Hatahley v. United States

PETITIONER:Hatahley
RESPONDENT:United States
LOCATION:

DOCKET NO.: 231
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

ARGUED: Mar 26, 1956 / Mar 27, 1956
DECIDED: May 07, 1956

Facts of the case

Question

  • Oral Argument – March 27, 1956
  • Audio Transcription for Oral Argument – March 27, 1956 in Hatahley v. United States

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

    Earl Warren:

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

    Mr. Littell.

    Norman M. Littell:

    Mr. Chief Justice, if the Court please.

    This is a case arising under the Federal Tort Claims Act.

    It meets with the convenience of the Court.

    I think it can best be presented by a summary of the facts, which will necessarily involve a review of the Court proceedings in view of the rather extraordinary attack which the government counsel makes upon the prejudice of the trial judge, in fact, upon his integrity and then a statement of the issues, as we conceive them to be in our position in respect to those issues and lastly, our argument abandoning rather wide areas to the briefs of necessity.

    This case will determine whether in the face of the Tort Claims Act, the United States, acting through agents whose authority to act and perform the deeds complained of in this case are admitted — is admitted, may, with impunity, destroy the personal property of Indian wards of the United States Government.

    Now, wholly without reference for the moment to the legal context in which these facts stand, they reveal what to any reasonable mind must be recognized as a shocking depredation.

    These petitioners, members of some eight Navajo Indian families, lived outside the Navajo Reservation in southeastern Utah, north of the San Juan River where they have their hogans.

    They own some 154 horses and burros.

    That portion of the public domain on which these petitioners graze their small amount of livestock was also one to permit to white livestock men for about 38,000 cattle and sheep.

    I should say that these Navajos had lived there, the words of art, the customary expression is some time immemorial, I mean, that they had lived there and their fathers and grandfathers before them as far back as we — as we know.

    After the Taylor Grazing Act came into effect in 1934, these white stockmen, of course, under the usual pressures of the frontier situation, cast somewhat desires — desiring eyes upon the grazing area which for so long had been used by the Navajo Indians.

    But these Indians themselves were bona fide holders of an interest there, residents under the Taylor Grazing Act, bona fide residents under the Taylor Grazing Act, and were so recognized by the Bureau of Management up to 1947 for and up through that year, they held permits to graze stock in this area.

    The white stockmen maintained constant pressure to take — take the reins from the Indians.

    Although, at first, the Indians were given permits, as I say, they were canceled in 1947, various methods were used to remove the Indian from the range, but the purposes of this — for the purposes of this case, of course, we stick right to the record and these may be summarized as follows – In 1950, in February of 1950, the United States Government moved into the District Court of Utah and asked for an injunction against Hosteen Sakezzie, one of the defendants — one of the plaintiffs here, and (Inaudible) for the Navajos who inhabited that area, to compel their removal and removal of their stock.

    And the District Court held they had no power to give these Indians any land.

    He recognized their — what we call aboriginal position there.

    He had no power and that was an administrative problem for the Department of the Interior to find lands for them to go.

    But on appeal to the Court of Appeals, the Court of Appeals in August of 1951 reversed him and said, “It’s incumbent upon the Court to hear this case on the merits and make an order, irrespective of whether their lands, other lands, any lands to place these Indians upon.”

    Then, there was a third case and this was a case brought by the white stockmen themselves in a perhaps somewhat more comfortable, state court of Utah.

    And these men, including one of the principal witnesses here, (Inaudible), brought an action to the state court against a group of Navajos including some of the petitioners in this case.

    And that Court entered an injunction against the petitioners for grazing their stock on the public domain in this area.

    On appeal, the Supreme Court of Utah sustained that decision, and the right to an injunction against these Indian defendants on the theory and when the Treaty of 1868 was signed by the earlier Navajo chieftains who — or that portion of them who are in captivity at Port Sumner, they created the Navajo Reservation and the Navajos were required to return to it.

    Without going into that very tempting point, let me say in passing that we regard the decision of the Supreme Court of Utah to be wholly erroneous.

    The United States was not a part of that case.

    The United States was the landlord.

    The United States alone had the power to control the public lands.

    When the federal question does arise in the federal — federal court that’s within our opinion be differently decided and was decided in the Utah case.

    But so much in passing, they had an injunction from the state court, confirmed with the Supreme Court of the State of Utah.

    Norman M. Littell:

    Now, while the proceedings, which I first mentioned, sent back from the Court of Appeals for further proceedings in the District Court were pending in the federal court against these Indians.

    Kinnaman, the range manager of the Bureau of Land Management, took matters into his own hands and proceeded to eliminate the stock of the petitioners from the range.

    After the decision of the Supreme Court, and as I say, while this federal court case was still pending because it was not dismissed until June the 27th, 1953, he commenced the horse slaughter program.

    As I should point out presently, after the program was completed and these horses had been completely killed, United States came into Judge Ritter’s Court in Utah in — in the — in Salt Lake in –at — in Utah, advised the Court that the defendants had left.

