Petition — Chase v. Wald

Supeame Cau

2 FILED ,

mig OCT 11 1977

pee:

el, MICHAEL RODAK,

IN THE \,

yt; ‘BupRane COURT OF THE. UNITED STATES

October Term, 1977

No. 77-

C7%- 534 *

em STATES OF AMERICA, ex rel. ELEANOR CHASE,

Peticioner,

Vv.

RONALD WALD and HAYDEN THOMPSON,

ay. Respoudents,

a proetersees- ones

Ae: PETITION FOR A WRIT OF CERTLOKAKL TO THE

vee UNITED STATES COURT OF AP) LALS

. FOR THE EIGHTH CIRCUL

ee

nee,”

Se, Kichard B. Collins

Jeanne &. Whiteing

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Judith A. Alwinson

North Dakot.. Lowa! Services

Box 217

New Town, ‘Norch Dakot (63

Counsel tor | tionet

October 1977

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No, 77-

UNITED STATES OF AMERICA, ex rel. ELEANOR CHASE,

Petitioner,

Vv.

RONALD WALD and HAYDEN THOMPSON,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner, Eleanor Chase, respectfully

prays that a writ of certiorari issue to review

the judgment and opinion of the United States

Court of Appeals for the Eighth Circuit entered

in this proceeding on June 20, 1977.

OPINIONS BELOW

The opinion of the United States District

Court for the District of North Dakota is unpub-

lished. The opinion of the Eighth Circuit Court

of Appeals is reported at 557 F.2d 157 (8th Cir.

1977). Both are appended to this Petition.

JURISDICTION

The judgment of the Court of Appeals was

entered on June 20, 1977. Chase's timely peti-

tion for rehearing was denied on July 12, 1977.

Jurisdiction is conferred on this Court by

28 U.S.C. § 1254(1).

QUESTION PRESENTED

Is a regulation defining the livestock

trespass penalty of 25 U.S.C. § 179 as $1 per day

per animal within the lawful authority of the

Secretary of the Interior?

STATUTE AND REGULATION INVOLVED

25 U.S.C. § 179 (R.S. 2117; 31 Stat. 871;

32 Stat. 504).

Every person who drives or

otherwise conveys any stock of

horses, mules, or cattle, to range

and feed on any land belonging to

any Indian or Indian tribe, with-

out the consent of such tribe, is

liable to a penalty of $1 per

animal of such stock. This sec-

tion shall not apply to Creek

lands.

25 C.F.R. § 151.24 (34 F.R. 9383).

The owner of any livestock

grazing in trespass on restricted

or trust Indian lands is liable

ee

ms | *¥ Sn od»

.

to a penalty of $1 per head for

each animal thereof for each day

of trespass, together with the

reasonable value of the forage

consumed and damages to property

injured or destroyed... .

STATEMENT OF THE CASE

Petitioner brought this qui tam action

in the North Dakdta Federal District Court seek-

ing recovery of damages and statutory penalties

for trespass to her Indian trust lands within

the Fort Berthold Indian Reservation and an

injunction against further trespass. The action

was brought in the name of the United States

pursuant to 25 U.S.C. § 201, and the trial court

sustained jurisdiction pursuant to 18 U.S.C.

§ 1355. Petitioner sought the penalty provided

by 25 C.F.R. § 151.24 and 25 U.S.C. § 179, Trial

to a jury resulted in judgment for plaintiff/

petitioner in the amount of $12,600. The jury

awarded $600 for forage consumed, $3,000 for

damage to the land, and $9,000 for trespass of

200 animals for 45 days calculated pursuant to

25 C.F.R. § 151.24.

Respondents appealed to the Eighth Cir-

cuit Court of Appeals, which reversed and

ordered that the trespass penalty be reduced

a$=

to $200. The Court of Appeals invalidated

25 C.F.R. § 151.24's definition of the trespass

penalty as $1 per day per animal as beyond the

authority of the Secretary of the Interior.

Petitioner Eleanor Chase is 71 years old

and an enrolled member of the Three Affiliated

Tribes of the Fort Berthold Reservation in

North Dakota. Land within the Reservation is

held in trust for her by the United States. On

August 30 or 31, 1973, she was informed that

cattle were trespassing on her land. On Septem

ber 6 she was able to reach the nearest offices

of the Bureau of Indian Affairs (BIA) to com-

plain. On September 10, the BIA notified

respondents that their animals were trespassing.

The animals were removed on September 29,

Evidence at trial showed that respondents’

animals had been on and off Mrs. Chase's land

since as early as May 6, 1973; the jury dated

its penalty award from August 15, 1973.

