MARY DANN AND CARRIE DANN, PETITIONERS V. UNITED STATES OF AMERICA

   No. 89-24

   In the Supreme Court of the United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Brief For The United States In Opposition

            TABLE OF CONTENTS
   Opinions below and prior opinions
   Jurisdiction
   Statement
   Argument
   Conclusion

                   OPINIONS BELOW AND PRIOR OPINIONS

   The amended opinion of the court of appeals (Pet. App. 1-25) is
reported at 873 F.2d 1189.  The findings of fact and conclusions of
law of the district court (Pet. App. 26-36) are not reported.  A prior
opinion of this Court in this case is reported at 470 U.S. 39.  The
prior opinions of the court of appeals are reported at 763 F.2d 379,
706 F.2d 919, and 572 F.2d 222.

                             JURISDICTION

   The judgment of the court of appeals was entered on January 11,
1989.  A timely petition for rehearing was denied on April 27, 1989,
and an amended opinion was entered the same day (Pet. App. 1-2).  The
petition for a writ of certiorari was filed on July 5, 1989.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the government's payment of an Indian Claims Commission
judgement awarding compensation for the extinguishment of tribal title
to certain lands bars individual Indians from asserting tribal title
as a defense in a trespass action involving the lands.

   2. Whether petitioners were inadequately represented in the Indian
Claims Commission proceeding.

   3. Whether tribal title to the lands was extinguished in 1872 or in
1979.

                               STATEMENT

   1. The lands involved in this case are part of a much larger area
which was at issue in an action resolved by the Indian Claims
Commission in 1977.  /1/ That action was filed in 1951 on the behalf
of various Shoshone tribal groups to recover damages for the loss of
aboriginal title to lands in the Western United States, including
Nevada.  The Temoak Band of Shoshone Indians was recognized by the
Commission as the tribal representative for the purpose of maintaining
a claim on behalf of the Western Shoshone for damages for the
extinguishment of tribal title to lands in Nevada and California,
including the lands at issue here.  Following stipulation to a
valuation date of July 1, 1872, the Commission determined the fair
market value of the lands acquired from the Western Shoshone to be
$21,550,000.  Western Shoshone Identifiable Group v. United States, 29
Ind. Cl. Comm. 5 (1972).

   The Western Shoshone Legal Defense and Education Association, an
organization supported by petitioners, subsequently moved to stay the
proceedings and present an amended claim.  Specifically, the
Association sought to delete from the claim lands to which it
contended the Western Shoshone still retained aboriginal title.  The
Commission, "viewing the dispute as an internal one among the Western
Shoshone over litigation strategy" (Pet. App. 4), denied the untimely
motion.  Western Shoshone Legal Defense & Education Ass'n v. United
States, 35 Ind. Cl. Comm. 457 (1975), aff'd, 531 F.2d 495 (Ct. Cl.),
cert. denied, 429 U.S. 885 (1976).

   The Temoak Band, which had opposed the Association's motion to stay
the Commission proceedings, then reversed its position and sought to
stay the Commission's proceedings pending a determination of claims
that the Western Shoshone retained aboriginal title to lands in
Nevada.  The Commission denied the motion and, in 1977, entered final
judgment, awarding the Western Shoshone more than $26 million.
Western Shoshone Identifiable Group v. United States, 40 Ind. Cl.
Comm. 305, 311, 453 (1977).  The Count of Claims affirmed (Temoak Band
of Western Shoshone Indians v. United States, 593 F.2d 994 (1979)),
and this Court denied a petition for a writ of certiorari (444 U.S.
973 (1979)).

   2. The United States commenced this grazing trespass action in
1974, alleging that petitioners were grazing livestock on certain
public lands in Nevada without a federal permit as required by
regulations issued by the Secretary of the Interior pursuant to the
Taylor Grazing Act, 43, U.S.C. 315 et seq.  Petitioners defended on
the basis that they were Western Shoshone Indians and the tribe was
the beneficial owner of the lands at issue.  Pet. App. 2.

   In 1980, after the Indian Claims Commission's judgment had become
final, the district court ruled that the effect of that judgment was
to extinguish Western Shoshone aboriginal title as of December 19,
1979, the date on which the Clerk of the Court of Claims had certified
the Commission award to the General Accounting Office for payment.
The court further ruled that petitioners had not been trespassing
before that time.  See 706 F.2d 919, 923 (1983).

   The court of appeals reversed.  Although Section 22 of the Indian
Claims Commission Act, 25 U.S.C. 70u (1976), provides that the payment
of any claim determined under the Act "shall be a full discharge of
the United States of all claims and demands touching any of the
matters involved in the controversy," the court held that petitioner's
aboriginal title claims were not barred because "payment" of the claim
had not yet occurred.  United States v. Dann, 706 F.2d 919 (9th Cir.
1983).  The panel concluded that "payment" for the purposes of Section
22 would not occur until "Congress has taken its final look at the
award and has either permitted a plan of distribution to become
effective pursuant to 25 U.S.C. Section 1403 or has legislated one."
706 F.2d at 926.

   This Court reversed.  United States v. Dann, 470 U.S. 39 (1985).
Noting that the two fundamental purposes of the Indian Claims
Commission Act were "'to dispose of the Indian claims problem with
finality'" (id. at 45 (quoting H.R. Rep. No. 1466, 79th Cong., 1st
Sess. 10 (1945)) and to transfer from Congress to the Commission "the
responsibility for determing the merits of native American claims"
(470 U.S. at 45), the Court held that "payment" under Section 22 was
effected when the award was placed in a trust account for the benefit
of the Western Shoshone.  The Court added:  "The Danns also claim to
possess individual as well as tribal aboriginal rights and that
because only the latter were before the Indian Claims Commission, the
'final discharge' of Section 22(a) does not bar the Danns from raising
individual aboriginal title as a defense in this action.  Though we
have recognized that individual aboriginal rights may exist in certain
contexts, this contention has not been addressed by the lower courts,
and, if open, should first be addressed below.  We express no opinion
as to its merits." 470 U.S. at 50 (footnote omitted).

   3. On remand, the district court allowed petitioners to file an
amended complaint in which they again asserted tribal title to the the
lands and also maintained individual aboriginal claims.  The
government then moved for a preliminary injunction to compel
petitioners to remove all livestock from the disputed lands in excess
of the number which they had formerly been permitted to graze under a
federal grazing permit.

   The district court rejected petitioners' tribal claim.  It
explained that they "are precluded from asserting the aboriginal title
of the Western Shoshone Nation against the United States because of
the effect of section 22(a) of the Indian Claims Commission Act
resulting from the payment, on December 19, 1979, of the judgment"
resulting from the proceeding before the Commission.  Pet. App. 33.

   As to individual aboriginal title, the court ruled that such rights
were "established prior to December 19, 1979," although it added that
"any subsequent effort by individual Western Shoshones to extend their
individual occupancy or use could not extend the scope of established
use and occupancy rights." Pet. App. 33.  The court held that
petitioners, in their own rights, "have established an individual
aboriginal and treaty right to graze 598 head of cattle, plus calves,
and 840 head of horses, plus foals, in common with permittees of the
Bureau of Land Management upon the public domain." Id. at 34.
Similarly, the court also held that petitioners, as beneficiaries of
their father's estate, have "individual aboriginal and treaty rights,
in common with the other heirs, to graze an additional 170 head of
cattle, plus calves, and 10 head of horses, plus foals, upon the
public domain in common with permittees of the Bureau of Land
Management." Id. at 34-35.  Such grazing rights were not subject to
regulation by the Bureau of Land Management (BLM), the court added.
Id at 35.  Petitioners were directed, however, to remove livestock in
excess of the numbers allowed by the court's decision.  Ibid.

   4. Both sides appealed, and the court of appeals affirmed in part
and reversed in part.  Pet. App. 1-25.  The court first rejected
petitioners' tribal title claims, (id. at 9-12) because Section 22(a)
of the Indian Claims Commission Act provides that payment resolves
"all claims and demands touching any of the matters involved in the
controversy." The court noted that it "would have thought that the
Supreme Court's decision would have shifted the focus of this case
away from tribal aboriginal title and placed it squarely on individual
aboriginal title." Pet. App. 9.  In any event, the court held, its
prior opinion in United States v. Gemmill, 535 F.2d 1145, 1149 (9th
Cir.), cert. denied, 429 U.S. 982 (1976), compelled the conclusion
that Section 22(a) precludes petitioners from continuing to assert
Western Shoshone aboriginal title following payment for the lands.
Pet. App. 10.  /2/

   Turning to the individual aboriginal title issue, the court
rejected the government's position that petitioners could not
establish title.  Relying upon Cramer v. United States, 261 U.S. 219
(1923), it ruled that the government's former policy of favoring
individual Indian settlement on the public lands allowed individual
Indians to acquire rights in those lands from the date upon which
tribal title was extinguished until November 26, 1934, when the lands
at issue were withdrawn from further entry pursuant to the Taylor
Grazing Act. Pet. App. 17-19.  Relying upon the Commission
proceedings, the court concluded that "the most appropriate date for
the extinguishment of tribal title to the lands" was July 1, 1872.
Id. at 20.  Consequently, overruling the district court's adoption of
the 1979 date for determing the extent of petitioners' individual
aboriginal title rights to graze cattle and horses on range lands, the
court of appeals ruled that "(a)ny such aboriginal right * * * must
have been acquired prior to the withdrawal of the lands from open
grazing and their subjection to the regime of the Taylor Grazing Act"
in 1934, and "must have been continuously cexercised since that time."
Id. at 22.  Accordingly, the court of appeals concluded that "(t)he
individual aboriginal land title of (petitioners) is restricted to
land that they or their lineal ancestors who preceded them in interest
actually occupied prior to November 26, 1934," and that any such
grazing rights are restricted to the number and type of animals which
were being grazed in 1934.  Id. at 24-25.  /3/ The court of appeals
remanded the case to the district court to make the requisite findings
and enter a decree.

                               ARGUMENT

   The court of appeals correctly resolved the questions petitioners
present for review.  The court of appeals' resolution of those issues
does not conflict with any decisions of this Court or of any other
court of appeals.  Accordingly, the petition for writ of certiorari
should be denied.

   1. Petitioners assert (Pet. 15-17) that they may raise Western
Shoshone tribal title as a defense in this grazing trespass action,
notwithstanding this Court's determination in United States v. Dann
that the United States has paid the Indian Claims Commission judgment
awarding the Western Shoshone compensation for the lands at issue.
The court of appeals properly rejected this contention.

   Section 22(a) of the Indian Claims Commission Act, 25 U.S.C. 70u(a)
(1976), provides in relevant part:  "The payment of any claim, after
its determination in accordance with this (Act), shall be a full
discharge of the United States of all claims and demands touching any
of the matters involved in the controversy." In 1983, the court of
appeals ruled that "the bar arising from a favorable claim
determination takes effect upon the payment of the claim, pursuant to
section 70u(a)" (706 F.2d at 925), but found that the claim had not
yet been paid.  This Court reversed, finding that the claim had been
paid within the meaning of Section 22(a).  470 U.S. 39 (1985).  The
clear effect of this Court's ruling, in light of the context in which
it was rendered, is that Western Shoshone tribal title may no longer
be asserted against the United States under any circumstances.

   Petitioners observe that most of this Court's discussion in its
prior opinion focused on whether payment had occurred rather than on
the effect of payment.  But, as the court of appeals noted, "the
Court's discussion did not take place in a vacuum." Pet. App. 9.
Since the court of appeals had already concluded that payment of the
claim would bar any further assertion of tribal title, there was no
reason for this Court to address that matter in detail.  Indeed, the
preclusive effect of payment of a Commission judgment is plain from
the face of Section 22(a) -- such payment acts as "a full discharge of
the United States of all claims and demands touching any of the
matters involved in the controversy." Moreover, to allow any party to
continue to assert Western Shoshone tribal title to the lands in
question after payment of the Commission judgment, as petitioners seek
to do here, would defeat the "chief purpose" of the Indian Claims
Commission Act, which was, this Court found, "'to dispose of the
Indian claims problem with finality.'" United States v. Dann, 470 U.S.
at 45 (quoting H.R. Rep. No. 1466, 79th Cong., 1st Sess. 10 (1945)).

   2. There is no merit to petitioners' contention (Pet. 18-21) that
the application of Section 22(a) to bar their claims of tribal
ownership violates due process.  The claim that was the subject of the
Commission proceedings was a collective tribal claim, not an
aggregation of related individual claims on behalf of a class of
similarly situated persons.  Hence, petitioners were not entitled to
be individually represented in the Commission proceedings.  See 531
F.2d at 503-504.

