591 F.2d 1289
Abbott SEKAQUAPTEWA, Chairman of the Hopi Tribal Council of
the Hopi Indian Tribe, For and on Behalf of the
Hopi Indian Tribe, Plaintiff-Appellee,
Peter MacDONALD, Chairman of the Navajo Tribal Council of
the Navajo Indian Tribe, For and on Behalf of the
Navajo Indian Tribe, Defendant,
Emmett Tso and Faye Tso, Applicants Intervenors-Appellants.
United States Court of Appeals,
Feb. 26, 1979.
Robert L. Miller (argued), Tuba City, Ariz., for applicants intervenors-appellants.
John S. Boyden (argued), of Boyden, Kennedy, Romney & Howard, Salt Lake City, Utah, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
Before DUNIWAY and CHOY, Circuit Judges, and EAST, District Judge.
CHOY, Circuit Judge:
Emmett and Faye Tso, members of the Navajo Tribe, appeal from the district court's denial without prejudice of their motion to intervene in the instant case. We affirm.
I. Statement of the Case
This suit is one brought by the Hopi Tribe against the Navajo Tribe and is intended to settle a long-standing dispute over certain lands declared an Indian Reservation by Congress. Act of June 14, 1934, 48 Stat. 960. The Hopi claim an undivided one-half interest in all of the 1934 Reservation lands. They also seek partition of the 1934 Reservation in accordance with their claims. The Navajo counter that the 1934 Reservation belongs solely to them. Congress made this suit possible by "waiving" the sovereign immunity of the two tribes for the limited purpose of having this land dispute resolved. 25 U.S.C. § 640d-7.
On September 18, 1973, a fire destroyed the dwelling of Emmett and Faye Tso, located midway between the Navajo community of Tuba City, Arizona, and the Hopi village of Moencopi, Arizona. The Tso homesite is entirely within the 1934 Reservation, the area involved in the Hopi-Navajo dispute.
Consistent with the Hopi position that the land upon which the Tsos' home had stood is Hopi land, the Hopi Tribal Court temporarily enjoined the Tsos from rebuilding on the site. Initially, the Tsos appeared specially in the Hopi Court to contest its jurisdiction to issue an injunction against them. The court denied the Tsos' motion to dismiss. Rather than contesting the restraint on the merits or appealing the court's decision to the Hopi Appellate Court, the Tsos filed an action under the Indian Civil Rights Act, 25 U.S.C. § 1302, in the federal district court seeking to test the validity of the injunction. The civil rights action has been stayed pending final resolution of the case now before this court.
Having otherwise failed to secure the relief they sought, the Tsos then moved to intervene as parties defendant in this Hopi-Navajo litigation.
II. The Tsos' Motion for Intervention
A. Sovereign Immunity of Indian Tribes
It is settled that
both the United States (citations omitted) and Indian Tribes such as the Navajo (citations omitted) enjoy sovereign immunity and cannot be sued without the consent of Congress. The sovereign immunity of Indian tribes is coextensive with that of the United States. (Citation omitted.)
Hamilton v. Nakai, 453 F.2d 152, 158 (9th Cir. 1971), Cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972); See Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 169-73, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512 & n.11, 60 S.Ct. 653, 84 L.Ed. 894 (1940). It is also clear that
(w)hen Congress does give consent to suit, that consent is subject to such conditions or limitations as Congress sees fit to impose. (Citation omitted.) Furthermore, any conditions or limitations "must be strictly observed and exceptions thereto are not to be implied."
Hamilton v. Nakai, 453 F.2d at 159, Quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-59, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. United States Fidelity & Guaranty Co., 309 U.S. at 513, 60 S.Ct. 653; United States v. Shaw, 309 U.S. 495, 501-04, 60 S.Ct. 659, 84 L.Ed. 888 (1940); Hill v. United States, 571 F.2d 1098, 1101 (9th Cir. 1978); Mitchell v. Riddell, 402 F.2d 842, 846 (9th Cir. 1968), Appeal dismissed & cert. denied, 394 U.S. 456, 89 S.Ct. 1223, 22 L.Ed.2d 415 (1969).
B. Congressional Consent to Suit of Tribes Under 25 U.S.C. § 640d-7.
Both parties agree that absent congressional permission, neither tribe could maintain an action against the other to resolve the 1934 Reservation dispute. However, 25 U.S.C. § 640d-7 provides, Inter alia :
(a) Authorization to commence and defend actions in District Court
Either tribe, Acting through the chairman of its tribal counsel for and on behalf of the tribe, is each hereby authorized to commence or defend in the District Court an action Against the other tribe and any other tribe of Indians claiming any interest in or to the area described in the Act of June 14, 1934 (the 1934 Reservation), except the reservation established by the Executive Order of December 16, 1882, For the purpose of determining the rights and interests of the tribes in and to such lands and quieting title thereto in the tribes.
(b) Allocation of land to respective reservations upon determination of interests
Lands, if any, in which the Navajo Tribe or Navajo individuals are determined by the District Court to have the exclusive interest shall continue to be a part of the Navajo Reservation. Lands, if any, in which the Hopi Tribe, including Any Hopi village or clan thereof, or Hopi individuals are determined by the District Court to have the exclusive interest shall thereafter be a reservation for the Hopi Tribe. Any lands in which the Navajo and Hopi Tribes or Navajo or Hopi individuals are determined to have a joint or undivided interest shall be partitioned by the District Court on the basis of fairness and equity and the area so partitioned shall be retained in the Navajo Reservation or added to the Hopi Reservation, respectively.
Section 640d-7(b) does indicate that Congress intended rights of individuals to be determined in a suit such as that before the court. However, a reading of the entire statutory scheme relating to the settlement of the Hopi-Navajo dispute, Pub.L.No.93-531, 88 Stat. 1712, 25 U.S.C. §§ 640d to 640d-24, as well as the legislative history of those provisions indicates that Congress did not intend that individual tribal members be allowed to participate in such a suit. In enacting these statutes, Congress, while not unconcerned with the rights of individuals, was primarily motivated by the need to settle the tribal dispute over the 1934 Reservation quickly and fairly. See 120 Cong.Rec. 37724-49 (1974) (debate on H.R.10337; replete with references to "tribal" rights and interests). Additionally, in passing §§ 640d-10 to 640d-18, Congress indicated that redress of injuries to individuals occasioned by a tribal resolution was to be by way of compensation and relocation. See 120 Cong.Rec. 37725 (comments of Sen. Fannin), 37728 (comments of Sen. Bible), 37730 (11 guiding principles employed in designing H.R.10337, particularly principle 9), 37732 (comments of Sen. Montoya). Finally, § 640d-17(c) provides that individual interests may be litigated in a suit between the two tribes only when those interests are represented by the tribal chairmen.
We conclude that individuals are barred from participating in a suit authorized under 25 U.S.C. § 640d-7. Congress has provided conditions and limitations upon its permission to sue the tribes. The Tsos do not fall within this circumscribed grant of jurisdiction. Therefore, the district court did not err in refusing to allow the Tsos to intervene.