REASONS FOR GRANTING THE WRIT

I. THERE IS A DIRECT CONFLICT BETWEEN

CIRCUIT COURTS OF APPEALS.

The question presented by this petition

was also decided this year by the Tenth Circuit,

which reached the opposite result from the Eighth

Circuit. United States ex rel. Whitehorse v,

Briggs, 555 F.2d 283 (10th Cir. 1977). The

Tenth Circuit sustained the validity of the regu-

lation struck down by the Eighth, 25 C.F.R.

§ 151.24, reasoning:

To give the statute the con-

struction argued for here by

[defendant's] counsel would com

pletely defeat the intent of, and

purpose behind, the statute, and

would, for example, permit a cow

to trespass and graze on Indian

land for a day, a month, a year,

or forever, upon the payment of

a statutory penalty in the amount

of $1. We do not believe the

Statute dictates such a result.

Actually, both the statute

and the regulation are aimed at

the act of trespassing onto Indian

land. The intent behind both the

statute and the regulation is that

each trespass constitutes a

separate violation. As was noted

in Fraser v. United States, 261

F.2d 282 (9th Cir. 1958), cattle

have a proclivity to wander, and

the regulation in our view is an

attempt to recognize that fact.

In the instant case [defendant's]

afe

cattle trespassing onto Indian

land did not thereafter remain

stationary within the confines

of such Indian lands, but, on

the contrary, were constantly

exiting and re-entering such

land. The penalty prescribed

by the regulation is indicative

that the Secretary is aware of

the tendency of cattle to drift,

and the regulation itself consti-

tutes a proper exercise of the

Secretary's regulatory power.

555 F.2d at 288. Thus two federal circuits each

having large areas of Indian trust lands are

operating under very different legal rules

governing livestock trespass on Indian lands.

II. THE RULING OF THE COURT BELOW IS

ERRONEOUS .

The manifest intent of 25 U.S.C. § 179 is

to deter trespasses to Indian trust lands.

United States v. Ash Sheep Co.. 250 F. 592,

594 (9th Cir. 1918), affirmed, 252 U.S. 159 (1920).

The Eighth Circuit construed the statute to allow

of only one construction by the Secretary, to

permit a penalty of no more than $1 per animal

regardless of the duration of the trespass. As

the Tenth Circuit correctly notes in its opinion

olive

just quoted, this construction presents serious

practical difficulties. On the one hand a tres-

pass enduring for the life of the animal would

be compensable by a penalty of only $1, becoming

a very cheap way to lease Indian land. On the

other hand, an animal entering Indian land many

times per day could incur a very high penalty,

albeit one difficult of precise calculation.

Petitioner submits that the Secretary's regula-

tion, 25 C.F.R. § 151.24, is a valid and reason-

able definition to carry out the intent of

Congress.

In Ash Sheep Co. v. United States, 252

U.S. 159 (1920), this Court interpreted the term

"cattle" in 25 U.S.C. § 179 to include sheep, in

order to carry out the intent of Congress.

Despite the penalty, the Court concluded that

the statute must be given a construction which

"best harmonizes with the context, and most fully

promotes the policy and objects of the legisla-

ture.” 252 U.S. at 170. The crabbed construction

by the Eighth Circuit in the instant case fails

to accomplish this end.

The Executive Branch has broad authority

to issue regulations to protect Indian property

and resources. In addition to specific statutes

such as 25 U.S.C. § 179, Congress has conferred

general authority under 25 U.S.C. §§ 2, 9 and 466.

isthe

These statutes have been interpreted to allow

broad administrative discretion in Indian

affairs _/ Many Indian statutes require inter-

pretive regulations to carry out Congress’

intent. As this Court noted in a recent case:

The power of an administra-

tive agency to administer a con-

gressionally created and funded pro-

gram necessarily requires the formu-

lation of’ policy and the making of

rules to fill any gap left, implicitly

or explicitly, by Congress. In the

area of Indian affairs, the Executive

has long been empowered to promulgate

rules and policies, [citing 25 U.S.C.

§ 9] and the power has been given

explicitly to the Secretary and

his delegates at the BIA [citing

25 U.S.C. § 2). |

Morton v. Ruiz, 415 U.S. 199, 207 (1974). See

also Fraser v. United States, 261 F.2d 282, 286

1/

E.g., United States ex rel. West v.

