Petition for Writ of Certiorari — White Mountain Apache Tribe of Arizona v. United States, 114 S. Ct. 1538 (1994) (No. 93-1127)

Supreme Court, U.S.

1)

ee eS

Os™rr27 sant 1994

No. 93-

IN THE

Supreme Court of the An'ted States

OCTOBER TERM, 1993

THE WHITE MOUNTAIN APACHE TRIBE OF ARIZONA,

Petitioner,

V.

THE UNITED STATES,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

WILLIAM H. VEEDER

818 18th Street, N.W.

Suite 920

Washington, DC 20006

(202) 466-3890

Attorney for Petitioner

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

Whether the United States Court of Appeals fxs the

Federal Ciruit has violated Petitioner White Mowntain

Apache Tribe’s Constitutional right to judicial due process

by affirming the orders of the Court of Federal Ciaims

which denied Petitioner Tribe its repeated efforts to be

heard respecting its valid claims to title to 16,090 acres

of land situated within Tribe’s Fort Apache Indian Reser-

vation which are presently illegally occupied by the United

States Trustee which is new and has been utilizing those

16,090 acres of land for its own use and benefit?

Whether the United States Court of Appeals for the

Federal Circuit has violated Petitioner White Mountain

Apache Tribe’s Constitutional right to due process by af-

firming the decision of the Court of Federal Claims which—

having found that the United States was liable for accel-

erated erosion which had its inception in 1912, if not be-

fore, and is ongoing today destroying Tribe’s reservation—

nevertheless, refused to award damages (1) for the accel-

erated erosion antecedent to August 13, 1946, the terminal

date for claims pursuant to the Indian Claims Commission

Act, and (2) for the accelerated erosion which continues

to date?

LIST OF THE PARTIES

A list of all parties to the proceedings in the Court

whose judgment is sought to be reviewed [substituted par-

ties]:

Petitioner White Mountain Apache Tribe of Arizona,

Fort Apache Indian Reservation and The United States of

America, Trustee for Petitioner White Mountain Apache

Tribe.

TABLE OF CONTENTS

QUESTIONS PRESENTED ........:sessseeesseerestsesteceteee®

LIST OF THE PARTIES. ..........:ceeeeeeeeeeeereeerenseeee esses

OPINONS BELOW .......:cccccseeeeneeereeeeenenereneseeaeneeeneses

JURISDICTION ........0sscccsecereseeeeesseersseeeenesenseceanseceneres

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED .....ccccsccccsseerercceresersccecenessecececeesscenasecseeres

STATEMENT OF THE CASE ....ccccccceeereeeeeseeeeeneeeeess

I.

Il.

Iil.

SUMMARY OF RELEVANT FACTS

The Subject Res—The Fort Apache Indian

ReSOrvatiOn ........cccccccesssseeeeeeeeseseseeeneneeseenennees

NORTHERN BOUNDARY OF PETITIONER

TRIBE’S RESERVATION AS DESIGNATED

BY EXECUTIVE ORDERS OF 1871 and

WBTD ..cccoccocessessevcccsesessoscosoncocessensascerseneessssssess

A. The Trustee’s Erroneous Survey of

Tribe’s Northern Boundary ..........+-+++++++

B. Trustee’s Title Opinon and Compromise

Settlement ...........:ssccccceeseeeereeeeeesereeseeneeees

C. Denial by Court of Federal Claims of

Tribe’s Right to be Heard Affirmed by

Federal Circuit ...........cccccseeeeeeeeeeeeeeeeeeeenees

D. Denial of Tribe’s Constitutional Right to

Judicial Due Process of Law .........-+++++++

ACCELERATED EROSION AND ITS ONGO-

ING DISASTROUS CONSEQUENCES .............

A. Trustee Held Liable for Accelerated

FLrOSION. ...-....ccccccessccccceccscccserscecesesereneeesees

B. Accelerated Erosion—The Human

Tragedy ......ss.ssessesseesesssreeenssneensnnesnsensnrens

C. Accelerated Erosion—Continuing Destruc-

tion of Tribe’s Reservation ..........::::++++++

Page

qn

iv

ARGUMENT, REASON FOR GRANTING PETITION

PUES WEE Cl CURIE PUUEIMING exceccscescsncionncosevesnesecooses 18

I. Denial of Judicial Due Process Respecting II-

legal Use and Occupancy of Petitioner Tribe’s

Lands by United States Trustee ................. 18

II. Refusal of the Courts Below to Award Dam-

ages Having Declared Trustee Liable for Ac-

I I aiid sccetccehmettandetciadartieteacens 23

III. Denial of Petitioner Tribe’s Right to Judicial

Sr 23

ey A: AREER een Mean ea Meet ie hee ee AM ee LMR MCDR 29

TABLE OF AUTHORITIES

CASES:

Choate v. Trapp, 224 U.S. 665, 677-678 (1912) .....

Choctaw Nation v. Oklahoma, 297 U.S. 620, 631

(1970) ....ccccccsccssccossceecsssserccsscssscenecssesersnnsonsenneess

Cramer v. United States, 261 U.S. 219 (1923) ......

Jones v. Meehan, 175 U.S. 1 (1899) «..cceceeeeeeeeereees

Land v. Dollar, 330 U.S. 731, 736 (1947) ......-+

Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113

(1919) ....cesccecccscceecerseeneesessssseesensessssessnssnrsensens

Navajo Tribe of Indians v. United States, 624 F.2d

987 (C1.Ct. 1980) .....ecccceseeeressreeeeeeeeeeeeneesererss

Northern Pacific Ry. Co. v. United States, 191

F947, 958 (1911) ...scccccccessseeeeserereeeeeseerneeeserenes

Northern Pacific R.R. Co. v. United States, 227 U.S.

355, 366 (1913) ......cceccceseecerseesrssereeeseesenneernsees

Oklahoma v. Texas, 268 U.S. 252, 256 (1925) .......

Puyalup Indian Tribe v. Port of Tacoma, 717 F.2d

1251 No. 6 (1988) .......ccssessseseeeeeeeeeeeeeneeeeeeeeeeens

San Carlos v. United States, 21 Ind.Cl.Comm. 189

(1969) ...cescceccsccsscerssrsencersssessrsersenssnsserssesscseasenss

San Carlos v. United States, 28 Ind.Cl.Comm. 399,

(1972) ..ceccsccsccsccsssrsercerssrserssessecerennsnssensnessseesenes

Sekaquaptewa v. MacDonald, 626 F.2d 113, 118 (CA

Q, 1980) .......scceeccereseesesrsesesessessssceessesseaseesnrscsnees

Seminole Nation v. United States, 316 U.S. 285,

297, et Seq (1942) ...ceeereeccccceeessrrereererssterereeseees

Shoshone Tribe v. United States, 299 U.S. 476, 498

(1937) ..ecccscsccesccssssrcercersseesrssssersesssenssssensnasensenses

Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) ...........

Snyder v. Massachusetts, 291 U.S. 97, 105

(1934) ....ecceccccsccssceresrereercescsessrsenessnssecsessrssessnees

20,27

Table of Authorities Continued

United States v. Creek Nation, 295 U.S. 103, 110

EIITIEED ‘ickicendcunsuesenesinisdudatiebdaneuameniaassdemesaaiibente

United States v. Lee, 106 U.S. 196 (1882) ............

