United States v. Mary Dann and Carrie Dann , 763 F.2d 379 ( 1985 )

763 F.2d 379

UNITED STATES of America, Plaintiff-Appellee,
v.
Mary DANN and Carrie Dann, Defendants-Appellants.

Nos. 80-4298, 80-4345.

United States Court of Appeals,
Ninth Circuit.

June 14, 1985.

Dean K. Dunsmore, Washington, D.C., and B. Mahlon Brown, Reno, Nev., for plaintiff-appellee.

John D. O'Connell, O'Connell & Yengich, and Gerald H. Kinghorn, Salt Lake City, Utah, for defendants-appellants.

Before FLETCHER, POOLE and CANBY, Circuit Judges.

ORDER

1

Our decision in this case, entered on May 19, 1983 and reported at 706 F.2d 919, was reversed by the Supreme Court of the United States in United States v. Dann, --- U.S. ----, 105 S. Ct. 1058, 84 L. Ed. 2d 28 (1985). At the conclusion of its opinion, the Supreme Court stated:

2

The Danns also claim to possess individual as well as tribal aboriginal rights and that because only the latter were before the Indian Claims Commission, the "final discharge" of Sec. 22a does not bar the Danns from raising individual aboriginal title as a defense in this action. Though we have recognized that individual aboriginal rights may exist in certain contexts, this contention has not been addressed by the lower courts and, if open, should first be addressed below. We express no opinion on the merits.

3

Id. at ----, 105 S.Ct. at 1065 [footnote omitted].

4

The contention referred to by the Supreme Court, if open, should, we conclude, be addressed in the first instance by the district court. Like the Supreme Court, we express no opinion on the merits.

5

This case is accordingly remanded to the district court for further proceedings consistent with the opinion of the Supreme Court. The motion of defendants for hearing in this court upon remand is denied.