United States v. Dann - Oral Argument

ORAL ARGUMENT OF ROBERT A. MC CONNELL, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: The Court will hear arguments next in United States against Dann.

Mr. McConnell, I think you may proceed when you are ready.

Mr. Connell: Mr. Chief Justice, and may it please the Court--

Chief Justice Burger: You may raise that lecturn if you would like.

Other way.

Mr. Connell: --Thank you.

Mr. Chief Justice, and may it please the Court, this case comes before this Court on writ of certiorari to the Ninth Circuit Court of Appeals.

It concerns the finality effect of Section 22(a) of the Indian Claims Commission Act.

Section 22(a) states that payment of a claim in accordance with the Act

"shall be full discharge of the United States of all claims and demands touching any of the matters involved in the controversy."

The court below, the Ninth Circuit, determined that payment had not taken place in accordance with Section 22(a).

We believe that that decision was in error and should be reversed.

After a short statement of the facts, we will explain why we feel the Court of Appeals should be reversed and the consequences of such a reversal.

Unidentified Justice: May I ask, Mr. McConnell, do I understand there is some kind of Congressional consideration of a settlement of this litigation or something?

Mr. Connell: The respondents would state that there needs to be Congressional--

Unidentified Justice: No, is there in fact anything pending in the way of a Congressional solution?

Mr. Connell: --No, there is not.

Unidentified Justice: There is not.

Mr. Connell: In this case, it is important to know there were actually two cases, one, the first case before the Indian Claims Commission, and the second case, this one here, both in which... both involved a claim of title, specifically, Western Shoshone title to lands in Nevada.

Here, the respondents have a patented homestead in Nevada, and on that homestead land, which is not in dispute here, they have their homes, they have other structures, they have fenced in areas, and indeed they have their water supply for their cattle operation.

It is on contiguous federal public lands next to the homestead that they have had their cattle grazing without a permit, a Bureau of Land Management permit.

It is because they have been grazing without a permit that we find that wrongful, and it is because of that that we brought the ejectment action which started this case.

Unidentified Justice: Mr. McConnell, suppose we affirm, and I will give you the same question, suppose we reverse?

What happens?

Doesn't Congress still have to act?

Mr. Connell: The only remaining thing here, it is our position, is that Congress will eventually have to take an affirmative action, affirmatively act to pass legislation to distribute, to distribute funds that have already been paid.

We draw major significance and a distinction between payment and distribution, but that is the act that Congress would have to deal with, is distribution.

Unidentified Justice: Certainly whatever we decide here does not tie the hands of Congress, does it?

Mr. Connell: No, that is correct.

Unidentified Justice: Are we spinning our wheels in this case?

Mr. Connell: No, I don't believe so, Mr. Justice Blackmun.

What we have here is the finality provisions of 22(a), and specifically if, as we believe, 22(a) has been satisfied, payment has taken place, then the respondents here are precluded from using a claim of title, Western Shoshone title as a defense in the action started here, the ejectment action brought by the government.

And so that remains to still require them to get a permit to graze on federal public lands.

The defense, as I just mentioned, that was brought up and brought forward by the respondents was that they were Western Shoshone Indians, that they had Western Shoshone title to the lands, and because of that they had a right to use and occupy the lands in question.

Unidentified Justice: That sort of a defense is no good against the government, is it, aboriginal title?

Apart from the Indian Claims Commission, anything the government got by the Treaty of Guadalupe Hidalgo, it can kick anybody it wants to off of.

Mr. Connell: Well, you are correct, but we have had a long history in this country of trying to resolve Indian matters in a fair and understanding way.

In this case, Indian title, aboriginal title was title for nothing more, as this Court has found before, nothing more than really an occupancy as and between Indians.

Unidentified Justice: Let's try to be precise.

If the government brings an action, an ejectment against someone, claiming that the government owns the land, and the defense is aboriginal title, that simply is... that is summary judgment for the government, is it not?

Mr. Connell: It should be.

It should be.

Yes, Your Honor.

But that was the defense that was put forward here.

Unidentified Justice: Isn't that all that is claimed here?

Mr. Connell: It is claimed that aboriginal title, that they have aboriginal title--

Unidentified Justice: They have given up any claim for recognized title other than aboriginal?

Mr. Connell: --Mr. Justice Blackmun, I am not sure that they may have given up any other claim, but certainly before the Indian Claims Commission.

The Indian Claims Commission was designed and established only to consider tribal claims and not individual claims, and here, they are using a claim of tribal title as their defense against the ejectment action.

Unidentified Justice: Well, the Claims Commission found that aboriginal title had been extinguished.

Mr. Connell: That is correct, and that was after eleven years of listening to anthropologists and taking evidence.

They found that the aboriginal title, the Indian... the Western Shoshone title had been extinguished some time prior to 1946.

And it is that extinguishment in which we concur.

We believe that they do not have Western Shoshone title, and that that had been extinguished, that the claim has been... a claim was brought by the Western Shoshone to the Indian Claims Commission based on the extinguishment of Western Shoshone title.