United States v. Romaine, 255 F.253, 260 (CA 9,

ROIS tO se ee RR oa

EIU TEE saccihiensncseseesessecéusovenssereusenensdephoesaasbninenncens

United States v. State Investment Co., 264 U.S. 206,

ED cncsncevndieeerigueerdasanieaaaiandeddiienie

United States v. Stotts, 49 F.2d 619, 620

ie 8 Fok 2: a | Re ee

White Mountain Apache Tribe v. United States, 11

Res NTE RIED . schivciensvetesstensciabipmictbaapeumansomes

White Mountain Apache Tribe v. United States, 26

es: Slee REED. Citisnttesincsanditeetnniedauiianeen

White Mountain Apache Tribe v. United States, Un-

published Opinion, Aug. 17, 1993 ................06.

White Mountain Apache Tribe v. Clark, 604 F.Supp.

185, 187-189 (U.S.D.C. Ariz. (1984) «0.0...

White Mountain Apache Tribe v. Hodel, 784 F.2d.

921 (CA 9, 1986); cert. den. 479 U.S. 1006

EEIIIIEE sesinphusipwnitsicin delionumbanindenietantnodaaieleninaaiemaaaaion

STATUTES:

SPITE” MII nscovssiveninincsouscudmaprasccenekennenecenninaanianee

Be IP UIIED scsncswceanscuaevienceuseuessentenuneaneiounennies

MISCELLANEOUS:

SEIEIEE TF: sicubbduuncanqearesnveniacovioneoteumnnaenneannaieneunen

VOL. 6, Commentaries on the Modern Law of Real

SPIT. 1. EET. ‘sccdnsniesssviesaheousuabinenctuniin dinates

Tiffany, Law of Real Property, 3rd Ed. p. 430,

SUNIL” ards ninclesiepatcsieashasnilipaaannaatiotabindaceedemanadienabininiien

28

28

23

23

IN THE

Supreme Court of the Gnited States

OCTOBER. TERM, 1993

No. 93-

THE WuHITE MouNTAIN APACHE TRIBE OF ARIZONA,

Petitioner,

Vv.

THE UNITED STATES,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Federal Circuit

—— ————

Petitioner White Mountain Apache Tribe respectfully

prays the Court that a writ of certiorari issue to review

the unpublished Opinion of the United States Court of

Appeals for the Federal Circuit which was rendered on

August 17, 1993, a timely petition for rehearing having

been denied by the Court of Appeals on September 13,

1993.

OPINIONS BELOW

The United States Court of Federal Claims entered its

Opinion on February 6, 1987, and selected pages from that

Opinion are Appendix 4 of this Petition.! Petitioner White

' Appendix 4, White Mountain A pache Tribe of Arizona v. The United

States, Defendant, No. 22-H, 11 Ct.Fed.Cl. 614 (1987) selected pages

pertaining to issues presented here.

Mountain Apache Tribe appes’ed the February 6, 1987

Opinion of the Court of Federal Claims to the United

States Court of Appeals for the Federal Circuit. That Court

of Appeals rendered its Opinion on August 17, 1993, which

Opinion is Appendix 1 of this Petition.2 The Court of

Appeals on September 13, 1993, entered its Order denying

Petitioner’s request for rehearing. That Order of Denial

is Appendix 1A of this Petition.’

JURISDICTION

The Opinion of the United States Court of Appeals for

the Federal Circuit was rendered August 17, 1993 and the

Petition for Rehearing was denied September 13, 1993.

The 90-day period for filing a petition for a writ of

certiorari would have expired December 13, 1993.

Petitioner Tribe’s motion for an extension of time in which

to file this petition for a writ of certiorari was granted

on December 1, 1993, extending the time for that filing

to and including January 11, 1994. The Court’s jurisdiction

is invoked pursuant to 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Article I, Section 8,

Clause 3.

The Congress shall have power ... to regulate

Commerce ... with the Indian Tribes; ...

Constitution of the United States, Amendment [V], Right

of Persons. .

No person shall ... be deprived of life, liberty

or property, without due process of law; nor shall

* Appendix 1, Unpublished Opinion of the United States Court of

Appeals for the Federal Circuit, Appeal No. 93-5018.

* Appendix 1A, Order by U.S. Court of Appeals for the Federal

Circuit denying Petitioner’s request for rehearing.

private property be taken for public use, without

just compensation.

STATUTORY PROVISIONS INVOLVED

|

25 U.S.C. 70(a), The Indian Claims Commission Act.

The Commission shall hear and determine the

following claims against the United States on be-

half of any Indian Tribe ...; (1) claims in law

or equity arising under the Constitution, laws,

treaties of the United States, and Executive or-

ders of the President; (2) all other claims in law

or equity, including those sounding in tort, with

respect to which the claimant would have been

entitled to sue in a court of the United States

if the United States were subject to suit, ... (5)

claims based upon fair and honorable dealings

that are not recognized by any existing rule of

law or equity. No claim accruing after August

13, 1946, shall be considered by the Commission.

28 U.S.C. 1254(1)

Cases in the courts of appeals may be reviewed

by the Supreme Court by the following methods

(1) By writ of certiorari granting upon the

petition of any party to any civil or criminal case,

before or after rendition of judgment or decree

STATEMENT OF THE CASE

Petitioner White Mountain Apache Tribe, Whiteriver,

Arizona, is a duly organized Indian Tribe recognized by

the Secretary of the Interior. Petitioner Tribe invoked the

jurisdiction of the then Indian Claims Commission‘ seeking

to recover damages that it had experienced due to the

mismanagement of Petitioner Tribe’s Fort Apache Indian

Reservation by the United States Trustee.

Having been repeatedly denied its Constitutional right

to judicial due process, the right to a full and fair hearing

before courts of competent jurisdiction respecting the dam-

ages Tribe has sustained including the refusal of the courts

below to enforce the Compromise Settlement of 1972, due

to the illegal seizure and use of Petitioner’s invaluable land

by the United States Trustee, and the ongoing destruction

of Tribe’s Fort Apache Reservation due to the Trustee’s

mismanagement, concerning which Petitioner Tribe has

been denied judicial relief. Petitioner White Mountain

Apache Tribe prays the Court to grant Tribe’s petition for

a writ of certiorari thereby assuring that the Tribe’s Con-

stitutional rights to due process shall be preserved re-

specting:

(1) The Opinion of the United States Court of Appeals

for the Federal Circuit’ affirming the decisions and orders

by the Court of Federal Claims* denying Petitioner Tribe’s

‘ Suit was authorized by the Indian Claims Commission Act of August

13, 1946, Pub.L. No. 79-726, § 2, 60 Stat. 1049, 1050 as amended, 25

U.S.C. § 70a (1976) (omitted from Code pursuant to Commission ter-

minated on September 30, 1978); thereafter jurisdiction continued in

the then United States Claims Court, now the United States Court of

Federal Claims (See Appendix 4, p. 16a for full jurisdictional statement).