Hitchcock, 205 U.S. 80 (1907); Udall v. Littell,

366 F.2d 668 (D.C. Cir. 1966), cert. denied, 384

U.S. 1007; Armstrong v. United States, 306 F.2d

920 (10th Cir. 1962); Board of Com'rs of Pawnee

County v. United States, 139 F.2d 248, 252 (10th

Cir. 1943), cert. denied, 321 U.S. 795; Rainbow

v. Young, 161 F. 835 (8th Cir. 1908).

(9th Cir. 1958). It is this gap-filling authority

which the Secretary exercised when he promulgated

the General Grazing Regulations, 25 C.F.R. Part

151.

It is equally established that "[w]hen

faced with a problem of statutory construction,

this Court shows great deference to the interpre-

tation given the statute by the officers or agency

charged with its administration." Udall v.

Tallman, 380 U.S. 1, 16 (1965).

The court below clearly accorded the

Secretary much less authority than previous

decisions of this Court, and its decision should

be reversed.

CONCLUSION

For the reasons stated, this Court is

respectfully requested to issue a writ of

certiorari to review the judgment of the Eighth

Circuit Court of Appeals in this case.

Dated October 1977.

Respectfully submitted,

Richard B. Collins

Jeanne S. Whiteing

Native American Rights Fund

1506 Broadway

Boulder, Colorado 80302

Judith A. Atkinson

North Dakota Legal Services

Box 217

New Town, North Dakota 58763

Counsel for Petitioner

APPENDIX

UNITED STATES of America ex rel.

Eleanor CHASE, Appellee,

Vv.

Ronald WALD and Hayden

Thompson, Appellants.

No. 76-1666

United States Court of Appeals

Eighth Circuit.

Submitted March 15, 1977.

Decided June 20, 1977

Rehearing and Rehearing En Banc

Denied July 12, 1977.

Kermit Edward Bye, Fargo, N.D., for

appellants.

Judith A. Atkinson, Pierre, S.D., for

appellee.

Charles E. Biblowit, U.S. Dept. of Jus-

tice, Washington, D.C., amicus curiae

for United States; Peter R. Taft, Asst.

Atty. Gen., and Raymond N. Zagone, Atty.,

Washington, D.C., on brief.

=

. Before MATTHES, Senior Circuit Judge,

and WEBSTER and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Ronald Wald and Hayden Thompson, de-

fendants in this action, appeal from a judg-

ment of the United States District Court

for the District of North Dakota” holding

them liable to plaintiff, Eleanor Chase, an

Indian, in the sum of $12,600.00 for having

permitted two hundred head of their cattle

to trespass on certain Indian grazing lands

in which plaintiff has a beneficial interest.

Plaintiff is an enrolled member of the

Three Affiliated Tribes of the Arikara, Gros

Ventre and Mandan Indians and resides on

the tribal reservation at Fort Berthold,

North Dakota. Grazing lands on the reser-

vation are held by the government in trust

for the Indians, and individual Indians, like

plaintiff, have beneficial interests in partic-

ular grazing allotments. The defendants are

non-Indians, and there is no diversity of

citizenship between the parties.

Although the government in its capacity

as trustee for the benefit of the Indians

i/

The Honorable Bruce M. VanSickle,

United States District Judge.

-ll-

an earlier regulation which appeared in 25 C.F.R.

§ 71.21 (1956).

Section 179 provides that any person who

residing on the reservation might have brought

the suit itself, it chose not to do so. Nor

has the government sought leave to intervene

"

in the case formally, and it has not objected drives or otherwise conveys any stock of

to the plaintiff's maintenance of the action horses, mules, or cattle, to range and feed

or to her receiving for her own benefit the on any land belonging to any Indian or Indian

full amount of any recovery that she might be tribe, without the consent of such tribe, is

able to effect.= liable to a penalty of $1 for each animal of

such stock." Section 201 provides that an

The suit was brought by plaintiff as ' :

a qui tam action authorized by 25 U.S.C. § 201 action to recover the penalty just mentioned

to recover a civil penalty imposed by federal 9 and other civil penalties imposed by Title 25,

law for trespassing on Indian lands. Plaintiff U.S.C. may be brought either by a private person

also sought to recover compensatory damages as an informer or by the government. If an

measured by the value of the forage consumed ; informer sues and recovers, he is entitled to

by the defendants' cattle and the damage to ; retain one-half of the recovery with the other

the land that resulted from overgrazing by : half being paid over to the government. Both

those animals. ; § 179 and § 201 are derived from the Act of

In addition to 25 U.S.C. § 201, other June 30, 1834, 4 Stat. 729 et seq. What is

statutes involved in the case are 25 U.S.C. x now § 179 was § 9 of the Act, and what is now

§§ 179 and 466 and 28 U.S.C. § 1355. Also § 201 was § 27 of the Act.

involved is a regulation issued by the Secre- 28 U.S.C. § 1355 gives the federal

tary of the Interior which deals with tres- courts exclusive jurisdiction of all actions

passes on Indian grazing lands and which brought to recover penalties imposed by the

appears in present form in 25 C.F.R. § 151.- ; law of the United States.

