Opposition — Northern Cheyenne Tribe v. Hollowbreast

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AUG 21 1975 d Pege(s)

| IN THE SUPREYE COURT C&F THE UNITED STAT 3 | TABLE OF AUTHORITIES.......- —-WTTTTTITITITELITTT TTT il

2 MICHAEL RODAK, JR., CLERK | | STATEMENT OF THE CASE...... «+. peeosooccesscoececocoessses 1

. ; 4

3 Seesoesasooesososess | ISSUE PRESENTED. ....cesccsecsess PITTITTTTTITIT TTT TTT l

. 5). Sane ana Ean ISHED SSNSSSRERERTORNIERHENERERREEIERESEPS

4 6 | STATEMENT OF FACTS.....+ececscccccccccccccncescscccncesecees 1

5 October Term, 1975 > REASONS FOR NOT GRANTING JURISDICTION

6 a | SUMMARY ....0.ssecceeeees boccesecescesses padecdoosocessos 3

7 No. 75-145 , I. The Backsground Of The Allotment System Clarifies The

9 | Nature Of The Rights InvolVed........ssseccccccccceeeees 5

7 RARKKARAKARERARKRREE |

10! II. Choate v. Trapp Properly Controls The Result Of The

9, ‘THE NORTHERN CHEYEOXE TRIBE, a DRSGENS COEBe cc ccccccccccocesccccocccccccceecococcoscces §

id. Petitioner, | A. Individual Indians Have Ceom#titutional Rights In

12 | Individually Owned Trust +. stments According To

1] -VSs- 13 Choate Vv. Trapp eee ee eee eee eee ee eeee eeeeeeee eer eee eeee -)

12 WILLIAM HOLLOWBREAST, et al., 7 B. Individual Indians Have No Richt Or Enforceable

14 Title In TRIBAL Property According To Gritts v.

13 Respondents. 15 | DARED. cocccccococcccccooccecccoccoeccescoccoscsooces ll

14 C. The Decisicm In Choate v. Trapp Is Based on

PTT TTT TTT ttt ttt 16 Statutory, Not Contractual, RIGhtsS....ceeececseeeeees 13

BRIEF IN OPPOSITION TO THE PETITION FOR WRIT OF CERTIORARI 17 III.The Allottees’ Remainder Interest In The Mineral

16 SUBMITTED BY RESPONDENTS WILLIAMSON AND BOKEN 18 Estate Was Conveyed By The Original Trust Patents....... 16

17 RAAKPRRRAARRAARAEERE IV. Congress’ Authority In Conducting Indians Affairs

19 Does Not Otherwise Permit Divesting Vested Allotment

18 RIGNKS. ...cccccccccccccecesceeceesesesesessesessessesese 19

19 21 CONCLUSION. cc cc cccc cece ccceccerenseeeeeseeeeseseeeeessseeees 23

21 MONTANA LEGAL SERVICES

ASSOCIATION 23

22 By Neil Haight

Attorneys for Respondents 24

23 Williamson and Bowen 25

24 Office Address: .

601 Power Block 26

25 Helena, Montana 59601 27

28 |

27 |

29 |

30 }

31 |

32 ‘umane. wom ;

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TABLE OF AUTHORITIES

CASES: Page (s)

Adams v. Osage Tribe, 59 F.2d 653 (10th Cir.

BOOED . ccnccccccecseceosonsecooeseceoseceeoenedosesene

Agua Caliente Band of Mission Indians v. County

of Riverside, 306 F.Supp. 279 (C.D. Calif.

1969) . cc cccccccccccccesesessessesessseesssssssseeee 4

Allotment Sections on the Fort Belknap Indian

Reservation, 55 I.D. 295 (1935)...ceceecccceeeeeeeel?

Arenas v. United States, 322 U.S. 419 (1944)....++seee05 67,17

Benson Min. & Smelting Co. v. Alta Min. & Smelting

Co., 145 U.S. 428 SGOT .cccceccoecosececscoeceeoeeds

Board of County Commissioners v. Seben, 130 F.2d

663 (10th Cir. 1941) ..... _@eeeeeeeeeeeeeeeeeeeeeee 4

Board of County Commissioners v. United States,

152 F.2d 540 (10th Cir. DOGS 6 o660500660000008000060 4

Board of Commissioners of Tulsa County, Oklahoma

v. United States, 94 F.2d 450 (10th Cir. 1938)..... 4

Brader v. James, 246 U.S. 88 CISEED .ccccccocesceeccooecskaees

Bryan County, Oklahoma v. United States, 123

F.2d 782 (10th Cir. 1941) . ccccccccccccccccesceseess 4

Carpenter v. Shaw, 280 U.S. 363 (1929) ..seeeeeeeeeeeeees 4,15

Chase Jr., v. United States, 256 U.S. 1 (1921)..........19

Choate v. Trapp, 224 U.S. 665 (1912)...secececeeeeeceees L534,

8,9,10,11,12,13,14,

15,16,17,20,21,23

Choctaw Nation v. United States, 100 F.Supp.

318 (Ct.Cl. L951) . cccccccccccccccsecesesesesssesess 4

County of Mahnomen v. United States, 319 U.S.

474 (1943) . cc ccccccecccceereerereeseneeseseeeeseese 4

English v. Richardson, 224 U.S. 680 (1912)...-seeeeeeees 4,8,14,

Fish v. Wise, 52 F.2d 544 (10th Cir. 1931),

cert. denied 282 U.S. 903 (1931). .ccecccccseessvees 7

Glacier County, Montana v. United States, 99 F.2d

733 (9th Cir. 1938) .cccccccccccesssesseesssessssess 4

Gleason Ve Wood, 224 U.S. 679 (1912) . ccccccccccccccccccs 4

Goat v. United States, 224 U.S. 458 (1912).....seeeeee0e21,22

Gritts v. Fisher, 224 U.S. 640 (1912)....e.ceceeeeeseees 6,9,11,

12,19,20

CASES: (cont.) Pace is

Heckman v. United States, 224 U.S. 413 (1912).......+...- 7,21,22

Kirkwood v. Arenas, 243 F.2d 863 (9th Cir. 1957).......

Lane v. Santa Rosa, 249 U.S. 110 (1919).....eeeeeeeeeeee23

Lana@man v. Comm'n Internal Revenue Service,

123 F.2d 787 (lOth Cir. 1941). ..cccccccceeoeees soe ©

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)......+++++--16

Lowe v. Fisher, 223 U.S. 95 (1912)...seeeeeeeeeeeeeeeeee20

McClanahan v. State Tax Commission of Arizona,

411 U.S. 164 LISTED ccccccccccesccceccccoeccesoccecede

McIntire v. United States, 22 F.Supp. 316

(D. Mont. 1936) ccccccccrccccesccesesesesssesesssees 4

Morrow v. United States, 243 F. 854 (8th Cir. 1917)..... 4

Mott v. United States, 283 U.S. 747 (1931)....-+seeeeees 457,17

Nadeau v. Union Pacific Railroad, 253 U.S. 442

(1920) .cccccccccccccevesesesscssseesess eee ee ee eevee 19

National Indian Youth Council v. Bruce, 366

F.Supp. 313 (N.D. Utah DETTE cccocncsecseosseoenccoone

Nicodemus v. Washington Water and Power Co.,

264 F.2d 614 (9th Cir. 1959) .ccececcccccccceceeeeeel6

Northern Cheyenne Tribe v. Northern Cheyenne

Defendant Class of Allottees, Heirs and

Devisees, 505 F.2d 268 (9th Cir. 1974) ...seeeeeeees 1,3

Northern Cheyenne Tribe v. William Hollowhbreast,

349 F.Supp. 1302 (D. Mont. 1972) ..seeeeeeeeeceeeees 1,3,10

Oklahoma Tax Comm'n v. United States, 319 U.S.

