Amicus Curiae Brief — Nichols v. Rysavy

nie,

sSupreme Court, U.S,

‘-EILED

= | AUS 7 1987

No. 87-73. |

JOSEPH F. SPAN'OL, JR.

ERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

KATHERINE B. NICHOLS, et al.,

. Petitioners,

DON RySAVY, et al., ~

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE AND BRIEF OF

CHIGACO TITLE INSURANCE COMPANY,

FIRST AMERICAN TITLE INSURANCE COMPANY,

LAWYERS TITLE INSURANCE CORPORATION,

SAFECO TITLE INSURANCE COMPANY OF IDAHO,

STEWART TITLE GUARANTY COMPANY,

TICOR TITLE INSURANCE COMPANY,

TITLE INSURANCE COMPANY OF MINNESOTA,

TRANSAMERICA TITLE INSURANCE COMPANY,

AND

TITLE USA INSURANCE CORPORATION,

AS AMICI CURIAE IN OPPOSITION TO

PETITION FOR CERTIORARI

WILLIAM T. FINLEY, JR.

Counsel of Record

DAVID F. B. SMITH

KEVIN W. MCLEAN

PIERSON SEMMES AND FINLEY

1054 Thirty-first Street, N.W.

Washington, D.C. 20007

(202) 333-4000

Attorneys for Amici Curiae

WILSON - EPES PRINTING Co., INC. - 789-OOS6 - WASHINGTON, D.C. 20001

Seah, \ail anne

IN THE

Suprene Court of the United States

OCTOBER TERM, 1987

No. 87-73

KATHERINE B. NICHOLS, e¢ al.,

an Petitioners,

DON RYSAVY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE

Nine title insurance companies, viz., Chicago Title In-

surance Company, First American Title Insurance Com-

pany, Lawyers Title Insurance Corporation, SAFECO

Title Insurance Company of Idaho, Stewart Title Guar-

anty Company, Ticor Title Insurance Company, Title

Insurance Company of Minnesota, Transamerica Title

Insurance Company, and Title USA Insurance Corpora-

tion hereby respectfully move for leave to file the at-

tached brief in opposition to the petition for a writ of

certiorari in this case. Written consent to the filing of

the attached brief was obtained from the atiorney repre-

senting the petitioners and from nine of the attorneys

representing various respondents, including the United

States and the State of South Dakota. Copies of the con-

sents that were received have been filed with the Clerk

of this Court along with this motion and the attached

brief. Written consents from the four attorneys repre-

senting the remaining respondents were requested, but

responses were not received. None of the attorneys denied

consent.

The nine title insurance companies seeking to appear

as amici curiae taken collectively have issued a large per-

centage of the title insurance in force throughout the

western United States. Their principal function is to

facilitate the safe, certain, and efficient transfer of title

to real estate in both residential and commercial trans-

actions by ascertaining and insuring the rights of pur-

chasers, mortgage lenders and others in the real estate

that is the subject of those transactions.

The interest of the nine title insurance companies in

this case arises because of their interest in the certainty

and predictability of the laws affecting titles to and

rights in real estate. The position advanced by the peti-

tioners in this case calls into question the validity of the

title of current landholders to more than one million

acres of land in the western United States. Petitioners

contend that certain fee patents issued by the United

States are void and therefore did not pass title to pur-

chasers of the land subject to those patents. If the peti-

tioners are successful, then the legitimate expectations of

current landholders, who acquired their land in good

faith, would be threatened. The nine title insurance com-

panies seek leave to file the attached brief as amici curiae

in order to address this potential threat to the titles of

current landholders.

Respectfully submitted,

WILLIAM T. FINLEY, JR.

Counsel of Record

DAVID F. B. SMITH

KEVIN W. MCLEAN

PIERSON SEMMES AND FINLEY

1054 Thirty-first Street, N.W.

Washington, D.C. 20007

(202) 333-4000

Attorneys for Amici Curiae

August 7, 1987

TABLE OF CONTENTS

RE pg 8) yy |: ae

INTEREST OF THE AMICI CURIAE .........00....02.......

SUPINE SPM PAMRGHRI EIGN Do... 22..5.c.-ccccssecucacncencecsoseee

Neen asada asin wincsranseciacnvecesneenecdtansatavesannss

I.

II.

Il.

THE APPLICATION OF 28 U.S.C. § 2401 (a)

DOES NOT MERIT REVIEW BY THIS

COURT AND SECTION 2401(a) REQUIRES

THE DISMISSAL OF THE CLAIMS AGAINST

pg ANE dy ¢ >. ae

THE CLAIMS AGAINST THE CURRENT

LANDHOLDERS SHOULD BE DISMISSED

BECAUSE THE UNITED STATES IS AN IN-

og E's 9 a nn

A. The Determination of the Court Below that

the United States Is an Indispensable Party

Does Not Conflict With This Court’s Deci-

sions in Poafpybitty and Hodel ......................

B. The Court of Appeals’ Determination That

the United States Is an Indispensable Party

Ea ee

C. 25 U.S.C. § 345 Does Not Indicate That the

United States Is Not an Indispensable Party

to tne Forced Fee Ciaims.................................

THE ISSUANCE OF FORCED FEE PAT-

i Nig 0) 44 4 re

A. Neither the Burke Act Nor the Constitution

Required the Application or Consent of the

Allottee to the Issuance of a Fee Patent in

Order for the Fee Patent to Remove Restric-

tions on Alienation Applicable to the Allot-

Re ao nat haelactinoreecanoniemnesonatibcionrcncseaves

B. The Secretary of the Interior Acted Within

His Authority in Determining the Compe-

tency of Allottees Based on Blood Quantum...

i cesicmnasodenadsiigndncwmnecthsescnetonsamnters

13

14

15

18

20

ii

TABLE OF AUTHORITIES

CASES:

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

aii al Gh Aral. hacnndonibeiaereneerentonueces

Arizona v. California, 460 U.S. 605 (1983) -...........

Baker v. United States, 276 F. 283 (8th Cir.

Rae a yo Ir ee ciaieaae

Begay v. Albers, 721 F.2d 1274 (10th Cir. 1983) ....