That was litigated.

It has been paid.

And therefore the finality section of the Indian Claims Commission Act, Section 22(a), has gone into effect, and there is a... the United States is now... has full discharge against any claim that would come out of that particular--

Unidentified Justice: What have you got to say about the claim that the United States has not gone through the procedures that are necessary under the Act to effect payment?

Mr. Connell: --We believe that the government has gone.

What has happened is that when the Congress set up the Indian Claims Commission, they set up the process for the hearings.

All that has taken place.

Unidentified Justice: Yes.

How about the payment after judgment of the Indian Claims Commission?

Mr. Connell: Section 22(a) establishes that a judgment of the Indian Claims Commission is as a judgment of the Court of Claims, and that... and then Congress has provided subsequent to the establishment of the Indian Claims Commission that the appropriation, the appropriation that would satisfy that judgment is an automatic appropriation.

It is done automatically.

Unidentified Justice: Is there another statute that deals with how payment is to be effected, some procedural detail?

Mr. Connell: The respondents have argued some other statutes that really go to distribution and not to payment.

Unidentified Justice: That is what I am interested in.

What is your response to that?

Mr. Connell: Section I believe it is 25 USC 118 that they cite is really a... it's a 1911 statute that deals with payment.

It does not define payment.

It certainly is clearly not dealing with payment under the Indian Claims Commission.

And in this case, the Congress has, in fact, subsequent to that statute, established a very meticulous procedure for the entire consideration, presentment and consideration, judgment and appropriation.

And at the time they passed the Act, the Indian Claims Commission Act, they did provide, they, Congress, that a ministerial act of appropriating the money would have to take place, but even that has been done away with, and is now an automatic appropriation.

That automatic appropriation did take effect, and that is not in dispute here.

Both sides agree that the appropriation has taken effect.

Unidentified Justice: And so has the Interior, has the Interior got that judgment to its credit now?

Mr. Connell: The money has been placed in a trust account in the--

Unidentified Justice: Have you reported that to the Secretary of Treasury?

Mr. Connell: --Yes, the Secretary of Treasury knows the money is there.

Yes, the money is in the Treasury.

It is in a trust account.

It is earning money, as a matter of fact, substantially.

Unidentified Justice: What can ever be done with that money?

That is tribal money, I take it.

Mr. Connell: It is tribal money.

There is a vested property right by the claimant, the payee, and we hold it, we, the government, hold it as trustees for their beneficial interest.

Unidentified Justice: For whom?

Mr. Connell: Well, for the claimant, the Western Shoshone identifiable group.

Now, going to Justice Blackmun's question, what now still remains to be done is not to pay the money.

The money has been paid to the payee.

The government is no longer a judgment creditor.

What will need to be done now is to resolve how to distribute that money to individuals, a separate act, subsequent payment.

Unidentified Justice: If it is to be distributed, I suppose the tribe could just hold it and use the income from it for the benefit of its members.

Mr. Connell: It is... a lot of different things are possible.

What we think is very prudent here is that we wait and try and resolve and get a consensus among the Indians that are included in that identifiable group, and base a distribution plan upon a consensus opinion of those Indians.

Unidentified Justice: And what makes you think that the... let's assume that the judgment really is final with respect to the tribe.

Of course, you didn't sue the tribe.

Mr. Connell: That's correct.

Unidentified Justice: You sued individual Indians.

Mr. Connell: That's correct.

Unidentified Justice: Why do you think they are foreclosed by the fact of payment?

They have never been paid anything.

Mr. Connell: They have not been paid anything.

Unidentified Justice: Their tribe has.

Mr. Connell: The tribe, the Western Shoshone identifiable group has been paid money.

Unidentified Justice: So you say that the Indian Claims Commission judgment which you say has been paid forecloses any other claim by the tribe or by any of its members to that particular land for which the money was paid.

Mr. Connell: Based on tribal title, yes.

Based on tribal title.

And that is our fundamental point, is that tribal title has been extinguished, and indeed compensation for that extinguishment has now taken place under Section 22(a).

Unidentified Justice: But I suppose the individual Indians have claims that have original title.

Let's assume that the tribe had never litigated.

There had never been an Indian Claims Commission judgment here, and you sued these individual tribal members.

They could claim aboriginal title themselves, couldn't they?

Mr. Connell: Well, we would contend that aboriginal title is a tribal title, but the Indians certainly could in the situation that you have put forward make that claim based on that tribal title.

Unidentified Justice: But their title is no better than tribal title?

Mr. Connell: Not as long as they are basing it on tribal title.

Unidentified Justice: Right, so that if tribal... but their right, their right doesn't last any longer than tribal title does.

And if tribal title has been extinguished, so has theirs.

Mr. Connell: They may have an individual title, but they have not asserted that there.

They may have some other theory.

