Petition for Writ of Certiorari — Hoopa Valley Tribe v. Short

SUPREME COURT, U. S.

Ne S . O44

Gu the Supreme Court of the United States

OcToBER TERM, 1973

UnItTep StaTEs OF AMERICA, PETITIONER

v.

JESSIE SHORT, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF CLAIMS

ROBERT H. BORE,

Solicitor General.

WALLACE H. JOHNSON,

Assistant Attorney General,

HARRY R. SACHSE,

Assistant io the Solicitor General,

CARL STRASS,

EDWARD J. SHAWAKER,

Attorneys,

Department of Justice.

Washington, D.C. 20530.

INDEX

Page

NE pec RE A OE OE OG ET 1

ag hast ea, a re 1

Questions presented __-------------------------

Statutes and Executive orders involved_________- 2

ne Sanwencees+0 3

Reasons for granting the writ. ________________- S

ee ee nace ns 13

CITATIONS

Cases:

Baker v. Carr, 369 US. 186__......---- 11

Choctaw Nation v. United States, 318 U.S. 423 13

Hoopa Valley Reserv ation, 2S 7

Mattz v. Arnett, 412 U.S. 481- axe 3.4.9, 10

MeClanahan v. .irizona State Pe r ‘ommission,

ee ea neaxoe 12

United States v. Holliday, 3 Wall. 407______- 11

Statutes and Executive Orders:

© See unabated oe ee

/ 864 Act of May 17, 2, 22 Stat. 6S ON ne 9 i

Act of July 4, a 23 Stat. ee ert ee an 9

Act of June 17, 1892. 27 Stat. 5, 9-10

Executive Order of June 23, 1S76, 1 K: appler

a wae owes ae 3

Executive Order of October 16, ISO. 1

Kappler ____ SR ere a 3.8.9

ME I kee to ee 8)

Miscellaneous:

Kroeber, Handbook of the Indians of California

I Et ae ikedees 4

S. Rep. No. 278, 60th Cong., Ist Sess______- a

=

532-255—74 1

Gn the Supreme Court of the Gnited States

OcroBER TERM, 1973

No.

Uxitep STATES OF AMERICA, PETITIONER

v.

JESSIE SHORT, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF CLAIMS

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Claims in

this case.

OPINION BELOW

The opinion and judgment of the Court of Claims

(App. A)' is reported at 486 F. 2d 561.

JURISDICTION

The judgment of the Court of Claims was entered

on October 17, 1973. On January 10, 1974, Mr. Chief

Justice Burger extended the time within which the

1“App.” refers to the separately bound appendix filed with

the petition for a writ of certiorari (No. 73-1104) filed by

the Hoopa Valley Tribe, intervenor below.

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United States may petition for a writ of certiorari

to and including February 14, 1974. The jurisdiction

of this Court is invoked under 28 U.S.C, 1255(1).

QUESTIONS PRESENTED

1. Whether, in light of the discretion given the Pres-

ident by Congress to settle Indians on reservations

in California, and in light of specific actions by Con-

gress treating separately different parts of the Hoopa

Valley Reservation, the Court of Claims erred in set-

ting aside the determination by the Secretary of the

Interior that the Hoopa Valley Tribe has tribal juris-

diction over the portion of the Reservation that is

its ancestral home and historic reservation and which

continues to be the place where most of the enrolled

members of the tribe reside.

2. Whether the Secretary of the Interior acted

properly in paying the proceeds of annual sales of

timber on the original Hoopa Valley Tribe. portion

of the Hoopa Valley Reservation to members of the

Hoopa Valley Tribe, to the exclusion of the respond-

ents, members of the Yurok Tribe.

STATUTES AND EXECUTIVE ORDERS INVOLVED

The statutes and executive orders primarily in-

volved are Act of April 8, 1864, 13 Stat. 39 (App.

B); Act of June 17, 1892, 27 Stat. 52 (App. C);

Executive Order of June 23, 1876, 1 Kappler 815

(App. D); Executive Order of October 16, 1891, 1

Kappler 815 (App. EF).

