Hatahley v. United States – Oral Argument – March 27, 1956

Media for Hatahley v. United States

Audio Transcription for Oral Argument – March 26, 1956 in Hatahley v. United States

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Earl Warren:

Number 231, Bill Hatahley et al, versus United States of America.

Mr. Marquis.

Roger P. Marquis:

May it please the Court.

Our position is two-fold.

First, we think the actions taken here were appropriate in enforcement of law regulating the grazing area of the public domain.

Second, we think that assuming that that is not so, assuming some defect is found in the procedures or a mistake as to the law applicable that that cannot be the basis of a judgment in the Tort Claims Act.

I don’t think I need separately deal with the matter of the injunction.

I think so far as necessary, that will come out in the course of my discussion.

I think that the matter of damages is dealt with adequately in the briefs and I don’t think that is necessary to be dealt upon during my argument.

First of all, and I think as the Court of Appeals held, we were plainly right, A, in applying the Utah abandoned horse law to the Taylor Grazing Act area and, B, in the procedures and so forth that were taken under that Act.

And I will have to leave to the briefs on the record the dealing with the details of that for the most part.

Now first, and this is the matter which is quite important in the administration of the Taylor Grazing Act.

It is the question, “Did the Taylor Grazing Act supersede the state law and in particular in this case, the state law as to abandoned horses?”

A three-minute summary of the situation when the Taylor Grazing Act was passed.

I don’t think we need be reminded the importance of the public domain in the west to the livestock and cattle and sheep industries.

In the State of Utah, for example, 70% of the land is still public domain.

And that 70% — the 30% that is privately or state owned is interspersed sections like school lands, 16s and 36s or the homesteads or small areas and the public domain runs through the entire area and it’s a checkerboard.

For the most part, in this grazing area, the springs, the wells, the pass, the lowland where there’s some cultivation, will be under a patent and the attached grazing area of wide scope will be public domain subject to grazing licenses.

Because of the very great importance of the grazing matter to the west, special laws had been built up special rules of law modifying the common law as to trespass and as to such matters in order to deal with the situation of an unfenced area of public domain of large importance to the local industry.

And of course, that is the source and has been the cause of dispute between cattle men and sheep men and had related in particular laws.

And of these, the abandoned horse law deals with a public health and public welfare problem.

It’s the problem of abandoned — is perhaps a misnomer in our eastern sense of someone abandoning their — of their personal property like an automobile or something like that.

It’s a matter of dealing with uncontrolled animals running loose on the unfenced public lands, the range of the west.

The problem is that there may be owners, there very likely is for all of them, but there has to be an enforced control of some sort dealing with the circumstances.

And we have to keep in mind the vast areas in the small population and the policing problem.

For example, San Juan County, Utah which is District Number 9 on the Taylor Grazing Act is 7800 square miles, somewhat larger than the State of Massachusetts, it’s one of the largest counties in the country.

The particular area which I will come to in a minute where these eight Indian families claim the rights is of itself 760,000 acres, larger than the State of Rhode Island.

The population of San Juan County is roughly 5000.

These give a picture, of course, their vegetation is sparse so that there has to be large areas for grazing and we’re dealing here with widely dispersed people and animals.

Now, this abandoned horse law and I might say that it is not peculiar to Utah, Wyoming and Montana, for example, have laws that are identical to the Utah law on this subject, set out a procedure whereby the menace and it’s a menace to the existing animals on the range, the menace of mixed breeding and the animals running loose are likely to be the lower quality animals or those things the matter of horses running loose on the range is a menace.

Roger P. Marquis:

It’s a public house problem, public welfare problem, a public health problem to these areas in the west to which their grazing is so vital.

It’s far beyond simply the forage that the horse may eat.

Well, that is a problem enough, all the dislocations caused by uncontrolled horses.

That is the particular program we’re dealing with here.

And other programs, you look in the statutes of the western states, you look under livestock or animals, you will see a gradient quantity of legislation dealing with these problems.

Now, up until 1934, these western states had all enacted that legislation dealing with the public range which was most of the range, and the matter of the rights to graze had been governed by custom.

No special federal statute.

The Taylor —

Earl Warren:

Mr. Marquis, assume — assuming that the authorities know who the owners of these animals are and assuming that they know that they are not really abandoned animals but are mere trespassers on the public domain, are they authorized by the state law to invoke the Abandoned Animal Act?

Roger P. Marquis:

I would — I would say, yes, to your question.

Of course, I — I don’t exactly agree with the assumptions.

But I would say, yes, to the statute.

The statute is dealing with the abandoned horses.

It is perfectly proper to invoke the statute which then simply puts on the burden of the animals the obligation to file a description of their animals and their brands and then there are measures for service by mail —

Felix Frankfurter:

Could you quickly turn —

Roger P. Marquis:

— and so forth.

Felix Frankfurter:

— turn to the statute which you invoked, you can say yes to the Chief Justice’s question?

Roger P. Marquis:

In the respondent’s — in the petitioner’s brief, at page 58, the last page next to the cover.

“Any person owning any horses which are running at large in any county in which the Board of County Commissioners has given notice of intention to make a drive” as provided in this chapter, “may, within 30 days after posting or the first publication of the notice mentioned with the Board, file with the Board of County Commissioners a description of such horses claimed by him giving the marks and brands, if any, which appear thereof.

And if the Board of County Commissioners shall take into its possession any horses so-claimed, it shall, by registered level, address the owner or claimant of said horses, notify them and so forth.”

Earl Warren:

Now, were those things done?

Roger P. Marquis:

There was no filing of description or brands in this case and hence there was no notice filed.

Earl Warren:

Then was the Act followed?

Roger P. Marquis:

The Act was followed in the publication of that there will be a roundup.

There was not only publication in the newspaper, there was posting in the county seat, there was posting in five places outside the county seat.

Earl Warren:

Why didn’t they — why didn’t they follow the rest of the Act?

Roger P. Marquis:

Because the rest of the Act does not come into play until in response to the fact that a roundup is — occurs, then the owner files with the Board his description of his horses and his brands.

When he does that, then anytime any of those animals are seized, then the registered mail notice is given to the owner.

And that is —

Earl Warren:

In one of those acts, don’t they make a distinction between abandoned horses and trespassers in which event they impound the horses and give notice and — and enable the owners to get them back?

Roger P. Marquis:

The impoundment law is a different law which is primarily directed at the herds of animals rather than the horses as such, but it would cover horses.

In that instance, it’s the impoundment law.

Earl Warren:

Isn’t that to be used — isn’t that to be used in cases where they either know who the owners are or have reasonable opportunity to know who the owners are?

Roger P. Marquis:

I think that’s the case where there’s been continuing trespassing by abandoned sheep or abandoned cattle, someone grazing or something of that sort.

There has been continuous trespassing and a problem then they invoked the impoundment law.

Earl Warren:

Had there not been —

Roger P. Marquis:

And —

Earl Warren:

— continuous trespassing here?

Roger P. Marquis:

But — that’s right.

And this impoundment law, the local impoundment law, had been invoked by the white permittees who were entitled to own — to graze the land.

And as the record will show, that is one of these episodes when the county sheriff was there enforcing the local impoundment law.