   Petitioners maintain that the Temoak Band should have been
recognized as the appropriate representative party for maintaining a
claim in the Commission proceedings on behalf of all Western Shoshone.
 Like the underlying aboriginal title issue, however, that question
was fully litigated in the Commission action.  The Western Shoshone
Legal Defense and Education Association, an organization with whom
petitioners were affiliated (706 F.2d at 922), sought to intervene in
those proceedings to challenge the Temoak Band's status as the
representative party and to assert allegations that the Western
Shoshone had been misled concerning the claim.  The Court of Claims,
however, affirmed the Commission's denial of the petition, finding the
Temoak Band to be the appropriate representative of the entire Western
Shoshone and that the Association's allegations of fraud and collusion
were unfounded.  The court also rejected the Association's due process
challenge to the constitutionality of the Indian Claims Commission Act
(531 F.2d at 497-504), and this Court denied a petition for a writ of
certiorari (429 U.S. 885 (1976)).  In short, petitioners' contentions
regarding the alleged lack of due process in the Commission
proceedings have already been fairly and fully litigated in those
proceedings, so those contentions may not be relitigated here.

   Furthermore, as the Court of Claims twice emphasized, its orders
denying intervention and, later, barring the Temoak Band's efforts to
alter its litigation position, rested upon the unjustified tardiness
of the procedural maneuvers;  those orders were not based upon any
unwillingness to consider a representational dispute timely presented
or to allow an Indian group to contend that it still retained title to
ancestral lands.  531 F.2d at 498-499 & n.6, 502-503 & nn.13, 14, 504
& n.18;  593 F.2d 994, 997-999.  Especially in light of the Court of
Claims' determination that "no adequate excuse was offered for the
long delay" (593 F.2d at 997 (see also 531 F.2d at 498-499, 501-502 &
n.13)), neither the Commission's procedural rulings nor the preclusive
effect which Congress has assigned to the judgment of the Commission
offends due process.

   3. Finally, petitioners contend (Pet. 21-26) that the court of
appeals erred by concluding that the most appropriate date to be
adopted as the date that tribal title to the lands in question was
extinguished is July 1, 1872.  However, because the representative
party of the Western Shoshone stipulated to that date in the claims
proceeding, that stipulation should also be given effect here.
Contrary to petitioners' contention, the Commission award could not
result in an extinguishment date of December 17, 1979, as the
Commission did not have jurisdiction to award compensation for lands
taken after August 13, 1946.  See 706 F.2d at 928.

   In any event, the alleged error worked in favor of petitioners
here.  If the extinguishment date were found to be 1979, petitioners
still would be precluded from now asserting tribal title and, in
addition, would be unable to assert any individual claims as well.  As
the court of appeals stated (Pet. App. 21), individual aboriginal
title may be established, if at all, only with the implied consent of
the government and only after tribal title has been extinguished.  The
government's implied consent to the individual acquisition of the
lands in question, however, was recalled when the subject lands were
withdrawn pursuant to the Taylor Grazing Act in 1934.  Hence, if
tribal title continued to exist after 1934, as petitioners maintain,
the lands would at no time have been available for individual
aboriginal occupancy.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   RICHARD B. STEWART

      Assistant Attorney General

   JACQUES B. GELIN

   ROBERT L. KLARQUIST

      Attorneys

   SEPTEMBER 1989

   /1/ The Indian Claims Commission Act authorized the Commission to
hear and determine claims for damages for the taking of aboriginal
land brought on behalf of any "Indian tribe, band, or other
identifiable group of American Indians." Section 2, 25 U.S.C. 70a
(1976).

   /2/ The court of appeals also held that Section 22(a) similarly
barred petitioners from claiming any tribal rights under the Treaty of
Ruby Valley (Treaty with Western Bands of Shoshonee Indians), Oct. 1,
1863, 18 (Pt. 3) Stat. 689, because "the Treaty of Ruby Valley
conferred no individual rights." Pet. App. 24.  It also noted that
"the Treaty does not refer to grazing rights." Ibid.

   /3/ The court also found that the exercise of petitioners'
individual aboriginal grazing rights would be subject to reasonable
regulation by BLM. Pet. App. 23.