PAs = ae oe

3

STATEMENT

1. This is a suit by 3,323 individual Yurok Indians

against the United States, claiming that the United

States improperly paid to the members of Hoopa

Valley Tribe, to the exclusion of the respondents,

money gained from the sale of timber on the original

Hoopa Valley Tribe portion of the Hoopa Valley

Reservation. At stake are an estimated 16 million

dollars in past payments and the future control of

the tribally owned land in the Reservation.

This case grows out of the same history considered

by the Court in Matt: v. Arnett, 412 U.S. 481, and

reference to that decision and the map reprinted by

the Court following 412 U.S. 506 will be helpful in

considering this petition.

By order of November 16, 1855, President Pieree,

under congressional authorization, established the

Klamath River Reservation for the Yurok Indians.

See Maitz, supra, 412 U.S. at 487. See, also, App.

A 14-16. The reservation encompassed the land

marked as “Old Klamath River Reservation” on the

Court’s map (412 U.S. at 506). The area was his-

torically occupied by the Yuroks.

The original Hoopa Valley Reservation, the Square,

as shown on the Court’s map, was established in 1864.

The boundaries were confirmed by Executive Order on

June 23, 1876. Mattz, supra, 412 U.S. at 490, n. 9; App.

A 25-27. At that time the population of the Square

was overwhelmingly Hoopa (App. A 29). The area

was the historic home of the Hoopas. Subsequently

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all Indians living on the Square have been considered

Hoopa for purposes of census (App. A 31-32) and,

increasingly for purposes of tribal government (App.

A 90-92).?

2. The two reservations were entirely separate until

1891 when, to comply with the Act of April 8, 1864, 13

Stat. 39 (App. B1-13), which limited the maximum

number of reservations in the State to four, the Presi-

dent joined the two by a connecting strip and desig-

nated the whole as the Hoopa Valley Indian Reserva-

tion (see Mattz, supra, 412 U.S. at 492-494; see, also,

map, 412 U.S. at 506). Nothing in the Act of 1864

required that the tribes within the reservation jointly

occupy or govern all the land within the reservation,

and there is no evidence that the President in the

years lnmediately after the joinder of the two reserva-

tions attempted to disturb the separate lives and tribal

identities of the two areas. Even many years later, the

Yurok and Hoopa areas were considered too inacces-

sible to one another for mutual government (App. A

78-79). Moreover, the two groups were of different

Indian families and did not share a common language

(see App. A 13; see also Kroeber, Handbook of the

Indians of California, 121-122, 128-130 (1925). In-

deed, from the time the Reservation was expanded in

1891, a pattern of administrative and legislative action

emerged recognizing in the residents of the Klamath

River Reservation, the connecting strip, and the

*It is possible that there are a few long-term Indian resi-

dents of the Square excluded from the Hoopa roll. It is the

position of the United States that such persons and their

descendants are entitled to participate in the assets of the

Square.

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5

Square separate rights in their respective areas of the

Reservation.

By the Act of June 17, 1892, 27 Stat. 52, only a year

after the Reservations were joined, Congress granted

allotments on the Klamath River portion of the Reser-

vation to Indians who resided on that portion and pro-

vided for sale of the remaining land of that portion

to non-Indian settlers. The proceeds of the sale were

to be used exclusively “for the maintenance and edu-

eation of the Indians now residing on said lands and

their children.” 27 Stat. 52, 53 (emphasis added). Un-

der this Act, 161 allotments were made to the resi-

dent Indians, averaging 60 acres. Of these Indians,

only two were known to be Hoopas, and they had

resided for many years on the Klamath River Reserva-

tion (App. A 56).

Tn 1898 the connecting strip was similarly allotted

to the Indians living there. 499 allotments were made,

averaging 40 acres, including both timber and agri-

cultural lands. Of the Indians receiving allotments,

again only two were known to be Hoopas, and they

were long-time residents of the connecting strip (App.

A 58).

