S. 207, 215 (1904);
Francis v. Francis, 203 U.S. 165 (1906).
30. Page 8 of Tribe's brief to Court of
Appeals for the Ninth Circuit.
31. 357 U.S. 116 (1958).
-46-
Congress to the executive branch by
holding that Congress had not, as was
there contended, given the Secretary
of State unbridled discretion to grant
or withhold passports for any reason
he might choose.
The right of exit from the country,
considered in Kent, and the free flow of
interstate commerce in this case, are
matters which are constitutionally
committed to the law making functions
of Congress. Congress has not, in
explicit terms, made any provision for
Indian consent, and has provided for
the granting of rights-of-way without
consent. This Court should not attri-
bute to Congress an intent to permit
the Secretary unchecked discretion to
add conditions to the statutory grant.
a4 Je
A holding, on any of the above
grounds, that the consent regulation
was invalid as being beyond the scope
of the Secretary's authority under the
1899 Act, will dispose of this case
without the necessity of reaching the
constitutional issues raised below.
a IF THE CONSENT REGULATION
IS WITHIN THE SCOPE OF THE
SECRETARY'S AUTHORITY,
CONGRESS HAS, BY GRANTING
SUCH AUTHORITY, UNCONSTI-
TUTIONALLY DELEGATED ITS
LEGISLATIVE POWER TO THE
SECRETARY
The Court of Appeals in this
case found it reasonable to conclude
that where Congress, in the 1899 Act
said:
"A right-of-way ... is
hereby granted to any railroad
company which shall comply with
[this Act and the regulations
prescribed hereunder]"
-48-
that what Congress meant was that the
Secretary should take it upon himself
to decide that the right-of-way so
granted by Congress should be withheld
if the Indians, for whatever reason,
did not care to have the right-of-way
exist.
The Court ignored SP's argument
that such an interpretation attributed
to Congress an unconstitutional delega-
tion of the legislative power of
Congress. Except to the extent of its
discussion concerning subdelegation of
authority from the Secretary to the
Indians (discussed infra) the Court of
Appeals did not discuss the issue.
Perhaps the Court of Appeals
agreed with observations by members of
this Court and legal commentators to
-49-
the effect that unconstitutional Congres-
sional delegations found in Panama Refin-
ing Co. v. Ryan, 293 U.S. 388 (1935),
and Schechter Poultry Corp. v. United
States, 295 U.S. 495 (1935) are a thing
of the past.°¢
We believe that the principle of
unconstitutional delegation of authority
not only has remaining vitality, but is
applicable in this case. When applied,
it will be seen that if Congress did
grant such unbridled power to rewrite
the statute, an unconstitutional dele-
gation would have been made. Such a
32. See FPC v. New England Power Co., 415
U.S. 345, 352, 353 f.n. 1; 2 K. Davis,
Administrative Law Treatise, §3.2 (1978)
(2d. Ed.).
-50-
finding, we urge, can be avoided by
properly interpreting the 1899 Act as
not granting such authority to the
Secretary.
In the approximate half century
since Panama and Schechter, supra,
unconstitutional delegation of legisla-
tive power has been suggested to
embody different principles. We
believe the following to constitute
some of the more important concepts.
Tested under any of the principles,
the purported delegation in this case
fails to pass muster:
a) Absence of Declared
Congressional Policy and Standards for
Action.
In Panama, this Court established
criteria for the lawful delegation of
a$i<
legislative power. The Court looked
to determine whether Congress had:
1) declared a policy with respect to
the subject of the legislation; 2) set
up a standard for the action of the
delegatee of the power; and 3) re-
quired any finding of fact by the
delegatee as a condition to his exer-
cise of the power. Finding none of
these, this Court declared the "un-
fettered discretion" sought to be
conferred on the President was an
unconstitutional delegation of legis-
lative power.?°
In the present case, the 1899 Act
contains no statement of policy concern-
ing either Indian preconsent or the
33. 293 U.S. at 415.
=a$2e
imposition of any preconditions to the
grant which are not specified in the
Act itself. Also, there are no stan-
dards to govern the Secretary's exer-
cise of his discretion imposing addi-
tional conditions generally or Indian
consent specifically. Finally, no
finding of fact is required before
these additional conditions may be
imposed.
By this test the action attributed
to Congress (authorizing the Secretary
to add requirements not specified in
the Act, such as Indian consent) would
fail.
b) Degree of Certainty as
to the Expressed Will of Congress.
It is proper to find that legisla-
tive power has been lawfully delegated
530
when it is unmistakably clear that
Congress intended to delegate the
power. Congress has neither the time
nor the expertise to legislate meaning-
ful standards in many areas of federal
34 However this Court
legislation.
has not hesitated to strike down
agency attempts to exert broad power
when it was not clear that Congress
intended such power to exist.?>
34. See, e.g., discussion in 1 K Davis,
Administrative Law Treatise, §3.3 (1978)
(2d. Ed.); Sunshine Coal Co. v. Adkins,
310 U.S. 381, 398 (1940); Industrial
Union Dept. v. American Petrol Inst.,
448 U.S. 607, 674-675 (1980) (Rehnquist,
J., concurring); Hampton & Co. v. United
States, 276 U.S. 394, 406-408 (1928).
35. Compare Hampton & Co. v. United States,
276 U.S. 394 (1928); Fahey v. Mallonee,
332 U.S. 245 (1947); and Carlson v. Landon,
342 U.S. 524 (1952) (clear manifestation
of Congressional intent to grant agency
discretionary power - delegation upheld)
with FPC v. New England Power Co., 415
-54-
Under this test, the 1899
Act does not permit any interpretation
that Congress irtended that the Secre-
tary could impose conditions which
defeat rather than implement the
statute. The legislative history of
the 1899 Act does not indicate that
Congress ever considered a tribal
consent condition. When Congress,
prior to enactment of the 1899 Act,
passed special statutes for railroad
construction it sometimes made such
grants subject to Indian consent. It
35. (continued)
U.S. 345 (1974), National Cable Television
Ass'n v. United States, 415 U.S. 336 (1974),
and Hampton v. Mow Sun Wong, 426 U.S. 88
(1975) (unclear manifestation of Congres-
sional intent, agency discretionary power
held improperly exercised although different
result indicated if Congressional determina-
tion were clear).
-55-
had no difficulty expressing its
36 The 1948 Act is an example
intent.
of a situation where Congress believed
an Indian consent condition should
exist (i.e., where the decision to
create a right-of-way was to be made,
in the first instance, by administrative
decision of the Secretary, rather than
by Congressional determination as in
the 1899 Act). Accordingly, Congress
included a consent requirement in the
36. Compare Act of 5 August 1882, ch. 394, 22
Stat. 299; Act of 30 May 1888, ch. 336,
25 Stat. 160; Act of 8 May 1890, ch. 198,
26 Stat. 102, and Act of 18 February 1895,
ch. 95, 28 Stat. 665 (Indian consent
required), with Act of 15 February 1887,
ch. 130, 24 Stat. 402; Act of 6 March 1896,
ch. 42, 29 Stat. 44; Act of 4 June 1898,
ch. 377, 30 Stat. 430; and Act of 18 June
1898, ch. 465, 30 Stat. 475 (no Indian
consent required - in the nature of
condemnation statutes).
afta
1948 Act.>/ The absence of a clear
expression of Congressional intent,
that Indian consent be either required
or permitted as a condition to the
1899 Act right-of-way grant, compels
the conclusion that no such condition
is permissible in this case.
c) Safeguards Against
Arbitrariness.
It may be that this Court should
acknowledge that one of the basic
purposes behind the nondelegation
doctrine is that administrators should
not have unguided and uncontrolled
discretionary power to govern as they
38
see fit. That acknowledgment might
37. 25 U.S.C. $324.
38. K. Davis, Administrative Law Treatise,
§§3.15, 7.26 (1978)(2d. Ed.).
oS Fa
be accompanied by recognition that
Congressional delegation of legisla-
tive power is a necessity of modern
government; protection of those persons
affected by the administrative exercise
of that power must be assured; assurance
would occur with the requirement that
a total package of standards and
safeguards (supplied either by the
legislative body or the administrative
agency) provide protection against
power being exercised arbitrarily.
This view is based upon the concepts
of procedural due process.
The interrelationship between
unconstitutional delegation of legisla-
tive power and due process has been
recognized by this Court. In Carter v.
-58-
39
Carter Coal Co. the attempted dele-
gation of legislative power was found
to be so obnoxious and arbitrary as to
constitute a denial of Fifth Amendment
due process protection.
In Hampton v. Mow Sun wong, 7°
Justice Rehnquist, in dissent, charged
the Court with deciding, on due process
grounds, what was essentially a question
of Congressional delegation of legisla-
tive power to an administrative agency. *}
Professor Davis observes that a
trend of authority is developing which
recognizes that the presence or absence
of safeguards and/or standards designed
39. 298 U.S. 238, 311-312 (1935).
40. 426 U.S. 88 (1975).
41. See 426 U.S. at 117, 119-123.
-59-
to protect against arbitrariness should
be the constitutional criterion for the
propriety of delegations of legislative
42
power:
"The non-delegation doctrine
was used over a period of four
or five decades to require
statutory standards; now that
the nondelegation doctrine has
largely failed, courts may sub-
stitute a requirement of admini-
strative standards or rules for
the former requirement of statu-
tory standards." 2 K. Davis,
Administrative Law Treatise,
§7.26, page 13l (1978)(2d. Ed.).
It can be seen here that traditional
concepts of fundamental fairness are
totally absent from the procedure to
42.
See discussion and cases at 1 K. Davis,
Administrative Law Treatise, §3.15
(1978) (2d. Ed.) and 1982 supplement
§3.15. It has been held that due process
is lacking when the administrative
agency fails to articulate, in writing,
objective ascertainable standards that
govern the exercise of its discretion.
Baker-Chaput v. Cammett, 406 F.Supp.
1134 (1976).
-60-
which SP has been subjected. Neither
the 1899 Act itself nor its legislative
history mention Indian consent as
a condition to the right-of-way it pro-
vides. No concept of an Indian veto
power over rights-of-way created by
an 1899 Congress attempting to expedite
and simplify the generation of a
national railroad network can be found
in the statute or its history.
No standards were imposed by Congress
to guide the Secretary's supposed
ability to condition the Congressional
grant.
These deficiencies have not been
cured by administrative action. The
Secretary administered the 1899 Act
for more than fifty years without any
statutory requirement of Indian consent
-6l-
and without a regulation requiring
such consent. When the consent require-
ment was promulgated the Secretary
gave no notice that it was to be
applied to 1899 Act applications.
Neither the regulation itself nor the
procedures adopted by the Secretary
(as evidenced by this case) make any
provision for adoption of standards by
which Indian consent is to be given or
withheld. There is no procedure for
review by the Secretary of arbitrary
tribal conditions or denial of consent.
No opportunity is provided for SP to
be heard because the Secretary will not
even consider an application unaccom-
panied by tribal consent. The Secretary
nullified the 1899 Act benefits provided
by Congress. He granted the Indians
@62-
the unfettered ability to prevent the
statutory benefits unless the price of
their consent is paid.
We urge that the Court of Appeals
was wrong to have held that the Secre-
tary had such power and properly exer-
cised it in this case.”
If Congress
had granted such power, the grant
would, under any test, violate
43. The Court of Appeals relied upon the
“administrative deference" rule in find-
ing the Secretary's interpretation of the
1899 Act to be reasonable. In so doing,
the Court ignored these principles:
i. Courts are the final authority
on statutory construction, they need not
rubber-stamp administrative decisions.
FEC v. Democratic Senatorial Campaign
Comm. 454 U.S. 27, 32 (1981); Teamsters
v. Daniel, 439 U.S. 551, 566 n.20 (1978);
See Espinoza v. Farah Mfg. Co., 414 U.S.
86, 94-95 (1973); New York State Dept. of
Social Services v. Dublino, 413 U.S. 405,
419-420 (1973); Reliance Electric Co. v.
Emerson Electric Co., 404 U.S. 418, 427
(1971).
constitutional principles of nondele-
gation and due process.
The proper interpretation of the
1899 Act avoids such a holding. The
District Court was correct when it held
that Indian consent is not required as
a condition precedent to acquisition
of a right-of-way under the 1899 Act.
43.
(continued)
2. Courts must reject administra-
tive statutory construction frustrating
the mandate of the Act. SEC v. Sloan,
436 U.S. 103, 118 (1978); FIC v. Colgate-
Palmolive, 380 U.S. 374, 385 (1964);
NLRB v. Brown, 380 U.S. 278, 291 (1964);
Volkswagenwerk v. FMC, 390 U.S. 261, 272
(1968); FMC v. Seatrain Lines, Inc., 411
U.S. 693, 745 (1973).
3. The weight to be given to an
interpretative regulation depends upon
the thoroughness evident in its considera-
tion, the validity of its reasoning, and
its consistency with earlier and later
pronouncements. Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944); Morton v. Ruiz,
415 U.S. 199, 237 (1974); Soriano v.United
States, 494 F.2d 681, 683 (9th Cir. 1974).
estén
4. IF THE DELEGATION TO THE
SECRETARY IS PERMISSIBLE,
THE SECRETARY'S SUBDELEGA-
TION TO THE INDIAN TRIBE,
OF AN UNCONTROLLED VETO
POWER IS REPUGNANT TO FIFTH
AMENDMENT DUE PROCESS
REQUIREMENTS.
Even if Congress is found to have
lawfully delegated to the Secretary an
ability to add conditions beyond those
specified in the 1899 Act, the Secretary
cannot lawfully delegate that power to
the Tribe.
The Court of Appeals justified
the subdelegation because the regula-
tion did not relinquish to the tribe
the final authority to approve; it
32
merely delegated a power to disapprove.
The Court did not speak to the fact
44. 700 F.2d at 556.
=65@
that the Secretary, under this proce-
dure, will not process an application
or otherwise implement the statute
unless the Indians decide that he may.
By withholding their consent the tribe
prevents the effectuation of the
Congressional plan. The Secretary will
not even inquire into the reasons for
their action.
The power which the Secretary has
granted the Indians knows no boundaries.
The Secretary has adopted no standards
by which Indian consent is to be given
or withheld. He has provided no
guidelines or standards to enable him-
self or this Court to determine whether
the withholding of Indian consent is
based upon arbitrary exercise of
Indian discretion. Moreover, no
-66-
review of the exercise of that discre-
tion is provided for.*°
SP contends that the Secretary's
action constitutes a subdelegation
violative of due process*° and requir-
ing review and correction under 5
U.S.C. §706(2)(A), (B), and/or (C).
_ INDIAN SOVEREIGNTY DOES NOT
CURE THE SUBDELEGATION.
The Court of Appeals found justifi-
cation for the Secretary's subdelegation
to the Indians in this Court's statement
45. See Nicholas v. Kahn, 389 N.E.2d 1086,
1091 (1979); Holmes v. New York City
Housing Auth., 398 F.2d 262 (2d Cir.
1968); Soglin v. Kauffman, 418 F.2d 163
(7th Cir. 1969); Environmental Defense Fund
v. Ruckelshaus, 439 F.2d 584, 598 (1971).
46. Seattle Trust v. Roberge, 278 U.S. 116,
122-123 (1928); Eubank v. Richmond, 226
U.S. 137, 143-144 (1912).
a§Je
47
in U. S. v. Mazurie that limitations
on delegation of legislative power are
"less stringent in cases where the
entity exercising the delegated autho-
rity itself possesses independent
authority over the subject matter".
Moreover, the Court stated: "nor
must such a subdelegation rest on
express statutory authority". 7
The Court's approval of this sub-
delegation was in error because:
a. In Mazurie this Court up-
held an express Congressional delegation
of legislative power to Indian tribes,
to regulate the introduction of liquor
into Indian county. Here, the delega-
47. 419 U.S. 544, 556-557 (1975).
48. 700 F.2d at 556.
-68-
tion of power to the Indians was made
by the Secretary alone.
b. In Mazurie there were
safeguards against Indian arbitrariness
in that the Indians could exercise
their delegated authority only pursuant
to ordinance approved by the Secretary.