* Appendix 1, p. la-3a, The unpublished opinion of the United States

Court of Appeals for the Federal Circuit, dated August 17, 1993, in

the case of White Mountain Apache Tribe v. United States; Appendix

1A, p. 4a, Order dated September 13, 1993 of the Court of Appeals

for the Federal] Circuit denying Tribe’s Petition for a Rehearing Re-

specting August 17, 1993 Opinion.

* Appendix 2, p. 5a-6a, Order of the United States Court of Federal

Claims, filed December 15, 1987, denying the Tribe the right to be

heard respecting Tribe’s claim to title to 16,090 acres of land within

Tribe’s Fort Apache Indian Reservation but permitting the Tribe to

Constitutional right to judicial due process in seeking to

have enforced the Compromise Settlement of 1972 which

adjudged and decreed Tribe’s valid claims to title to 16,090

acres’ of Petitioner Tribe’s invaluable forests and grazing

lands within Tribe’s reservation illegally seized by the

Trustee.

(2) The Opinion of the United States Court of Appeals

for the Federal Circuit® affirming the refusal of the Court

of Federal Claims? to award damages to Petitioner Tribe

for the ongoing destruction of Petitioner Tribe’s Fort

Apache Indian Reservation by reason of accelerated ero-

sion and the consequences thereof concerning which that

court explicitly found that the United States Trustee was

liable.'°

I. SUMMARY OF RELEVANT FACTS

The Subject Res—The Fort Apache Indian Reservation

The trust relationship which exists between Petitioner

Tribe and the United States of America was effectively

established when President Grant proclaimed the Novem-

ber 9, 1871 Executive Order" which carved from Tribe’s

ancient ancestral domain the White Mountain Apache In-

dian Reservation. Altruism was not a factor in the as-

sumption by the United States of America of the status

of a Trustee for Petitioner Tribe. To the contrary, the

United States was the prime beneficiary of the early end-

ing of the protracted and costly war with the Western

file and make part of the record the Affidavit of Expert Elmer M.

Clark respecting Tribe’s title to that land.

Appendix 3, Affidavit of Expert Elmer M. Clark, dated March 3,

1987 establishing Tribe's claim to title to the 16,090 acres, p. 9a.

* Appendix 1, p. la-da.

* Appendix 2, p. 5a-6a.

Appendix 4, 11 Cl.Ct. 614, 659 (1987), p 46a.

Appendix 5, Executive Order, November 9, 1871, p. 67a.

Apaches” which was achieved by the 1871 Executive Or-

der providing Petitioner Tribe with a permanent home and

abiding place which is now being destroyed by accelerated

erosion for which the Court of Federal Claims found the

Trustee liable and the Federal Cireuit affirmed.

A critical factor in the establishment of Petitioner Tribe’s

White Mountain Apache Indian Reservation was the des-

ignation of the watershed divide between the Salt and

Little Colorado Rivers—a conspicuous and well known nat-

ural monument—as the northern boundary of Tribe’s re-

servation."* That natural monument was referred to in the

November 9, 1871 Executive Order as ‘‘the south edge of

the Black Mesa’’'* and was likewise referred to in the

December 14, 1872 Executive Order which enlarged Tribe’s

reservation.'© Thereafter, Congress, by the Act of June 7,

1897'* severed Petitioner Tribe’s reservation from that of

the San Carlos Reservation designating it as the Fort

Apache Indian Reservation, without any change being made

in the northern boundary of Tribe’s reservation.

The Fort Apache Indian Reservation, in the year 1897,

can best be described as a treasure of immense value. As

found by the Court of Federal Claims:

The Fort Apache Indian Reservation contains

1,664,289 acres of land potentionally suitable for

the grazing of livestock—virtually the entire re-

servation."

'* Appendix 6, Selected pages, 21 Ind.Cl.Comm. 189 (1969), Finding

10, American Period, p. 72a.

'§ Appendix 3, p. 9a; Compromise Settlement, Appendix 10, p. 87a

to 94a.

‘* Appendix 5, Executive Order, November 9, 1871, p. 67a.

‘s Appendix 7, Executive Order of December 14, 1972, p. 77a.

'* Appendix 8, Act of Congress dated June 7, 1897 (30 Stat. 62); (1

Kappler 86), p. 79a.

‘7 Appendix 4, p. 21a.

As found by the Court of Federal Claims, the reservation

was described as having “... excellent grass for grazing

purposes ....’"8 It was likewise found by the Court of

sé

Federal Claims that Petitioner Tribe’s reservation =

forested over 1,061,000 of its acres, more than 685,000

acres of which are commercial forest.’’'* This petition is

on the background of a virtual destruction of Tribe’s re-

servation, the subject res—a reservation of incalculable

value retained by Petitioner Tribe as a home and abiding

place—which Petitioner Tribe asserts has been systemati-

cally and intentionally mismanaged by the United States

Trustee. For example, the Trustee has illegally seized

16,090 acres of Tribe’s invaluable land, a substantial por-

tion of which was comprised of ponderosa pine forests

which the trial court found does not produce “... mer-

chantable quality for lumber until it reaches the age of

130-150 years. At younger ages its only harvestable value

is as pulpwood.””° Yet the Trustee virtually clearcut that

ponderosa pine forest and retained the proceeds for its

own benefit. Respecting the balance of Tribe’s reservation,

the Court of Federal Claims found that the Trustee was

liable for the accelerated erosion which Petitioner Tribe

proved is ongoing today with the attendant severe and

ever-expanding damages to which Petitioner Tribe has been

subjected, all as will be subequently reviewed and docu-

mented.?!

' [hid.

'* Ind., p. 62a.

Thid.

“1 Infra., p. 14, et seq.

Il. NORTHERN BOUNDARY OF PETITIONER TRIBE’S

RESERVATION AS DESIGNATED BY EXECUTIVE

ORDERS OF 1871 AND 1872

A. The Trustee’s Erroneous Survey of Tribe’s Northern

Boundary

The United States Trustee in 1887, having established

the northern boundary of Tribe’s reservation as the wa-

tershed divide between the Salt and Little Colorado Rivers,

directed United States Deputy Surveyor Wallace, an agent

of the trustee, to survey that boundary. The instructions

to Wallace were specific: Wallace was to establish the

northeast corner of Tribe’s reservation” and from that

initial point of survey, Wallace was directed to “... run

in a Westerly direction following the Southern edge of the

Black Mesa, as near as practicable,’’* to a point due north

of Sombrero or Plumoso Butte, at which point Wallace

was required to establish the northwest corner of the re-

servation.

The record establishes that Wallace, without reason or

justification, departed from the southern edge of the Black

Mesa—the watershed divide—with the result that he ex-

cluded from Tribe’s reservation 3500 acres in the first 100

miles of his survey. Substantial portions of those 3500

acres excluded from Tribe’s reservation were invaluable

ponderosa pine forests which, due to those errors, were

located within the Trustee’s Sitgreaves National Forest or

the Apache National Forest. At milepost 98 Wallace, in

clear violation of his explicit instructions, again left the

watershed divide for a distance of 22 miles departing a

maximum of 3 miles from that divide. By that violation

of his instructions, Wallace excluded from Tribe’s reser-

vation 12,590 acres of invaluable ponderosa pine forests

# Appendix 3, Affidavit of Elmer M. CLark, p. 9a-10a.

* Ihnd., p. 10a.

