Motion Amicus Curiae — Bonelli Cattle Co. v. Arizona

_ OCT 101973

IN THE

Supreme Court of the United States

OcrosEer TERM, 1973

+

No. 72-897

BoNnELLI CATTLE Company, et al., Petitioners,

STATE OF ARIZONA, et al., Respondents.

On Writ of Certiorari to the Supreme Court of the

2 State of Arizona

“MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OUT OF TIME AND BRIEF OF AMICUS

CURIAE, COCOPAH TRIBE OF INDIANS

David H, Gercurs

A. JoHN WABAUNSEE

Cuarues F’, WILKINSON

Counsel for Amicus Curiae

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

October, 1973

Press or Byron S. Apams Printine, Inc., WasHIncton, D, C.

a adel

BEOMEE S: 3

IN THE

Supreme Court of the United States

OcToBER TERM, 1973

No. 72-397

BoneELLI CaTtLE Company, et al., Petitioners,

Vv. .

State or Arizona, et al., Respondents.

On Writ of Certiorari to the Supreme Court of the

State of Arizona

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE OUT OF TIME

The Cocopah Tribe of Indians respectfully moves

for leave to file out of time the attached brief amicus

curiae. .

Amicus is a small American: Indian tribe, located

along the Colorado River in the extreme southwestern

corffer of the State of Arizona. The Tribe had no

knowledge of the pendency of this case until the mid-

dle of September, 1973. The Cocopah Tribe is without

regular, retained counsel. Counsel here, who serve

without fee, agreed to file a brief amicus curiae on

September 24, 1973. Upon receipt of the authorization

to proceed with the preparations of the brief amicus

curiae, counsel then learned that oral argument had

been set for October 15, 1973. Amicus realizes that the

Motion for Leave to File Brief Amicus Curiae is

untimely. The consents of the petitioners and respond-

ents to the filing of the brief have not been sought

because of the late date. Nevertheless, because the

question of title to accreted lands is vital to amicus, and

because the delay in filing could not have reasonably

been avoided, amicus urges the Court to accept out of

time the very short brief amicus curiae.

The interest of the Cocopah Tribe of Indians arises

from the fact that the Tribe owns accreted lands in

the State of Arizona which were created as the bed of

the Colorado River shifted. To the extent that this

Court’s decision affects title to accreted lands in

Arizona, it will affect the rights of the amicus Tribe

and other tribes along the Colorado River, in-

cluding those residing on the Fort Mohave Reserva-

tion, the Fort Yuma Reservation, and the Colorado

River Reservation. The Tribe’s very survival depends

on the Tribe’s land base, much of which is comprised

of accreted land. The Tribe believes it is essential to

advise the Court that any decision relating to a dispute

between non-Indian landowners and the State of

Arizona over accreted lands should not affect Indian

rights to accreted lands.

Respectfully submitted,

Davin H. GETCHEs

A. JoHN WABAUNSEE

CHARLES F’. WILKINSON

Counsel for Amicus Curiae

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

October, 1973

=

a FEAL TAT GERI CTY

IN THE

Supreme Court of the Anited States

Octozer TzRM, 1973

No. 72-397

BoneELLI CaTTLE Company, et al., Petitioners,

v.

State or Arizona, et al., Respondents.

On Writ of Certiorari to the Supreme Court of the

State of Arizone.

BRIEF OF AMICUS CURIAE,

COCOPAH TRIBE OF INDIANS

' INTEREST OF AMICUS CURIAE

The interest of amicus, the Cocopah Tribe of Indians, ©

is set forth in the accompanying Motion for Leave to

File Out of Time.

ARGUMENT

The Cocopah Tribe resides on the Cocopah Indian

Reservation, which was created in 1917 by Executive

Order of the President, No. 2711, September 27, 1917.

Title to the reservation lands is held by the United

og PL SRT REE Hp HE SE Oa” OC DOR ¥

2

States, as trustee for the Cocopah Indians. The

Cocopah Tribe’s rights in tribal land are specifically

protected by statute:

Changes in the boundaries of reservations cre-

ated by Executive Order, proclamation, or other-

wise for the use and occupation of Indians shall

not be made except by Act of Congress: Provided,

That this shall not apply to temporary with-

drawals by the Secretary of the Interior. (25

U.S.C. §398d, 44 Stat. 1247.)*

Thus, unlike petitioners here, :nicus holds a federal

title protected by federal statute. It is a well es-

tablished rule of law that the United States cannot

lose title to lands by estoppel, laches, mistakes, ad-

verse possession or aequiescence. See, ¢.g., United

States v. Claridge, 279 Fed. Supp. 87, 91 (D. Ariz.

1966), aff’d, 416 F.2d 933 (9th Cir. 1969), cert. denied,

397 U.S. 961 (1969), where this rule was used against

a private claimant in the State of Arizona, who

claimed lands which had accreted and relicted to land

owned by the United States. The Court in Claridge

held that the United States as a riparian landowner

owned accreted land to the ordinary high water mark

of the Colorado River within the existing banks of the

River, regardless of the fact that the riverbed had

been shifted by channelization.

1 The same protection extended to Executive Order reservations

has been extended to treaty reservations by judicial rule. This

Court in Choctaw Nation v. Oklahoma, 399 U.S. 620, 631 (1970),

said :

This Court has often held that treaties with the Indians must

be interpreted as they would have understood them . . . and

any doubtful expression in them should be resolved in the

Indians’ favor. (citations omitted.)

SESE EG CENTER RIE I LITE LT CATT RTOS INS. eT

3

Amicus realizes that any case involving ownership

of accretions to federally-owned land or to land where

title was derived from the federal government must

be determined by federal law. Hughes v. Washington,

389 U.S. 290, 291 (1967), and United States v. Wash-

ington, 294 F.2d 830, 833 (9th Cir. 1961), cert. denied,

369 U.S. 817 (1962). However, unless this Court’s de-

cision here is specifically limited-to non-Indian lands,

doubt may be cast upon the title and claims of amicus,

and other tribes, to accreted and relicted lands.

If the Court holds for the State of Arizona, the

State will own a strip of land along the River to

the exclusion of the riparian owners, which might

arguably include the Cocopah Tribe. The Cocopah

Tribe urges the Court to follow the common law rule

of accretion and acknowledge the State’s ownership of

the riverbed and the riparian owners’ rights to ac-

ereted or relicted land. Should the Court hold for the

State of Arizona, amicus urges that its holding be

limited expressly to Arizona’s claims to accretions and

relictions to other than Indian lands.

Respectfully submitted,

Davin H. GercHeEs

A. JOHN WABAUNSEE

CHARLES F. WILKINSON

Counsel for Amicus Curiae

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

October, 1973

« = os r wry

eee N FEE AER Te ae Pe Ne oe ee

= SB PR TN

PEA LOTTI POLO