598 (1943) cc ccccccccceeeeeeeeeereseeesessessssseses 4

Payne v. New Mexico, 255 U.S. 367 (1921)..++eseeeeeeeees 7

Raymond Bear Hill, 52 I.D. 688 (1929) ...sseeeeeeeeees eee 7,17,18

Rights of Indians to Allotments in San Juan

County, Utah, 57 I.D. 547 (1942) .ccccccccccccccsess 7,17

St. Marie v. United States, 108 F.2d 876 (9th

Cir. 1940) Cert. denied 311 U.S. 652 (1940)......-. 7

Sizemore v. Brady, 235 U.S. 441 (1914) ...seeeeeeeeeeeeess 4,19

Stephens v. Cherokee Nation, 174 U.S. 445 (1899).....+..20

Sweet v. Schock, 245 U.S. 192 (1917) ..-seeceeeceeeeeeeee22

Taunah v. Jones, 90 F.Supp. 459 (W.D. Okla. 1950)....... 4

Thomas v. Gay, 169 U.S. 214 (1998). ..ceeececceeseveeeeeel6

iii

° P Ss ’

1 ses: Page(s) | | STATUTES: Page(s)

: j vestern tmen a . weeel5,21,22

2 Cigus v. Make Sess Gh. 2S 6.8. 25 CND..--2 2 Act of Feb. 8, 1887, 24 Stat. 388.........seeee0e asain 6,7,8

tes v. Arenas, 158 F.24 730 (9th Cir. !

* ey em pe Ni, 3. Act of June 28, 1906, 34 Stat. 539........4. inne 18

| United States v. Bartlett, 235 U.S. 72 BBD. ccococcocedl ad Act of May 29, 1908, 35 Stat. Ge cooccoceseesooceesooecdl

5 aes. s thin 200 5 | nk ae es Oe i. Oe. ucnnceanseseseslll

ad F. 268 (9th Cir. 1923) .ccccccccccccssecessesesssses 4 6 Act of June 4, 1920, 41 Stat. Sew

7 United States Vv. Chase, 245 U.S. 89 CIGET) cccccccoceeceeae 7 | Act of March ‘ 1921, 41 Stat. SA eee e 2.18

. P , :

| DE tale Gl. MEI Mc crcctesccsscassesee 8 8 Act of June 3, 1926, 44 Stat. 690.....sscsseseseseeeeee 2

9 inne 2 _ 2 9 | Act of March 3, 1927, 41 Stat. 1401.....cccccccecceseeel8

10 F.Supp. 399 (E.D. Wash. 1938).+++sseeeeeeereerereee 4 10 Rot CE June 18, 1934, 48 Stat. 904..cccccccccccccccccese B17

{ i eeneeneneneee ‘

We United States v. Jackson, 280 U.S. 183 (1930).. mens ne Act of July 24, 1968, 82 Stat. 424.......ccccccccccceees 210

12 | United States v. Jim, 409 U.S. 80, reh.den. 12

13 409 U.S. 1118 (1972) .ccccccccccccccssccccsesesssees 6,19 1s | OTHER AUTHORITY:

United States v. Nez Perce County, 95

14. F.2d 232 (9th Cir. 1938) cc ccccccccccccccceccccccececs 4 14. 25 Col om Din dé 26066600 6600O6 006000060060 eeeneneeneneeeeeeee -

t . ' :

5 united States v. : | 16 F.S _ 155 (D. ; 15 Cohen, F. Handbook of Federal Indian Law (1940)......... 5,6,14

16) ce. eee eee eee eee eee eee eee eeeeeeeeeeeeeeeee * Defendants Williamson and Bowen's Brief in Opposi-

United States v. Rowell, 243 U.S. 464 (1917).....ssee0+019 tion to the Petition for REhearing..+++ssseseeeeees 16,21

17 .

caine Seen th, 24 F.Supp. 465 (D. Minn. 17 H.Rep.No. 383, 69th Cong. Ist SeSS.....seeeeescceeeees ..18

18 1938) ccc cece cece cc ceeeeeeeseereseesrseeessssssseseee 4 18 Kinney, J., A Con . t Lost - A Civilization Won,

19 United States v. 2,005.32 Acres of Land, etc., 160 19 TRSSF) coccceecoeseoooscs $0S6SS CO SSCEOSOOO EOC COCO ECE 5

| F.Supp. 193 (N.D.So.Dak. 1958)..-seeseeeeeeeseeeeeol6 - Otis, D.S., History of the Allotment Policy, at

, , ' Hearings, Committee on Ind. Arr. 73rd Cong.

United States v. White, 508 F.2d 453 (8th |

P 2d Session On H.R. 7902 (1934) ..ccccccccvcccecveces 6

21 Cae. SEDGE. coccccoceseccoceseseseocesceoseseseooecees ; 21

‘ ? ; sae : ns : :

22 Malince v. Adams, 206 U.S. 415 (1907) .ccccccccccccccccee dO 2? Petition for Rehearing (to the Ninth Circuit)...........18

Petition for Writ of Certiorari......ccccccccccccccecees 29 305%

23 Ward v. Love County, 253 U.S. 17 (1919)...--eeeeeeeeeees 4,14,15 23 11,13,17,19,

24 Williams v. Johnson, 239 U.S. 414 (1915)......seeeseeeee 4,22 24 23

nies Reply Brief of Appellants Williamson and Bowen

25 Williams v. Lee, 358 U.S. 217 (1959) ...cecececececeeeee ell | 25 Soy thes Meats Gaede. 220ccoasses tie 10

26 Worcester v. Georgia, 6 Pet. 515 (1832)...+++++++++++++-10 : 26 S.Rep.No. 638, 69th Cong. Ist SeSS....sccsecceccscceeees 18

27 Wyoming v. United States, 255 U.S. 489 (1921)....-.+++--17 3 27 Sup at the Unieed Suanes Bales, Male 19....... 3

28 ©

' CONSTITUTION: | 26 |

; im Const. Art. 1 Sec. De. . cescenedbsccosecedocssesneoens ' mi

30. | |

| U.S. Const. Amend. Ve cccccceeeceeeeeeeeseesseeseeseseece 1,9,13, 30 |

31 14 31 !

32 32

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STATEMENT OF THE CASE

The Northern Cheyenne Tribal Business Council initiated this

suit to quiet title of the mineral estate for a portion of the

Northern Cheyenne Indian Reservation. The tribal council sued its

individual Indian constituents to divest their interest in such

minerals. The trial court held in favor of the tribal dn"

but the U.S. Court of Appeals for the Ninth Circuit aii”

holding the individual Indians have a vested interest in the mineral

estate underlying their individually owned property. This appeal

followed the Ninth Circuit's decision.

ISSUE PRESENTED

Did the Ninth Circuit err in reaffirming this Court's landmark

ruling in Choate v. Trapp, 224 U.S. 665 (1912), that individual

Indians' property rights in their individually owned allotments

(homesteads) are protected against divestment by the Fifth Amend-

ment due process clause? -

STATEMENT OF FACTS

Fran the late 1880's to 1934 Concress' primery policy toward

Indians was to divide communally held tribal property into tracts

r 4

The Northern Cheyenne Tribe v. William Hollowbreast, 349 F.Supp. .

1302 (D. Mont. 1972).

The Northern Cheyenne Tribe v. Northern Cheyenne Defendant Class

of Allottees, Heirs and Devisees, 505 F.2d 268 (9th Cir. 1974).