    They had removed themselves to the reservation.

    There were no longer any trespassers.

    The case was moot and it could be dismissed.

    And on those grounds recited in his order of dismissal, the case was dismissed.

    They did not tell the Court that they had slaughtered the stock of these people.

    On this basis, Judge Ritter dismissed the case.

    Now, I want to tell you about the horse slaughter program and how it was done by Kinnaman and the other agents of Bureau of Land Management.

    The facts make it perfectly clear and I state here categorically with a firmed belief that you will go along with me before the — you finish consideration of this case.

    The facts make it perfectly clear that the object was to drive these people off the range.

    All these men, (Inaudible), the stockmen, every person that knows that local environment, knows these Indians cannot live without these animals.

    The Navajo horses are an integral part of the Navajo way of life.

    It’s a part of their religion.

    It’s a part of their death ceremonial.

    They used the horses for every conceivable purpose, their means of carrying wood and water and provisions from distances which we city people would find quite remote for our shopping.

    In times of great need and crisis, they’ve even used them as a reserve food supply.

    They’re used in tending the Navajo sheep, in carrying the sick and aged and in carrying the children and so too are the burros.

    Both of which, the horses and the burros know Navajo demands and are trained, as I should point out from our particular purposes later or the Navajo purposes.

    For these and other reasons, the Bureau of Land Management agents knew that the program would remove the horses and the burros that ultimately get the Indian.

    Now, they proceeded under the Utah — under the Utah law, the — called the abandoned horse statute.

    Actually, there are two statutes in Utah bearing upon this subject.

    The abandoned horse statute, the — the first statute is the — is the one that calls — comes under the agricultural provisions of the — of the Utah law and deals with the impoundment — and deals with impoundment.

    Without going into this at any great length at this moment, the language becomes important in our argument, but I — I point out that there are two separate titles and two separate provisions of the Utah law, one, the abandoned horse statute, which is a nuisance statute permitting peremptory rounding up and slaughter with only public — publication of notice and posting notes.

    And the other is a statute which requires a reasonable search to ascertain the owners after which the animals were impounded and can be sold or otherwise disposed of.

    This revoked the — the abandoned horse statute is really a wild — a wild horse statute to rid the range of animals which may be or are a menace, although the legislative history is barren as strictly the case in — in some of these early proceedings or these proceedings in the western states.

    Stanley Reed:

    Do we — do we have here any problem as to the right of the Indian that graze their horses on this land?

    Or is it merely the method by which they were — they can offer?

    Norman M. Littell:

    It’s the latter.

    It’s irrespective of the right of the Indians.

    Stanley Reed:

    Oh, we — we have nothing to — we’ve brought nothing here in relating to the rights of grazing.

    Norman M. Littell:

    Counsel for the Government relies heavily upon the fact that these people are trespassers as he calls them.

    And therefore, I must lay this foundation, Your Honor, to show what their true status is even though we contend, I don’t care what their legal status is.

    The Government cannot destroy the personal property of these citizens in this manner or in any manner, without standing — without standing the loss and it can’t — it shouldn’t do it anyway.

    It’s an — it’s the unmoral, unconscionable act that I think that that point that Your Honor raises will inevitably inject itself into the case.

    I mean, counsel makes much of it.

    Stanley Reed:

    Well, I — I’m just trying to understand whether you’re taking the position that the — the Indians have the right to graze their horses here.

    Norman M. Littell:

    I do indeed.

    Earl Warren:

    That — that is not essential to your case.

    Norman M. Littell:

    It is not essential to my case.

    It’s not essential to my case.

    It’s the ultimate fact, however, that — that’s — it looks behind the scene of this — of this case.

    Stanley Reed:

    And do we have to decide that question?

    Norman M. Littell:

    No, you do not have to decide.

    Title is not an issue in this Tort Claims case.

    It’s quite clear.

    Counsel makes much of it by way of justification of what was done here, and we come back to these facts with the — of course, the animals were killed.

    They have to bring them under the nuisance statute.

    They have to bring them under the abandoned horse statute to get rid of them.

    It all points up to what I said in the first instance that they’re interested in getting the Indians off the range and not the horses.

    They’re seeking to drive the Indians off.

    Now, by which steps did they do this as quickly as possible?

    They did not proceed under the impoundment laws.

    They proceeded under the nuisance laws.

    And there was a very little procedure at that.

    We quickly summarize at this.

    That is a proceeding whereby the Board of County Commissioners inaugurates an impounding or a — a roundup of these — of these horses and burros and other animals.

    It takes the resolution of course of the Board of Directors.

    Norman M. Littell:

    There are explicit instructions of the law about how it is to be done.

    Kinnaman went to the meeting of July the 1st.

    It was — there’s absolutely nothing in the minutes of July the 1st about any resolution to have a roundup.

    The next thing we know — and no resolution was adapted.

    We — the next thing we know is the publication notice of the roundup, July the 10th.

