Amicus Curiae Brief — United States v. Mottaz

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No. 85-546

Supreme Court. U.S.

FrR 10 1986

PANIOL, JR.

In The

Supreme Court of the United States

October Term, 1985

UNITED STATES OF AMERICA, PETITIONER,

FLORENCE BLACKETTER MOTTAZ, ETC.,

RESPONDENT.

On Writ of Certiorari

To The United States Court of Appeals

For The Eighth Circuit

fy,

BRIEF OF THE NAVAJO TRIBE OF INDIANS

AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT MOTTAZ

ra’

Pau. E. Frye

Counsel of Record

200 Lomas Blvd., N.W.

Suite 815

Albuquerque, NM 87102

(505) 247-9592

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

TABLE OF AUTHORITIES

INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT ...........

TABLE OF CONTENTS

I. Aetions' For Allotments Under 25 U.S.C.

§ 345 Inelude Actions To Protect The Inter-

ota Of The Allottee After The ee

gE ier voce 6

Il.

Both the language of 25 U.S.C. § 345 and

settled rules of construction compel the

conclusion that actions brought pursuant

to 25 U.S.C. § 345 are not limited to ac-

tions to obtain allotments in the first in-

tn es. CLS ne ener en

That 25 U.S.C. § 345 supports actions by

allottees to protect interests in allot-

ments already granted is supported con-

sistently by almost eighty vears of case

law.

There Is No Applicable Statute Of Limita-

tions For Actions By Allottees To Protect

Possessory Interests In Trust Allotments. 13

The applicability of general statutes of

limitations must be determined with ref-

erence to Congressional policy, the pro-

tections guaranteed by t) allotment stat-

utes, and the trust relationship. 0...

The Eighth Cireuit properly examined

the merits in order to determine the ap-

plicability of statutes of limitations.

So Renee ee eeee ee eeeereeeee eee ee es se eeeeeeee ss eeee sees sees seeeeeeeeeer ees seessenes seeseeesesseeseeessoees

nite 13

vides 16

TABLE OF CONTENTS—Continued

C. Cuigress has not enacted any statute of

limitations which may be applied in ac-

tions to protect possessory interests in

es Ni ER PE ee

Page |

——————

ili

TABLE OF AUTHORITIES

Page

CasEs

Affiliated Ute Citizens v. United States, 406 U.S.

i re

Affiliated Ute Citizens of Utah v. United States,

431 F.2d 1349 (10th Cir. 1970), aff’d 406 U.S.

EEE 12

Antoine v. United States, 637 F.2d 1177 (8th Cir.

a 9

Arenas v. United States, 322 U.S. 419 (1944) 200000... 11

Armstrong v. Maple Leaf Apartments, Ltd., 622

F.2d 466 (10th Cir. 1979), cert. den. 449 U. S. 901

EL 18

Bacher v. Patencio, 232 F. Supp. 939 (S.D. Cal.

1964), aff’d 368 F.2d 1010 (9th Cir. 1966) 00000 15, 16

Baldridge v. Caulk, 110 Okla. 185, 237 P. 453 (1925) ..... 23

Begay v. Albers, 721 F.2d 1274 (10th Cir.

Sn Si 3, 4, 12, 15, 16, 19, 20, 21

Big Spring v. Unitea States Bureau of Indian Af-

fairs, 767 F.2d 614 (9th Cir. 1985) cece 17, 21

Block v. North Dakota, 461 U.S. 273 (1983) ................... 26, 27

Board of Commissioners v. United States, 100

F.2d 929 (10th Cir. 1938), mod. 308 U.S. 343

Neen 20

Board of County Commissioners v. Seber, 318 U.S.

LEAL 14

a * v. United States, 440 F.2d 1002 (Ct. Cl.

1971) .. a tescieceeseiieniinesenmnee 18

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

Cir. 1985), pet. for cert. pending No. 85-372 17

Clark v. United States, 587 F.2d 465 (10th Cir. 1978)... 21

TABLE OF AUTHORITIES—Continued

Page

Coleman v. United States Bureau of Indian Af-

fairs, 715 F.2d 1156 (7th Cir. 1983) ~~... 12

Confederated Salish and Kootenai Tribes v.

Namen, 380 F. Supp. 452 (D. Mont. 1974), aff'd

534 F.2d 1376 (9th Cir. 1976), cert. den. 429 U.S.

UTEP TITITIIED . secnsscesiooninsseishininstaipsiainimninaedicaiiaiaienandelielitiie <ivietiies 25

County of Oneida v. Oneida 'ndian Nation, — U.S.

~—s FS Fs nse 22, 23, 24, 25

County of Thurston v. Andrus, 586 F.2d 1212 (8th

Cir. 1978), cert. den. 441 U.S, 952 (1979) 26

Cramer v. United States, 261 U.S. 219 (1923) —W.... 28

Daney v. United States, 247 F. Supp. 533 (D.Ks.

1965), aff’d 370 F.2d 791 (10th Cir. 1966) 200000... 21

Dennison v. Topeka Chambers Indus. Dev. Corp.,

724 F.2d 869 (10th Cir. 1984) .... a a ee 18

Dillon v. Antler Land Co. of Wyola, 507 F.2d 940

(9th Cir. 1974), cert. den. 421 U.S. 992 (1975) ......... 18

Dodge v. United States, 362 F.2d 810 (Ct. Cl. 1966) 21

Donovan vy. Navajo Forest Products Industries,

RS BR OF OL , enero 28

Drummond vy. United States, 131 F.2d 568 (10th

SO, TI scicscintashiavsinnieieseneneletteicaasililietitesiatanieieniiite 17

Ewert v. Bluejacket, 259 U.S. 129 (1922) nnn eeeeeeeeessesssee 19

Felix v. Patrick, 145 U.S. 317 (1892) ——————__._. 26

Federal Power Com’n v. Tuscarora Indian Nation,

I Os Oy I icicles sicdl nenecicemanal 28

Fife v. Bernard, 186 F.2d 655 (10th Cir. 1951) . 18

First Moon v. White Tail, 270 U.S. 248 (1926) 20000 9, 11

BEST AVAILABLE COPY

TABLE OF AUTHORITIES—Continued

Page

Fontenelle v. Omaha Tribe, 430 F.2d 143 (Sth Cir.

___ SN EVO A ne ise eri er ee a 12

Fort Mojave Tribe v. United States, 210 Ct. Cl. 727

REESE Roce eee rrr 18, 19

Gerard v. United States, 167 F.2d 951 (9th Cir.

1948) .. Z 10, 12, 13

Hampton v. Ewert, 22 F.2d 81 (Sth Cir. 1927), cert.

den. 276 U.S. 623 (1928) ........ A Ra eee 19

Harkins v. United States, 375 F.2d 239 (10th Cir.

___, prenicneoren ; 12

Heckman vy. United States, 224 U.S. 413

RUE <sscienssnmeieelivatetinsdiNG aii Riciga tials ad 4, 10, 12, 15, 17, 20

Jennings v. Wood, 192 F. 507 (8th Cir. 1911) 000. 15

Lemieux v. United States, 15 F. 2d 518 (Sth Cir.

1926), cert. den. 273 U.S. 749 (1927) ncn cccncseneesncee 26

Lewis v. Hawkins, 90 U.S. (23 Wall.) 119 (1875) .W... 19

Loring v. United States, 610 F.2d 649 (9th Cir.

ST aceite taal Aaa 17, 20

Manchester Band of Pomo Indians, Inc. v. United

States, 363 F. Supp. 1238 (N.D. Cal. 1973) 00. . 19

McKay v. Kalyton, 204 U.S. 458 (1907) 10, 12

McLish v. White, 97 Okla. 150, 223 P. 348 (1924) ... 23

Menominee Tribe v. United States, 391 U.S. 404

ASIEN tc See RoR eS Ree ee 27

Menominee Tribe vy. United States, 726 F.2d 718

(led. Cir. 1984), cert. den. 105 S. Ct. 106 (1984) ....... 19

TABLE OF AUTHORITIES—Continued

Page

Mott v. United States, 283 U.S. 747 (1931) W.. 15, 16, 20

Mottaz v. United States, 753 F.2d 71 (8th Cir.

1985), cert. pemdimg NO, S5-BAG ee eecceeccsenceesseeeneceneeee 20, 21

Narragansett Tribe, ete. v. So. R. I. Land Devel.,

I ee 25

Nash v. Wiseman, 227 F. Supp. 552 (W.D. Okla.