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

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

kn cai ioe ea lidlamlssemincnhodapantvabsoceens

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

a ea erp bbc

Fink v. Board of County Commissioners, 248 U.S.

I ID ils ccancalenlelshebdihiae cipibeipinabiiiednnnniketeniobiirenanee

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

Hodel v. Irving, U.S. ——, 107 S. Ct. 2076

a Sipathe RE peehek Se AI MND AAR IE EE SN ee

Jones v. Prairie Oil & Gas Co., 273 U.S. 195

hr a td ete anL neonates

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

SI isi cia tire ineintmincanaadligciensennancaeeenneniennipliciiascant

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

Minnesota Co. v. National Co., 70 U.S. (3 Wall.)

E.R ee Nate Ream Se oe fe eer

Moran v. Horsky, 178 U.S. 205 (1900) ................-....

Navajo Tribe of Indians v. New Mexico, 809 F.2d

A Ce Be anntieirtcreniinipitcintacennctirinnee

Nevada v. United States, 463 U.S. 110 (1983) ........

Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968) ..

Provident Tradesmens Bank & Trust Co. v. Patter-

ee ER NCS eNNN

Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d

1251 (9th Cir. 1983), cert. denied, 465 U.S. 1049

ESA e aeee ne Sen Sar oe Se ee Ae Pe NON

St. Louis Smelting & Refining Co. v. Kemp, 104

Be He IED cs datgdevsincsscsdncsandeeetidigaieniasicpeneeianlapidanioans

Steel v. St. Louis Smelting & Refining Co., 106 U.S.

Se «SRR Nr A SR, Sor

United States v. Benewah County, 290 F. 628 (9th

EPI: SIIID | Ssiscctnssuansnteiesicetesngeahevencoliebenaniitaieamaanaibabnebaen

Page

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. Debell, 227 F. 760 (8th Cir. 1915).. 19, 20

United States v. First National Bank, 234 U.S. 245

CIID vein snieisindsvetenviies acietsttalekonisiy ieapsonabeeetasiaie aan 17, 19

United States v. Frisbee, 165 F. Supp. 883 (D.

eR. TIN ceisiecnncsiikicnnsrnnnssnsicinionstinasssanctipianeeipeiraleasa liane 18

United States v. Glacier County, 74 F. Supp. 745

Cc By BIPIPED, .aicesevieneneesisdtniss -cchiecnasentelaiauaaieitaed 18

United States v. Mottaz, 476 U.S. ——, 106 S. Ct.

I OUD: evsscsinstessarrteressksipehiensdicibenpsdeieibathlaecan isteach 5,138

United States v. Schurz, 102 U.S. 378 (1880)........ 11

United States v. Title Insurance & Trust Co., 265

ia SOR: CRD seaitectcinin cee ednablaaes 2

United States v. Waller, 243 U.S. 452 (1917)........ 17, 19

Vicenti v. United States, 470 F.2d 845 (10th Cir.

1972), cert. dismissed, 414 U.S. 1057 (1973).... 13

Walters v. Secretary of Defense, 725 F.2d 107

Eee Ae Aes TED Soorisanivinincccbemnsieele oe tateeees 5

Werner v. United States, 188 F.2d 266 (9th Cir.

MIRA D sAiccustuistessdcieaeiiucsianolesaueetaaaacaleusenaiciaaanec aan 4,5

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

STATUTES:

Act of July 1, 1902, ch. 13861, 32 Stat. 636 .............. 16

Act of June 14, 1906, ch. 3298, 34 Stat. 262 -............ 16

Act of June 21, 1906, ch. 3504, 34 Stat. 325 _....00000.... 16, 19

Act of June 28, 1906, ch. 3572, 34 Stat. 539 _............ 16

Act of May 27, 1908, ch. 199, 35 Stat. 312 —......00.... 16, 18

Act of June 25, 1910, ch. 431, 36 Stat. 855 ............... 16

Burke Act, Act of May 8, 1906, ch. 2348, 34 Stat.

182 (codified at 25 U.S.C. § 349 (1982) ) .......... 2 23, 33.

14-16, 18, 19

Indian Claims Limitation Act of 1982, Pub. L. 97-

OG, DS Tee Barr CRI nace scicietetsencentnes 5

25 U.S.C. § 345 (1982) ............. eld tasanaiteeanaaimeaintta 5, 13

Se ie ee IE iiinsnnss.ncninncscdunsieonasinintoclimeatds 18

pas Ce EU Reena os 18

SP AT As hE CU oe steenninesnnpsinieenenenenieente 3-5

iv

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES: Page

40 Cong. Rec. 3552-601 (1906) _......--00022..22e-ee eee 15

Declaration of Policy issued by the Department

of the Interior on April 17, 1917, quoted in

J. Kinney, A Continent Lost—A Civilization

Se TB esictesecersierinaserietnspeeemnnpctstcine nen evntsisneciesenntiiienins 2

Fed. R. Civ. P. 19 (b) ...22...200222020oo.o cnet tecccceescnsnceeee 7,8, 10

H.R. Rep. No. 1558, 59th Cong., Ist Sess. (1906) .... 15

H.R. Rep. No. 1896, 69th Cong., 2d Sess. (1927) .... 18

H.R. Rep. No. 2269, 71st Cong., 3d Sess. (1931).... 18

Indians of the United States, Investigation of the

Field Service: Hearing by a Subcomm. of the

House Comm. on Indian Affairs, 66th Cong., 3d

NR sR aR ee Ee OeD PoCre 2

Letter from the Commissioner of Indian Affairs

to reservation superintendents (March 7, 1919),

quoted in L. Schmeckebier, The Office of Indian

DI I a a aa 2

S. Rep. No. 1998, 59th Cong., Ist Sess. (1906) ........ 15

I IIIA “Alls SAE <I. cant ceases cdadcnshasitipipet ar teed omoheneeigimandignsn 4,8

Wright, Miller & Kane, Federal Practice and Pro-

IS CAGe Ue CED eccinceceesentesttnanscetnmneies 8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-73

KATHERINE B. NICHOLS, et al.,

Petitioners,

Vv.

