# Amicus Curiae Brief — United States v. Mottaz

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 834

## Text

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IN THE

Suprene Court of the United States

OCTOBER TERM, 1985

UNITED STATES OF AMERICA,
Petitioner,
Vv.

FLORENCE BLACKETTER iOTTAZ,
on behalf of herseif and all others
similarly situated,

Respondent.

On Writ of Ccrtiorari to the United States
Court of Appeals for the Eighth Circuit

«

MOTION AND BRIEF OF
THE AMERICAN LAND TITLE ASSOCIATION
AS AKN'CUS CURIAE IN SUPPORT OF
THE UNITED STATES

JOHN C. CHRISTIE, Jk
Counsel of Record

J. WILLIAM HAYTON

STEPHEN J. LANDES

LUCINDA 0. MCCONATHY
BELL, Boyp & LLOYD
1775 Pennsylvania Ave., N.W.
Washington, D.C. 20006
(202) 466-6300

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Dated: January 9, 1986

WILSON - Eres PRINTING Co., INC. - 752 29° ~. WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-546

UNITED STATES OF AMERICA,
Petitioner,

Vv.

FLORENCE BLACKETTER MOTTAZ,
on behalf of herself and all others
similarly situated,
Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

MOTION OF THE
AMERICAN LAND TITLE ASSOCIATION
REQUESTING LE.’ “E TO FILE BRIEF AS
AMICUS CURIAE IN SUPPORT OF
THE UNITED STATES

Pursuant to Rule 36 of the Roles of the Supreme
Court of the United States, the American Land Title
Association (the ALTA) respectfully moves the Court
for leave to file the accompanying “Brief of the Ameri-
can Land Title Association as Amicus Curiae in Sup-

(i)

ii

port of the United States.” The grounds for this mo-
tion are stated below and in the section of the accom-
panying brief headed “Interest of Amicus Curiae.”

The ALTA requested each party’s written consent to
the filing of its amicus curiae brief as required under
Rule 36. Petitioner United States consented to the filing
of the brief by letter from the Solicitor General, repro-
duced as Exhibit A to this motion. Respondent Mottaz
withheld her consent by letter from counsel, reproduced
as Exhibit B.

The ALTA is the national trade association of the
land title industry. Members of the ALTA depend on
long-established legal doctrines concerning real estate
and claims to real estate in ascertaining and insuring the
rights of real estate purchasers, mortgage lenders and
others, and in litigating matters pursuant to obligations
under title insurance policies. As more fully set forth
in the accompanying brief, the ALTA has an interest in
the pending case because the decision by the United
States Court of Appeals for the Eighth Circuit is funda-
mentally wrong and a decision by this Court affirming
the decision below would destroy critical principles af-
fecting the title to real property which have been de-
veloped over the years throughout the United States.

The ALTA believes that it is uniquely positioned to
inform the Court regarding the adverse consequences
of the Eighth Circuit’s error for private persons who
have relied on the established principles by which sta-
bility of real estate titles has traditionally been secured.
As more fully set forth in the accompanying brief, the
petitioner is unlikely to address the same issues that
concern the ALTA.

iii

For the reasons set forth above and in the accompany-
ing brief, the motion for leave to file the attached brief
as amicus curiae should be granted.

Respectfully submitted,

JOHN C. CHRISTIE, JR.
Counsel of Record

J. WILLIAM HAYTON

STEPHEN J. LANDES

LUCINDA O. MCCONATHY
BELL, Boyp & LLOYD
1775 Pennsylvania Ave., N.W.
Washington, D.C. 20006
(202) 466-6300

Attorneys for the American Land
Title Association

Dated: January 9, 1986 |

iv
EXHIBIT A
U.S. DEPARTMENT OF JUSTICE

Office of the Solicitor General
Washington, D.C. 20530

December 12, 1985

Lucinda O. McConathy, Esq.
Bell, Boyd & Lloyd

1775 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-4678

Re: United States y. Mottaz, No. 85-546

Dear Ms. McConathy:

As requested in your letter of December 9, 1985, I
hereby consent to the filing of a brief amicus curiae on
behalf of the American Land Title Association.

Sincerely,

/s/ Charles Fried
CHARLES FRIED
Solicitor General

Vv
EXHIBIT B

DERCK AMERMAN
Attorney at Law
2408 Central Avenue, N.E.
Minneapolis, Minnesota 55418-3792
789-8805

December 11, 1985

Ms. Lucinda 0. McConathy

Bell, Boyd & Lloyd

1775 Pennsylvania Avenue N.W.
Washington, DC 20006

RE: U.S. v. Mottaz, et al.

Dear Ms. McConathy:

This is in response to your letter of December 9, 1985
wherein you requested written consent to your filing an
amicus curiae brief.

Please be advised that the answer is “No”.
Yours very truly,
/s/ [Illegible]}

DERCK AMERMAN
DA:dn

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TABLE OF CONTENTS

Page

MOTION OF THE AMERICAN LAND TITLE

ASSOCIATION REQUESTING LEAVE TO FILE

BRIEF AS AMICUS CURIAE IN SUPPORT OF
ee ey GE ini naensnmacesesipdeniinioensons i
iit EI A ARENSON Cert ee One iv
I a seeilieuieieeiibninsbineiepebeahasaiiitt Vv
k,n vii
ee te IED sciiciccntnnccicssttnscnancccentonnsscsucses viii
INTEREST OF AMICUS CURIAE ..............--22------+------+- 1
SUMMARY OF ARGUMENT ......................................... 5
FEL FE RN RE I eR PRN TN NSPE OR TORRE §
NS REEL AA er cl Se Seem REN 6

TI. A Claim Has Accrued Within The Meaning Of
A Statute Of Limitation Whenever A Suit May
IIE 1iicsscatiichanbtisinigemnenabiceniiaculédemeninnnnse 7

III. A Claim To Set Aside A Transfer Of Indian
Land Can Be Barred Regardless Of Whether
The Transfer Was Void

IV. A Generally Applicable Federal Statute Of Limi-
tation Can Apply To An Indian Land Claim.... 23

IIIT incrssesiessstnsisnnnecisichactinmnddaniinienilanianinaniiuaessioneonans 27

(vii)

viii

TABLE OF AUTHORITIES

Cases Page
Akron Presform Mold Co. v. McNeil Corp., 496
0 BD GI CBO ana ncccnncsececs esse serene 11
Alabama Coushatta Tribe v. United States, Cong.
MeN! Fa 3
Arizona V. California, 460 U.S. 605 (1983) -............ 13

Armstrong v. Maple Leaf Apartments, Ltd., 622

F.2d 466 (10th Cir. 1979), cert. denied, 449

of SS Cree eeon ee 18
Begay v. Albers, 721 F.2d 1274 (10th Cir. 1983) .. 22
Big Spring v. United States Bureau of Indian

Affairs, 767 F.2d 614 (9th Cir. 1985)
Canadian St. Regis Band of Mohawk Indians V.

New York, 97 F.R.D. 453 (N.D.N.Y. 1983) _...... 3
Catawba Indian Tribe v. South Carolina, 718 F.2d

1291 (4th Cir. 1983), reh’g en banc, 740 F.2d

305 (1984), cert. granted, U.S. ——, 105

SO ME IID * 6 sean ciassetesinsinianinanbiiiaseubniteleneienes 3
Cayuga Indian Nation v. Cuomo, 565 F. Supp.

fk A RE Seance 3
Cherokee Nation v. Georgia, 30 U.S. 1 (1831)-....... 24
Chouteau v. Moloney, 57 U.S. (16 How.) 203

TUTTI .cinstisisenisastiinpiiliaidediesncnesaaniiddiniisnnetinneduinanianeitenin 24
Christensen v. United States, 755 F.2d 705 (9th

CPI Soe ata daeenmieninenneineiine 25, 26
Colorado Coal and Iron Co. v. United States, 123

ee ee eo capsasinanesaaneniatianens 21
Cope v. Anderson, 331 U.S. 461 (1947) ................ 8
County of Oneida v. Oneida Indian Nation (Oneida

II), U.S. ——, 105 S.Ct. 1245 (1985) ....14, 15, 25
Dennison v. Topeka Chambers Industrial Dev.