“ Ihid., p. 9a.

in a single tract of land,* thus adding that acreage to

what is now referred to as the Trustee’s Sitgreaves Na-

tional Forest. There is graphically displayed in Plate I

below, the disastrous consequences of the erroneous de-

parture by the Wallace survey from the south edge of the

Black Mesa for the last twenty miles of the designated

natural monument which comprises the northern boundary

of Tribe’s reservation.

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PLATE I

Plate I establishes the single most important fact in this

phase of Petitioner Tribe’s statement which is: The North-

ern Boundary of Tribe’s reservation is the watershed di-

vide between the Salt and Little Colorado Rivers

Drainages. As ¢ result, all of the tributaries of the Salt

River are south of that divide, a fact graphically displayed

in the upper right hand segment of the Plate set forth in

** Ibid., Plate I is limited to 12,590 acres of lands excluded from the

Reservation by the Trustee’s erroneous survey. Space did not permit

graphically to display the several separate departures by Wallace from

the watershed divide up to mile post No. 98 which resulted in the

exclusion of 3500 acres of Tribe’s reservation.

10

the Opinion of the Court of Federal Claims.** As shown

there, the principal tributaries of the Salt River within the

Tribe’s reservation—Canyon Creek, Cibecue Creek, Carrizo

Creek, and the Whiteriver—all rise within Tribe’s Reser-

vation south of the south edge of the Black Mesa, the

watershed divide. It will be observed on Plate I above that

the erroneous Wallace survey line severs the drainages of

Canyon Creek, Cibecue Creek, and Carrizo Creek. By that

mislocation of the northern boundary of Tribe’s reserva-

tion, the erroneous Wallace line misrepresents the upper

areas of those drainages as being part of the Little Col-

orado River Drainage—a physical impossibility. As a con-

sequence, the reliance by the United States Trustee upon

the Wallace survey line as the predicate for the illegal

seizure of Tribe’s 16,090 acres is wholly irrational and

must be rejected.

B. Trustee’s Title Opinion and Compromise Settlement

In an Opinion dated June 12, 1967 from the Solicitor’s

Office of the Department of the Interior?’ sustaining the

1887 Wallace survey, it is concluded that the error made

in that survey, which is up to three (3) miles in width and

22 miles in length, excluding from Tribe’s reservation

12,590 acres of ponderosa pine forests, was not a gross

error. The Trustee’s June 12, 1967 Opinion fails to take

cognizance of the fact that the “‘south edge of the Black

Mesa” was designated the northern boundary of Tribe’s

reservation—all as provided for in the Executive Orders

of 1871 and 1872 creating Tribe’s reservation. That des-

ignated northern boundary is the watershed divide be-

tween the Salt and Little Colorado Rivers, a well known

and well defined natural monument. The Trustee in the

June 12, 1967 Opinion seeks to justify the Wallace de-

** Appendix 4, p. 19a.

* Appendix 9, p. 80a, Opinion of the Solicitor’s Office, Department

of the Interior, dated June 12, 1967.

11

parture from the watershed divide by a series of unsup-

portable conclusions. The most serious of those conclusions

is the failure to recognize that the erroneous survey could

not change the northern boundary of Tribe’s reservation

designated by the 1871 and 1872 Executive Orders which

is the natural monument—the watershed divide between

the Salt and Little Colorado Rivers.* Confirmatory of

Petitioner Tribe’s claim to title to the 16,090 acres of land

within Tribe’s reservation is this June 27, 1969 Finding

by the Indian Claims Commission:

. the United States took from the Western

Apache Indians [The Petitioner] their Indian title

to all of their aboriginal lands located outside of

the boundaries of the reservation established by

the Executive Orders of November 9, 1871 and

December 14, 1872.*°

Thereafter, the Indian Claims Commission approved the

Compromise Settlement of September 12, 1972, declaring

the lands ‘‘outside’”’ of Tribe’s reservation were taken by

the United States Trustee which, in effect, declares that

the lands within the reservation, including the 16,090 acres,

were not taken but rather title to those lands remained

in Petitioner Tribe, as is contended here by the Tribe.

Irrespective of the explicit language in the Executive

Orders establishing the northern boundary of Tribe’s re-

servation as the watershed divide between the Salt and

Little Colorado River Drainages and the Compromise Set-

tlement confirming that boundary, the United States

Trustee has adamantly relied upon the erroneous Wallace

survey for its illegal occupancy of 16,090 acres of Petitioner

lands within Tribe’s Fort Apache Indian Reservation.

* See Infra., p. 20, et seq.

* Appendix 6, p. 75a, 21 Ind.Cl.Comm. 189 (1969), Finding 12. (Em-

phasis supplied).

12

C. Denial by Court of Federal Claims of Tribe’s Right

To Be Heard Affirmed by Federal Circuit

There was succinctly reviewed by the United States

Court of Appeals for the Federal Circuit in its May 10,

1988 Order Petitioner Tribe’s efforts in its June 19, 1987

motion to be heard in the Court of Federal Claims re-

specting the illegal occupancy by the United States Trustee

of the 16,090 acres.* It was recognized, moreover, in the

May 10, 1988 Order of the Federal Circuit that Petitioner

Tribe had asserted that the lands in question were im-

properly excluded from the Tribe’s reservation by reason

of the erroneous Wallace survey reviewed above.*! Having

referred to the December 15, 1987 Order of the Court of

Federal Claims denying Tribe’s request to be heard re-

specting the 16,090 acres, the Federal Circuit declared that

the December 15, 1987 Order of the Court of Federal

Claims lacked finality and hence could not be appealed,

adding nevertheless:

The issue that the Tribe seeks to present on

appeal will be fully reviewable in the course of

any final appeal in Docket 22-H.

Petitioner Tribe, relying upon the Federal Circuit’s May

10, 1988 Order, repeatedly attempted to be heard by the

Court of Federal Claims. That court repeatedly denied

those motions. The Federal Circuit—having originally de-

clared that Tribe’s claims ‘‘on appeal will be reviewable’ —

departed from that initial ruling and affirmed the denial

of Tribe’s right to be heard respecting its claim to title

to 16,090 acres leaving the Tribe without remedy or re-

course giving rise to this petition.

* Appendix 11, p. 95-97a.

* Supra., p. 8, et seq.

* Appendix 11, p. 97a; Appendix 13, p. 10la-103a; Appendix 14, p.

104a-105a.

13

D. Denial of Tribe’s Constitutional Right to Judicial _

Due Process of Law

Having been repeatedly denied its right to have enforced

the Compromise Settlement of 1972 and its right to be

heard respecting the damages Petitioner Tribe had sus-

tained due to the illegal occupancy by the United States

Trustee of Tribe’s 16,090 acres, the Tribe appealed the

final decisions in Docket 22-H.* In that appeal, the Tribe

again referred to the fact that the Court of Federal Claims

had repeatedly denied Tribe’s efforts to be heard respect-

ing its title to the 16,090 acres of land illegally occupied

by the Trustee. It again prayed for an Order from the

Federal Circuit requiring the Court of Federal Claims to

decide the issue of whether the Compromise Settlement

of 1972 affirmed Tribe’s claims to title to the 16,090 acres

and the damages the Tribe has sustained due to the illegal

occupancy of those lands by the United States Trustee.