DON RYSAVY, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF AMICI CURIAE

INTEREST OF THE AMICI CURIAE

This brief is filed on behalf of nine title insurance

companies‘ jointly appearing as amici curiae in this pro-

ceeding. The principal function of title insurance com-

panies is to facilitate the safe, certain, and efficient

transfer of title to real estate in both residential and

commercial transactions by ascertaining and insuring the

rights of purchasers, mortgage lenders and others in the

real estate that is the subject of those_ transactions.

The nine companies jointly appearing as amici curiae

taken collectively have issued a large percentage of the

title insurance in force throughout the western United

States, and consequently have a direct interest in the sta-

bility of land titles in the region. This Court has long

1 The nine companies are Chicago Title Insurance Company, First

American Title Insurance Company, Lawyers Title Insurance Cor-

poration, SAFECO Title Insurance Company of Idaho, Stewart

Title Guaranty Company, Ticor Title Insurance Company, Title

Insurance Company of Minnesota, Transamerica Title Insurance

Company, and Title USA Insurance Corporation.

2

recognized the importance of such stability. See, e.g.,

Nevada v. United States, 463 U.S. 110, 129 n.10 (1983)

(quoting Minnesota Co. v. National Co., 70 U.S. (3

Wall.) 332, 334 (1866) ); Arizona v. California, 460 U.S.

605, 620 (1983); United States v. Title Insurance &

Trust Co., 265 U.S. 472 (1924).

At issue in this proceeding are fourteen forced fee

claims asserted by the petitioners in the Western and

Central Divisions of the District of South Dakota. These

forced fee claims are based on a policy implemented by

the Secretary of the Interior from 1916 to 1920 during

the second term of President Woodrow Wilson. Using

the authority provided by the Burke Act, Act of May 8,

1906, ch. 2348, 34 Stat. 182 (codified at 25 U.S.C. § 349

(1982)), which authorized the Secretary of the Interior

to issue fee patents whenever he found that an Indian

allottee was competent and capable of managing his af-

fairs, the Secretary of the Interior issued fee patents to

allottees he deemed competent regardless of whether the

allottee had requested or applied for a fee patent. Offi-

cials of the Department of the Interior were directed to

visit reservations and evaluate allottees individually to

determine their competence.* The Secretary also issued

fee patents to allottees of less than one-half Indian blood,

and later to allottees of one-half Indian blood, without

an individual determination of competency.’

The petitioners allege that they are successors in inter-

est to allottees who received fee simple patents from the

Department of the Interior during the 1916-20 period

and subsequently transferred their lands or interests in

2 See Indians of the United States, Investigation of the Field

Service: Hearings by a Subcomm. of the House Comm. on Indian

Affairs, 66th Cong., 3d Sess. 61-62, 74 (1920).

3 See “A Declaration of Policy,” issued April 17, 1917 (quoted

in J. Kinney, A Continent Lost—A Civilization Won 292 (1937) );

Letter from the Commissioner of Indian Affairs to reservation

superintendents, March 7, 1919 (quoted in L. Schmeckebier, The

Office of Indian Affairs 153-54 (1927) ).

3

their lands by sale or mortgage. They allege that the fee

patents were issued by the Department in violation of

constitutional and statutory requirements, and therefore

that the patents were void and ineffective to pass title.

As a consequence, they assert that the land should be

returned to trust status under the control of the United

States and that they are entitled to recover possession

of the land covered by the fee patents, together with

trespass damages for the time they were out of posses-

sion of the claimed land, despite the fact that the land

covered by the patents is now held by innocent purchasers

who acquired the land in good faith. Those purchasers

include individuals, private entities, municipalities, and

the State of South Dakota.

If the petitioners succeed in maintaining their claims

against the current landholders, those landholders, who

acquired their land in good faith with no notice of any

defects in the fee patents issued by the United States

Government more than sixty-five years ago, will lose their

land. Moreover, many other landholders whose titles are

traceable to the issuance of such fee patents could be

threatened by other forced fee claims; the ownership of

more than one million acres of land will be brought into

question. Finally, if the petitioners’ claims are upheld,

purchasers of land covered by federal patents will not

be able to rely on the validity of such instruments, even

though they appear to be perfectly valid.

SUMMARY OF ARGUMENT

Petitioners have presented three questions for review

by this Court: (1) whether the statute of limitations

contained in 28 U.S.C. §$ 2401(a) applies; (2) whether

the United States is an indispensable party to the forced

fee claims; and (3) whether the forced fee patents are

void. As this brief will demonstrate, none of these three

questions warrants review by this Court. None of them

involves conflicts either with prior decisions of this Court

or with decisions of other courts of appeals. To the con-

trary, the determinations of the Court of Appeals below

4

are consistent with such decisions. Furthermore, the

questions raised by petitioners are not important ques-

tions of federal law that have not been, but should be,

settled by this Court. Finally, when the merits of the

issues raised by the petitioners are examined, it is clear

that the Eighth Circuit’s determinations are correct.

ARGUMENT

I. THE APPLICATION OF 28 U.S.C. § 2401(a) DOES

NOT MERIT REVIEW BY THIS COURT AND SEC-

TION 2401(a) REQUIRES THE DISMISSAL OF THE

CLAIMS AGAINST THE UNITED STATES

The application of section 2401(a) by the Court of

Appeals below does not warrant review on a writ of

certiorari. The decision represents a correct interpre-

tation of a clearly-written statute and presents neither

an important question of federal law nor a departure

from ‘the accepted and usual course of judicial proceed-

ings.” Sup. Ct. R. 17.1(a). Moreover, the Eighth Cir-

cuit’s determination that section 2401(a) applies is en-

tirely consistent with the decisions of this Court and of

other courts of appeals.

The petitioners contend that the statute of limitations

contained in 28 U.S.C. § 2401(a) does not apply to their

claims against the United States. Cert. Pet. at 20-21.

Petitioners’ contention is incorrect. Section 2401(a) pro-

vides that “[e]xcept as provided by the Contract Dis-

putes Act of 1978, every civil action commenced against

the United States shall be barred unless the complaint is

filed within six years after the right of action first

accrues....”

The plain language of section 2401(a) shows that it

applies to “every civil action.” In addition, the peti-

tioners’ legislative history argument is erroneous and has

been rejected by other courts of appeals. As the Ninth

Circuit has held, section 2401(a) did not simply con-

solidate pre-existing statutes of limitations, “it also cre-

ated a general statute of limitations insofar as suits

5

against the United States are concerned.” Werner v.

United States, 188 F.2d 266, 268 (€th Cir. 1951). Accord

Walters v. Secretary of Defense, 725 F.2d 107, 113 (D.C.

Cir. 1983). Finally, the Ninth Circuit has specifically

considered the applicability of section 2401(a) to actions

concerning allotments, and held that there is no escaping

“the conclusion that section 2401(a) applies to all ac-

tions brought under section 345 [of title 25], whether

the relief requested is legal or equitable.” Christensen v.

United States, 755 F.2d 705, 707 (9th Cir. 1985) (em-

phasis in original). See also Loring v. United States,

610 F.2d 649, 650 (9th Cir. 1979). Thus, the six-year

statute of limitations contained in section 2401(a) fore-

closed the petitioners’ claims after 1954 (six years after

the enactment of section 2401 (a) ).*

Il. THE CLAIMS AGAINST THE CURRENT LAND-

HOLDERS SHOULD BE DISMISSED BECAUSE

THE UNITED STATES IS AN INDISPENSABLE

PARTY

A. The Determination of the Court Below That the

United States Is an Indispensable Party Does Not

Conflict With This Court’s Decision in Poafpybitty

and Hodel

According to the petitioners, the Court of Appeals’

determination that the United States is an indispensable

4 Petitioners’ suggestion that the application of section 2401 (a)

to their claims would be inconsistent with the Indian Claims Limi-

tation Act of 1982, Pub. L. 97-394, 96 Stat. 1976 (1982), is without

merit and has already been answered by this Court’s decision in

United States v. Mottaz, 476 U.S. , 106 S. Ct. 2224 (1986).

In Mottaz, this Court explained that the Indian Claims Limitation

Act of 1982 tolls the statute of limitations for “many damages

actions brought by the Federal Government” but that it is not

applicable to actions against the federal government or to actions

concerning the title to or possession of real property. See 106

S. Ct. at 2232 n.10 (emphasis in original). Inasmuch as the forced

fee claims involve actions against (not by) the federal government

and actions that seek the cancellation of patents and the return of

possession of land (as well as damages), the applicability of section

2401(a) is not affected by the Indian Claims Limitation Act of 1982.

6

party conflicts with this Court’s decisions in Poafpybitty

v. Skelly Oil Co., 390 U.S. 365 (1968), and Hodel v.

Irving, USS. , 107 S. Ct. 2076 (1987), which

allegedly required the Court of Appeals “to give con-

trolling weight to the policy of protecting allotments.”

Cert. Pet. at 18. Petitioners’ arguments are without

merit. Poafpybitty and Hodel are simply inapposite to

the present case, which involves the indispensability of

the United States to an action against non-federal defend-

ants that is grounded upon alleged affirmative miscon-

duct by the United States.

In Poafpybitty, the Court permitted Indian allottees

who had executed an oil and gas lease that had been

approved by the Acting Commissioner of Indian Affairs

to bring an action against the lessee for the breach of

the lease. The issue decided by the Court was not

whether the United States was an indispensable party—

an issue not even mentioned by the Court—but whether

the restrictions that prevented an allottee from selling

or leasing his land also prevented him from maintaining

a legal action to protect his rights. See 390 U.S. at 372.

The Court stated that both the United States and Indian

allottees ‘“‘were empowered to seek judicial relief to pro-

tect” allotments, id. at 369, and permitted the suit by the

Indian allottees against their lessee to proceed.

There is no question that the petitioners in the forced

fee claims were “empowered to seek judicial relief.” They

clearly were. The pertinent questions concern the iden-

tity of the parties to a judicial proceeding in which such

relief is sought and the time frame within which such

relief may be sought. Unlike Poafpybitty, which involved

allegations of misconduct by the lessee but no allegations

of impropriety by the United States or its officers, the

forced fee claims involve allegations of misconduct on the

part of the United States only; there is no question of

wrongdoing by the landholders against whom the peti-

tioners are seeking to pursue their claims in the absence

of the United States. In Poafpybitty, there was no rea-

7

son for the United States to be a party to the action—

the Indian allottees had the power to bring the action

and the conduct of the United States was not at issue.°

Similarly, Hodel, which involved a claim against the

United States premised upon the alleged unconstitution-

ality of a federal statute, is irrelevant. In that case, this

Court held that heirs of deceased allottees had standing

to pursue claims against the Secretary of the Interior

based upon the deprivation by the United States of the

decedents’ constitutional rights, and noted that the Sec-

retary of the Interior “could hardly be expected to assert”

those rights. 107 S. Ct. at 2081. That language has no

bearing on the issue of whether the United States is an

indispensable party in the context of the forced fee

claims.

B. The Court of Appeals’ Determination That the

United States Is an Indispensable Party Was

Correct

The Court of Appeals below properly analyzed the fac-

tors pertinent to whether the United States is an indis-

pensable party. Rule 19(b) of the Federal Rules of Civil

Procedure governs such determinations and sets forth

four factors that courts are to consider. In evaluating

these factors, the Court of Appeals followed the guidance

provided by this Court in Provident Tradesmens Bank &

Trust Co. v. Patterson, 390 U.S. 102 (1968), and af-

firmed the judgments of the district courts that the

actions should not proceed without the United States.

Provident Tradesmens Bank explained that the deter-

mination under Rule 19(b) of “whether, in equity and

good conscience,” an action should proceed without a

party involves four interests:

First, the plaintiff has an interest in having a forum

Second, the defendant may properly wish to

5 The petitioners’ reliance on Heckman v. United States, 224 U.S.

413 (1912), is misplaced for similar reasons. Heckman involved an

action challenging a subsequent transaction between the allottee

and a purchaser rather than alleged misconduct on the part of the

United States.

8

avoid multiple litigation, or inconsistent relief, or

sole responsibility for a liability he shares with

another....

Third, there is the interest of the outsider whom

it would have been desirable to join .

Fourth, there remains the interest of the courts

and the public in complete, consistent, and efficient

settlement of controversies.

390 U.S. at 109-11.

The Eighth Circuit faithfully applied Provident Trades-

mens Bank in reaching its decision below. Accordingly,

the Eighth Circuit’s decision does not constitute a decision

on “an important question of federal law which has not

been, but should be, settled by this Court,” nor does it

represent a departure from “the accepted and usual

course of judicial proceedings” so as to justify review on

a writ of certiorari. See Sup. Ct. R. 17.1. The applica-

tion of Rule 19(b) in a particular case necessarily de-

pends on the specific facts of that case, and both the

Court of Appeals and the district court below carefully

considered the specific facts and circumstances of the

forced fee claims in reaching their decisions that the

United States is an indispensable party. It would not be

a wise use of the Court’s certiorari power for the Court

to engage in yet another review of the specific facts of

the forced fee claims in the context of Rule 19(b).

Furthermore, when the four interests described by this

Court in Provident Tradesmens Bank are evaluated, it

is clear that the decision of the Court of Appeals below

is correct. With respect to the first factor, the interest

of the plaintiff in having a forum, it is true that the

petitioners will have no forum in which to air their

claims if the United States is held to be indispensable.

This alone, however, does not preclude a finding that the

United States is an indispensable party because Rule 19

does not require that this factor be given controlling

‘weight. See generally, 7 Wright, Miller & Kane, Federal

Practice and Procedure: Civil 2d § 1608 (1986). More-

over, the reason that the petitioners would not have an-

9

other forum is simply that they have waited too long to

bring their claims. If they had brought them within the

applicable period of limitations—i.e., prior to 1954—they

could have joined the United States in an action in a fed-

eral district court or could have brought an action against

the United States in the Court of Claims to recover dam-

ages based on the allegedly wrongful issuance of the fee

patents by the United States. Thus, the reason the peti-

tioners have no other forum is not because no such forum

ever existed, but because they did not avail themselves of

the relief available within the prescribed statutory period.

With respect to the remaining three interests—the

defendant’s desire to avoid multiple litigation, incon-

sistent relief, or liability he shares with another, the

interest of the outside party, and the goal of complete,

consistent, and efficient settlement of controversies—the

Court of Appeals below evaluated these interests properly

in holding that they weighed heavily in favor of determin-

ing that the litigation should not proceed without the

United States. The results sought by the petitioners—

the cancellation of the fee patents at issue and return

of the land to trust status under the control of the United

States—clearly require the presence of the United States

for a final and complete resolution of the controversy.

First, it would be unfair to subject the non-federal de-

fendants to the risk of losing their property as a conse-

quence of allegedly wrongful action engaged in solely by

the United States, particularly when those defendants

have no assurance of receiving any recovery against the

United States in the event the forced fee claimants pre-

vail against them. While the non-federal defendants may

be able to pursue damage claims against the United

States in the event that forced fee claimants prevail

against them, the outcome of any such actions is un-

certain. Apart from whatever other defenses the United

States may have in such a proceeding brought by the

non-federal defendants in the United States Claims Court,

the United States would be free to relitigate before the

Claims Court the issue of the validity of the forced fee

10

patents, since the United States would not be bound by a

contrary determination made in litigation between the

forced fee claimants and the non-federal defendants. This

creates the possibility that a federal district court could

determine that the United States acted illegally when it

issued the forced fee patents, and impose ejectment or

damages on the non-federal defendants, while the Claims

Court could determine that the United States acted

properly in issuing the forced fee patents and deny re-

covery against the United States, thereby forcing the non-

federal defendants to bear the consequences of what one

court determined to be the United States’ wrongful con-

duct even though they were fully justified in relying on a

federal fee patent as evidence of good title to the land.

Rule 19(b) was developed to avoid precisely this sort of

multiple litigation with its potential for inconsistent ju-

dicial determinations. To allow the instant claims to go

forward in the absence of the United States raises the

possibility that the non-federal defendants would bear all

of the liability while the only alleged wrongdoer, the

United States, escapes all liability.

Secondly, permitting these forced fee claims to proceed

in the absence of the United States would contravene the

longstanding doctrine barring collateral attacks on land

or mineral patents issued by the federal government.

This doctrine confirms that the United States is an in-

dispensable party because it requires that attacks on the

validity of federal patents be brought in direct proceed-

ings against the United States. As this Court held in

St. Louis Smelting & Refining Co. v. Kemp, 104 U.S. 686

(1882), “a patent, in a court of law, is conclusive as to

all matters properly determinable by the Land Depart-

ment, when its action is within the scope of its authority;

that is, when it has jurisdiction under the law to convey

the land.” 104 U.S. at 646. The protection afforded a

federal patent is so strong that a patent may not be at-

tacked in a court of law even if the officers issuing the

patent “took mistaken views of the law.” Jd. at 647.

11

There is an exception to the general prohibition against

collateral attacks for patents that are considered void.

See id. at 641-45; Steel v. St. Louis Smelting & Refining

Co., 106 U.S. 447, 452-53 (1882). As the Court of Ap-

peals below found, however, the alleged errors by the

Secretary of the Interior render the forced fee patents

“possibly voidable,” but not void. Pet. App. at 28-30.

Inasmuch as that conclusion follows directly from the

principles enunciated in decisions of this Court, the Eighth

Circuit’s determination that the forced fee patents are

not void does not warrant review on a writ of certiorari.

Moreover, as will be discussed below at 14-20, the issuance

of the forced fee patents was wholly consistent with both

the Burke Act and the Constitution, and consequently

forced fee patents are not even voidable, let alone void.

In finding the forced fee patents to be only “possibly

voidable,” and not void, the Court of Appeals below ap-

plied long-standing principles of law that have been

developed by this Court in decisions such as Moran v.

Horsky, 178 U.S. 205 (1900), and United States v.

