453 F.2d 152
Clarence HAMILTON, Chairman of the Hopi Tribal Council of
the Hopi Indian Tribe, for and on behalf of the Hopi Indian
Tribe, including all villages and clans thereof, and on
behalf of any and all Hopi Indians claiming any interest in
the lands described in the Executive Order dated December
16, 1882, Plaintiff-Appellant,
Raymond NAKAI, Chairman of the Navajo Tribal Council of the
Navajo Indian Tribe for and on behalf of the Navajo Indian
Tribe, including all villages and clans thereof and on
behalf of any and all Navajo Indians claiming any interest
in the lands described in the Executive Order dated December
16, 1882; John N. Mitchell, Attorney General of the United
States, on behalf of the United States, Defendants-Appellees.
United States Court of Appeals,
Dec. 3, 1971.
Rehearing Denied Jan. 18, 1972.
John S. Boyden (argued), Stephen G. Boyden (argued), Salt Lake City, Utah, Fennemore, Craig, Von Ammon & Udall, Phoenix, Ariz., for plaintiff-appellant.
Jack E. Brown (argued), of Brown, Vlassis & Bain, Phoenix, Ariz., Glen R. Goodsell (argued), Dept. of Justice, Washington, D. C., Harold E. Mott, Albuquerque, Ariz., Shiro Kashiwa, Asst. Atty. Gen., George R. Hyde, Washington, D. C., Richard K. Burke, U. S. Atty., Phoenix, Ariz., for defendants-appellees.
Before DUNIWAY and TRASK, Circuit Judges, and FERGUSON, District Judge.
DUNIWAY, Circuit Judge:
The action in which this proceeding was filed was authorized by P.L. 85-547, the Act of July 22, 1958, 72 Stat. 403. The purpose of the action, which was brought by the Hopi Indian Tribe against the Navajo Indian Tribe and the Attorney General on behalf of the United States, was to determine the rights and interests of the Hopi and Navajo Indian Tribes and individual Indians in a reservation in northeastern Arizona established by an Executive Order of December 16, 1882, and to quiet title to that reservation. A three-judge United States District Court held that, subject to the trust title of the United States, the Hopi Tribe had the exclusive interest in that part of the reservation lying within the boundaries of a land management district administratively defined in 1943, and that the Hopi and Navajo Tribes each had an undivided and equal interest in all the reservation lying outside the boundaries of the land management district. Healing v. Jones, D.Ariz., 1962, 210 F.Supp. 125. The Supreme Court affirmed this judgment. Jones v. Healing, 1963, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703.
On March 13, 1970, the Hopi Indian Tribe petitioned the District Court for an order of compliance or writ of assistance to enforce its rights as a co-tenant. More specifically, in paragraphs 3 and 4 of their prayer for relief, the Hopi requested an order:
"3. Directing the defendants to forthwith grant and permit the joint use and possession of the surface, including all resources, in and to all of the executive order reservation of December 16, 1882, lying outside of the boundaries of land management district 6, as defined on April 24, 1943 to the Hopi Indian Tribe and Navajo Indian Tribe, share and share alike, and to remove such Navajo livestock from said lands as is necessary to accomplish such joint use without further damage to said lands."
"4. Directing the Clerk of this court to issue a writ of assistance to compel performance of the judgment of [the] court entered herein on September 28, 1962, and to allow the plaintiff, the Hopi Tribe, to enter upon said joint use area, and with the Navajo Tribe to jointly and equally use and benefit from the grazing forage and all other surface resources of said area, for the benefit of the respective members of said tribes until further order of this court."
The District Court denied the Hopi's petition on August 3, 1970. The Hopi appeal and we reverse.
I. Jurisdiction of the Court of Appeals.
The defendants-appellees argue on a number of grounds that this court lacks jurisdiction of the appeal.
The Navajo claim that the District Court's order is not a "final decision" within the meaning of 28 U.S.C. Sec. 1291 because it fails to satisfy the requirements of Rule 54(b). That rule states that ". . . any order or other form of decision, however designated, which adjudicates fewer than all the claims . . . shall not terminate the action as to any of the claims . . . and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims. . . ." F.R.Civ.P. Rule 54(b). The Navajo argue that the Hopi's petition requested relief in the form of an injunction and of a writ of assistance, and that the District Court's order denied only the petition for a writ of assistance. They conclude that the order lacks finality under Rule 54(b) because the District Court passed on only one of these claims. The petition, however, seeks only one thing-enforcement of the rights of the Hopi as established by the decree, and the court denied the entire petition.
The Navajo further claim that the order of the District Court does not satisfy that part of Rule 58 which requires that "[e]very judgment shall be set forth on a separate document. A judgment is effective only when so set forth. . . ." The Navajo apparently feel that the District Court's onesentence explanation of the order transformed it into an opinion or a memorandum, thereby failing to satisfy Rule 58. We think not. To allow the one-sentence explanation embodied in the order to transform it into an opinion or memorandum rather than an order would be the proverbial elevation of form over substance. The document was explicitly denominated an "order," and was apparently understood to be such by the parties. The Supreme Court has held that "[a] pragmatic approach to the question of finality has been considered essential to the achievement of the 'just, speedy, and inexpensive determination of every action. . . ."' Brown Shoe Co. v. United States, 1962, 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510. We have no doubt that the court, the parties, and the clerk considered the August 3, 1970, order as final. There is no reason to subject the parties to further expense and delay by requiring them to return to the District Court to have a new order entered.