Indeed, the respondents' brief, although not raising this at the Court of Appeals, claims under the Supreme Court's case in Cramer that they may have some individual, separate and apart from Western Shoshone title, but that, the finding in Cramer of title requires an evidentiary submission by them that was not done here, and a finding of facts that just aren't present in this case.

But that would go to whether or not they might be able to assert some individual title, but not on the basis of the Western Shoshone title.

Unidentified Justice: If an individual Indian or two or three of them brought an action, they would be bringing it in terms of any result for the benefit of the whole tribe, would they not?

Mr. Connell: Well, I think it is important that in the context of this particular case, Mr. Chief Justice, the Indian Claims Commission when it was set up, it established a specific procedure for who could come forward and submit claims, and indeed it did provide that Indians, individual Indians could come forward, bands, tribes, but it did also have, as took place in this case, that in the instance where that identifiable group of Indians had among it a recognized tribe, a recognized tribe under the 1934 Indian Reorganization Act, that entity would be the exclusive agent or representative before the Commission.

Unidentified Justice: It is something like a class action, in effect?

Mr. Connell: Well, there are some similarities, but not... but really the Indian Claims Commission is a creature of the statute itself, and provided for a specific procedure, specific representation appeals, and all of those were used in this case.

So, it would be our position that the final judgment of the Indian Claims Commission was certified by the General Accounting Office.

It was then automatically appropriated.

The moneys were automatically appropriated, and that payment then put into effect the finality provisions of Section 22(a).

The respondents do argue that payment awaits that payment really didn't happen.

It distribution, won't happen until distribution.

But as I said earlier, we find a major distinction between the appropriation, the payment, and distribution.

This Court, I might add, in its decision in 1976 in the Delaware Tribal Business Committee v. Weeks, a case which is ignored totally by respondents in their brief, found that very specific thing, that under the Indian Claims Commission Act, payment is separate and apart from distribution.

Payment is a payment of a tribal claim, and subsequently there can be a distribution to individuals.

We also... I would say the legislative history makes it pretty clear that Congress intended Section 22(a) to be a final... an act of finality.

Those provisions were there to bring finality to the whole process.

Indeed, it was a very conscious decision by Congress, because the Department of Justice in fact went before Congress and criticized that very provision, went up and said, you shouldn't pass it, it is not a good idea, because in passing that provision, what you would be doing, Congress, is surrendering your prerogative to review all the claims coming against the United States--

Unfortunately, this happens every once in a while.

Congress did not pay attention to our advice, and specifically kept 22(a) in the statute for the express purpose of providing the finality that they desired.

And I also would add that the respondents have made an argument that they had not been accorded due process under the Indian Claims Commission activities, and the hearings there.

The respondent is wrong.

That is absolutely incorrect on two grounds.

First of all, respondents did not raise a due process argument at the Court of Appeals level, so it is not really properly before this Court.

But secondly, due process was provided.

It was provided by the whole procedure that was established by Congress under the Indian Claims Commission Act.

The Indians could come forward and present claims.

Unidentified Justice: Did they make their due process argument at all in the Court of Claims as intervenors?

Mr. Connell: Yes, they did.

Unidentified Justice: Why do you get to the merits of it at all?

Aren't they concluded by the decision--

Mr. Connell: We feel that they are, yes.

Yes, Mr. Justice Rehnquist.

We feel that they are precluded.

They had their adversarial hearing.

They had all the appeals.

They used the appeals.

And it is not a lack of due process if you have not timely used the processes that have been provided.

And finally, I would need to make the point that if the Court of Appeals is reversed, the only effect and impact on the respondents, the individual respondents here would be that they will need to get a Bureau of Land Management grazing permit to put their cattle on the lands contiguous to their homestead, homestead lands in Nevada.

I will reserve further--

Chief Justice Burger: Mr. O'Connell.

ORAL ARGUMENT OF JOHN D. O'CONNELL, ESQ., ON BEHALF OF THE RESPONDENTS

Mr. O'Connell: Mr. Chief Justice, and may it please the Court, Mary and Carrie Dann were born on the very lands that are the subject of this case over a half-century ago, and all their lives they have used these lands to support themselves by their own labors.

The Dann family has been ranching this area for three generations, and using and occupying it for countless generations before that.

The government now seeks to eject the Danns from their property without regard for the lawfulness of their occupancy or the validity of their title on the merits because of a ruling in a collateral proceeding where the extinguishment issue was never in contention nor actually litigated, and where the interests of the Danns were not represented.

Unidentified Justice: You don't agree that they can get a grazing permit now, as your friend just suggested?

Mr. O'Connell: They could get a grazing permit, Your Honor, but they do not need a grazing permit to graze on lands that do not belong to the government, and the government does not want to litigate whether or not these lands belong to the government.

The government has evaded that issue throughout these proceedings.

They will not allow the issue to be tried on the merits.

They lost on the merits in the--

Unidentified Justice: Well, isn't it their impression that they have already tried that issue?