24 (1976). That regulation was preceded by : 25 U.S.C. § 466 gives the Secretary of

| ; the Interior authority to promulgate regula-

ol the government has filed an amicus tions designed to protect Indian grazing

curiae brief urging that the judgment of the lands. The regulation with which we are

district court be affirmed. i

: -13-

-]2-

concerned seems to have taken its present form

in 1969,

It is entitled "Livestock trespass,"

and in pertinent part is as follows:

The owner of any livestock

grazing in trespass on restricted

or trust Indian lands is liable

to a penalty of $1 per head for

each animal thereof for each day

of trespass, together with the

reasonable value of the fo age

consumed and damages to property

injured or destroyed. The Super-

intendent shall take action to

collect all. such penalties and

damages and seek injunctive relief

when appropriate. All payments

for such penalties and damages

shall be credited to the land-

owners where the trespass occurs.

The following acts are prohibited:

(a) The grazing upon or

driving across any individually

owned, tribal, or Government

lands of any livestock without an

approved grazing or crossing permit.

(b) Allowing livestock to

drift and graze on restricted or

trust Indian lands without an

approved permit... .

athe

|

‘

|

As we read it, the regulation imposes a

civil penalty for trespass and also imposes upon

the trespasser liability for compensatory damages.

The regulation manifests an administrative in-

tent that recoveries effected under it shall

redound to the benefit of the Indians whose

lands have been the subject of unlawful tres-

passes.

It will be observed that the penalty im-

posed by the regulation is $1 per head for each

trespassing animal for each day on which the

trespass continues. For convenience, we will

refer to this penalty as the "per diem" penalty.

The earlier regulation which has been mentioned

imposed a penalty of $1 per head of trespassing

livestock but contained no per diem feature.

In her amended complaint plaintiff alleged

that in 1973 the defendants unlawfully permitted

e substantial number of their cattle to drift

upon and graze the trust allotments in which

plaintiff was beneficially interested. She

claimed that she was entitled to the per diem

penalty prescribed by the regulation and to

damages.

The defendants challenged the jurisdic-

tion of the district court and denied liability

on the merits.

-15-

The district court considered the juris-

dictioaal question in an unpublished memorandum

opinion and concluded that it had jurisdiction

under 25 U.S.C. § 201 read in connection with

28 U.S.C. § 1355. We agree that the district

court had jurisdiction, but we feel that the

question calls for some brief comment particu-

larly since there is an absence of diversity of

citizenship between the-~-parties and since the

district court declined to base its finding of

jurisdiction on 28 U.S.C. § 1331 or 28 U.S.C.

§ 1353. :

To the extent that plaintiff sought to

recover a statutory penalty under 25 U.S.C.

§ 179 it is clear that the district court had

jurisdiction under 25 U.S.C. § 201 and 28 U.S.C.

§ 1355. To the extent that plaintiff sought to

recover compensatory damages, we think that in

view of the fact that the government did not

bring suit against the defendants, plaintiff

had a personal cause of action for such damages,

and that the district court had at least pendent

jurisdiction of that cause of action which should

have been exercised in the circumstances of the

case.

The factual issues in the case were sub-

mitted to a jury on special interrogatories

after the district court had overruled defense

motions for a directed verdict.

-16-

The jury found that the defendants

unlawfully permitted two hundred head of their

cattle to go on plaintiff's allotment or allot-

ments on August 15, 1973 and that the animals

remained thereon until September 29 of that

year; that the per diem penalty amounted to

$9,000.00; that the value of forage consumed

was $600.00; and that as a result of over-

grazing the land had been damaged to the extent

of $3,000.00,

The district court accepted the jury's

findings and entered judgment against the

defendants in the total sum of $12,600.00.

Notice of appeal was timely filed after a

motion for judgment notwithstanding the verdict,

or, in the alternative, for a new trial, had

been overruled.

We do not understand the defendants to

complain seriously about the factual findings

of the jury, and in any event we are satisfied

that the findings have substantial evidentiary

support, and that the awards made on the basis

of forage consumed and land damage were not

excessive.

