* * *

The decisions . . . relied upon [by the appellant] go no further than that only the classes of litigation set out in the statute are within the jurisdiction of the statutory court. They do not even hint that, once having that jurisdiction properly, such a court cannot exercise all of the ordinary equitable powers of a District Court in respect to such litigation." Id. at 932.

L. 85-547 clearly provided the three-judge district court with the authority to quiet title, and an action to quiet title is essentially a suit in equity. Sharon v. Tucker, 1892, 144 U.S. 533, 544, 12 S. Ct. 720, 36 L. Ed. 532; Bowen v. Chase, 1876, 94 U.S. 812, 24 L. Ed. 184

The equitable jurisdiction of a federal court extends to supplemental or ancillary bills brought for the purpose of effectuating a decree of the same court. See Root v. Woolworth, 1893, 150 U.S. 401, 14 S. Ct. 136, 37 L. Ed. 1123. In Root the Court emphasized that "[t]he jurisdiction of courts of equity to interfere and effectuate their own decrees by injunctions or writs of assistance, in order to avoid the relitigation of questions once settled between the same parties, is well settled." Id. at 411-412, 14 S.Ct. at 139. Furthermore, in Root the appellant contended that no relief should be granted because the present bill sought possession, a matter that was not covered in the original decree. The Court held that this fact did not preclude the relief requested. Id. The Court has affirmed this approach in a number of subsequent decisions. See generally Dugas v. American Surety Co., 1937, 300 U.S. 414, 57 S. Ct. 515, 81 L. Ed. 720; Local Loan Co. v. Hunt, 1934, 292 U.S. 234, 54 S. Ct. 695, 78 L. Ed. 1230; Walmac Co. v. Isaacs, 1 Cir., 1955, 220 F.2d 108.

Here, as in Root, the power of the court to issue the order requiring compliance or to enforce the judgment by a writ of assistance follows from the principle that a court's power to afford a remedy must be coextensive with its jurisdiction over the subject matter. The decision in Healing adjudged joint and equal title in the Hopi and Navajo Tribes to a portion of the 1882 reservation, and the right to joint possession follows that title even though, as in Root, the original decree did not make explicit provisions concerning possession.

These principles have found expression not only in judicial decisions, but also in a specific statutory enactment, the "All Writs" Act, 28 U.S.C. Sec. 1651(a):

"The Supreme Courts and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

The present case meets all the requirements of Sec. 1651(a). First, if the allegations of the Hopi's petition are true, "necessity" rests on the side of the Hopi. They allege that the Navajo have denied to the Hopi the joint use and benefit of the property in question, and that the United States, as trustee and guardian of the property, has neglected its duty to see that the original decree was effectively implemented.

writ of assistance is also "appropriate" under Sec. 1651(a). Of course, this statutory provision does not confer original jurisdiction, but rather, prescribes the scope of relief that may be granted when jurisdiction otherwise exists. Hill v. United States Board of Parole, M.D.Pa., 1966, 257 F. Supp. 129, 130. See also Stafford v. Superior Court, 9 Cir., 1959, 272 F.2d 407, 409; Dodge v. Nakai, D.Ariz., 1968, 298 F. Supp. 17. But once jurisdiction has attached, powers under Sec. 1651(a) should be broadly construed. Dixie Highway Express, Inc. v. United States, S.D. Miss., 1967, 268 F. Supp. 239, rev'd on other grounds, 1967, 389 U.S. 409, 88 S. Ct. 539, 19 L. Ed. 2d 639. In Dixie, a case that involved a three-judge panel, the court concluded, "The universal rule is that every court has the inherent power to enforce its judgment and decrees. The All Writs Statute appears as a Congressional reaffirmation of that power." Id. at 240

Finally, a writ of assistance in a suit to quiet title is also "agreeable to the usages and principles of law." In Healing the court did not direct that joint possession of the joint use area be delivered to the Hopi, but the court did quiet their title, as co-tenants, and determined that both tribes, for the common use and benefit of their respective members, have joint undivided and equal rights. In these circumstances a writ of assistance is "agreeable to the usages and principles of law." Montgomery v. Tutt, 1858, 11 Cal. 190. In Montgomery there was a decree of sale that did not require or provide for the delivery of possession of the premises to the purchaser. After the possessor refused to surrender possession, a writ of assistance was sought. The Supreme Court of California held that the writ should issue:

"The power of the court to issue the judicial writ, or to make the order, and enforce the same by a writ of assistance, rests upon the obvious principle that the power of the Court to afford a remedy must be co-extensive with its jurisdiction over the subject matter. Where the Court possesses jurisdiction to make a decree, it possesses the power to enforce its execution. It is true that in the present case the decree does not contain a direction that the possession of the premises be delivered to the purchaser. It is usual to insert a clause to that effect, but it is not essential. . . [A]s the right to the possession . . . follows title, it would be an useless and vexatious course to require the purchaser to obtain such possession by another suit. Such is not the course of procedure adopted by a Court of Equity." Id. at 192.