1963) .. 21

Nemkov v. O’Hare Chicago Corp., 592 F.2d 35]

tA mealies 19

New Mexico Navajo Ranchers Association v.

ome BAF Oi fi) || | 4,8

Northern Cheyenne Tribe v. Hollowbreast, 425

3 2,9

Poafpybitty v. Skelly Oil Co., 390 U.S. 365

OSCE Eee ee no NTE ET 14, 15, 17, 20

Pueblo of Taos v. Andrus, 479 F. sid 359 (D.D.

CRSA SE IR ie ie ocr a 26

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) 000. 8

Schaghticoke Tribe of Indians v. Kent School

Corp., 423 F. Supp. 780 (D.Comn. 1976) ow. =. 25, 26

Scholder v. United States, 428 F.2d 1123 (9th Cir.

1970), cert. den. 400 U.S. 942 (1970) oe 12

Sehrimpscher v. Stockton, 183 U.S. 290 (1902) 2000. 18

Souire v. Capoeman, 351 U.S. 1 (1956) 0. 16, 28

United States v. Bowling, 256 U.S. 484 (1921) 20000. 14

United States v. Brown, 333 U.S. 18 (1948) 2000. 28

United States v. Brown, 8 F.2d 564 (th Cir.

1925), cert. den. 270 U.S. 644 (1926) 2000. 16

United States v. California, 332 U.S. 19 (1947) ree 20

Vil

TABLE OF AUTHORITIES—Continued

Page

United States v. Eastman, 118 F.2d 421 (9th Cir.

1941), cert. den. 314 U.S. 635 (1941) 12

United States v. Fairbanks, 171 F. 337 (8th Cir.

1909), aff’d 223 U.S. 215 (1912) ..... 7

United States v. Jackson, 280 U.S. 183 (1930) WW... 14

United States v. Mitchell, 445 U.S. 535 (1980) 00 19

United States v. Reily, 290 U.S. 33 (1933) 00. 9

United States v. Rickert, 188 U.S. 432 (1903) 200000... 11

United States v. Santa Fe Pacifie R. Co., 314 U.S.

339 (1941) asaeititaetmalalintatents . 2

United States v. Watashe, 102 F.2d 428 (10th Cir.

1939) aa ae

United States v. Winnebago Tribe, 542 F.2d 1002

EGRESS ER ae ne 28

Vicenti v. United States, 470 F.2d 345 (10th Cir.

1972), cert. dis’d 414 U.S. 1057 (1973) oo. 2,12

Watt v. Alaska, 451 U.S. 259 (1981) ee «= «6

Williams v. Johnson, 239 U.S. 414 (1915) oo. 17

Wolfe v. Phillips, 172 F.2d 481 (10th Cir. 1949),

cert. den. 336 U.S. 968 (1949) 18

TREATISES

F. Cohen, Handbook of Federal Indian Law (1942

ed.) scisinilan alaleahhia aaci a 18

F. Cohen, Handbook of Federal Indian Law (1982

| RRA ORR AEE Ses taiie er Me ae 3, 10, 13, 28

U.S. Dept. of Int., Federal Indian Law (1958) .W... 18, 25

Bogert, Law of Trusts and Trustees, §951 (1982

SSSI.» ccesssnevencnisbie eared ices taciancabatalabenihimmmnasipaboralae sie 19

vill

TABLE OF AUTHORITIES—Continved

Page

STATUTES

SUAC. (333 ae ser OE 22

25 U.S.C. § 337 .......... ee ee ee 19

EEE SE SR EA FAD ter en passim

ff | | Lainie ineaeaaond = >

I ameetoeedaniaaanancte 18, 23

D5 U.S.C. § BAB ee cneeneeseneeseesnmninnnnnennn nee 3, 14, 15, 16

25 U.S.C. § 352a . 15

a aaieniaamaealll 15

EF EE ae cee ee a nO y

LS Te caer Suiiaditeametl A Aa eatalats 14

oe. ee pa Dee Sima ae er)

25 U.S.C. § 405 cee San a A ee De mers

95 U.S.C. § 462 .......... See Pe Pe . 1

SE OC eR TE _..6, 26

Be UW. SO lachiieiedtieiadiiialeseian ali 6, 26

EE om ee a 22, 23, 24, 25, 27

Trade and Intercourse Act of 1793 oo 22

Indian Reorganization Act of 1934 wo 15

LeoisLative History

Com’r Ind. Aff. Ann. Rep., Exee. Doe. No. 1, 45th

Cong., 3d Sess. (1878) . AE A a ee

H.R. Rep. No. 188, 45th lint 3d Sess. (1879) ................. 13

H.R. Rep. No, 1732, 57th Cong., Ist Sess. (1902) 33

TABLE OF AUTHORITIES—Continued

Page

S. Rep. No. 800, 57th Cong., Ist Sess. (1902) ow. 23

S. Rep. No. 92-575, 92d Cong., Ist Sess. (1971) 27

H.R. Rep. No. 92-1267, 92d Cong., 2d Sess. (1972) .... 24

H.R. Rep. No. 92-1559, 92d Cong., 2d Sess. (1972) ........ 27

S. Rep. No. 92-1253, 92a Cong., 2d Sess. (1972) ............... 24

S. Rep. No. 96-569, 96th Cong., 2d Sess. (1980) .W.. 24

35 Cong. Ree. 5748 (1902) 23

Be I, Ri I III sicecsctnencsenncssrssenssentinmsieitiontintianeis 24

123 Cong. Ree. 17498 (1977) ........ 24

123 Cong. Ree. 17500 (1977) 24

123 Cong. Ree. 22165-66 (1977) 24

8, ane TI 24

Fe i issncecinesneensinninetninsenthietiatih 24

Se MR, I I ID ccccstecrnecctcccistcninstesserstneinteeninee 24

OTHER AUTHORITIES

Kiffeet of 28 U.S.C. §§ 2415, ete., 80 1.D. 220 (1972) ...... 25

Five Civilized Tribes—Income Tax Refund—Stat-

ute of Limitations, 34 Op. A.G. 302 (1924) 21

Fort Peck Allotments, I Op. Sol. 564 (1935) 200. 9

INTEREST OF THE AMICUS CURIAE

The Navajo Tribe of Indians is a federally-1 »cognized

Indian tribe with both proprietary and sovereign interests

in its territory within the states of Arizona, Utah, and

New Mexico. See, Kerr-McGee Corp. v. Navajo Tribe of

Indians, —- U.S. —, 105 8. Ct. 1900 (1985).

Although mcst of the Navajo Indian country has re-

mained as land held in trust by the United States for the

Navajo Tribe as a whole, a portion of the Navajo reserva-

tion was allotted to individual tribal members in the early

part of this century, as required by section 25 of the Act

of May 29, 1908, ch. 216, 35 Stat. 444, 457. In addition,

public domain lands adjacent to the Navajo reservation

were granted in trust to members of the Navajo Tribe

under section 4 of the General Allotment Act.' These

lands are administered for the federal government by the

Eastern Navajo Agency of the Bureau of Indian Affairs.

The allottees in this area have maintained their tribal re-

lations, and governmental services are provided primarily

by the Navajo Tribe. The Office of Hearings and Appeals

of the Department of the Interior has determined that all

of the allotments, in both the 1908 reservation and the re-

mainder of the Eastern Navajo Agency, are subject to

the civil and regulatory jurisdiction of the Navajo Tribe.

Thus, the Navajo Tribe of Indians is now the beneficial

owner of fractional beneficial interests in many trust allot-

ments, pursuant to the “escheat” provisions of the Indian

Land Consolidation Act,? and has a reversionary interest

in all allotments made within Navajo Indian Country.’

The Tribe’s present fractional ownership of allotments, its

‘Act of Feb. 8, 1887, ch. 119, § 4, 24 Stat. 389; 25 U.S.C. § 334.

2Pub. L. 97-459, Title Il, § 207, Jan. 12, 1983, 96 Stat. 2519,

amended Pub. L. 98-608, § 1(4), Oct. 30, 1984, 98 Stat. 3172;

25 U.S.C. § 2206.

3The Navajo Tribe is aware that the issue of the constitution-

ality of 25 U.S.C. § 2206 with respect to Sioux allotments is

(Continued on following page)

reversionary interests in the approximately 6,000 trust al-

lotments in New Mexico, and its unique relationship with

tribal member-allottees give the Tribe significant interests

in preserving the Congressional plan for protection of In-

dian allotted lands.

That continued adherence to the Congressional scheme

is needed is shown by two cases of the United States Court

of Appeals for the Tenth Circuit. In Vicenti v. United

States, 470 F.2d 845 (10th Cir. 1972), cert. dis’d. 414 US.