B. 28 U.S.C. Sec. 1291
The appellees argue that this court does not have jurisdiction under 28 U.S.C. Sec. 1291. That section vests jurisdiction in this court over appeals from all final decisions of the United States district courts ". . . except where a direct review may be had in the Supreme Court." P.L. 85-547 provided that ". . . any party may appeal directly to the Supreme Court from the final determination [of the] three-judge district court." This court has indicated that it lacks jurisdiction in the face of a similar statutory provision. See, e. g., United States v. F M C Corp., 9 Cir., 1963, 321 F.2d 534. However, for the reasons set out in Part IV of this opinion, we hold that the Hopi's petition should properly be acted upon by a single district court judge, thus making the order appealable here rather than to the Supreme Court.
II. The issuance of a Writ of Assistance in a suit to quiet title.
A. The court's power to afford a remedy, coextensive with its jurisdiction
P.L. 85-547 contained the following provision:
"The Navaho Indian Tribe and the Hopi Indian Tribe, acting through the chairman of their respective tribal councils for and on behalf of said tribes, including all villages and clans thereof, and on behalf of any Navajo or Hopi Indians claiming an interest in the area set aside by Executive order dated December 16, 1882, and the Attorney General on behalf of the United States, are each hereby authorized to commence or defend in the United States District Court for the District of Arizona an action against each other and any other tribe of Indians claiming any interest in or to the area described in such Executive order for the purpose of determining the rights and interests of said parties in and to said lands and quieting title thereto in the tribes or Indians establishing such claims pursuant to such Executive order as may be just and fair in law and equity. The action shall be heard and determined by a district court of three judges in accordance with the provisions of title 28, United States Code, section 2284, and any party may appeal directly to the Supreme Court from the final determination by such three judge district court."
(Emphasis added.) 72 Stat. 403.
The three-judge district court convened pursuant to this Act decided that as to a portion of the 1882 Executive order lands:
"The Hopi and Navajo Indian Tribes have joint, undivided, and equal interests as to the surface and sub-surface including all resources appertaining thereto, subject to the trust title of the United States.
"It is just and fair in law and equity that the rights and interests of the Hopi and Navajo Indian Tribes be determined in the manner just stated, and that the respective titles of the two tribes in and to the lands of the 1882 reservation be quieted in accordance with that determination." Healing v. Jones, 210 F.Supp. at 192.
Despite this judgment, the Navajo contend that the P.L. 85-547 did not confer jurisdiction on the three-judge district court or any member of it to issue a writ of assistance. The Navajo reason from the premise that the ". . . three-judge requirement is a technical one to be narrowly construed. . . ." Bailey v. Patterson, 1962, 369 U.S. 31, 33, 82 S.Ct. 549, 551, 7 L.Ed.2d 512. See also Jehovah's Witnesses in the State of Washington v. King County Hospital Unit No. 1 (Harborview), W.D.Wash., 1967, 278 F.Supp. 488, 493; Gate Film Club v. Pesce, S.D.N.Y., 1964, 236 F.Supp. 828, 829. They point out that P.L. 85-547 does not explicitly provide for the issuance of a writ of assistance.
The cases cited deal with the question whether a three-judge court should hear an action in the first instance, not with whether such a court has the power to enforce a judgment rendered in a case that it has properly determined, which is the question here.
The Supreme Court long ago established the principle that the power of a court to afford a remedy must be coextensive with its jurisdiction over the subject matter:
"Jurisdiction is defined to be the power to hear and determine the subjectmatter in controversy in the suit before the court, and the rule is universal, that if the power is conferred to render the judgment or enter the decree, it also includes the power to enforce such judgment or decree. (Citations omitted).
"Express determination of this court is, that the jurisdiction of a court is not exhausted by the rendition of the judgment, but continues until that judgment shall be satisfied. Consequently, a writ of error will lie when a party is aggrieved in the foundation, proceedings, judgment, or execution of a suit in a court of record. (Citations omitted.)
"Process subsequent to judgment is as essential to jurisdiction as process antecedent to judgment, else the judicial power would be incomplete and entirely inadequate to the purpose for which it was conferred by the Constitution." (Emphasis added.) Riggs v. Johnson County, 1867, 73 (6 Wall.) U.S. 166, 187, 18 L.Ed. 768.
This principle has been applied within the specific context of judgments rendered by three-judge district courts. See American Insurance Co. v. Lucas, W.D.Mo., 1941, 38 F.Supp. 926. There the question was whether a final decree of a three-judge court, obtained or induced by fraud, could later be set aside by that court. The appellant in Lucas argued that such a proceeding fell outside the statutory authorization of the three-judge court, an argument rejected by the court:
"The fact that a challenged decree was entered by a three-judge court makes no difference. It is a decree and nothing more, regardless of whether it was rendered by a onejudge court or a three-judge court.