Schurz, 102 U.S. 378 (1880). In Moran, this Court held

that a patent was only voidable, not void, when no in-

validity appears on the face of the patent or from mat-

ters subject to judicial notice, and the land covered by

the patent is within the jurisdiction of the Land Depart-

ment. See 178 U.S. at 212. Similarly, in United States

v. Schurz, this Court stated that a patent is void only

if the land is outside the jurisdiction of the government;

otherwise the patent is merely voidable, even if the Land

Department made errors in deciding questions of law or

fact. See 102 U.S. at 400-01.

Application of these principles demonstrates that er-

rors such as those alleged to be present in the issuance

of the forced fee patents could not render such patents

void, but only voidable. The Secretary of the Interior

clearly had jurisdiction over the land for which the fee

patents were issued to allottees and acted “within the

scope of his authority” under the Burke Act when he

issued those patents. The Burke Act explicitly author-

12

ized the Secretary to issue a fee patent “whenever he

shall be satisfied’ that an allottee was competent. While

the Secretary may have made errors of judgment when

he concluded that certain allottees were competent, such

errors do not negate the Secretary’s authority to issue

fee patents under the Burke Act. Moreover, the alleged

errors—issuing a patent absent an application or an in-

dividual determination of competency—could not possibly

be apparent on the face of the patent. The proper rem-

edy for correcting supposed errors of judgment is by

a direct proceeding against the United States, not by

a collateral attack against the titles of current land-

holders. Permitting such a collateral attack would de-

stroy the “unassailable character” of the federal patents

at issue, “a character which gives to [a patent] its chief,

indeed, its only value, as a means of quieting its pos-

sessor in the enjoyment of lands it embraces.” 104 U.S.

at 641.°

6 The Eighth Circuit’s decision is also supported by the recent

decision of the Tenth Circuit in Navajo Tribe of Indians v. New

Mexico, 809 F.2d 1455 (10th Cir. 1987). In Navajo Tribe, the tribe

brought an action against the United States and other parties to

affirm its title to certain unallotted lands. After upholding the dis-

missal of the action against the United States, 809 F.2d at 1464,

the Court of Appeals held that the claims against the non-federal

defendants must be dismissed because the United States was an

indispensable party. The Tenth Circuit identified several factors

that supported its conclusion, including: (1) that the claims were

based on documents of title derived from the United States; (2)

that the plaintiff sought to cancel all such instruments; and (3)

the principle that all parties to an instrument must be present for

an instrument to be cancelled. Jd. at 1472. All of these factors are

present in the context of the forced fee claims and similarly compel

a finding that the United States is an indispensable party.

Also, as the Tenth Circuit stated in Navajo Tribe, cases such as

Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251 (9th Cir.

1983), cert. denied, 465 U.S. 1049 (1984), which have held the

United States not to be an indispensable party in litigation con-

cerning Indian lands, are inapposite because in those cases “the

interest of the United States was aligned with that of the Indians.”

809 F.2d at 1473. In contrast, in the forced fee claims, as in Navajo

Tribe, the Indian claimants and the United States are adversaries.

13

C. 25 U.S.C. § 345 Does Not Indicate That the United

States Is Not an Indispensable Party to the Forced

Fee Claims

In United States v. Mottaz, 476 U.S. , 106 S. Ct.

2224 (1986), this Court stated that the United States

need not be a party defendant “in all cases brought under

§ 345 [which provides federal district courts with juris-

diction over actions concerning allotments] . . . because

the United States would obviously not be a proper party

in many private disputes.” 106 S. Ct. at 2231 n.9 (em-

phasis in original). It does not follow, however, from

the Court’s statement that the United States is not in-

dispensable in all section 345 cases, that the United States

is not an indispensable party in this case. As the Court

of Appeals below properly held, section 345 does not in-

dicate that the United States is not an indispensable

party with regard to the forced fee claims. Pet. App.

at 38-39.

The essence of the plaintiffs’ claims in the forced fee

eases is that the United States itself acted improperly

in issuing fee patents. In contrast to the two cases cited

by this Court in Mottaz, the forced fee cases do not in-

volve claims of improprieties involved in the subsequent

transfers to private landowners.’ While the United States

7 Neither of the two cases cited by this Court in Mottaz is

instructive in the context of the forced fee claims. The first case,

Begay v. Albers, 721 F.2d 1274 (10th Cir. 1983), involved suits

by two Indian allottees who alleged that their allotments had been

transferred by means of forged deeds. The United States was a

party to the actions along with the private landowners, originally

as a party defendant, and subsequently as a plaintiff after it was

realigned. The second case, Vicenti v. United States, 470 F.2d 845

(10th Cir. 1972), cert. dismissed, 414 U.S. 1057 (1973), concerned

an action brought by Indian allottees (or their descendants) against

both the United States and private landowners. The plaintiffs

alleged that they had never received certain lands in exchange for

which they had surrendered their allotments. The private land-

owners settled the claims against them before trial, however, and

the United States was the only defendant at the time of judgment.

Since the private landowners had settled out before trial, the

Tenth Circuit’s decision in Vicenti did not involve a dispute be-

14

may not be a necessary party in cases involving alleged

improprieties in the transfer of land from an Indian

allottee to another landowner, it is certainly a proper

and necessary party in cases where the claim is bottomed

on an assertion that the United States acted wrongfully

in issuing a fee patent to an Indian allottee. See McKay

v. Kalyton, 204 U.S. 458, 469 (1907) (United States

must be made a party to controversies where the opera-

tion of legislation concerning allotments is at issue) ;

Antoine v. United States, 637 F.2d 1177, 1181 (8th Cir.

1981) (“determining whether an Indian should have re-

ceived a patent for an allotment of land under section

345 requires the presence of no party other than the

United States’’).

Thus, while one can visualize numerous private dis-

putes between Indian owners of allotments and private

parties where involvement by the United States would

not be indispensable or even appropriate—for example,

when an Indian allottee sold land and did not receive the

bargained-for consideration—the question presented in

these proceedings is whether the forced fee claims consti-

tute the kind of “private disputes” to which the United

States would not be a proper party. The answer to that

question is clearly negative. It would be inappropriate

to resolve a dispute such as the forced fee claims, where

the actions of the United States are the focus of the

controversy, in the absence of the United States.

