# 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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No. 85-546

Supreme Court. U.S.

kD

FrR 10 1986

PANIOL, JR.

RA

In The

Supreme Court of the United States

October Term, 1985

oO

UNITED STATES OF AMERICA, PETITIONER,
v.

FLORENCE BLACKETTER MOTTAZ, ETC.,
RESPONDENT.

ty
Vv

On Writ of Certiorari
To The United States Court of Appeals
For The Eighth Circuit

fy,
ae

BRIEF OF THE NAVAJO TRIBE OF INDIANS
AS AMICUS CURIAE IN SUPPORT OF
RESPONDENT MOTTAZ

ra’
Vv

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.

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 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

A.

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

il
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 |

——————

Em

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

iy

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
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

ix

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)
1

2
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.

3
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).

4

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.

5)

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.

6

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.

fy
.* 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

7

(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... .”

8

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.

9

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.

10
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.

11
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).

12
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),

13

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.

14

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).

15

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.

16

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.

—

17

(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)

18
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).

19

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.

20

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).

21
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).

22

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.

23

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).

24

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).

25
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

26
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).

27

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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28
§ 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
to infringe such rights.’"“© Thus, in Squire v. Capoeman,
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).

ra
Vv

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.

29
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

AVAILABLE COPY

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0445%3A10. Public record. Not legal advice.