    It isn’t until September the 2nd, which is again, a regular meeting of the Board in every Tuesday or first Tuesday of every month that Kinnaman comes in and they adopt retroactively or nunc pro tunc, an attempt to adopt nunc pro tunc, a resolution authorizing this — this proceeding.

    Now, actually, it develops that Kinnaman had gone around on July the 9th with a resolution and got each commissioner to personally sign it.

    But under the well-established rules, and certainly, well established in the case of Utah, that, of course, is not a board meeting.

    There was no special meeting on the July the 9th.

    There was no meeting of any kind on July the 9th.

    They signed the resolution.

    And it wasn’t — it doesn’t appear in the minutes until — actually, the meeting of September the 2nd.

    They published the notices and the notices were in English, and of course, the Navajos can’t read English.

    As a matter of fact, they couldn’t even be published in Navajo because Navajo is not a written language.

    And as the — as the District Court quite properly said, “It might have been — it might as well have been posted out in the safe (Inaudible).”

    Now, despite this makeshift procedure and the fact that they were proceeding under the nuisance statute, which contemplated the strong remedy of destruction for the animals gathered and not under the Impoundment Act, the federal agents went forward with the horse slaughter program, commencing about September the 20th.

    Now, I have told — I wish to mention of course you surely can’t — both of the fact that the federal rangers are purporting to act in accordance with the state law, but this is a federal grazing district under the Taylor Grazing Act.

    It is governed by the federal law and the federal regulations.

    And there’s the federal regulation right on this precise point.

    The regulation specified that in case of a violation, notice in the writing should be given to the violator in person or by registered mail.

    We deal with this later but we want the Court to know now that no such notice as required by the federal regulations was any time served, nor was it mailed by a registered mail or in any other matter.

    The — the slaughter program, which I wish to bring your attention, was conducted in a most brutal fashion.

    The government agents knew that these horses belonged to the petitioners.

    (Inaudible) to the Bureau of Land Management, had lived in this area, in this range for some 30 years and knew these Indians personally.

    Perhaps, they didn’t know that the particular horse belonged to a particular Indian that they certainly knew they were Indian horses and that was the object of this hunt.

    Before going — four-knowledge of these facts, they went on the range, rounded up with the horses, bullwhip to whip them into trucks and corrals, and in some instance, killing the horses on the range.

    Earl Warren:

    The horses were branded?

    Norman M. Littell:

    Sir?

    Earl Warren:

    The horses were branded?

    Norman M. Littell:

    The horses, according to the testimony, were branded, Your Honor.

    Norman M. Littell:

    They were hauled to corrals where they were held for short periods of time for shipping to a glue factory.

    Four or five of the horses were so terrified after being whipped into corrals and trucks that they’ve died while jammed into a truck in this terrifying condition, some were shot.

    The truck arrived at Monticello with living and dead horses massed together and in a fight — and in a frightful disorder, a horse’s leg had — had inconveniently jammed through the panel or rigging of the truck and couldn’t be gotten out.

    It is not clear how long that poor, feared, frenzied animal endured the tortures of that rough ride over the — over the Montezuma Creek terrain.

    But in any event, when they got to Monticello, they couldn’t get him out and I turn to the brief, grizzly description of the record at this point because counsel has made a — point in his brief of an alleged error by the District Court.

    It said, “Well, when we got to Monticello, four of them were down, and these — or these five were down.

    One of them had his foot through the rigging, and we couldn’t possibly get him out and he was just about dead anyhow, so we had to shoot him and shoot his foot off to get him out of the trucks.

    There were two already dead that had been trampled into hauling them in and another one so near dead, they killed him.

    And later, another got sick and was unable to eat or drink and we hauled it out and shot it about two days later.”

    That’s at page 301 of the record.

    The Government has taken occasion to point out this particular excerpt because we said — we said in the findings and we said in our brief perpetuating the statement that the leg of the horse was sawed off or plainly, the record shows that the record — that the leg of the horse was shot off.

    Now, I’m not a particularly — particularly expert at this type of amputation but reason told me that they couldn’t very well shoot this horse’s leg off with a the right foot be pretty hard to do and the men went on with shotguns or machine guns, so I’ve gotten in touch with the reporter to verify that.

    And the reporter did make an error.

    The horse’s leg for counsel’s information was sawed off and not shot off.

    And I submit the affidavit of the court reporter for the record to clarify that unfortunate mistake in the record.

    If counsel can get any — any relief, whatever out of that error in the record, he’s welcome to it, but I do point out that it’s the only place he’s been able to point out a real error in the findings of the District Court and it turns out not to be an error.

    The Court’s memory was right.

    The leg was sawed off and wasn’t shot off.

    And no other errors of any significance have been — have been brought to our attention at all.

    There are other instances of brutality in connection with this roundup.

    The record reveals that the grim situation where we find federal agents participating in the handcuffing of four Indian women, the skin of their wrist were broken and they were bleeding.