1057 (1973), individual Navajo allottees sued to recover

possession of trust allotments which executive officers of

the United States had purported to grant to a non-Indian

rancher some twenty-three years earlier. The trial judge,

while determining that 25 U.S.C. ¢§ 345-346 did not grant

jurisdiction for recovery of money damages against the

United States, entered judgment vesting exclusive bene-

ficial title in the Navajo allottees, noting that the execu.

tive officers within the Department of the Interior had

(Continued from previous page)

before this Court in Hodel v. Irving, No. 85-637. The Eighth

Circuit's decision, Irving v. Clark, 758 F.2d 1260 (8th Cir. 1985)—

which the Navajo Tribe finds difficult to square with the reason-

ing of Northern. Cheyenne Tribe v. Hollowbreast, 425 U.S. 649

(1976)—noted that the allotments were in the nature of a bar-

gain, Irving, supra, at 1268, and that the bargain struck with the

Sioux included enforceable expectations that the allottees would

be able to control the disposition of the allotments at death.

Id., at 1268-69 and 1266 n.10. No such promises were made to

the allottees in the 1908 reservation or other areas in the Eastern

Navajo Agency. Thus, regardless of the outcome of Hodel v.

Irving, 25 U.S.C. § 2206 will not invade constitutionally protected

rights of Navajo allottees. See, Kornstein, Inheritance: A Con-

stitutional Right? 36 Rut. L. Rev. 741, 789-91 (1984), listing de-

cisions in forty-nine of the fifty states, and the District of Colum-

bia, which hold that there exists no natural or inherent right to

inheritance.

perpetrated a “cruel hoax” against the Navajos. See, id.,

at 847. The trial court’s judgment was affirmed.

More recently, in Begay v. Albers, 721 F.2d 1274 (10th

Cir. 1983), the Tenth Circuit addressed the issue of whether

the approval by employees of the BIA of forged deeds to

allotments effectively terminated the trust status of the

allotted lands, such that the actions were varred by statutes

of limitations. The Tenth Circuit correctly held that the

approvals of forgeries by the BIA officials were absolutely

null and void,’ and that title to the allotments—despite the

approval of the 1946 forgeries-—-had “remained in the

United States in trust for [the allottees’] use and benefit.”

Non-Indians, often in conjunction with BiA employees,

have been able to perpetrate such “cruel hoaxes” on Navajo

allottees because of the extremely low educational level

of allottees in Navajo Indian country. Despite the prom-

ises made in Article VI of the Treaty of 1868,° the federal

government has made no serious attempt to provide school-

ing in Navajo Indian country until the 1960’s.’ Nor has

4Notably, the Justice Department, although it vigorously de-

fended the action in the trial court, supported the allottees in

the Court of Appeals once a factual finding had been made by

the trial courts that the deeds had been forged. See, Cohen,

Handbook of Federal Indian Law (1982 ed.) at 315 & n. 277.

3See, 25 U.S.C. § 348.

6”. . the United States agrees that, for every thirty children

between said ages [of six and sixteen] who can be induced or

compelled to attend school, a house shall be provided, and a

teacher competent to teach the elementary branches of an

English education shall be furnished, who will reside among said

indians, and faithfully discharge his or her duties as a teacher.”

7Indeed, a report of Special Agent Donaldson which noted

the “default” of the government's obligation to educate Navajos

was included in the legislative history of the Indian Appropria-

tions bill which was passed with the provisions of what is now

25 U.S.C. § 345. 26 Cong. Rec. 7703 (July 19, 1894). It had been

stated earlier that “[i]n other cases, like that of the Navajoe tribe,

with 3,000 children, they have only one school.” 26 Cong. Rec.

5926 (June 7, 1894).

the state of New Mexico provided schooling to Nava-

jos. As a consequence, the Navajo allottees are easy prey

for those who would use trickery to separate them from

their trust property, and then convince them that their

remonstrances will be futile, because of BIA approval.

See, e.g., New Mexico Navajo Ranchers Association v.

I.C.C., 702 F.2d 227, 231 (1983), where the court of appeals

summarized the allegations of misrepresentations by agents

of the Star Lake Railroad (a subsidiary of the Santa Fe-

Southern Pacific Railway Company) used to induce allot-

tees to sign right-of-way consent forms.’

The low education level of adult Indians, the some-

times staggering workload imposed on BIA officials, and

the willingness of some unscrupulous persons and business

entities to exploit these circumstances demonstrate the

importance of preserving the Congressional plan regard-

ing protection of allotted lands from the consequences of

_ actions taken in vielation of federal law. It cannot be

emphasized enough that the rights sought te be vindicated

by Respondent Mottaz are not simply the proprietary

rights of the allottee, but governmental rights of the United

States. See, e.g., Heckman v. United States, 224 U.S. 413,

437-38 (1912). And it is Congress, not the Executive

Branch, with plenary power over Indian lands. Begay v.

Albers, supra, 721 F.2d at 1281, citing Warren Trading

Post Co. v. Arizona Tax Commission, 380 U.S. 685 (1965),

and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). The

position taken by the Department of Justice in this litiga-

tion is inconsistent with the national interest.

8See, Ramah Navajo School Bd. v. Bureau of Revenue, 458

U.S. 832, 834 n.1 (1982), referring to the “tribal children aban-

doned by the State.”

*This massive fraud, involving over 400 allottees and heirs to

allotments, would have likely gone unnoticed, had an allottee

who had once been a state senator not been present at a meet-

ing where it was suggested that allottees could face jail sen-

tences if they did not consent to the grant of a right-of-way.

The attempt of the Justice Department and of the

American Land Title Association (“ALTA”) to ignore the

special body of Indian law enacted by Congress should not

be honored. The fundamental interests of the United

States, as set forth by Congress, are entirely consistent

with those of Respondent Mottaz, and are not—as sug-

gested by the Justice Department and AL’TA—consistent

with the validation of void actions of executive officers by

the operation of general statutes of limitations.

This brief, then, shall consider the Congressional plan

for allotted lands and how the Congressional intent would

be wholly thwarted by adopting the position taken by the

Justice Department herein.

. ——

—_—

SUMMARY OF ARGUMENT

Subject matter jurisdiction in actions by allottees to

protect their interests in trust property is conferred on

the federal district courts by 25 U.S.C. § 345. This con-

clusion is compelled by the plain language of § 345, its legis-

lative history, and eighty years of decisions of this Court

and the Courts of Appeals.

No statute of limitations will bar actions by allottees

to protect their beneficial ownership or possessory inter-

ests in trust land. The Congress has consistently mani-

fested its intention that such actions against the United

States not be precluded by the operation of statutes of re-

pese. The same reasoning—embraced by all of the Jus-

tices—which led to the determination that “[t]here is no

federal statute of limitations governing federal common

law actions by Indians to enforce property rights” leads

1County of Oneida v. Oneida Indian Nation, — U.S. —, 105

S. Ct. 1245, 1255 (1985). See, id., at 1263.

almost inescapably to the conclusion that no federal stat-

ute of limitations bars an allottee’s claim for possessory

or beneficial ownership rights in a trust allotment.

The statutes invoked in the brief of the United States

do not apply, in light of the Lational interest expressed by

Congress in protecting trust lands of Indian allottees. In-

deed, 28 U.S.C. 4 24092 is by its very terms inapplicable.

Application of the six-year limitations period of 28 U.S.C.

§ 2401(a) would both frustrate the Congressional purpose

and lead to absurd results.

The decision below, remanding the matter for factual

findings, is proper. If the actions of the executive offi-

cers in purporting to terminate Mrs. Mottaz’ interest in

the allotment were contrary to the Congressional plan, they

are void. If the purported conveyance was thus void, Mrs.

Mottaz retains her beneficial interest in the land, and no

statute of limitations is applicable with respect to her

claim for beneficial interests in the land.

.* a

ARGUMENT

I. ACTIONS FOR ALLOTMENTS UNDER 25

U.S.C. § 345 INCLUDE ACTIONS TO PROTECT

THE INTERESTS OF THE ALLOTTEE AF-

TER THE ACQUISITION OF THE ALLOT-

MENT.

A. Both The Language Of 25 U.S.C. © 345 And

Settled Rules of Construction Compel The

Conclusion That Actions Brought Pursuant To

25 U.S.C. §345 Are Not Limited To Actions

To Obtain Allotments In The First Instance.

The inquiry into the jurisdictional grant of 25 U.S.C.