In its August 17, 1993 Opinion, in response to Tribe’s

appeal, the Federal Circuit recognized that the Court of

Federal Claims did not ‘‘specifically’’ refer to Petitioner

Tribe’s claims respecting the 16,090 acres. Moreover, the

only issue respecting that land was Tribe’s renewed re-

quest for a hearing by the court below as to its claims to

title to the 16,090 acres. There was not an issue before

that court relative to the merits of Tribe’s claim to title.

Irrespective of that fact the Federal Circuit declared that

the “‘. .. government persuasively explained that it [Tribe’s

claim] was resolved and subsumed in other proceedings.”

The Federal Circuit then deleared: “We ... do not con-

sider ... further’ Petitioner Tribe’s request for an order

requiring the Court of Federal Claims to grant the Tribe’s

* Appendix 4, p. 15a;White Mountain Apache Tribe v. United States,

11 Cl.Ct. 614 (1987); and Appendix 15, p. 106a-108a, White Mountain

Apache Tribe v. United States, 26 Claims Court, 466 (1992).

14

request for a full and fair hearing, giving rise to this

petition.*

III. ACCELERATED EROSION AND ITS ONGOING

DISASTROUS CONSEQUENCES

A. Trustee Held Liable for Accelerated Erosion

The Court of Federal Claims found as a fact that:

Since the Government initiated and condoned the

stocking conditions that produced overgrazed

rangeland, in breach of its fiduciary duty, it must

be held liable for the accelerated erosion that

resulted.”

Respecting that accelerated erosion for which the Trustee

was declared liable, the Court of Federal Claims referred

to the fact that ‘Plaintiff presented both historic and con-

temporary photographs depicting eroded land forms on the

ranges.”’ It is relevant that the Court of Federal Claims

refers to the fact that it viewed “... for itself many eroded

areas during its onsite inspection of the reservation,’’”

graphically displayed by Petitioner Tribe’s photography.

Seven of the reprints of those photos which are repre-

sentative of the photos to which the Court of Federal

Claims referred have been lodged by Petitioner Tribe with

the Clerk of the Court. The Court is strongly urged to

view those photographs and the environmental catastrophe

for which the United States Trustee was held liable.

B. Accelerated Erosion—The Human Tragedy

The stark and tragic photos of the ongoing accelerated

erosion on Tribe’s reservation, which the Court of Federal

Claims described in some detail, failed to include the hu-

“ Appendix 1, p. 2a.

* Appendix 4, p. 46a.

%* Thid., p. 34a.

i

15

man tragedy which occurred and is ongoing.” Tracts of

irrigated land along the numerous tributaries of the Salt

River were maintained as a substantial source of food sup-

ply for the Tribe antecedent to the advent of the white-

man. By reason of that long history of irrigation, the Tribe

was referred to as the ‘Agricultural Apaches.” Those ir-

rigated tracts received their supplies of Salt River water

by means of irrigation ditches diverting directly from the

tributary stream channels. The Court of Federal Claims

found that the accelerated erosion by “... gouging the

streambeds to levels below many of the existing irrigation

channels,”* deprived the Apaches of their systems of ir-

rigation with the attendant loss of a substantial share of

their food supply. That court likewise found that the “‘end

result” of the accelerated erosion was:

. a loss of top soil from the range and the

destruction of farmland as benches along streams

are washed away or irrigation facilities are left

stranded by ever-deepening streams.”

Further in regard to the consequences of the accelerated

erosion, the Court of Federal Claims quoted extensively

from a Report prepared in 1927 by the Bureau of Indian

Affairs summarizing the destruction of Tribe’s agricultural

lands. These excerpts were taken by the court from that

Report:

... the storm waters come down off the moun-

tains in such torrents that it destroys the agri-

cultural land along the streambeds .... such

terrible erosion that it has washed away at least

50% of the lands formerly cultivated by the

Apache Indians ... .”

" Supra, p. 5, “The Subject Res.”’

”“ Appendix 4, p. 35a.

* Ihid., p. 35a-36a.

“ Ihid., p. 34a.

16

Thereafter, the Report emphasizes that “‘[ejach of the re-

maining 50 percent has been left so high and dry ... that

water cannot be put on it ....”’ The trial court added this

statement from that Report:

The agricultural products of the Indians have

been reduced far over 50 percent through this

cause since I have been here. It is a loss that

no one can well appreciate until he sees it.*!

C. Accelerated Erosion—Continuing Destruction of

Tribe’s Reservation

The accelerated erosion for which the Court of Federal

Claims found the United States Trustee liable was and is

a long term phenomenon which is continuing today. On

the subject, Petitioner Tribe’s Expert Geologist, Soil Sci-

entist Mr. Kaczmarek, having comprehensively testified re-

specting the destruction by accelerated erosion of the

Tribe’s agricultural lands, expressed his conclusions as to

the ongoing, irreparable damage being experienced today

by the Tribe due to that accelerated erosion:

. soil erosion on the range land surfaces is

continuing at present at a rate at least equal to

historic accelerated erosion and probably even

more rapidly due to the continuing degradation

of the vegetal cover of the reservation.” [See

photos lodged with the Court]

Mr. Kaczmarek further describes in these graphic terms

the consequences from the accelerated erosion throughout

Tribe’s reservation:

. the damages to the reservation resources are

continuing at a rate equal or in excess of the

historic rates of resources degradation following

*' Ibid.

“ Appendix 12, p. 100a, selected pages from Report of Investigations

of the Processes of Accelerated Erosion.

17

the initial surge of accelerated erosion occurring

between 1912 and 1925.

The Court of Federal Claims found that the United

States Trustee agreed with the Tribe’s assertions that the

accelerated erosion is continuing to date, finding as a fact

that “... the Government does not dispute that erosion

has, and is, occurring on the reservation ... .’"4

Throughout the Court of Federal Claim’s decision there

is general acceptance that the damages experienced from

accelerated erosion is and has been a continuing destruc-

tive force, adding that Tribe’s expert, Mr. Kaczmarek, had

constructed

. a credible explanation of how continued ov-

ergrazing could have reduced the vegetative cover

of the range, [a] leaving bare spots on the soil

surface, [b] increasing the aridity of the soil and

[c] decreasing rainwater penetration of the soil.“

The continuing disastrous consequences stemming from

the accelerated erosion were summarized by the Tribe’s

expert Kaczmarek when he reported to the Court of Fed-

eral Claims:

Field investigations show that accelerated erosion

has proceeded to the extend that the productivity

of the land is diminished including approximately

427,811 acres of lands where the effects of the

accelerated erosion have caused irreparable dam-

age.*°

Mr. Kaczmarek’s declaration that the ‘... continuing

degradation of the vegetal cover of the reservation’’*’ is

“ Thid.