Here, there is no provision for prior
or subsequent Secretarial review of
the Indians' exercise of power. This
Court has expressly reserved decision
on the question of whether and to what
extent the Fifth Amendment would be
available to correct arbitrary or
discriminatory tribal exercise of its
delegated federal authority.*?
Cc. Mazurie involved control
of liquor in Indian country - a matter
49. 419 U.S. at 558, f.n. 12.
=-69-
of local control over tribal life.°°
Here we have an interstate railroad.
Authority over interstate commerce is
reserved to Congress.
Implicit divestiture of Indian
sovereignty has been held to have
occurred in areas such as this, involv-
ing relations between an Indian tribe
31 Because
and nonmembers of the tribe.
an attempt by the tribe to exclude an
interstate railroad is inconsistent
with the overriding interests of the
national government, its power to do
so is implicitly divested. >“
50. 419 U.S. at 557.
51. Oliphant v. Suquamish Indian Tribe, 435
U.S. 191 (1978); United States v. Wheeler,
435 U.S. 313 (1978).
52. Washington v. Confederated Tribes of the
Colville Indian Reservation, 447 U.S.
134 (1980).
@FQe@
d. The Court of Appeals
justified the subdelegation because "a
tribe has independent authority to
regulate the use of its own lands". >?
Powers lawfully vested in an
Indian tribe are not, in general,
powers delegated by express acts of
54
Congress. A tribe's inherent powers
of limited sovereignty are subject to
defeasance by the supreme legislative
55
power of the United States. Thus,
53. 700 F.2d at 556.
54. F. Cohen, Handbook of Federal Indian Law,
122 (Univ. New Mexico ed. undated).
55. Cherokee Nation v. Kansas Railway Co.,
135 U.S. 641 (1889). See also Santa Clara
Pueblo v. Martinez, 436 U.S. 47, 56 (1978):
". . . Congress has plenary authority to
limit, modify, or eliminate the powers of
local self-government which the tribes
otherwise possess. . . Title I of the
ICRA, 25 U.S.C. §§1301-1303, represents
an exercise of that authority.”
«Jie
as
statutes of Congress must be examined
to discover limitations on, not sources
56
of, tribal power.
By the 1899 Act, Congress expressly
exercised its plenary power over tribal
lands and granted railroad rights-of-way
across Indian lands. The retained
sovereign power to exclude railroads
from Indian land was thereby divested.
Cc. CONCLUSION
The Ninth Circuit in this case
has reached a result contrary to the
clear mandate of Congress. It has
approved a procedure violative of
constitutional principles of delega-
tion of powers and due process prohi-
56. F. Cohen, Handbook of Federal Indian Law,
122 (Univ. New Mexico ed. undated); 70
Mich. L. Rev. 955, 955-956.
@720
bitions against arbitrary exercise of
discretion.
If not corrected by this Court,
public utilities attempting to utilize
rights-of-way across Indian land,
created by specific Congressional
Acts, must choose between complying
with uncontrolled Indian demands,
terminating service, or increasing the
utility cost to consumers.
(Signature Page Follows)
Respectfully submitted,
FOLEY, MC INTOSH & FOLEY
Professional Corporation
By => Robert J. Foley
Robert J. Foley
By — William R. Foley
William R. Foley
ECHEVERRIA AND OSBORNE,
CHARTERED
By /s/ Peter Echeverria
Peter Echeverria
By = Nathan M. Jenkins
Nathan M. Jenkins
Attorneys for Petitioner,
SOUTHERN PACIFIC TRANS=-
PORTATION COMPANY
-74-
APPENDICES
[Rule 21.1(k)]
[Index to Appendices)
APPENDIX A:
¥ Decision of the United
States Court of Appeals,
Ninth Circuit, decided
1 March 1983, published
at 700 F.2d 550 (1983). i
APPENDIX B:
i. Decision of the United States
Court of Appeals, Ninth Circuit,
decided 10 September 1976, pub-
lished at 543 F.2d 676 (1976)
(companion case). ii
a. Decision of the Assistant
Secretary of the Interior
for Indian Affairs,
dated 19 June 1978. iii
@75@
Summary Judgment, entered
14 August 1980, by the United
States District Court, District
of Nevada, to which is appended
Order Granting Summary Judgment,
entered 25 July 1980. lv
Amended Summary Judgment,
entered 28 Auc st 1980, by
the United States District
Court, District of Nevada. Vv
APPENDIX C:
1.
Note: A copy of the judgment
sought to be reviewed is included
at APPENDIX A.1l. vi
Petition for Rehearing and
Suggestion for Rehearing in
Banc, filed by Southern
Pacific Transportation
Company on 14 March 1983 in
the United States Court of
Appeals for the Ninth Circuit. vii
Order denying rehearing and
rejecting suggestion for re-
hearing in banc, dated 9 June
1983 by the United States Court
of Appeals for the Ninth
Circuit. viil
Motion for Stay of Mandate
Pending Application for
Writ of Certiorari, filed by
Southern Pacific Transporta-
tion Company on 14 June 1983
in the United States Court of
Appeals for the Ninth Circuit. ix
eTTeo
Page
Ss. Order on Motion for Stay of
Mandate, dated 27 June 1983,
by the United States Court
of Appeals for the Ninth
Circuit. x
APPENDIX D:
se United States Constitution,
Art. I, §8. xi
Be United States Constitution,
Fifth Amendment. xii
. 5 U.S.C. §706. xiii
4. Act of 2 March 1899,
ch. 374, 30 Stat. 990
(25 U.S.C. §§312-318)
("1899 Act"). Xiv
5. Act of 5 February 1948,
ch. 45, 62 Stat. 17
(25 U.S.C. §§323-328)
("1948 Act"). XV
Page
6. Act of 18 June 1934, ch. 576,
48 Stat. 987 Section 16,
(Indian Reorganization Act;
"TRA") (25 U.S.C. §476). xvi
APPENDIX E:
1. 25 C.F.R. §§256.1-256.31
(1951). xvil
2. 25 C.F.R. $161.3 (1981). Xxvill
x 25 C.F.R. §§169.1-169.28
(1982). xix
o79@
APPENDICES
APPENDIX A
Decision of the United States
Court of Appeals, Ninth Circuit,
decided 1 March 1983, published
at 700 F.2d 550 (1983).
“In thw instance we conclude that the
universal ese of parents w secure Lhe
mivantages vf lugher qducatuon for thew
chikiren and Ww offess whenever posmbie
the imcreasing quest of such educaton,
makes the application of the regwirauon
requirements of the Securities Act em-
phalics!ly necessary here. While there is
nw showing of fraud of misrepresentauion
of any kind and it may well be that the
founders of The Foundation are them-
selves actuated by a sincere desire ww aud
their fellowman and to foster the educa-
tuon of the youth of this nation, the op
portunities for wrongdoing with such a
broad and fertile field of prospective in-
vestors ure unlimited.”
American Foundatioa at 881.
In support of the American Foundation
and Waddle decisioas, this court is mindful
of the Supreme Court’s admonition in SEC
v. CM. Joiner Leasing Corp., 320 U.S. 344,
351, 64 S.CL L2v, 123, 88 L.Ed. 88 (1943),
that “the reach of the Act does not stop
with the obvious and commonplace,” and
the oft-quoted directive in SEC v. WJ.
Howey, Co., 323 U.S. 283, 299, 66 S.Ct. 1100,
1103, 90 L. Fad. 1244 (1946), that the concept
of security “embodies a flexible rather than
a slalc principle, one that is capable of
amlaplon Ww meet the countless and variable
schemes devised by those who seek the use
of the money of others on the promise of
profits.” We are also aware that the de-
sign of the securities laws and their purpose
for requiring registration of all securities in
the absence of statutory exemption is to
protect investors by promoting and requir-
ing a full disclosure of information thought
lw be necessary Ww persons desiring to make
informed investment decisions. SEV vy.
Ralston Purina Ca, 346 US. 119, 78 S.Ct
G61, 97 LEal. 1494 (19638).
For these reasons we conclude that the
CAP pre-need college tuition plans are in-
veaiment contracts within the definitional
bounds of the Guam Uniform Securities Act
and are, therefore, subject to the registra-
tion requirements of such Act.
AFFIRMED.
700 FEDERAL REPURTEK, 4 SERIES
SOUTHERN PACIFIC TRANSPORTA-
TION COMPANY, Mtaiatiff-Appetiee,
v.
James G. WATT, Secretary of the Interi-
or, et al, Defendant-Appellant,
and
Walker River Paiute Tribe of Nevada,
Defendgat-Intervenor- Appellant.
Nes. 30-4506, 40-4506.
United. States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 14, 1982
Decided March 1, 1983.
Railroad sought review of adminiwtra-
tive denial of its application for railruml,
telephone and telegraph right-of-way across
tribal lands for lack of tribal consent Ww
right-of-way. The United States District
Court for the District of Nevada, Bruce RK.
Thompson, J., grants! summary judgment
for railroad, and tribe am! Secretary of the
Interior appealed. The Court of Appeals,
Canby, Circuit Judge, held that Secretary
acted within his power in reyuying by regu-
lation that tribal consent be obtained for
acquisition of nyht-of-way.
Reversed and remanded.
1. Indians <=10
Statute which grants mght-of-way for
railway, telegraph ami telephone line
through any Indian reservation Ww uny ruil
road which complies with applicable statu
tory provisions and rules and regulation
was intended fully to protect Indian inter
esta and must be liberally construed in fa
vor of Indians 2 USCA. §§ 312-318
2 Indians & 15(2)
Under statute which grants rightwf
way for any railway, telegraph and tele
MOUTHERN PACIFIC TRANSP. CU. v. WATT
551
Cite as 708 F 26 656 (1983)
phone line through any Indian reservation
Ww any railrow! which complies with statulo-
ry provisions and rules and regulations, Sec-
retary of the Interor acted within his pow-
er in requiring by regulation that tnbal
consent be oblained for acquisition of nght-
of-way by railroml. 25 USCA. §§ 312-
31s
3. Indians & 10
Statute which grants right-of-way for
railway, telegraph and telephone line
through any Inmlian reservation to any rail-
road that ees ulics with statutory provisions
and rules.’ regulations does not consti-
tule yrant -< railroad corapanies of power
of eminent domain since statute contains no
expres grant of power of eminent domain
nor is it necessary lo imply such a grant to
make statute effective. 2 USCA.
§§ 312-316.
4. Public Lands «71
Once grant in praesent, which was ju-
dicially created to establish prorities among
rival private claimants to federal lands, is
approved by desgnated government offi-
cial, it relates back Uo date grantee com-
menced proceedings lo obtain UUle and cuts
off all claamants whose nghts were initiated
luter but relation back of title applias only
as aguinst olher invervening claimants and,
us against United States, no vested right
arises until requirements are met and grant
has been approved by designated official.
5. Constitutional Law @=62(5)
Indians #= 15/1)
Congress notay vest in administrative
officinl the authonty Lo establish diseretion-
ary conditions with which prospective
grantees must comply in order to make
Krunts effective and trigger relatiqn beck
of Utle, and Congress did exactly that in
slaiule which grants mnght-of-way for rail-
way, Wleyraph ani telephone line through
any Indian reservation to any railroad
which complies with statutory provisions
and rules and regulations
thereunder, USCA. §§ 312-318
thority w an indiana ibe is enaiggees to
suldelewation W stale or local government,
which is nol per se improper, am! such a
subdecleyalion neud nol rest on express slal-
ulory authority
7. Indians © 15(2)
Secretary of the Interior’s regulation
requinng that tribal consent be obtained
for acquisition of ryght-of-way was not ab-
dication of Secretary's power lo alminwter
statute which grants right-of-way fur ruil-
way, telegraph and telephone line Lhrough
any Indian reservation W any railroml! thal
complies with statutory provisions and rules
and regulations prescribed thereunder but,
rather, constituted effort by Secretary w
incorporate into decision-making process
the wishes of a body with independent au-
thonty over affected lunds, and thus redele-
gution was proper, 25 USCA. §§ 312
318.
Laura Frossard, Atty, Dept. of Justice,
Washington, D.C. Yvonne T. Knight, Na-
tive Americans Rights Fund, Boulder, Colv.,
for Watt.
Nathan Jenkins, Reno, Nev., William R
Foley, Robert J. Foley, Foley, Melntosh &
Foley, Albany, Cal., for Southern Pacific.
James McCartney, Houston, Tex., for
amicus curiae Transwestern Pipeline Co.
Appeal from the United States District
Court for the District of Nevada.
Before FLETCHER, POOLE ani CAN-
BY, Circuit Judges.
CANBY, Circuit Judge:
The Walker River gute Tribe of Neva-
da (Tribe) and the Secretary of the Intenor
552
§§ 312-318 (1976)) (1899 Act or Act). We
disagree and reverse the grant of summary
judgment in favor of Southern Pacific.
l. Facts
The relevant facts are undisputed. Since
1852 Southern Pucific and its predecessors
have operated a railway and adjoining lele-
phone and telegraph lines over lands within
the Walker Kiver Indian Reservation. In
1976, this court held that Southern Pacific
“does not have and has never had a valid
mght-of-way across lands within the orig-
nal 1874 executive order boundaries of the
Walker River Reservation except through
the lands ceded by the Tribe to the United
States in 1906." United States v. Southern
lucific Transpor.,, 543 F.2d 676, 609 (9th
Cir. 1976) (Southern Pacific J). As « result,
vi Apml 28, 1977, Southern Pacific filed an
application with the Western Nevada Agen-
cy of the Bureau of Indian Affairs for a
railroad, telephone and telegraph nght-of-
way through 10.89 miles of tribal lands
within the Walker River Indian Reserva-
wn. Southern Pucific sought the right-of-
way under the provisions of the 1899 Act.
On May 4, 1977, the Agency Superintendent
rejected the application without filing it,
because it did not include evidence that the
Tribe had consented to the right-of-way.
Southern Pacific appealed the Agency Su-
perintendent’s decision within the agency,
and the decision was upheld at all adminis
trative levels.
Seuthern Pacific sought review of the
agency action in federal district court. The
Tribe intervened as a party-defendant. Af-
ler cross mutions for summary judgment,
the district court egtered judgment in favor
for a mght-of-way under the 1888 Act. The
ne >
Act itevlf vests in the Secretary the
ain © en aundittin, elaine
Sieh ae, at va reread mghte-of-way
706 FEDERAL REPORTER, 24 SERIES
across Indian tribal lands. They argue that
the district court erred in characterizing the
1899 Act as an eminent domain statute and
4 grant in praesentii The Tribe argues in
the alternative that even if the 1899 Act is
&@ grant in preesenti, that fact woul! not
preclude the Secretary from establishing
condiuons with which prospective yrantees
must comply before « grant becomes ef fec-
tive. We conclude that the 1899 Act is not
an eminent domain statute. We further
conclude that the 1899 Act—whether a
grant in praesent of not—authorizes the
Secretary W establish, by regulation, yrant
preconditions, including one of tnbal cun-
went. The Secretary has exercised thul au-
thority and promulgated « regulation pro-
viding that “[njo mght-of-way shall be
granted over ami! across any tribal Jund
without the prior consent of the Uribe.” 25
CPLR. § 16Lidw) (1981). We reject South-
ern Pacific's contention that the regulation
constilules an unlawful redeleyation of the
Secretary's authority
{1} In interpreting the 1899 Act, we are
guided by our eurlier determination in this
case that the Act was intended fully to
protect Indian interests. Soutiern Pacific
I, 543 Pad at 682; see H.R.Rep. No. 1896,
55th Cong., dd Sess. 2 (1899). [It must
therefore be liberally construed in favor of
the Indians. Ji/; see Bryan v. Itasca Coun-
ty, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48
L.Fal.2u 710 (1976). We must also bear in
mind that the construction of a statute ren-
dered by the agency charged with its aad-
ministrauion w ordinarily entitled Ww sul-
stantial deference. United States v. Ruth-
erford, 442 US. 544, 563, 99 S.CL 2470,
2475, 61 L.Ed. 2d 68 (1979); Udall v. Tuil-
man, 380.U.S. |, 16, 86 S.Ct. 792, 801, 13
L.ExL2d 616 (1966); Central Lincoln, Peo
ples’ Utility Dist. v. Johnson, 673 F.2d 1076,
1078 (9th Cir.1982); Adams v. Howertun,
673 F.2d 1086, 1040 (9th Cir.), cert. dened,
— US. , W2 SCL 494, 78 L.Ed 2
1878 (1962). Our review is limited Ww sleter-
muning whether the Secretury's interyreta
tien @ reasonable. (Central Lincuin, 673
F.2d at 1078, Columina Basin Lami Protee-
ten Assue'n v. Schlesinger, vans F.2d Sub,
00 (8th Cir. 1881).