Nor does it matter that the request for a writ of assistance or possession follows by a number of years the rendering of the decree quieting title. Los Angeles v. Forrester, 1936, 12 Cal. App. 2d 146, 55 P.2d 277; Park v. Powers, 1935, 2 Cal. 2d 590, 42 P.2d 75; Doggett v. Johnson, 1928, 82 Mont. 338, 267 P. 292. Cf. Burney v. Lee, 1941, 57 Ariz. 41, 110 P.2d 554. Although most of the foregoing cases arose in state courts, the few federal cases that bear on this question agree in principle with the cases discussed. See, e. g., Ohio Oil Co. v. Thompson, 8 Cir., 1940, 120 F.2d 831, 837.

Neither P.L. 85-547 nor 28 U.S.C. Sec. 2284, to which it refers, contains any restrictions on the power of the court to enforce its judgment. The Act authorizes suit "in the United States District Court for the District of Arizona." It is beyond the possibility of argument that a United States District Court has power to enforce its judgments. Absent some contrary provision in the jurisdictional statute, that power exists in this case.

The effect of the sovereign immunity of the United States and the Navajo Tribe on the court's power to grant relief

The Navajo also say that the sovereign immunity of the United States and the Navajo Tribe impose restrictions on the kind of relief a court can afford. This contention represents only a slight variation from the arguments just considered above. The claim is that P.L. 85-547 waived the sovereign immunity of the United States and the Navajo from a suit to quiet title, but not from the relief requested by the Hopi in their March 13, 1970, petition. We reject this claim for the same basic reason that we rejected the first-namely, when jurisdiction has properly attached in a three-judge district court, the remedial powers of the court are not restricted absent an express provision in the authorizing legislation.

It is true that both the United States, United States v. Sherwood, 1941, 312 U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058; Magnus v. United States, 7 Cir., 1956, 234 F.2d 673, and Indian Tribes such as the Navajo, Turner v. United States and Creek Tribe, 1919, 248 U.S. 354, 358, 39 S. Ct. 109, 63 L. Ed. 291; Adams v. Murphy, 8 Cir., 1908, 165 F. 304, 308; Thebo v. Choctaw Tribe, 8 Cir., 1895, 66 F. 372, 373-374, enjoy sovereign immunity and cannot be sued without the consent of Congress. The sovereign immunity of Indian tribes is coextensive with that of the United States. United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S. Ct. 653, 84 L. Ed. 894. When Congress does give consent to suit, that consent is subject to such conditions or limitations as Congress sees fit to impose. United States v. Shaw, 1940, 309 U.S. 495, 60 S. Ct. 659, 84 L. Ed. 888. Furthermore, any conditions or limitations "must be strictly observed and exceptions thereto are not to be implied." Soriano v. United States, 1957, 352 U.S. 270, 276, 77 S. Ct. 269, 273, 1 L. Ed. 2d 306.

In many instances, Congress has imposed such conditions and limitations. For example, the Federal Tort Claims Act contains a section providing for specific exceptions to the waiver of immunity. 28 U.S.C. Sec. 2680. And under 28 U.S.C. Sec. 2679 the exclusiveness of the remedy is specified. Courts have held that this limitation on the remedy precludes the granting of an injunction. Hatahley v. United States, 1956, 351 U.S. 173, 182, 76 S. Ct. 745, 100 L. Ed. 1065. From these cases and statutory provisions the Navajo draw the conclusion that a remedy not specified in the statute waiving sovereign immunity cannot be used against the United States or the Navajo.

At most, however, the cited statutes and cases stand for the proposition that where Congress explicitly provides for the exclusiveness of a remedy, or in some other way restricts or limits the remedy, courts have no power to grant additional remedies. This proposition has no application to the present case, because P.L. 85-547 confers jurisdiction to quiet title, and without restriction or limitation on that authority.

An analogous statute is 28 U.S.C. Sec. 2410(a), which also provides for an action against the United States to quiet title. Section 2410 contains no explicit provision for or against injunctive relief.

Courts have issued injunctions under Sec. 2410. Sonitz v. United States, D.N.J., 1963, 221 F. Supp. 762; National Iron Bank v. Manning, D.N.J., 1948, 76 F. Supp. 841; Tower Production Co. v. United States, W.D.Okl., 1945, 61 F. Supp. 411; cf. Bartell v. Riddell, S.D.Cal., 1962, 202 F. Supp. 70. It is no answer to say that in those cases the court's remedial powers stemmed not only from Sec. 2410, but also from 28 U.S.C. Sec. 2463. The latter section contains the following provisions: "All property taken or detained under any revenue law of the United States shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof." 28 U.S.C. Sec. 2463. The Navajo conclude that this provision merely codifies the principle that a court has remedial jurisdiction to prevent dispositions of property to which its jurisdiction has already attached.