For reversal, the defendants take the

fundamental position that if they are liable

to plaintiff at all, their liability does not

exceed the $1 per head penalty prescribed by

-l17-

§ 179, and that on the basis of the jury's

findings, their maximum liability would be

$200.00.

The 1834 statute which included what is

now § 179 was a comprehensive statute dealing

with commerce between Indians and non-Indians

and was also designed to keep peace on the

frontier. Its objectives included the protection

of the Indian country from incursions by white

settlers and the protection of Indians from

exploitation at the hands of non-Indians.

Section 9 of the Act, with which we are

concerned, was reenacted as § 2117 of the

Revised Statutes of the United States (1873) and

has been construed by the federal courts in a

number of ay In all of those cases the

2 eh Sheep Co. v. United — a U.S.

64 L.Ed. 507 (1920), aff'g Unit ates v.

por ape ok. Co., 254 F. 59 (9th Cir. 1918); Fraser

vy. United States, 261 F.2d 282 (9th Cir. 1958),

aff'g United States v. Fraser, 156 F. Supp. 144

(D. Mont. 1957); Hanson v. United States, 153

F.2d 162 (10th Cir. 1946); Connolly v. United

States, 149 F.2d 666 (9th Cir. 1945), rev’g in

part United States v. Connolly, 3 F.R.D. 417

(D. Mont. 1943); Dorris Bro's. v. United States,

37 F.2d 346 (9th Cir. 1930); Kirby v. United

States, 273 F. 391 (9th Cir. 1921), aff'd 260

U.S. 423, 43 S.Ct. 144, 67 L.Ed. 329 (1922);

United States v. Loving, 34 F. 715 (N.D. Tex.

1888); United States v. Hunter, 21 F. 615

(E.D. Mo. 1884).

)

:

:

government appeared as plaintiff,’ and none of

them involved the current regulation with its

per diem penalty,

There is no question that under 25 U.S.C.

§ 466 the Secretary has the power to prescribe

regulations to protect Indian lands from tres-

passes and damages resulting therefrom, And

the Secretary unquestionably has the power to

cause actions to be brought in the name of the

government to collect the penalty imposed by

§ 179, to recover damages to Indian lands

resulting from trespass, and to enjoin continuing

or threatened trespasses. But neither § 466

nor any other statute that has been called to

our attention authorizes the Secretary to impose

by regulation a civil penalty for trespass.

Hence, as far as the penalty involved in

this case is concerned, the question boils down

to whether the per diem penalty prescribed by

the 1969 regulation is warranted by § 179; if it

is not so warranted, it cannot stand. It is a

well established rule of law that the rulemaking

4/

Janus v. United States ex rel. Humphrey,

38 F.2d 431 (9th Cir. 1930), to which we have been

cited was not brought under what is now 25 U.S.C.

§ 179. It was a suit for damages for false

imprisonment brought by an individual who had

been charged with a criminal violation of § 179.

power granted to an administrative agency

charged with the administration of a federal

statute is not the power to make law. “Rather,

it is 'the power to adopt regulations to carry

into effect the will of Congress as expressed

by the statute.'" Ernst & Ernst v. Hockfelder,

425 U.S. 185 at 213, 96 S.Ct. 1375, 1390-91,

47 L.Ed.2d 668 (1976). See also Real v. Simon,

510 F.2d 557, 564 (5th Cir. 1975); Ruiz v.

Morton, 462 F.2d 818, 822 (9th Cir. 1972);

Review Committee, Venue VII, etc. v. Willey,

275 F.2d 264 (8th Cir. 1960). Cf. Commissioner

of Internal Revenue v. Acker, 361 U.S. 87, 92,

80 S.Ct. 144, 4 L.Ed.2d 127 (1959), and Sell |

v. Parratt, 548 F.2d 753 (8th Cir. 1977).

As this case demonstrates, it is one

thing to penalize a person $1.00 per head with

respect to livestock which he permits to tres-

pass on the lands of another and a quite different

thing to penalize him $1.00 per day per head for

the duration of the trespass. That difference

must have been as obvious to the Congress in

1834 and again in 1873 as it is to us today,

and Congress has never seen fit to change the

statute although presumably it has been aware

that damages to Indian grazing lands by tres-

passing cattle and sheep present a more serious

problem than was presented in the early or even

in the late nineteenth century.