The abandoned horse law is something entirely different for a different purpose.

Its purpose is to rid the range of these uncontrolled animals running loose.

And the procedure there is to pick up the animals and when they know a roundup is coming, then the — as I say, the owners file the descriptions and the brands.

And, for example, in this case, there were many horses running loose, there are as many as 400 horses running loose on the range.

The Indian horses were some of them.

It wasn’t known to which Indians they belong of these eight families.

They were all running loose on the range and the notice was given in accordance with the statute that there would be a roundup of the horses.

And as might be expected when the notice was given, “We’re going to have a roundup,” and they go out and they start looking at the range, most of the horses had disappeared.

I think that is perfectly in accord, first, getting back to what I was dealing with, I think it’s perfectly in accord with the Taylor Grazing Act which preserve local police power and which preserve in its very first section of the Taylor Grazing Act.

It said that the jurisdiction of state courts — of states is not to be affected except so far as necessarily.

On the top of page 69, at the end of Section 1, it starts on the very bottom of 68, the appendix of the Government’s brief, “Nothing in this Act shall be construed in any way to diminish, restrict, or impair any right which is heretofore may hereafter initiated under existing law validly affecting the public lands and so forth.”

And then it comes down to about the fourth line, “Nor as limiting or restricting the power or authority of any state as to matters within its jurisdiction.”

My first point is therefore that the Taylor Grazing Act was not intended —

Felix Frankfurter:

Suppose that —

Roger P. Marquis:

Sir?

Felix Frankfurter:

That’s a statement of an equivalent proposition, let me tell you that.

Roger P. Marquis:

That’s right.

I think I want first to say that it — I think that’s clear that the Taylor Grazing Act was not intended to supersede all of the local law as to grazing matters.

That —

Felix Frankfurter:

(Voice Overlap)

Roger P. Marquis:

That it lets —

Felix Frankfurter:

Then tell us what remains of the jurisdiction as to what the Taylor Grazing Act had so (Inaudible)

Roger P. Marquis:

Well, I think — again, we have one of those problems.

I think it leaves the local law except so far as there is conflict.

I think it makes it perfectly clear that section represents the policy and then there is the later section which is — we didn’t reprint it, it’s in the petitioner’s appendix.

Earl Warren:

Is there any definition in either the state or the federal law to what constitutes an abandoned animal?

Roger P. Marquis:

Yes, sir.

Earl Warren:

What —

Roger P. Marquis:

At page — the petitioner’s appendix.

At page 55, at the bottom, abandoned horses defined.

The term “abandoned horses” used in this chapter means any horse and other animals unbranded or if branded, that has escaped assessment for taxation for the year next preceding the killing of such animal as here and after provided for and running at large upon the open range of this state.

An animal not bearing a decipherable brand recorded in the Office of Recorder of Marks and Brands shall be deemed unbranded.”

It isn’t put on knowledge at all, it’s a question, I think it’s quite reasonable in dealing with this partially settled area.

It puts — it puts the burden on the owner in this area where animals are running loose to have his brand recorded and to — when the roundup is announced, to file with the Board of Commissioners saying, “Well, now this is my animal.

If you pick it up, let me know about it.”

And then the statutory process proceeds from thereon.

Earl Warren:

Does the record show whether these animals escaped taxation the year before?

Roger P. Marquis:

The record is completely silent about taxation.

Earl Warren:

They were branded, were they not?

Roger P. Marquis:

They were branded — some of them were branded.

Some, there is dispute.

The Government’s testimony was that they had looked in the brand books and could find no recorded brands.

There was testimony the finding is some of the brands were recorded.

How many isn’t stated.

Earl Warren:

And the Government took those along with the unbranded.

Roger P. Marquis:

They’re — they were grouped.

Earl Warren:

They have a right to do that?

Roger P. Marquis:

The Government, they will, I think.

Of course, it isn’t the brand, it’s the recording of the brand.

Roger P. Marquis:

It isn’t the brand on the animal when you’re out on the range and picking up the horses.

It isn’t the brand on the animal that makes the difference, it’s the brand recorded in the book.

And of course they have brand books which our books contain the recorded brands and they have copies out on the range.

The testimony shows the government agents had the brand books with them.

Earl Warren:

Well some of those you say were recorded brands?

Roger P. Marquis:

The government agents say they could not find them in the books.

The Indian owners testified some were recorded.

Earl Warren:

What was the finding?

Roger P. Marquis:

The finding was some were recorded brands.

Earl Warren:

As to those that were recorded brands, what is your position as to whether the Government had the right to take them as abandoned animals?

Roger P. Marquis:

I — I say first, I think that the — I don’t think that the jurisdiction of the action under this statute is whether a particular animal was abandoned.

I don’t think that is jurisdictional.

I think the statute places the obligation on the owner —

Earl Warren:

To do what?

Roger P. Marquis:

— to file his brand when the roundup is announced.

That was not done here.

I think that is the remedy that is provided.

It’s the obligation which they put on persons quite reasonably because these animals are running loose on the vast range.

Felix Frankfurter:

I don’t follow.

I’m not —

Roger P. Marquis:

And —

Felix Frankfurter:

— naturally not familiar with — about these things, but if we accept the findings that some were branded, some of the brands were recorded, then I don’t understand your last statement that there must be some — when the roundup takes place, there must be some further filing.

Roger P. Marquis:

I — not — but I think before the roundup takes place.

I think the —

Felix Frankfurter:

What’s the purpose of having of the recording if that isn’t to give notice for all purposes for which such a recording should be normally is called for?

Roger P. Marquis:

Well, generally speaking, if it’s a recorded brand, that gives the notice and that’s your brand and it solves any problems of ownership, for instance, the record is prima facie evidence.

Felix Frankfurter:

(Voice Overlap) — that if you accept the finding —

Roger P. Marquis:

And —

Felix Frankfurter:

— that was true here to some in all of that, isn’t it?

Roger P. Marquis:

Accepting the finding, it was — as some were recorded —

Felix Frankfurter:

Now you indicated —

Roger P. Marquis:

— which ones —

Felix Frankfurter:

— that that’s — as you — being asked by the Chief Justice a question, that doesn’t take care of the fact that you shouldn’t have —

Roger P. Marquis:

Well, I think under the remedy, I think under the statute, the remedy provided if your recorded brand horse is picked up, the remedy is to file — when a roundup is announced, to file your brand.

And if you do, then you do get notice if your recorded brand horse is picked up.

Earl Warren:

Where is that from the statute?

Roger P. Marquis:

That’s in the last part of the statute which I read.

That last page that if —

Earl Warren:

I see that’s —

Roger P. Marquis:

The section, it’s at the top of page 58 of petitioner’s brief that a person owning the horses which are running at large where there’s been notice of intention.

Stanley Reed:

How — how are the brands filed, by counties or by the State?

Roger P. Marquis:

I’m not sure — they’re filed by counties, I believe it is.

Stanley Reed:

Well, if — if they’re filed — is what you’re saying that when a notice of a roundup is given of horses running loose, that then they must re-file their brand some place?

Roger P. Marquis:

Notify the Board of County Commissioners, that’s right.

Stanley Reed:

You mean after that — after the notice that they’re going to have a roundup?