Corp., 724 F.2d 869 (10th Cir. 1984) .................. 17-18
Dillon v. Antler Land Co., 507 F.2d 940 (9th Cir.

1974), cert. denied, 421 U.S. 992 (1975).............. 18
Dodge Vv. Briggs, 27 F. 160 (S.D. Ga. 1886) —........... 20
Duncan Vv. Andrus, 517 F. Supp. 1 (N.D. Cal.

SITIES... dik dei saci coiiemcaauocalauaanerananiansamanmaaeleniaaadaens 18, 21
Ewbank v. Lyman, 170 N.C. 505, 87 S.E. 348

EE ane s. Fe rin LA ROT 11

ix

TABLE OF AUTHORITIES—Continued

Page

Ewert v. Bluejacket, 259 U.S. 129 (1922) ..... 5, 14, 15, 16,

Exploration Co. v. United States, 247 U.S. 435
EERIE EEE, IA ond ae ee nC
Federal Power Commission vy. Tuscarora Indian
Nation, 362 U.S. 99 (1960) ...............00000000000.02..-..

Feliz v. Patrick, 145 U.S. 317 (1892) ................... 17,

Fife v. Barnard, 186 F.2d 655 (10th Cir. 1951)...
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)...
Grayson V. Harris, 279 U.S. 300 (1929) 0.000000...
Grosz Vv. Andrus, 556 F.2d 972 (9th Cir. 1977) ........
Hampton v. Ewert, 22 F.2d 81 (8th Cir. 1927),
cert. denied, 276 U.S. 623 (1928) ...........000000000.....
Heckman v. United States, 224 U.S. 413 (1912)...
Impro Products, Inc. v. Block, 722 F.2d 845 (D.C.
Cir. 1983), cert. denied, —— U.S. —~—, 105
REA EAST RETIRE
Johnson V. Railway Express Agency, Inc., 421
Ee es ee ee ee SO EA
Johnson Vv. United States, 87 F.2d 940 (8th Cir.
RE SR ar eR ARTY ae eT
Joines Vv. Patterson, 274 U.S. 544 (1927)...
Kasey Vv. Molybdenum Corp. of America, 336 F.2d
EER En Ae ea
Kavanaugh v. Noble, 332 U.S. 535 (1947)
Kendall v. Ewert, 259 U.S. 139 (1922)
Lamb v. Amalgamated Labor Life Ins. Co., 602
F.2d 165 (Sth Cir. 1979) .......-......-.ccccccccccccccccsseese-.
Latham v. Latham, 184 N.C. 55, 113 S.E. 623
TEE Se ea Ae ee Ae TT
Laundry Equipment Sales v. Borg-Warner Corp.,
334 F.2d 788 (7th Cir. 1964)...
Lemieux v. United States, 15 F.2d 518 (8th Cir.
1926), cert. denied, 273 U.S. 749 (1927) ............
Lewis Vv. Marshall, 30 U.S. (5 Pet.) 470 (1831)...
Mann vy. United States, 399 F.2d 672 (9th Cir.
RED ie OTe Se NN E aeE cen
McClanahan v. Arizona State Tax Commission,
411 U.S. 164 (1973)

HO Peer eee meee et eee wees **8eeceseeseecasecesese

Sanaaaneniea 14,

19, 22

24
21, 24
18
21

14, 15
20, 24

15, 16

7,8

26

25

x

TABLE OF AUTHORITIES—Continued

Missouri, Kansas & Texas Ry. V. Kansas Pacific

Ry., 97 U.S. (7 Otto) 491 (1878) LBs RAE ot 20
Montana v. United States, 450 U.S. 544 (1981)... 4
Mottaz v. United States, 753 F.2d 71 (Sth Cir.

1985), cert. granted, —— U.S. ——, 106 S.Ct.

405 (1985) ......... St eae eee tee ae 2, 3, 7, 12, 14, 23, 24
New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir.

1976), cert. denied, 429 U.S. 1121 (1977) ........ 10
Newman V. Prior, 518 F.2d 97 (4th Cir. 1975) .... il

Pechanga Band of Mission Indians V. Kacor
Realty, Inc., No. CU-78-4499-MML, Slip op.
(C.D. Cal. Aug. 22, 1980), aff'd on other
grounds, 680 F.2d 71 (9th Cir. 1982), cert. de-

nied, U.S. , 103 S.Ct. 817 (1985) ....... 18
Pettibone v. Ca k County, Minnesota, 120 F.2d

850 (8th Cir. 1941) -.........--2222--------eneeeeeeeeeeeeeeete sees 20
Rawlings v. Ray, 312 U.S. 96 (1941) -...............------- 8

Rosebud Sioux Tribe v. Kneip, 430 U.S. 584
(1GTT) ...200c-2020-ce-eancencceressenerseresevereccsnsssecnsensossnssssoecs 24

Salt River Pima-Maricopa Indian Community V.
Arizona Sand & Rock Co., 353 F. Supp. 1098

en ea TR Sytem an oo 4
Sampeyreac Vv. United States, 32 U.S. (7 Pet.) 299
CII a oseicccesccnessisiianisicseerssowsaisciaieeniananeviiadamenasnnmentnanienes 20
Schrimpecher v. Stockton, 183 U.S. 290 (1902)... 16, 17,
21, 22, 25
Seminole Nation v. United States, 316 U.S. 286
CID seri inside cinecrsiatssinalistviinsichenncaenesteconaaniecrsiaeseimenaas 24
Smith v. Stevens, 77 U. S. (10 Wall.) 321 (1870).. 19
Stubbs v. United States, 620 F.2d 775 (10th Cir.
ID scnccscicevcansiennnisnsnnnnesonsienitneessnenseuensenatascansatanccoosintia 12, 26
Summa Corp. Vv. California, U.S. ——, 104
Te CD 6. conicsinnssvcconncctervandapenanvenctestonnssuanons 13
United States v. California and Oregon Land Co.,
Oe GI iv cccescscscsiciacintipeindstniincndinenmcannentnnes 21
United States v. Debell, 227 F. 760 (1915) eM 18, 22-23

United States v. Debell, 227 F. 771 (1915) ........ 19, 22-23
United States vy. Debell, 227 F. 775 (1915) ......... 19, 22-23

xi

TABLE OF AUTHORITIES-—Continued

Page
United States v. Detroit Timber and Lumber Co.,

GS, y————————————EEEE 21
United States v. Heath, 509 F.2d 16 (9th Cir.

ID isis isanciniaicecinnennetasinssnnststatcnaiittniantnnnnncannanaibianians 25
United States v. Kagama, 118 U.S. 375 (1886)... 24
United States v. Kubrick, 444 U.S. 111 (1979)... 13
United States v. Noble, 237 U.S. 74 (1915)........ 15
United States v. Sioux Nation, 448 U.S. 371

CRD) nvnceiscirnccnsncnnssnnnernsnccncsnanessee-nosornensnncsenssnnescoeeers 24
United States v. Title Ins. & Trust Co., 265 U.S.

BEBE CRIIIGD anc casinciccccceicnsiccsnecciionsesecorsenscerncesensasenaesnees 13
United States v. Winans, 198 U.S. 371 (1905) ues 4
Wilson v. Omaha Indian Tribe, 442 U.S. 653

OO iain iihcaicsenaciseantnsnncciicennmenien sacenenenniontecontee 25
Wolfe v. Phillips, 172 F.2d 481 (10th Cir. 1949),

cert. denied, 336 U.S. 968 (1949) .....................---- 10, 18
Wright-Blodgett, Co. v. United States, 236 U.S.

BT CI irciicienentsnccrrsnssscensntenssnsenesinenemensancnnientiinannees 21

Federal Legislation
Statute of Limitations Claims List, 48 Fed. Reg.

51204 (Nov. 7, 1983) ard 48 Fed. Reg. 15698

| ae | Oa __ | ereeeenennner ee 3
; Rik TG... Secon Se 24
25 U.S.C. 6 SBI of seg. (19GB) -......-.22-......0000002020..0002- 24
95 USS. § 461 of aoe. (10GB) ......................202.....22--... 24
, Bib Coe GT : | eRe enennnenennrennenes 7
BB U.G.C. BAGIRR ET) CITI acccac~.-2n0<nnccnecnsecnceesescceseses- 7,11

Other Authority
Black’s Law Dictionary (4th ed. 1968) ..................... 7,8

Developments in Law—Statutes of Limitations,
63 Harv. L. Rev. 1177 (1950)

IN THE
Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-546

UNITED STATES OF AMERICA,
Petitioner,
Vv.