    They took their sheep.

    They took the sheep away from them.

    We do not know what terrifying conversation took place among these women but the federal agents and the white stockmen who had them in hand had one purpose and that was to frighten them off the range.

    And before these people could get their sheep back, they had to pay the white stockman, Leland Redd in that particular instance, $488, a completely unadjudicated sum of course.

    Leland Redd said, “$480,” and the sheriff said, “pay it” and they dug down in what savings they had and paid it to get the stocks back.

    In other instance, (Inaudible) approached the mother of two children, that’s Jim Joe’s daughter and advised her that she must leave the country and get back to the reservation.

    She was one of the old residents there too, and she was — and if she was still there in seven days, he’d arrest her and — and she’d had to leave the country or she’d be put in jail.

    She left.

    On the redemption of the horses, the statute of course allows the redemption of horses even with a roundup of that sort.

    Norman M. Littell:

    The horses were to be kept in corral not too far distant from the general area where the owners resided in order that the redemption might be feasible.

    In this case, they were all in a considerable distance.

    And a number of these petitioners trail the horses.

    It’s a singularly undignified fact that the great United States Government to use the western expression actually moonlighted those horses.

    It had (Inaudible) waiting out on a mesa behind Sakezzie’s hogan until the horses were turned out and the Indians have gone to bed and when they drifted far enough away from their corral, the — the Bureau of Land Management agents got them, and got them into their trucks and hauled them away.

    And the Indians, the modern Indians, being able to follow the tire track and a boot track followed the well-known (Inaudible) tracks and they went to the corral where these horses were — were corralled in hopes of getting them back.

    Lee Redd, who, with Delbert Redd was a stockman who shared the Sakezzie great range when they cancelled his permit in 1947, Delbert Redd and Leland Redd split it.

    And Leland Redd got the reservoir, which is a priceless thing, which the Navajos have built.

    Leland Redd went off and brought some men back with guns and the men were seen loading and unloading their guns to let the Indians know that they had guns in their hands.

    If they wanted trouble, they’d have trouble.

    One of the women frightened that their men would be killed and said, “We better get out of here,” and they left.

    We mentioned this in contrast to the delicate way in which the federal agents dealt with the horses of the white man.

    They got theirs back.

    There were three to four — five — five of them, I believe, rounded up and they got them back without difficulty for $2.50 a head, delivered back to their pasture and back to their corral.

    But when the Indians asked for theirs, $60 a head, which of course was impossible because he didn’t have them.

    As a result of this action, on the part of the federal agents, some 116 horses and 38 burros were slaughtered or destroyed or taken to the glue factory in Colbo where they were sold for two or three cents a pound.

    The $1700 received for them.

    It was given to the Advisory Committee under the — under the Taylor Grazing Act, the local Advisory Committee of stockmen who were the ones particularly inert into driving these Indians out.

    It didn’t go to the Government nor did it come back to the Indians.

    Even the reservoir built by Sakezzie has been taken over.

    Now, enough for the horse program, but what happened to trial.

    We have to mention this because of the attack which has been launched on the District Court.

    Suit was brought seeking damages.

    This was the first — the Ritter — Judge Ritter had heard the matter since this other case had been dismissed.

    Suit was brought for damages by these people for local attorneys.

    Why acts committed by federal agents acting within the scope of their authority in that — in that area?

    The authority was admitted at the trial.

    The United States has so pointedly and shockingly attacked the trial judge that we have to comment upon the — we have to comment upon the proceedings of trial for the —

    Harold Burton:

    Were there any exceptions taken to the findings of the trial court?

    Norman M. Littell:

    No.

    Harold Burton:

    The Court just browsed around and made his observations on what the evidence shows, isn’t that — I mean, the Court of Appeals, they didn’t accept the findings of the – of the —

    Norman M. Littell:

    No.

    Harold Burton:

    — District Court.

    They just browsed around —

    Norman M. Littell:

    That’s right.

    Harold Burton:

    — (Voice Overlap) and made some observations of their own on there.

    Norman M. Littell:

    That’s right.

    It’s well settled and it’s specially established for the law of — it’s perfectly clear in the law of Utah that the findings are — are conclusive as long as there is evidence to sustain them.

    In — in the connection with this rather shocking assault by the Government, it’s necessary to point out that this trial proceeded in a very orderly way up to the time when — when Judge Ritter found the first witness, Kinnaman, a very evasive and elusive witness and discovered that right at the time of the trial and even while the other case was still pending in the Court, the one that he dismissed, June 27th 1953.

    Even while that case was still pending, asking for an injunction, Kinnaman have gone out and done the acts which I’ve told you about.

    These actions were done in 1952, commencing with the — with the slaughter program, the roundup program of September the 20th, 1952.

    So, everything I’ve told you was done while that original injunction case was still pending.

    And then, the Government went back to Ritter and said, “The people have left.

    There are no more trespassers.

    They’ve gone away.