Roger P. Marquis:

After the general notice of the roundup.

Stanley Reed:

Even though they had already been filed in the county?

Roger P. Marquis:

That’s right.

Stanley Reed:

And — and where do you — what do you draw of that?

Roger P. Marquis:

From the statute which says — the page —

Stanley Reed:

I’m looking at page 58.

Roger P. Marquis:

Page 58.

That the person, any person owning any horses which are running at large in which — in the county where the Board has given notice and intention to make a drive, may, within 30 days after posting or first publication, file with the Board of County Commissioner a description —

Stanley Reed:

And how does the — does the filing — the finding show that they were — some brands filed?

Roger P. Marquis:

There were none filed under this section.

Stanley Reed:

And therefore, your position is that none of the horses which were picked up were branded and filed in accordance with this Section 47-2 in this case?

Roger P. Marquis:

That’s right, in connection with that section and of course we do challenge the finding.

We say, of course, that the general finding about some of the brands being recorded.

And of course —

Harold Burton:

Where do you challenge it?

Harold Burton:

In what way do you challenge it?

Roger P. Marquis:

We say that —

Sherman Minton:

Well, I mean, on — in Court, where did you — did you present that to the Court of Appeals?

To the District Court?

Roger P. Marquis:

Our challenge to the findings was not specific as to each particular finding.

We did challenge the findings as a whole and the ground on which inferences were drawn from the evidence on the ground that the basis of this alleged conspiracy between the federal officers and the local county sheriff and the local advisory board and all — everyone else in the area was erroneous.

And that was the structure on which — or the inferences and rejection of evidence was based.

Felix Frankfurter:

Mr. Marquis, the finding that certain brands were recorded is about as rudimentary and elementary and simple and unambiguous to the finding of fact that one can conceive.

And therefore, the general objection to the inferences drawn, I should hardly think would cover such a finding that in a certain place, there’s a piece of paper or books in which (Inaudible)

Roger P. Marquis:

I — of course there, we have the fact that it runs all through this case because the testimony was they looked in the book and it wasn’t there.

Felix Frankfurter:

Well, I’m not saying you shouldn’t have challenged it, I’m suggesting that your answer to Justice Minton’s question, you attack the structure of the conclusive report was hardly the type of question of an entry in a book.

Roger P. Marquis:

Well, perhaps, our statement of points on appeal was not detailed enough.

Felix Frankfurter:

Well, that doesn’t mean by not certainly defined is —

Roger P. Marquis:

[Laughs] — I — they are certainly detailed find — statement of points and we didn’t attempt to go through all each individual finding in each individual element because in our view —

Felix Frankfurter:

But is important —

Roger P. Marquis:

— it all represented a single — of course, in first on the law, we think it makes no difference.

Felix Frankfurter:

All right, I understand that.

Roger P. Marquis:

And secondly —

Felix Frankfurter:

(Voice Overlap) get it approved, then it does become important.

Roger P. Marquis:

And secondly, we think that the answer is, the answer throughout the case and the thing that dispels all the findings of that sort where evidence has been expressly rejected, the thing that cuts across all of that is the charge of the plot or malicious scheme to oust these Indians from an area where they undoubtedly had rights.

That is the theory on which all that flows throughout the case.

And we expressly attack that because of the fact that Congress had, I think, quite clearly indicated that these Indians should remain in their view upon the reservation and I think it’s perfectly clear that as the state court held on this precise question, that for at least three reasons as a matter of law, the Indians had no rights in this area to graze, they were trespassers, that they be — these six families belong on the reservation with the rest of the Indians who had been in this general area.

And as long as I’m on that, I’d like to just in five minutes to —

Could I — before you do that —

Roger P. Marquis:

Sure.

— could I clarify my mind on one point.

Was there any finding one way or the other as to whether or not the brands were filed with the County Commissioners as distinguished and having been recorded?

Roger P. Marquis:

I don’t think there was a specific finding.

The evidence is perfectly clear that there was –-

There is a dispute that they were not —

Roger P. Marquis:

There were no — there was no filing at all with the County Commissioner.

None.

Roger P. Marquis:

That fact is clear.

And your claim is, as I understand it, even though the evidence was or the finding was that some brands are recorded, that in itself was not enough absent a filing of those recorded brands with the County Commissioner.

Roger P. Marquis:

After a roundup —

After a roundup of —

Roger P. Marquis:

— of — of horses running wild has been announced, that’s right.

Earl Warren:

Mr. — oh, pardon me.

Go ahead.

William O. Douglas:

Are you going to discuss the Federal Range Code?

Roger P. Marquis:

Yes, sir.

I will in just a moment.

William O. Douglas:

Because the major point in the case would be that is in conflict —

Roger P. Marquis:

Yes, well I —

William O. Douglas:

— governing trespassers or violators in Federal Range — the General Range Code governing trespassers and violators.

Roger P. Marquis:

Yes, I propose to get to that just in a moment, if I may.

I would like — well, I can deal with that subject right now, it follows logically enough.

The point is — our point is that this abandoned horse law is not a trespass law.

It is not a law for — to get the individual who has been trespassing with his band of sheep or his band of cattle, who has been running beyond the area where he is permitted.

Of course, the Taylor Grazing Act sets up a system of permits.

It regularizes the matter which before it —

William O. Douglas:

The person who doesn’t have a permit from the Taylor Grazing Act but grazes his cattle or livestock is a violator, isn’t it?

Roger P. Marquis:

He is violating the Taylor Grazing Act.

William O. Douglas:

Do you come under the —

Roger P. Marquis:

So — so —

William O. Douglas:

— Federal Range Code?

Roger P. Marquis:

That’s right.

He is violating the Federal Range Act — the Taylor Grazing Act and the regulations set up a procedure for giving trespass notices, that’s what they’re always called in vernacular, it’s a trespass notice, for those that are grazing their sheep or cattle either beyond the period of their permit or beyond the time during the year when it’s permitted or too many sheep or too many cattle or many of those various reasons, it’s almost invariably.

Some basis on which they’re on the range on the permits of — their exceeding a permit usually, but any sort of trespass of the cattle or the sheep by an owner is dealt with in the matter of procedure under the Federal Range Code in which notice is given and trespass action is taken either through the United States Attorney or the regulations provide invocation of local law of impoundment for trespassers which, for instance, in Utah law is covered by estrays.

All of that we say —

Stanley Reed:

This is — this is a 161 Level, is that what you’re talking about?

Roger P. Marquis:

That’s right.

William O. Douglas:

You could’ve proceeded under that, could you?

Roger P. Marquis:

Not on this abandoned horse — in our view of what the situation is, that it’s abandoned horses.

That procedure is against named and known owners.

You — you name him, you’ve been trespassing with your band of sheep here on Section 17 in Township 39, something of that sort.

This roundup is a matter of rounding up the stray animals running all over, the uncontrolled animals on the public range.

Earl Warren:

Well these —

Roger P. Marquis:

There were 400 when we started.

Earl Warren:

Well, this — wasn’t there a finding in this case that to the effect that the government agents waited at the night time until these horses were turned out of the corrals and then rounded them up?

Roger P. Marquis:

There was one instance.