The Navajo correctly interpret the import of Sec. 2463, but misconstrue the holdings of the cases cited above. While some of those cases did involve both sections 2410 and 2463, the injunctive relief granted by the respective courts did not stem only from Section 2463. In Sonitz, for example, the court was not interested only in preventing the disposition of property to which its jurisdiction had already attached. The court specifically held that Sec. 2410 exists to permit taxpayers to expunge Government tax liens and thereby quiet title to their property. More important, the court further indicated that any other relief incidental to such a determination could be granted. Sonitz, supra, 221 F.Supp. at 765. And in Power Production Company, supra, the court granted injunctive relief, 61 F. Supp. at 414.

Other cases cited by the Navajo do not help them. Rambo v. United States, 5 Cir., 1945, 145 F.2d 670, is cited for the proposition that federal courts have no general equity jurisdiction in cases against the United States. Other cases are cited for the proposition that jurisdictional statutes must provide expressly for injunctions before such relief can be granted. See, e. g., Superior Oil Co. v. United States, 9 Cir., 1965, 353 F.2d 34; United States v. Merchants Transfer & Storage Co., 9 Cir., 1944, 144 F.2d 324. However, all of these cases only hold that the granting of an injunction was improper because the United States had not consented to suit in the first instance. Other cases cited are similar. See, e. g., Consumers Union v. Veterans Administration, S.D.N.Y., 1969, 301 F. Supp. 796; Suess v. Pugh, N.J.W.Va., 1965, 245 F. Supp. 661; Chester v. Ross, N.D.Ga., 1964, 231 F. Supp. 23.

Finally, the Navajo argue that even when the United States does consent to be sued, it nevertheless remains immune from execution and garnishment unless such relief is specifically consented to. They then say that under Arizona law a writ of assistance amounts to the equitable equivalent of a writ of execution. See Burney v. Lee, 1941, 57 Ariz. 41, 110 P.2d 554. The Navajo's case support again misses the mark; their principal case authority, United States v. Krakover, 10 Cir., 1969, 377 F.2d 104, stands only for the proposition that execution and garnishment will not be permitted where the United States has not consented to suit in the first instance.

III. Partition.

The United States argues that the relief sought is, in essence, a decree of partition, and that the district court was not given jurisdiction to partition the lands in question. In Healing v. Jones, supra, the three-judge court squarely held that it did not have authority to partition. 210 F. Supp. at 190-192. That decision was affirmed by the Supreme Court and is now the law of the case. However, the short answer to the argument of the United States is that the relief sought is not a decree of partition; it is enforcement of the decree quieting title in co-tenants, which the court did have authority to enter.

IV. The granting of a writ of assistance by a single judge.

There still remains the question whether a single judge can issue process to enforce the judgment. This question is closely tied to the question whether we have jurisdiction of an appeal from his refusal to do so. Public Service Comm'n v. Brashear Freight Lines, Inc., 1941, 312 U.S. 621, 61 S. Ct. 784, 85 L. Ed. 1083, provides guidance. There, a trucking firm challenged the constitutionality of a state bus and truck law and a three-judge court, convened under the predecessor of 28 U.S.C. Sec. 2281, upheld the constitutionality of the law. The state public service commission, the defendant in the suit, then moved before a single judge for an assessment of damages and costs against the plaintiffs and their injunction bond sureties. The Supreme Court held that this matter should be considered by the district court in the exercise of its ordinary jurisdiction and did not require the attention of the full three-judge court. It reasoned that the motion for damages raised questions not within the statutory purpose for which the two additional judges had been called. Id. at 625, 61 S. Ct. 784. Courts have consistently followed the Brashear result in similar fact situations. See Pabst v. Campbell, S.D.Ind., 1957, 150 F. Supp. 71; Kenny v. United States, D.N.J., 1954, 118 F. Supp. 907.

Courts have also adopted the reasoning of the Brashear case in other areas of law. See Willis v. Pickrick Restaurant, N.D.Ga., 1964, 234 F. Supp. 179; cf. Chandler v. Garrison, E.D.La., 1968, 286 F. Supp. 18. In Willis the court held that a civil contempt proceeding ancillary to suit prosecuted under the Civil Rights Act of 1964 should be heard by one judge and not the original three-judge court.

The parallels between these cases and the present one are striking. In both, the parties involved before the three-judge court and the single district judge were the same. In both, the action before the respective courts was the same; the second proceeding was merely ancillary to the main action.