*We are informed by the Bureau of Indian Affairs that of

the approximately 30,000 acres allotted in these areas, some

11,609.75 acres were subsequently sold by supervised or negoti-

ated sale (in which the Bureau of Indian Affairs acted for the

individual Indian owners) for a total of $3,836.783.69. In addi-

tion to the acreage sold by supervised or negotiated sale, Bureau

records also show that some 15,769.59 acres were “fee patented”

to the Indian owners. While the Bureau records do not indicate

what disposition was made of the lands after the fee patents

were issued, the Bureau records and other records (see S. Rep.

No. 278. 60th Cong., Ist Sess. 18 (1908)) indicate that this

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It was not until 1922 and 1923 that allotments were

made available to the residents of the Square. Then

365 allotments were made, averaging only eight acres

each, because the timber lands were not allotted (App.

A. 60-61). These timber Jands remained in tribal own-

ership and the revenues produced by them are the

asset that the Yuroks seek to share.

3. The tribal government of the Hoopa portion of

the Reservation is of long standing. While little is de-

veloped in the record of the historical Indian goyern-

ment, it is clear that in 1915 a council for the Square

was called together to handle allotments on it (App. A

77). This council was composed exclusively of resi-

dents of the Square, including a Yurek Indian. Its

restricted composition, as well as its recommendations

to deny allotment rights on the Square to residents of

the Addition, were specifically approved by the Indian

Bureau (App. A 69-70). In the 1930°s, when tribal

governments throughout the country were reorganized,

Commissioner of Indian Affairs Collier approved the

Constitution and bylaws of the Hoopa Business Coun-

cil as the government of the Square (App. A 82-85),

retaining the divided status of the Reservation, even

though the council sometimes dealt with affairs of the

Addition as well (App. A 83-84).

The Constitution of the Hoopa Valley Tribe has

land was heavily timbered and thus, presumably. also yielded

substantial income to the Indian owners. Finally, the Bureau

records show that the Yurok allottees derived miscellaneous in-

come (such as permit. right-of-way and timber trespass fees)

from their part of the Reservation in the amount cf S585.5z0.74,

a)

7

subsequently been amended from time to time to

broaden its base effectively to include not only Hoopas

but other Indian inhabitants of the Square and their

descendants, including a few Yuroks (see App. A

89-92). An official roll of the Tribe has been compiled.

The Secretary has used this roll for the distribution of

income produced in the Hoopa Tribe’s area of the Res-

ervation (App. A 96-97, App. G: see note 2, supra).

There is no recognized tribal government for the

Yurok Indians, and most of them, in contrast to the

Hoopas, live totally outside the Reservation. Income

produced in the connecting strip and the former

Klamath River portion of the Reservation has been

used for the benefit of the residents of those areas to

the exclusion of the Hoopa Valley Tribe (App. A

95-96). ;

4. In the midd950°s, commercial development of the

unallotted timber on the Square began to generate

substantial income, which was paid to the members

of the Hoopa Valley Tribe. A] number of Yurok

Indians, who resided, and whese ancestors resided,

outside the Square, sought to share in this money,

but in 1958 the Secretary of the Interior ruled that

the unallotted resources of the Square belonged ex-

clusively to the members of the Hoopa Valley Tribe.

65 T.D. 59 (App. G).

A large group of Yurok Indians subsequently

brought this suit in the Court of Claims. The Hoopa

Tribe’s motion to intervene was denied by the trial

judge, but the Tribe was allowed to participate as

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amicus curiae. On May 22, 1972, the trial judge ruled

that the 1891 Executive Order created a single indi-

visible reservation giving the descendants of each

Hoopa and each Yurok Indian identical rights in

the entire reservation, and as a result held that 22

of 26 *‘sample” plaintiffs were entitled to judgments

against the United States in amounts to be later

determined. The Court of Claims adopted the trial

judge’s recommended decision per curiam. The court

also granted the motion of the Hoopa Valley Tribe

to intervene.

On January 14, 1974, the Hoopa Valley Tribe peti-

tioned this Court for a writ of certiorari (No. 73-

1104) to review the judgment of the Court of Claims.