SUUTHERE PACIFIC TRANSP. CO. v. WATT
553
Cite an 708 F 24 660 (1983)
A. The 1899 Act
[2] The 18¥9 Act provides in part:
A right of way for « railway, telegraph
amt Wlephone line through any Indian
reservalion in granted to any railroad
company organized under the laws of the
United States, or of any State or Ternto-
ry, which shall comply with the provisions
of spctions 12 S14 of [the 1899 Act] and
such rules and reyulauions as may be pre-
senibed thercunder.
2 USC. § 32 (1976). Provisos follow
that establish certain conditions that the
Secretary inust awure have been fulfilled.
The distinct court held that the 1898 Act
grants lo a railrom! the power of eminent
domain lo condemn nghteof-way through
Indian reservations and that “([t}he concept
of tribal consent us a pre-condition to the
grant of a right-of-way is the very antithe-
sis of the exercise of the power of eminent
domain.” The district court also held the
1499 Act to be a grant in praesenti subject
lo the performance of conditigns precedent
and conditions subsequent. Therefore, in
the district court's view, the Act does not
‘vest in the Secretary authority to establish
grant preconditions beyond thase contained
in the statute but rather expressly specifies
the conditions the SecreLary must find to be
satisfied pnor lo approving an spplication.
The Secretary and the Tribe challenge the
distmet court's determination that the 1899
Act is a grant of the power of eminent
domain and « grant in praesent. They
argue that Section 312 of the Aet delegates
w the Secretary authority to promulgate
legislative rules and, thereby, the authority
W establish yrant preconditions by regula-
tion. We conclude Chat the interpretation
advanced by the Secretary and the Tribe is
both reasonable and in aegard with our obli-
gation Ww construe the L80@ Act liberally in
the Trite's favor Having coeciuded that
the interpretation mivanced by
tary of Interwr, the head of
ther inte the meaning of the provisions of
the Act. “|Whe need aut find that [the
Seeretary's| construcuun is the only reasen-
able one, or even that it is the result we
would have reached had the question aren
in the first instance in judicial proceedings.”
Udall v. Tallman, supra, 380 U.S. at 16, 46
S.Ct at B01, quoting Unemployment Com-
pensation Comm'n of Alaska v. Aragon, S29
U.S. 14%, 67 S.Ct. 245, 91 Led. 16 (1946).
[t w enough that the Secretary's interpreta-
tion is reasonable, and there are several
grounds for concluding that it is.
The plain language of the Act supports
the interpretation of the Secretary and the
Tribe. Section | provides that a rghtof-
way “is grantal” Wo a railrom!l company
that complies “with the provisions of see-
tions 312 S18 of Lhis title [the 1899 Act] and
such rules and reyulatigns ax may be pre-
senbed thereunder..." 85 US.C.§ 312
(1976) (emphasis added). Thus, section |
may be read W establish two. sources of
comlitions precedent: the statutory provi-
sions and the Secretary's regulations. That
remling of section | is reinforced by the
fact Uthat section 7 directs the Secretary lo
“make ull needful rules and regulations, not
inconsistent with sections 312-318 of this
title, for the proper execution and carrying
into effeet of all the provisions of said
sections.” Jd. at § 317. The grant of rule-
making authority in section | would be
superfluous if it did not confer authority lo
promulgate requirements, beyond those
specified in the Act. Furthermore, the use
of the phrase “rules and regulations, not
inconsistent with sections 312-318 of this
title” (emphasw added) in section 7 (§ 317)
rather than such « phrase as “rules and
regulations, in furtherance of Lhe provision
of sections 312-318 of thw title” supports a
broad interpretation of the grant of rule-
making authority.
Nothing in the legislative history of the
UY Act suggests that the interpretation
weged by the Secretary and the Tribe ws
yarensonable. Thai history is silent vn the
qumstion of Lhe scope of Lhe authonty vest-
ed in the Seeretary by the Act. See Hit
Rep. 1806, 56th Cong, dl Sess. 1 2 ( 18UB);
42 Cong. Hee. 1768-66, 1640, A061 42, 2471
TS ( LBB).
554
The construction we approve here is also
consistent with the 1948 General Rights-of-
Way Act, Publ. No. s0-407, 62 Stat. 17
(codified in 26 U.S.C. §§ 823-828 (1976))
(1948 Act), which provides that “[njo grant
of w right-of-way over and across any lands
belonging to # Uribe organized under (the
Indian Reorganizauion Act of 1984)' _..
shall be male without the consent of the
proper tribal official” 25 USC. § 324
(1976). We recognize that interpretation of
the 1899 Act must rest primarily on i own
language und legislative history. Never-
theless, the [R9Y Act and the 1948 Act both
pertain to rights-of-way across [ndian lands
and share a common purpose: the preserva-
tion and protection of Indian intwrests.
The Supreme Court has expreasiy approved
the construction of statutes affecting reser-
vation Indians in light of intervening egw
lation. Bryan v. Itasca County, supra, 426
U.S. at 346, 96 S.Ct. at 2108; sme Mue v.
Salish & Kootenai Tribes, 425 U.S. 463, 472-
75, 96 S.Ct. 1684, 1640-42, 48 L.Ed. 06
(1976). Furthermore, the legislative history
uf the 19483 Act suggests that the drafters
of that Act believed that, at least after
adoption of the 1948 Act, no right-of-way
acroes lands of a tnbe organized under the
1934 Act could be granted without tibal
consent. See S.Rep. No. 828, 80th Cong., 2d
Sess., reprinted in (1948) U.S.Code Cong. &
Ad.News 1033, 1036. See also Escondiio
Mutual Water Co. v. Federal Energy Reyu-
latory Comm'n, @@2 F.2d 1223, 1282 (9th
Cir. 1982).
B. Grant of Eminent Domain Power
(3) In reaching the conclusion tha! the
1899 Act vests in the Secretary authoniy ww
require Unbal consent prior Wo processing of
a right-of-way application, we necessarily
reject characterization of the 1800 Act as a
.
E
Le
3
ss
700 FEDERAL REPORTLK, 4d SERIES
well settled that the power of eminent do-
main may be delegated by Congress W a
povale corporation. Custis v. Georyelown
& Alexaniria Turnpike Co, W US. (6
Cranch) 232, 3 L.Ed. 208 (1810) (Marshall,
CJ.); 1 Nichols, supra, at § 3.23, ut 3 212
A grant of the power, however, must lx
conferred “in express Lerms or by necensary
implication.” Wealern Uniwn Tel. Co ¥
Penn RR. Co,, 195 US. 540, 564 40, 5 5,00
133, 49 L. Fal. 312 (1904); 1 Nichols, supra,
at § 3.214], at 440; scconl, 3 C Sands,
Sutherland Statuwry Construction § 64.06,
at 128 (4th ed. 1974).
Comparison of the 1899 Act with contern-
poraneous acts held Ww be emiment domain
statutes reveals Lhat the 1X¥9 Act does not
contain the language charucterwiic of «
grant of the power of eminent domain
The Act of February 14, L8H, ch. 15, B
Stat. B5 (held to be « grant of the power of
eminent domain in Noble v. Oklahoma City,
297 U.S. 481, 490, 56 SCL 562, 566, 80 Lil.
816 (1936)), and the Act of March J, Ley,
ch. 453, 30 Stat 1968 (hek! to be a grant of
the power of eminent domain in United
States v. Ft. Smith & WR. Co,, 195 F. 211,
212 (8th Cir.1912), both provide that a
named railroad w “invested and empowered
with the right of locating, constructing,
owning, equipping, operaling, using, und
maintaining » cuilway” and “iw suthorued
to lake and use” a mghtof-way for railway
purposes and “to lake and use” land for
slalion purposes, Nowhere in the LAY Act
is Uhere language conferring on @ railroad
_ the right to condemn or the right Ww Lake
and use. The operative language of the
1899 Act is the phrase “w granted,” which
imports not u delegation of the power of
eminent domain but rather o« direct convey-
ance, condilwaal or not, by Congress or an
minugistrative agency. Thus, the Ly Act
contains no expres yrant of the power of
eminent domain, qur i it Meceunary lo un-
ply such w yrant Ww make the Act effective
We therefore conclude Ural the district
court erred in hulding thet the 1K) Act
SOUTHERN PACIFIC TRANS. CO. v. WATT 555
Cine as 700 F236 860 (1983)
was @ yrant of the power of eminent do
main.*
C. Grant Jn Praesent
[4] The istrict court also held that the
1899 Act was a yrant in praesent, We find
it unnecessary to resolve that question.’
The doctrine of in praesenti grants was
judicially created Ww establish priorities
among oval private claimants to federal
lands. A yrant in praesent: “imports the
transfer of a present interest in the
lands desiynalal” by the act. Van Wyck v.
Knevals, 106 U.S. 360, 365, 1 S.Ct 886, 337,
27 L.bal. 201 (1882). The words “ie hereby
granted” are characteristic of an in
seni grant. Noble v. Oklahoma City, su-
pre, 297 US. at 490-91, 56 S.Ct at 566
Once Lhe grant is approved by the designat-
ed government official, it “relates back to
the imitiatory right [the date the grantee
commence! proceedings to obtain title], and
cuts off all claimants whose righta were
initiated later.” Stalker v. Oregon Short-
line RR, 25 US. 142, 149, 32 S.Ct 686,
685, S6 Leal. 1027 (1912); scoord, Van
Wyck v. Knevals, 106 U.S. at 366, 1 S.Ct at
337. The relation back of title applies only
@s against olher intervening claimants. As
againat the yrantor United Staves, no vest-
(mth Cir 1¥l2), Clarke v. Boysen, 38 F 2d 800,
414 (10th Cir), cert. demded, 242 U.S. 868, 5!
Sct. 75, 75 LEd. 768 (1830). Those state
ments, relied on by the district court here, were
neither well considered nor necesaary to the
decisions in which they appeared Ft. Smuh
arose under a different gatute (also paseed in
1508), and Clarke, in tts relevant portions, con-
cerned the question whether the 1888 Aci ap-
plied to reservation lands ggeviously ceded to
the United States
The distinct court in the present case also
relied 06 provimons fos determining compensa-
thon for rights-of-way in the abeeace of con-
sem, in section 3 uf the 1888 Act, 25 U
§ 514 (1976), as well as a footnotes in
itandbook of Indian Law referring to
uf railway companes to condema Indian
+ Conen, Haudbouk of Federal indian Law 06
nm. 76 (1942) Both of these references are to
ed right arises until the requirements are
met and the grant has been approved by
the designated official. Stalker v. Oregon
Shortline K.R., 225 US. wt 149, 32 SCL at
688; Shepley v. Cowan, 91 U.S. 380, 338, 23
L.Ed. 424 (1876).
{5} Nothing in this scheme of in prue-
senl granus, nor in i purpose of prolecung
grantees against intervening private claims,
necumsarily limits the right of the grantor
United States ww condition the grant It is
Urue that in the typical in praesenu grant,
the determination of the Secretary Uhal the
grantee has complied with the conditions of
the grant is a ministerial function. Neither
authonty nor logic requires Uhat this be the
case, however’ We have been shown no
sufficient reason Wo conclude that Congress
is unable to vest in an administrative offi-
cial the authority lo establish discretionary
condiuions with which prospective grantees
must comply in order to make Uhe grants
effective and Uigyer the relation back of
title, Our examination of section 312 con-
vinces us thal Congress has done exactly
that. Congress’ action is effective whether
or not the Act provides for grants in prac-
seni. That is all we need to decide about
the meaning of the Act.
not inevitably treated the same. See Yellow-
fish v. Stillwater, 6A1 F.2d 926 (10th Cir. ive)
3. We disagree with (the district court's reading
of our prior decision, Southern Pacific |, supra,
as ‘impliedly recognizing that the [1480] Act is
a grant in preesenu of a mghi-of-way “ta
Southern Pacific | we did not reach the ques-
on whether the | 60¥ Act is a gram in praesen-
1) We did point out that the granting clause of
the 1800 Act differed significantly from that of
the 1875 Act, « statute previously held to be «
grant in preesent:. 543 F 2d at G81. We fur.
ther noted that to qualify as « grantee under
the 1608 Act, a rairoad must comply with
requirements nut found im the 1875 Act. id
We thea held that Southern Pacific's predeces-
sors did not comply with the compensation
requirement of the 1890 Act and, therefore,
fatied Lo acquire « right-of-way under that Act.
id. ot 092-93. To reach that result m Southern
Pacifc |, 4 wes unnecessary for us to decade
wheu.-r (he edilitional requirements cuntained
‘in the /688 Act were cunsistent with the char
acterie ics af « grant @ pressanti.
556
D. Hedelegution of the Secretary's Au-
thonty
Southern Pacific contends that if the
1899 Act is construed w authorize the Sec-
relury W establish conditions precedent to
the grant of a right-of-way under thal Act,
the Secretary, by requiring tribal consent
under 2 C.F.R. § 161.) (1961), has im-
properly redelegated that decimonal author-
ity to the Indian tribes. We conclude that
thé challenged redelegation is permissible.
[6] Subdelegation of administrative au-
thomty Ww an Lnadian tribe is analogous to
sulxlelegation to @ slate or local govern-
ment. “Indian tribes are unique aggregs-
lions Possessing aliributes of sovereignty
vver both their members and their Lerritory
, Uney are ‘a separate people’ possessing
‘the power of regulating their internal and
sxciul relations "" United States v
Mazurie, 419 U.S. 544, 557, 96 S.Ct. 710, 717,
42 Led2d 706, 716-17 (1975) (citations
omitted), Subdelegation of «iminwtrative
wuthonty Wo @ sovereign entity is not per se
improper. Jd; see United States v. Math-
ersun, 3467 F Supp. 779, 781-83 (E.D.N-Y.
1973) (uphoiding regulation imsued by Su-
perintendent of Fire Island National Sea-
shure requiring persons seeking to operate
motor vehicles on certain national seashore
lands Wo secure first a permit from the local
municipality), aff'd mem., 498 F.2d 1399 (2d
Cir. 1974). Nor must such a subdelegation
rest on ¢xpremp slatulory authority. See
Fleming v. Mohawk Wrecking & Lumber
Co, SAL US. Ill, 120-22, 67 SCa 1129,
1134, 9 LB 1875 (1947); Tabor v. Joint
Bd for Enrollmen’ of Actuaries, 566 F 2d
706, 708 n. 5 (D.C.Cir. 1977).
700 FEDERAL REPORTER, 24 SERIES
over, while the loca) jurudiclions in Mather-
gon had no source of power separate from
the regulation W cuntrol the use of nalional
seashore lamis, a Uibe has independent au-
thority lo reyulate the use of ils own lands
The Supreme Court ha» stated that the
limitauons on Congressional! delegation of
leyislative power are “lew stringent in case
where the entily exercumng the delegate
authonly itself possesses independent au-
thority over the subject matter.” [/nited
States v. Mazurie, 419 US. at 556-57, 96
S.CL at 717 (citation omittad) Applying
thal principle W the redeleyution of leymla-
tive authority by an wiministrauive butly,
we conclude Uhal the redclegation embadies
in 26 CFR. § 161.3 is not improper.
Ill. Conclusion
The Secretary acted within his power in
requinng by reguiauion thal tribal consent
be obtained fur the acyuewlon of mghteof-
way pursuant W the 160Y Act, 3 USC
§ 312 (1976). The summary judgment in
favor of Southern Pacific is reversed ami
the case is remanded Ww the district court
for further proceedings consistent with Lhe
opinion
REVERSED AND REMANDED.