FLORENCE BLACKETTER MOTTAZ,
on behalf of herself and all others
similarly situated,
Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

BRIEF OF THE
AMERICAN LAND TITLE ASSOCIATION
AS AMICUS CURIAE IN SUPPORT OF
THE UNITED STATES

INTEREST OF THE AMICUS CURIAE

The American Land Title Association is the national
trade association of the land title industry. The ALTA
has approximately 2,000 members, including land title
insurers, title insurance agents, abstractors and associ-
ate members. The ALTA and its members work to
facilitate the safe, certain and efficient transfer of title

2

to residential and commercial real estate throughout the
country. In the course of ascertaining and insuring the
rights of veal estate purchasers, mortgage lenders and
others, and in the course of litigation pursuant to obliga-
tions under title insurance policies, members of the
ALTA depend upon long-established legal doctrines con-
cerning real estate and claims to real estate. Certainty
and predictability of the laws affecting rights in real
estate are crucial to the ALTA and its members.

The ALTA has an interest in the pending case because
the decision by the United States Court of Appeals for
the Eighth Circuit is fundamentally wrong. If left un-
corrected, that decision would create confusion and un-
certainty and would impose tremendous unanticipated
risks on all persons with an interest in land—homeown-
ers, businesses, farmers, lenders and ALTA members
alike.

First, the Eighth Circuit erred in declaring that in a
dispute over land no cause of action accrues within the
meaning of a statute of limitation where the claimant
argues that he retains title to the lana.’ Under the
logic—or illogic—of the Eighth Circuit’s decision, any
claim asserting title to land could be litigated, no matter
when the events occurred which gave rise to the claim.
Only after litigation on the merits and a determination
whether the claimant retained title to the land at issue,
could a court decide whether a clairn had accrued within
the meaning of a statute of limitation. People whu own
land, buy land, and assist in the process of buying and
selling land depend upon statutes of limitations, market-
able title acts and other time bars in determining who
holds title and as protection from stale claims. Statutes
of limitations and other ume bars contribute to the pre-
dictability and stability of land ownership, and any mis-
understanding as to their application would have grave

1 Mottaz v. United States, 753 F.2d 71, 74 (8th Cir. 1985), cert.
granted, U.S. ——, 106 S.Ct. 405 (1985).

3

consequences for the ALTA and its members, as well as
other persons with interests in land.

Second, the Eighth Circuit erred in declaring that a
claim for land based on a conveyance by Indians in vio-
lation of a federal restriction on alienation can never be
barred because the original transfer was void.’ If that
were true, conceivably every title examination would
require tracing the chain of title all the way back to its
beginning and historical research to determine whether
any transfer involved an Indian and, if so, whether any
restrictions had existed and whether they had been sat-
isfied. The customary reliance of land purchasers, lend-
ers, and tit'e insurers on matters of public record would
very likely have to be reevaluated.

Third, the Eighth Circuit erred in declaring that nei-
ther state nor federal statutes of limitations apply to
Indian ‘and claims because of the federal government’s
generally protective policies toward Indians.* In essence,
the court of appeals held that any Indian claim relating
to land may be brought at any time in the future.‘ Un-
der that view, no land title is secure.

2 Id.
3 Td.

4 There are a number of «ther pending and potential Indian land
claims where ancient land transfers are alleged to have been in-
valid, se the Eighth Circuit’s error has significance far heyond
the case t hand. See Catawba adian Tribe v. South Carolina, 718
F.2d 1291 (4th Cir. 1983), reh’g en banc, 740 F.2d 305 (1984), cert.
granted, U.S. ——, 105 S.Ct. 2762 (1985); Cayuga Indian
Nation v. Cuomo, 565 F. Supp. 1297 (N.D.N.Y. 1983); Canadian
St. Regis Band of Mohawk Indians v. New York, 97 F.R.D. 453
(N.D.N.Y. 1983). See also Statute of Limitations Claims List,
48 Fed. Reg. 51204-51253 (Nov. 7, 1983); 48 Fed. Reg. 13698-
13920 (Mar 31, 1983) (Department of the Interior listing of
potential Indian land claims in the “Eastern Aiea”). Cf. Ala-
bama Coushatta Tribe v. United States, Cong. Ref. No. 3-83 ( Ct.
Cl. 1983) (claiming tribe possesses unextinguished aboriginal title
to 17 counties in Texas). .

4

The ALTA has filed this amicus brief because the
above-mentioned issues are so important and because the
briefs of the parties, both in the Eighth Circuit and in
this Court (respecting the Petition for Certiorari), focus
mainly on other issues such as the federal government’s
sovereign immunity, the nature of the claim, and which
of two federal statutes of limitations, if any, might ap-
ply to the claim.’ The interests of the ALTA and other
private parties throughout the nation in a stable, secure
and rational land title system would not be adequately
protected otherwise.

As this Court long-ago explained :

The best interests of society require that causes of
action should not be deferred an unreasonable time.
This remark is peculiarly applicable to land titles.
Nothing so much retards the growth and prosperity
of a country as insecurity of titles to real estate.

5 It should be recognized that the United States is in a peculiar
position, fraught with overtones of a conflict of interest, when it is
sued by Indians or Indian tribes. As defendant in suck a case, the
government seeks to protect the public treasury. In other cases,
the government is the Indians’ “guardian” and may sue private par-
ties and states to protect Indian rights. E.g., Montana v. United
States, 450 U.S. 544 (1981); United States v. Winans, 198 U.S. 371
(1905). Cf. Salt River Pima-Maricopa Indian Community v. Ari-
zona Sand & Rock Co., 353 F. Supp. 1098 (1972) (Indian trespass
damage claim against federal licensees created conflict of interest
and United States Attorney General refused to represent Indians).
Because of its dual role, when the United States is a defendant in
Indian land claims it has an incentive to pursue most vigorously the
narrow defenses available to the United States but not to others.
In so doing it may preserve the Indians’ ability to seek redress
from others.

As amicus, the ALTA does not address which of the federal
statutes of limitations under discussion may apply to the particular
claim presented. The ALTA’s concern, and the focus of this brief,
is on the Eighth Circuit’s misconception of the general operation
of all statutes of limitations and on its misunderstanding of the
law relating to Indian land claims.

5

Labor is paralysed where the enjoyment of its fruits
is uncertain; and litigation without limit produces
ruinous consequences to individuals.°

The ALTA’s purpose in filing this amicus brief is to pre-
vent such dire results.

SUMMARY OF ARGUMENT

The Eighth Circuit totally misconceived the meaning
of the term “accrued” and the operation of statutes of
limitations. A cause of action to recover land or the
value of land has accrued once the claimant is able to
assert the action in court. A statute of limitation meas-
ures time from the moment that a cause of action ac-
erues, and, once the time limit specified in a statute of
limitation is passed, the statute bars the action from
being litigated in court. It makes no difference whether
the claimant is right or wrong on the merits.

In addition, relying on a misinterpretation of this
Court’s decision in Ewert v. Bluejacket,’ the Eighth Cir-
cuit erred in holding that no statute of limitation can
bar a claim that a transfer of Ir.uian lands violated a
federal restriction on alienation. In Ewert the Court
prevented a federal employee involved in Indian affairs
from retaining land that he had purchased from an
Indian in spite of a federal law prohibiting such persons
from trading with Indians. The issue was whether the
wrongdoer could be allowed to assert the equitable de-
fense of laches, not whether a claim hased on an alleg-
edly void transfer of Indian land could be barred by a
statute of limitation. In fact, in Joines v. Patterson“

® Lewis v. Marshall, 30 U.S. (5 Pet.) 470, 477-8 (1831). See
also Developments In Law—Statutes of Limitations, 63 Harv. L.
Rey. 1177, 1185 (1950) (“There comes a time when one ought to
be secure in his reasonable expectations that the slate has been
wiped clean of ancient obligations.”).

7 Ewert v. Bluejacket, 259 U.S. 129 (1922).
® Joines v. Patterson, 274 7J.S. 544 (1927).

6

this Court rejected the argument adopted by the Eighth
Cireuit, holding that a statute of limitation barred a
claim to recover Indian land even if it was conveyed in
violation of the law. A number of decisions by this
Court and various lower courts demonstrate that al-
though Indians may attempt to avoid transfers of their
lands that occurred in violation of federal restrictions
on alienation in certain circumstances, their claims may
be barred in other circumstances. Furthermore, neither
precedent nor federal policy support the Eighth Circuit’s
conclusion that a federal statute of limitation may not
apply to such claims.

ARGUMENT

I. Introduction.

Mrs. Motiaz inherited an interest in three Indian
allotments in the early 1950s. The United States, through
the Secretary of the Interior, instituted a program of
selling such Indian allotments in 1953. Although the
Department of the Interior sent the Indians letters re-
questing the written consent of the Indians, the Depart-
ment assumed their consent if they did not respond to
the request. In 1953 the Department sent such a letter
to Mrs. Mottaz. In 1954 the United States sold Mrs.
Mottaz’s land to itself, and those allotments are now in
the Chippewa National Forest. Mrs. Mottaz may have
received payment in 1955, since the federal government
customarily made arrangements to pay for such allot-
ments shortly after purchase. In any event, she was in-
formed by 1967 that she held no interest in those three
tracts of land when the Bureau of Indian Affairs pro-
vided her a list of her interests in federally-protected
lands which excluded the three allotments in issue. Only
on December 30, 1981, did she file a complaint alleging
that the sale of those allotments was void.

9 The sale of these and other allotments are sometimes referred
to as “secretarial transfers” since the Secretary of the Interior
arranged such sales to the federal government.

7

The United States District Court for the Di “ict of
Minnesota granted summary judgment for the detendant,
the United States, on the ground that the action was
barred by a six-year federal statute of limitation for
civil actions against the United States, 28 U.S.C. § 2401
(a) (1982). Before the United States Court of Appeals
for the Eighth Circuit the United States argued that
the claim also was barred under a twelve-year federal
statute of limitation for quiet title actions, 28 U.S.C.
$2409a(f) (1982). The Eighth Circuit sought to pre-
serve Mrs. Mottaz’s ability. to recover, holding that no
federal statute of limitation may bar a claim by an
Indian to hold title to land that was “wrongfully alien-
ated” at some time in the past.’ The Eighth Circuit may
have been uncomfortable with the conduct of the United
States, as alleged by the plaintiffs," but it misstated the
law. Its decision unnecessarily endangers the land titles
of thousands of innocent people and should be reversed.

Il. A Claim Has Accrued Within The Meaning Of A Stat-
ute of Limitation Whenever A Suit May Be Commenced.

The concept of accrual is basic to litigation and to
the application of all time bars, inciuding statutes of
limitations. Black’s Law Dictionary states, “A cause of
action ‘accrues’ when a suit may be maintained there-
on.” 2 The moment an action accrues marks the begin-

10 Mottaz, 753 F.2d at 74.

11 No determination has been made whether the sale of Mrs.
Mottaz’s allotments, in fact, violated any federal restrictions on
alienation. Such secretarial transfers may have been perfectly legal.
But the Eighth Circuit’s emphasis on a “fair” result suggests that
it viewed the United States’ conduct as unfair to Mrs. Mottaz.
See Mottaz, 753 F.2d at 75.

12 Black’s Law Dictionary, definition of “accrue,” at 37 (4th ed.
1968). See also, e.g., Impro Products, Inc. v. Block, 722 F.2d 845,
(D.C. Cir. 1983), cert. denied, -— US. , 105 S.Ct. 327
(1984) (a cause of action accrues when right to resort to court
is perfected) ; Lamb v. Amalgamated Labor Life Ins. Co., 602 F.2d

8

ning of a time period during which the action may be
brought before a court, and a statute of limitation speci-
fies a deadline for bringing the cause of action.’* As this
Court explained in Rawlings v. Ray: ™ ;

The words [in the applicable statute of limitation]
“after the cause of action shall accrue” .. . have
their usual meaning and refer to “a complete and
present cause of action.”

Similarly, in Cope v. Anderson,"* the Court said.

(T]he question of when the applicable state statute
of limitations begins to run depends upon when...
[the plaintiff] is empowered . . . to bring suit.

A claimant usually may sue (and the claimant’s cause
of action usually accrues) once the transaction or event
which is the basis of the claim has occurred.” Even

155, 158 (8th Cir. 1979) (under Missouri law, a claim for relief
accrues when a right exists to institute a suit for its enjoyment).

13 Black’s Law Dictionary, definition of the term “limitation,”
(4th ed. 1968) at 1077 (“{A statute of limitation is a] restriction
by statute of the right of action to certain periods of time, after
the accruing of the cause of action.”). See also Lamb, 602 F.2d 155
(under Missouri law, statute of limitation begins to run when a
claim for relief accrues).

14 Rawlings v. Ray, 312 U.S. 96, 98 (1941).
15 Cope v. Anderson, 331 U.S. 461, 464 (1947).

16 This Court, for example, explained in Grayson v. Harris, 279
U.S. 300 (1929), that a statute of limitation for suits to recover
land begins to run on a title holder’s action when another person
either asserts a right to the land or takes possession of it in conflict
with the title holder’s interest. The Court considered that a cause
of action accrues whenever someone asserts rights in the land ad-
verse to or in conflict with the title holder’s interest. As a result,
the Court held that a statute of limitation had not run on a claim
where the conflicting assertion of right to the land occurred within
the limitation period.

As the Court said in Cope, 331 U.S. at 466: “[A] cause of action
is the fact or combination of facts which gives rise to a right of
action, the existence of which affords a party a right to judicial
interference in his behalf.”

9

where a claimant seeking to recover title to land alleges
that a previous transfer of title was ineffective and
void, the date the cause of action accrued does not de-
pend upon resolution of the allegation that the transfer
was void. The cause of action in such a case—the de-
mand for redress—accrued at the time of the transfer
since that is the event giving rise to a conflicting asser-
tion of rights.

For example, in Joines v. Patterson” this Court re-
jected the argument that a statute of limitation nad
not run against a claim to recover former Indian allot-
ment lands because the underlying transfer was invalid.
In that case, when the Indian allottee died her interest
in the lands passed to her husband, a non-Indian, and
to her five minor children. The husband, purporting to
act as guardian for the children, sold those lands, but,
some number of years later, he and they sued the pur-
chaser to recover them. They argued that the applicable
statute of limitation had not begun to run “since no
interest passed to [the purchaser].”** The Court spe-
cifically stated that the court below had erred in accept-
ing that view,’ and later said in discussing the applica-
ble statute of limitation:

It is of the nature of the statute of limitation, when
applied to civil actions, in effect, to mature a wrong
into a right, by cutting off the remedy.”

Thus, if the claimant has not filed the action within the
time specified by the applicable statute of limitation, the

17 Joines v. Patterson, 274 U.S. 544 (1927).

18 Jd. at 548.
19 Jd...
20 Joines, 274 U.S. at 553 (quoting Ferguson v. Peden, 33 Ark.

150, 155 (1878); Jacks v. Chaffin 879), 34 Ark. 534, 541; Logan
v. Jelks, 34 Ark. 547, 549 (1879) ).

In a variety of contexts the Court has repeatedly declared that
statutes of limitations do not depend upon whether the plaintiff has

10

claim is barred, whether or not a claimant could estab-
lish title and recover the land if the litigation were al-
lowed to proceed.”

Consistent with this Court’s directives, in Wolfe Vv.
Phillips * the Tenth Circuit declared with respect to a
claim to recover formerly-restricted Indian land:

valid rights. Rather statutes of limitations operate regardless of
whether the plaintiff has valid rights. E.g., Johnson v. Railway
Express Agency, Inc., 421 U.S. 454, 463-4 (1975) (“Although any
statute of limitations is necessarily arbitrary, the length of the
period allowed for instituting the suit inevitably reflects a value
judgment concerning the point at which thc interests in favor of
protecting valid clais are outweighed by the interests in pro-
hibiting the prosecution of stale ones”); Kavanaugh v. Noble, 332
U.S. 535, 539 (1947) (“[Pleriods [of limitation] are established
to cut off rights, justifiable or not... . * * * Remedies for resulting
inequities are to be provided by Congress, not the courts.”).

21 Statutes of limitations may be tolled in various situations, in
which case the time will not run against the claimant, extending
the deadline for bringing an action. The tolling of a stotute of
limitation, however, does not change the date on which «a action
accrues and could be brought by the claimant. See, e.g., Johnson
vy. United States, 87 F 2d 940 (8th Cir. 1937) (where statute of
limitations was tolled for persons disabled from bringing suit, those
disabled persons could still bring an action during the period of the
disability through their guardians).

In certain circumstances, where Indian land is subject to a fed-
eral restriction on alienation that has never been removed, state
statutes of liraitations may be tolled for a related claim. Sze dis-
cussion below at 16-18. But that does not alter the date such
a claim accrued or the Indian's ability to bring the claim. Cf.
New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976), cert.
denied, 429 U.S. 1211 (1977) (where court stated that federal
trusteeship did not deprive Indians of right to sue on their own
behalf). Nor does that prevent other defenses from applying in
appropriate circumstances, such as federal statutes of limitations
or the doctrine of laches or the bona fide purchaser doctrine. And
once such a restriction on alienation is removed, state statutes of
limitations begin to run. See discussion below at 16-18.

22 Wolfe v. Phillips, 172 F.2d 481, 486 (10th Cir. 1949), cert.
denied, 336 U.S. 968 (1949).

11

The [applicable five-year period of limitations] be-
gan to run... and the instant action became barred
. irrespective of whether such [allegedly void]
deed was valid or void. Therefore, we find it unnec-
essary to determine the conflicting contentions of the
parties with respect to the validity of such deed.

In this ease the transaction which gives rise to the
complaint occurred in 1953-1955, when the Secretary of
the Interior allegedly transferred the land to the federal
government improperly, after notifying the plaintiff of
its intent to sell the land and documenting the transfer.

23 If a suit to recover land is based on allegations of fraud, a
right of action accrues—and the applicable statute of limitation
begins to run—when the plaintiff becomes aware of the fraud or
reasonably should have become aware of the fraud. £.g., Explora-
tion Co. v. United States, 247 U.S. 435 (1918); Latham v. Latham,
184 N.C. 55, 113 S.E. 623 (1922); Ewbank v. Lyman, 170 N.C. 505,
87 S.E. 348 (1915). Similarly, see Newman v. Prior, 518 F.2d 97,
100 (4th Cir. 1975) (In an action for fraud in connection with
securities law violations, court said: “The statute [of timitation]
does not begin to run until the fraud is either actually known or
should have been discovered by the exercise of due diligence.”). See
also Akron Presform Mold Co. v. McNeii Corp., 496 F.2d 230, 23
(6th Cir. 1974); Laundry Equipment Sales v. Borg-Warner Co:p.,
334 F.2d 788, 792 (7th Cir. 1964).

In this case, if the pending claim were viewed as a claim against
the United States for conduct akin to fraud, then the question of
when the plaintiff should have been aware of the secretarial trans-
fer might become relevant. Also, one of the federa! statutes of
limitations asserted to bar the action, the twelve-year limitation for
actions to quiet title, provides that an action subject te that limita-
tion “shall be deemed to have accrued on the date the plaintiff or
his predecessor in interest knew or should have known of the claim
of the United States” to have in interest in the land adverse to the
plaintiff’s. 28 U.S.C. § 2409a(f) (1982). The United States contends
that the plaintiff was aware of an adverse interest in the land by
1955, since her complaint does not deny that she received the letter
notifying her the land would be sold and payment for its sale. In
any event, the United States contends that she became aware of the
adverse interest asserted by the government in 1967, when she
received a listing of her property that failed to include the land
in dispute. In either case, the claim accrued more than twelve years
before the plaintiff brought suit in 1981.

——————eaeEEeEee ed Gn’ - Gea

12

Nevertheless, the Eighth Circuit declared that no action
had accrued, apparently confusing the accrual of a cause
of action seeking to enforce alleged rights with the un-
derlying rights:

[I]f the underlying sale of iand is void, the concept
that a cause of action “accrues” at some point is in-
applicable because the sllottee simply retains title
all along.**

The court of appeals’ concept of accrual puts the pro-
verbial cart before the horse by requiring litigation on
the merits of a claim regardless of when the claim is
brought, and by making the application of a time bar
such as a statute of limitation depend not upon the
passage of time but upon resolution of the question
whether the transfer at issue violated the law.*”

Whether or not the plaintiff in this case might be suc-
cessful in establishing a right to the lands at issue on
the theory that the secretarial transfers were improper,
a claim has accrued. And if a statute of limitation is ap-
plicable, it started to run when the cause of action ac-

24 Mottez, 753 F.2d at 74.

25 Indeed, if no claim has accrued, as the Eighth Circuit states,
then no claim is properly before the Court. This only reveals the
absurdity of saying that no claim has accrued. A claim must accrue
to permit the plaintiff to enforce his rights in court. Where a person
asserts ownership of land which someone else also purports to own,
a conflict exists. Each has accrued a claim which may be asserted
in court, even though only one will be successful on the merits.

See Stubbs v. United States, 620 F.2d 775, 780-81 (10th Cir.
1980), where (in a non-Indian context) the court of appeals re-
jected the argument that a federal statute of limitation did not
run against the plaintiff’s claim for land which the United States
had purchased and placed in a national forest because the original
transfer had been illegal and a “nullity.” The court decided that
regardless of the validity of the transaction on which the claim
was based, the United States had asserted an interest in the land
adverse to the plaintiff’s and the claim had accrued, starting the
running of the statute of limitation. The claim was barred.

13

crued. The Eighth Circuit distorted the legal principles
relating to causes of action and statutes of limitations to
achieve its result.

If not corrected, the decision could undermine the se-
curity of land titles across the country, to the damage of
all persons with any interest in land.** As this Court has
stated repeatedly for over a century, statutes of limita-
tions are both necessary and beneficial to a society:

Statutes of limitations, which “are found and ap-
proved in all systems of enlightened jurisprudence,”
Wood v. Carpenter, 101 U.S. 135, 139 (1879), rep-
resent a pervasive legislative judgment that it is
unjust to fai] to put the adversary on notice to de-
fend within a specified period of time and that “the
right to be free of stale claims in time comes to pre-
vail over the right to prosecute them.” Railroad
Telegraphers v. Railway Express Agency, 321 U.S.
342, 349 (1944). These enactments are statutes of
repose; and although affording plaintiffs what the
legislature deems a reasonable time to present their
claims, they protect defendants and the courts from
having to deal with cases in which the search for
truth may be seriously impaired by the loss of evi-
dence, whether by death or disappearance of wit-
nesses, fading memories, disappearance of docu-
ments, or otherwise. United States v. Marion, 404
U.S. 307, 322, n.14 (1971); Burnett v. New York
Central R. Co., 380 U.S. 424, 428 (1965) ; Chase Se-
curities Corp. Vv. Donaldson, 325 U.S. 304, 314
(1945); Missouri, K & T.R. Co. v. Harriman, 227
U.S. 657, 672 (1913); Bell v. Morrison, 1 Pet. 351,
360 (1828) .*7

26 This Court has long recognized the importance of stability in
land titles. See, e.g., Summa Corp. v. California, U.S. —-,
104 S.Ct. 1751, 1757-8 (1984); Arizona v. California, 460 U.S. 605,
620 (1983); United States v. Title Ins. & Trust Co., 265 U.S.
472, 486 (1924).

“7 United States v. Kubrick, 444 U.S. 111, 117 (1979).

14

Ill. A Claim To Set Aside A Transfer Of Indian Land Can
Be Barred Regardless Of Whether The Transfer Was
Void.

The court of appeals refused to apply any federal stat-
ute of limitation to the claim, primarily relying upon this
Court’s decision in Ewert v. Bluejacket,** which the court
of appeals described as helding that time bars such as
state statutes of limitations and the doctrine of laches
cannot apply to a claim that Indian land was sold in vio-
lation of federal restrictions on alienation because in
such cases the Indian retains title to the land.** The
court below misinterpreted Ewert v. Bluejacket, which
in fact applied the doctrine of laches and contemplated
that a claim to recover former Indian land could be
barred in certain circumstances.”