REASONS FOR GRANTING THE WRIT

1. The decision of the Court of Claims that the

Yurok claimants are entitled to share in the proceeds

of the sales of timber in the Square erroneously up-

sets established tribal rights and relations. It is ap-

parently based upon the mistaken premise that where

the President is authorized to settle more than one

tribe on a reservation, particular areas cannot be

reserved for each tribe. This holding is not supported

by law.

The Act of April 8, 1864 (App. B), which author-

ized the President to set aside four reservations in

California for the benefit of all California Indians,

imposed no artificial limitation on the authority of

the President to locate more than one tribe on a

9)

reservation,’ ner did it require the President to merge

tribes or destroy tribal governments or jurisdiction.’

Having so severely limited the number of reservations

permissible, it would have been unreasonable for

Congress to have so restricted the President, and it

did not do so,

Nothing in the Executive Order of October 16,

1891 (App. E), extenamg the Hoopa Valley Reserva-

tion (The Square) so as to preserve the Klamath

River Reservation, shows any intent on the part of

the President to merge the two tribes or give either

rights outside its traditional area. In view of the

physical, historical, and cultural separation of the

tribes and the reason for the merger (see Muattz,

supra, 412 U.S. at 492-494), there is no hasis for

finding such an intent to be implied.°

Any doubt about the remaining separateness of the

areas after the joining of the two Reservations was, in

our view, eliminated by the Act of Congress of

* Under the 1864 Act the President established <2 separate re-

serves for various bands of Mission Indians (collectively re-

garded as one reservation for the purpose of the 1864 Act). in

which each band obtained exclusive substantive rights to its

own reserve (see various Executive Orders collected in 1 Kap-

pler 819-S24).

* Indeed. the Acts of May 17, 1882 (22 Stat. 68.88) and July 4.

Isst (25 Stat. 76, 97). which are codified at 25 U.S.C. 63.

expressly forbid the consolidation of tribes residing on Execu-

tive Order reservations without obtaining the consent of the

tribes to be affected thereby.

“Indeed. in 1890, the Department of the Interior opposed a

bill, which had passed the House of Representatives. which

would have provided that the Yurok Indians of the Klamath

River Reservation be removed to the Hoopa Valley Reserva-

tion and there receive allotments (App. A 45).

vidi

10

June 17, 1892 (App. C). That Act, after the joinder

of the Reservations, treated the residents of the for-

mer Klamath River Reservation (the Yuroks) sepa-

rately and provided valuable allotments for them to

the exclusion of the residents of the rest of the ex-

panded Reservation. This, and the subsequent exclu-

sive allotment of the Connecting Strip (infra, p. 5:

see Map, 412 U.S. at 506) fully justified the Secre-

taryv’s determination that the assets of the Square,

largely inhabited by Hoopas, should likewise be dis-

tributed among the inhabitants of that area. The pres-

ence of some conflicting statements as to the rights of

the various groups where other matters were at stake,

and at other times, does not nullify the correctness of

the Secretary's decision, nor his authority to make it.

In rejecting the claims of the Hoopa Valley Tribe,

the decision below emphasized that the Reservation

was intended for such tribes as the President might

put there and that no tribe had a vested interest in it

(App. A 8-9). But, for the very same reason, ne

tribe’s rights were abrogated by the reasonable action of

the Secretary in reserving the assets of the separate

areas of the Reservation for the separate tribes—espe-

cially in light of the fact that Congress had acted in

the same way.

2. The decision of the Court of Claims unduly in-

terferes with the authority of the political branches of

the government to recognize tribal membership and

tribal jurisdiction.

a. The recognition of Indian tribes is a matter for

Congress or, in the absence of congressional action,

[eer a ae Bre N ee

11

for executive officers. As this Cowrt stated in United

States v. Holliday, 3 Wail. 407, 419:

The facts in the case * * * show distinctly

“that the Secretary of the Interior and the

Commissioner of Indian Affairs have decided

that it is necessary, in order to carry into effect

the provisions of said treaty, that the tribal

organization should be preserved.” In reference

to all matters of this kind, it is the rule of this

court to follow the action of the executive and

other political departments of the government.

whose more special duty it is to determine such

affairs. * * *

In Baker v. Carr, 369 U.S. 186, 215, the Court

reaffirmed Holliday and reiterated in some detail the

principle that the recognition of Indian tribes is a

matter left essentially to the Executive and Congress.

