J. BLAINE ANDERSON, Circuit Judge:
Appellants are Indian landowners seeking to quiet title to a portion of their trust lands. The suit was brought against the United States and others. The district court dismissed the claims against all of the original defendants. However, before this court, the Indian landowners contest only the dismissal of their claim as it relates to the United States.
This suit arises from a dispute over the ownership of a road running through appellants' trust lands on the Makah Indian Reservation, Neah Bay, Washington. Appellants, enrolled Makah Indians, contend that they are the exclusive and individual owners, by virtue of inheritance, of that portion of the Shi Shi Beach Road that passes through their property on the reservation. The United States contends that it obtained a right-of-way over appellants' land in 1939 from appellants' predecessors in interest and that it maintained the road as a public road ever since.
The facts disclose that in 1939 the Bureau of Indian Affairs (BIA) investigated the desirability of constructing a new road on the reservation. Subsequently, on December 6, 1939, the Makah Indian Tribal Council, by resolution, agreed that a right-of-way should be granted. The resolution stated that the road was to be used by the public and the Makah Indians. The resolution
In 1966 the Makah Tribal Council passed a resolution restricting the use of the road to non-commercial uses. Beginning in 1970, appellants attempted to deny access to Shi Shi Beach Road to the general public first by physical blockade and then by charging a toll. The BIA, on August 23, 1972, then petitioned the Tribal Council for an order directing plaintiffs to remove all blockades.
The district court, first finding that this suit was "essentially one against the United States to quiet title to property," relied upon the 1972 amendment to 28 U.S.C. § 1346, which created a new section 28 U.S.C. § 2409a,
Assuming, without deciding, that 28 U.S.C. § 2409a applies to the lands in question, we affirm the district court's actions, but for different reasons,
28 U.S.C. § 2409a(f) states:
The crucial question is when the appellants or their predecessors in interest knew or should have known of the government's claim.
It is undisputed that appellants' predecessors in interest executed the right-of-way documents in 1939. While there is no evidence that these documents were read to or translated to appellants' predecessors, it is noted that the documents were witnessed by two persons, one of which has since died and the other's whereabouts are unknown. Appellants, by their own affidavits, contend that the execution of these documents was invalid, by alleging that their great-grandparents had no formal schooling and could not read or write English. Appellants also allege that their grandmother was addicted to alcohol and had other physical ailments that affected her competency to sign such a document during the last years of her life.
In support of their argument that the doctrine of laches does not apply, appellants maintain that they could not have legally commenced this action until 1972, when 28 U.S.C. § 2409a was enacted; therefore, this legal impossibility of bringing suit is ample justification for any claimed delay. A similar argument was rejected in connection with the statute of limitations, 28 U.S.C. § 2409a(f). In Hatter v. United States, 402 F.Supp. 1192 (E.D.Cal.1975), the plaintiff contended that the twelve-year statute of limitations should not commence to run until October 25, 1972, the date the statute was passed. In rejecting this argument, the court stated:
The court then quoted at length from the legislative history
As applied to the United States, the defense of the statute of limitations goes to the court's jurisdiction. Munro v. United States, 303 U.S. 36, 58 S.Ct. 421, 82 L.Ed. 633 (1938); H-10 Water Taxi Company v. United States, 379 F.2d 963 (9th Cir.1967), and, accordingly, may be raised by this court. We believe that 28 U.S.C. § 2409a(f) is such a jurisdictional statute of limitations.
Having found that the twelve-year statute of limitations has run before this action was filed, the district court's granting of the government's summary judgment motion is AFFIRMED.