    We can dismiss that the question is moot,” and he dismissed that case on the grounds that was moot.

    So, when we come back into this Court with the — with the Tort Claims Act for damages for the destruction of that property of the Indians, I think any judge would be reasonably concerned about it.

    And when Kinnaman admitted and he has repeatedly admitted, I won’t get to the record and take the time, but in our reply brief, we set forth immediately at the further reply brief the admissions of Kinnaman that — that he does destroying the stock right — while he was talking to the judge, the program was going on.

    Now, these were reluctant witnesses.

    Of course, the judge was indignant.

    Of course, he became curious with this type of proceeding.

    In a matter of fact, I was never aware until I read counsel’s brief that — that there was any tradition that a man — that an appointment to the federal bench meant that a man was sterilized in his capacity for moral indignation.

    It seems to be implied that — that he shouldn’t have had these feelings but they were outrageous facts which he confronted in this case.

    Their answer is not an attack upon the findings.

    They have not successfully launched an attack upon the findings.

    They’ve attacked the judge.

    Is that a way to rehabilitate a new technique for rehabilitating evasive and — and unsatisfactory witnesses whom the judge does not believe and who are in absolute contempt to Court in the conduct they were following?

    Perhaps so.

    Now, in respect to damages, on behalf of the petitioners, the evidence told — showed unique value of these horses and burro.

    Let us skip lightly over it.

    Norman M. Littell:

    I’ve touched on some of the main factors.

    Without these horses, the Navajos can’t live.

    There was a difference of opinion as to value.

    The white men said they were worth two or three cents a pound, the glue factory of what they got, what they got for them.

    They weren’t white men’s horses.

    They were Indian horses, of great, unique value to the Indian civilization, used for every conceivable purpose, in the transportation of wood from distances that you — that are unbelievable to us, to keep those hogans through those bitterly cold Utah winters.

    All those things that the horses and the burros did for the Indians that go into the question of testimony.

    We must keep in mind that the testimony shows that they — they weren’t ordinary in any respect.

    They were bred for the country and trained for the country.

    The Navajos trained them carefully.

    They could go for two or three days without water, the ordinary horse can’t.

    The ordinary horse gets lame on the hard plains of — of the — of the prairie that we are talking about, the country that we’re in now.

    You can’t use them and these horses are specially trained for those purposes.

    They obey the Navajos’ command and they can be turned loose on the range and always come home.

    These attributes, the Navajos’ horses are absolutely unique.

    The — the burros too had some of these distinguishing qualities.

    And so, the Court entered a judgment of $100,000.

    There is agreement in the record as to number of horses and burros owned by each of the petitioners, not stipulated.

    And the Government objects to the $100,000 as excessive according to the white man’s evaluation of the horses.

    We have established and I submit it on the briefs without a discussion, overwhelming authority to defect as to the allowance of damages for actual and consequential damages are sustained by the Utah decisions.

    And if there is any evidence to support judgment, the judgment of the trial court is sustained and not reversed, whether there’s any evidence whatever they stand.

    But on this $100,000, we are certainly dealing with trivia.

    May I – may I suggest that it’s almost impossible to embrace the impacts of this incident on this Indian order.

    How can a white man understand a man like Sakezzie, a magnificent, big Navajo, kindly, patient, understanding, a leader of his people, when he says, “I cried” or an Indian to cry for Sakezzie —

    Harold Burton:

    What — what is the damage?

    What is the — when you conceive to be the measure of damage —

    Norman M. Littell:

    Consequent —

    Harold Burton:

    — if there was liability?

    Norman M. Littell:

    I conceive the measure of damages to be what the district judge has found them to be, Your Honor.

    Their horses had a unique value.

    Norman M. Littell:

    There were consequential damages that he —

    Harold Burton:

    The Unique value where — is there a market for Indian horses?

    Norman M. Littell:

    No, among the Indians.

    Harold Burton:

    There isn’t even an Indian market, is there?

    Norman M. Littell:

    There is an Indian market where there are horses —

    Harold Burton:

    (Voice Overlap) they just trade, do they?

    Norman M. Littell:

    Counsel will — counsel will tell you and he said it in his brief that they — even Sakezzie, one of the leaders that I’m referring to, mentioned that some of these horses would sell for $200 to $300 among the Indians.

    They wouldn’t — there wasn’t a big enough sum to buy them now that they’re gone.

    I mean, when there’s a little traffic among the Indians, yes, but there isn’t a big enough sum to replace them with.

    These — these people are stricken without their method of transportation.

    Harold Burton:

    Is the Government liable to that?

    Norman M. Littell:

    I beg your pardon?

    Harold Burton:

    Is the Government liable in damages for that?

    Norman M. Littell:

    Just follow the — just follow the — the laws of the State of Utah on the measure of damages, and the — the Court has entered the findings on that basis.

    Harold Burton:

    There are some finding here, some damage given for pain and suffering.