~-20-

There is simply no basis in the statute

for the per diem penalty that the Secretary has

undertaken to impose by his 1969 regulation, and

we hold that to the extent that the regulation

imposes a penalty in excess of the $1.00 per

head called for by §179, it is invalid. To put

it this way, the $9,000.00 penalty adjudged

against the defendants by the district court was

excessive by $8, 800.00.>/

It does not follow, however, that the

portion of the regulation which calls for com-

pensatory damages in cases of livestock trespass

is invalid. That portion of the regulation

appeared in the earlier regulation that has been

metitioned, and it was upheld in a case arising

under the earlier regulation. Fraser v. United

States, 261 F.2d 282 (9th Cir. 1958), aff'g

United States v. Fraser, 156 F. Supp. 144

(D. Mont. 1957). We likewise uphold it, and

we hold that the questions of the value of forage

consumed and the damages to plaintiff's lands

resulting from overgrazing were properly sub-

mitted to the jury.

5/ ?

~ We so hold with full realization of the

fact that the Court of Appeals for the Tenth

Circuit has just reached an exactly opposite con-

clusion. United States ex rel. Whitehorse v.

Briggs, 555 F.2d 283 (10th Cir. 1977).

o2ie

The judgment of the district court is

vacated, and the case is remanded to that court

with directions to enter a judgment in favor of

the plaintiff in the sum of $3,800.00 ($200.00

as statutory penalty under 25 U.S.C. § 179,

$600.00 as representing the value of forage con-

sumed by the cattle, and $3,000.00 as damages

for overgrazing), plus the costs of the action

in the district court. Each side will bear its

own appellate costs.

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

NORTHWESTERN DIVISION

UNITED STATES OF AMERICA, )

ex rel, ELEANOR CHASE, )

Plaintiff, . Ab-74-2

vs. )

RONALD WALD and HAYDEN MEMORANDUM AND

THOMPSON, ORDER

Defendants. )

Eleanor Chase, an enrolled member of the

Three Affiliated Tribes of the Fort Berthold

Reservation in North Dakota, brings this action

in the name of the United States. She seeks to

Title 25 U.S.C. § 179 provides:

Every person who drives or other-

wise conveys any stock of horses,

mules, or cattle, to range and feed

on any land belonging to any Indian

or Indian tribe, without the consent

of such tribe, is liable to a penalty

of $1 for each animal of such stock.

This section shall not apply to

Creek lands.

Title 25 U.S.C. § 201 provides:

All penalties which shall accrue

under this title shall be sued for

and recovered in an action in the

nature of an action of debt, in the

name of the United States, before

any court having jurisdiction of

the same, in any State or Territory

in which the defendant shall be

arrested or found, the one half to

the use of the informer and the

other half to the use of the United

States, except when the prosecution

shell be first instituted on behalf

of the United States, in which case

the whole shall be to their use.

Defendants move the Court to dismiss the action

for lack of subject matter jurisdiction, while

Chase claims jurisdiction can be sustained under

28 U.S.C. §§ 1353 and 1355. y

1/

collect from the Defendants the statutory "penalty"

provided in 25 U.S.C. § 179 for the trespass of

cattle onto land held in trust for her by the

United States of America.

Actions to recover under 25 U.S.C. § 179

have usually been brought by the United States;

in such cases, jurisdiction can be predicated on

28 U.S.C. § 1345, The United States has declined

Chase's invitation to bring or join in this suit,

however.

-22- -23~

Title 28 U.S.C. § 1353 provides in part:

The district courts shall have

original jurisdiction of any civil

action involving the right of any

person, in whole or in part of

Indian blood or descent, to any allot-

ment of land under any Act of Congress

or treaty.

~

Since this action seeks recovery for

trespass of cattle onto Indian trust .lands and

is not corcerned - except perhaps very indirectly -

with establishing whether Chase has any rights

in or title to those lands, jurisdiction cannot

be sustained under 28 U.S.C. § 1353.

Title 28 U.S.C. § 1355 provides:

The district courts shall have

original jurisdiction, exclusive of

the courts of the States, of any

action or proceeding for the re-

covery or enforcement of any fine,

penalty, or forfeiture, pecuniary

or otherwise, incurred under any

Act of Congress.

Whether jurisdiction can be sustained under

§ 1355 depends on whether the statutory recovery

under § 179 is a “penalty” within the meaning of

§ 1355. Examination of some of the history of

§§ 179 and 202 will aid in this determination.