Mr. O'Connell: --In another form with what we believe are different parties on a different claim.

We believe that the drastic remedy, this remedy of ejectment of people from property which is conceded by everybody in the area to be theirs, this drastic remedy turns the Indian Claims Commission Act, the Act they rely on in this Court, it turns it on its head.

The purpose of that Act was to provide relief for ancient wrongs, not to provide a vehicle for the government to seize property today in the first instance.

This is property that the government never had in its possession, never owned.

The trial court found that the government acquired this land as of December 6th, 1979, by the paper coming over from the Court of Claims to the Treasury, that the real estate transaction occurred in 1979.

Unidentified Justice: Well, did the District Court make any finding as to whether this was land acquired by the Treaty of Guadalupe Hidalgo?

Mr. O'Connell: I don't know whether the Court made that finding, but I believe both parties... that was in the pretrial order.

Yes, Your Honor.

Unidentified Justice: They agreed that it was?

So I suppose it originally became the property of the government upon execution of the treaty.

Mr. O'Connell: Under the decisions of this Court, Your Honor, the fee would be in the United States, but the beneficial title was in the Western Shoshone, quite clearly, and the trial court found that it was up until December, 1979.

That is why the trial court denied damages to the government.

Unidentified Justice: How did the District Court find that the beneficial title had gotten into the Shoshone?

Mr. O'Connell: The government conceded that the Shoshone had beneficial title at the time of the Treaty of Guadalupe Hidalgo, Your Honor, and that was in the pretrial order, too.

It was uncontested... it was uncontested that the Western Shoshone had title to start with.

Unidentified Justice: Not legal title.

Mr. O'Connell: Beneficial title, aboriginal title.

Unidentified Justice: Aboriginal.

That is what you are talking about.

Mr. O'Connell: Yes.

Unidentified Justice: Possessory.

Mr. O'Connell: Yes, possessory title.

Unidentified Justice: The right of possession.

Mr. O'Connell: Yes, and it was conceded that the Indians have title.

The problem was that the government had to prove that it had acquired title, and of course it tried to evade that.

We went to the Court of Appeals once, and the Court of Appeals ruled that the court had to rule.

The court couldn't find that the government had ever acquired title, so the court at the request of the government and over our demands for a trial waited for years for the government to come up with this piece of paper that gave it a preclusive effect about a trespass case that happened years before, and the reason it did that is because the government could not prove any lawful right it had to move these Indians off their land.

We would like to make three major arguments in this regard.

First, the Danns are not precluded in this action by the judgment in a statutory claims proceeding because the statute states that discharge does not occur until payment, and payment cannot be made until Congress legislates the necessary direction to effectuate that payment.

Second, even if payment is made, the preclusive effect on this action is limited because the interests of the property owner, the interests of the property owner was not represented, and because the issues involved in those proceedings were entirely different and based on entirely different premises and concepts of law from those involved in this case here.

And third, in the alternative, the Danns have asserted throughout the proceedings, starting with in the answer, very specifically that they have individual Indian title to the lands involved in this case, and this Court has held such individual rights are different from and survive, individual Indian title survives a relinquishment of tribal title.

Now, the judgment in the... addressing my affirmative argument, the judgment in the claims proceeding was obtained by the "Western Shoshone identifiable group".

Western Shoshone identifiable group.

The government contends the judgment funds are tribal funds, and in answering the question, said, well, they are being held for the benefit of the tribe.

However, the Western Shoshone identifiable group is not a tribal entity in any real sense or in the sense that it has a political structure or even that it is a definable class.

It right now is just a name.

The Indian Claims Commission specifically found that the Western Shoshone had no political structure at that time, and designated the claimholder to be an identifiable group.

Now, this is one of the very peculiar things about the way the Indian Claims Commission Act worked.

You could have a lawsuit with the plaintiff, the identity of the plaintiff being held in suspension.

The Court of Claims and this Court have held, in fact, in the case that counsel relies on so heavily, Delaware Tribal Business Committee versus Weeks, the Court of Claims and this Court have held that the designation of the existing entity, entities, or class of persons entitled to share in that award is an exercise of the plenary power of Congress.

Congress exercises that power in the distribution legislation.

Until Congress legislations a distribution plan, no person, class of persons, or entity, no tribe, no tribe has any sort of enforceable interest in the judgment funds.

The only thing that has an interest in the judgment funds is an identifiable group.

But nobody can claim to be that identifiable group until Congress acts.

And this Court has held that Constitutionally, using its plenary power, Congress can designate anybody it wants to be that entity, as long as there is just some connection with Congress's concern for Indians.

So, it is not, it is not as if the Navajo nation or the Western Shoshone nation, which now has a political entity, and that is the Western Shoshone National Council, it is not as if the Western Shoshone National Council has a beneficial interest in those funds.

The Western Shoshone identifiable group may be all persons of Western Shoshone descent, like all persons of Irish descent, and we litigate all persons of Irish descent, and then try to use a preclusive effect against the Republic of Ireland, say, in regard to their embassy, and say, well, we brought an action on the part of all people of Irish descent without anybody who can come in and speak for them.