§ 345 must, of course, begin with the language of the stat-

ute itself. See, e.g., Watt v. Alaska, 451 U.S. 259, 265

(1981). The language of 25 U.S.C. § 345 includes the fol-

lowing:

All persons who are in whole or in part of Indian

blood or descent who are entitled to an allotment of

land under any law of Congress, or who claim to be

so entitled to land under any allotment Act or under

any grant made by Congress, or who claim to have

been unlawfully denied or excluded from any allot-

ment or any parcel of land to which they claim to be

lawfully entitled by virtue of any Act of Congress, may

commence and prosecute or defend" any action, suit,

or proceeding in relation to their right thereto in the

proper district court of the United States ....

(Emphasis added.) Congress thus included in the juris-

dictional grant of § 345 not only actions for allotments in

the first instance, but also actions to redress unlawful

exclusions from allotments previously acquired. Consent

by the United States to suit in all actions authorized in

§ 345 is found in 25 U.S.C. §4 345 and 346.

The construction of 25 U.S.C. 4345 offered by the

Justice Department herein would violate at least three

fundamental rules of statutory construction. First, the

brief of the United States must ignore the plain language

used by Congress: i.e., “persons ... who claim to have been

unlawfully ... excluded from any allotment or any parcel

of land to which they claim to be entitled... .” There

are uideniably two types of land encompassed in the quoted

"See, United States v. Fairbanks, 171 F. 337, 338 (8th Cir.

1909), aff'd 223 U.S. 215 (1912).

Section 345 requires that “in said suit the parties thereto

shall be the claimant as plaintiff and the United States as party

defendant.” Section 346 provides for service of the petition on

the Attorney General and the United States attorney, and it

allows the United States attorney to file a “notice of any coun-

terclaim, set-off, claim for damages, or other demand or de-

fense whatsoever of the Government in the premises... .”

language: lands which have been allotted and lands to

which Indians merely “claim to be entitled.”

Second, the construction offered by the Justice De-

partment would collapse the phrase “any allotment or any

parcel of land to which they claim to be entitled” to simply

“any parcel of land to which they claim to be entitled.” In

contrast to the approach of the Justice Department, this

Court has consistently held that a federal statute must be

construed so that no part of it is rendered insignificant

or surplusage. E.g., Reiter v. Sonotone Corp., 442 U.S.

330, 339 (1979):

In construing a statute we are obliged to give effect,

if possible, to every word Congress used, * * * Canons

of construction ordinarily suggest that terms con-

nected by a disjunctive be given separate meanings,

unless the context dictates otherwise... .

(Citation omitted.)

Third, the strained and crabbed construction offered

in the Brief of the United States would render largely hol-

low the right of an allottee to the “quiet possession” of

her allotment." The allottee, under the theory of the

Justice Department, could bring suit against the United

States to obtain the allotment initially, but would be un-

able to protect her beneficial rights, at least as against the

United States,’ from that day forward. Not only would

this construction be inconsistent with the language of § 345,

as shown above, but it would also violate the “eminently

sound and vital canon” of statutory construction that stat-

utes passed for the benefit of Indians are to be liberally

13See, New Mexico Navajo Ranchers Association v. 1.C.C., 702

F.2d 227, 233 (D.C. Cir. 1983).

4The Justice Department would apparently allow Indian al-

lottees to sue to recover possession of allotments from private

parties (presumably, grantees of the United States) regardless of

the passage of time, but not the United States itself. See, Brief of

the United States, at p. 43, n. 22. Such a suggestion—to subject

a good faith purchaser to suit while immunizing a trustee in pos-

session—finds no support in law, policy or equity.

construed and all doubts are to be resolved in the Indians’

favor. See, Northern Cheyenne Tribe v. Hollowbreast,

425 U.S. 649, 655 n. 7 (1976). As the Solicitor has recog-

nized:

It is familiar law that allotment acts should be con-

strued in view of their purpose to promote the wel-

fare of the Indian wards. Levindale Zine Mining Co.

v. Coleman (241 U.S. 432, 437).

Fort Peck Allotments, I Op. Sol. 564, 565 (1935). Accord,

e.g., Antoine v. United States, 637 F.2d 1177, 1179 (8th

Cir. 1981). See, United States v. Reily, 290 U.S. 33, 39

(1933).

B. That 25 U.S.C. §345 Supports Actions By Al-

lottees To Protect Interests In Allotments Al-

ready Granted Is Supported Consistently By

Almost Eighty Years Of Case Law.

As the United States concedes, the Eighth, Ninth and

Tenth Cireuits hold that § 345 provides subject matter

jurisdiction in actions to protect interests in trust allot-

ments previously granted. (Brief of the United States,

at 42-43, n. 22.) That these appellate decisions correctly

reflect the reach of 4345 is strongly supported by cases

decided by this Court.

The brief of the United States erroneously relies on

First Moon v. White Tail, 270 U.S. 243 (1926), for the

proposition that § 345 only authorizes suits to compel allot-

ments in the first instance. U.S. Br. at 12 and 40-41. First

Moon held that 25 U.S.C. § 345 provides no subject matter

jurisdiction over “disputes concerning the heirs of one who

held a valid and unquestioned allotment.” Jd., at 245. The

result in First Moon was compelled by the Act of June 25,

1910,'* which conferred “final and co: clusive” authority

in the Secretary of the Interior to decide heirship disputes.

Ch. 431, 36 Stat. 855; 25 U.S.C. § 372.

Prior to the Act of June 25, 1910, however, this Court

had held differently... In McKay v. Kalyton, 204 U.S.

458 (1907), the Court determined that the federal courts,

and not the state courts, had jurisdiction under 25 U.S.C.

§ 345 to adjudicate disputes among heirs concerning the

rights to possession of a valid and unquestioned allotment.

The Court’s reasoning could not have been clearer:

By this provision [25 U.S.C. §¢ 345], ... the United

States consented to submit its interest in the trust

estate and the future control of its conduct concerning

the same to the result of the decree of the courts of

the United States .... The subsequent legislation of

Congress, instead of exhibiting a departure from this

policy, confirms it.”

Id., at 469 (emphasis added). See, Gerard v. United States,

167 F.2d 951, 954 (9th Cir. 1948).

Similarly, in Heckman v. United States, 224 U.S. 413

(1912), the Court discussed the ability of allottees to bring

suit under § 345 in the context of an action brought by the

United States te cancel conveyances of allotments executed

by Cherokee Indians in violation of statutory restrictions.

16See, F. Cohen, Handbook of Federal Indian Law (1982 ed.), at

314 & n. 266.

In contrast with the views that the 1901 amendment to the

1894 Act confirms a “limited scope” of § 345 (Brief of the United

States, at 37), the McKay v. Kalyton Court said with respect to

the 1901 amendment:

Nothing could more clearly demonstrate . . . the concep-

tion of Congress that the United States continued, as trus-

tee, to have an active interest in the proper disposition of

allotted Indian lands, and the necessity of its being made

a party to controversies concerning the same, for the pur-

pose of securing a harmonious and uniform operation of the

legislation of Congress on the subject.

The suggestion made in argument that the controversy

here presented involved the mere possession, and not the

title, to the allotted lands is without merit, since the right

of possession asserted of necessity is dependent upon the

existence of an equitable title in the claimant under the leg-

islation of Congress to the ownership of the allotted lands.

Id., emphasis added.

Quoting from Re Heff, 197 U.S. 488, 509 (1905), the Court

stated:

In United States v. Rickert, 188 U.S. 432, 47 L. ed. 532,

23 Sup. Ct. Rep. 478, we sustained the right of the

government to protect the lands thus allotted and

patented from any encumbrance of state taxation.

Undoubtedly an allottee can enforce his right to an

interest in the tribal or other property (for that right

is expressly granted) ....

Id., at 441 (emphasis added).

Decisions of this Court relied on in the Brief of the

United States do not hold differently. As was noted above,

First Moon concerned an heirship dispute which Congress

in 1910 had entrusted to the “final and conclusive” juris-

diction of the secretary. Arenas v. United States, 322

U.S. 419 (1944), mandated the issuance of “trust patents’’®

some 17 years after allotment schedules had been com-

pleted, and in spite of a change in policy by the Depart

ment of the Interior. The question of whether 25 U.S.C.

§ 345 encompassed actions seeking to protect beneficial

rights in trust property already granted did not need to

be, and was not, decided in Arenas. The third and final

Supreme Court decision relied on by the United States is

Affiliated Ute Citizens v. United States, 406 U.S. 128

(1972), where the plaintiff sought distribution of tribal

minerals to mixed-blood Utes. The holding that 25 U.S.C.