    Norman M. Littell:

    Given — it’s given even for fright under the laws of Utah in cases which we’ve cited.

    It’s given even for freight.

    And that is — that is a controlling law of the case.

    Felix Frankfurter:

    Irreparable when translated into dollars and cents, wasn’t it?

    Norman M. Littell:

    It can’t but it’s the only measure we have, Your Honor.

    Felix Frankfurter:

    It must be because —

    Norman M. Littell:

    Yes, there’s just isn’t anything else.

    Felix Frankfurter:

    You can’t replace any time.

    Norman M. Littell:

    You can’t.

    Felix Frankfurter:

    An installation, isn’t it?

    Norman M. Littell:

    Yes, it’s how frequently we come into that measurement in the law, do we not, where you have nothing else to go on?

    There are irreplaceable objects without a shadow of doubt, priceless in value.

    Well, the Court has heard it and he said, “They’re worth a $100,000.”

    That’s the least and little enough.

    Well, no wonder in view of these facts that the Court entered an injunction.

    Norman M. Littell:

    He had been taken into dismissing the fire suit in which he had —

    Harold Burton:

    Even though he hadn’t asked for an injunction.

    Norman M. Littell:

    I beg your pardon?

    Harold Burton:

    Even though he hadn’t asked for an injunction.

    Norman M. Littell:

    Yes, Your Honor, we admit a slight measure of error here, an injunction against the United States.

    We are well enough informed to know that you can’t enjoin the United States.

    But under the harrowing circumstances of this case, he could enjoin the officers in our opinion, and we submit that the injunction stands for that purpose.

    Are there any defendants or any of the individual officers, defendants in this case?

    Norman M. Littell:

    Yes.

    Oh — oh, no, I beg your pardon.

    How could you enjoin them then?

    Norman M. Littell:

    Well, he used the language (Inaudible)

    I’m sure he used the – the language in all officers of the United States.

    I’m just looking – the assistant is just looking up — the Associate of Justice is just looking up that order, Your Honor, but I’m sure he used that language.

    It’s a little on the general side.

    (Inaudible)

    Norman M. Littell:

    No, they weren’t parties.

    I — I understood that I answered that, Your Honor.

    They weren’t not – they were not parties.

    That’s quite right.

    And perhaps it’s not – the order appears at page 48.

    Perhaps it’s not of the record.

    Perhaps it’s not worth our going into it.

    It’s the judgment, the restraining order of January the 18th 1954.

    (Inaudible)

    Norman M. Littell:

    Yes, counsel points out — reminds me that at page 84, it was entered sua sponte when he did found out they’re destroying the horses to bring — to bring the powers of — of the Court to bear on the situation which was completely out of hand.

    And actually, he was capable of contempt, susceptible to contempt proceedings of the subject matter of the — of the proceeding was being destroyed even while the witness, Kinneman, was testifying in Court.

    So it’s an order of issue in the course of the trial to the — to the officers.

    The Court of Appeals for the Tenth Circuit can — consisting of judges who are not from the State of Utah have not heard the witnesses and failed to evaluate the reason for Judge Ritter’s indignation, held that the Utah abandoned horse statute, the nuisance statute applied and controlled and –the – it reversed the — the judge below and the judgment for damages and this Court granted certiorari.

    Now, the issues as we see them, I’m coming to that point very briefly.

    Norman M. Littell:

    First, if the Taylor Grazing Act so occupied the field as to leave any room for the operation of the Utah wild or abandoned horse —

    (Inaudible)

    Norman M. Littell:

    Abandoned horse statute.

    That is the nuisance law of Utah.

    It’s our position of course that in view of the conflict between the State and the federal laws, one, that there was no room for the operation of the Utah law.

    Two, that in view of the Taylor Grazing Act regulations, that this was not the Utah statute which the agents of the United States were empowered to invoke.

    Give me the 54, page 54.

    Well, I’ll come to that in just a moment, finishing the issues — just one second while I finish this issue.

    If Your Honor agrees with us that the Utah Act was not enforced because of the preeminence of the Taylor Grazing Act, then a large area of the case in disposed of immediate injure left to the tort question.

    However, if the Utah abandoned horse statute was applicable or could possibly be invoked, if you should so hold, which we do not think you will, or there was any compliance with its provisions and of course we hold there was no compliance with its provisions, it was a garbled mess in an attempt to hold — get a resolution for that — for that slaughter and forfeiture program.

    Anything, any act in the nature, forfeiture is strictly construed and it was not complied with.

    Sherman Minton:

    Is it your contention that the Government handed the federal — on the Taylor Grazing Act so completely occupied the field by providing for a punishment of trespassers, that that’s the proceeding that the Government should have followed rather than do an attempt and to proceed under the Utah Act?

    Norman M. Littell:

    Precisely, Your Honor, precisely, and the difference between them is fundamental.

    The Taylor Grazing Act required notice, the service of notice.

    All through this case, they intend to preserve an atmosphere we don’t know who these horses belong to.