Ill. THE ISSUANCE OF FORCED FEE PATENTS WAS

AUTHORIZED

The Court of Appeals below did not reach the merits

of the forced fee claimants’ challenge to the validity of

the fee patents. The petitioners nevertheless contend

that the Secretary of the Interior was not authorized by

the Burke Act to issue fee patents without an application

by the allottee and an individual determination of the

allottee’s competency, and that consequently such patents

tween Indian allottees and private landowners; the decision in-

volved only a dispute between Indian allottees and the United

States, and, of course, the United States was a party to the suit.

15

are void. Cert. Pet. at 17-19. When the merits are

examined, however, it is clear that the forced fee claims

have no basis and should be dismissed for that reason

as well as by virtue of the statute of limitations and in-

dispensable party grounds relied upon by the Court of

Appeals.

A. Neither the Burke Act Nor the Constitution Re-

quired the Application or Consent of the Allottee to

the Issuance of a Fee Patent in Order for the Fee

Patent to Remove Restrictions on Alienution Ap-

plicable to the Allotment

As one of the district courts below held, Pet. App. at

68-81, the text of the Burke Act contains no requirement

that a fee patent be issued only upon the application or

with the consent of an Indian allottee. The relevant por-

tion of the Act provides:

[T]he Secretary of the Interior may, in his discretion,

and he is authorized, whenever he shall be satisfied

that any Indian allottee is competent and capable of

managing his or her affairs at any time to cause to

be issued to such allottee a patent in fee simple... .

25 U.S.C. § 349 (1982). This language authorizes the

Secretary of the Interior to issue a fee patent whenever

‘he is satisfied that an allottee is competent and capable

of managing his or her affairs. It contains no applica-

tion or consent requirement.

The legislative history of the Burke Act contains noth-

ing that contradicts the plain meaning of the statutory

language. The House and Senate reports that accom-

panied passage of the Burke Act are virtually identical

and give no indication that application or consent by the

allottee was required. See H.R. Rep. No. 1558, 59th

Cong., Ist Sess. 2 (1906); S. Rep. No. 1998, 59th Cong.,

Ist Sess. 2 (1906). The floor debates accompanying pas-

sage of the Burke Act similarly provide no support for

a consent requirement. See 40 Cong. Ree. 3552-601

(1906).

During the same period when the Burke Act was en-

acted, Congress passed several other acts authorizing the

16

issuance of fee patents (or in some cases certificates of

competency, which, like fee patents, enabled allottees to

sell their land) to allottees found by the Secretary of the

Interior to be capable of managing their own affairs.

Some of these acts contained requirements that an appli-

cation for the fee patent or certificate of competency be

filed ® while others did not.° Some acts contained an ap-

plication requirement for one class of Indians but not for

other classes.’° Congress’s decision to impose explicit

application requirements in some of these acts but not

in others, combined with its decision not to include an

explicit application requirement in the Burke Act, sup-

ports the conclusion that Congress deliberately chose not

to require an application under the Burke Act.

It is also clear that the Constitution does not require

an allottee’s consent for a fee patent to remove restric-

tions on alienation applicable to an allotment, although

the allottee’s consent may be required to terminate a tax

exemption applicable to the allotment. In Choate v.

Trapp, 224 U.S. 665 (1912), this Court found that:

[T]he exemption and nonalienability were two sepa-

rate and distinct subjects. One conferred a right and

the other imposed a limitation. The right to remove

the restriction was in pursuance of the power under

8 See, e.g., Act of June 25, 1910, ch. 431, 36 Stat. 855 (requiring

application for certificate of competency) ; Act of June 28, 1906, ch.

3572, 34 Stat. 539 (requiring a request and petition for certificate

of competency); Act of June 14, 1906, ch. 3298, 34 Stat. 262, 263

(requiring applications for fee patents for lands within drainage

districts) ; Act of July 1, 1902, ch. 1361, 32 Stat. 636 (requiring

request of Kaw Indians for certificate authorizing sale of lands).

® See, e.g., Act of May 27, 1908, ch. 199, 35 Stat. 312 (allowing

removal of restrictions on lands of Five Civilized Tribes); Act of

June 21, 1906, ch. 3504, 34 Stat. 325, 381 (allowing fee patents to

be issued to Oneidas of Wisconsin). Some of the acts simply re-

moved the restrictions on alienation by decree. See, e.g., Act of

June 21, 1906, ch. 3504, 34 Stat. 325, 363 (decreeing removal of

restrictions on lands of nonresident Kickapoo Indians).

10 See Act of June 21, 1906, ch. 3504, 34 Stat. 325, 353. The

Clapp Amendment required applications by full-blood Indians but

not by adult mixed-blood Indians.

17

which Congress could legislate as to the status of the

ward and lengthen or shorten the period of disability.

But the provision that the land should be nontaxable

was a property right, which Congress undoubtedly

had the power to grant.

224 U.S. at 673 (emphasis added). Thus, while the tax

exemption accompanying an allotment is a vested prop-

erty right protected by the fifth amendment that cannot

be terminated without the allottee’s consent, id. at 674,

restrictions on alienation are not property rights pro-

tected by the fifth amendment.

After Choate, this Court reaffirmed that restrictions

on alienation and tax exemptions are distinct, and that

while tax exemptions are protected property rights, re-

strictions on alienation are not. See Williams v. John-

son, 239 U.S. 414 (1915); see also United States v.

Benewah County, 290 F. 628, 631 (9th Cir. 1923). In

other decisions, this Court has repeatedly approved con-

gressional removals of restrictions on alienation without

the consent of the allottees.11 These decisions make it

manifestly clear that the unilateral removal of restric-

tions on alienation by Congress infringes no constitu-

tional right of the allottees.'*

11 See Jones v. Prairie Oil & Gas Co., 273 U.S. 195, 199 (1927)

(Justice Holmes held that “[i]t is not open to dispute that the

removal . .. of the restriction upon alienation previously imposed,

is valid”) ; United States v. Waller, 243 U.S. 452, 459-60 (1917);

see also Fink v. Board of County Comm'rs, 248 U.S. 399, 404

(1919); United States v. First Nat'l Bank, 234 U.S. 245, 259

(1914).