Unidentified Justice: Mr. O'Connell, can I just ask you one question, going back to what the Chief Justice asked earlier?

How much of a burden is it to get a grazing permit on your... I mean, it seems to me the issue really is when you have to get the permit.

Mr. O'Connell: Well, Your Honor, it would be a financial burden... this area is so marginal that the people who operate in it are mostly hobby farmers and these Indians, who are willing to do the hard work and work the long hours, and I believe that is in some of the material you furnished the Court.

Unidentified Justice: How serious--

Mr. O'Connell: But the offensiveness of getting a permit, Your Honor, is to get a permit for your own home.

Unidentified Justice: --Don't you... you are going to have to get the permit sooner or later.

Mr. O'Connell: No, Your Honor, I do not recognize that.

Unidentified Justice: Even after payment you would say, ever after what you would agree was payment.

Mr. O'Connell: In regard to the Danns, I don't believe the Danns will have to get a permit.

Unidentified Justice: In other words, I thought the question was just when--

Mr. O'Connell: For several reasons, Your Honor, which I would be willing to go into.

Unidentified Justice: --I don't want to... just tell me, how serious is this financial burden of getting a permit?

I just don't happen to know.

Mr. O'Connell: Your Honor, the Danns contend that they would be unable to maintain their operation and pay $16,000 a year, and that is what the government wants.

Unidentified Justice: Well, is the fee for a BLN permit based on the number of head of livestock that are run?

Doesn't it--

Mr. O'Connell: Yes.

Unidentified Justice: --Isn't it just an annual fee per head of livestock actually being run?

Mr. O'Connell: Yes, Your Honor.

But when you get down to spreading the livestock over such a vast area, it becomes marginal whether you can afford to do it.

Cattle on the range is somewhat of a dying industry in this country.

But there are people who still want to do it.

And they have the right to do it.

And they have the right to do it on their own land, without requesting the government's permission.

The Taylor Grazing Act does not apply to Indian lands, and that is perfectly clear, and was held below, I believe, by both courts.

I would like to make it clear that the District Court did not say that the Danns should stop grazing their cattle because the land had not been Indian land.

He held it had been Indian land, and refused the government damages, and I don't understand whether the government now is still seeking damages for what happened back in 1973.

But they didn't get damages because it was clearly Indian land up until this paper transferred in Washington.

I think it is very important that this distribution which counsel says is just a ministerial act has been held by this Court to be an exercise of the plenary power of Congress, and although this--

Chief Justice Burger: We will resume there at 1:00 o'clock.

Mr. O'Connell, you may resume.

ORAL ARGUMENT OF JOHN D. O'CONNELL, ESQ., ON BEHALF OF THE RESPONDENTS -- RESUMED

Mr. O'Connell: Mr. Chief Justice, may it please the Court, I was discussing that until Congress does legislate approval of a distribution plan, these funds are in limbo because there is no existing entity that has a beneficiary interest, and this Court has held that no entity has a right to assert such an interest, that that is entirely within the plenary power of Congress to designate who is going to be this identifiable group.

But what is more, the Secretary of Interior, who holds these funds, is prohibited under the Distribution of Judgment Funds Act from using the funds for the benefit of any person or any entity.

It is not as if he were holding the funds for the benefit of the Shoshone tribe and could set up a scholarship plan or anything like that.

He is supposed to keep interest, get interest for these funds, but he, too, is just to hold them until Congress designates who owns these funds.

The Court of Claims, in twice refusing to open the question of whether all lands had actually been taken in the Western Shoshone claims proceeding, commented on both occasions that the Danns or that the Indians who wanted to continue collateral litigation could do so, could continue their collateral litigation by delaying appropriation and "the direction necessary to pay".

The Court of Claims is intimately familiar with how the Indian Claims Commission judgments are paid.

The Court of Claims did not say that upon appropriation we were stopped, we could stop the direction necessary to pay.

And I don't see how you can construe the direction necessary to pay to be anything other than this legislation which is yet to come.

I believe in Appendix M we have the copy of the letter from the Senate Committee to the Interior Department informing them that legislation would be required.

Unidentified Justice: In the Congress that just adjourned?

Mr. O'Connell: No, Your Honor, it was... I'm sorry.

It was the Congress three years ago, I believe.

I don't have that accurate.

I would have to look at it.

Under these circumstances, payment and discharge cannot have occurred.

We cannot discharge the liability of the United States when there is nobody to pick up the judgment, there is nobody who could enforce anything.

It is sort of, there's a judgment but nobody owns it.

Unidentified Justice: Of course, I take it part of your position is that even if there had been an Act saying, telling Interior to whom to distribute the money, and they had distributed it, that your clients would not--

Mr. O'Connell: Yes, for the two reasons--

Unidentified Justice: --would not be bound at all.