    They knew all the time who those horses belong to and (Inaudible) admitted, he named them and he lived without — with those people for 30 years and knew them all.

    And besides, they are concluded on that point by the fact that they had their names and addresses and their files in the — in the — in the permits which had been issued to these people up to 1947.

    To say they didn’t know was preposterous, but they have to say they didn’t know to make the abandoned horse statute stick.

    If they know who they are, they — and go under the other Act, they’ve got to — they’ve got to serve notice, they’re in a different category.

    Now, continuing with the issues to get the issues clearly —

    Stanley Reed:

    I thought these people have been denied the permits.

    Norman M. Littell:

    After 1947.

    Stanley Reed:

    Is that the condition we’re dealing with?

    Norman M. Littell:

    That’s the condition we’re dealing with but it’s a matter —

    Stanley Reed:

    Not to permit those.

    Norman M. Littell:

    No, that’s — your —

    Stanley Reed:

    These are alleged trespassers.

    Norman M. Littell:

    Alleged trespassers, alleged trespassers.

    William O. Douglas:

    What was the — what does the Taylor Grazing Act provide?

    What — what notice does the —

    Norman M. Littell:

    Actual notice.

    Stanley Reed:

    — Taylor Grazing Act provide for alleged violator?

    Norman M. Littell:

    Actual notice, actual written notice.

    Hand them one copy.

    The part that provides on page 54 of our brief, the blue copy, Procedure for Enforcement, Service of Notice is in the brief, whenever it appears there had been a willful violation, many provision of the Act, for the Federal Range Code for Grazing Districts, the range manager will cause the alleged violator and so forth and so forth to be served with a written notice.

    Now, drop down to the regulations, that these are the regulations.

    I beg your pardon, those are the regulations, the — the actual statute is — is — it appears on the preceding page.

    On —

    (Inaudible)

    Norman M. Littell:

    It’s the last sentence of — of —

    (Inaudible)

    Norman M. Littell:

    Yes.

    Now, drop down to the next paragraph, B, unlawful grazing on the federal range and movement of livestock, impoundment, impoundment after he served notice.

    Whenever the charge consists of unlawful grazing on the federal range, the notice served an alleged violator and on any interested lien holder and so forth will order the alleged violator to remove the stock or cause them to be removed immediately or within reasonable — such reasonable times —

    Stanley Reed:

    Or such a type of law does incorporate state law in this.

    Norman M. Littell:

    I’m — I’m just coming up with the next line, Mr. Justice, but I want to comment on that.

    I — you’re — you’re just one step ahead of me.

    If he fails to comply with a notice, the range manager may be — may proceed to exercise the proprietary right of the United States in the Federal range under local impoundment law and procedure if possible.

    This is not an impoundment law, this is a nuisance statute, this is a forfeiture and destruction statute.

    The impoundment law is the other law which I have under the Agricultural Section of the Utah Act, Chapter 12, Title 1 — Volume 1, Utah Code for 1953, Chapter 12.

    Stanley Reed:

    Is that in your brief?

    Norman M. Littell:

    I beg your pardon?

    Stanley Reed:

    Is that in your brief?

    Norman M. Littell:

    Yes, it’s at page — it’s not as fully discussed in the brief as I — I have left some of this area for oral argument.

    It’s on page 23.

    Both statutes are cited at 23.

    And I call your attention only briefly to this, that the Federal Grazing Act refer to an impounding law, a local impounding act and procedure.

    The only impounding act you can find in the Utah books is the one I’m calling your attention which they did not use.

    And why didn’t they use it?

    Because only after reasonable efforts to ascertain the owners can they use that law and they knew who the owners were and they didn’t want the reasonable efforts and they didn’t want to advertise for sale and let these people bid back their own stock, they wanted to destroy it.

    Norman M. Littell:

    And they told that has chose the most brutal statute of the two, one which under their own regulations, they were not authorized to take.

    There is not one word of abandonment — of — of a — impound — and regard to impounding in the nuisance law, not a word.

    Impounding in this other Act that I’ve just referred to appears several times and the constable is the – is the impounding officer.

    And when they impound the — the stock, they keep it for so many days and they published notice impounding, impounding, impounding.

    It’s clearly implicit that that’s what the federal grazing regulations meant, because that is consistent with the federal law.

    This nuisance statute of destruction of horses without notice, with no chance to redeem them, no actual real chance to redeem them as far as the Indians were concerned, is certainly not in accordance with the Taylor Grazing Act.

    Stanley Reed:

    Well, that — that means they were acting completely outside the law and beyond their authority.

    Norman M. Littell:

    They were not acting outside of the law because the — the Department had then authorized them to do it and took position.

    This wasn’t in the law.

    They defended by saying this was a practice —

    Stanley Reed:

    No, I mean — I mean, when they — when they were slaughtering these animals, they were acting outside the law.

    Norman M. Littell:

    No, they were acting — they were acting under the abandoned horse statute which that Department, the Bureau of Land Management said, “This is in accordance with our practice.