The basis of this principle as to Indian tribes was

described in Mr. Justice Frankfurter’s dissenting

opinion in Baker as follows (369 U.S. at 282):

A controlling factor in such cases is that, deci-

sion respecting these kinds of complex matters

of policy being traditionally committed not to

courts but to the political agencies of govern-

ment for determination by criteria of political

expediency, there exists no standard ascertain-

able by settled judicial experience or process by

reference to which a political decision affecting

the question at issue between the parties can

be judged. * * *

The wisdom of this principle in the context of In-

dian tribes is illustrated by the facts of the present

ease. It was a question of judgment for Congress and

the Executive as to how allotments should be made

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to the several tribes within the expanded Hoopa Val-

ley Reservation. And it is similarly a question of

judgment for the political branches to decide how

tribal governments should be established (and, in a

case such as this, over what part of a Reservation they

should have jurisdiction), in order to form function-

ing political entities capable of real service to their

peoples.

In making such judgments, Congress and the Sec-

retary must consider governmental and cultural, as

well as financial, realities. Normally an Indian tribe is

a distinct political community with territorial bound-

aries. Each tribe is a “ ‘people distinct from others.’ ”

McClanahan vy. Arizona State Tax Commission, 411

U.S. 164, 169. As the Court noted in McClanahan (id.

at 179), sovereignty of any kind is tied to control of

territory. It is thus reasonable that when several tribes

are to occupy a single reservation, some kind of divi-

sion should be established. The borders may not be

mathematically perfect in terms of nationality, but

the necessity for practical solutions requires that the

political branches have adequate discretion in solving

such problems.

b. Here the decision of the Secretary was just. The

Yuroks had received large and valuable allotments. It

is only because the residents of the Square received

allotments of approximately eight acres each rather

than 40 or 60 acres, and kept the rest in tribal owner-

ship, that the fund which is the subject of this lawsuit

exists. It would be inequitable to take from the Hoopas

their common property, which they sacrificed the pos-

nn III LE

13

sibility of large allotments to preserve, and grant an

interest in it to others who received larger allot-

ments from which the residents of the Square were

precluded.

Furthermore, if, as the decision below requires, the

Hoopa Valley Tribe must now share its tribal assets

with the Yuroks, it would also have to share all deci-

sions on the management of the tribally held property.

Since in that respect the Hoopas would be hopelessly

outnumbered,’ under the decision below their carefully

nurtured ancestral homeland would be turned over to

the effective control of outsiders.

CONCLUSION

The fact that this case is crucially important to

one Indian Tribe and a large part of the membership

of another and concerns their relationship with the

United States is reason for this Court to grant cer-

tiorari. As stated in Choctaw Nation v. United States,

318 U.S. 423, 424, certiorari is appropriate if a case

raises “important questions concerning the relations

between the two tribes and the United States.’’? More-

over, the decision below unduly limits the authority

of the Seeretary of the Interior to make needed de-

cisions in the area of Indian affairs, and, in our

view, reaches an unjust result.

* There are 1,360 names on the Hoopa Valley tribal roll, com-

pared with 3,523 plaintiff Yuroks.

Puy CR ALY Niet At

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14

For the foregoing reasons, the petition of the

United States for a writ of certiorari should be

granted.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

WaLuace H. JOHNSON,

Assistant Attorney General.

Harry R. SacuHse,

Assistant to the Solicitor General.

CarL StTrass,

Epwarp J. SHAWAKER,

Attorneys.

Fesruary 1974.

US. GOVERNMENT PRINT NG CFF.CD 1976