Earl Warren:

Well, there was a finding to that effect, wasn’t there?

Roger P. Marquis:

As to that one instance.

That’s right.

Earl Warren:

All right.

Now as to those, do you claim that those are abandoned animals as distinguished from trespassing animals?

Roger P. Marquis:

We — in our version of facts, we do, yes.

Earl Warren:

What is the difference between the trespass and the — and the abandonment so far as this situation is concerned?

How do you — how do you say it’s one and not the other?

Roger P. Marquis:

The abandoned animals are simply running loose and uncontrolled whereas trespass is a band under almost invariably under control of a herder of a band or may it could be a band of horses ordinarily as cattle or sheep which are under control and therein a place where they’re not authorized to be.

Earl Warren:

Now, where do you get that definition, or those two definitions?

Roger P. Marquis:

The definition of abandoned horse, of course, I get from the Utah definition of the statutory definition.

Earl Warren:

Well, where do you get the trespassing one?

Roger P. Marquis:

Well, that’s — that isn’t specifically given in any — I don’t know of any place where it is specifically set forth.

I mean, in that sense, of course, it is trespass, any — in the sense, the trespass is where some — an animal at a place where it shouldn’t be.

Earl Warren:

And is it — is it —

Roger P. Marquis:

Isn’t that —

Earl Warren:

— the policy of the Government in — in these matters generally speaking, to consider a horse that is corralled normally but is permitted to be outside at night trespassing on the domain being it an abandoned animal?

Is that the policy?

Roger P. Marquis:

I don’t know of any policy on that at all, Your Honor.

Roger P. Marquis:

I —

Earl Warren:

Well —

Roger P. Marquis:

— presume not.

I don’t know.

I just don’t know.

Earl Warren:

You — you would presume it was not to be?

Roger P. Marquis:

Yes, that’s right.

Earl Warren:

That — that’s —

Roger P. Marquis:

I presume that.

Earl Warren:

What that — that was done here, wasn’t it?

Roger P. Marquis:

Well, according to the findings, of course, our version is entirely different.

Earl Warren:

Then I suppose that the general policy was in accordance with the general definitions, was it not?

Roger P. Marquis:

Oh, yes.

That’s right.

Earl Warren:

Then why do you change the definition and the policy in this case?

Roger P. Marquis:

I don’t — I’m sorry, I don’t follow you.

I don’t understand (Voice Overlap) —

Earl Warren:

Well, as I — as I understood you, normally, if an animal was a corralled animal and was merely let loose at night to forage known to the government agents, that that horse would be considered a trespasser and not an abandoned animal.

But in this case, you reversed it and although there is a finding in the case to the effect that the government agents were there and watched until the horses were permitted to go outside of their corrals and then scooped them up as abandoned animals.

That they’re no longer to be considered merely as trespassing animals.

Roger P. Marquis:

Well, as I say, as to that particular episode, I don’t know there’s any general policy has been set up on things like that and we do not agree that that is what happened.

Earl Warren:

Well, didn’t the —

Roger P. Marquis:

Of course.

Earl Warren:

— trial court found that, didn’t it?

Roger P. Marquis:

Yes, it did.

Earl Warren:

And didn’t —

Roger P. Marquis:

Yes, it did.

Earl Warren:

Did they find it on the — on the evidence of your own government agents?

Did your —

Roger P. Marquis:

No, sir.

Earl Warren:

— government agents testified that there were —

Roger P. Marquis:

No, sir.

The Government agents were that it was quite — quite a considerable distance away.

Earl Warren:

I beg your pardon.

Roger P. Marquis:

That the government agents were that these horses were quite a considerable distance away and could —

Earl Warren:

Didn’t they go farther than that?

Roger P. Marquis:

And could not be under the view of being within control.

Earl Warren:

Well, didn’t they —

Roger P. Marquis:

That they weren’t simply within the mediate area of the corral.

Earl Warren:

But didn’t your government agents admit in the trial that they knew they had been released from the corral that night?

Roger P. Marquis:

I don’t believe so, Your Honor.

Earl Warren:

Well, I may —

Roger P. Marquis:

As to that, if so —

Earl Warren:

I may be mistaken.

Roger P. Marquis:

I don’t think so.

No, sir.

Earl Warren:

I may be mistaken to that.

Roger P. Marquis:

But as to that particular episode, that is our view of it.

Now, may I know (Inaudible) in that episode?

Roger P. Marquis:

In that particular episode, I believe there were — I think that altogether, they were 20.

Earl Warren:

Where is that testimony in the record, do you know?

Roger P. Marquis:

At page 181 is the testimony of the Indian, of Sakezzie, the Indian owner.

That’s the testimony about it.

The —

125 (Inaudible) 128.

Roger P. Marquis:

And then at the bottom of 130 — 128 it begins, “In a moonlight night, and sat up on the top of — above overlooking Sakezzie’s corral and so forth.”

Earl Warren:

But is this — is this the agent?

Roger P. Marquis:

This is the government agent.

Earl Warren:

The government agent.

Roger P. Marquis:

The answer, it was more than that.

Roger P. Marquis:

On page 128 —

Earl Warren:

Yes.

Roger P. Marquis:

— of the record it begins.

It was more than that.

How much more?

Out on the mesa on federal range.

You watched them move from the corral out there where you picked them up?

I did not.

You had a pickup there, didn’t you — a pickup car there, didn’t you?

I was on Alkali Point 15 or 20 miles from the area where the horses were picked up.

Were you the only man driving that pickup truck that night?

No.

Who else was driving?

Bob Crum.

Later on he testifies very briefly.

Didn’t you know they were coming out of his corral?

I didn’t know they came out of his corral.

It was dark when he turned them out.

I can’t identify any of those horses in the corral.

Then where did you take them when you picked them up?

And it goes on from there.

That’s the government agents’ evidence on the subject.

Apparently the District Court didn’t believe that.

Roger P. Marquis:

No, sir.

I wouldn’t either.

How many horses are involved in the whole accident?

Roger P. Marquis:

There are 115 horses and 38 burros, I believe it is.

The — I won’t go into the details.

We think that — I think we’ve pretty well covered it that our view that the Utah abandoned horse law was properly applied under the Utah procedure and the purposes of the statute.

William O. Douglas:

Suppose the man in turning up his horses might (Inaudible)

Roger P. Marquis:

Well, I — I think so.

I think it depends on a degree of how close or how far they were in all said circumstances as that, I wouldn’t suppose.

That, of course, is simply one instance.

I — I would like to deal very briefly with this matter of the title.

Earl Warren:

Well, before you get to the — before you get to the title, the — the Federal Range Law requires the Government to give notice to the owners when it knows who the owners of the horses are, does it not?

Roger P. Marquis:

To the name — to named owners, when he knows that.

Earl Warren:

Yes.

That notice must be in writing.

Roger P. Marquis:

That’s right.

Earl Warren:

Did you give — did they give such notice?

Roger P. Marquis:

Not as to these — at this time, no, sir.

Of course, the — as to trespass, as the Government’s position that the — these eight families has no right on the land, on this range, that had been given earlier in connection with the Hosteen case which have been brought —

Earl Warren:

That had nothing to do with this procedure —

Roger P. Marquis:

Which had been —

Earl Warren:

— for destroying these animals.