Mr. O'Connell: --Yes, for the two reasons that I now am going to raise.

We do not think payment has occurred, but in the second argument, the Danns cannot be ejected from their property by the preclusive effect of the Indian Claims Commission award without violating fundamental due process considerations.

Unidentified Justice: Was that presented to the Court of Appeals?

Mr. O'Connell: Yes, Your Honor.

I raised it... I raised it in my brief.

Unidentified Justice: They didn't need to reach it, I take it.

Mr. O'Connell: They just did not... they declined to reach it.

They characterize it... they never used the magic words, "due process of law", and I guess that is what counsel is referring to, but they used the privity of parties question, which is a fundamental due process consideration.

Unidentified Justice: What is your other point?

You say two other reasons.

Mr. O'Connell: Oh, then our individual use and occupancy rights, which are entirely separate from the tribal rights, and survive tribal rights.

Unidentified Justice: Now, did you present that to the Court of Appeals?

Mr. O'Connell: I presented it, Your Honor.

They never even mentioned it.

Unidentified Justice: All right.

Mr. O'Connell: Because they were going to... they said that the Western Shoshone tribal title was not extinguished.

They did not need to get to that.

But if we do... if this Court should hold that payment has occurred, or if down the road Congress does act... Congress has asked for legislation and the executive has not responded.

If Congress does act, or if this Court finds that Congress has acted or there is payment, then this privity problem which was avoided by the court below and actually avoided by the Court of Claims would then have to be confronted.

Now, the Indian Claims Commission concluded that the Temoak bands, which was the representative entity,

"had the right to maintain this action."

--I am quoting here...

"for and on behalf of the descendants of the Western Shoshone identifiable group."

Now, that raises two problems having to do with privity.

First, the Commission made no inquiry or finding as to the adequacy of the representation, and avoided that issue when it came up again later, but in its initial determination, there is no findings, they don't say anything at all about the adequacy.

They just said they have the right to represent.

The Danns are not members of the Temoak bands.

The relationship between the Danns and the Temoak bands would be the relationship between a citizen of the State of Oregon and the State of New York.

The Danns belong to the Dann band of Western Shoshone Indians, which is a separate entity, a coequal member of the Western Shoshone National Council with the Temoak bands.

Unidentified Justice: Why isn't this fund something like, not precisely like, but something like a deposit the government makes with the District Court when they condemn land?

Isn't it much the same, except that--

Mr. O'Connell: I am not intimately familiar with how such deposits are made, Your Honor.

Unidentified Justice: --Well, title passes to the government when they make the deposit.

It may be... the amount may be adjusted later by the litigation.

Title to the land passes when they move.

Mr. O'Connell: But in that sort of situation, at some point somebody could go into a court and say, we are entitled to that money.

In this situation, nobody can go into court and say they are entitled to this money until Congress... see, because no court can make that decision.

This Court has held that this Court cannot make the decision as to who that money belongs to.

This Court--

Unidentified Justice: It is in trust, is it not, for these Indians?

Mr. O'Connell: --It is in trust for the Western Shoshone identifiable group, and at some later time, I think... I could concede that at some later time somebody could bring an action for breach of trust, but at this time there is nobody who could bring such an action because constitutionally it is in the Congress's power to define who has a right to those funds.

And until Congress does that, nobody has a right.

I believe in their brief, the government concedes--

Unidentified Justice: Isn't your quarrel there with Congress, with the law as it is?

Mr. O'Connell: --No, I don't have a quarrel with that, because I am the one... certainly I don't want anybody to have a right to those funds, so I have no quarrel.

I think the government has a quarrel with that.

The government wants to say, well, Congress wasn't doing anything but reserving some ministerial approval.

It is the government's problem, because until Congress exercises its plenary jurisdiction, plenary power and designates who the people are, nobody... they make in their brief--

Unidentified Justice: I think you understate that a little.

Isn't that $26 million drawing interest?

Mr. O'Connell: --It is drawing interest.

It is drawing.

It is now much more than that.

Unidentified Justice: The government couldn't take it back.

Mr. O'Connell: No, no.

I would say that it is committed.

But this, I think, is like an escrow situation where the debtor has parted with the money but it has not yet gotten to the other side.

If you allow a discharge under those circumstances, you now have this Western Shoshone identifiable group which cannot act because it doesn't have any structure or any defined membership.

You have a situation where you have a discharge of claim but nobody owns the judgment.

Then Congress steps in.

See, nobody can go into court until... and this Court has held that, and it is a division of powers problem.

So no court could say, well, this property belongs to the Temoak hands, or this property belongs to all persons of Western Shoshone descent, or this property does or does not belong to the Danns.

And the government answers that by saying, well, that's because it's tribal property, but there's no tribe.

There is just this Western Shoshone identifiable group, and no court can say whose that is until after Congress acts.

Getting back to the due process problem, unless the Temoak bands, which has no political connection... the defendants have no political access to the Temoak bands.