“ Appendix 4, p. 34a, (Emphasis supplied).

“ [bid., p. 35a.

“ Appendix 12, p. 99a.

" Ibid., p. 100a.

18

fully corroborated by the Court of Federal Claims’ finding

that “... overgrazing changed the vegetative cover and

topography of the rangeland to such an extent that top

soil washed away, permanently eroding the landscape ... .”’

Finally, Mr. Kaczmarek declared that the

... accelerated erosion has continued on the Fort

Apache Indian Reservation from at least as early

as 1912 to the present and is continuing to dam-

age reservation land, water, and range resources

at an unabated rate... .*

Mr. Kaczmarek testified as to the ongoing accelerated ero-

sion and expressed his opinion as to the costs of resto-

ration which are wholly independent from the minimal

damages calculated by the Court of Federal Claims for

the reduction of the carrying capacity of the rangelands.

He declared that the only means of preserving and pro-

tecting Tribe’s reservation from further damages is a com-

prehensive program of restoration totalling as of that date

$176,282,800.** The Federal Circuit affirmed the opinion

of the court below which denied the Tribe any damages

for the accelerated erosion irrespective of holding the

Trustee liable for it.

ARGUMENT

REASON FOR GRANTING PETITION FOR WRIT OF

CERTIORARI

I. Denial of Judicial Due Process Respecting Illegal Use

and Occupancy of Petitioner Tribe’s Lands by United

States Trustee

Throughout these proceedings, Petitioner Tribe has

proved that the Executive Orders of 1871 and 1872 des-

ignated the northern boundary of Tribe’s reservation as

“ Appendix 12, p. 99a.

* Appendix 16, p. 113a.

19

the ‘‘south edge of the Black Mesa,’’ which is the wa-

tershed divide, a natural monument separating the Salt

and Little Colorado River Drainages. At issue here is

whether an erroneous survey of that boundary by the

Trustee—excluding from Tribe’s reservation 16,090 acres—

can deprive Petition Tribe of title to that land, as declared

by the Trustee’s Opinion of June 12, 1967, all as reviewed

above.”

In the Trustee’s Opinion dated June 12, 1967,*' it is

concluded that the error made in that survey, which is up

to three (3) miles in width and 22 miles in length, excluding

from Tribe’s reservation 12,590 acres of ponderosa pine

forests, was ‘‘no ‘gross error’’”’ and sustained the er-

roneous 1887 Wallace survey, thus justifying the illegal

occupancy of those lands by the United States Trustee.

The Trustee’s Opinion further seeks to justify the erro-

neous Wallace survey by a series of unsupportable con-

clusions. It fails to recognize as, a matter of law, that the

erroneous survey could not change the northern boundary

of Tribe’s reservation which is a designated natural mon-

ument. In the instructions to Wallace that he was “to

follow the southern edge of the Black Mesa as near as

practicable,”’ the Trustee expresses this wholly untenable

conclusion:

This does not, however, indicate that the sur-

veyor contravened his instructions to follow the

south edge of the mesa as closely as practicable.

The south edge of the Black Mesa would certainly

not coincide with the crown of the mesa.

” Supra., p. 10.

*' Appendix 9, Opinion of the Solicitor’s Office, Department of the

Interior, dated June 12, 1967, p. 80a.

* Thid., p. 86a.

* Appendix 3, p. 10a.

20

That single statement mandates the complete rejection of

the Trustee’s Opinion evidencing a total lack of compre-

hension of both the facts and the controlling law. Rudi-

mentary knowledge establishes without question that the

south edge of the Black Mesa “‘is the crown of the mesa.”’

Continuing irresponsibly, the Trustee’s Opinion states that

the south edge of the Black Mesa “‘... would necessarily

be a line to the south of the highest elevation on the

mesa,” which, as repeatedly emphasized, is ‘“‘the highest

elevation on the mesa,” the divide between the Salt and

Little Colorado Rivers.

Further compounding the flagrant error in failing to

comprehend that the south edge of the Black Mesa is the

watershed divide, the Trustee’s Opinion declares: ‘‘The sur-

veyor was under no obligation to follow the divide as such.

He was instructed to follow the south edge of the Black

Mesa.””*> Again let it be stressed, the south edge of the

Black Mesa is in fact the watershed divide and for the

United States Trustee to adhere to the grossly erroneous

June 12, 1967 Trustee’s Opinion to deprive the Tribe of

16,090 acres of invaluable land partakes of a reprehensible

distortion of both the facts and the law.

Where, as here, the Trustee designated the watershed

divide as Tribe’s northern boundary and thereafter de-

parted from that boundary by an erroneous survey, the

Court has repeatedly declared that: ‘‘The general rule is

that in matters of boundaries calls for natural objects and

fixed monuments control those for distances.’’** That con-

cept was reiterated in the case of Oklahoma v. Texas.*”

Moreover, it is a governing principle of interpretation that:

‘‘... treaties with the Indians must be interpreted, as they

* Appendix 9, p. 85a; see Appendix 3, p. 12a-13a.

** Appendix 9, p. 85a.

* United States v. State Investment Co., 264 U.S. 206, 211 (1924).

* 268 U.S. 252, 256 (1925).

21

would have understood them ... and any doubtful expres-

sions in them should be resolved in the Indians’ favor.’’™

In a principal precedent respecting boundary disputes, the

Court, in the case of Northern Pacific Railroad Co. v.

United States,®® intensively reviewed a boundary dispute

involving the Yakima Indian Nation and in summary de-

clared that:

The main ridge necessarily had a definite and

conspicuous individuality and needed no identi-

fication .... The Indians always claimed it as

the western boundary of the Reservation and the

earliest maps confirmed the claim.’’®

Thereafter, the Court enunciated the principle, which it

is urged is controlling here:

It was and is a natural and conspicuous landmark

and was selected [as here] to define the immense

area of land ceded by the Indians to the United

States and the lesser though extensive tract re-

served by them for their own use.*!

From the opinion of the Ninth Circuit, that was affirmed

by the Court, this most pertinent principle is enunciated

which is controlling here:

The United States owed the duty of trustee and

guardian to preserve the rights of the Indians in

the tract reserved, [as here] and by the treaty it

agreed to survey the boundaries of the reserva-

tion, and set it apart for the exclusive use and

benefit of the Indians. It [the United States] could

* Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970) Puyalup

Indian Tribe v. Port of Tacoma, 717 F.2d 1251, 1257, N.6 (1983) cert.

den. 465 U.S. 1058 (1984).

227 U.S. 325, 355 (1913).

” Ibid., p. 360.

" [bid., p. 360-361.

22

not therefore by an incorrect survey deprive the

Indians of their right of occupation of the land

within the legal boundaries of the reservation as

established by the treaty [here the Executive Or-

ders of 1871 and 1872].*

This caveat by the Court respecting the obligations of

the United States Trustee to the Tribe is worth repeating

here and is most applicable:

If the government may control the cession and

control the survey and by the actions of its agents

[as here] foreclose inquiry or determine it, an

easy means of rapacity is afforded, much quieter

but as effectual as fraud.