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27.

28 |

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for individual ownership by the individual tribal mernoers. This

transfer of land to individual Indian ownership is known as the

allotment system. On Jume 3, 1926 the President sicned a bill

implementing this allotment system on the Northern Cheyenne Indian

Reservation. Pursuant to this statute the individual tribal men-

bers received a parcel of land as their "homestead" or allotment.

The allotment act also provided for the mineral estate to be held

for commmal tribal use for fifty years, then to pass to the

allottees of the surface. The allottees'interest (here at issue)

arises fram this provision of the act which provides:

"Sec. 3. That the timber, coal, or other

minerals, including oil, gas, and other

natural deposits, on said reservation are

hereby reserved for the benefit of the

tribe and may be leased with the consent

of the Indian council under such rules and

regulations as the Secretary of the Interior

may prescribe: Provided, That at the ex i-

ration of fifty years from the date of the

approval or this Act the coal or other min-

erals, including oil, cas, and other nat-

ural deposits, of said allotments shall be-

come the property of the resvective alio-tees

or their heirs. Provicec further, That the

unallottea lands of said tribe of Indians

shall be held in common, subject to the

control and manacement thereof as Concress

may deem expedient for the benefit of said

Indians." Act of June 3, 1926, 44 Stat.

690. (emphasis added)

This gave the allottees a vested remainder interest in the

mineral estate following the tribe's estate per term of fifty vears.

During the late 1960's several coal companies began prospecting

on the Northern Cheyenne Indian Reservation in search of low sulfur

coal. Such coal was found. Of course, negotiating leases with one

entity - the tribal business council - would be much easier than

negotiating such leases with mmerous Indian allottees. Congress

passed a bill divesting the allottees of their mineral estate and

transferring such minerals to tribal council ownership.

Act of July 24, 1968, 82 Stat. 424. See Petition for Writ of

Certiorari p. A 44-45 for the text.

By passing

4 3**

| this law, Congress served to facilitate such commercial expedience. | and nine U.S. Supreme Court decisions! Tn short, Indian

2 This suit arose as a result of this transfer of the mineral 2 ~=allottees’ constitutionally protected property rights in their

3. estate to test the constitutionality of such divestment. The trial 3 individually owned allotments have been judicially established,

, 5 )

4 court held in favor of the tribal business council. The Ninth 4 consistently reiterated and entrenched in the decisions of this

5 ! Circuit reversed, ruling the 1968 amendment violated the Fifth 5 | Court such that no legitimately substantial challenge may now be

6 Amendment due process clause as a taking of property without compen- 6 ' yaised. (See n. 8.) The Ninth Circuit's opinion below simply

7 ' sation. This appeal followed. 7 reaffirmed this established rule of law. Consequently, this

8 | 8{| Court should not grant jurisdiction to rehash the perfectly sound

9 | 9 | principles established in Choate v. Trapp.

10 | REASONS FOR NOT GRANTING JURISDICTION 10 | Further, this decision will not vitally affect the survival of

, i

We SUMMARY | the Northern Cheyennes. This case will not decide whether the coal

12 This Court will not grant jurisdiction to hear a review on 12. is mined. Rather, this case only decides whether the rightful

j ‘g**

13 certiorari unless a U.S. Court of Appeals: 13° Among the cases exmressly acreeing with Choate's, Constituticnal

' protection of indivicual Incian's sroperty rignts are: S.creve

14 "..-has decided an important question of 14. Court - Oklahoma Tax Comm'n. v. United States, 319 U.S. 538, 603

federal law which has not been, but should _ (1943); County of Mahnomen v. United States, 319 U.S. 474, 476 (1943);

15 be, settled by this Court; or has decided 1s Mott v. United States, 283 U.S. 747, 752 (1931); Carpenter v. Shaw,

a federal question in a way in conflict 7 280 U.S. 363, 365, 366 (1929); Sizemore v. Brady, 235 U.S. 441, 449

16 with applicable decisions of this court....” 16 (1914); Ward v. Love County, 253 U.S. 17, 20, 21 (1919); Williazs

v. Johnson, 239 U.S. 414, 415 (1915); Gleason v. Wood, 224 U.S. 679

17 The Ninth Circuit's opinion below does not fall into either 17 (1912); English v. Richardson, 224 U.S. 680 (1912) - Court of

Rae: - United States v. Benewah County, Idaho, 290 F. 268 (9th

18 category. Rather, the opinion below rests squarely upon this 18 Cir. 1923); Kirkwood v. Arenas, 243 F.2d 863, 869 (9th Cir. 1957);

Morrow v. United States, 243 F. 854, 856 (8th Cir. 1917); Board of

19 Court's mandate in Choate v. Tracp, 224 U.S. 665 (1912) which has 19 County Commissioners v. United States, 152 F.2d 540, 542 (10th Cir.

1945); Board of County Commissioners v. Seben, 130 F.2¢ 663, 668

20 been consistently and correctly adhered to in many subsequent 20 (10th Cir. 1941); Landman v. Comm'n Internal Revenue Service, 123

F.2d 787, 790 (10th Cir. 1941); Bryan County, Oxlahoma v. United

21 opinions, incluiding at least twenty-seven federal court decisions 21 States, 123 F.2d 782, 784 (10th Cir. 1941); Glacier County, Montana

v. United States, 99 F.2d 733, 734 (9th Cir. 1938) (does not cite

22 22 Choate, but states the ceneral provosition as to tax exemptions and

vested rights, and cites a previous Ninth Circuit case, United

23 23 States v. Nez Perce County, 95 F.2d 232 (9th Cir. 1938) in which

4 Choate is cited); United States v. Nez Perce County, 95 F.2d 232

24 Petition for Writ of Certiorari at 9. 24 (9th Cir. 1938); Board of Carmissioners of Tulsa County, Oklahoma v.

United States, 94 F.2d 450, 451 (10th Cir. 1938) - District Court,

25 25 Court of Claims - Agua Caliente Band of Mission Indians v. County

a) _ Of Riverside, 306 F.Supp., 279, 284 (C.D. Calif. 1969); Choctaw

26 The Northern Cheyenne Tribe v. Hollowbreast, et al., 349 F.Supp. 26 Nation v. United States, 100 F.Supp. 318, 320 (Ct. Cl. 1951); Taunan

' 1302 (D. Mont. 1972). + VW. Jones, 90 F.Supp. 459, 463 (W.D. Okla. 1950); United States v.

27 27, Ferry County, Washington, 39 F.Supp. 1007, 1010, 1011, 1012 (E.D.

| Wash. 1941); United States v. Spaeth, 24 F.Supp. 465, 467 (D. Minn.

28 6 28 j1938); United States v. Ferry County, Washington, 24 F.Supp. 399,

The Northern Cheyenne Tribe v. Northern Cheyenne Defendant Class , 400 (E.D. Wash. 1938); McIntire v. United States, 22 F.Supp. 316,

29 of Allottees, Heirs and Devisees, 505 F.2d 268 (9th Cir. 1974). 29 320 (D. Mont. 1936); United States v. Powers, 16 F.Supp. 155, 162

30 |

7 od ie

31 Supreme Court of the United States Rules, Rule 19(b). 31 Approximately 62% of the Northern Cheyenne Indian Reservation is

' already owned by the Tribal Council and may be leased and mined re-

32 32 gardless of the outcome of this case. Only the remaining 37: 1s here

at issue.

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Indian owners of the coal will receive the royalties generated fram

such development. Thus, the energy policy issues presented by

Petitioner cannot be resolved in the instant case. Hence, mo new

question of profound general public importance is prese.ited by this

case.

I. The Background Of The Allotment System Clarifies The Nature Of

The Rights involved.

This brief explanation of the Indian land allotment system and

the type estates it produced is particularly important to a proper

understanding of the rights here at issue. This is because the

estates produced by an allotment system peculiar to Indian reserva-

tions are far removed from the "mainstream" of non-Indian law prac-

tice. Also Petitioner's claims asserting Concress' broad powers to

re-allocate Indian ee rests upon a failure to properly dis-

tinguish between the individual Indians’ proverty and conmunally heldé

tribal prowerty. This distinction is the key to resolving this

case.

Prior to their settlement on reservations, the Indians of the

North Plains knew no exclusive property rights to real property.

Rather, they viewed land as being for the communal, non-exclusive

use and occupancy of its inhabitants. When these people were

settled on reservations, they contimed to recognize the non-exclu-

sive use and occupancy of land as a proper mode of tenure.

During the late 1800's, it became apparent that most Indian

reservations were being surrounded by the non-Indian culture. Faced

with the problems attending such inter-cultural clash, Congress

deemed it advisable to hamogenize these cultural differences by con-

verting the Indian to the ways of the white man. Noting indivi-

Petition for Writ of Certiorari, at 18-23.

F.Cohen Handbook of Federal Indian law, 206-210 (1940).

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dual land ownership was essential to this cultural transition, Ccr-

gress implemented a system dividing tribal lands into parcels for

ownership by individual aon," This was the allotment system. as

The allotment system set forth a scheme for the transition of

Indian lands from tribal ownership to ownership by individual

Indians. This transition had several in In each successive

phase, the allottee acquired more complete title util finally he

could take a fee patent.

So long as the land was tribal land, the indivicual Indian had

no vested right in such waa However, once the individual

Indian chose and filed his application for the allotment, the land

Act of Feb. 8, 1887, 24 Stat. 388 and various implementing acts.

Commenting on Congress' Legislative motives, Mr. Cohen wrote: "The

Supreme aim of the friends of indian was to substitute white civi-

lization for his tribal culture, and they shrewily sensed that the

difference in concepts of property was fundamental in the contrast

between the two ways of life....So om the one hand, allotment was

counted on to break up tribal life." Cohen, Handboox of Fecerai

Indian Law, 208 (1940).

The U.S. Supreme Court described the transition of title under

the allotment system as follows: "For a long period Concress pur-

sued the policy of imposing as rapidly as possible, our system of

individual land tenure on the Indian. To this end tribal or commal

land holdings of the Indians were swperceced by ailctment to incivi-

Guals, wo were protectedc against improvicence oy restricticns cn

alienation.” Arenas v. United States, 322 U.S. 419, 420-21 (1944).

(emphasis added).

For further accounts on the develooment of the allotment system

see: J. Kimey, A Continent Lost - A Civilization ion (1937); D.S.

Otis, History of the Alloment Policy (1934) foune at the Hearincs,

Committee on Ind. Aff. 73rd Cong., 2d Sessicn on H.R. 7902 (1934).

These allotment acts typically provided for the reservation to

be surveyed into tracts, emrolled members of the tribe could select

a parcel as their allotment, upon approval of such allotment by the

Secretary of the Interior a trust patent issued on said allotment,

and that upon the expiration of the 25 year restraint on alienation,

the Indian could receive a fee patent on the land.

United States v. Jim, 409 U.S. 80 reh.den. 409 U.S. 1118 (1972);

Gritts v. Fisher, 224 U.S. 640 (1912);

Also see F. Cohen Handbook on Federal Indian Law, 183-85 (1940).

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was removed from tribal ownership. The allottee's richts in the

land vested either when his completed application was filed or when

the Secretary of the Interior approved the application.

Once the

application was approved, the trust patent issued. Under the trust

patent the United States held legal title as quardian of the allottee

while the allottee held equitable title to the land. The

allottee's equitable title is regarded as fee title subject to a

20 21

restraint on alienation enforced by the goverrment. The

allottee's title was also predominate over any interest the tribe may

22**

and if the minerals pass with the allotment

they are the allottee's property protected by the Constitution.

claim in such land,

Raymond Bear Hill, 52 1.D. 688 (1929).

The applicable date depends on whether the allotment act speci-

fic to that reservation gives the Secretary of the Interior descre-

tion in issuing the allotment. See Arenas v. United States, 322

U.S. 419 (1944) particularly United States v. Arenas, 158 F.2d 730

(9th Cir. 1946) cert. denied, 331 U.S. 642 (1937); Pa,mond Bear Hill,

52 I.D. 688 (1929); Richts of Indians to Allotments in San Juan

County, Utah, 57 1.D. 547 (1947). ‘The case accmmowlecging the Sec-

retary's cescretion was St. Marie v. United States, 108 F.2d 876

(9th Cir. 1940), cert. denied, 311 U.S. 652 (1940) however this case

is rather weak due to the later Arenas, cases.

Act of Feb. 8, 1887, 24 Stat. 388(5); Payne v. New Mexico, 255

U.S. 367 (1921); Rights of Indians to Allotments in San Juan County,

Utah, 57 I.D. 547 (1942).

Arenas v. United States, 322 U.S. 419, 421 (1944). Mott v. United

States, 283 U.S. 747, 749 (1931). Fish v. Wise, 52 F.2d 544 (10th

Cir. 1931) cert. denied 282 U.S. 903 (1931).

Act of Feb. 8, 1887, 24 Stat. 388.

Heckman v. United States, 224 U.S. 413 (1912).

22**

In Fish v. Wise, 52 F.2d 544 (10th Cir. 1931) cert. denied, 282

U.S. 903 (1931) the Tenth Circuit specifically rejected a tribe's

attempt to reallocate the mineral estate of Indian allottees.

Mott v. United States, 283 U.S. 747 (1931).

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However, the allottee could not alienate the land so long as the

federal goverrment held the land in trust. Once the period for

holding the land in trust had e@ired, a patent in fee, free of all

encumbrance, could be issued to the allottee or his a,"

Not all reservation land was allotted. Some was sold to non-

Indian homesteaders and some remainded under tribal ownership. In

1934 the allotment of land m_*

There are presently several types of ownership of reservation

land: land which had been allotted and is in individual Indian

ownership; land owned by non-Indian individuals and; land which is

not allotted and remains in tribal ownership.

Thus, commonly held tribal land is a very different estate than

the individually owned Indian allotments (here at issue).

As a result, Congress may not indiscriminately exercise con-

trol over reservation lands. Rather, the extent to which Congress

may exercise control over such land depends on the type ownership

of the land. Congress may re-allocate benefits of tribal land as

it pleases but may only manage individual procerty (here at issue)

subject to the constitutionally protected property rights of the

individual owners.

II. Choate v. Trapp Proverly Controls The Result of The

Instant Case.

The Ninth Circuit relied on Choate v. Trapp, 224 U.S. 665 (1912)

Act of Feb. 8, 1887, 24 Stat. 388(5); 25 C.F.R. 121.

Act of June 18, 1934, 48 Stat. 984.

The reason for this being that no individual's rights have

vested to interfere with such reallocation. See United States v.

Jim, 409 U.S. 80, reh. den. 409 U.S. 1118 (1972); Gritts v. Fisher,

224 U.S. 640 (1912).

Choate v. Trapp, 244 U.S. 665 (1912).

English v. Richardson, 224 U.S. 680 (1912).

Also see cases cited in footnote 8**.

-8-

in recognizing the Indian allottees' constitutionally protected

tected fran divestment or diminishment (including "reallocation”)

2 | property richts. However, the Petitioner tries to cast doubt on this 2 ! by the due process clause. It is most important to note that the

3° reliance by confusing rights incident to tribally owned property 3 rights in Choate were the rights of individual Indian allottees in

4) (communally osned) with rights incident to individually owned pro- 4 | their land held under TRUST ——es This is the same interest

5 | perty. The distinction between tribal and individually owned pro- | 5 ! and the SAME TYPE EST?Z presented by the Respondent/Allottees in

6. ay ee ee ee ee ee 6 the case at bar. Consequently, Choate caompells a recognition of the

7, 665 (1912) and Gritts v. Fisher, 224 U.S. 640 (1912). Analysis — 7 Northern Cheyenne allottees' vested rights in their allotment land.

8| of these two cases proves the Ninth Circuit's decision below correct. 8 Recognition of the allottees' property rights, in turn, corpells

9 | . 9 : affirmance of the Ninth Circuit's decision below.

10 ! II.A. Individual Indians Have Constitutional Richts In : 10 | The second important point in Choate v. Trapp is that due pro-

Individually Oxned Trust Allotments According To Choate v. Trapp.

cess protects against action by the federal goverrment. This is

Choate, controls the result of the instant case because both 7 |

)

, , important because only the federal covernment has the board plenary

Choate and the instant case involve the individual Indians’ rights |, — ' 33

powers resulting fran its guardianship relation to the Indians.

in their individually owned property.

tly, striki down a federal Indian statute brincs

In Choate the Choctaw and Chickasaw Indians took allotments a ~— ons

—_

, Choate further in point, and specifically limits Congress’ other-

under authority of a statute which provided such land was tax — - ’

—

Again, Choate v. Trapp, 224 U.S. at 674 emphasized: "Under the

provisions of tne Firth Avencment there was no more power to deprive

him of the exemption than other richt in the property. %o statute

would have been valid which reduced his fee to a life estate or

attempted to taxe from him ten acres, or fifty acres, or the timber

,; growing on the land....It is conceded that no richt whic was act~

Fifth Amencment due process clause. ually conferec uncon the Indian can se aroitrariliy acrocaces oy

20 ee ae eer 20 statute." (e7p7asis adced)

The Choate decision is important for several reasons. ' The fact that diminishment, hence “reallocation” of individual

21 , ' | 2! property is prohibited is particularly important in light of the

First, Choate recognized Indians’ rights in their individually trial court's attaching considerable importance to this just being

exempt. A later federal statute repealed this tax exemption. How

“I

ever, this Court held the later statute, allowing taxation, divested

rights of the allottees in their individual property, violated the

22 30 , 22 a “reallocaticn” somehow removing the divestment problem. See

owned property. Such property rights are constitutionally pro- Northern Chevenne Tribe v. Hollowbreast, 349 F.Supp. 1302, 1311

23 26** 23 (D. Mont. 1972).

It is particularly useful to read these two cases together.

24 While they were not campanicn cases as such, they were both present- 24 32

ed to this Court during the sane term and both opinions were deliv- Only under trust allotments are restraints on alienation imposed

25 ered on the save Gay. Thus, both cases, were on the Justices’ minds 25 (See n. 18, 19, 20, & 24.) The later statute allowing taxation also

when they were formulating both decisions and both the Gritts case attempted to remove this restraint. Since the rights must have vested

26 and the Choate case appear to be drafted to acknowledge and campli- 26 prior to passace of this later statute, (See Reply Brie= of Appell-

ment the otner. | ants Williazson and Bowen to the Ninth Circuit pases 17-19) such

27 5 : 27 rights must have bested in trust allotments.

28 U.S. Const. Amend. V. | ae

Worcester v. Georgia, 6 Pet. 515 (1832) held the federal govern-

29 0 99 ment is guardian of the Indians, such guardianship being immune from |

Choate v. Trapp, 224 U.S. at 677 stated: “There have been com “" - Gmterterence by the states. See also Williams v. lee, 358 U.S. 217

30 paratively few cases which discuss the legislative power over pri 30 (1959), and McClanahan v. State Tax Commission of Arizona, 411 U.S.

vate property held by Indians. But those few all recognize that he © 164 (1973).

31 is not excepted from the protection guaranteed by the Constitution. 31

His private richts are secured and enforced to the same extent in 34

32 the save way as other residents or citizens of the United States." 32 Since the case at bar also involves a federal] statute, Act of

(empnasis addced) July 29, 1968, 82 Stat. 424, the holding in Choate is, in principle,

a on directly in point so as to be controlling in this case.

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10.

wise broad guardianship powers. Petitioner emphasizes Congress’

guardianship iin However, Congress’ guardianship powers were |

also before this Court in Choate and this Court specifically rejected

this argument when weighed against the constitutional rights of

Indian individuals.

".... it was said that incompetent persons,

though citizens, may not have the full right

to control their property and there was noth-

ing in citizenship incompatible with quardian-

ship,....But there was no indication that the

power of wardship conterrec aut: pority ¢ cn Con-

gress to lessen any of the richts of proverty

which have been vested in ce individual indian

by prior laws or contracts. Such rignts are

protected fram reveal by the crovisions of the

Fifth -avenczent." Choate v. Trapp, 224 U.S. at

578 (emphasis added).

Thus, the Choate decision and the Ninth Circuit's decision below

parallel each other in many respects: both involve individual Indians'

property richts; both involve property rights in trust allotments;

both affirm the existence and protection of such richts; both re-

ject attempts to divest such rights by a later federal statute; and

both limit the federal govermment's powers as guardian of the Indians’

private property. In the face of these parallels Choate clearly

controls the disposition of the instant case. Consequently, the

Ninth Circuit's decision below is correct.

II1.B. Individual Indians Have No Richt Or Enforceable Title In

TRISAL Property accorGing To Gritts v. Fisher.

Gritts v. Fisher, compliments Choate in defining the extent of

individual Indians’ property rights in estates peculiar to Indian

reservatims.

In Gritts enrollment on the tribal rolls closed on a given date.

Petition for Writ of Certiorari, at 18-23.

224 U.S. 640 (1912).

See n. 28.

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PONDS? SEED GES’: EEE EEE

Only those enrolled prior to that date were lecally members of the

tribe. The tribal land was to be allotted among the enrolled mm

bers. The left over tribal land was to be sold to homesteaders with

the proceeds to be distributed among the enrolled members. A later

statute re-opened the tribal rolls to permit additional enrollment.

The original enrollees sued to prevent diminishment of their share

of funds fram liquidation of the TRIBAL PROPERTY. Hence, the issue

in Gritts was: Did the original enroliees have a vested right in

the proceeds fran TRIBAL property? This Court answered, "NO".

While an individual Indian holds no vested right in tribal property,

the Gritts decision carefully pointed out it deals ONLY WITH TRIBAL

PROPERTY, not with individual nee.” In fact the Gritts

decision expressly disclaimed any right to reallocate individual

iain in recognition of the Choate decision. Similarly, the

Choate decision expressly recognized the Gritts a denying

individual rights in tribal property.

In conclusion, Choate recognized vested rights in individually

owned allotments while Gritts denied such rights in tribal property.

Since Choate and Gritts cealt with different types of estates, they

do not contradict each other. Accordincly, Petitioner's claim that

Gritts and its iniaaiaaiaaaion undermine Choate is in error.

"It is not proposed to disturb the individual allotments....”

Gritts v. Fisher, 224 U.S. at 647. And again: "As has been indicated

their individual allotments are not affected.” Id. at 648.

"...-It is conceded, and procerly so, that the latter legislation

is valid and contrelling wiless it impairs or destroys rights which

the act of 1902 vested in members living Septemoer 1, 1902, anc en

rolled under that act. As has been indicated, their individual allot-

ments are not affected.” Gritts v. Fisher, 244 U.S. 640, 648 (1912)

(emphasis added). Thus, the court was careful to point out that no

vested rights were involved because it only affected the sale of

tribal property and the proceeds fram that sale which was also tribal

property.

40 i

Choate v. Trapp, states: "The individual Indian has no title or'

enforceable right in tribal property." 224 U.S. at 671.

See n. 66, 67, 68 69, 70 & 71.

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II.C. The Decision In Choate v. Traco Is Sased On Statutory,

~ot Contractual, Fuc.ts.

_—_

Petitioner claims Choate v. Trapp, deals only with contract

rights.

Choate in this respect, this “contract right” interpretation of

While the dicta of a few decisions appear to misread

Choate is rejected by:

The legal basis of Choate;

The specific language of the Choate decision;

Substantial case law following the Choate decision;

and, Interpretation by the leading scholar in the field.

Additionally, according to substantial authority, any contract

or treaty rights at stake in Choate could have keen altered by subse-

quent federal statute (a result opposite that of Choate). Hence,

contract richts could not supply the basis of the Choate decision.

If the Indians’ rights in Choate rested upon contract rights,

the Choate decision would have rested on the “impairment of contract"

tie,” However, the Choate decision contains no mention of the

"impairment of contract" clause. Rather, the Choate decision hinges

on Fifth Amenczent due process rights. Thus, the legal basis of

the Choate cecisicon requires the rights there involved be statutory

property rights, not contract rights.

The language of the Choate decision specifically disclaims any

reliance on any contract or treaty rights. The Court stated:

"The cuestion in this case, therefore, is

mot wnetner the plaintiffs were parties to

the Atc<a egreament, Dut woetner they nad

mot asccuriec ricnts wicer tre Curtis Act

wnich are ncw crocectec oy the Constitution

of the Unites States.” 224 U.S. at 6/1.

This quote spells out that contract rights (the Atoka agreement

being the supposed contract) were not at issue. Rather, statutory

Petition for Writ of Certiorari, at 15-18.

U.S. Const. Art. l, Sec. 10.

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based property rights (the Curtis Act being the allotment act) were

at issue. Also other language in the Choate decision re-affirms the

allotment act as the source of the allottee's rights.

On several occasions in his noted treatise, The Handbook of

Federal Indian Law, Felix Cohen specifically interprets Choate as

45 46

protecting private property rights stemming from a statute. Mr.

Cohen is undoubtedly the foremost expert in this field to date.

Accordingly, his interpretation should be most persuasive, and is

indeed correct.

47 48

Futhermore, English v. Richardson, Ward v. Love County = and

For instance: "Those who signed the patent could not convey

more richts than they were cranted by that part of the Curtis Act..

coe” 224 U.S. at 673 (emphasis acced). And; “The patent issued in

pursuance of those statutes cave the Indian as cood a titie to the

exemption as it did to the land itseir.” 224 U.S. at 6/3-74. (empha-

sis added).

Mr. Cohen states; "As in the case of private crooerty cenerally,

Concress cannot deprive an Indian of his land or any interest there-

in without Gue process of law or take such property for public pur-

poses without just compensation. An outstandins cecisicn cn the

subject is Cuoate v. Traco....” F. Cohen, Hancoocx cz Feceral

Indian Law, 97-33 (1940). (emphasis added)

Also, "Under the United States Constitution, the richts of the

Indian in his vrivate proverty, whatever they may be, are secured

and enforced to the same extent and in the same way as other resi-

dents or citizens of the United States." Id. at 195 (emphasis added)

citing Choate v. Trapp.

"The principle of construction in favor of Indians is also

applied to Concressional statutes", F. Cohen, Handboox of Federal

Indian Law, 172 (1940), citing Choate v. Trapp, as autnwority for

this proposition.

Also, "The leading case of Choate v. Tranop, held that under

this statute allottees accuired a vested proverty rich= to exemption

from state taxation....amd could not be impaired by supsecuent Con-

gressional action without violation of the Fifth Amencnent of the

Federal Constitution.” Id. at 437. (emphasis added)

224 U.S. 680 (1912).

253 U.S. 17 (1919).

Carpenter v. Shaw, were all decided by this Court, all involved

the very same statutory tax exemption as Choate and all expressly -

interpreted Choate as recognizing sta‘utory based aa toe rights.

Petitioner's reliance on the dicta of Brader v. James, amd its

dealt with the Indians’ personal status as a ward, ale anata

rights. This distinction was expressly noted in Choate, and was

280 U.S. 363 (1929).

— <

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In English v. Richardscn, this Court stated: "The right to the

plaintiff to the exacption cranted by Congress is protected by the

Constitution on principles stated and applied in Choate v. Trapp."

224 U.S. at 68]. (emphasis added)

fact that the U.S. Supreme Court acknowledced these rights

as "granted by Congress” indicates these rights were statutory

rights.

Again in ward v. Love County, this Court stated: "This was

settled in Choate v. Tracp.....and was also settled in those cases

that the exemption was a vested property right arising out of a law

of Concress and crotected by the Constitution of the United States..

...througn the vending suits and ctnerwise they were cbjecting and

protesting taxation of their lands which had been forbidden by a

17 law of Congress. “ 253 U.S. at 20, 23. (emphasis acced).

Ana Still acain in Carpenter v. Shaw, this Court referred to

_—-_— —_ —

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18 Choate stati: "It was tnere heid tnat the provision for the exem>-

tion rm upon the allottees’ croperty rights wnich were within

19 the protection of the Fifth Amendment and hence it was not subject

to repeal by later Concressicnal legislation;...." 280 U.S. at 365-

20 66 (1929). (emphasis added)

2! 51 !

245 U.S. 88 (1918).

- 52 :

23 Actually Bracer basically reaffirmed Ticer v. western Investment

Co., 221 U.S. 250 “Jeo (1911) and United States v. Jacxson, 280 U.S. 183

24 (1930) reaffirmed Brader and Ticer. Uncerstandably Petitioner is

reluctant to Cite the lead case, se, ricer, since Choate expressly recor

25 ciled Ticer's holding (and in tum Brader and Jacxson' Jacxson's).

See the next footnote for the text or this "reconciliation".

27 33 ieee eure

The Choate decision stated: "Nothing that was said in Tiger v.

28 western Investment Co.,++.-is Opposed to the same conclusion here.

For that case cia not involve vroverty richts, but related solely

29 to the power oO: Congress to extend the period of the Indians'

disability. The statute did not attempt to take his land or any

30 right, member, OF noe thereto belonging. it left that as

it was." 224 U.S. at 678 (1912). (emphasis added) This decision

3] waS also quick to note that wardship provided no basis for impairing

vested property rights. (See this brief at 1l and n. 77.)

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dealt with at length in the briefs below.

In short, On mmerous cccasions, this Court has adopted a broad

interpretation of Choate specifically contradicting Petitioner's

"contract rights” misinterpretaticn.

In addition, numerous cases have held that tribal contracts or

treaty rights may be changed by subsequent federal ieee” In

fact, the Choate decision expressly agrees with this inition

Therefore, if the allottees in Choate premised their case on con-

tract rights under the Atoka agreement, they would have lost. By

using Petitioner's "contract" theory of Choate, it would have been

decided directly contrary to its actual results. Clearly, Peti-

tioner's MISunderstanding of Choate could not be more complete.

III. The Allottees' Remainder Interest In The Mineral Estate Was

Conveyed By Tne Oricinal Trust Patents

The Northern Cheyenne allotment act of 1926 fully conveyed the

mineral estate with the allottees' remainder interest vesting upon

See Defendants Williamson and Bowen's Brief in Opposition to

the Petition for Rehearing submitted to the Ninth Circuit below.

pp. 11-13.

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); Thomas v. Gay, 169

U.S. 214 (1898); United States v. White, 508 F.2d 453 (8th Cir. 1974);

Nicodemus v. Washington Water and Power Co., 264 F.2d 614, 617 (9th

Cir. 1959); National Indian Youth Council v. Bruce, 366 F.Supp.

313, 316 (N.D. Utah 1973); United States v. 2,005.32 Acres of Land

etc., 160 F.Supp. 193, 196 (N.D. So.Dak. 1958).

"There are many cases....recognizing the plenary powers of Con-

gress over Indian Tribes and tribal property cannot be limited by

treaties so as to prevent reveal or amencnent by later ‘statute’.

The tribes have been regarced as Cependent nations, and treaties with

them have been looked upon not as contracts but as public laws which

could be abrogated at the will of the United States. For although —

the Atoka agreement 1s in the form of a contract, it is still an

integral part of the Curtis act, and, 1f not a treaty, is a public

law relating to tribal property, and as such is amendable and repeal-

able at the will of Congress.” 224 U.S. at 671. (emphasis added).

Act of June 3, 1926, 44 Stat. 690.

-16-

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campletion of their allotment applications. This is indicated by the

| mandatory language of the statute, its legislative history and the

amission of language delaying the conveyance common to other allot-

ment acts.

The allotment act states wmequivocally, the minerals “shall be-

came the property of the respective allottees". While "shall be-

came" delays the possession of the minerals, “shall” is mandatory

language requiring a present vesting when the allottees’ rights

attach. The allottees’ rights to equitable title vest upon cm

pletion of nade allcwune egblianiens ub

the equitable title. The allottees' applications must have been

Consequently, the

campleted and filed prior to June 18, 1934.

allottee's remainder interest in the minerals were perfected by

1934.

The legislative history of the Northern Cheyenne allotment act

confirms a deliberate Congressional intent to convey the minerals

to the allottees. An amendment to this act which would have allotted

See n. 16, 17, 18; also Arenas v. United States, 322 U.S. 419

(1944); Wyoming v. United States, 255 U.S. 489 (1921); Payne v.

New Mexico, 255 U.S. 367 (1921); Richt of Indians to Allotments in

San Juan County Utah, 57 I1.D. 547 (1942); Allotment Selections q@

the Fort Belxap Indian Reservation, 55 I.D. 295 (1935); Raymond

Bear Hill, 52 I.D. 688 (1929); Benson Min. & Smelting Co. v. Alta

Min. & Smelting Co., 145 U.S. 428 (1892).

Mott v. United States, 283 U.S. 747 (1931); Wyoming v. United

States, 255 U.S. 489 (1921); Particularly see Raymond Bear Hill,

52 I.D. 688 (1929) which held an amencnent to an allotment act re-

serving the minerals to the tribe did not affect allotments applied

for prior to passage of the anendzent.

The Wheeler-Howard Act, Act of June 18, 1934, 48 Stat. 984

terminated allotment of tribal land. Only allotment applications

perfected as of that date were issued. See Allotment Selections

On The Fort Belxnap Indian Reservation, 55 I.D. 295 (1935).

61 i

Hence Petitioner's attempt to distinguish Choate v. Trapp, on |

the basis that it only prctects completed allotments (Petition for

Writ of Certiorari p. 17) must fail because all the allotments were

campleted by 1934!

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only the “surface rights” was proposed, considered and rejected.

In response to this amendment Congress gave the remainder mineral

interest to the allot*tees. This indicates a deliberate, calcul-

ated Congressional desire to give the minerals to the allottees.

By contrast, on other reservations Congress either gave the

IT lila Ga cemiiitin” ey secsmat tes egtien

extend tribal ownership by including an “unless otherwise provided

by om proviso in the grant of minerals. This “umless other-

wise provided by Congress” language became a commonly used method

of keeping Congress’ options open, ard was used in numerous allot-

ment acts drafted prior to the Northern Cheyemne's allotment act.

The conspicuous absence of this commonly used statutory language

indicates Congress recognized allo:tees' immediately vesting inter-

est in the minerals.

“62

See Petition for Rehearins, pp. 13-15. H.Pep.No. 383, 69th

Cong. Ist Sess. S.Rep.No. 638, 69th Cong., lst Sess.

Petition for Rehearing, p. 14. S.Rep.No. 638, 69th Cong., lst

Sess.

64 . .

Act Of March 3, 1927, 44 Stat. 1401, 41 Stat. 408 dealing with

the Fort Peck Indian Reservation (this is actually an amendment to

the allotment act but it did not affect allotments perfected prior

to the amendments' passage. See Raymond Bear Hill, 52 1.D. 688

(1929) .)

Among the allotment acts using the "unless otherwise provided by

Congress" language are the Act of June 28, 1906, 34 Stat. 539 deal-

ing with the Osage Indian Reservation (see Adams v. Osage Tribe, :

59 F.2d 653, (10th Cir. 1932) for an interpretation of this proviso) ;

the Act of May 29, 1908, 35 Stat. 460 concerning the Standing Rock

and Cheyenne River Reservations; the Act of June 30, 1919, 41 Stat.

17 concerning the Blackfeet Indian Reservation; the Act of June 4,

1920, 41 Stat. 751 ing the Crow Indian Reservation; and the

Act of March 3, 1921, 41 Stat. 1355 concerning the Fort Belknap |

Indian Reservation. Note, all these statutes were drafted prior to

the Northern Cheyennes’ allotment act here at issue.

IV. Concress' Authority In Conducting Indians Affairs Does Not

Otrerwise Permut Civestinc Vestec AL.ctT ent Fucnts.

This section is a reply to the Petition for Writ of Certiorarl,

pages 18-22. On this point, Petitioner claims Congress retains

power to reallocate tribal property, even though such power is not

expressly reserved. Here Petitioner paints the issues involved

with a very broad brush so as to misconstrue the authorities cited,

and blur the distinction between individual and tribal property.

All the authorities Petitioner cites fall into several cate-

gories which clearly do not apply to the rights at stake in the

instant case. Petitioner's authorities on this point may be cata-

gorized as follows:

1. The following cases deal only with tribal land, not indivi-

dually owned property:

United States v. Jim, 409 U.S. 80 (1972) 67

Chase Jr., v. United States, 256 U.S. 1 (1921)

United States v. Rowell, 243 U.S. 464 (1917) 68

Sizemore v. Brady, 235 U.S. 441 (1914) 69 70

Nadeau v. Union Pacific Railroad, 253 U.S. 442 (1920)

The Jim case involved distribution of royalties fram tribal

lands, thus it correctly applied the Gritts rule for the realloca-

tion of tribal property.

In Chase, Jr., a statute terminated allotment before Mr. Chase

had selected his allotment. This court held that no individual

rights had vested (since an application for an allotment was not

timely filed) so the land remained tribal and could be re-allocated.

In the Rowell case an allotment application of a non-Indian was

revoked prior to issuance of the patent. This court held that prior

to issuing the patent, the land remained tribal and the individual's

rights had not vested yet.

The Sizemore case involved inheritance rights in an allotment

when the allottee died prior to actually receiving the allotment.

This court held that the land was still tribal so Congress could

amend the inheritance distribution after the allottees’ death.

The Nadeau case involved only UNallotted land given to the rail-

road.

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. 71

United States v. Chase, 245 U.S. 89 (1917)

aD ED Gee Cas andy wa tribal land, they fall under

the Gritts rule, rather than the Choate mule. Consequently, they

are not applicable to the instant case.

2. Most other cases cited deal with the personal status of

the parties, not their property rights per se. (i.e., personal

rights and privileges such as citizenship and treaty rights pecu-

liar to Indian persons, or limitations on personal rights such as

wardship).

This category imay be divided as follows:

(A) Personal characteristics (or status) which serves as a

condition prior to allotment elicibility. The following cases fit

this category:

Lowe v. Fisher, 223 U.S. 95 siz)

Wallace v. Adams, 204 U.S. 415 (1907) 74

Stephens v. Cherokee Nation, 174 U.S. 445 (1899) 75

“71

The Chase case involved a dispute over a tract of land be

r tween

one who clained under a right of occupancy throuch a treaty, and

one who claimed the land through a later allotment statute. The

rg nly roe the allotment act prevailed. Prior to the allotment

retained its tribal character and no rich

~ ights could vest

See section IIB of this Brief.

In Lowe this Court held the Secretary of the Interior cou

Check the tribal enrollment list and exclude persons <n

enrolled. Tribal enrollment was a pre-recuisite to allotment

eligibility. Consequently, the allotment could also be revoked,

because the allotment’s pre-requisites had not been met so the

rights never actually vested.

Both Wallace v. Adams and Stephens v. Cherokee Nation involve

the same basic issue as Lowe but the tribal enrollment is cast in

yoy — All these cases reach the sa result.

n. .

See n. 73 and 74.

pn Cr Oe eC <a — en”. a. <n en

erate

2 enme ew

wears Ber!

Since the issues in these cases involve pre-requisites for

allotment eligibility, they address the allotment process prior to

any vesting of individual rights. Consequently, any principles set

forth in these cases have no bearing on the instant case.

(B) Other conditions dealing with the Indian's personal

status as a ward of the goverrment:

United States v. Jackson, 280 U.S. 183 (1930)

Brader v. James, 246 U.S. 88 (1913) 78

—76

See n.52, 53 and 77 and Defendants Willianscn and Bowen's Brief

in Opposition to the Petition for Rehearing, pp. 11-13.

Most of the cases in this category involve the question of

whether Congress can extend the period of the restraint on alienation

of trust allotments. These cases are Ticser v. testern Investment Co.,

Goat v. United States, Heckzan v. United States, Bracer v. Jaces,

and Unitec States v. Jacxson. Ticer is the lead case. This Court

held that the restraint on alienation was an attribute of the Indian's

wardship. Thus, it related to his personal status, not a property

right. Moreover this Court in Choate v. Tracs, expressly noted this

distinction and reconciled the results of Choate and Ticer.

The Choate decision stated: "Nothing that was said in Tiger v.

Western Investment Co.,....is opposed to the same conclusion here.

For that case did not involve vroverty richts, but related solely to

the power of Concress to extemd tne period or the Indian's dis-

ability. The statute did not attempt to take his land or any right,

member, Or appurtenance thereto belonging. It left that as it was.”

Choate v. Trapp, 224 U.S. 665, 678 (1912) (emphasis added).

The Court was quick to add that wardship provided no basis for

abrogating property rights.

"But there was no intimation that the power of wardship con-

ferred authority on Congress to lessen any of the rights of property

which had been vested in the individual Indian by prior laws or con-

tracts. Such rights are protected fram repeal by the Fifth Amend-

ment.” Id. at 678.

Choate also distincuished the restraint on alienation due to

wardship included in Ticer fram the tax exemption property right as

follows: "But the exemption and non-alienability were two separate

and distinct subjects. One conferred a right and the other imposed

a limitation..... The right to remove the restriction was in pursuance

of the power under which Congress could legislate as to the status of

the ward and lencthen or shorten the period oz disability. But the

provis*on that the land should be non-taxable was a property right,

which Congress undoubtedly had the power to grant. That right fully

vested in the Indians and was binding upon Oklahoma. Id. at 673.

(emphasis added).

Goat, Hecknan, Brader and Jackson just re-affirmed Tiger.

See n. 77.

= 68

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State

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Williams v. Johnson, 239 U.S. 414 (1915) 80

United States v. Sartiett, 235 U.S. 72 (1914)

Heckman v. United States, 224 U.S. 413 (1912) 81

Goat v. United States, 224 U.S. 458 (1912) 82

Tiger v. Western Investment Co., 221 U.S. 286 (1911) 83

Since these cases deal with the Indian's personal status as a

ward, NOT with property rights, they are not applicable to the

instant case.

3. Petitioner's only remaining authority is Sweet v. Schock,

245 U.S. 192 (1917). The issue in this case was whether an allot-

ment's tax exemption runs with the land or requires contiming

Indian ownership. This case held that when an allotment is sold to

a non-Indian, the tax exemption ceases. This case did not divest

any Indian's rights to a tax exemption as Petitioner would have us

believe.

Indeed this Court has held directly contrary to Petitioner's

claim that guardianship serves as no justification to confiscate

“79

In Williams v. Johnson the question was the converse of the

Tiger case. The issue was whether Consress could end the restraint

on alienation prior to the original statutory period. This Court

held such early termination was legal, again using the Ticer ration-

ale that the restraint on alienation was a personal attribute of

wardship, not a property right.

The Bartlett case simply held the extending restraints on aliena-

tion did not apply to land existing under a fee patent (freed from

the restraint on alienation) prior to the passage of the act.

~—6Bl

See n. 77.

The statute dissolving tfMe tax exemption upon alienation of the

land was passed prior to the lard’ sale at issue. Consequently, the

purchaser took subject the statute's terms.

—_ 2 i «>.

-21- , , -22- |

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Indians' property.

The above listed cases distinguish EVERY case cited by

Petitioner in the Petition for Writ of Certiorari, at 18-23.

In conclusion, Petitioner's authority is, at best, out of

point. As such it supports neither the issues as stated by Peti-

tioner nor the issues of this case. As such Petitioner's claim

should be rejected.

CONCLUSION

In Conclusion, the Ninth Circuit correctly interpreted Choate v.

Trapp in the decision below. Accordingly, the recognition and en-

forcement of the allottees' vested remainder in the minerals was

proper. Also, upon examination, Petitioner's authority does not

actually undermine Choate or its application to the instant case.

As a result, this Court should deny jurisdiction and allow the

Ninth Circuit's opinion below to stand.

Respectfully submitted,

MONTANA LEGAL SERVICES ASSOCIATION

601 Power Block

Helena, Montana 5°001

Attorneys for Respondents Wiljiamson

and Bowen

Lane v. Santa Rosa, 249 U.S. 110 (1919) at 113 stated "That

would not be an exercise of guardianship but an act of confiscation"

and prohibited the federal goverment's abrogating Indian property

rights. Also see Choate v. Trapp, andn. 8.

CERTIFICATE OF MAILING

2 This will certify that a true and correct copy of the

3 | aforegoing Brief In Opposition To The Petition For writ Of Certiorari

4 ! was mailed on the 20th day of August, 1975, to:

5 |

Ziontz, Pirtle, Morisset,

6 | Eranstoff and Chestnut

208 Pioneer Building

7) 600 First Avenue

8) Seattle, WA 98104

9 | Lewis E. Brueggemann

Attorney at Law

10 | Hart Albin Bldg.

” Billings, Mr 59101

12 | Otis Packwood

U.S. Attorney

13 316 N. 26th

* Billings, MT 59101

15:

16 ;

eek: (2 ti bh

17 " Montana Legal Services Assn.

601 Power Block

18 Helena, MT 59601

19 BY Sandy Cornell

29 ‘

30 |

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.