Billy iri GLOVER, Plaintiff-Appeilaat,
v.
Bruce TOWER, Public Defendes of Deeg:
las County, Oregon and (iary Habrect,
Public Defender of the State of Uregoa,
Ie fendants- Appellees.
Ne. 51-3199.
United States Court of Appeals,
Niath Cirewit.
Argue! and Submittal Vee 7, We
Decided March |, 1988.
Plaintiff filed pro se action alleging
that public defenders why representa! him
oe
APPENDIX B
Decision of the United States
Court of Appeals, Ninth Circuit,
decided 10 September 1976, pub-
lished at 543 F.2d 676 (1976)
(companion case).
ii
od
676
For curls to require strict adherence lo
legal principle. in the award of pecuniary
damages is « vscicss oxercise Uf there are
no legal principles W guide the district
courts in the award of nce-pesuniary
damages indeud, © avoid having its
le«) wwarude ova lurned, Gutrict courts
will be oncouraged to minimize pesuniary
damages
By cutting back on some of the noa-pecuni-
ary awards here we wish it to be uader-
stood thal there must be some limit on
these incalculable damages Al the same
time, we are unwilling to go as far ae the
Government suggesta. Under the Act, son-
pecuniary damages, like pecuniary dam-
eget, should be substantially compensatory.
e.sential compensatory purpose of the stat
ute. On the facts of this case where sub
stantial grief and luse of affection aad com-
After a careful review of seach award,
and in the light of what we heave said
abov., we conclude that the amounts the
plaintiffs shall recover are the fellewiag:
3 FEDERAL. KEPOKTEK, 24 BEKIES
The judgment of the dwirict court ws af.
firmed om Une issue of limbility and modified
on the issue of damages The cause is
remanded with diructions lo enter s modi-
fied judgment in the amounts herein wt
ferth. Neo costs will be sllowed
(==>
UNITED STATES of America, Plaintiff,
The Walker River Paiute Tribe of Nevads
ead Robert lienton et al,
Platatiffe Appeliaats,
’.
BOUTHERN PACIFIC TRANSPOKTA-
TION COMPANY et al,
Le fenden te A ypetioes
UNITED STATES of America,
Piaiauf!- Appellant,
’
BOUTHERN PACIFIC TRANSPORTA-
TION COMPANY « al,
le femdanio A ppations.
Nes. 74-3333, 75-1008.
United States Court of Appesks,
Niath Cirewit
Bept 10, 1976
Action was brough| by Indian tribe and
class of individual of land tre
Fi
At
i}
bij
r
i
-E
f
]
i
k
[
f
UNITED STATES v. SOUTHEKN PACIFIC TRANSP. CO.
677
Cie os 143 F 24 078 (1878)
individual allollces since their claims could
not Le aggregated for purpose of determin-
ing ® jurisdictional amount, that the 1876
Act applied lo executive order Indian reser-
vations, that railroad did not scquire «
right-of-way under the 168 Act, that rsil-
toed dil weyuire @ right of-way through
nonirmyable lands ceded by tribe in 1906,
and that therw aould not be an implied
in-fact or impiled in-law license to railrued
to operate line through reservation.
Affirmed in part, reversed aad remand-
ed in part
1. Courts 406(148)
Where aetion was brought by Indias
tribe and allottses against railroad charging
Lreapass and district court in effect decided
only issue of liability on trespass claims
without deciding what would be appropri-
ale, judginent was sot final as to one entire
claim and therefore not appealable until the
district judge certified the appeal uader
statute. 2 USCA. $6 1291, 128a[b).
2. Courts = 336
Defendant's challenge of allegation re-
garding the requisite jurisdictions! sinount
im controversy, made in ite opposition to
plaintiff's metioa for summary judgment,
was timely, and shifted burdes to plaintiff
alluttoes of Indian lands to show that it did
nut appear to « legs! eortelaty thet their
claims were for less thas the required
anuunt 2 USCA § 1881; Ped. Rules Civ.
Proc. rule 1&(h\X3), MB UBCA.
3. Courts @= 406(2)
Court of Appeals is bound to coasider
Juredictional defecta sua sponte.
4. Courts o= $28.4(4)
In action by Indiana tribe and certain
individual allottess against railroad for
\respass, it was error to aggregate allottecs’
claims lo determine whether the requinite
$1U.UU0 juneuetional requiremest was met
2 USCA. § IM8L
& Courts o> 828.408)
Clase members may aggregate their
clarme ls smtiely ameuat ia esalroversy re
quirement only whem Unew elasme are jeint
and commoa and not separate and distinct
2% USCA. § 1381.
6 Courts = 325.4(2)
Test for aggregating claims of one
plaiatiff against multiple defendants for
purypan of aulis/ ying amMvuAl in ponliowes 7
requirement w casentinlly the seine as that
for aggregating claims of multiple plain-
tiffe against one defendant, plaintiffs
claims against defendant must be commoa
and undivided so that defendants’ liability
je joint and not several. 28 UBC A. § 183!
1. ladians @ 13/1)
Allotment of tribal lands are made Ww
individus! Indians in severally and in (rust
for sole use and benefit of Indias Ww whom
allotment shal! have been made.
& Courts © 324.4(4)
Claims of Indian alloitees against rail-
road with respect to trespass arose only
with respect Ww status of each as individual
allottee of portion of reservation, and their
claims could sot be aggregated for purpose
of satisfying necessary § = jurisdictional
amount. 2 USCA § 1381.
®. United States 1204
United States bringing action against
railroad with respect to alleged trospass ow
Indian reservation aud land of allottecs had
capacity to sue for protection of allotted
land.
16. Indians & 1K(1)
Agreements betwees railroad’s prede.
cessor and Indian tribe with relation w
railroad mght-ol-way through reservation
did purport to convey claim to Indian lands
from aa Indias tribe aad were invalid ua-
der Une then applicable statute protubiting
any conveyance of land from any !ndiag
nation or tribe walees made by treaty o
qtanuntinn extenes tata guemunns te Gaal
tation. 1% USCA. § IT1.
1k. ladiens <3
Abrugstica of Indiana realy nghts ve
der cuugreesunally reiasned plenary puwers
to control the uss of Wika! leads, to grant
adverse interest cad te eatinguenr |adiee
678
title completly is not lightly inferred from
congressional acts
12. Indians +3
Abrogatiwn of treaty rights is subject
to constitutional limitaGons that such prop-
erty rights cannul be Lakew without pay-
ment of just compensation.
13. Indians @ 12
With respect to cxecutive order reser-
vations Indians have exeluaive right te poe
seasion but Lille to lands remains with Unit-
ed States; with respect to Congress’ plena-
ry power to coutrol use, grant adverse in-
leresls or extinguish Indian tile executive
order reservations do not differ from treaty
or slatulery reservations except thal so
long «os Congress has not recognised com-
pensable intercats in Indians executive or-
der reservations may be terminated by Con-
gress or the executive without psymeat of
compensation. 2% USCA. §§ 71, 306; 48
USCA. § 150; Cont. art 2 § 2 ao 2
14. Indians 4-6
Statutes enacted fer protection of Indi-
one must be Lroadly qeastrped ia the Indi-
* favor
15. Indians ¢= 12
Congress by enacting 1876 statute re
lating to rnilroad rights-of-way through
public Innds of United States but aot apply-
ing to any lands within the limits of any
Indian rcacrvation intended to exelude ex-
ecutive order reservations from
of Act. General Railread Right of Way
Act, § 6, 43 USCA, § O88
$43 FEDERAL REPORTER, 24 SERIES
17. Public Lands @7, 15(2)
While executive branch has broad au-
thority lo withdraw public lands from dis-
position under public land lawe fur Lenefit
of Indians and Ww manage dinjrsition of
Indian lands, seurce of this authority is
congicssivnaal we quaccenes in ity e4ereie,
and since authority is delegated by Con-
gress its cxorciae can Iw regulated by Coa-
gress.
18. Indians @ 1/2
Approval by Secretary of the Interior
of maps showing railroad right of-way
through Indian rvservation created hy exec-
utive order with no mention of any allera-
tion of reservation Loundaries did wot oper-
ate to torininale reservation to extent of
right-of-way sought; no right of-way wos
acquired through reservation umler the
1875 act by the urroncous approval of mays
by Secretary of the Interior. General Iail-
road Right of Way Act, § 6, @ USCA.
§ 938.
19. Indians @ 12
Under 1809's genera! statute granting
rights-of-way through Indias reservations
to any railroad, which shall comply with
provisions of act, grantee is not identified
merely by filing articles aad prosfs of or-
ganization as under the 1876 ast, but
grantec must iv addition comply with all
provisions of 1899 act including require-
ments that mape be filed and approved aad
compensation be paid to ladiaa; construc-
tion of railroa! is clearly sot sufficient ww
acquire a right-of-way under the 1809 act
25 U.BC.A. § 812; General Railroad Right
of Way Act, 6§ 1, 4, 5, 43 UBCA. §§ 984,
987, 038.
28. Indians o= 13
The 1800 uct granting raliveads right-
;
UNITED STATES v. SOUTHERN PACIFIC TRANSP. CO.
679
Cite an 643 F 34 676 (1978)
tary of the Interior's approval, 25 USCA.
§ 312
21. ludians @ 15(2)
Where railroad’s predeccasor construct-
ed railroad through Indian reservation be
tween 1880 and 1882 following segotiations
lures Uy ith }diane and peyment uf com-
pensution and the agreements were later
“approved” by the Commissioner of Indiana
Alfaurs and the Beeretary of the laterior
before submitting the same to Coagress for
ratifwcation, whieh never occurred, the
right-of-way was not ecyuired under subse-
quently enacted 1899 act, since railroad’s
fuiled to comply with the requirements of
act and the regulations thereunder. 25 US
CA § 314
22. Indiane @- 12
Under 1888 ect granting railroads
right-of-ways tareugh Indian reservations
upon compliance with act, including pay-
ment of coumpcesation to Indians, compen-
sation should be determined as of date of
grant of right-of-way. 2% USCA. § 814
23. Indians @= 13
The 1902 egt providing for ceding of
nonirrigeble lands within ladian reserve-
tion which were then open to public settle
ment “under existiag awe,” as implemeat-
ed by the cession agroement and presiden-
lial proclamation, constituted special statu-
lury exception te bread exclusion of Indian
rearvations from application of 1875 act
granting railroad right-of-ways through
pulle lands Lut exeapting Indian reserve-
Lions, and applied to the ceded lands within
reservauion, and eines reiiread had siready
Lecn constructed whea cession became ef-
fectiwe « rightof-way was obtained
through the carled lands wader the 1876 act
al time of seamtoa. General Hailruad Right
of Way Act, $4 1-4, 48 UBCA. §§ O84
SUY, Act May 37, 1902, 32 Seat 260.
2. Indians @ 13
l9ud eonntea ef noaurigable lands with-
1m Inches reservetieas pursusal to olalute
sitered beendectes of reservation se that
eeled lands wave a0 longer within the lim-
‘le of (he reservation and thus available fer
failrvad nghtef-way great under 187) act
granting railroads the mght-of-ways
through vullic amis bul capresely excluel-
ing ludian reservations General Raslroa!
Right of Way Act, §§ 1, 5, 43 USCA
§§ O34, UR, Act May 27, 1002, 82 Stat. 261,
Indian Genera! Allolment Act, § | ot seq,
BH USCA. § 33! ot sq.
26. Indians o 10
Where United States holds land in
trust for the Indians, the Indians should
reesive benefit of compensation for right-
of-way granted just as Ubey receive com-
pensation for land taken by settlers.
26. Indians 12
Where Indiana had been paid in full fur
coded nonirrigalte lands within boundaries
ef omgina! ruscevation and the cued lands
were neither hell in trust for Indians nor
reserved for other purpuses in connection
with Indian service, the 1808 act rulating to
railroad right-of-ways through Indian res-
ervationsa shoukd not apply simce the lands
were “public lands” available for right-of-
way grents under the earlier 1875 act
General Railroad Right of Way Act, $$ |- 6,
42 USCA. §§ 984-859.
37. Public Lands = 93
Railroad nght-of-way mey be obtained
wader the 1575 act graating railroad rights
of-way through public lands by comstrucloa
of the railroad without any filing of maps.
General Railroad Right of Way Ast, § 5, <8
USCA. § 938.
28. Indians @12
Where agreements betweea railroad
aad Indians reapocting railroad rightf-
way through Indian reservation were inef-
fective to grant right-of-way to railruad, s
license could not be inferred as an implied
in-fact contract because of failure of rail-
road to comply with slatules governing con-
tracts with Indien Uribes and aa implicd-in-
law license could act be inferred since to
confer cunsiructive hosase would rua coun-
te be invalid. % USCA. §% S81, &, IT);
Aat July 22, 1700, § 4, 1 Seat 128
650
29. Indians o> 15(1)
License cannot be inferred from the
alleinpted granting of an easement in vio-
Intion of statute generally prohibitiag indi-
viduals from ecquiring lands privately from
indiens. % USCA. § 177.
Yvonne T. Knight and Daniel H. lerael
(both argued), of Native American Rights
Fund, Koukles, Cole, for appellants ia 14-
3554, for appellees in 75-1080.
John Zimmerman, Atty. (argued), of U. S.
Dept. of Justice, Washington, D. C., for
appellant in 75 10M.
Donal! Oskley Key (argued), of Keat-
fiwid, Cul, for appellees in 74-8888.
Before GOODWIN and WALLACE, Cir
evit Judges, aad WILJIJAMS,* District
Judge.
WALLACE, Circuit Jedge:
This case arises out of a coafroatation
between the “manifest destiny” of the
westward movement ef American civiliza-
tion and the rights ef the aative American
Indians to their lands, It raises important
issues of Indiana law gad requires the inter-
pretation uf a century ef Indian aad publis
land policy
1. These claims ere not barred by the
Matuic of buwtations, 28 U.S.C. § 2416;
lau Grande Vand of Milesten ladiane v
\. berigatwa Datrict, 314 F.24 446 (tm Cis),
denied. 423 U S. 674, 06 B.Cr. 143, 46 L.Ed 2d
106 (1¥/5)
% The clase wee cartified
2KUK IME), Fed B CivP
S43 FEDERAL REPORTER, 2d SERIES
Southern Pacific and its predecessors since
1882 It is now alleged thal the railway is
and has always been a trespasser.’
The Tribe and a class of individual allot-
tece* of land traversed by the railway
brought suit eccking, among other Uhings, «
declaration that the 1880 and 1882 agrce-
meats granting Southern lacific's predeces-
sor the right-of-way are woud and thal ihe
Indiane own the right-of-way, a permsacat
injunction aguinet fulure Wespees, money
damages for (trespass and punitive damages.
The United States instituled a second suit
in ite own right and on Lehalf of the Tobe
and lows secking to quict Lille We the
right-of-way in the United States for their
use and benefit, ejoctment,’ and damages
for trespass. The district court ordered the
twe actions cunsolidated. The theory of
both suits was that Southern Pacific and its
predecessors nevor obtained a valid right-
of-way through the resorvation.
{1} The district court granted a partial
summary judgment fur the Indians and the
United Statca. 1t ruled that Southern Pa-
cific did not have a valid easement for the
railway or adjoining Wwlephone and tele-
graph lines but that it did have a license for
a railway from the time the railroad was
constructed in 1882 Ww the filing of the
complaint in this suit Tho trial judge
certified the partial summary judgment as
appealable pursuant to 23 U.BC. § 120a(b).
The Tribe and alloitces aad the United
States appealed and we exorcised our die
This change of position by the government cun
cores us. We cannot be ublivious to the fect
that Unie ratiruad line services @ United Sistes
should be examined by the @istrict court on
semead =
& The trial jucdye heid that there wes o genuine
tseve of fect a8 to whether (ne license extendrd
to the ielepie me and iciegiaph lines fe aunde
mw Ramage on danages ku the pertud efter the
filing of the cosngdainis aad before the eniry of
jeg seret of on the prupwisty of ea tajunc tion,
ejectment os ciher relief Theses weues were
reserved fur tel
UNITED STATES v. SOUTHERN PACIFIC TRANSP. CO.
681
Cite an 643 F 2d 676 (1976)
cretion to cnlertaim the appeals’ We re
vorec the decision on the claima of the class
of allottces and remand with directions to
dwnuss for lack of jurisdiction unless an
alternate ground for jurisdiction can be
found. We affirm im part and reverse in
port the belding that Southern Pacific nev-
er scquired an easement, and reverse the
finding that it had « license.
1 Pactual aad Procedural Background
The Walker River Reservation was for-
mally established by executive order of
lresent Geant o@ March 19, 1874 On
April 13, lanO, in consideration of the pay-
ment of $250 and a promise of frve trans
portation for the Indians and their pruducts
slong Une railway as long as the railruad is
operated Lbrough the reservation, a special
counci! of the Tribe orally granted D. O
Mille and Associates, later incorporated as
the Carson & Colorado Railroad Company, a
right-of-way through the reservation. On
January 6, 1881, the Carson & Colorado
fied maps ef definite location with the
lepartineat of tae Interior seeking thereby
\o obtain a mght-ef-way under the General
Maslrvad Right ef Way Act of 1876, ch. 152,
1S Stat 482 (codified at 43 US.C §§ 83-
tary on January @, 1881.
sctually constructed in 1831 and 1882
On August 9, 1@R2, the Carson & Colora-
do entered jeto s written agreement with
the “chiefs, headimen and beads of a majori-
& lke disirict judge originally found no just
aapra
eh
Hie
haut
fe
it
fit
Ai
ty of familica” of the Tnbe Although re-
citing Uhat the Carson & Colorade believed
that “it had honestly and in gud faith
complied with all legal requirements” foe
obtaining a nght-of-way across the reserva-
tion, the ayreement granted a right~f-way
for the railroad “aa now constructed!” in
consxieratiwon of the payment of §/, a
promise of free transportation, and certain
additional promises, The agreement was
expressly made subjoct to final ratification
by Congress Although four bills were in-
trodueed for that purpose, Congress never
ratifie! the agreement
In 1902 Congress acted to enable part of
the reservation to be opened to settlement
& serics of statutes and an agreement
allotments of irryable lands and cash pay-
mente were made to individual Indians,
tribal grazing and timber lawis were set
aside and the Indians “cede{d)
and relinguish{el| wo the United Sistes ail
right, title and interest” to the remaining
lands in the reservation In 1906 the relin-
quished lands wore opened by presidential
prociamation to esliloment “subject tu dis-
posal under the existing laws of the United
States’ In 1925 the Central Pacific Mail-
way Company (successor to the Carson &
Colorado and predecessor of Southern Pa-
cific) filed amended mays of definite loca-
tioa with the lepartment of the Interior
for the stated purpose of obtaining the ben-
efits of the 1X76 Act These maps were
approved in 1926. Part of the ceded lsads *
were restored to the reservation in 1836.
ead of Southern Pacific are new before us As
we interpret the Gistrict judge's order. the ie
sues that should br decided now are ihe same
es those which were belure us on the ianial
appeels, in adutiwn, it ls necessary ww deck
the tsnues raised Dy Suuthern Pacific in osder
Pruperty to disp» ee of tLe issues reiecd in these
spyesis Dy the Trite end ailotiess and the Una.
od States
@& 1 C. Kappler, Indien Affause Loews end Tree
ties BBB (2d ed 1904) We have held tha the
(OSSTV etka: wes OC ually eelebhemdd Ly sche
tetsotive action in 1688 Uinued Sietes ȴ Welk
or River rigstiwn ius. 104 F ad 334. 338 (mA
Ce 1058)
%. Seep 63 war
682
The tre.pas claime of the Tribe and al-
luttces and the United States relate to 60.47
miles of Southern Pacific's railroad line.
This chali:.gucd segment represents the
part of the line within the original 1874
executive order reservation boundaries.
Alter the lyue ceason and allotmeuts, 25.72
miles of the line crossed ceded lands, 17.75
miles traverse! tribal lands and 7.0 miles
intersected allotted lands. Lands contain-
ing 13.25 miles of line were restored to the
Tribe in 1956
ll. Jurisdiction of the District Court
The district court had juriadiction over
the Tribe's claims pursuant to 28 USC.
§ 1362 and over the cisims of the United
States pursuant to 23 U.S.C. § 1845. Nei-
ther statute reyuires aay minimum amouat
in controveray.
(2] The district court found that it had
jurisdiction over the claims of the class of
allottees pursuant to m@ USC § 138),
ceeded $10,000 “per plaiatiff,” but Southern
Pacific challenged this allegation in its op-
position ww the plaintiffs’ mation for sum-
mary judgment This challenge was time
ly, Fed. RCiw P. 1ah8), aad shifted the
burden Ww the allottess to show that it
not appear to a legal certainty that
claims are fur leas than the
amount. Gibbs v. Buck, US.
S.Ct. 725, 83 L.Ed. 1111 (1088); Saeiat Paul
Mercury Indemnity Ca v. Red Cab Ca
U.S. 288, 284 49, 68 BOL $88, 88 LEA
(1938). '
does
ther
& WUSC § 1582, which would hove grovidsd
portale int ovhwet regand te omeunt mm com
(revere, hw e out Dy a bedien Tribe wes ant
“tis PEDENAL REPOUTER, 2d SERIES
tional defects sua sponte. Mansfield, C &
LM. Ry. v. Swan, 111 US 379, $84, 45 CL
610, 28 I. Ed 462 (1884). We conclude that
the district court erred in aggregating the
allotices’ claims to determine whether the
jurisdictional amount requirement was inet
The claims of Uc claw of alloticcs bevel
therefore Le dismussed unicss it appears to
the district court on remand that there is no
legal cortainty that the claim of cuch allei-
tee does not exceed $10,000 or unlecas some
alternative j@Pisdiclional base can be
found.
(5) Class members may aggregate Urir
claims to satisfy the amount in controversy
requirement only where their claims are
“joint and common™ and not “separate and
distinct.” Zaha v. Internativnal l’aper Co,
44 US. Bl, We Hw SA MS SB
L. d.2d 611 (1973); Sayder v. Harr, 904
U.S. 832, 886-87, #9 S.Cr. 1063, 22 L Ed Qi
819 (1960) The district court aggregated
the ailottecs’ claims solely ou the authority
of Skokomish Indian Tribe v. Frasce, 30
F.2d 656 (#ih Cir. 1960) The Bkokomish
Tribe claimed certain tidelands unde a
treaty and executive order The Tribe
brought « trespass and quiet Ulle action
against a number of defendants whe
claimed adverse interests in the lands Jur-
lediction was asserted under 2% USC.
$ 1831" The complaint alleged that the
juriatictions! amount requiremeat wee met
but there was no allegation that the re-
quirement was met as Ww each defeadant
We concluded that the claims ageiast the
various defendants could be aggregated aad
UNITED STATES v. SUUTTIIERN PACIFIC TRANSP. CO.
683
Cie om 143 F 26 678 (1878)
liable to the Tribe® But whatever factors
may have dictated that conclusioa are clear:
ly not iavolved hare. Our case is contrullud
by Potrero Hid Community Actioa Commit
tee v. Housing Autherity, 410 F 2d 974 (9th
Cir. 1966). There, a clase of lenunts in «
focally financed, ow-rent housing project
sought a judgmeat directing local euthori-
lus to make improvements allegedly re
quired by terms of the tenants’ leases and
of the financing agreement with the federal
governinent. Jurisdiction was asserted un-
der @ USC. § 1831, but the minimum
amount in coatroversy requirement could
be satisfied only if the claims of the indivudl-
ual tenants wuld be aggregaled We said
thal aggregation ia proper only if the ten-
auts’ claims “derive from rights which they
hold in group status.” 410 F.2d at 978 In
spite of the commen questions of law and
fact involved, we then cuncluded that “their
rights appear lo arise oaly from the status
of each as individual lessee of a portion of
the project,” id, and therefore the claims
could nut be aggregated. See also City of
Inglewood y. City of Les Angeles, 461 P 2d
G45, 963 (Oth Cir. 1972); Alfonso v. Hiliabor-
ough County Aviation Authority, 08 Pad
724, T26 Z1 (Sth Ole. 162)
(7,8) This aealpels preduses a similar
result here. Although the allottecs’ claims
present commana questions of law aad fact,
their rights lo euclude Wrespessers are not
held in any group status Allotments of
tribal lands are made to the individual |adi-
ans “in severalty” and “ia trust for the sole
use and benefit of the Indias to whom such
®. The test for aggregeting Claime of one plain
multiple plaintiffs ageinat ome defendant the
plaints claims against Une defendants must
be cummeon and undivided so Unal (he defend:
ants lsbaity ie join and act several Waker
v Northeastern RR, 147 US. 370, 373-74, 13
SCi 348,37 L.Ed 208 (1883, 14 C. Wrigm, A
Miler & & Cooger, Federal Practice ead Proce
Gure § 3704, at 417 (1878)
1@ See D Cris, The Dawes Act and the Alici-
Ment of indian Lands & 1@ (1873), reprinced
wih munor changes. from Hearings on HR
7902 Before the |ieuse Comepitias ca indian
allotment shall have beea made ke
Genera! Indian Allotment Act of 1587
(Dawes Act), ch 119, $6 1, 6, 2% Stat Set
89 (codified at 25 USC. §§ 881, 84s) The
primary purpose of the allotment policy was
Ww break up tribal life aad encourage Lud}
gua to live indija adeully on their own indi
vidual lands Each allottse has the “full
possemsory right” to his allotment, whick
becomes an aleolule right of ownership
when the trust period expires and fee pat
ents are issued =F Cohen, Handbook of
Pedera! Isdian Law 20 (Univ. of NM.
Press reprint of 182 «d) Thus we cow
clude thal, as in Putrerv Lill, the stlottecs’
rights “arwe only [rom the satus of each as
individual | Hotice) of a portion of the [roe
ervationf and thew claima cannot le
agyregated for purjuecs of saliafying be
juradicbenal amount
The allotices argued in the distinct court
vy. Narragansett Kacing Assccisison, 414
F.2d 311 (let Cir. 1966), cart denied, sué
US 1087, © SCt 62 2 LEd2c tH!
(1970), Bass y. Kockefelier, 331 ¥ Supp. 94d
(BD.NY), vacated as moot, 464 F.2d 1500
(ad Cir. 1971) To whatever extent those
decisions would produce s differsat resuk
agyregelud, Zeha ¥.
Co, supra, Sayder v. Harris, supra, and
the Potrero Hill decision in our creuit.”
Affains, Tid Cong. 26 Sees, 8 wt OS
(1a)
i. There is elec on argument that the rule of
cor (OK2) showld sutomatically quality fa
tnat there is “ttle Rope” for (Mis argument to
prevail in light of the Court's “unswerving ad
nerence” im Zahn and Snyder to the radeticas
654
{9} Thus we conclude that the distriet
court erred in holding that the allottees’
claims could Le aggregated for purposes of
satisfying the juriadictional amount re
quirement. Wo therefore reverse the deci-
sion ws W the cluims of the allottees and
remand with directions to dismiss unless the
district court concludes that there is not a
legal certainty titat the claim of each allot-
twe dota nut excoed $10,000 or unless juria-
diction exists pursuant to some other stat-
ule which does not require a minimum
amount in controversy.”
Ill. The Coutentions of the Partics
The Tnbe and the United States object to
the district court's conclusion that Southern
Pacific and its predecessors enjoyed a
leense and that uatil its revocation by the
filing of the complaint io this case, it had a
right to have its railway run through the
reservauion. However, whether Southern
Pacific had « license is immaterial if it in
fact hud = valid easement and so we are
firet called upon to disouss that issue.
{10} All parties agree that Southern Pa-
cific did not obtain a valid easement for
railroad right-of-way by virtue of the 1880
and 1652 agreements alone. At the Ume of
those agrecments, § 3116, Rey.Stat (now 26
U.S.C. § 177) (hereinafter referred to as
“section 177”), provided in pert:
No purchase, grant, lease, or other coa-
voyance of lands, or of any Uile or claim
theretu, from any Indian nation or tribe
of Indians, shall be of any validity ia law
or equity, ualess the same be made by
treaty or eoavention entered into pursu-
ant to the Constitution.
of members of @ Rude 23(b)\(2) ciass could act
be aggregated. 410 F.2d at 876, 978.
12. The Tribe and aliatiees moved wo amend
their complaint in the Uriel court to assert juris
diction of the allottess’ claims uader 25 U S.C.
$ 345. The disrict coun emp never
ruled on this motion, the decisés
judgment nated thes tn tight of the court's con.
clusion that jurisdiction existed under 28
USC § 1331, the issue of jurisdiction under 25
USC § 5 need not be reached We decline
tw consider af this time whether jurisdiction
migm be proper under 26 USC § 3450 On
femand, he ladjase will have an opportunity Lo
S43 FEDERAL REPORTER, 2d SERIES
The 1840 and 1482 agreements purport to
convey a claim w Indian lanisa from an
Indian tribe and are therefore invalid under
section 177.
But section 177 is not applicable to the
severvign United States and Congress cleur-
ly has authority to deal with Indian lands.
See Federal Power Commission v. Tuscaro-
ra Indian Natio. 362 US. %, 11% 24, #0
8.Ct. 648, 4 L.Ed.2d 684 (1960). Southern
Pacific thus argues that it acquired « right-
of-way pursuant to certain acts of Con-
gress. Firat, it claims that since the Walk-
er River Reservation was created by execu-
live order, it acquired @ right-of-way umice
the 1875 Act by Ming mapa in 1881. Even
though the 1875 Act is expressly not appl
cable to “any Indian reserva-
tion,” § 6, 16 Stat. 483 (48 USC. § 938),
Southern Pacific argues either that the Act
does apply to executive order reservations
or that the ruservation was terminated to
the extent of the right-of-way by the ap
proval of maps. Second, Southern Pucific
argues that it obtained a right-of-way fur
the railroad «3 constructed through the rca-
ervation under the Act of March 2, 1899, ch.
874, 80 Stat. 990 (codified at 26 UBC.
$4 812-16) (hereinafter refurred w as the
“1889 Act") upon Une Act's passage in 1899.
Finally, Southern Pucifie argues that it
obtained a right-of-way under the 1876 Act
through the lands ceded by the Indians to
the United States and opened by the Presi-
dent tw disposal under the public land laws
either in 1926 when amended mays of loca-
tion were approved or im 1906 when the
lands were opened to settlemeat.
amend thew complaint, 28 U.S.C. § 1653, and
the district court should have the firs opportu-
aity w consider (he issue.
We note that even if the district court does
not have juriscdkction over the class action by
the allotices, (he Linked States has raised sient
lar Wespass clans with respect to aillotied
tands, although is seeking somewhat differ-
emt relief The cuurt has jurisdiction to deter
mune the claims raised by the United States and
the United States hes the capectty to sue fur
the prutection of sliciied lands) Heckman ¥
United States, 224 US. 413, 32 6.Cr 424,
Led 620 (1012)
UNITED STATES ¥. SOUTHERN PACIFIC TRANSP. CO.
GAS
Cire we 43 F 26 668 (1878)
We rcject the first two of these contcn-
tose amt affirm the duirict court's hokling
that Southern Pacific dues not have @ com-
picte ecospment We reverse the district
court im part, Bowever, and hold thai Sowth-
ern Pacific Bas @ valid easement Unrough
tee lands ceded im luU6.
Alter determining the threshold issue of
ecascment. we must next decide whether
Southera Pacific had a license The Tribe
and tbe United States argue thal section
177 forteda inferring a license from the
iss and 1882 agreements and allendant
curcumetasces We sccept thus contention
aad reverse the dusirict court's holding that
& iceoee should be inferred.
1V Kught-of-way Under the 1875 Act
The 1875 Act mw a genera! slalule grast-
me & mghtef-way “ihrough the public
lands of the United States” to any railroad
company which files its articles of incorpo
ration and proofs of its organization with
the Seeretary of the Interior. Ce. 162, § 1,
1S Stat 468 (43 USC § 634) There is also
& prowmes for the filing of maps of its
route Jd § 4 18 Stat 483 (48 UBC
§ #07) Sewthers Pacific claims to have
complied with (hese requirements Indeed,
the Tribe and Use United Sistes admit that
ime Secretary of the Interior approved the
requisite certifieates and a map of the rail
road in LSS].