Title 25 U.S.C. § 179 first appeared as

§ 2 of an “Act to regulate Trade and Intercourse

with the Indian Tribes, and to preserve Peace on

-24-

the Frontiers," enacted in 1796, and was then

applicable only to "any stock of horses or cattle,"

etc. (1 Stat. 469, 470). The section was reenacted

without change in 1802 (2 Stat. 139, 141). In

1834 [Act June 30, 1834, c. 161, § 9, 4 Stat. 729,

/30] it was given its present form (except for

the last sentence). In that form it was carried

into the Revised Statutes (Rev. Stats., § 2117,

which went into effect on December 1, 1873. Then,

in 1901, the last sentence, withdrawing applica-

tion of the statute to lands of the Creek Indians,

was added. See Ash Sheep Co. v. U.S., 252 U.S.

159, 167 (1920) and the historical note after

§ 179 in the United States Code Annotated.

My research is not conclusive as to the

ultimate origin of 25 U.S.C. § 201. However a

predecessor of § 201 - in substantially the same

form as the present § 201 - was a part of the Act

of June 30, 1834. See U.S. v. Stocking, 87 F. 857,

858-59 (D. C.D. Mont. 1898). Consequently, the

predecessors of §§ 179 and 201 were both contained

in the Act of June 30, 1834, in substantially the

same forms as they appear today.

No statute! specifically requires that an

2/

Title 25 C.F.R. § 151.24 (1975), which

seems to require that an action to recover under

§ 179 be brought by a superintendent of an agency

of the Bureau of Indian Affairs, is examined

later. See footnote 3, infra.

o2$=

action to recover under § 179 be brought by the

United States. In fact, § 201, as we have seen,

provides:

All penalties which shall accrue

under this title shall be sued for

and recovered in an action in the

nature of an action of debt, in the

name of the United States, .. . the

one half to the use of the informer

and the other half to the use of the

‘United States, except when the prose-

cution shall be first instituted

on behalf of the United States, in

which case the whole shall be to their

use. [Emphasis added.]

There are only a few old cases which discuss

§ 201 . or its predecessors,

A well-reasoned case characterizes

R.S. § 2124, a predecessor of § 201, as giving

an “informer" the right to bring a "qui tam"

ea..cion in the name of the United States. U.S. v.

Stocking, supra. Contra: U.S. v. Payne,

22 F. 426 (D. C.D. Kan. 1884). Although some of

the old cases limit the applicability of

R. S. § 2124 to "penalties" imposed by the Act

of June 30, 1834 (4 Stat. 729) - U.S. v. Stocking,

supra, and U.S. v. Howard, 17 F. 638 (C.C.D. Ore.

1883) - the predecessor of § 179, as noted

before, was a part of that act.

I conclude that § 201 gives a third party,

or "informer," the right to bring a “qui tam"

x"s

action in the name of the United States to

recover under § 179; and § 201 allows the

inforisr ©») retain one-half of any recovery made

3/

in the action.—

3/

I note that 25 C.F.R. § 151.24 (1975),

a regulation promulgated under 25 U.S.C. § 466

by the Secretary of the Interior interpreting

and applying § 179, provides in part as follows:

The owner of any livestock

grazing in trespass on restricted

or trust Indian lands is liable

to a penalty of $1 per head for

each animal thereof for each day

of trespass, together with the

reasonable value of the forage con-

sumed and damages to property in-

jured or destroyed. The Superin-

dendent shall take action to

collect all such penalties and

damages and seek injunctive relief

when appropriate. All payments

for such penalties and damages

shall be credited to the landowners

where the trespass occurs. [Emphasis

added. ]

"Superintendent" is defined in 25 C.F.R.

§ 151.1(f) as "the Superintendent of anv Agency

of the Bureau of Indian Affairs."

A predecessor of 25 C.F.R. § 151.24 was

examined and upheld in Fraser v. U.S., 261 F.2d

282 (9th Cir. 1958). The present regulation,

however, is inconsistent with § 201 in some

respects and cannot stand insofar as it conflicts

with the statute.

-7- BEST COPY “AVAILABLE

In this light, jurisdiction of this action

could be sustained under 28 U.S.C, § 1331, the

“general federal question" statute, since there

is more than $10,000 in § 179 "penalties"

claimed and since a cause of action can be said

to “arise under" federal law if that law "creates

the action." American Well Works Co. v. Layne &

Bowler Co., 241 U.S. 257, 260 (1916) (Holmes, J.).

See Wright, Law of Federal Courts, § 17, p. 57

(2d Ed. 1970). However, since Chase has not

pleaded jurisdiction under § 1331, and since

further amendment of the complaint would be

Footnote 3/continued

To the extent that the regulation would

require that any action to collect under § 179

be taken by the Superintendent and to the extent

that it would require that any recovery under

§ 179 be credited to the landowners, the regula-

tion is inconsistent with the rights of an

informer under § 201 - i.e., an informer's

right to sue under § 179 and retain for himself

one-half of any recovery. Since in this case

the "informer" and the "landowner" are the same

person, and since the Defendants have made no

objection to the fact that the landowner - and

not the Superintendent - has brought the action,

the inconsistency between § 201 and the regula-

tion is not in issue here.