Roger P. Marquis:

It had nothing to do with the procedure and our view is that that simply does not apply to the abandoned horse roundup procedure which has been used several times in Utah in the grazing districts and have been in the administrative view.

But that is the proper way to get rid of the animals.

Stanley Reed:

Who — who made the determination to use the abandoned horse plan?

Roger P. Marquis:

The —

Stanley Reed:

Does the record show that?

Roger P. Marquis:

Yes.

There’s some testimony here on the part of the operative decision that invoked it now, was by Mr. Kinneman who is the range manager in this area.

It was done with the knowledge —

Stanley Reed:

Is he the — the highest authority in the operation of this range?

Roger P. Marquis:

Well, in the — in the —

Stanley Reed:

In the area?

Roger P. Marquis:

Yes, in the particular area and it was done with knowledge of his superior as to enforcement of it’s — by — the overall operator is the immediate superior of Kinneman, the range manager of this district and the adjoining district.

His superior by name of Newman is the general area — of the grazing area had agreed to —

Stanley Reed:

Now, do — does the record show directions to proceed under this abandoned horse?

Roger P. Marquis:

It shows that they had invoked it in the past and that he agreed to invoke it this time.

Stanley Reed:

And that this — this man in charge of the roundup was instructed to proceed in that way?

Roger P. Marquis:

Was instructed to invoke the abandoned horse law of Utah in this grazing district.

Stanley Reed:

Are you going to discuss whether or not that creates a liability assuming that they improperly invoked it?

Roger P. Marquis:

Yes, I am.

I would like to come to that right now in response to Your Honors’ question.

Hugo L. Black:

Before you do that, may I ask you one question to follow up the horses that — that you were talking about, when the Chief asked you about whether they were —

Roger P. Marquis:

Yes.

Hugo L. Black:

— corralled, the Court found that they watched them and then picked them up?

What happened to those particular horses?

Roger P. Marquis:

They were corralled.

The — for approximately two weeks, I believe that some of those were sold to local operators the — generally speaking.

And of course, this process went on from September 19 until the following February.

It wasn’t an instantaneous process that —

Hugo L. Black:

Are these particular (Voice Overlap) —

Roger P. Marquis:

— we think of roundup.

Hugo L. Black:

I gather —

Roger P. Marquis:

These —

Hugo L. Black:

— from what you said afterwards, they — was — was some of them shot?

Roger P. Marquis:

I don’t believe any of this particular group was shot because of — the ones that were shot were on the range and being transported and primarily they were — that occurred in February.

I don’t believe any of this particular group were shot —

Hugo L. Black:

But they took these particular horses —

Roger P. Marquis:

— on the range.

Hugo L. Black:

— onto a corral, isn’t it?

Roger P. Marquis:

They were taken to a corral.

They stayed there for about two weeks.

Hugo L. Black:

Who kept them there?

Roger P. Marquis:

The government agents.

Hugo L. Black:

The government agents.

Roger P. Marquis:

In the corral.

Hugo L. Black:

And how — then what did they do with them?

Roger P. Marquis:

Then —

Hugo L. Black:

How did they dispose of them?

Roger P. Marquis:

I don’t remember these particular ones.

Some of them were sold.

A great many —

Hugo L. Black:

What was the authority —

Roger P. Marquis:

— of them —

Hugo L. Black:

— for selling?

Roger P. Marquis:

This abandoned horse law of Utah.

Hugo L. Black:

In other words, the government agents picked them up on the public lands.

Roger P. Marquis:

On the public lands.

Hugo L. Black:

Herd them to a corral.

Who ran that corral, the Government?

Roger P. Marquis:

Yes, I believe so.

Hugo L. Black:

The Government’s corral.

And then they sold them?

Were they all sold?

Roger P. Marquis:

No.

Some of them were sold of the group and I don’t — as I say, I don’t remember which precisely was done with these particular ones.

Hugo L. Black:

At what point did the Government officers begin to act under the state law?

Roger P. Marquis:

The entire procedure was under the state law.

Hugo L. Black:

You mean when they —

Roger P. Marquis:

That’s the — that’s the procedure for — under the abandoned horse law.

Hugo L. Black:

When they — when the government agents picked them up on the —

Roger P. Marquis:

They were going out —

Hugo L. Black:

— public land.

Roger P. Marquis:

— and conducting a roundup under —

Hugo L. Black:

As part of the State?

Roger P. Marquis:

— the abandoned — abandoned horse law.

That’s —

Hugo L. Black:

As part of the State?

Roger P. Marquis:

That’s right.

Hugo L. Black:

And they could have disposed of them under the federal law, could they then?

Roger P. Marquis:

No.

The federal law has no similar procedure.

The federal law is a trespass law.

Hugo L. Black:

I’m — I’m talking about that precise procedure, but did the federal law provide a method for taking care of horses like that when — that they caught?

Roger P. Marquis:

No, I don’t think the federal law provides for anything except trespass —

Hugo L. Black:

Well, were — but there were —

Roger P. Marquis:

— notices and then a trespass — then a lawsuit.

Hugo L. Black:

They were trespassers, right?

Roger P. Marquis:

Yes.

Hugo L. Black:

They were trespassers (Voice Overlap)

Roger P. Marquis:

The — the federal law has no expressed provision for impoundment of the animals.

Hugo L. Black:

But the federal law —

Roger P. Marquis:

The —

Hugo L. Black:

— does provide a remedy for the Government, under which the government officials can act disposing of horses seized precisely as these were.

Roger P. Marquis:

It does not provide for seizure —

Hugo L. Black:

But what — what is it —

Roger P. Marquis:

— or impoundment.

The federal law does not provide for seizure or impoundment except that the Secretary’s regulations do expressly provide that local impoundment law may be followed or an action brought in the Federal District Court.

Hugo L. Black:

Then it’s your position — it’s your position that no disposition could be made of these horses by the Government under the Taylor Grazing Act or any regulation passed pursuant to it unless they went through the state law?

Roger P. Marquis:

That the abandoned horse law, that that was the procedure to follow and that —

Hugo L. Black:

And that there was no other procedure that could be followed?

Roger P. Marquis:

As to these — as to animals or disposing of animals, that’s right.

There’s no federal procedure.

Hugo L. Black:

They couldn’t proceed any other — make any other procedure for seizing them at all or protecting the Government’s interest from those trespassing animals?

Roger P. Marquis:

There’s no — there’s no federal procedure at all except the lawsuit against the individual owner.

Hugo L. Black:

But it does —

Roger P. Marquis:

There is nothing for impoundment or seizure of the animals that are doing the trespassing.

Hugo L. Black:

Yes, I understand.

Roger P. Marquis:

Yes.

Felix Frankfurter:

Is that the part of the settling at the end of Article 1 of the (Inaudible)

Roger P. Marquis:

I think that, of course, the legislative history is sound.

My view is that —

Felix Frankfurter:

That — that sort —

Roger P. Marquis:

That that sort of thing was left to the states and it — has existent before the Taylor Grazing Act was passed.

And that that’s the sort of thing that was not intended —

Felix Frankfurter:

Under the Taylor Grazing —

Roger P. Marquis:

— to be —

Felix Frankfurter:

— Act, is there a general provision for the rules and regulations by the —

Roger P. Marquis:

Yes.

Felix Frankfurter:

— Grazing Act?

Roger P. Marquis:

Yes.

There is a usual provision — that the rule —

Felix Frankfurter:

I —

Roger P. Marquis:

— the Secretary may make rules and regulations to carry out the provisions of the Act.

Felix Frankfurter:

Is it — is it your view that that single authorization wouldn’t enable the department to make use of the regulation?

Roger P. Marquis:

Well, he has in his regulation what he has done and I think perfectly properly.

William O. Douglas:

I’m — I’m (Inaudible) does Section 161.11 which provides for the — that (a) provides the notice to the alleged violator, is that right?

Roger P. Marquis:

That’s right.

William O. Douglas:

Then 161.11 (b) provides for impoundment under local law if there has been found to be a violation here.

Roger P. Marquis:

That — that’s right.

That’s right.

William O. Douglas:

(Voice Overlap)

Roger P. Marquis:

The owner —

William O. Douglas:

You can under federal law round them up.

Roger P. Marquis:

It is the Secretary’s regulation.

William O. Douglas:

Pardon?

Roger P. Marquis:

The Secretary’s regulation refers to —

William O. Douglas:

Well, that’s the part —

Roger P. Marquis:

— local law.

William O. Douglas:

Yes.

Roger P. Marquis:

That’s right, that —

William O. Douglas:

But you said — you said under federal law you can’t do it.

Roger P. Marquis:

Well, as I say —

William O. Douglas:

Under this provision of 161.11, you’d end up impounding under local law if you follow the —

Roger P. Marquis:

That — that’s —

William O. Douglas:

— the local procedure.

Roger P. Marquis:

Well, that’s the point I was getting at.

The claim here is that that part of the statute, that part of the regulation is invalid because —

William O. Douglas:

But you didn’t proceed (Inaudible)

Roger P. Marquis:

— because federal law occupies the whole field.

My answer is that that regulation is valid in incorporating that local impoundment law as the procedure.

William O. Douglas:

But that invokes local law only at the end of a — of a federal procedure.

Roger P. Marquis:

That’s right.

William O. Douglas:

And here, this federal procedure wasn’t invoked at all.

Roger P. Marquis:

That’s right.

And my view is that that particular — it shows that the federal statute didn’t occupy the complete field.

That it’s still left operative, this particular abandoned horse rule.

Earl Warren:

Where do we find the provision for a written notice in the federal — federal code to the owners?

Roger P. Marquis:

It’s in — first of all, in this Taylor Grazing Act itself, and that’s on page 52 —

Earl Warren:

52.

Roger P. Marquis:

— of the petitioner’s appendix.

Earl Warren:

All right.

Roger P. Marquis:

The general provision, any local violation of the provisions of this Act or of such rules and regulations thereunder, after actual notice thereof shall be punishable by a fine of not more than $500.

That’s the statute.

Earl Warren:

Yes.

Roger P. Marquis:

Then on page 54, this is the Secretary’s regulations —

Earl Warren:

Yes.

Roger P. Marquis:

— which it —

Earl Warren:

Which is the law?

Roger P. Marquis:

Whenever it appears that there has been any willful violation, the range manager will cause the alleged violator and then the interest of landholder who has filed notice of his land to be served with a written notice which will set forth the act or acts constituting such violation and so forth.

Earl Warren:

All right.

Was there a violation here?

Roger P. Marquis:

There — as — yes, I would think there’s —

Earl Warren:

All right.

Roger P. Marquis:

— also a violation.

Earl Warren:

Was — was there a written notice?

Roger P. Marquis:

Not at this instance, no, sir.

Earl Warren:

Why?

Roger P. Marquis:

Because in our view, it’s impossible to give written notice of an abandoned horse situation.

And that in —

Felix Frankfurter:

Even when they’re branded and registered?

Roger P. Marquis:

Yes, because they’re running uncontrolled on the range.

Felix Frankfurter:

Yes.

But you had them — and they had a brand.

They were branded and the Court’s finding wouldn’t have (Inaudible) registered for that.

Roger P. Marquis:

Some of them were recorded.

Felix Frankfurter:

Well, some of them.

Roger P. Marquis:

That’s right.

Felix Frankfurter:

So why don’t that be (Voice Overlap) —

Roger P. Marquis:

That’s right.

The most we — the most we know is it simply belonged to one of the seven families of Indians.

They were Indian horses ranging over this vast area of 700,000 acres.

Felix Frankfurter:

Where?

Roger P. Marquis:

Some were in various places over.

Earl Warren:

Well, the Court found they — they only ranged from the corral to the truck of your government agents, isn’t it?

Roger P. Marquis:

Well, these were various spots located throughout these vast area of the — of this range.

That particular episode was in one place and the other instances were other areas throughout this vast area.

Harold Burton:

(Inaudible) —

Roger P. Marquis:

And I don’t know how you could —

Harold Burton:

— finding of the Court on page 36 with reference to these animals that came out of the corral at night and were rounded up by the government agents, doesn’t take it to another corral.

The Indians follow them and ask for their animals back.

And the agents proceeded to get some guns and load them in their presence and scare them away.

Isn’t it?

Isn’t that what happened?

Roger P. Marquis:

That’s right.

That was their story.

Harold Burton:

Did that happen?

Roger P. Marquis:

The version which we have is entirely different.

Harold Burton:

But the Court had evidence for this version.

Roger P. Marquis:

There was some evidence of that version.

That’s right.

Earl Warren:

Well, did you dispute this finding in the Court of Appeals?

Roger P. Marquis:

Not in terms of this direct finding.

No, sir.

Hugo L. Black:

Are you — are you in a position to dispute it here?

Roger P. Marquis:

We — our — our view is that the situation, the conduct of the case and in view of all the evidence.

The view taken is so founded throughout the case upon this notion that there was a conspiracy and that that is the ground on which so much evidence is rejected and put out of mind.

Was there a finding that there was a conspiracy?

Roger P. Marquis:

Throughout the case, there is this reference, the plot, the plan —

Who was (Inaudible)

Roger P. Marquis:

A, the federal officers, range officers in the area.

B, actors in this — in some of the episodes here were the Sheriff and Deputy Sheriff of San Juan County, Utah.

C, the Board of Commissioners of San Juan County, Utah, two of them testified and the Secretary of the Board testified and their testimony was rejected in part on the ground that it was all part of this conspiracy.

Next, the Advisory Board under the Taylor Grazing Act, which provides for a local advisory board to advise the local managers on operation and enforcement of the Taylor Grazing Act.

And finally, the white grazers who had permits to operate on this land and had been the plaintiffs in the state court circuit.

We say the answer — and that flows through the entire picture of the case that you can pick out and view one or the other of these matters because of the view of the — that that exist — that plot or scheme was existed.

And we say that is simply not so because of one primary fact.

Roger P. Marquis:

The assumption of all that matter of plot or conspiracy is that the federal officers and the local officers were attempting to oust these Indians from the area without giving them a chance to litigate their alleged rights.

Now, the fact is that I think the statute, it’s very unusual, Congress had said in creating the extension of the reservation right next door to this area and most of the Indians had moved into the Aneth Extension in 1933 when it was created.

Congress had gone to unusual lengths in saying that there shall not be lapping over on to adjacent area.

And it had said that con — it had provided contrary to usual law that no further allotments to lands to Indians on the public domain shall be made in San Juan County, Utah.

And it had provided that the Indian Homestead Act of 1884 which gives Indians a right to obtain homesteads without charge on public domain should not apply to San Juan County, Utah.

That it — very clearly limited the Indian, the Navajo Indians to the Aneth Extension and to the Navajo reservation, that that is the view that has been taken throughout by the Government, that that was expressly passed on by the local county court of San Juan County and then the state court — Supreme Court of San Juan County, Utah in a decision that is clearly correct and that the fallacy all the way through here is simply ignoring the existence of that fact.

Earl Warren:

Well, Mr. Marquis —

Roger P. Marquis:

But —

Earl Warren:

— do you contend that there is no evidence in the record from which the trial court could have found that there was any said scheme or plan or conspiracy, if you choose to call it such, on the part of these people or any of them?

Roger P. Marquis:

Yes, sir.

I — I certainly affirmably say there was — there is no evidence of the plot because it couldn’t have existed.

Earl Warren:

Why didn’t you raise that then in the Court of Appeals?

Roger P. Marquis:

We did precisely raise that.

And that’s our view which was — it so undercut all the findings that it was inappropriate to go into details.

I —

Felix Frankfurter:

Now, what — what is the challenge which brings out to sustain your answer that it did challenge that?

Roger P. Marquis:

I’m — at page 3 —

Felix Frankfurter:

(Voice Overlap)

Roger P. Marquis:

At page 3 of the record, about the middle of the page, number 14 as to conduct of trial and damages.

This is all under the heading, the Court — District Court erred.

“In finding, without basis in the evidence or reasonable inference from the evidence, that it was the motive of the agents and employees of the United States both alone and in concert with white livestock operators to harass and molest the Indians and to kill their animals so that they would be compelled to leave the range and could no longer assert a right to use the area in question.”

That question was precisely raised.

The Court of Appeals like — found it unnecessary to go into it because the basic findings, the basic facts are there.

We think it perfectly clear and up until now, I should say this, at page 84 of the record, the very beginning of the trial, I think it shows what’s happened.

And in their reply brief, the petitioners in this Court quote certain excerpts along with that part, but the very — those two sentences that they leave out where the Court is talking about alleged violation of its order and it’s going to issue a temporary restraining order, he’s talking about injunction.

Mr. Thomas, the Assistant United States Attorney, I wonder if it not might been — it might not be my duty at this time to call attention to the decision of the Supreme Court of Utah.

The agent had previously said, “Well, I thought I knew the status, I was relying on that case.”

Of course, the case had been decided by the Supreme Court of Utah.

It held that these Indians were trespassers.

The fact is that one of these episodes which is described in the finding, the episode of the handcuffing of the Indian women, the finding doesn’t mention it.

Roger P. Marquis:

The man who put the handcuffs on was the local county sheriff of San Juan County, Utah acting under the state impoundment law.

We say that that is typical of this whole case that the fact is that as Congress had made so clear and as the Supreme Court of Utah had held expressly dealing with these subjects that the Indians were not entitled, this group of six families were not entitled to graze upon this area that they were obliged, they should go to the reservation and remain there.

That the issuance of licenses on the Taylor Grazing Act to the white grazers was perfectly valid and that they had the rights in the area.

And up till now until yesterday in the argument where it was said the decision was wrong, throughout the record in this case in the District Court, throughout the briefs in this Court, there has never been any indication of what is the answer to that state court proceeding which had been the Supreme Court of Utah had decided this case and held the Indians had the right prior to any of these events in May of 1952 and these were events occurred along in the summer of 1952.

Isn’t the real nub of this controversy, whether or not the Utah Abandoned Horse Law applies and if it applies whether its provisions were followed?

Roger P. Marquis:

That’s right.

If it applies and its provisions were followed, then it doesn’t make any difference, does it, whether the motive was to oust these Indians?

Roger P. Marquis:

I don’t think so.

Now, what do you say to the reverse of that?

If the abandoned horse law does not apply or was not a problem, what’s your position then as far as liability is concerned?

Roger P. Marquis:

I — I think if the abandoned horse law does not apply, then we are faced with the Tort Claims problem.

Is it within — is A, let us say, the — I think there’s three situations.

A — a decision was that erroneous, that Utah law applied in all, whereas the Taylor Grazing Act, that it imply — apply to the entire field.

It seems to be perfectly clearly if that is the ground, it’s the wrong, the tort that occurred, that is within — is at that level, it’s a decision of what rule applies and is within the scope of the discretionary function, et cetera.

If it’s a matter of the details of application of the Utah law, if a mistake or wrong was committed there some place, it seems —

Felix Frankfurter:

(Inaudible) may I interrupt to say that the motive may be important on you’re A, namely, it’s one thing to make an honest mistake as to state law and another case, they have a purposeful desire to (Inaudible) the right that are outside of the case.

Roger P. Marquis:

I — that — that is the ground and also credibility is the ground on which it got into this case, I think, this title issue.

Stanley Reed:

Supposed it — suppose you assume that there was a conspiracy to oust the Indians and to get the conspiracy charge to oust the Indians to get the range.

Was that within the scope of the employment of the government officials?

Roger P. Marquis:

It certainly seems to me that you’re faced with two things then.

Either you’re outside of the scope of the government official which is not — certainly it’s not within the expectable range of employment to engage in a conspiracy of that sort.

And also, it seems to me you’re within the scope of the — the settled common law before the Tort Claims Act was ever passed, that there is no liability for performance of enforcement duty such as malicious prosecution and that sort of thing within the scope of office even though it’s charged to have been done maliciously against the plaintiff.

Felix Frankfurter:

Mr. Marquis, on this latter point and outside the scope, it seems to me rather vividly (Inaudible) to treat it at the outset, I mean, the facts that’s laid here.

Suppose if the situation is whether it is in Utah, these vast areas with a vast discretionary authority vested in the official, one doesn’t look very sharply and apply very strictly to the ordinary rules of intra or ultra vires of an agent’s authority.

Roger P. Marquis:

Well, I think there, what I was particularly addressing myself to was the matter of maliciousness —

Felix Frankfurter:

Yes.

I’m saying that (Voice Overlap) —

Roger P. Marquis:

— and conspiracy of an entire group.

Felix Frankfurter:

Well, maliciousness maybe excessive deed, wholly excessive deed or malicious deed.

Roger P. Marquis:

Well, I don’t understand that that under the settled tort law, similar to the intentional torts of assault and battery and so forth, that that’s within the scope of the tort claim’s liability.

Felix Frankfurter:

(Inaudible) in a vast area, vesting necessarily a large discretion that the agent found that spot.

I shouldn’t think of this outside the scope of authority.

Roger P. Marquis:

I’d — I failed to see if it’s by trial.

The problem is how is it within the scope of authority and yet still being a wrongful act?

I mean, rather than simply a mistake as to what their authority should be.