§ 345 provided no subject matter jurisdiction for sach an

action was predicated on the fact that the mineral estate

was not even alleged to have been subject to allotment nor

appurtenant to any allotment. /d., at 142-43. Thus, Affi/t-

ated Ute had no occasion to consider whether § 345 eon-

ferred jurisdiction over actions to protect either lands

18As the Court has noted, the term ‘trust patent’ is a rather

consistently used misnomer. See, United States v. Rickert, 188

U.S. 432, 436 (1903).

previously allotted or, indeed, interests “appurtenant” to

such allotments.

The reasoning of McKay v. Kalyton and Heckman v.

United States has been followed consistently for almost

forty years by the Courts of Appeals. See, e.g., Gerard

v. Umted States, 167 F.2d 951 (9th Cir. 1948), Scholder

v. United States, 428 F.2d 1123 (9th Cir. 1970), cert. den.

400 U.S. 942 (1970), Fontenelle v. Omaha Tribe, 430 F.2d

143 (8th Cir. 1970), Begay v. Albers, 721 F.2d 1274 (10th

Cir. 1983). And none of the Courts of Appeals decisions

relied on by the United States (U.S. Br. at 42-43 n. 22) holds

that suits to protect ownership or possessory interests in

land previously allotted are unauthorized by 25 U.S.C.

§ 345. In Coleman v. United States Bureau of Indian Af-

fairs, 715 F.2d 1156 (7th Cir. 1983), and Harkins v. United

States, 375 F.2d 239 (10th Cir. 1967), the plaintiffs were

members of the Five Civilized Tribes who sought only

money damages, raising no ‘‘question about land titles.’’

Harkins, at 242. Vicenti v. United States, 470 F.2d 845

(10th Cir. 1972), cert. dis’d 414 U.S. 1057 (1973), hardly

supports the Justice Department here. The Tenth Cirenit

in Vicenti, while denying monetary relief against the Uni-

ted States, affirmed the judgment of the district court,

vesting exclusive title to the allotments in the Indians. The

Vicentt court restated with no apparent qualms that sec-

tions 345 and 346 were available ‘‘to clear any cloud on the

title of the allotted lands,” id., at 847, and it cited to its de-

cision in Affiliated Ute Citizens of State of Utah v. United

States, 431 F.2d 1349 (1970), aff'd 406 U.S. 128 (1972),

which had stated that 25 U.S.C. § 345 was “obviously in-

tended to provide relief to the Indians entitled to posses-

sion of allotments and similar interests.” Finally, the

Ninth Circuit has expressly repudiated the dictum in

United States v. Eastman, 118 F.2d 421 (9th Cir. 1941),

cert. den. 314 U.S. 635 (1941), relied on by the United

States here. Gerard v. United States, 167 F.2d 951, 954

n. 3 (9th Cir. 1948).

The language of § 345, the rules of statutory con-

struction, and eighty years of jurisprudence all support

the view that Congress intended that Indian allottees be

able to protect in federal courts their proprietary and

possessory interests in allotments which had been granted

to them. Neither the strained construction of § 345, nor

the isolated snippets of legislative history, nor the series

of dubious negative pregnants offered in the Brief of the

United States provides significant support for reversing

the consistent interpretation of § 345 by this Court and

the Courts of Appeals.

II. THERE IS NO APPLICABLE STATUTE OF

LIMITATIONS FOR ACTIONS BY ALLOT-

TEES TO PROTECT POSSESSORY INTER-

ESTS IN TRUST ALLOTMENTS.

A. The Applicability Of General Statutes Of Limita-

tions Must Be Determined With Reference To

Congressional Policy, The Protections Guaran-

teed By The Allotment Statutes, And The Trust

Relationship.

Indian lands had been allotted as early as 1633."

Early experiments in the allotting of Indian lands gener-

ally ended in failure, in laree part due to the rapid loss

of the Indian lands.”” See, Comm. on the Territories, H.R.

Rep. No. 188, 45th Cong., 3d Sess. (1879); Com’r. Ind.

Aff. Ann. Rep. Doe. No. 1, 45th Cong., 3d Sess. 442-45.

19F Cohen, Handbook of Federal Incian Law (1982 ed.) at 129.

20/d., at 130.

However, ‘‘[p]roponents of allotment blamed the fei!ure

chiefly on the alienability of allotments, asserting that the

results would differ if the lands were made inalienable.’ ’2!

As a result, the General Allotment Act provided that

the \'nited States hold the land ‘‘in trust for the sole use

and benefit of the Indian” for a 25-year period. 25 U.S.C.

§ 348. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 368

(1968). The new allotment system had a “dual purpose,”

id., at 369, to “safeguard Indian land and at the same time

‘to prepare the Indians to take their place as independent,

qualified members of the modern body politic.’ ’’ Jbid.,

quoting Board of County Commissioners v. Seber, 318

U.S. 705 (1943). During the trust period, the United

States ‘‘retain[s] the power to scrutinize the various

t-ansactions by which the Indian might be separated from

that property’’’ and ‘‘possesses a supervisory control

over the lands and may take appropriate measures to

make sure that it inures to the sole use and benefit of the

allottee and his heirs throughout the original or any ex-

tended period of restrictions.’’»

Although Congress initially determined that individ-

ual Indian allottees would require 25 years to become

sufficiently educated and acculturated before restrictions

on alienation would be unnecessary, it became apparent

that additional time would be needed in many instances.

See, e.g., Act of June 21, 1906, c. 3504, 34 Stat. 326, 25

2\/bid. (Footnote omitted.)

22Poafpybitty v. Skelly Oil Co., 390 U.S. at 369.

United States v. Bowling, 256 U.S. 484, 4&7 (1921) (footnote

omitted).

U.S.C. § 391; Act of February 26, 1927, c. 215, 44 Stat.

1247, 25 U.S.C. §§ 352a and 352b. See, Heckman v. United

States, 224 U.S. 413 (1912), United States v. Jackson, 280

U.S. 183 (1930). The trust period has been ‘‘repeatedly

extended.’’ Poafpybitty, at 368. Restrictions on aliena-

tion of allotments have been ihe cornerstone of the allot-

ment system to this day, as Congress, in passing the In-

dian Reorganization Act,% extended indefinitely the trust

period for all allotments. 25 U.S.C. § 462. Poafpybitty, at

368 n. 6, Begay v. Albers, 721 F.2d 1274, 1279 (10th Cir.

1983).

Until restrictions on alienation are validly removed,

‘‘any conveyance ... of the lands set apart and allotted as

herein provided, or any contract made touching the same

. shall be absolutely null and void.’’ 25 U.S.C. § 348.

Congress has provided no exception in 4 348 for convey-

ances which are unlawful because of unauthorized actions

of executive officers of the federal government. See,

United States v. Watashe, 102 F.2d 428, 430-31 (10th Cir.

1939), Bacher v. Patencio, 232 F. Supp. 939, 941 (S.D.

Cal. 1964), aff’d 368 F.2d 1010 (9th Cir. 1966).

Congress has allowed the sale and leasing of allot-

ments by the allottees, under safeguards authorized by

Congress. See, e.g., 25 U.S.C. § 405, 25 U.S.C. § 396. But a

sale or a lease of an allotment—even if approved by the

Secretary of the Interior—is absolutely void without the

informed consent of the allottees. Mott v. United States,

283 U.S. 747, 751 (1931), Jennings v. Wood, 192 F. 507,

4Act of June 18, 1934, ch. 576, 48 Stat. 984; codified as amend-

ed at 25 U.S.C. §§ 461, 462, 463, 464, 465, 466-470, 471-473,

474, 475, 476-478, and 479.

508 (8th Cir. 1911) (cited with approval in Mott), Begay

v. Albers, 721 F.2d 1274 (10th Cir. 1983). Neither the good

faith of the conveyee nor the bona fides of the transaction

may cure the nullity. United States v. Brown, 8 F.2d 564

(8th Cir. 1925), cert. den. 270 U.S. 644 (1926), Bacher v.

Patencio, supra, 232 F. Supp. at 941 (citing cases).

ALTA expressly, and the United States by inference,

argue that the violation of the Congressional will alleged

by Respondent Mottaz is no more significant than the

‘fequally strong’’ federal policy embodied in general

statutes of repose. In Squire v. Capoeman, 351 U.S. 1

(1956), the Justice Department made a similar argument.

There, an Indian allottee sought a refund from the United

States of taxes paid on the sale of timber from his allot-

ment, alleging that the imposition of such taxes violated

25 U.S.C § 348. The Justice Department urged the Court

to view this case an an ordinary tax case without

regard to the treaty, relevant statutes, congressional

policy concerning Indians, or the guardian ward

relationship between the United States and these

particular Indians.

Id., at 5-6. Although agreeing that ‘‘exemptions to tax

laws should be clearly expressed,’’ the Court rejected the

argument of the government’s attorneys and held that the

proceeds of the timber sales were not taxable.

Congress was delegated plenary authority over

Indian affairs. U.S. Const., Art. I, § 8, el. 3. This plenary

authority extends to restricting the alienability of Indian

allotments. Williams v. Johnson, 239 U.S. 414, 419-20

25ALTA recognizes that such void conveyai ces cannot be given

life by the passage of time. Brief of ALTA, at 20 n. 48.

26Brief of ALTA, at 26. See Brief of the United States, at 44.

—

(1915). Plainly, the national interest—as consistently ex-

pressed by Congress—is seriously implicated in unauthor-

ized conveyances of trust land. Heckman v. United States,

224 U.S. 413 (1912), Poafpybitty v. Skelly Oil Co., 390

U.S. 365 (1968). Thus, the determination of whether an

allottee may be dispossessed of her trust lands in violation

of safeguards established by Congress must be considered

in light of the ‘‘manifest policy of Congress to protect the

Indians against loss of their lands.’? See, Drummond v.

United States, 131 F.2d 568, 570 (10th Cir. 1942) (per

Phillips). This Congressional policy requires that gen-

eral statutes of repose not bar actions by trust allottees

seeking to protect interests in, or appurtenant to, their

trust property.

B. The Eighth Circuit Properly Examined The

Merits In Order To Determine The Appli-

cability Of Statutes Of Limitations.

The Department of the Interior has long held the

view that, so long as property is held in trust for an In-

dian, statutes of limitations will not bar the Indian from

seexing to protect her rights in the trust property.2”. '

27This discussion deals only with actions alleging a non-friv-

olous claim that the property at suit is held in trust by the United

States for the plaintiffs, the unauthorized actions of executive

officers of the United States notwithstanding. Thus, the follow-

ing cases cited by the United States (Brief, at 32), where the

rights being litigated were not rights to possession and beneficial

ownership of trust property, are not germane here: Loring v.

United States, 610 F.2d 649 (9th Cir. 1979) (damage action for

taking of a right-of-way), Christensen v. United States, 755 F.2d

705 (9th Cir. 1985), pet. for cert. pending No. 85-372 (action

predicated on failure to provide access to allotment over public

lands), Big Spring v. United States Bureau of Indian Affairs, 767

F.2d 614 (9th Cir. 1985) (suit to redress alleged failure of allotting

agents to select lands for ancestors prior to Act of Congress of

June 30, 1919, § 10, 41 Stat. 3, 17). Similarly, other cases cited by

(Continued on following page)

the 1958 and 1966 editions of Federal Indian Law, at 543,

the Department stated, with respect to Indian litigants:

Except with respect to restricted property, they may

lose their rights because of laches, and the running of

the statute of limitations.

(Emphasis added.) The authoritative 1942 Handbook of

Federal Indian Law, by Felix Cohen, contains the same

language, at 163.

The cases relied on in the Brief of the United States

do not hold differently. For example, the court in Capoe-

man v. United States, 440 F.2d 1002 (Ct. Cl. 1971), cited in

the government’s brief at 31 & n. 18, recognized the “re-

stricted property” exception which it characterized as re-

lating “primarily to suits in which an Indian contests title

to land presently or formerly restricted.” Jd., at 1008.

The Capoeman court noted that Congress had provided for

the application of statutes of limitations in only a limited

range of cases concerning trust allotments. Jbid. See,

25 U.S.C. § 347.

The other cases cited by the Justice Department also

support the position that, as to trust land, no statute of

limitations should apply. Cf., Fort Mohave Tribe v. United

States, 210 Ct. Cl. 727 728 (1926) (‘*The claim that limi-

(Continued from previous page)

ALTA are not relevant here because Congress expressly allowed

for state statutes of limitations to govern actions for formerly re-

stricted lands, Schrimpscher v. Stockton, 183 U.S. 290, 296-97

(1902), Wolfe v. Phillips, 172 F.2d 481, 484 & n. 3 (10th Cir.

1949), cert. den. 336 U.S. 968 (1949), Fife v. Bernard, 186 F.2d

655, 661-62 (10th Cir. 1951), Armstrong v. Maple Leaf Apart-

ments, Ltd., 622 F.2d 466 (10th Cir. 1979), cert. den. 449 U.S. 901

(1980), or because statutory restrictions were validly removed on

application of the Indian, Dillon v. Antler Land Co. of Wyola,

507 F.2d 940 (9th Cir. 1974), cert. den. 421 U.S. 992 (1975), or be-

cause Congress itself had terminated the trust status of the lands.

Dennison v. Topeka Chambers Indus. Dev. Corp., 724 F.2d 869

(10th Cir. 1984), affirming 527 F. Supp. 611 (D.Ks. 1981).

tations will not bar an express trust such as they allege

here is unpersuasive. The facts do not show the existence

of an express trust.’’), Menominee Tribe of Indians v.

U.S., 726 F.2d 718, 722 (Fed. Cir. 1984), cert. den. 105 S.

Ct. 106 (1985) (‘‘ ‘the statute of limitations applies to In-

dians the same as to anyone else’ (except, perhaps, in the

presence of an express trust ... .)’’ quoting from Fort

Mohave). Plainly, the General Allotment Act and the

‘trust patents’’ constitute an express trust with respect

to alienation of allotted lands. Cf., United States v. Mitch-

ell, 445 U.S. 535, 543-44 (1980).28 See generally, Man-

chester Band of Pomo Indians, Inc. v. United States, 363

F. Supp. 1238, 1249-50 (N.D. Cal. 1973), cited with approv-

al in United States v. Mitchell, 463 U.S. 206, 226 n. 31

(1983).

Thus, the applicability of statutes of limitation re-

quires an inquiry into whether the lands at suit are “re-

stricted property” or whether restrictions had been re-

removed in accordance with acts of Congress. This neces-

sitates preliminary consideration of the merits of the allot-

tee’s claim, because, if the actions of the executive officers

with respect to Mottaz’ allotment violated the statute, they

are absolutely void, see, Ewert v. Bluejacket, 259 U.S. 129,

138 (1922), Hampton v. Ewert, 22 F.2d 81, 92 (8th Cir.

1927), cert. den. 276 U.S. 623 (1928), Begay v. Albers, 721

F.2d 1274, 1281 (10th Cir. 1983), and because, if the con-

veyance was made without the consent ot the allottee, it is

28Where the beneficiary is in possession, statutes of limitations

will not apply. Bogert, The Law of Trusts and Trustees, § 951 at

557-58 (2d ed. 1982). Here, possession of Mrs. Mottaz’ allot-

ment by the trustee should be considered possession by the

beneficiary. Nemkov v. O’Hare Chicezo Corp., 592 F.2d 351,

356 n. 6 (7th Cir. 1979), citing Lewis v. Hawkins, 90 U.S. (23

Wall.) 119 (1875), as the location ot Respondent's allotment is. a

national forest is not inconsistent with Congressional policy. See,

25 U.S.C. § 337.

void and wholly ineffective to terminate the trust status

of the land. Mott v. United States, 283 U.S. 747, 751-52

(1931), Board of Com’rs v. United States, 100 F.2d 929,

933 (10th Cir. 1938), mod. on other grds 308 U.S. 343

(1939), Begay v. Albers, 721 F.2d 1274, 1278-80 (10th Cir.

1983). Were the rule otherwise, unauthorized government

employees (including persons employed in the Depart-

ment of Interior) could cause the national interest” to be

compromised through their actions and through the mere

passage of time, in derogation of the plenary authority of

Congress in this area. See, United States v. California,

332 U.S. 19, at 27 and 39-40 (1947).

In sum, and assuming that Respondent Mottaz seeks

to protect the beneficial ownership and possessory inter-

ests in her trust property, it was appropriate for the

Court of Appeals to require on remand that the district

court determine if the purported conveyance violated ap-

plicable law and whether hespondent Mottaz consented to

the sale. See, Mottaz v. United States, 753 F.2d 71, 75

(Sth Cir. 1985). As the Court of Appeals indicated, ibid.,

Heckman v. United States, 224 U.S. 413, 437 (1912), Poafpy-

bitty v. Skelly Oil Co., 390 U.S. 365, 369-70 (1968).

The Navajo Tribe agrees with the United States that proof

that the purported conveyance of Respondent's allotment was

in excess of statutory authority would be inconsistent with re-

covery for a taking. See, Brief of the United States, at 26, n. 14.