The Tribe aad the United States argue
thet Sowthern Pacifie did not acquire a
mghtof-way by virtue of this approval,
however, since the 1875 Act expressly does
sot apply “Lo any lands within the limits of
any . lndvan reservation, :
votens gush right of way shall be provided
for by weaty-stipulation or by act of Con-
grease heretofore passed.” 4 Jd § & (48
USC. § su All parties agree that no
wen WealpeGpulation or act of Congress
ti9u
Sowthers Pacific has two closely related
reaponsen §=Pirst, it argues that “Indiana
reservation” as used in the sistute refers
only Wo reservations cxtablinhed by treaty or
Slatule aud nut bo reservalions cstaldwhed
by excculive order, therefore, the 1X76 Act
dues apply the Walker River Reservation.
Second, Southern Pacific argues that even
if the 1875 Act does not apply to cxceutive
order reservations, the eppruval of wap. Ly
the Seeretary of the Interior had the effect
of terminating the reservation by the Bxec-
wlive to the extent of the right-of-way
shown on the maps so thal the 1575 Act
then can apply lo grant the railroad a right
of-way through the terminated part of the
reservation Both of these arguments are
based on the special leyal status of Indian
reservations create! by exzeculive onier
Befie examining the argumenu, the sls-
tus of this type of reservation shuwld be
clarifieg
A. Special Status of Executive Order Kes-
ervauions
The historic foundations of Indiaa law
are imsiructive. In the era of colonial impe-
maliam, the Eurupean powers agreed “that
discovery gave tile Ww the government by
whose subjects, or by whose authority, it
was made, against al] other Eurupeas
governments, which Uthe might be consuin-
mated by possession” Johason vy. Meln-
tosh, 21 US (8 Wheat) 543, 678, § L.Ed
631 (1823) While the natives rotained the
right to occupy their aboriginal lands, title
and domiuion were im the discoverer who
had the exclusive right Ww extinguish the
indian Utle by purebase or by conquest.
The United States has recognized these
principles and has always asserted the
myhts originally sequired by the European
powers by discovery. Id at 572-74, 687-49,
& L.Ed. 68).
{11,12} The earty practice of the United
States was to deal with the Indians by
Wreaty Great tracts of Indian lands were
purchased and the Indian tribes ware grad-
wally moved westward. Even though Indi-
an rights to possess tribal lands might be
1h Whee co@fied the ure “passed prier to March 3. 1875" was substtuted for “heretofore
pesced~
686
guerantced by treaty, Congress retains ple-
Mary authority to control the use of such
lands, to grant adverse interests aad to
exUinguish Indian tithe completely See Co-
hen, Peceral Indian Law, supra, at 94-96.
Abroyaton Of Indiwa treaty rights is nul
hghtly inferred from congressional acta,
however. See yenerally Wilkinson & Volk-
man, Judicial Neview of Indian Treaty Ab-
rogation’ “As Long as Water Flows, or
Grass Grows Upon the Earth”"—How Long
# Time Is That?, 63 Calif.L. Rev. 601 (1975).
Abrogation of treaty rights is aleo subject
to constitutional limitation—such property
rights cannot be taken without payment of
just compensation. United States v. Creek
Nation, 25 U.S. 108, 110, 6 SCr 61,
L.Ed. 1351 (1935)
In 1871 Congress banned any further use
of the treaty power in dealing with the
Indians. Act of March 8, 1871, ch 120, § 1,
16 Stat. 566 (codified at 2 UB.C. § 71)“
After the period of weaty-making, much of
the reaponsibility for reserving parts of the
public domain for Indian use shifted from
Congress to the Executive. Although Indi-
an reservations had been created by execu-
tive order as early as 1855, see Cohen, Ped-
eral Indian Law, supra, at 299, the authori-
Moet of these doubts have sow beea re
solved. The Supreme Court has held that
Congress delegated to the President
power lo reserve public lands from disposi
tion under the publie land laws for Indians
4659, 85 S.Ct. 408, 50 L.Ed. 673 (1915); one
Grisar v. McDowell, 78 UB. (6 Wall.) 868,
Comsituen (art. I, § 2, cl 2) to rauty weeties
See Antoine v Washiagtua, 420 US 184, 202,
$5 S.Ct 844, 43 LEd 3d 129 (1878), & Tyler. A
tlistory of ladies Policy 79 (1873)
S43 FEDERAL REPORTER, 2d SEKIES
381, 18 1. Pd 463 (186K) The courts hove
held thal a8 lony as oA cacoulive ortler
creating « reservation romains in of fect |
lmlian Wthe Wo the roservelion lands de-
serves Um samme prulechon as Use Indian
Hille to icetfvetivns cicaled by treaty
Slatute Spalding v Chandier, 1% US
904, 04, 16 SCL 360, OW LEd 4 (1896).
Gibson ¥. Anderson, 181 Fo &, 41 42 (Yh
Cir, 1904), McFadden vo Mowalain View
Mining 4 Milling Co, WI ¥. 670, 673 (oth
Cir, 1899), rev'd un otber gruundas, 180 U &
638, 21 S.C4. 4h, 45 L.Ed 656 (1901) Con-
grees ales, at least in practicon, has not du
criminale! agninet cxzeculive order renerva-
twas, Sew Note, Trilal Property later: sts
in Maoeulive-Order Keservationss A Com
pensable Indian Kyucht, @ Yale LJ 627, bi
(1960)
One distinguuhing tea ture vf Indes
rights in executive order reservations has
appeared, however Before Congress pro-
hibited fulure changes im Indian renerve-
tions by executive order,” « was common
practice for the Presidest lo terminate or
reduce in ste execulive order reservations
without payment of compensation See 4
OpAlly Gen. 151, 186-89 (1924) The leyal-
ity of thus practice was finally settled when
the Supreme Court held that although Coa-
gress hai delegeied to the President tie
power lo creale reservalions, it bad never
dolegated thu power lo confer cuinpensable
property interests in the Indiana Shows
Tribe of luciana v. United States, 316 US.
$17, 026 26, 64 BC. 1006, 86 LE 1H)
(1942). There the Court found no congree
sional recognition of the existence of com-
pensable (rihel property jaterests in a reser:
vation created by excoutive order in 1475
and Larmioated io 1HH4 It Unerefore bold
that no right Le compensation eristed upoo
Une termination of such & reservation. /d
at 831, 62 SOL 1006.
1& The (restion of mew executive order reserve
ous wes protutied by Uwe Act of June WO.
1918 ch 4 6 27, 4) Seat 34 (ccebfied ot
USC § 150) amd «henges in Une Benendasios of
sour reeer s by eaeculive wer wert
prubiiaied by the Act of March 3. (827. ch 298%
6 4, 44 Stet 1347 (covehied & 25 USC § 388d)
UNITED STATES vy. SOUTHERN PACIFIC TRANHY. CO.
687
Che os 143 20 676 (16/6)
Although it has been argued Unat in 1927
Congress recognized compensable tribal
property Wteroala in executive order reser-
vations, se Note, Tribal Property Interests,
supra, 6 Yale LJ. at 687, none of the
parties contend that Congress had recog:
nivel any euch rights of the Walker Liver
‘Trike Ww ite reservation a of 188] wheo the
railroad was conatructed.
[13) Thus, the statue of executive order
reservations can be summarized as follows:
the Indians have the exclusive right lo pos
session but tithe to the lands remains with
the United States. Congress has plenary
authority Ww control use, grant advorse in-
toreste or extinguish the Indian title, In
theme renx cla, execulive order reservations
du not diffur from treaty or statutory rescr-
vations. ‘The one difference is that so lung
as Congress has not recognized compensable
interusts in the Indians, executive order ree
ervations may be terminated by Congress
or the Exeeutive without payment of com-
pensation. Ie light of thie background, we
now ture te the specific argumeata ad-
vanced by Beuthern Pacifie :
B. Does the 1876 Act Apply to Executive
Order Reservations?
(14, 16) The first issue raised by Bouth-
ern Vaclfie fo a matter of statutory con-
struction whish le easily resolved ia favor of
the Indiana. Bauthern Pacific asserts at
the owlest that the 1875 Act should be
erally construed o effectuate ite pur-
jose © Great Northern Ry. ¥. United
States, $16 UB. 282, 272, 62 B.CL 629, 66
L.Ed. 886 (1942); Great Northera Py. v.
Sivinke, 261 UB 119, 184, 48 B.CL. 816, 67
l..had. 664 (1888). Binee, however, the spe
cific provision in question ls an exclusion of
Incian reservations from the “public lands”
available under the statute for railroad
rights-of-way, a different rule of construc
ton come inte play: statutes enacted for
the protection of Indians must Le broadly
construed in the Indians’ favor, See Ao-
twine v Washlagwa, 420 U.S. 104, 190-200,
16. See note 13 supra.
95 SCL 044, 43 Lal. 2d 128 (1975); Morton
vy. Kuia, 415 U.S 199, 236, 04 8.08 1055, 39
L.Bal.zd 220 (1W74), After exanining the
language of the IM76 Act, ita legislative
history and the interprotations placed upon
it by Congres and the Departmant of the
luterioe in the byght of this rule of wunsrue
tion, we conclude thut Congress intended to
exclude oxecutive order reservations from
application of the Act.
The 1876 Act, by ils owa teria, doos “not
apply to any lands within the limits of any
, Indian reservation, un-
leas such right of way shall be provided for
by troaty-stipulation or by act of Congruss
heretofure passed" Ch. 162, § 6, 16 Stat
443 (45 U.S.C, § USM), The exclusion fiom
the Act of any Indian reservation obvivusly
must include executive order reservations
Southern Pucific points to the “treaty aliyu-
lation or hy act of Congress heretofore
passod” language as limiting “any
Indian reservation” to treaty or atatulory
reservations, Hut Southern Pacific has Lak-
en the phrase completely out of context.
The phrase appears in the clause “unless
such right of way shall be provided for by
treaty-stipulation or by Act of Congress
rad ” Manifestly, it le the “right of
way” and not the “Indian reservation”
which must be provided for by treaty or
prior act of Congress.
Southern Pacific next elaime that the ref.
erence to treaty-stipulation or prior act o/
Cungross at lenst creates an ambiguity
since “by definition, as w exocutive order
reservations, Congress would not have
‘horetofore paseod’ legislation.” This sug-
gestion le without merit. While it ie true
that Congress by definition would not have
“heretofore passed” legislation establishing
executive order reservations, it does not
follow that Congress by definitwa would
not have “heretofore passed” legislation
granting rights-of-way across such reserva-
tions, While we cannot cite esamples of
such logisiation passed before 1875," there
17. Most of the large western executive order
reservatiuns were not created until after ia7i
See | Kappler, supra note 6, a 601 094
688
are numerves creampies of such legulaton
enacted after 1876. Thus the language of
the slatule in no way inconsistent with «
congreawonal intent Wo exclude el) Indus
recervetoan, ineudiog caveulive order ree
ervulions, [rom spplcauen of Une led Act
Even if we were conclude thal the
1875 Act « ambiguous on this poist, how-
ever, our examination of the legislative hw
tory of the Act and Une subsequent later-
pretatwns of it by Congress and the De
partment of the Ipteror kads us W con-
tlruc it as not applying lo cacculive order
reservauons The mauve was extensively de-
belid wn the floor of the Senate. The
original Senate bull did not expewealy exerps
Indian rescrvations from its applicalica.
When such on amendment was offered, sev-
eral Seuuluee obpetted, contending nal be
cause of (he great extent of eascy live order
reservauons in Une territories aad Une “fugi
live and floating” sature of ladias proper-
ly mgnhle im ewok reservations, a blanket
prohibilion ef right-of-way graats \hrough
these reservalions Would unnecessaniy im-
pede raiiroad development im the unsetiied
West Thus Seater Sargent offered as
allernalve amendment which would have
allowed (he Bearetary of the laterior We
approve nghlof-wey grants Larough exece-
live order reservations, 2 Cong Rec 2088-
ew (1874).
The views represeated by this proposal,
however, faded te carry the day The oppo
ions response was Unal even Uhough (he
federal guvernment may have lhe power lo
Lerminale an exoouUive order reservation or
sancliwn an invasion of such @ reservation
by « raiiruad, \ wowld aot be wise lo do so
as a mathe of polcy jd at 2900 (remarts
of Senatuc Hamilwea)
1& See ne 20 nifre
18. See 5 Faec Moc No l7, 4th Comg. it Sena
4 5 (ie85) The Commmntassoner of indian Al-
laws wae Wo Une Becreury of he interes on
Lecenser 4, (882:
Se.uee 5 of the [1875 Act) eupressly ex-
COlueg Inen teserveuces ents
hah git of wey shall be provided for by
Uesty “iyelauems of by act of Congress
heretutue peseed.” ead ao week provision
Deimg coleoi um (he Case of the Wadher River
M3 FEDERAL REPOKTEN, 24 SERIES
These it appears thal the problem of exec.
wlive order reservaluns was explicilly
browg ht Lo the alleution of Congress in the
debates leading to the 1876 Act. The Aci
was nevertheless phrased 66 as nol lo apply
Ww “any lodian reservelwn” 1.
is therefore not open to Southers l’acific w
argue nat the purpose of ihe Act would Le
better effectuated if it dal ajyly Wo execu-
uve order reservalwns (hal iseue was re-
solved againat Southern Macifie aud in fa-
vor of the Trike by Congress in 1#76
This conmairuction of the Act ie consitent
with (he trlerpretalwn placed upon it hy
Une Secre leary of Une Interwor Contrary te
Sowthern Macifu's argument Uset the be
partment of the lotecwe bee slways con-
sxlered Une Secretary's approval of maya in
sl as coeferring « veld rightol-way un-
der the 1875 Aci, the Secretary of the Line
comaderud (he approval of maps a mistake
As soon as (he fact Lhal the railroad crossed
the Walker River Reservation was brou,hi’
we the Secretary's allention, he directad
Unal a8 agretmen| belween the Indians and
railroad tw drawn up and submitted to Cou-
gress for ralifeatos.” To thie day the
Bureau of Indian Affairs has no record of
any grant of « mgbtof-way under a treaty
or comvenUice pursusat lo % UBC. § 177,
or under any Other congreesioaal act, gencr-
al of special.
The construction of the LETS Act adopted
here «@ also comment with the inlerprets-
on of Une Act apparently accorded Ww it Ly
Thus in the years after passage
of the 1#76 Act, bul before passage of the
1699 Act generally granting railroad rights
of-way acrom Indian reservations, Congress
passed o number of special statutes grant-
ing mghteecf-way lo apecifie railrunds acruse
specific saeculive order reservations”
Reserv aiion («Mech was creaied by
sancwllve Order), K appeared Ww this offi «
thet (he eutharty WO greet «@ right of wey
Unrewg? Une reservation rested in Congices
noe
kd a 4) The Secretary sgreed and imsirucied
the Ikan offee Wo ottamn an agreement fu
whee Wy Congres id
Bg. Act of Augum 5, 16M2. ch 306, 22 Sime
758 (gm of wey ecruss the Payego Keservs:
UNITED STATES v. SOUTHERN PACIFIC TRANAP. CO.
689
Clas an 043 ¥ 2d 076 (1878)
That Congress did mot consider the 1876 Act
applicable lo executive order reservations is
made even more clear by a clause in at least
one of thase atalutes to the effect that “all
the provisions of (the 1876 Act] are hereby
declured to be applicable [to the right-of-
way granted by this special slututs] Lo the
auive extent as though the lands in said
reservalion, were open to settioment and
sale” Act of March 6, 1896, ch. 42, 2 Stat.
45 (granting right-of-way across the Col-
ville Reservation, established hy executive
order of President Grant, July 2, 1872, 1
Kappler, supra note 6, at 916). If Congress
considered the 1876 Act applicable ww execu-
tive order reservations, this clause would be
superfluous.
(16) We hold that the General Raliroed
Right of Way Ast of 1876 dows not apply te
execullve order reservations and that the
attempted compliance with that Act in 1881
by the Carson & Colorado and the Interior
Departineat was therefore not effective to
perfect a right-of-way through the Walker
River Reservation.
C. Was the Reservation Terminated by
Approval of Maps?
Southern Pacific's second argument is
more subtle, It claims that even if ihe 1876
Act does not apply lo executive order reser-
vations, it still obtained a right-of-way un-
der the Act when the maps of definite
location were approved by the Becretary of
the Interior in 188). It asserte that the
Secretary had the authority to return lands
reserved by executive order to the public
domain for disposition uader the public land
(lon est ablaned by executive order of President
Great, July 1, 1674, | Kappler, supra acte 6,
605), Act of February 16, 1887. ch 10,
Stat 04 (right-of way across he Fort Berthot
Keservetiva established by executive order of
Viesidem Hayes, July 13, 1880, | Kappler,
ptm, ot OBS, Act of May WO, 1848. ch 336,
Sat 160 (right-of way across ihe Cueur d’Al
tie Reservation established by executive order
of Presiden Grant, November 6, 1873, | Kap-
pier, qupra, et 657), Act of May &, 1800, ch.
tee, 40 Beat. 102 (right-of-way acruee the Col-
Ville Keservetion established by executive 01 er
Of President Grant, July 2, 1872, | Kappler,
supra, of 016), Act of February 16. 16u5, ch.
85, 28 mum sis (ight af-way scross the Sea
lawe and that the effect of the Secretary's
approval of maps in 1881 was to Lerminate
the reservation to the extent of the right
of-way sought. Once the ruservation was
terminated! in the manner, the 1K75 Act
could simultaneously apply W grant the
reilruml the rightol-way sought
(17, 18] We reject this argument We
note that while (he execulive branch han
broad authority to withdraw publi lands
from diepumition under the public land laws
fur the benefit of Indiana and to manaye
the disposition of Indian lends, see [ated
States v. Consolidatld Mines & Smelting
Co, 466 V ds 482, 44% 44 (Bth Cir. 1971),
United Biaive v. Harnedal! Oli Co, i127 Vdd
1018 (10th Cir. 194%), the source of this
Butherity le sungressional acquiescence in
\te exercise. See United States v. Hidweat
Oil Co, supra, 2346 UB. at 472-75, 8 S3.Ci
809; Sioux Tribe af Indiana v United
States, supra, 816 U.B at 826, 62 S.Ci. 1006.
Since the authority ie delegated py Con-
gress, its exercise ean be regulated by Con-
gross. In 1876 Congress granted rights-of-
way to railroads through public lands but
specifically provided that the grants not Le
made through Indian resorvationn This
provision implicitly dealed the Secretary
whatever authority he might previously
bave had to lerminatle an executive order
reservation Ww the extent of & requested
railroad right-of-way merely by appreval of
mapa of definite location. Were we to hoki
otherwise, we would completely subvert the
determination of Congress that railroad
right-of-way should sot be granted
Carioe Givisiun of the Whule Mountain hese: va.
Uon, established Uy esecullve order of Prea-
dem Grant, December 14, 1874, | Keppler, su.
pra, at B12 15), Act of Marek 6 lens. cr 44,
26 he (rigs cf way ecross the Culvi
Reservation), Act of Juwe 4, 1888. ch 377,
Sigs 430 (same), Act ul June 16, ibee, ch 406
475 (seane)
These wccial shatuies typically granted
righs of wey sarrewer than the 100 fee on
each sie of ihe rued greated by the 1675 Aci
(43 UBC § O44) The statutes else typnelly
made wane pi uviemm for oldaiung the hitens’
Cuneent te Cunstruction of Une (ailrued and fur
the payers uf campenesiion
690
through excculive order reservations under
the IK75 Act
We recoynicn Chat even after 1876, the
Presidcnt or the Secretary of the Intenor
could still aller the boundaries of, of even
eatiogur lh) completely, an Gacculive unter
reservation in order lo make way for o
railromd [hut thet cloarly is not what was
Firet, the Secretary's approval
of ninps does not purport lo lerminale the
reservelion The affidavit submitted with
the iaps Ly the president of the Carson &
Colorado recites “thet the maps have been
preparcd W be filed fer the approval of the
Secretary of the Interior, in order that thu
company may vbtaln the benofits of the
(1870 Act)" The Seeretary’s approval le
then nuted on the same page: “Dept. of the
Intwrior, 20th January 1881. Approved, C.
Behurt Bocretury.” The maps clearly \adi-
cate the Walker River Reservation bounda-
ries with no mention af thelr belny altered.
Secundly, the Searetary obviously did not
intend hie epprovel gf the maps to Lermi-
nate the reservation to the extent of the
right-of-way Aa pointed out earlier, he
considered hie approval ef the maps « mis-
take aud instructed the railroad to procure
an agreement with the Indiass te be rat
fied Ly Congress. ©
Finally, even if the Searetary intended to
terminate the reservation, he could nut do
ew by such informal means as approval of
nape subinitted under the 1876 Act. We
have held that ruvesation of withdrawals
frum public land fey reservation use may
not he accomplished “by cireumatances or
procedures leas formal thas those altending
[the withdrawal, or else) confusion would be
encouraged in the field of property law, a
field in which certainty has undisputed ad-
vantages.” United States v. Consolidated
Mines & Smelting Co., supra, 466 F.2d at
406. The Walker River Reservation was
created when the Indiana Commissioner
asked the Commissioner of the General
Land Office Ww respect the reservation in
fulure public surveys aad to direst the local
land offwes to respest. the reservation on
their hooks in the meadtime. Bee United
Biates v. Walker River Irrigatioa Distriet,
dune here
B43 FEDERAL, REPORTER, 24 SEKILS
U4 F.2d 844, 34K (9th Cir, 1980). These
actiuna wore later ratifiuod by exuculive or-
der of Vresident Grant, March 19, 1874 1
Kappler, supra tule 6, at Boe
In contrast, the approval of maps in 1881
Which all yedly trrinated part of the rea
ervution was nut accompanied Ly these fur-
malities, Never was there « directiva to
the General Land Offices Unt the reserva:
tivn boundaries hud leon changed, nor was
there an eacculive order rauifying the act
We conclude that no rightofwey wae ac
quired through the Walker Kiver Reserva
twa under the 1M76 Act by urroneous ap
proval of maps by thu Secretary
V. Right-of Way Under the 1800 Act
In 1800 Congress onacted a general slat
ule granting rights-of-way through Indian
reservations lo “any railroad company or:
ganized under tho lawe of the Unitud
Statos, or of any State or Territory, which
shall comply with the provisions of thie Act
and such rules and regulations as may be
preseribed thereunder . oe awe
March 2, 1800, ch 874, § 1, 80 Btat. 900
(codified at 25 USC § 812). Southern
Vacifie contends that it aequired a right-of-
way under the 1408 Act upon Its becoming
effective either by: (1) construction of the a
railroad in 1882, ur (2) “de facto” compli
ance with the requirements of the Act in
1881 and ins,
The district court began its analysis of
these contentions by noting: “Since the
railroad lines here in question were built
between 1480 and #62, the queation with
respect W the Act of 1690 becomes whether
it le to be given retroactive application”
The court thun concluded Uhat the 1899 Act
did not contain the clear expression of in-
tent required lo construe @ slatule as retro-
active, This reasuning, however, does nut
meet Bouthern Pacific's argument. It is
not contending that the 186@ Act applied
retroactively lu grant » right-of-way effec
tive from the railrosd’s construction 1A
1842 It contends only that it acquired «
right-of-way under the Act upon ite becom:
ing effective in 1800. This argument leaves
opea the claime of the Tribe and the United
UNITED STATES vy. SOUTHIERKN PACIFIC TRANSP. CO
er ee eee
Sistes thal Ue railroad was @ Urespesser
from 12 Ww 1889, bul it does mot call for
retroactive application of tne 1808 Act
Hut even Uwugh we do nol accept Une de
Lrict cuurl's reasoning, we reach (ne tame
ssult and reject Southern Pacific's claiow
thal ik acquired @ mghi-of-wey suger Vie
lsyy Act
birel, we reject the contention thal con-
struction of the railroad alone w suffiment
to acquire @ might-ol-way under the Act.
Southern Pacific relies on cases decided un-
der the 1875 Act, section 1 of which pro
vules. “(A] right of way through (he public
lands fe hereby grante! Ww any
failruad compesy whch onal
have filed with the Secretary of the later
or a copy of ite apicles of incorporauon,
aud due pevols of ibs organisation
Ww the exteas of one hundred feet oo each
side of Ue eemtral line of said road
Cw 168, 16 Stat 442 (9 UBC.
§ 634) The courts have held inal (Ble is 8
grant in presses © 48 unidentified
grantee of an vaspecified rghtol-way
The grantee la identified by filing iw arti-
clea and proofs ef organisation. The right-
of-way may be speaified in advaace of con-
sirucuios by the filing and approval of maps
of locaion pursyant to section 4 of ine 1575
Act. 16 Stat. 483 (43 U OC. § 987); James
towo 4N. BR v. Jones, 177 UB 126, 181,
@ SCr 608, 44 L.Ed 666 (1900) Alterna
Uvely, Une right-of-way may be specified by
actual comatruction of Use railroad without
ever fling maps Jd at 18082 @ BCo
14a -
{19} Southern Pacifie argues thal since
the language, requiremeats, principles and
policies of the 1808 Act are similar ur Wen-
ical to those ef Une 1875 Act, Une 1809 Act
should be construed io the same way 68
right-of-way may be sequired by filing tne
company's articles and proofs of organita-
tiwn and by actual construction of tha rail
road This eonteation le wholly without
merit. The granting clause of the 1800 Act
signifeantly differwat from what of Ue
1675 Act. Section } of ime 1899 Act grants
the right-of-way “Ww any railroad company
which shall comply wilh the pro
691
viswona of (hu Act " Cry 374, 0
Stat We (2 UBC § S12) The granke
ender the Act uw therefore mot dentifnd
merely by fing articles and prowfe or or-
gacmaion as umder the 1875 Act, the
grentce imuel im edditeon cumply with all
lew pews samuecs of Act is wali thes
Quiremonta (nal tonya he (bel wad approved
end that cotmpeteaton Le pad We the fmt
ans. Id 9 3 WSiet WI (BUSC § S14)
Construction of the ralrosd w clearly ot
sulficrent Ww sequire a right-of-way grant
wader he las Act
Southern Pacific s second contention, Vat
the Lew Act appdce to railroads constru t
od before pesage of (he Act where (hire
was “de facw™ compliance wilh Lhe require
ments of the Act uw more difficult The
Tribe and ine United Sistas coatond (hal
the 1899 Act showld be construed as fot
applyieg Wo railroads slready comslructal
whether or not (mere was de facto compli-
acca with Ube requirements of Ue Act
They cle Une language of Une Act and the
regvlavons promulgated Unerwunder as Undi-
calling Unat cooly ‘ines Lo be camstructed ia
tae future are included
We do mot fied much apeletapee in Lhis
language, however Bome ef the provisions
ciled do mot refer lo construction at al! bul
only nacify comiitions precedent to Bffec-
Uveness of tne grant Por example, section
3 of the Act provides that “before the grant
shall Uecome effective a map
must oe filed with and approved
by the Secretary and the compa-
Ay must make payment to the Secretary
for ine benefit of the tribe
" Id (2% USC § 814) This pro
vision by ilee!! dues mot preclude the grant’s
becoming effective long after construction
ef the ralrved
Ouner provuione seem lo presume thal
tne railroad Wo te constructed in the future
wilhowl petssarly ptwcleding ayy lcaloa
of the Act wo om existing railroad = Por
example, here w & proviso im section | of
Une Act “[iPael mo right of way shall ln
qraaud wet) the Secretary
me eetisleed Ural the company [has
Lhe) imteat aad ability We con-
692
struct mail road ." Id, 8 Stat. 10
(2446 USC § 812) This provision obviounly
contemplates an spplication made in ad-
vance of construction, but intent and ability
to Construct cannot be mure uffectively
demonstruted than by completed construc:
hivn
Tho language of the 1876 Act generally
contuinplulus that the railroads would be
construckxl ly the future but that Act
peverthvluss has been beld to apply ww rail
ruads constructed before 1876. Rio Grande
Wo oky v. Stringham, 8 Utah 113, 110 ww,
110 F 848, 670-71 (1010), aff'd, 280 U.B. 44,
36 S.Ct 5, 66 LB. 186 (1015) That deci-
sion, however, was baged on an inferred
contemporaneous interpretation of the Act
by the Socretary of the lilerior, Here the
Tribe arquce Unat the Becretary iaterpretud
the 1899 Act a not applying to previously
constructed railroads, Thus in 1001 the Le-
partmont of the Interior Wok the position
thal it wa» necessary for Congress w ratify
an ayreenont between the Devile Lake
Tribe anil the Jamestown & Northern Rail-
way granting @ rightal-way scruss the rus
ervalion for # previously constructed rail-
rowl The sjwnsuring congressman ex-
plained (het the bill was necessary “Lecause
the generul law passed since (the last truaty
with the Tribe --presumably the 1890 Act}
On the subject is not applicable to thie par-
bieular lucauion.” 84 Cong. Rec 8482 (1901)
(remarks of Mr. Spalding).
Buuthern Pacific properly notes that the
Devils luke epimnle dows nut provide a clear
picture of the Department of the Interior's
position The Jainestown & Northern had
contracted with the Indiana for a 200-fuot
rightol-way, see Act af March 8, 1901, ch.
869, 31 Stat. 1447, but the 1800 Act yrants
only 100 feet If the Jamestown & North-
ern insisted upon 200 feel, congressional
ratification would be necussary even if the
company could aequire 100 feet under the
1699 Act Thies possibility is aa consistent
with the documents cited by the Tribe as its
contention that (he Department of the Inte-
ror dul nut cousider the 1800 Act applicable
WwW auy previwusly constructed railroad.
Therefore, we do not rest our decision on 6
3 FEDERAL KEPOKTER, 24 KEKIES
contemporanoous edininintrative construc:
tion of the 1°90 Act which holds that Act
inapplicable te pre existing railroads
Without deeulingg whether the 1499 Act
Mahe apply oom pre-esioting railroad in a
we hold that Southern Uwerfie's
predecaseure slid vol comply with the boos
Act hore Section Doof the Act requires
Vat the conijany pay the Ladiane full con
pensation “which compensation ehall be ck
lurmined under the direction of
the Beocretary of the Interior, in such man
ner as he may prescriin.” 80 Btat GO! (25
UBC. § 314) The regulations provide,
“{T)he United States Indian agent, or «
special Unitud States Indian agent, or tndid
an inepwctor, will Le desiguated to detor-
mine such compunnation and damages, sul-
ject W the approval of the Sccretary of th
Interior.” 44 L.D. 463 ( Liswd). ‘
prayer CAs
(20, 21] outhern Pacific contends that
it complica! with those requirements Ly pay:
ing the Tribu $760 pursuant W the LKMO and
1882 agreements, It appears frum congres
sional documents ciled by the parties that
the Commissioner of Indian Affaire and the
Secretary of the Interior “approved” the
1682 agrecinent before submitting it to
Congress for ratification §. Exec Duc
No.17, 49th Cong, let Sean. 1, 2 (1846) At
we real the Act and regula\ens, however,
Vhey do not alluw fur indepemlent neyotia-
tions between the railrogd aos the Indians
even If thw compensation le later approver”
hy the Bwerelury of the Inturwe The lhuvy
Act was mount to protect fully Indian inter
eala, soo Hl Kk Kep No 1806, fhth Cong, 34
Beas. 2 (1500), and we are thus obliged to
comatrue the Act and the regulations siret-
ly in the Indians’ favor Alaska Pacific
Fisheries vy United Slates, 26 US 7H, 9,
89 B.Cr. 40, 65 Leet (58 (101K). The regu
lationa require that the cumpenagtion be
determined la the firek Wnatance by the
United States Inilian agent or uther desig
nates! official, subjoct lo the Latarjor Sevro-
tury’s approval, We cannot permit South-
ern Pacific W byjuss (hin procedure which
wes apparcnily designed W preclude ay
proval wilhuwul the recommendation of an
—E—
UNITED STATES ¥. SOUTHERN PACIFIC TRANSIT. CO
693
Cua ee A Fd O78 (1878)
imypartiel ladan expert who has personally
evalueld the situation
{22} We also conclude that the compon-
sation shoul! be determined as of the ‘late
the grant of the right-of-way le W be effoe
Here Southern Pacific seeks a grant
oe te LU, bat the Cortpenaabiont Wid
ni yoliated and paid in 1640 and 1KAZ The
the right-of-way may have
change siguifiewatly in the intervening 17
ysars Thus we cannot conclude that the
procedure for determining compensation
followed! here aghieved even de facto com-
phance with the 1808 Act We therefore
reject Southera Paaific’s argument that it
acyuired « rigtthod-way under the 1600 Act.
tive
elie
value of
VI. Kightof-Way Through Lands Coded
in 1906 ;
(23) We naxt consider whether Bouth-
ern Pacific obtained « right-of-way under
the 1875 Act Larough reservation lands cud-
ei to the United States in 1906.
