
    App. No. 13-74.
    September 13, 1974
    The Hopi Tribe, Plaintiff-Appellant
   Indian claims; Indian Claims Commission; pleading and practice; motion for rehearing and to amend findings of fact; timeliness of appeal; wai/oer of reguirements of rule. — On September 13, 1974 the court issued the following order:

Before CoweN, Chief Judge, Nichols and BeNNEtt, Judges.

“This case comes before the court on motion of the United States, appellee, to dismiss the appeal as untimely. Upon consideration of the motion, appellant’s opposition thereto, and the briefs of the parties, the court finds that on June 29, 1970, the Indian Claims Commission issued an interlocutory order (23 Ind. Cl. Comm. 277); thereafter on August 28, 1970, the appellant filed with the Commission a motion for rehearing pursuant to the Commission’s rule, 25 C.F.B. § 503.33; on July 9,1973, the Commission issued its decision (31 Ind. Cl. Comm. 16). Thereafter on October 4, 1973, the Hopi Tri'be filed a motion entitled ‘Motion for Leave of Commission to Hear Further Argument on Liability Phase of Counts 5 through 8, and to Amend Findings and Orders in Belation Thereto to make Final Disposition of the Liability Phase of Said Counts.’ In the motion the Plopi Tribe objected to the failure of the Commission to make a determination of Counts 5 through 8 of the tribe’s petition. The United States and the Navajo Tribe filed briefs in opposition to the motion, and on January 23, 1974, the motion of the Hopi Tribe was denied by the Commission (33 Ind. Cl. Comm. 72).

“On the basis of the foregoing, the court finds that the Indian Claims Commission treated the Plopi motion as a second motion for rehearing and to amend findings of fact; that the Commission gave a lengthy consideration of almost four months to the motion and that it thereby waived the requirements of its rule (25 C.F.R. § 503.33). Schacht v. United States, 398 U.S. 58, 63-65 (1970).

“Since the appeal was filed within three months of the Commission’s order of January 23,1974, the court concludes that the appeal is timely and the motion of the United States to dismiss is hereby denied.”  