    We’re going to use this.

    They’ve done it before.”

    And —

    Stanley Reed:

    But — but you say they had no legal right to use that.

    Norman M. Littell:

    In my opinion, they have no legal right to use it under their own Taylor Grazing Act instructions.

    For those regulations, say, an impounding law, this is not an impounding law.

    Stanley Reed:

    Well then — then they did act without any legal authority from your point of view.

    Norman M. Littell:

    They — well, in that sense, Your Honor, yes, but they were authorized by their own department to do it.

    They weren’t employees that were acting out in the blue without authority.

    They had a clear authority and the authority is admitted in this record by counsel for the Government and the Bureau of Land Management Officials.

    Stanley Reed:

    Mistake in interpretation of the law.

    Norman M. Littell:

    That might be it.

    Earl Warren:

    Your position is if they acted tortuously in — in tearing this law into effect.

    They did indeed.

    Is that right?

    Norman M. Littell:

    They did indeed, Your Honor.

    Well, briefly on the issues, my time is running hard —

    Felix Frankfurter:

    What do you say to Justice Reed’s suggestion that this gets down to — if you — if you mind your own analysis, (Inaudible) the state law?

    Norman M. Littell:

    Your Honor, I think it was the most deliberate mistake that was ever made.

    The other law is completely unsatisfactory for their purposes.

    The —

    Felix Frankfurter:

    (Inaudible) and that is the law opposing for a different rule there if does (Inaudible) as well as — as you indicate, then how can you say they were acting as if it were pretrials as far as there are no — if this was — really, as well as it could be then they were on (Inaudible) of their own.

    Norman M. Littell:

    Well —

    Felix Frankfurter:

    And if they weren’t on (Inaudible) out of their own, then they were mistaking as to their legal — illegal law.

    Norman M. Littell:

    Oh, yes.

    Felix Frankfurter:

    I’m sure that the third — third hole out of the — to get out of those two holes, well, I get into asserting on the polarities one or the other last two holes.

    Norman M. Littell:

    We face that.

    We face that without a doubt but the entire department was behind them.

    They had their authority from the Bureau of Land Management to act and they assumed that this Act or wished to assume that this Act was available to them, because it amount — it allowed for the immediate dispatch of these horses, the other Act would not.

    There will be a chance to redeem them and not by any $60 or other payment but simply by the refunding the cost of — of the advertising and the cost of impounding in keeping the horses, that the Impounding statute.

    Yes, all right.

    Skipping the other issues, we — I’d like to mention in passing that even assuming compliance with the statute and assuming it is illegal, revisions of statutes were unconstitutional in view of the inadequate notice under — under the named case of this decision, of this Court.

    Then, we’d come to the Government’s issue which is perhaps the main issue of this case undoubtedly.

    Does the Federal Tort Claims Act cover authorize trespass or much of these Indians or must these Indians go uncompensated for these depredations?

    The Government falls back to raise query of the tort issue in this case.

    The Government falls back upon the doctrine that the trespassers committed by the government agents within the scope of their authority are not compensable under the Tort Claims Act.

    The operative words in the Act are negligence and negligent and wrongful.

    This Court had worked those — worked over those words so often that I can add little light to — if at — if at all, to your understanding.

    But I ask, what would “wrongful” possibly mean if it didn’t mean trespasses and we have quoted section of the legislative history.

    It shows that it clearly contemplates that.

    Certainly, the Tort Claims Act cannot be interposed to provide a simple, non-jury negligence practice that the Government’s construction would simply strike from the word — strike out from the Act the word “wrongful,” to allow its full scope.

    And I submit in the illustration these two cases.

    If a driver of a government mail truck sets out from the post office and negligently hits somebody on the street, liability.

    He’s in the course of his official duties acting with authority, liability.

    If the post master general steps out and gives him specific instructions before he starts, “Drive down the street and drive very carefully.

    Don’t drive negligently but drive right into Mr. Smith’s truck down there and smash it up.”

    Under the Government’s view, the Government would be liable in the first case, no liability in the next — in the next case, the Dalehite case.

    (Inaudible)

    Norman M. Littell:

    I’m assuming the concession that is within this scope of authority as counsel reminded me, it have to be.

    The second case, if the Secretary of the Interior is building a dam and the crane is working and he’s out at the site, and here is a sign saying, “No Parking, Government Property.

    Trespassers will be prosecuted,” and so forth, but there is a car parked there.

    The Secretary says to the crane operator, “Whose car is that?”

    “I don’t know Mr. Secretary.”

    Well, these tourists I supposed.

    They’re not supposed to be there, there are the signs, right in our way.”

    And the Secretary of the Interior says to the crane operator, “Lower your crane.Pick up that car and drop it off in the canyon.”

    Under the Government’s view, no liability.

    I’ll save the rest of my time, Your Honor.

    Earl Warren:

    We’ll recess now and you can start in the morning.