And unless the Commission found or there was something in the record that shows that there is an identity of interest, there is some reason to believe that the Temoak bands would assert the interests of the rest of the property holders, I do not believe that you can say that there is some sort of privity or there is some sort of... basic fairness applies, which is necessary, I believe, fundamentally to preclusion.

Unidentified Justice: Well, did the Danns move to intervene in the Indian Claims Commission?

Mr. O'Connell: They did not directly, but I think that we could concede it would be the same as if they did.

A group that they were associated with did.

Unidentified Justice: And was that motion granted or denied?

Mr. O'Connell: It was denied.

Unidentified Justice: How about in the Court of Claims?

Did they raise it again?

Mr. O'Connell: It was denied on a discretionary basis because it was late and because of this... what they viewed as this Congressional remedy.

Unidentified Justice: I see.

But if the denial was based in part on the merits of the claim, aren't you precluded by res judicata?

Mr. O'Connell: No, Your Honor, because it was not litigated, and... it was not litigated.

We made the claim, but they would not... they would not let us put on evidence in the Indian Claims Commission.

In fact, they refused to let us put on evidence.

Unidentified Justice: Well, the fact that they didn't let you put on evidence doesn't mean that res judicata doesn't apply.

Mr. O'Connell: Well, if it is not litigated... ch, res... I am sorry.

I misunderstood the question.

This is a different claim on that issue.

I am sorry.

I thought you were talking about issue... I think that this is a separate claim, particularly with... I do not believe that in an entirely different claim you can be held to a determination by the court that you are complaining about.

Unidentified Justice: Well, what was the theory of your motion to intervene before the Indian Claims Commission?

Mr. O'Connell: That we had a right to intervene because they were giving up title to land that we wanted... that we said was not taken.

We said there was collusion, because land that was not taken was... that the parties were stipulating that lands were taken which were not taken.

Unidentified Justice: Was the same theory used in your motion to intervene in the Court of Claims?

Mr. O'Connell: That there was collusion, yes.

Unidentified Justice: You are precluded, at least on the issues on which you sought to intervene, are you not?

Mr. O'Connell: I do not believe that we are precluded on the matters asserted by the association that we were connected with.

I believe that we are not precluded in this separate claim that is before this Court, this trespass case.

Unidentified Justice: Even as to the same issues which you litigated with the government before the Court of Claims?

Mr. O'Connell: As I stated, I do not feel that we were allowed to litigate them in a real sense, but even if we were, this is a separate claim, Your Honor, and I am asserting that.

Unidentified Justice: Distinct from the one that you asserted in the Court of Claims?

Mr. O'Connell: Yes.

And I think I can explain that a little bit better as I go along.

The second problem with the finding of the Commission regarding the representative is that the representative was to represent the interests of, and I quote here,

"the descendants of the Western Shoshone identifiable group."

not the interests of the property holder which the Indian Claims Commission said was this identifiable group back in the past was the property holder.

Then the only parties who are represented are the descendants, people who have an interest in establishing that the property holder is dead, if you will.

It is like a probate hearing where a person... the deceased comes in and says, I am alive, and only the heirs are represented.

Only descendants of the property owner are represented.

They draw the analogy to a corporation.

It would be a fight over the corporation assets where only remainder interests, say, creditors, or your special type of stockholders, and the board of directors was not before them, just the descendants of the property holder.

This is because of the nature of the Indian Claims Commission.

As the associate solicitor of the Interior Department reported in a report about this claim, the assumption was that the lands were taken and there was no accommodation for people who asserted property interests.

There is a profound difference, and several members of this Court in various cases have noted this, between the sort of litigation that is going on in the Claims Commission, where they are dealing in windfall, really, for something that happened to somebody's ancestors, or reparation for something that happened long ago, and fundamental possessory property rights, which we are litigating in this case, and that gets me to our third argument, and it is in the alternative, our individual property rights, regardless of Western Shoshone title.

The Danns have asserted individual title and this Court has held in the Cramer case and in Santa Fe versus Pacific those survive the tribal claim.

Unidentified Justice: Those were all cases, though, where the fight was between the Indian claimants and a grantee of the government under the Railroad Act.

They weren't cases in which the United States squarely opposed the Indian claim.

Mr. O'Connell: But that would make no difference, Your Honor, because I believe what Your Honor is going to is this idea that there is some language in some cases that it is... aboriginal title is good against everyone but the government.

Is that--

Unidentified Justice: Right.

Mr. O'Connell: --I would like to address that, because that is a very important problem.

In Lane versus Pueblo Santa Rosa, Your Honor, the Secretary... now, that is a tribal aboriginal title question.

All right?

In that case, the Secretary of the Interior was restrained, an injunction was issued against him from interfering or using Indian title lands as if they were not.

Here is the confusion.

It is, the executive branch cannot, has to respect Western Shoshone aboriginal title or individual title.

This is the distinction.

This Court has held in past decisions, and I hope it is not currently the law, but it has held in past decisions that Congress can do anything it wants with aboriginal title.