At any rate, since the "informer" and the

"landowner" are the same in this case, the provi-

sion in the regulation which requires that any

recovery under § 179 be credited to the landowner,

in effect gives Chase the right to the United

States’ one-half share under § 201, otherwise

withheld from an informer,

-28-

required to allow her so to plead, I examine

whether jurisdiction of the § 179 claim can be

sustained under § 1355,

Hales v, Winn-Dixie Stores, Inc., 500 F.2d

836, 839-40 (4th Cir. 1974), sets out various

criteria to determine whether a recovery can be

labeled a "penalty" within the meaning of § 1355.

These criteria are:

1. Whether the wrong sought to be re-

dressed is a wrong to the public

or a wrong to the individual;

2. Who sues and who collects and retains

any judgment; and

3. Whether the recovery need have any

causal connection with the wrong

inflicted.

Under these criteria, I find that an action under

§ 179 is one for the recovery of a "penalty" within

the meaning of § 1355.

That the wrong sought to be redressed

by § 179 is a wrong to the public is perhaps

best demonstrated by the fact that the statute

was Originally enacted in 1796 in an "Act to

regulate Trade and Intercourse with the Indian

Tribes, and to preserve Peace on the Frontiers,"

Then, and in 1834 when § 179 was reenacted in

substantially its present form, the Indian tribes

and the United States government were still in

-29-

conflict. In that era, then, it was certainly

in the public interest to insure that relations

with the Indian tribes were not disrupted by the

unauthorized driving of animals onto their lands.

With regard to the second criterion,

§ 201, as I have interpreted it, allows an

informer to sue for the recovery permitted under

§ 179 and gives "one-half to the use of the

informer and the other half to the use of the

United States ... ." Thus, up to one-half

of the recovery in a § 179 action may go to one

who performs the public service of observing a

trespass and successfully litigating a § 179

action based thereon. This fact would tend to

confirm that § 179 is aimed at punishing the

trespasser rather than compensating the landowner,

With regard to the third criterion, the

fact that the recovery under § 179 is set at

the flat rate of $1 per animal - and apparently

has never changed - indicates that the recovery

has little or no causal connection with the

wrong inflicted.

I conclude that Chase's action under § 179

is an action for the recovery of a "penalty"

incurred under an act of Congress and, consequently,

that this Court has jurisdiction of the § 179

claim under § 1355.

~30-

Besides the statutory penalty under

§ 179, Chase seeks to recover the reasonable

value of the consumed forage and damages to

any property injured or destroyed by the alleged

trespasses, and also seeks an injunction pre-

venting Defendants from trespassing on her

lands in the future.

These additional claims for relief may

be viewed in either of two ways. First, they

may be conceived of as federal causes of action

under 25 C.F.R. § 151.24 (and not inconsistent

with § 201). See Footnote 3, supra. Alterna-

tively, these additional claims may be conceived

of as state tort claims for trespass.

However, these additional claims for

relief are conceived of, I find that I have

"pendent" jurisdiction over them. Since I have

jurisdiction of the § 179 claim under § 1355, there

is "pendent" jurisdiction over the damage and in-

junctive claims, because these claims “derive

from a common nucleus of operative fact" as the

§ 179 claim. United Mine Workers v. Gibbs,

383 U.S. 715, 725 (1966). See also Brown v.

First National City Bank, 365 F. Supp. 1286,

1288 (S.D. N.Y. 1973), revérsed on other grounds,

503 F.2d 114 (2nd Cir. 1974).

IT IS ORDERED, that Defendants' motion to

dismiss for lack of jurisdiction is denied.

Finally, I note that Defendants have

filed a paper entitled "Disclosure of Unnamed

Indispensable Party." While apparently making

no formal motion, Defendants therein name two

persons who are allegedly “responsible for any

penalty or damages that might be payable" as a

result of this action. I do not know what

Defendants hope to achieve by filing this paper.

If Defendants wish to join other persons as

third-party defendants in this action, they should

proceed according to the Federal Rules of Civil

Proced:'r

Dated at Bismarck, North Dakota, this

10 day of March, 1976.

BY THE COURT;

Bruce M. Van Sickle, Judge

United States District Court

- 32-