The Ewert v. Bluejacket case was one of several dis-
putes over former Indian allotments that involved Paul
A. Ewert, a lawyer who was employed between 1908 and
1912 by the federal government to conduct litigation con-
cerning Indian lands.*! During his tenure with the fed-
eral government Ewert bought a number of Indian allot-
ments at bargain prices, sometimes directly from the al-
lottee and sometimes indirectly through an agent. In
Ewert v. Bluejacket the heir td~cer:ain allotted lands re-
quested that the deed to Ewert be declared invalid be-

28 Ewert v. Bluejacket, 259 U.S. 129 (1922).
*9 Mottaz, 753 F.2d at 74.

%0In County of Cneida v. Oueida Indian Nation (Oneida I/]/),
U.S. , 105 S.Ct. 1245, 1267 (1985) (Justice Stevens dis-
senting, joined by the Chief Justice, Justice White and Justice
Rehnquist) (emphasis in original), four Justices concluded:

A close examination of the Ewert [v. Bluejacket| case .
indicates that the Court applied the doctrine of laches ....

31 See Ewert v. Bluejacket, 259 U.S. 129 (1922); Kendall v.
Ewert, 259 U.S. 139 (1922); Hampton v. Ewert, 22 F.2d 81 (&th
Cir. 1927), cert. denied, 276 U.S. 623 (1928).

15

cause Ewert had purchased the land in violation of a fed-
eral statute that prohibited any person “employed in In-
dian affairs” from having an interest in any trade with
Indians.** Ewert asserted the equitable defense of laches
even though he had been responsible for the illegal act al-
leged as the basis for invalidating the land transfer. The
Court denied him, as the wrongdoer, the benefit of laches,
applying the traditional equitable principle that only one
acting in good faith should be able to take advantage of
laches. The decision rendered the transfer of Indian land
void as to a purchaser who (apparently knowingly) vio-
lated the law.*

32 In Ewert v. Bluejacket the land in controversy was sold at
public auction in the manner prescribed by the Secretary of the
Interior. The Court assumed compliance with other restrictions on
the alienation of the Indians’ land. Ewert v. Bluejacket, 259 U.S. at
134-5. See also Kendall v. Ewert, 259 U.S. at 141-2 (“In the Blue-
jacket Case we have held that, assuming the sale to have been
made in the public manner required by the rules of the department,
all required action to have been, in form, properly taken, and the
deed therein to have been approved by the Secretary of the Interior,
nevertheless it was void because Ewert was proh.oited .. . from then
becoming the purchaser of such Indian lands... .’’).

%3 Some of Ewert’s illegal purchases of Indian lands were par-
ticularly egregious because they violated rules established in judicial
decisions where he had represented the United States. See Hampton
v. Ewert, 22 F.2d at 89, noting Ewert’s involvement in United
States v. Noble, 237 U.S. 74 (1915). Ewert attempted to save at
least one of his illegal purchases by procuring settlement of a law
suit through fraud. See Kendall v. Ewert, 259 U.S. at 142. It is
difficult to imagine a defendant less entitled to the benefits of an
equitable defense.

Indeed, in Oneida IT, 105 S.Ct. at 1267 (dissenting opinion) (em-
phasis supplied), Justice Stevens wrote:

On the facts of Ewert, the Court found that the plaintiffs’
burden of disproving laches was easily met, but the Court might
well have reached a different conclusion in Ewert if the con-
veyance had not been so recent, if the defendant had not been
as blameworthy, or the character of the property had changed
dramatically in the interim.

16

By no means did the Court suggest that a claim to re-
cover former Indian lands can be asserted at any time
against any person. Nor did the Court suggest that per-
sons not involved in the allegedly illegal transfer of In-
dian land could not later gain an interest in that land
even if the original transfer from the Indians was in
some manner illegal. To the contrary, the Court assumed
that after recovering the land from Ewert the plaintiff
Indian would have to pay the mortgage that Ewert had
placed on the property to prevent foreclosure. The Court
therefore stated that Ewert should indemnify the plain-
tiff.** In effect the Court held that the mortgage was a
valid and enforceable lien, and it anticipated the pos-
sibility that the land could have passed from the Indian
allottee through Ewert to the mortgagee in a foreclosure.

This Court in fact has made it clear that a transfer of
Indian land in violation of federal law may not be set
aside when the land at issue has been transferred to an
innocent purchaser or substantial time has elapsed since
the allegedly illegal transaction or the character of the
land has changed. This is so even if the original transfer
was void and the land might have been recoverable in the
hands of a wrongdoer. For example, in Schrimpscher Vv.
Stockton * the Court held that a conveyance of an In-
dian allotment in violation of a restriction on alienation
contained in a federal treaty could not be challenged or
set aside by the Indian heirs of the Wyandotte Indian
who had conveyed the land. Among other things, the
heirs argued that they retained title because the original
transfer was void and that, as a result, no statute of lim-
itation could run against the claim.** The Court rejected
the argument, although it acknowledged that the original

34 Ewert v. Bluejacket, 259 U.S. at 138. See also Kendall v.
Ewert, 259 U.S. at 150.

35 Schrimpscher v. Stockton, 183 U.S. 290 (1902).
36 Jd. at 296, 299.

“47

transfer was void because it violated a restriction on
alienation. When the restriction was later removed, the
Indian heirs were required to bring their claim within
the time period specified by state statutes of limitations.
The later removal of the restriction did not change the
nature of the illegal transfer, but it did make state stat-
utes of limitations apply. And, even though the transfer
in issue had been void for violation of the restriction on
alienation,” statutes of limitations barred the claim to
recover the land.

The Court’s decision in Felix v. Patrick,* similarly
demonstrates that an Indian claim for land “wrongfully
alienated” may be barred, even if the transfer at issue
was void for violation of a restriction on alienation, con-
trary to the Eighth Circuit’s decision. The Court zpplied
laches to a claim for land by the heirs of an Indian who
had transferred land rights in the form of scrip in viola-
tion of a restriction on alienation. The Court acknowl-
edged that the land rights had been obtained from the
Indian in violation of a federal statute that provided
that no transfer or conveyance of those rights would be
valid.** Nevertheless, the Court affirmed dismissal of the
case because the plaintiffs could not prove that the de-
fendant and his grantees had participated in defrauding
the Indian, and because innocent persons had developed
and transformed the land at issue into extremely valua-
ble property in the 28 years that had elapsed since the
illegal transfer.

Lower courts have followed Schrimpscher and Felix in
applying statutes of limitations and laches defenses to In-
dian land claims. Most recently, in Dennison v. Topeka

37 The Court said that the deed from the allottee “was clearly
void.” Schrimpscher, 183 U.S. at 294.

38 Felix v. Patrick, 145 U.S. 317 (1892).
39 Jd. at 325-6, 334.

18

Chambers Industrial Dev. Corp.” the Tenth Circuit Court
of Appeals held, among other things, that a claim to re-
cover former Indian lands was barred by state statutes
of limitations which began to run against the claim once
restrictions on alienation of the land had ended.

Three related decisions by the Tenth Circuit Court of
Appeals concerning a series of illegal purchases of Indian
allotments, United States v. Debell,*' United States v.

49 Dennison v. Topeka Chambers Industrial Dev. Corp., 724
F.2d 869 (10th Cir. 1984), aff’g, 527 F. Supp. 611 (D. Kan.
1981). Similarly, see Armstrong v. Maple Leaf Apartments, Ltd.,
622 F.2d 466 (10th Cir. 1979), cert. denied, 449 U.S. 901 (1980)
(transfer of Indian land in violation of restriction could not be
avoided by Indian transferor because laches barred claim) ; Dillon
v. Antler Land Co., 507 F.2d 940 (9th Cir. 1974), cert. denied, 421
U.S. 992 (1975) (transfer of Indian land in violation of restriction
could not be avoided by Indian transferor because state statutes of
limitations barred claim); Wolfe v. Phillips, 172 F.2d 481 (10th
Cir. 1949), cert. denied, 336 U.S. 968 (1949) (transfer of Indian
land in viclation of restriction could not be avoided because state
statutes of limitations barred claim).

In each of these cases, the plaintiffs were time-barred, either by
a statute of limitation or by laches. Thus, as a result, in each case
title to the land remained in the hands of the purchaser or remote
grantees in the purchaser’s chain of title.