More recently the Ninth Circuit reviewed in depth the

issues presented here and established a fully documented

precedent utilizing these terms: “... there is a presump-

tion against changing boundary lines to Indian Reserva-

tions,”’ adding, moreover, that: “If there is a general rule,

then it is that an incorrect survey may not be relied upon

to reduce the legal boundaries of an Indian reservation.’’™

Adopting the principles from the Northern Pacific Deci-

sions, the Ninth Circuit declared:

The United States ‘could not ... by an incorrect

survey deprive the Indians of their right of oc-

cupation of the land within the legal boundaries

of the reservation ... .’*

* Northern Pacific Ry. Co. v. United States, 191 F.2d 947, 958 (1911).

** Northern Pacific R.R. Co. v. United States, 227 U.S. 355, 366

(1913). (Empashis supplied)

“ Sekaquaptewa v. MacDonald, 626 F.2d 113, 118 (CA 9, 1980).

* Ibid. See also United States v. Romaine, 255 F. 253, 260 (CA 9,

1919); United States v. Stotts, 49 S.2d 619, 620 (U.S.D.C.W.D. Wash.

1930); See Vol. 6, Commentaries on the Modern Law of Real Property,

p. 571, in which it is declared, Sec. 3044, ‘Superiority of Calls to

23

Predicated upon the principles enunciated and applied

by the Court, the erroneous Wallace survey of 1887 could

not divest the Tribe of its title to the 16,090 acres. More-

over, the patently erroneous June 12, 1967 Opinion of the

Trustee could not and did not deprive the Tribe of its

vested title to the lands in question.

II. Refusal of the Courts Below to Award Damages

Having Declared Trustee Liable for Accelerated

Erosion

The Court of Federal Claims declared that a fiduciary

relationship existed between the United States Trustee and

Petitioner Tribe due to the fact that the Trustee had in-

itiated a program pursuant to which non-Indian owners

were permitted to enter upon Tribe’s reservation and to

graze their livestock.* It was stressed by the Court of

Federal Claims that, although the Trustee had no obli-

gation to act in regard to its grazing program, having

undertaken to administer the Tribe’s reservation in that

manner, it incurred the liability for any damages sustained.

It was declared by the Court of Federal Claims that the

Trustee’s “. . . accedence to overstocking was less a matter

of deliberate and reasoned policy as it was a consequence

of careless administration.’’*

The Tribe has strenuously disagreed that the conse-

quences should be attributed to “careless administration’.

It is manifest beyond question that the United States

Trustee—whether by careless administration or intentional

misconduct for its own benefit—has clearly violated its

Monuments. ... A ‘monument’ is a tangible landmark, and monuments

as a general rule, prevail over courses and distances for the purpose

of determining the location of a boundary. ...” See Tiffany, Law of

Real Property, 3rd Ed., p. 430, 514; Vol. 6, Thompson Real Property,

p. 576.

“ Appendix 4, p. 26a-27a.

*? Ibid, p. 31.

24

fiduciary obligation and is responsible for all of the dam-

ages the Tribe has experienced.* There the Court of Fed-

eral Claims states, with an abundance of authorities in

support, that where, as here, the United States Trustee

‘‘”.. takes on or has control or supervision over tribal .. .

properties, the fiduciary relationship normally exists with

respect to such ... properties .. .’’, citing Seminole Nation

v. United States.** In Cramer v. United States, the Court

voided a federal land patent which had granted Indian-

occupied lands to a railway.” As reviewed above, the con-

sequences of the ‘careless administration’ included the

finding by the Court of Federal Claims that the United

States Trustee ‘‘had initiated and condoned” the over-

grazing of Tribe’s reservation and ’’... must be held liable

for the accelerated erosion that resulted.’’”

It is important here to consider the principles enunciated

by the Court respecting the Trustee’s obligation to pre-

serve and to protect Tribe’s reservation—subject res in

these proceedings. Those obligations were summarized by

the Court in Shoshone Tribe v. United States:

Power to control and manage the property and

affairs of Indians in good faith for their better-

ment and welfare may be exerted in many

ways... .”

The Court then added the critical principles that the

power thus vested in the Trustee does not authorize or

enable the United States:

* Ibid., p. 26a; The Navajo Tribe of Indians v. United States, 624

F.2d 981, 987 (Cl.Ct. 1980)

* 316 U.S. 286, 296-300 (1942).

” 261 U.S. 219 (1923).

” Appendix 4, p. 46a.

7 299 U.S. 476, 497 (1937).

25

‘,.. to give the tribal lands to others, or to ap-

propriate them to its own purposes, without ren-

dering, or assuming an obligation to render, just

compensation for them,’ [citing United States v.

Creek Nation.}”

The Court emphasized that for the Trustee to use Tribe’s

property for itself or for others, as here, “‘... would not

be an exercise of guardianship, but an act of confiscation.

...’™ The rights of Indian Tribes ‘‘... to the occupancy

of the lands ... is ‘as sacred as that of the United States

to the fee,’”’ concluding that ‘‘Spoliation [as here] is not

management.’

It is respectfully urged to the Court that there is po-

sitive proof of “‘spoliation’”’ in the photos lodged with the

Court which establish beyond controversy the environ-

mental disaster stemming from the accelerated erosion for

which the Trustee has been held liable.

There is reiterated and reapplied the concepts of Shosh-

one in the hallmark case of Seminole Nation v. United

States.” The Court declared that the Trustee is obligated

to fulfill its fiduciary responsibilities owning to Petitioner

Tribe “*... by the most exacting fiduciary standards.” Ir-

respective of that governing principle of law, the Court

of Federal Claims absolved the Trustee from any damages

for the disaster so graphically displayed to the Court. It

is worth reemphasizing that the Trustee was not required

to pay any damages for the accelerated erosion pre-1946

nor for the ongoing accelerated erosion which continues

to date. It is stressed in Seminole Nation that the Trustee

is obligated to perform its responsibility with uncompro-

295 U.S. 103, 110, (1935).

* Ibid.; see also Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113

(1919).

* Shoshone Tribe v. United States, 299 U.S. 476, 498 (1937).

* 316 U.S. 285, 297, et seg. (1942).

26

mising rigidity and there must be applied the rule of un-

divided loyalty between the United States Trustee and

Petitioner Tribe.”

Rather than applying those concepts of Shoshone and

Seminole, the Court of Federal Claims sought ways and

means to rationalize a reduction in the Trustee’s obliga-

tions, not only for the disastrous consequences to Tribe’s

reservation antecedent to 1946 but thereafter to the pres-

ent as well. For example, the Court of Federal Claims,

with unchallenged proof before it that the damages con-

tinued subsequent to 1946 to the present, declared that it

would “‘... analyze damages only for liability predicated

upon Government activities occurring before August 13,

1946.”’"* Under the heading of ‘“‘Continuing Wrong,’ the

Court of Federal Claims declared that Petitioner Tribe had

alleged ‘“*... that erosion has continued from before 1946

into the present.** The unchallenged proof, as established

by Petitioner Tribe, is that the damage from the erosion

is even greater today than it was in 1946.*° In seeking to

overcome Tribe’s challenges to the analysis of the Court

of Federal Claims, it referred to the fact that Petitioner

Tribe’s expert, Mr. Kaczmarek, stated that:

... based on his examination of aerial photo-

graphs taken in 1935 and in the 1980’s, by 1935

the magnitude of erosion on the reservation es-

sentially was the same as it is today.”