I think that’s our problem and I suggest that there — the dilemma I think is conversely illustrated by this injunction here where it’s said to be justified, and of course, you can’t justify it as an injunction against the United States, but is thought to be justified on the ground of an injunction against government officers which could only be if they were acting outside the scope of their duties.

In which case, they would — certainly it seems to me the outside of the scope of their duties for tort liability.

I thank you.

Earl Warren:

Mr. Littell.

Norman M. Littell:

If the Court — if the Court please.

I can’t pass wholly unchallenged the statement however immaterial in this case, bearing on its perspectives that Congress has sanctioned and insisted that these Indians move back to the reservation.

That simply isn’t true.

I ask you to bear in mind the finding of the Court that these Indians dwelt here peaceably and the record shows that they did up until Kinneman came in 1946 as range manager.

And in 1947, their permits were canceled.

The record shows they were cancelled because they were given seven months permits and they wouldn’t go to the reservation for five months.

There’s not a blade of grass on that reservation as if the Commissions of the District of Columbia ordered my wife and myself to move in the apartment of our next door neighbors.

They’re very nice people and I think we’re reasonably nice people, but it simply wouldn’t work.

There is no room.

That is the backdrop of drama behind this case in which the alleged plot, the proven plot or collaboration between the local ranchers, the county officials, taking in Kinneman and his crowd completely have moved in to insist that these people be driven back the reservation.

There is no power to order them to the reservation.

They were bona fide settlers, recognized conclusively as such by this very bureau itself, by the issuing — issuance of permits.

Those permits could never have been issued if they were not in some way entitled to be there.

That’s a long subject of title.

I know that and title is not in this case, but I couldn’t pass on — without notice of those facts.

And as you look at the record, you will notice the great difficulty that the Court had in getting the files, getting the records in.

At page 393, the Court asked who where the permittees here and there was great reluctance to give him the permittees and they never did get in.

They finally got a stipulated statement of facts as to what all the cattle were and the sheep in this district showing that from this case a pitifully small amount involved in the Indian issue.

And Mr. Black, agent for the Government, testified that out of an estimated 40,000, 30,000 belonged to one man, Charles Red.

The range of Sakezzie, when they cancelled his permit, was divided between Leland, Red and Velvet Red.

Those facts, even though the Court was unsuccessful in getting into the record the names of the permittees who were closing the vice on this little band of the last of the Mohicans in that area, still the fact show what was happening clearly and uncontrovertibly.

Norman M. Littell:

And who was in the front line trench when they conducted this operation.

The same ranchers, that Leland, Red went and got the gun.

The case can’t go off on that of course.

What do you — what do you say to this?

Assuming everything that you say is true that this was a malicious plot to destroy these animals to get the Indians out, what’s your theory then on which the Government under the Tort Claims Act would be liable?

Norman M. Littell:

The — the Government is liable, Your Honor, on the theory that this is a wrong.

There has to be proved negligence, of negligent or wrongful act within the scope of authority.

And it’s illustrated by the two questions I left yesterday, the truck driver acting within the scope of his authority, the male truck driver negligently hits a car, the Government is admittedly liable.

We have many cases on the negligence front.

Tom C. Clark:

Do you know they were acting under a conspiracy?

Norman M. Littell:

Sir?

Tom C. Clark:

Do you know if there was conspiracy?

They were acting under a conspiracy, were they not?

Norman M. Littell:

They were acting, Mr. Justice Clark, under specific instructions of their own bureau to proceed under the abandoned horse statute and they did so which means collaboration with the — with the sheriff, with the Advisory Committee of the stockman and all that.

There’s a straight line of authority, they’re acting within the scope of their authority under the Tort Claims Act.

Tom C. Clark:

(Inaudible) hear de novo, I suppose.

Norman M. Littell:

I beg your pardon?

Tom C. Clark:

This man that’s authorized, they didn’t know they were conspiring against the Indians, that they were conspiring to the —

Norman M. Littell:

Who — who didn’t know?

Tom C. Clark:

The man in the Government who’d authorized this.

Norman M. Littell:

They had —

Tom C. Clark:

(Voice Overlap)

Norman M. Littell:

They had repeatedly conducted these programs and presumably knew all about it.

It’s admitted in the record at page 64 by a sound stipulation of counsel that the acts were thoroughly authorized by the Government.

How much they knew behind the scenes within the bureau is one of the imponderables but it isn’t material.

They’ve admitted it in the record.

Tom C. Clark:

(Inaudible)

Could I turn the question, my question around?

Do you agree that if it is concluded that the abandoned horse law statute does apply, it’s not superseded by the Federal Grazing Act and that it was complied with, doesn’t that put you out of Court?

Norman M. Littell:

No, because we fall back on the part which I couldn’t argue and submit it on the brief.

Norman M. Littell:

It’s unconstitutional.

There was no notice.

The Mullane case —

Well —

Norman M. Littell:

The Mullane case, we fall back on other arguments but that’s the principal one.

But apart from that argument then, even though you accept the motive as being to oust the Indians, that wouldn’t get you a whole motive.

Norman M. Littell:

I think it’s a part and parcel of the tort, but I believe that we would fall back if this Court held that the proceedings were perfectly regular.

And the abandoned horse statute was properly applied which of course as I pointed out just yesterday, it was not.

It’s the other statute that should have been applied providing for notice like the federal regulation.

But if the abandoned horse statute was — was sustained in this Court under all of these facts, I would still fall back from the fact that there was no notice.

And that was an unconstitutional seizure and confiscation of property.

Hugo L. Black:

What do you do with the provision of the Act that says that the Tort Act says it shall not apply torts brought about by abusive process?

Norman M. Littell:

Your Honor, this is a liquid feel of which this Court is trustee for the country.

And that — in this case of this violence in the confiscation and destruction of personal property by the wrongful acts of these agents with the authority of their department, is certainly not within the language of that act.

You — to get that conclusion, you have to drop the word “wrongful” from the Tort Claims Act.

Hugo L. Black:

Supposed it’s done with the judgment of the Court under state law.

Norman M. Littell:

What —

Hugo L. Black:

Could you still sue under the Tort Claims Act?

Norman M. Littell:

It — it wouldn’t be wrongful.

I can’t — couldn’t conceive it being wrongful if there was an adjudication of the whole process.

You get into a whole new area of discussion at that point on the question of right — whether it be wrongful if it had been dully adjudicated in a court of competent jurisdiction.

That would raise an entirely different matter, I think.

Hugo L. Black:

You wouldn’t call this a prosecution where yours doesn’t go through a court.

Norman M. Littell:

I beg your — no.

Oh, no.

Hugo L. Black:

The action also provides — exempts torts that relate to malicious prosecution or abusive process.

Norman M. Littell:

No, this isn’t a — this isn’t a prosecution.

It’s just an overt taking of the property and the destruction of it.

Hugo L. Black:

You are saying, I suppose, that the mere fact that they did use the law to punish them in the perpetration of what is a tort under Utah law by these people, does not excuse them merely because the — the prosecution part of it might have been malicious or might have been wrong.

Norman M. Littell:

That’s right.

Norman M. Littell:

I think, Your Honor, that that concludes my time.

Earl Warren:

Oh, I see.

Norman M. Littell:

Thank you very much.