The courts have also addressed themselves to the specific question of enforcement. See Allen v. County School Bd. of Prince Edward County, 4 Cir., 1957, 249 F.2d 462, where a three-judge court entered a decree requiring desegregation of certain public schools. The plaintiffs later moved for an order fixing a time limit for compliance with the decree. The Fourth Circuit held that the motion, which was in the nature of enforcement, was properly heard by a single judge. Allen v. County School Bd. of Prince Edward County, 249 F.2d at 464.

The appellee-United States relies heavily on Dixie Highway Express, Inc. v. United States, S.D.Miss., 1967, 268 F. Supp. 239, and Stratton v. St. Louis Southwestern Ry. Co., 1930, 282 U.S. 10, 51 S. Ct. 8, 75 L. Ed. 135. In Dixie a three-judge district court, in a suit to review a decision of the Interstate Commerce Commission, held that the Commission had failed to reconsider its decision as required in a remand by the same court to the Commission. The same three-judge district court heard the case both times (242 F. Supp. 1016 (1965) and 268 F. Supp. 239 (1967)), but in neither decision did the court indicate that a single judge could not enforce the judgment of a three-judge court. Stratton involved the failure of a single district judge to comply with a federal statute requiring the commencing and hearing of a suit in a three-judge district court rather than, as here, a petition for enforcement of a judgment previously entered by a three-judge court.

Finally, both the appellees assert that 28 U.S.C. Sec. 2284(5) prohibits a single district judge from granting a writ of assistance. That provision states that in a case to be determined by a three-judge district court "[a] single judge shall not . . . enter a summary or final judgment." This proceeding does not seek a judgment; it seeks enforcement of a judgment already entered.

We hold, as the Court did in Brashear, supra, that the three-judge court, when it entered its judgment, had fulfilled the statutory purpose for which the two additional judges had been called. The present proceeding is not an "action or proceeding required by Act of Congress to be heard and determined by a district court of three judges." 28 U.S.C. Sec. 2284.

It follows that under the principles applied by the Supreme Court in Hicks v. Pleasure House, Inc., 1971, 404 U.S. 1, 92 S. Ct. 5, 30 L. Ed. 2d 1 (1971), jurisdiction of this appeal is in this court, not the Supreme Court.

Other contentions

Failure to join the Secretary of Interior

The Navajo contend that the Hopi's petition should fail because the Secretary of the Interior, who the Navajo assert, would necessarily be involved in implementing the writ of assistance, was not joined in the present proceeding. See generally Webster v. Fall, 1925, 266 U.S. 507, 45 S. Ct. 148, 69 L. Ed. 411; Hospoder v. United States, 3 Cir., 1953, 209 F.2d 427. These cases, however, have no application here, because Section 1 of P.L. 85-547 authorized a suit against "the Attorney General on behalf of the United States. . . ." Thus, the statute did not require that the Secretary of the Interior be joined, and we see no reason why appellant should now be required to join him in a proceeding to enforce the original judgment. In his official capacity, the Secretary represents the United States; here, he is sufficiently represented by the Attorney General.

The authority of a federal district court to determine controversies between Indian tribes or their members

Finally, the United States argues that the federal district courts are not authorized to determine controversies between Indian tribes or their members. However, the cases relied upon stand only for the rule that a federal district court cannot act where it does not have jurisdiction of the subject matter. See Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 8 Cir., 1967, 370 F.2d 529; Prairie Band of Pottawatomie Tribe v. Puckkee, 10 Cir., 1963, 321 F.2d 767; Martinez v. Southern Ute Tribe, 10 Cir., 1960, 273 F.2d 731; Martinez v. Southern Ute Tribe, 10 Cir., 1957, 249 F.2d 915. Here, P.L. 85-547 expressly conferred jurisdiction.

VI. Relief.

We are told that it would not be possible to grant the relief sought because many Navajo are permanently settled on the lands in question. In support of the argument we are then confronted with a parade of horribles. Are the Navajo to be ordered to share their hogans with the Hopi? Must they share such gardens as they have, or stock corrals, etc.? Obviously, where the tract of land is large and the population is sparse, these are straw men. A District Judge is not a creature without judgment or imagination. He can hear testimony from the parties and from representatives of the United States as to what the actual situation is, and can tailor the relief to be afforded to the facts that confront him, always bearing in mind that the objective is to achieve what the court has decreed, the exercise by the Hopi and the Navajo of their "joint, undivided and equal interests as to the surface and subsurface and all resources appertaining thereto [in the lands in question], subject to the trust title of the United States."

The order is reversed and the matter is remanded to the district court for further proceedings consistent with this opinion.

Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation