Covelo Indian Community v. James Watt, Secretary of the Interior

United States District Court

For the District of Columbia

Filed Nov. 17, 1982
James F. Davey, Clerk
Civil Action No. 82-2725

Covelo Indian Community, et al.,

v.

James Watt, Secretary of the
Interior, et al.,
Defendants.

I. Introduction
Plaintiffs in this action seek declaratory and mandatory

injunctive relief to secure rights and duties they claim are

owed them, and all others similarly siturated, by the defendant

federal officials.

As will be more fully set forth herein, the nature

of this case required that the proceedings be significantly

expedited. Consequently, to accommodate time limits, the

parties stipulated to essential facts, and further stipulated

to the authenticity of nearly all the documents appended to

their briefs. Finally, they agreed to consolidate a trial

on the merits with the hearing on the preliminary injunction

and other motions. Due to that cooperative effort, several

issues are now ready for decision.

Presently before us are the motion of plaintiffs

for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure, and the

motion of plaintiffs for preliminary mandatory injunctive relief. Defendants have opposed

these motions and have themselves moved to dismiss this action, or in the alternative for

summary judgement in their favor.

For the reasons set forth below, we grant plaintiffs' motion for class certification, deny

defendants' motion to dismiss or for summary judgement, and grant permanent mandatory

injunctive relief in favor of the plaintiff class.

In addressing the merits of this action pursuant to consolidation under Rule 65(a)(2), we

have based our factual findings on the stipulated statement of facts, transcripts of certain

depositions, the authentic exhibits submitted by the parties, and the November 4, 1982

hearing.

II. Background

Prior to 1966 there was no general statute of limitations applicable to the United States, as

plaintiff, seeking money damages on contract and tort claims, although time limitations were

imposed upon private individuals. In 1966, Congress sought to correct that apparent inequity

and enacted 28 U.S.C 2415 which imposes a six-year time period in which the federal

government must bring actions based on contracts with the United States, and a three-year

limitations period for most tort claims. Subsection g of 2415 specifically provides that any

claims which arose prior to 1966 were deemed to have accrued on the date of enactment

of the new statute of limitations, i.e. July 18, 1966.

In late 1971, certain government officials and many Indians became concerned that pre-

1966 money damage claims which the United States could pursue as trustee on behalf of

Indians whose lands were held in trust or restricted status, might be extinguished with the

running of the statute of limitations on July 18, 1972, unless the federal government took

action to identify, evaluate, and where appropriate, file lawsuits to assert those Indian

claims. The Department of Interior ardently supported an extension of the statute of

limitations for pre-1966 Indian claims. 118 Cong. Rec. 28117 (August 14, 1972),

reprinted in [1972] U.S. Code Cong. & Ad. News 3595. Consequently, in 1972,

Congress extended the time in which the U.S. could assert pre-1966 claims on behalf

of Indians to July 18, 1977.

P.L. 92-485, 86 Stat. 803 (Oct. 13, 1972).

Once again in 1977, at the urging of the Department of Interior and the Department of

Justice, Congress extended the federal statute of limitations insofar as it applied to

actions for money damages brought on behalf of Indians with pre-1966 claims.

P.L. 95-103, 91 Stat. 842 (August 15, 1977). Interior and Justice Department

spokespersons testified that many tribes had only recently become aware of their

remedies for pre-1966 claims, and that hundreds of these claims, already identified

and being researched, could not be filed by the U.S. in time to meet the statutory

deadline. H.R. Rep. No. 95-375, 95th Cong., 1st Sess. 6 (1977), reprinted in

[1977] U.S. Code Cong. & Ad. News 1621. This time, Congress granted an extension

until April 1, 1980. P.L. 95-103, supra.

The most recent extension of the statute of limitations occured on March 27, 1980,

in P.L. 96-217, 94 Stat. 126, and is the subject of this lawsuit. In its deliberations on

this extension, Congress heard testimony from several high-ranking Interior and

Justice Department officials. Both executive departments favored another extension.

S. Rep. 96-569, 96 Cong., 2d Sess. 5 (1980). Congress reacted by extending the

limitations period for pre-1966 Indian damage claims until December 31, 1982.

But in addition, Congress added a critical Section 2 to P.L. 96-217, which provides:

Not later than June 30, 1981, the Secretary

of the Interior, after consultation with the

Attorney General, shall submit to the Congress

legislative proposals to resolve those Indian

claims subject to the amendments made by the

first section of this Act [extending the

limitations period] that the Secretary of the

Interior or the Attorney General believes are

not appropriate to resolve by litigation.

Plaintiffs' complaint, filed on September 23, 1982, alleges that defendants have

violated the mandate of Section 2 in that they have decided not only not to litigate

the vast majority of pre-1966 Indian claims subject to the statute of limitations,

but they have also declined to submit legislative proposals to Congress to resolve

those claims deemed inappropriate for litigation. 1/ Plaintiffs contend that, as a

class, all Indians and Indian tribes that have pre-1966 money damage claims

affecting lands held in trust or restricted status, have been materially injured by

this allegedly unlawful agency action. We agree.

Recommended Reading List on Native American History

United States Indian Policy A Critical Bibliography by Francis Paul Prucha

Captives and cousins: slavery, kinship, and community in the southwest borderlands by
James F. Brooks

Betrayals: Ft. William Henry and the massacre by Ian K. Steele

The Name of War by Jill Lepore

Jefferson and the Indians by Anthony Wallace

The Cherokee Removal: A Brief History with Documents by Theda Perdue

Lincoln and the Indians Civil War Policy & Politics by David A. Nichols

Contrary Neighbors by D. Lavere

And Still the Waters Run The Betrayal of The Five Civilized Tribes by Angie Debo

The View From Officer's Row Army Perceptions of Western Indians by Sherry L. Smith

Theodore Roosevelt and Six Friends of the Indian by William T. Hagan

Indians in the Making Ethnic Relations and Indian Identities around Puget Sound by
Alexander Harmon

American Indians: Stereotypes & Realities by Devon A. Mihesuah

American Indians: Answers to Today's Questions 2nd Rev. & ENLGD by Jack Utter

1491: New Revelations of the America's Before Columbus by Charles Mann

Every Day is a Good Day: Reflections of Contemporary Indigenous Women by

Wilma Mankiller, Vine Deloria Jr., and Gloria Steinem

Facing East From Indian Country: A Native History of Early America by Daniel K. Richter

Indian Metropolis: Native Americans in Chicago, 1945-75 by James B. Lagrand

Radical Hope: Ethics in the Face of Cultural Devastation by Jonathan Lear

The World We Used to live in: Remembering the powers of the Medicine Men by
Vine Deloria, Jr.

Celluloid Indians by Kilpatrick

American Indian Tribal Governments by Sharon O'Brien

The Ecocide of Native America by Donald Grinde and B. Johansen

American Indian Myths and Legends by Richard Erdoes and Alfonso Ortiz

Writing Research Papers Across the Curriculum, 4th ed. by Susan M. Hubbuch

Decolonizing Methodologies by Linda Tuhiwai Smith

A Story Sharp as a Knife: The Classical Haida Mythtellers and their World by

Robert Bringhurst

American Indian Languages: Cultural and Social Contexts by Shirley Silver and Wick R. Miller

An Apache Life-Way: The Economic, Social, and Religious Institutions of the Chiricahua

Indians by Morris Edward Opler

Apache Odyssey A Journey between worlds by Morris Edward Opler

Myths and Tales of the Chiricahua Apache Indians by Morris Edward Opler

Bad Medicine and Good by Wilbur S. Nye

The Way to Rainy Mountain by N. Scott Momaday

Coming To Light edited by Brian Swann

House Made of Dawn by N. Scott Momaday

Ceremony by Leslie Silko

Indian Legends from the Northern Rockies by Ella Clark

The Surrounded by D'Arcy McNickle

The Lone Ranger and Tonto Fistfight in Heaven by Sherman Alexie

Don't let the Sun Step over you by Eva Tulene Watt

Myths & Tales of the White Mountain Apache by Grenville Goodwin

Myths & Tales of the Jicarilla Apache Indians by Morris Edward Opler

Telling Stories the Kiowa Way by Gus Palmer

American Indian Sports Heritage by Joseph B. Oxendine

Chain her by one Foot by Karen Anderson

Stars Above, Earth Below: American Indians and Nature edited by Marsha Bol

Taos Indians and the Battle for Blue Lake by R.C. Gordon McCutchan

The Manitous The Spiritual World of the Ojibway by Basil Johnston

Popul Vuh: The Mayan Book of the Dawn of Life translated by Dennis Tedlock

Molded in the image of Changing Woman: Navajo Views on the Human Body and

Personhood by Maureen Trudelle Schwarz

Walking in the Sacred Manner: Healers, Dreamers, and Pipe Carriers-Medicine Women

of the Plains by Mark St. Pierre and Tilda Long Soldier

Dine Bahane: Navajo Creation Story by Paul G. Zolbrod

Reuben Snake: Your Humble Serpent by Jay C. Fikes and Walter Echo-Hawk

Buffalo Bird Woman's Garden by G. Wilson

Changes in the land Indians, Colonists, and the Ecology of New England by

William Cronon

Animal Rights, Human Rights Ecology, Economy and Ideology in the Canadian Arctic by
George Wenzel

Keepers of the Game Indian-Animal Relationships and the Fur Trade by Calvin Martin

Maps and Dreams by Hugh Brody

Wisdom Sits in Places landscape and language among the Western Apache by Keith H. Basso

Love Medicine by Louise Erdrich

The Delicacy and Strength of Lace by Leslie Marmon Silko and James Wright

Cogewea the Half-blood by Mourning Dove and Dexter Fisher

Mourning Dove A Salishan Autobiography by Jay Miller

House Made of Dawn by N. Scott Momaday

Storyteller by Leslie Marmon Silko

The Death of Jim Loney by James Welch

Life among the Piutes: Their Wrongs and Claims by Sarah Winnemucca Hopkins

On our own Ground: The Complete Writings of William Apess, a pequot by William Apess
and Barry O'Connell

Reinventing Enemy's Language: Contemporary Native American Women's Writings of
North America by Joy Harjo

The Toughest Indian in the World by Sherman Alexie

Wind From An Enemy Sky by D'Arcy McNickle

Killing the White Man's Indian by Fergus M. Bordewich

Indians Are Us? by Ward Churchill

American Indian Policy in the Twentieth Century by Vine Deloria, Jr.

Red Earth, White Lies by Vine Deloria, Jr.

The Unheard Voices by Donald Grinde and Carole Gentry

The Ecocide of Native America by Bruce Johansen and Donald Grinde

The State of Native America by James M. Annette

Real Indians by Eva Marie Garroutte

New Peoples Being & Becoming Metis in North America by Jennifer S.H. Brown,

Jacqueline Peterson, Robert K. Thomas, and Marcel Giraud

Strange Empire: A Narrative of the Northwest by Joseph Kinsey Howard

We know who we Are: Metis Identity in a Montana Community by Martha Harroun Foster

Lone Wolf v. Hitchcock Treaty Rights & Indian Law at the End of the Nineteenth Century

by Blue Clark

Braid of Feathers American Indian Law and Contemporary Tribal Life by Frank Pommersheim

Tribal Government Today by James J. Lopach, Margery Hunter Brown and Richmond Clow

Trusteeship In Change Toward Tribal Autonomy In Resource Management edited by

Richmond L. Clow and Imre Sutton

Dividing Paths by T. Hatley

The Pequot War by Alfred Cave

Between Two Fires by Laurence Hauptman

The Seeds of Extinction: Jeffersonian Philanthropy and the American Indian by Bernard W. Sheehan

The Long Bitter Trail by Anthony F.C. Wallace

Jefferson and the Indians The Tragic Fate of the First Americans by Anthony F.C. Wallace

The Iroquois Restoration Iroquois Diplomacy on the Colonial Frontier, 1701-1754 by
Richard Aquila

Indians in Indian Territory by David Lavere

Indians And Colonists At The Crossroads of Empire The Albany Congress of 1754 by

Timothy J. Shannon

Half-Sun on the Columbia A Biography of Chief Moses by Robert H. Ruby and John A. Brown

Cherokee Americans The Eastern Band of Cherokees in the Twentieth Century by

John R. Finger

American Indians and World War II by Alison R. Bernstein

Being Comanche A Social History of an American Indian Community by Morris W. Foster

Learning to be an Anthropologist & Remaining "Native": Selected Writings by Beatrice Medicine

Choctaws At the Crossroads The Political Economy of Class And Culture In the Oklahoma Timber Region by Sandra Faiman-Silva

Engendered Encounters Feminism And Pueblo Cultures, 1879-1934 by Margaret D. Jacobs

Many Americas Critical Perspectives on Race, Racism, And Ethnicity edited by
Gregory R. Campbell

Racial Frontiers by A. De Leon

Race in Mind by A. Alland

Race and Resistance by H. Boyd

Ethnic Studies Issues and Approaches by Philip Q. Yang

Cultural Diversity in the United States edited by Ida Susser and Thomas C. Patterson

Contemporary Native American Political Issues edited by Troy R. Johnson

How Capitalism Underdeveloped Black America by Manning Marable

Five Tribes of the Upper Missouri by Edwin Denig

The Way of the Warrior by P. Bauerie

The Whiskey Trade of the Northwestern Plains by M. Kennedy

Biolarchaeology of the North Central Plains edited by D. Owsley

The Contested Plains by E. West

Ancient Visions by Julie F. Francis and Lawrence L. Loendorf

Rebirth of the Blackfeet Nation 1912-1954 by Paul C. Rosier

Plains Indian Rock Art by Michael A. Klassen and James D. Keyser

One Vast Winter Count by Colin Calloway

Islands on the Plains by A. Osborn and M. Kornfeld

The Northern Cheyenne Indian Reservation 1877-1900 by Orian J. Svingen

Modern Blackfeet Montanans on a Reservation by Malcolm McFee

Shared Symbols, Contested Meanings Gros Ventre Culture and History 1778-1984 by
Loretta Fowler

The Montana Cree A Study in Religious Persistence by Verne Dusenberry

Parading Through History: The Making of the Crow Nation in America, 1805-1935 by

Frederick E. Hoxie

The Cheyennes Indians of the Great Plains by E. Adamson Hoebel

This Land was Theirs A Study of Native Americans by Wendell H. Oswalt

American Bison: A Natural History (Organisms and Environments) by Dale Lott and
Harry W. Greene

The Hoe and the Horse on the Plains: A Study of Cultural Development Among North
American Indians by Preston Holder

The Horse Catcher by Mari Sandoz

Perspectives on culture by Sidky

Bridge in the Jungle by Traven

Repatriation Reader by Mihesuah

Where the Lightning Strikes by Peter Nabokov

Grandmothers Grandchild by Snell

Amazing Death of Calf Shirt and other Blackfoot Stories by Dempsey

Rounding the Human Corner by Hogan

Heartsong of Charging Elk by James Welch

Eye Killers by Carr

Red Convertible by Erdrich

Names by N. Scott Momaday

Black Elk Speaks: premier ed. by Neihardt

Mankiller: Chief & Her people by Mankiller

Books & Islands in Ojibwe Country by Erdrich

Peoples of the Northwest Coast by Ames

Kwakiutl by Rohner

Breaking the Iron Bonds by Marjane Ambler

Protecting Indigenous Knowledge and Heritage by Battiste

Returning to the teachings by Ross

American Indians by William T. Hagan

Native American Tribalism: Indian Survivals and Renewals by D'Arcy McNickle

John Collier's Crusade for Indian Reform, 1920-1954 by Kenneth R. Philip

Disinherited: The Lost Birthright of the American Indian by Dale Van Every

The Indian in America by Wilcomb E. Washburn

A History of the Indians of the United States by Angie Debo

Expansion and American Indian Policy, 1783-1812 by Reginald Horsman

Red Power: The American Indians' Fight for Freedom by Alvin M. Josephy, Jr.

American Indian Policy in Crisis: Christian Reformers and the Indian, 1865-1900

by Francis Paul Prucha

American Indian Policy in the Jacksonian Era by Ronald N. Satz

A Short History of the Indians of the United States by Edward H. Spicer

Alternative to Extinction: Federal Indian Policy and the Beginnings of the Reservation System,

1846-51

A History of Indian Policy by S. Lyman Tyler

The American Indian as Slaveholder and Secessionist: An Omitted Chapter in the Diplomatic History of the Southern Confereracy by Annie Heloise Abel

The American Indian as Participant in the Civil War by Annie Heloise Abel

The American Indian under Reconstruction by Annie Heloise Abel

American Indian Education: Government Schools and Economic Progress by Evelyn C. Adams

Church, State, and the American Indians: Two and a Half Centuries of Partnership in Missions between Protestant Churches and Government by R. Pierce Beaver

Salvation and the Savage: An Analysis of Protestant Missions and American Indian Response, 1787-1862 by Robert F. Berkhofer

Race and Manifest Destiny The Origins of American Racial Anglo-Saxonism by

Reginald Horsman

The Imperial Cruise by James Bradley

Types of Mankind by Samuel Morton

Race: The History of an Idea in America by Thomas Gossett

Germania by Caius Cornelius Tacitus

The Mismeasure of Man by Stephen Jay Gould

Conquest: Sexual Violence and American Indian Genocide by Andrea Smith

Native American Post Colonial Psychology by Eduardo Duran and Bonnie Duran

Theodore Roosevelt and the Idea of Race by Thomas Dyer