The litigation strategy of particular litigants, perhaps dictated by

attorney fee considerations, should not be allowed to distort

settled law regarding either individual Indian trust property or

the law of what constitutes a compensable taking. Only Con-

gress can authorize a taking of Indian lands. See, U.S. v. Santa

Fe Pac. R. Co., 314 U.S. 339 (1941). Much of the law concernin

25 U.S.C. § 345, it appears, has been decided on less than idea

pleadings. See, Loring v. United States, 610 F.2d 649 (9th Cir.

1979) (no jurisdictional allegation at all; court supplies § 345

as jurisdictional basis), Mottaz v. United States, 753 F.2d 71, 75

(8th Cir. 1985) (Mottaz’ complaint “not particularly well-drafted;”’

court construes prayer for relief generously).

resolution of these questions will determine whether the

land remains in trust. If the restrictions were validly re-

moved in 1955, the statute will have run, and Mottaz “does

not have a cause of action.” Jhid. The remand, therefore

is entirely consistent with federal law.*!

C. Congress Has Not Enacted Any Statute Of

Limitations Which May Be Applied In Ac-

tions To Protect Possessory Interests In Trust

Allotments.

The Congress, the courts, and, indeed, the Solicitor

for the Department of the Interior all agree that there is

no statute of limitations applicable in actions involving

possessory rights to trust lands. That Congress, except in

one instance noted below, has not seen fit to impose time

bars on Indian allottees seeking to protect possessory

rights to trust land is probably explained by then-

Attorney General Harlan F. Stone as resulting from

‘*[t]he doctrine of fostering guardianship by a paternal

government of its recognized wards and the disinclination

to involve technical rules of law to the prejudice of Indian

tribes or members thereof.’’?

31The Tenth Circuit, in Begay v. Albers, 721 F.2d 1274 (1983),

in an action under 25 U.S.C. § 345 regarding forged deeds, has

employed a similar analysis as the Eighth Circuit. The Ninth

Circuit also appears to recognize the correctness of the Mottaz

approach in actions where there are non-frivolous allegations

that a conveyance of trust land is void. Big Spring v. U.S. Bureau

of Indian Affairs, 767 F.2d 614, 616-17 n. 1 (1985).

32Five Civilized Tribes of Indians—Income Tax Refund—Statute

of Limitations, 34 Op. A.g. 302, 304 (1924). Justice Stone’s posi-

tion, that general statutes of limitations should not bar claims

for tax refunds by individual Indians who relied on the erroneous

advice and actions of federal officials, has been adopted by the

courts. See, e.g., Dodge v. United States, 362 F.2d 810, 813 (Ct.

Cl. 1966), Daney v. United States, 247 F. Supp. 533, 535 (D.Ks.

1965), aff'd 370 F.2d 791 (10th Cir. 1966), Nash v. Wiseman, 227

F. Supp. 552 (W.D. Okla. 1963), Clark v. United States, 587 F.2d

465 (10th Cir. 1978).

This Court, in County of Oneida v. Inedia Indian

Nation, — US. —, 105 S. Ct. 1245 (1985), recently

analyzed the assertion that statutes of limitations barred

a claim for tribal lands. The Court first held that “[t]here

is no federal statute of limitations governing federal com-

mon law actions by Indians to enforce property rights.”

Id., S. Ct. at 1255.3 The Court further held that “the bor-

rowing of a state limitations period in these cases would

be inconsistent with federal policy.” Ibid. The Court dis-

cerned the federal policy from the Trade and Intercourse

Act of 1793, from a 1950 act of Congress (and its legisla-

tive history)?* and from recent indications of Congress

found in the enactment and successive extensions of a

statute of limitations for ancient Indian trespasses. 28

U.S.C. § 2415. |

The Oneida analysis, embraced by all of the Justices,

compels the conelusion that federal statutes of limitations

are also inapplicable to actions seeking to protect rights

of possession and beneficial ownership in trust allotments.

Much as the Nonintercourse Act has formed the foundation

of the government’s policy regarding alienation of tribal

lands, the restrictions on alienation in the General Allot-

ment Act have been the cornerstone of Congressional

policy with respect to allotments, as this Court has re-

peatedly recognized.

Furthermore, in 1902 Congress plainly indicated that

the rights created in § 345 were subject to no limitations

period. Soon after the enactment of what is now 25

The dissent agreed: “Of course, as the Court notes, there

‘is no federal statute of limitations governin federal common

law actions by Indians to enforce property rights.’ Id., S. Ct. at

1263.

_ 4See, id., at 1255 and n. 14, discussing 25 U.S.C. § 233 and

its legislative history.

U.S.C. § 345, heirs of Shawnee Indians who had sold re-

stricted lands by deeds duly approved by the Secretary

of the Interior more than thirty years previously had filed

suits in ejectment against the conveyees, who had

possessed the lands for many years and had constructed

valuable improvement thereon.** A bill was introduced

‘“‘to prevent this species of blackmail without in any way

interfering with or preventing any legitimate and just

claim.’”* The bill, as amended,” became law on May 31,

1902, and is codified at 25 U.S.C. § 347. Section 347, made

the limitations period established by state law applicable

in actions for land “patented in severalty . .. under any

treaty ... where a deed has been approved by the Secre-

tary of the Interior.’** Congress has passed no similar

legislation with respect to other lands which may be

claimed by Indian allottees.

The absence of a federal statute of limitations applica-

ble in actions by Indians to protect rights to trust prop-

erty is underscored by 28 U.S.C. § 2415. The legislative

history of ¢ 2415 shows, first, that actions brought to estab-

lish title to lands were not to be barred by § 2415, and

second, that Congress neither believed nor intended that

such actions were barred by any federal statute of limita-

tions. See, County of Oneida v. Oneida Inaian Nation, 105

S. Ct. 1245, 1255 (1985) :

5See, H.R. Rep. No. 1732, 57th Cong., 1st Sess. (1902).

36S. Rep. No. 800, 57th Cong., 1st Sess. (1902).

The bill initially introduced only concerned lands patented

to Shawnee Indians under an 1854 treaty, but was amended by

the House to include lands patented in severalty under any

treaty. 35 Cong. Rec. 5748 (May 21, 1902).

Even under 25 U.S.C. § 347, the limitations period does not

begin to run until restrictions on alienation are validly removed.

Baldridge v. Caulk, 110 Okla. 185, 237 P. 453 (1925), McLish v.

White, 97 Okla. 150, 223 P. 348 (1924).

The legislative history of the 1972, 1977, and 1980

amendments demonstrates that Congress did not

intend 4 2415 to apply to suits brought by the Indians

themselves, and that it assumed that the Indians’

right to sue was not otherwise subject to any statute

of limitations. Both proponents and opponents of

the amendments shared these views.*

Thus, Congress preserved all Jndian actions ‘‘to estab-

lish the title to, or right to possession of, real or personal

property.’’ 28 U.S.C. § 2415(e).

3%1n addition to the legislative history cited in Oneida at 1255-

56, see, e.g., S. Rep. No. 96-569, 96th Cong., 2d Sess. 4 (“The

statute of fimitations does not bar an. . . individual Indian.. .

from bringing a claim for title to lands’); S. Rep. No. 92-1253,

92d Cong., 2d Sess. 3 (“In other words claims against the United

States would not be affected by this legislation.’’); H.R. Rep. No.

92-1267, at 4 and 7 (same); 118 Cong. Rec. 23966 (1972) (remarks

of Senator Jackson, incorporating a Wall Street Journal article:

“the expiration next week wouldn’t affect Indian claims against

the federal government to establish land title... .”). With re-

spect to the recognition of the trust duty of the United States

with respect to such actions to protect interests in trust allot-

ments, see, e.g., S. Rep. No. 96-569, 96th Cong., 2d Sess. 9 (“A

great majority of the thousands: of Indian claimants are heirs of

deceased allotees or trust patentees. * * * The United States, of

course, has a responsibility to them just as it does to recognized

tribes, bands or groups.”’); 123 Cong. Rec. 22512 (1977) (remarks

of Mr. Udall):

| understand that some thought has been given to expanding

the scope of the statute to include Indian title to land and

to reducing the extension of time.

Mr. Chairman, there is no statute of limitations on

claims of the United States based upon its title to lands

. ... While Indian lands are not Federal lands, the fee title

to those lands is held by the United States in trust for the

Indians. If there is no statute of limitations with respect

to lands held by the United States for itself, there should

be no statute with respect to lands which it holds in trust

for the Indians.

See also, 123 Cong. Rec. 17498 (1977) (remarks of Mr. Danielson);

123 Cong. Rec. 17500 (1977) (remarks of Mr. Folev); 123 Cong.

Rec. 22165-66 (1977) (remarks of Mr. Danielson); 123 Cong.