See also Duncan v. Andrus, 517 F. Supp. 1, 6 (N.D. Cal. 1977)
where, in fashioning relief for a void termination of a reservation,
the court protected innocent purchasers of former reservation lands.
It directed the Indians who transferred their land to bona fide pur-
chasers to pursue claims for monetary relief against the United
States. And see Pechanga Band of Mission Indians v. Kacor Realty,
Inc., No. CU-78-4499-MML, slip op. at 9 (C.D. Cal. Aug. 22, 1980),
aff'd on other grounds, 680 F.2d 71 (9th Cir. 1982), cert. denied,
US. , 103 S.Ct. 817 (1983) (Indian claim for land barred
as to bona fide purchasers). And see Fife v. Barnard, 186 F.2d
655 (10th Cir. 1951) (transfer of Indian land in violation of re-
striction could not be avoided by Indians’ heirs because defendants
held superior title under applicable adverse possession statute).

41 United States v. Debell, 227 F. 760 (1915).

19

Debell,* and United States v. Debell,** also highlight the
Eighth Circuit’s erroneous interpretation of Ewert Vv.
Bluejacket. In these decisions the Tenth Circuit sharply
distinguished between the remedies available in an action
to recover restricted Indian lands, depending upon
whether the wrongdoer still held the land. The Court al-
lowed recovery of the land from the wrongdoer when he
still held the land, but it allowed only recovery of com-
pensation from the wrongdoer when the land had passed
from him to an innocent purchaser. In each of these
cases, the United States sought to cancel a land patent to
an Indian in order to void a transfer of an Indian’s land
to Debell, an Indian trader, who colluded with others to
defraud various Indians of their lands. The Indian allot-
ments had been subject to restrictions on alienation, but
the conspirators misrepresented the competence of each
Indian in order to obtain fee patents which Debell then
bought. In one case the government successfully recov-
ered the land from Debell and cancelled the fee patent,
so that the Indian and the land were returned to their
original position.** In the other cases, however, Debell
had already sold the land to persons who had purchased
it in good faith, without knowledge of the circumstances
in which it was obtained from the Indian. The court of
appeals ruled that the innocent land purchasers held su-
perior title. The United States could not recover the land
for the Indian, although it could seek monetary compen-
sation from Debell, the wrongdoer.”

The federal government has acted on the understand-
ing that “wrongfully alienated” Indian lands may be re-
covered, if they are still in the hands of the wrongdoer.

42 United States v. Debell, 227 F. 771 (1915).
43 United States v. Debell, 227 F. 775 (1915).

44 Debell, 227 F. 775. Accord, Smith v. Stevens, 77 U.S. (156
Wall.) 321 (1870) (deed from Indian in violation of restriction
held void in the hands of participant in illegal transfer)

* Debell, 227 F. 760; Debell, 227 F. 771.

20

In Heckman v. United States,*® the Court held that the
United States could maintain suit on behalf of Indian
allottees to set aside conveyances of restricted Indian al-
lotments where the United States was suing the initial
grantees who participated in the illegal transactions.
Significantly, the United States brought suit in this and
more than 300 similar cases promptly, within one to five
years after the illegal conveyances, while recovery from
the original grantees was possible. *

In cases determining rights to real estate, the term
“void” is used in two senses—first to mean a transaction
where no interest was in fact transferred ** and second
to mean a transaction where the transfer was illegal but
nevertheless conveyed an interest which cov'd be avoided
in some, but not all, circumstances.*® Statutes of limita-

46 Heckman v. United States, 224 U.S. 413 (1912).
47 Jd. at 415-17.

48 In a transaction void in the first sense, the ostensible grantee
receives no title or interest because the grantor, in fact, has none
to give. Even if the grantee in turn sells his purported interest to
one who purchases the land for value and in good faith, the innocent
purchaser receives nothing because the grantee received nothing
from the original grantor. E.g., Sampeyreac v. United States, 32
U.S. (7 Pet.) 222 (1883) (Court held that a forged deed gave no
right to the grantee and that a transfer from the grantee, in turn,
conveyed nothing); Dodge v. Briggs, 27 F. 160, 166-7 (S.D. Ga.
1886) (contrasting the situation where a vendor has no title at all
with the situation where the original transfer may have been void
for fraud but where the vendor held an interest that could pass to
a bona fide purchaser). See generally Missouri, Kan. & Tex. Ry. v.
Kansas Pac. Ry., 97 U.S. (7 Otto) 491 (1878) (in dispute over two
railway grants covering same land, the second grantee received
nothing because the United States no longer had any title to
convey); Pettibone y. Cook County, Minnesota, 120 F.2d 850, 855
(8th Cir. 1941) (although the United States had issued a land patent
for certain islands in 1884, the islands had belonged to Canada since
1783).

‘’ A transaction that is void in the second sense is voidable. It
may be determined to have been void and then treated as void in

21

tions, laches and the bona fide purchaser doctrine may
bar a claim based on a transaction void in the second
sense, while other defenses such as adverse possession
may bar a claim based on a transaction void in the first
sense.

Where Indian lands are “wrongfully alienated,’ the
transaction is void in the second sense. The Indians hold
an interest in the land that they may transfer even if
the transfer violates special restrictions and even if the
Indians are defrauded in the process.’ The transfer
may be avoided in an action against the participant in
the illegal transaction—if no statute of limitation has
run on the claim—but such a transfer does not give In-
dians a perpetual right to recover the land from every
person who later holds an interest in it.

For example, the Court noted in Schrimpscher that
the original allottee had held an interest in the land which
he had only been prevented from conveying by the re-
striction on alienation and that such restrictions were to

appropriate circumstances, where no statute of limitation has run
against the claim. For example, a fraudulent conveyance may be
declared void, and, if the land is held by the person responsible for
the fraud, it may be recovered. However, if the land has passed to
a bona fide purchaser the person who was defrauded cannot recover
the land from the BFP. Fletcher v. Peck, 10 U.S. (6 Cranch) 87,
132-4 (1810). See also Wright-Blodgett, Co. v. United States, 236
U.S. 397 (1915); United States v. Detroit Timber and Lumber Co.,
200 U.S. 321 (1906); United States v. California and Oregon Land
Co., 148 U.S. 31 (1893): Colorado Coal and Iron Co. v. United
States, 123 U.S. 307 (1887).

3° B.a., Kasey v. Molybdenum Corp. of Am., 336 ".2d 560 (9th
Cir. 1964) (where plaintiffs argued that statute of limitation
had not run on mining claim because they had retained title; but
court held that even if transfer was fraudulent it was merely
“voidable” and statute of limitation applied).

51 See generally Felix, 145 U.S. at 335. See also Duncan, 517
F. Supp. at 6 (declaring that unauthorized transfers of restricted
Indian land were not “voidable” in the hands of “nor.-Indian good
faith purchasers.” ).

22

prevent Indians from being defrauded of the land. The
Court then carefully distinguished between the transac-
tion at issue, which was void for violation of a restriction
an alienation, and a transaction based on forgery, where
the purported seller of land held no interest in the prop-
erty and had nothing to transfer.®* In so doing, the Court
implicitly recognized that the statute of limitation defense
was effective as to the type of transaction that violated
a restriction but might not be with respect to the type
of transaction that involved forgery.** The Court spe-
cifically rejected the argument adopted by the Eighth
Circuit that no statute of limitation can apply to an
Indian land claim based on an alleged violation of a re-
striction on alienation.

This also explains the result in Ewert, where the land
could be recovered from the person who defrauded the
Indian allottee but the innocent mortgagee held an en-
forceable lien on the property. A conveyance of Indian
land in violation of a restriction on alienation, like any
fraudulent conveyance, may be avoided in appropriate
circumstances and the land recovered from the wrong-
doer.” Similarly, in the Debell decisions where the

52 Schrimpscher, 183 U.S. at 299.
53 Jd.

54 See, e.g., Kasey, 336 F.2d at 568 (distinguishing between a
deed void for fraud and a deed void because of forgery, and apply-
ing statute of limitation to claim based on the first type of deed).
See also Begay v. Albers, 721 F.2d 1274 (10th Cir. 1983) (Indian
claims to recover allotments were permitted to proceed because
purported transfers of their interests were merely forgeries). Cf.
Ewert v. Bluejacket, 259 U.S. at 138, where the Court noted that
Ewert, the wrongdoer had received legal title to the Indian allot-
ments he illegally purchased but the Court denied him the benefit
of laches. Ewert’s interest was treated as inferior to the equitable
interest asserted by the Indian plaintiff, but the innocent mort-
gagee’s interest was given effect.