It can confiscate it.

But it is only Congress.

This is a division of powers question again.

The executive branch has to respect Indian title as if it were fee simple, almost.

They hold the fee, but they do.

So, you can assert aboriginal title against the government, and that is quite clear, and this Court so held in the Lane case.

In the Santa Fe case, they held, the Court held, this Court held that the aboriginal tribal title had been relinquished, but noted that that would have no preclusive effect on the assertion of individual Indian title, and individual Indian title is that which... in that case they were referring to is any Indians who stayed on the land and used it.

Now, in the Cramer case, they were talking about a farm, but these fields, and they are used year-round... this is year-round pasturage.

We are not using it like most permittees use Bureau of Land Management lands.

The cattle are on this land year-round.

If they cannot use that land, the cattle will have to go.

This little homestead would... they couldn't put all the cattle on that homestead and even feed them hay.

It couldn't by physically done.

These lands are as important to this ranching operation, this three-generation old business as the farmer's fields which were enclosed in a fence in the farmlands of California.

Chief Justice Burger: Your time has expired.

Mr. O'Connell: Thank you.

Chief Justice Burger: Do you have anything further, Mr. McConnell?

ORAL ARGUMENT OF ROBERT A. MC CONNELL, ESQ., ON BEHALF OF THE PETITIONER

Mr. Connell: Mr. Chief Justice, and may it please the Court, respondent raised issued of damages in his argument before lunch, and it has been determined, and I wanted to inform this Court... I have been authorized to do so... that the government will not try to collect damages for trespass prior to the determination of this case.

Also, Justice Stevens raised the question of the permits, grazing permits, and Justice O'Connor properly noted that the fee is based upon the head of cattle on the land, and for the Court's information, as of January, 1984, the fee was $1.37 per animal unit per month.

I would also point out that under the regulations of the Department of Interior, that if the cattle grazing is for subsistence purposes only, of people living on contiguous lands, as here, there are provisions for application for a free permit for that grazing.

And finally, in an exchange with Justice Rehnquist... I want to reference back to that exchange.

I want to clarify that one aspect of the government's position, our submission really does not depend on the proposition that the mere filing of the ejection action extinguished aboriginal title.

Unidentified Justice: Well, certainly no one would suggest that the mere filing of an ejection complaint would extinguish any title at all.

My point was that when the government is up against aboriginal, at least aboriginal Indian title, that unless you claim under a deed from the government, your claim is no good against the government.

Mr. Connell: Well, we would feel that in this case just filing the ejection action, of course, was us, the government acting in its litigative capacity, and anything else is really not before us here in this case, and that we feel that you need to... the government should properly, as I indicated when we had the exchange, try to deal in fairness, and that was what actually took place here, and title had already been extinguished.

Unidentified Justice: Well, respondents obviously don't think the government has been fair, and I think the government may have kind of spoken out of both sides of its mouth in the District Court, but it seems to me when you come up here and you get a question as to what is the nature of aboriginal title, can it stand against the government, a member of the Court is entitled to a frank answer.

And what is that answer?

Mr. Connell: I think that aboriginal title can be taken by the government, and can be taken without compensation.

Unidentified Justice: Can the executive branch do that without going to court at all?

Mr. Connell: No, we believe there needs to be action by the Congress to take without any compensation.

Unidentified Justice: Right.

That's what I thought.

That action has not taken place.

Mr. Connell: That is correct.

We don't have that here.

Unidentified Justice: May I ask one other question, Mr. McConnell?

If we analogize this case to a condemnation, and I realize there are all sorts of reasons why you don't, and just focus on the payment issue for a moment, is it not correct that in that context, a payment wouldn't occur until the former owner of the land actually received some beneficial use of the money?

Mr. Connell: Justice Stevens, I am going to have to apologize.

I am not sure in the analogy whether it would, but I can come back to this situation where have the judgment paid and it is in the trust fund and being held by the government as trustee for the Western Shoshone identifiable group.

In the exchange that took place in the respondent's argument, we would adopt, as we said before, we adopt the position that we certainly are no longer debtors.

We have paid it.

The vested right is in that group, and any person that falls within the category of the Western Shoshone identifiable group could in fact bring a case and charge trying to have distribution or any other action, if it was mismanaged, if the government mismanaged it.

The Chief Justice made the point correctly that funds in a trust account cannot be under any circumstances taken back by the government.

It is now the--

Unidentified Justice: They make the argument... I am not sure it carries the day by any means, but they say, in effect, well, that is all well and good.

As far as we are concerned, it is as though it were in escrow.

In the meantime, we have got to get funds somewhere to either pay fees or get off the land, and we shouldn't have to do that until we have got some benefit that we can lay our hands on.

Mr. Connell: --But the payment, the claim submitted, the judgment, and then the payment was for a wrong, if you will, an action that affected the tribal entity, the Western Shoshone identifiable group, not individual members as such.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.