Rec. 22503 and 22511 (1977) (remarks of Mr. Cohen).

In considering the effect of 28 U.S.C. § 2415(c), the

Solicitor—consistent with the Department’s position in its

1958 and 1966 editions of Federal Indian Law—opined that:

If individual Indians or a tribe were to institute

litigation, they would be subject to the statute of limita-

tions applicable to the general publie except with re-

spect to actions to quiet the title to trust or restricted

lands (tf the statute were permitted to run in such cases

it would conflict with federal statute prohibiting alien-

ation of Indian lands).

Effect of 28 U.S.C. §§ 2415, etc., 80 I.D. 220, 221-22 (1972)

(emphasis added).

Before the Oneida decision, the lower courts had held

that statutes of limitations could not bar an Indian’s claim

for possession or beneficial ownership of trust property.

See, e.g., Confederated Salish and Kootenai Tribes v.

Namen, 380 F. Supp. 452 (D. Mont. 1974) aff’d 534 F.2d

1376 (9th Cir. 1976), cert. den. 429 U.S. 929 (1976),

where the court held in favor of successors-in-interest of

Indian allottees who asserted that the trust patents con-

veyed certain riparian rights. In applying federal common

law, the court noted:

It is of course clear that there is no statute of limita-

tions, and the doctrine of laches is not applicable.

14., 380 F. Supp. at 466 n. 25. See also, Schaghticoke Tribe

of Indians v. Kent School Corp., 423 F. Supp. 780, 784-85

(D. Conn. 1976), Narragansett Tribe, etc. v. So. RI. Land

Devel., 418 F’. Supp. 798. 804-806 (D.R.I. 1976).

Despite the language and reasoning of Oneida, and

despite the consistent view of the courts, the Congress and

the Department of the Interior that actions brought by

allottees to protect property rights in trust property are

not to be barred by laches“ or any statute of limitation,

the Brief for the United States asserts that 28 U.S.C.

§ 2409a(f), the 12-year statute of limitations in the Quiet

Title Act, bars Respondent’s action. The Quiet Title Act

has no bearing on allottee claims to protect interests in

trust property, however.

First, the United States will retain fee title to Respond-

ent’s allotment in any event.*! More important, of course, is

that Congress specifically excepted Indian lands from the

coverage of the Quiet Title Act. Congress couid not have

been clearer: ‘‘This section does not apply to trust or re-

stricted Indian lands ....’’ 28 U.S.C. § 2409a(a); Block v.

North Dakota, 461 U.S, 273, 283 (1983). The reason for this

exception is stated in the House and Senate Reports:

The federal government’s trust responsibility for In-

dian lands is the result of solemn obligations entered

into by the United States Government. The Federal

Government has over the years made specific commit-

ments to the Indian people through written treaties and

through informal and formal agreements. The Indians.

for their part, have often surrendered claims to vast

tracts of land. President Nixon has pledged his ad-

ministration against abridging the historic reiationship

“Although laches is \ot an issue here, ALTA cites two cases,

Felix v. Patrick, 145 U.S. 317 (1892), and Lemieux v. United States,

15 F.2d 518 (8th Cir. 1926), cert. den. 273 U.S. 749 (1927), re-

garding the applicability of the doctrine of laches in Indian

cases. In Felix v. Patrick, the Indians had severed their tribal

relations and no longer enjoyed the fiduciary relationship with

the United States with respect to their land. See, Schagticoke

Tribe, 423 F. Supp. at 785 n. 7. Lemieux presented a unique fact

situation: the Indian plaintiff in Lemieux sought to dispossess an-

other Indian to whom a trust patent had been issued. Failure

to apply laches would have, therefore, defeated the Congres-

sional policy to protect the rights of the Indian wards as would

the application of laches in the usual § 345 action.

41Cf., Block v. North Dakota, 461 U.S. at 291-92. See, Pueblo

of Taos v. Andrus, 475 F. Supp. 359 (D.D.C. 1979).

between the Federal Government and the Indian with-

out the consent of the Indians.

H.R. Rep. No. 92-1559, 92d Cong., 2d Sess. 13; S. Rep. No.

92-575, 92d Cong., Ist Sess. 4.

It cannot be seriously argued that the 92d Congress—

cognizant of the trust relationship, the commitments to the

Indians made in various agreements,” and the historic

federal-Indian relationship—when it said that the Quiet

Title Act ‘‘does not apply to trust or restricted Indian

lands’’ really meant that the Quiet Title Act not only ap-

plies in actions where Indians themselves seek to protect

property interests in trust lands, but also imposes a limita-

tions period on such actions where none cxisted previously.

Indeed, this same 92d Congress extended the limitations

period for historic trespass claims by Indians, excepting

all actions for land title from even the extended limitations

period of 28 U.S.C, § 2415. The Justice Department’s con-

struction would violate the language of the Quiet Title Act,

the intent of Congress, the canon of construction to construe

statutes in favor of Indian wards, and the canon of con-

struction to strictly observe conditions to legislation waiv-

ing sovereign immunity.* Moreover, this Court has been

unwilling to construe acts of Congress to diminish Indian

rights ia such a backhanded fashion.“

The Justice Department stretches even further, posit-

ing that, if the 12-year limitations period of the Quiet Title

Act doesn’t apply, then the six-year period of 28 U.S.C.

Respondent's allotment was in the nature of such an agree-

ment. See, County of Thurston v. Andrus, 586 F.2d 1212 (8th

Cir. 1978), cert. den. 441 U.S. 952 (1979).

See, Block v. North Dakota, 461 U.S. ?73, 287 (1983).

“See, e.g., Menominee Tribe v. United States, 391 U.S. 404,

412-13 (1968).

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§ 2401(a) does. Thus, in the Justice Department’s view,

non-Indians to whom the United States owes no duty ~

trust have twelve years to bring actions for real prop-

erty, but Indian wards are barred from asserting bene-

ficial title to trust lands after only six years. Statutes

should be construed to avoid such absurd results. See, e.g.,

United States v. Brown, 333 U.S. 18, 26-27 (1948).

The United States seems to rely on language in Fed-

eral Power Com’n v. Tuscarora Indian Nation, 362 US. 99

(1960), for the proposition that general statutes of limi-

tations apply to, wter alia, actions by Indians to protect

interests in trust land. See Brief of United States, ut 27

and 48. Tuscarora was a case involving land not held in

trust for Indians. As Cohen notes, the broad language in

Tuscarora® is limited “to situations where no special In-

dian rights were at issue, unless Congress clearly intended

351 U.S. 1 (1956), the Court ruled that the general fed-

eral income tax did not reach capital gains from sales of

timber of allotted lands, in view of the language and pur-

pose of the General Allotment Act. See also, United States

v. Winnebago Tribe, 542 F.2d 1002 (8th Cir. 1976), Dono-

van v. Navajo Forest Products Industries, 692 F.2d 709,

713 (10th Cir. 1982). This Court, moreover, has previously

taken into consideration the national interest in the pro-

tection of the possessory rights of Indians in rejecting the

application of e general statute of limitations. Cramer v.

United States, 261 U.S. 219, 233-34 (1923) (general statute

of limitations for suits brought by United States to annul

patents inapplicable when United States sues to annul

patents to protect possessory rights of Indians).

454 general federal statute “in terms applying to all persons

includes Indians and their property interests.”” Tuscarora, at 116.

46— Cohen, Handbook of Federal Indian Law (1982 ed.}, at 285.

CONCLUSION

Assuming that Respondent Mottaz’ complaint is prop-

erly characterized as one seeking to protect her beneficial

interests in trust property, no statute of limitations is ap-

plicable to bar the cause of action. If, however, Respondent

asserts that there has been a compensable taking, her ac-

tion is barred, because—in order for a taking of a trust

allotment to have oecurred—the actions of the executive

branch must have been within their statutory authority,

necessarily entailing voluntariness (and, thus, knowledge)

on the part of Respondent at the time of the conveyance.

Not every case purportedly brought under 25 U.S.C.

§ 345 involves an Indian’s attempt to protect interests in

trust property. Actions have been brought under § 345 for

rights-of-way on BLM lands and for money damages to

redress takings. For those causes of action against the

United States which in fact seek to pr cect interests in or

appurtenant to trust property, however, it is clear that

Congress has not imposed a time period within which such

claims must be prosecuted.

Respectfully submitted,

Pauw E. Frye

Counsel of Record

200 Lomas Blvd., N.W.

Suite 815

Albuquerque, NM 87102

(505) 247-9592

Dated: February 10, 1986

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