However, the Court of Federal Claims, in total error,

failed to consider the unchallenged and unrefuted proof

‘*.. that accelerated erosion has continued on the Fort

7? Idid.

** Appendix 4, p. 54a.

* Ibid. p. 52a.

” Supra, p. 16, et seq.

* Appendix 4, p. 52a.

27

Apache Indian Reservation from at least as early as 1912

to the present and is continuing to damage reservation

land, water, and range resources at an unabated rate.’’*

Moreover, the Court of Federal Claims, by its findings,

contradicts its own conclusions that the erosion and the

disastrous consequences of it were ended 60 years ago.

That Court found as a fact that the ongoing destruction

of vegetative cover leaves bare spots on the surface of the

soil increasing the aridity of the soil and decreasing the

penetration of rain water into the soil.** The result of that

increased aridity and the attendant depletion of soil mois-

ture is the destruction of the natural vegetation and the

replacement of it by the rampant expansion of noxious

growths rendering the land useless for any purposes. Those

facts are graphically displayed in the photographs depos-

ited with the Court.** Another phase of the accelerated

erosion—again to use the terminology of the Court of Fed-

eral Claims—is the washing away of top soil leaving the

once highly productive land a barren, useless waste, also

displayed in the photographs deposited with the Clerk of

the Court.*

III. Denial of Petitioner Tribe’s Right to Judicial Due

Process

When Petitioner Tribe prosecuted its final appeal in

Docket 22-H, it fully documented its charges that the Court

of Federal Claims had not and would not grant the Tribe

a hearing respecting its claims to the 16,090 acres within

Tribe’s reservation which are illegally occupied by the

“ Appendix 12, p. 99a.

“* Appendix 4, p. 35a.

“ Appendix 4, p. 34a; also see photos deposited with Clerk.

** Appendix 4, p. 34a.

28

United States Trustee. There was thus presented to the

Federal Circuit the specific request for an order mandating

the Court of Federal Claims to hear Petitioner Tribe. The

Trustee United States vigorously rejected*’ Tribe’s request

to be heard by the Court of Federal Claims, asserting to

the Federal Circuit that the Tribe could not challenge the

1972 Compromise Settlement, alleging that the Settlement

and other decisions were res judicata against the Tribe.™

There is no merit to the Trustee’s assertions that the

Tribe’s claim to the 16,090 acres is barred by res judicata

by reason of the action taken by the Indian Claims

Commission*® and the Compromise Settlement entered into

between the Trustee and the Tribe.” Most assuredly both

of those decisions by the Indian Claims Commission fully

support Tribe’s claims to the 16,090 acres which are within

Tribe’s reservation and were not part of the lands ‘“‘out-

side’ Tribe’s reservation that were taken.”'

The Trustee likewise cites, in support of its contentions

that the Tribe is barred by res judicata, the cases of White

Mountain Apache Tribe v. Clark®? and White Mountain

Apache Tribe v. Hodel.* The Trustee is fully aware that

the United States was not a party to either the Clark or

* Choate v. Trapp, 224 U.S. 665, 677-678 (1912); Jones v. Meehan,

175 U.S. 1, (1899) see, also United States v. Southern Ute Tribe, 402

U.S. 159 (1971); Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970).

*” Appendix 17, p. 114a.

** Appendix 10, San Carlos v. United States, 28 Ind.Cl.Comm. 399

(1972).

** Appendix 6, p. 75a, San Carlos v. United States, 21 Ind.Cl.Comm.

189 (1969).

” Appendix 10, p. 87a-88a, San Carlos v. United States, 28

Ind.Cl.Comm. 399 (1972).

% Supra., p. 11, et seq.

“604 F.Supp. 185, 187-189 (U.S.D.C.Ariz. 1984).

% 784 F.2d 921 (CA 9, 1986) cert. den. 479 U.S. 1006 (1986).

29

Hodel cases and likewise is aware that there is no pred-

icate for asserting the defense of res judicata under those

circumstances. Indeed there is specific precedence which

declares that where the United States is not a party to

the proceeding, the defense of res judicata has no appli-

cation.”

It is an anomaly for the United States Trustee to assert

that the Tribe was challenging the Compromise Settle-

ment. To the contrary, Petitioner Tribe was asserting to

the Court of Federal Claims that it desired to have the

explicit language of the 1972 Compromise Settlement ap-

plied and effectuated for the reason that it clearly estab-

lishes that the lands located ‘‘outside’”’ of the boundaries

‘“... of the Reservation established by the Executive Or-

ders of November 9, 1871 and December 14, 1872,’ had

been taken, leaving title to the lands within the reserva-

tion, including the 16,090 acres, in Petitioner White Moun-

tain Apache Tribe. Having been denied its right to be

heard respecting its valid claims to title by the United

States Court of Appeals for the Federal Circuit, Petitioner

Tribe prays the Court that it grant this petition for

certiorari to assure Petitioner Tribe its Constitutional right

to due process.

CONCLUSION

There has been chronicled and documented above the

shocking disregard by the United States Court of Appeals

of Petitioner Tribe’s Constitutional right to due process

respecting its valid claims to the 16,090 acres located

within Tribe’s reservation which are illegally occupied by

the United States Trustee. In denying Tribe’s right to a

fully and fair hearing respecting its valid claims to title,

“Land v. Dollar, 330 U.S. 731, 736 (1947), citing United States v.

Lee, 106 U.S. 196 (1882).

” Appendix 6, p. 75a; Appendix 10, p. 87a-88a.

30

the Federal Circuit adopted without question the gravely

erroneous statements by the United States Trustee that

Tribe’s valid claims to title had been resolved or subsumed

in other proceedings. As reviewed above, there is no merit

in that grossly erroneous conclusion.”

Equally shocking is the affirmance by the United States

Court of Appeals for the Federal Circuit of the decision

of the Court of Federal Claims which denied Petitioner

Tribe damages for accelerated erosion up to August, 1946

and for the accelerated erosion that is ongoing today.”

Petitioner Tribe’s right to Constitutional Due Process

so gravely violated by the courts below has been variously

defined by the court as being “... based on moral prin-

ciples ... fundamental to a civilized society. ... Due Proc-

ess is that which comports with the deepest notions of

what is fair and right and just.’’* The Court has likewise

declared that due process is violated if a practice or rule

‘“.. offends some principle of justice so rooted in the

traditions and conscience of our people as to be ranked

as fundamental.’ On that background, Petitioner Tribe

prays the Court to grant this petition.

Respectfully submitted,

WILLIAM H. VEEDER

818 18th Street, N.W.

Suite 920

Washington, DC 20006

(202) 466 3890

Attorney for Petitioner

White Mountain Apache Tribe

Dated: January 11, 1994

* Supra, p. 11, 13, 20, et seq.

" Supra., p. 23, et seq.

” Solesbee v. Balkcom, 339 U.S. 9, 16 (1959).

” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).