55 Where the perpetrator of the fraud still holds the iand, a
plaintiff’s remedies include recovery of the land. E.g., Exploration,
247 U.S. at 447 (“To hold that by concealing a fraud, or by com-

23

wrongdoer still held the land wrongfully obtained from
vhe Indian, the transaction could be avoided. Where
Debell had transferred the land to a bona fide purchaser,
the innocent third party received an interest in the land
and, because of his BFP status, it was superior to the
rights asserted on behalf of the Indian allottee.

Thus, a transfer of Indian lands in violation of a
restriction on alienation may be avoided in some circum-
stances but not in others, and the Eighth Circuit erred in
holding that a statute of limitation cannot apply to this
plaintiff’s action simply because the plaintiff alleges that
the transfer at issue was void. The court of appeals more
appropriately should have addressed whether the claim is
subject to a statute of limitation and whether the plain-
tiff is barred by laches.

IV. A Generally Applicable Federal Statute Of Limitation
Can Apply To An Indian Land Claim.

The Eighth Circuit refused to apply any federal statute
of limitation solely because the federal government has a
general policy of protecting Indian lands.” In so doing,
the court of appeals first erroneously declared that
neither state statutes of limitations nor the doctrine of
laches can ever bar a claim to recover “wrongfully alien-
ated” former Indian lands. By analogy, it then con-
cluded that no existing federal statute of limitation can
apply to such a claim. Citing no precedent, the court of
appeals declared that Congress would have to provicie spe-

mitting a fraud in a manner that it concealed itself until such
time as the party committing the fraud could plead the .iatute of
limitations to protect it, is to make the law which was designed to
prevent fraud the means by which it is made successful and se-
cure.”) (quoting from Bailey v. Glover, 88 U.S. (21 Wall.) 342
(1874) ).

56 Mottaz, 753 F.2d at 74.

‘TI Jd. See the discussion above at 16-18 and n.40 for examples
of the application of state law to certain Indian land claims.

24

cifically that a claim such as this is subject to a federal
statute of limitation.* The court of appeals erred because
its analysis of the law relating to Indians and Indian
land claims was too superficial and because it failed to
account for other equally strong federal policies and doc-
trines which are consistent with the application of a fed-
eral statute of limitation to an Indian land claim.

It is quite true that Indians generally hold a special
status under federal law. The United States has asserted
plenary authority over Indians, and, ever since the
seminal case of Cherokee Nation v. Georgia,” the result-
ing relationship between the federal government and In-
dians has been described as a “trust” relationship with
the government functioning as “guardian” for its Indian
“wards.” * Pursuant to its special role in Indian affairs,
the federal government has imposed a variety of general
and particular restrictions on Indians and Indian lands.”
Where there is a conflict between the application of state
law to Indians and their lands and the special provisions

58 Mottaz, 753 F.2d at 74.

59 E.g., United States v. Sioux Nation, 448 U.S. 371 (1980);
Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); Federal Power
Comm'n v. Tuscarora Indian Nation, 362 U.S. 99 (1960).

6 Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

61 F.g., Seminole Nation v. United States, 316 U.S. 286, 296-7
(1942); Heckman, 224 U.S. at 434; Feliz, 145 U.S. at 330-31;
United States v. Kagama, 118 U.S. 375, 383-4 (1886); Chouteau v.
Moloney, 57 U.S. (16 How.) 203, 237-8 (1853).

62 E.q., the Nonintercourse Act, now codified at 25 U.S.C. § 177
(1982) (restricting alienation of tribal lands); the General Allot-
ment Aet of 1887 (Dawes Act), now codified at 25 U.S.C. § 331
et seq. (1982) (allotments to individual Indians authorized with
trust period preventing alienaticn); the Indian Reorganization Act
of 1934, now codified at 25 U.S.C. § 461 et seq. (1982) (trust period
extended restricting alienation of allotments).

25

that the federal government has made for their protec-
tion, federal law prevails.™

However, decisions that state law time bars may not
apply to certain Indian claims based on the supremacy of
federal law in Indian affairs do not dictate what law the
federal government may apply.“ There is no conflict be-
tween state and federal law in a case such as the one
now before the Court, which involves only federal actions
and federal laws.

The Eishth Circuit seems to suggest that the federal
government’s general policy of protecting Indian lands
conflicts with the application of a federal statute of lim-
itation to this claim. But application of a general fed-
eral statute of limitation to a claim for land which the
federal government itself has purchased and removed
from Indian ownership hardly creates a conflict in federal
policy relating to the specific tract of land. The general

63 County of Oneida v. Oneida Indian Nation (Oneida ]]), ——
U.S. —-, 105 S.Ct. 1245 (1985) (Congress had specifically pro-
vided that state law would not apply to pre-1952 claims in enacting
a statute that otherwise gave state courts civil jurisdiction over
Indians) ; Schrimpscher v. Stockton, 183 U.S. 290 (1902) (restriction
on alienation had been removed and federal trusteeship ended, so
state statutes of limitations could apply to Indian claim without
conflicting with federal law); McClanahan y. Arizona State Tax
Comm’n, 411 U.S. 164 (1973) (the United States may preempt
the application of state law to Indians); United States v. Heath,
509 F.2d 16 (9th Cir. 1974) (state law applied to Indian when fed-
eral government ended special status).

Cf. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 673-76 (1979)
(state rules concerning accretion and avulsion held applicable to
Indian land claim because states and private landowners had rea-
sonably relied on state law in purchasing property and no overrid-
ing federal interest was threatened.) .

84 See Big Spring v. United States Bureau of Indian Affairs, 767
F.2d 614, 617 (9th Cir. 1985) (six-year federal statute of limitation
for claims against the United States applied to Indian claim despite
special trust relationship with federal government); Christensen v.
United States, 755 F.2d 705 (9th Cir. 1985) (same).

26

federal policy of protecting Indian lands is irrelevant
where the federal government has decided that the land
in issue is no longer Indian land. See Grosz v. Andrus,”
where the court held that the general federal statute of
limitation for quiet title actions against the United States
applied to a claim by Indians that an easement granted
over 30 years before was invalid.

Moreover, the Eighth Circuit ignored other equally
strong federal policies to reach its result. As the Tenth
Cireuit explained in applying the twelve-year federal
statute of limitation for quiet title actions in Stubbs v.
United States,” sovereign immunity protects broad fed-
eral interests, and waivers of that immunity should be
narrowly construed. In particular, the courts should
avoid a construction of the law that would allow claims
to quici title against the United States “no matter how
ancient.” @

® Grosz v. Andrus, 556 F.2d 972 (9th Cir. 1977). Similarly,
see Big Spring, 767 F.2d 614 (Indian mineral rights claim barred
by six-year federal statute of limitation on civil actions against
United States where government had previously given rights to
others); Christensen, 755 F.2d 705 (Indian claim for access to
allotment barred by six-year federal statute of limitation) ; Lemieux
v. United States, 15 F.2d 518 (8th Cir. 1926), cert. denied, 273
U.S. 749 (1927) (Indian land claim barred by laches where the
federal government had disposed of the land the plaintiff contended
was his). Similarly, see Mann v. United States, 399 F.2d 672 (9th
Cir. 1968) (general federal statute of limitation fur actions under
Federal Tort Claims Act barred claim by Indian).

*6 Stubbs, 620 F.2d at 780.
87 Jd.

27

CONCLUSION

The court of appeals’ decision that no federal statute
of limitation can apply to the plaintiff’s claim was
erroneous for all of the reasons set forth above. The
decision should be reversed.

Respectfully submitted,

JOHN C. CHRISTIE, JR.
Counsel of Record

J. WILLIAM HAYTON

STEPHEN J. LANDES

LUCINDA O. MCCONATHY
BELL, Boyp & LLOYD
1775 Pennsylvania Ave., N.W.
Washington, D.C. 20006
(202) 466-6300

Attorneys for the American Land
Title Association

Dated: January 9, 1986

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0445%3A09. Public record. Not legal advice.