In an annual appreprations bil in 1902,
Congress acted le enable part of the reser-
vation W be opened to settioment. The
Secretary of the Interor was directed Ww
allot ine irrigable lands on the Walker Kiv-
er Reservation to the resident Indians
‘Twenty acres were to be allotted to each
fumily head and the remainder Wo other
ludians, nut to exeued 20 acres each. When
the majority of beads of families had ac-
capled allotments and agreed Ww relinquish
Ure nun-irrigable pert of the reservauion,
each family mead allotice was Ww receive
$500 and the relinquished lands were to nw
vpened Ly presidential proclamation “to sel-
Uement, lw be disposed of under existing
laws” Funda w pay the Indians were ap
propriated Ast of May 27, 1902, ch. 488, 82
Stal 260-61 Congress later directed the
Secretary of Une Interior to set aside, before
Une lands were opened lo setement, non-ir-
rigable grusing and timber lands for use hy
the Indians in common Resolution of June
19, 1902, No. 81, 82 Stat. 744 (grazing); Act
of June 21, 1906, ch. 8504, 34 Biat 358
(timber).
4). These aikaamenys were made w the prede
Coseures Wi Uteremt of (ne slletions Genied par:
On July 24, 1004), the Lratiane agtoed, in
cunaideration of the alluimenl © ent cash
payments provulud hy the 1902 Act, to
“cade, grant wid relinquieh to the United
States all right, title moc interent” bo the
remaining rosurvation Innde lly jreowlen
tial pre Intooteon oof Sentenmber 26, uti,
tinge fr Hhequished lnaimia were vial le
eettloment, (lol le euljoet by Dispersal wel
the oxrsting lawe uf the United Stuua” B44
Stat. 8257 Sa
Part of Southern Iacific’s line crowscs (he
relinguished lands 1t argues that it ac
quired « valid rightolway through (hese
bande under hw 1H76 Act either when the
lands were opened wo seliiement or whee
amendud mape of definite location were
approved in 1026
The district juige rejected both of Less
contentions § ile concluded first thal (he
reservation lWwundariaa had nol lnee
changed by the relinquishment and that,
therefore, (he coded lands were ati!! “within
the limita of any Indian reserva:
tion,” whieh would prevent an casenicat
due W section 6 of Une 1876 Act, 16 Stat
448 (48 USC § 085) Bul (he dliatre\ court
also hal that the United States luok an
unrestriclud! title lo the coded lands and at
not take aa Lrustee for the lndiary. There.
fore, the coded lande were “juiblic lends”
within the meaning of section | of Une |#/6
Act, 18 Stat 482 (48 USC § 084), and a
railroad easement could |e secured. Paced
with Ue apparent conflict belween tecliune
1 (rightof-way «ranted through “publ
Janda”) and 6 (Indian roeaerveations exclude!)
of the 1876 Act, the diatrict court held Uma
section 6 supersedes and controls No
right-of-way could therefore be obtained
through the coded lands
While Uhia result may soem acceptable at
firat blush, it appears unreasonable upon
examination of the interface belween the
1875 and 1800 Acts. If Ue coded lanis
remain “within (he Umits of any
Indian ruservation” and therefore (he ex-
clusion in the 1876 Act prevents a rightel-
Ucipation in the oui See pp 642 66), ou
pra
O41
way, Ven jewoumably the 1500 Act grant
Ind Hig hleofeway “through Indien reserve:
hou,” BO Stat 090 (26 UBC § 812), dows
apily Tha wader the district court's ree.
x, Nivwal we be ollaia a piphtiot
way Uirowgh eweh ceded lamdle, it must, pwr
suant lo ihe 1ea0 Aet, pay the Indians full
Colapensabion for the nyghtol-way and com-
viy with @ wumber of ulher requirenenu
fur the Uenefit and protuction of the Indi-
acs Yet under the terme of the camsiwoo
syreement, the Indians have already been
pont in full for the ceded landa by Caan
poymente and ipdividual allotments and
Vey Rave relinquished “all right, tithe and
\ulereel” in (nese lande Thus, as the die
(rel Court ialerprets (be 1878 Act, applica.
ten of Une M@ Aet would reeult in a
windfall uf duuble payment to the Indians
ard unnecessarily burdensume require
(0c 0te for oULaing @ railroad right-of-way
The only alternatives to obtaining 4
Fyltof-way wader the 1B0® Ast would be
Ww eek @ speelal act of Congress of to
forego a right-of-way allogether The first
alernative ie inconsielent with the purpose
of the two gemaral railroad right-of-way
ae Ww free Congress from the burden of
sy ilicabions for special righof-way \oqiala-
bon See IK Rep. No 1806, bbth Cong, dd
Sees | (i8W) The seeuad @ contrary Ww
‘he congressional poiley of encouraging
waters me ilememt hy promoting the exten:
nol rallromde. Bee United States ¥ Den-
wr GRO Ry, UOUB 1 B14 CO 11, 87
Lbal ¥76 (\ ie)
However, we are mot compelled Lo reach
(he reoull. Assuming first, as the district
judge del, (hab Ue reservation Loundarios
were not altered by Une 1908 cession, the
Apparent conte between sections | and 6
vf (he 1675 Act enn be resolved by constiru-
Ing A elatule which la even more spocific.
‘The (002 siatute lmitiaUing Une cession neyo
Valens provided that all son-irrigable
lands in the reservation be purchased for «
UM) sum and opened Lo seitiement, “lo be
22.) The aicy of afctmen and sale of surplus
feeervalin) lande wea repudiaied in 134 by
(Ne linea Recrganisaiion Act ch 676, 48 Sai
O44 (sanded and codified w 35 USC 4 4)
el wey)
HS FEDERAL REPORTER, Wd KRIS
Uispoecd of under existing lawa” 82 Star
261) Since the elated jwrpoee of thu etal.
wile 8 We open tle corel lancle Ww eutth jon nt,
we conclusle (hal the “wating laws" whieh
Con res , ' ! we ft ee A
larcde ary Wine lnwe relating by the digas
on of pall letels, imeluding, we the cis
Wet jurige recoguived, Ue 1876 Act ‘The
1¥02 statute, as iniplernented by the cession
agreement tet jncewlential proclaiiatun,
COMM Lalas & Bpmcial alalulory exception W
Une brued eachuson of Indian rescrvalious
from apylcation of the 1876 Act. While iw
general Une 1675 Act dows not apply to lands
“withia (he limite of any Indian
reservation,” we aunclude Ubat it applica w
the coded lane within the Walker Hiver
Reservation bwcause in 1W2 Congress ex.
presaly directed that it should.
(24) But even if the 1002 elatule is am.
diguous on thie point, we reach the same
reeult, We find thal, contrary lo the dm
Wiel judge's aseuinplion, the 1006 comin
tiered the Boundaries of the reservation ae
thal (he caer lancle were po longer "within
the limita of” thw reservation The coded
lande wore (hus available for a right-of-way
arent under secuow | and not within Ube
eaciusion of section 6 of the L876 Ack y
The 1906 cession i# @ special variant uf «
genoral policy embodied in the General Ia
dian Allutenent Act of L887 (Dewus Act), cd
119, 24 Stat S88 (eutified at UBL § A381
ot ooy)™ The lewea Act granted (be
President dani evonary power lo allut ruser
valion lands lo (he reawlent Indians in sev
eraity, The Indians were Wo receive paleaus
inalienable for 25 years and the benefits of
United States citmenstup, The kiea was
“civiliae™ the indian by forcing him w
abandon tribal life and lake up the ways of
the while farmers Aa ancillary benefit lor
western land intorvets was Liat the “eur
plus” reservation laude remaining after al-
wimente were to be purchased frum (ne
Indiana aml opened lo setihuument ®
23. For on extended (restnmen of alkoiment pol
cy, eee generally Cala, The Dawes Act ond Oe
Alona of indian Lands, supra nie 10
UNITED HTATEHS v. SOUTIILRN PACIFIC TRANSP, CO.
695
Cite we O49 F ba O78 (1078)
In vuw of the dimerelionary nature of the
proowlontial power vader the Dawoe Act to
va fescevationa for allotment, Congroas
has from tone Wo time onmectod special login:
lakun W aeeure that « particular reserva:
bon was subject W allotment Mate v
iS US, OBL, AG 07, MB Bs
S7 L bal Gl 92 (1979). The etatulus opening
the Walker Kiver Ruservation W settlement
are eaninples of such special legislation
Although Une ullumate aim of the general
jwley of allolment waa the abolition of
Inlinn Pemervalions, & reservation was not
necussarily acminated or diminished by the
firet step of allotment and sale of surplus
lande The effect af opening @ reservation
ws bel liement un the reservation boundaries
hae invel frequently bwon discussed in (he
content of exclusive foderal jurisdiction
over promeulions for certain crimes com:
mitted withia “Indian country,” dufinad ww
include “all land within the limi of any
tndian puservation.” 18 UBC. § LIBI(a)
Mual of Une cases have helt Unat reservation
Lountariee are aut changed by allotment
aul selo of surplus lands, Rog, Matus v
Arnott, supra, 412 U.S. at 408 606, 08 BCL.
v240, Seymour v Buperintendent, 368 U 3.
Bi, 62 BC 4a4, 7 L.Ed dd 846 (1062),
United States ex rel Condon v Erickson,
4/6 b ad dea (Bth Cir 1078) But the cases
have not anounced a fined rule. Kather,
\ney Nave comaluded Uhal @ congressional
determination tw tarminate (and inferen-
ally W diuiowh) an Indian reservation
Must be eapress or be clear from the eur-
a4 Asal Shoop Co v United States, 162 US
156 40S Ci 24), O41 ba B07 (1820), chad by
(hoe Gietrct court, te nat We the Contrary There
(ie (Cow todtans of Montane had coded part of
thew ceeervetion lands W tne Unied States
ver language Virtually Wentical (o that used
Uy (ee lie here = Sheepowners (hen pastured
he 9 OM sheep On (he coded landae without
thee Losier Comeeat and the United States sued
ful (Mt Matulury penalty provided by Kev Siat
14) i) (oom 2S USC 6 17¥) The beue wae
wl whether (he laade were within the limite of
* (eeervetion, dt whether ihe lands “be
beveled) (0 any Indian of lndian iribe” The
ture bad met paid the lndiane @ fMaed
ou far Une lends Dut inetead promised 10 use
‘he pivwmeds of any sales Ww settlers for ine
ociene Genet The Court held thet as long
+) Ue Untied Mates retained Uile Ht Reid it in
rounding circumstances and legislative hee
tory Matta y Annet, supe, 412 US at
OOF, OU St 24ah
Wesed upon thease Gasca, He raay huwe ap
pearud to Che diatriek judge at the tine he
decided (his cane tliat @ apecial allovnient
obakule weld bart cy be
frubul a clan Ul & roaervation had hewn
berminated of dininishod by the eletule
Hut suleejuent te Unie docmion, the Se-
prome Court distinguished Matta and Sey
mour and foun! an implied intent lo diininwh
& reservation in @ eywcial alluiment statue
DeCoteau v District County Court, 420 8
426, 06 BC. 108%, 48 Ld 2d Bou (1075)
Allwr examining all Une cirournstances of
thie caso, we conclude Usat tha 1906 cession
did aller the Walker River Keservelen
boundaries by removing the relinquished
lands from “within the hails of the reser
valion The moat significant ciroumalenca
lwading ue Ww thie conclusion are the lan:
guage and verme of Une cassion agro ment
iuelf and the subeequeat reatiiont of
these lania by Congress aud the Interter
Department
(25,26) The cussion language of the
agreement here i virtually identical Ww Wo
language construed in DeCoteau The
Tribe agrecd Ww “code, grant and relyqumh
all right, tle and intercnt” As
the Court noted in DeCeoteau, thie language
la “preciasly suited” Lo the purpose of ter-
minating tho resryation elatus of the aed
ed Inncla, [dat 446, 06 SCt 10K2™ Aloo
trust for ihe indiana The lame thus “be
longled) to” Une linheme willin the oeetiog of
the statude reyardions uf ine ceerrvatinn Matus
of (he lane
Neunher i@ Clarke ¥ Toye WP ld ms
O12 15 Chan Cie (RRO), alee citeet by Une de
iret Cut, (0 ine comirary | The farts of that
Cate were similar tu Unie in Abk Shee ine
Shoshone end Arapahoe tribes cevled pat of
thee reservation tu the United States pro
ceeds from the sales ul (Rete lands weir to be
opted to the Indiena’ benefit Act of March 4
1Q05, cm 1442. 3) Stet 1010) Before the cab
lands were mid « seltroad allenipted Ih ae ain
Oo right of way wroler ime BOR Act Later yur
chesera contended thet ihe Mgt of wey was
invelid bev auee ihe bmw Art Gil fet apgly ty
Ue coded lands The court rejected this fun
tention, nut because ihe lands were oil) part of
teed ot
66
as Th Cotcau, Uhe ayroement here veala in
sum certtan ($300 per family
heal alludtce) for the cealed lamte, instead
uf jercly prowling that Uhe uncertain fu
ture procends of sales of the opened bande
| fiw the Ladiane’ benefit ®
the ‘Trike «
be apy
Finally, (he logwletive history of @ lator
Statute ating land, including significant
ehiounts of land coded in 1006, lo the Walk-
er liver MKoservetioa indicates that Con-
wrens and (ie Interior Department treated
(he earlier cosmon a having diminished! Whe
reservalion A letter from the Secretary of
the Interwr proposing an addition Ww the
diminihed rweervalen stated: “The pro-
posed addilwn embraoas vacant publiode
main lands adjsoent lo the preseat Walker
iver Keservation” 8. Rep.Nol/60, 74s
Cong, dd Seas (1086), The slatute autho-
mul Ue Secretary of the Interior “lo sat
wae ere . of re
puble~tomain as an addition” to
ihe reservation, Act of dune Bd, 1886, ch
608, § 1, 40 Stat. 1806-07, The order imple
menting ihe *lalule recited that “ihe lands
are oot asite amd made @ part of
the exislog Waleee River Reservation
Specifically, a later order re-
plored « portion of the relinquished lands
the reservativn it umilar language: be
following described lands
herehy Hep Peso
Walker liver Reservallea »
(Emphases added.) Pinally, a map of the
an inden reservetion, Wut Veceuse the Lends
were reserved “for other purposes in connec:
ion with Ube laden services,” to which the | ae0
Act ele applies §§ 1, Bu 60 GS USC
$412) Tee reeult & just on Une fects of that
ase) where (ne United Status holds ine lands
um foe Une bane, the indians should
reconvene Benefit of compensation for a right
ul wey granted just 60 UNey receive compense
thon for tends (ehee Dy eattera Bua bere, the
indians Neve been pel im full for Ue coded
lant ef (ne lands are matiher meld le (rue for
the lodiane newt (eserwed “for ether: purposes a
Cometh wih Une Indian service” There
fore, Une |8W0 Act should not apety in it
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