12 Assuming for the sake of argument that consent by the allottee

to the removal of restrictions on alienation is required, subsequent

consent—evidenced by the sale or mortgage by the allottee of the

land covered by the patent—satisfies the consent requirement.

Since no court has ever held that consent by the allottee is re-

quired in order to remove restrictions on alienation applicable to

allotments, no court has ever considered directly what actions by

the allottee satisfy such a consent requirement. This Court has

considered a consent requirement in connection with the removal

of tax exemptions applicable to allotments, however, and ruled that

actions taken subsequent to the issuance of the fee patent can sup-

18

B. The Secretary of the Interior Acted Within His

Authority in Determining the Competency of Allot-

tees Based on Blood Quantum

The second major argument raised by the petitioners is

that the fee patents are void because the Secretary of the

Interior relied on factors such as the allottee’s degree of

Indian blood in making his determination whether to is-

sue a fee patent, rather than making an “individual” de-

termination of the allottee’s competency. The text of the

Burke Act, however, states simply that the Secretary is

authorized to issue a fee patent “whenever he shall be

satisfied” that an allottee is competent. The Act does not

require an individual determination of competency, nor

does it impose any other limitations on the Secretary’s

discretion in “satisfying” himself that an allottee was

competent.

During the forced fee policy period Congress itself used

degree of Indian blood as an indicator of competency,”

ply the requisite consent. See County of Mahnomen v. United

States, 319 U.S. 474, 477-78 (1943); see also United States v.

Frisbee, 165 F. Supp. 883, 889-91 (D. Mont. 1958); United States

v. Glacier County, 74 F. Supp. 745, 749 (D. Mont. 1947). If an

allottee can subsequently consent to the removal of a tax exemption

covering an allotment, it follows that an allottee can subsequently

consent to the removal of restrictions on alienation applicable to

an allotment.

Congress has also viewed subsequent consent, as evidenced by

actions such as the voluntary sale or mortgage of patented lands, as

sufficient to satisfy any consent requirements. See 25 U.S.C.

§§ 352a, 352b (1982); H.R. Rep. No. 1896, 69th Cong., 2d Sess. 2

(1927) (“[p]lacing a voluntary encumbrance upon or disposing

of land so patented must in law be considered as an acceptance of

the fee patent and a waiver of the tax-exempt privileges of a trust

patent... .”); H.R. Rep. No. 2269, 71st Cong., 3d Sess. 3 (1931)

(where patented land “had been either mortgaged or sold by the

Indian to whom the patent was issued, that such mortgage or sale,

as the case might be, would amount to an acceptance of the patent

and that he could not be heard to say that such patent had been

improperly issued”).

138 See Act of May 27, 1908, ch. 199, 35 Stat. 312 (distinguishing

between lands held by individuals with varying degrees of Indian

19

and this Court upheld the practice. See United States v.

Waller, 243 U.S. 452, 462 (1917); see also United States

v. First National Bank, 234 U.S. 245 (1914). The deci-

sion in Waller demonstrates that the Department’s

mixed-blood policy under the Burke Act was within the

Secretary’s authority.

Petitioners rely on two decisions of the Eighth Circuit,

United States v. Debell, 227 F. 760 (8th Cir. 1915), and

Baker v. United States, 276 F. 283 (8th Cir. 1921),

to support their-argument that the Burke Act required

an individual determination of competency. Cert. Pet.

at 18-19. Apart from the fact that the Eighth Circuit

itself did not view its decision in the instant case as in

conflict with these prior decisions, the petitioners’ reli-

ance on these decisions is misplaced because neither holds

that an individual determination of competency is nec-

essary and both support the dismissal of the forced fee

claims against the non-federal defendants.

In Debell, a decision that antedated the forced fee pol-

icy, the Eighth Circuit determined what constituted com-

petency for purposes of the Burke Act, but did not ad-

dress what procedural steps, if any, the Secretary of the

Interior was required to use in order to determine com-

petency. The fee patent at issue in Debell, which was

predicated upon a competency determination based on

fraudulent representations and upon a substantive com-

petency standard that the court found erroneous as a

matter of law, was subsequently transferred to an inno-

cent purchaser who had no notice of these defects. The

court ruled that the purchaser was protected by the bona

fide purchaser doctrine and stated that

the United States and all parties claiming through or

under [the patent] are thereby estopped from assail-

ing the patent or the title under it as against such an

innocent purchaser. The title of a bona fide purchaser

blood in establishing procedures for removal of restrictions on

alienation) ; Act of June 21, 1906, ch. 3504, 34 Stat. 325, 353 (re-

quiring applications by full-blood Indians but not mixed-blood In-

dians for the removal of restrictions on ali. nation).

20

of land subsequent to the issue of the patent is

superior to the equitable claim of the United States

to avoid it for fraud or error of law in the issue of it.

227 F. at 763. The Debell court stated that the con-

veyance from the allottee to Debell, the party involved in

the fraud, “was voidable, but it was not void because

the United States had issued to [the allottee] its patent

in fee simple.” Jd. at 771.

Baker, the other case relied upon by the petitioners,

involved the issuance of fee patents to heirs of Indian

allottees after competency determinations based upon

fraudulent information. While the Eighth Circuit upheld

the criminal convictions of the fraudulent parties, it also

stated that the United States could recover the title to

the lands only “if the title had not in the meantime

passed into the hands of an innocent purchaser.” 276

F. at 285.

Debell and Baker do not support the petitioners’ asser-

tion that erroneous competency deternfinations render fee

patents void. These decisions instead support the Eighth

Circuit’s determination that the forced fee patents were

at most voidable and that the forced fee claims should

not be permitted to proceed against the non-federal de-

fendants, who are innocent purchasers.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

WILLIAM T. FINLEY, JR.

Counsel of Record

DAVID F. B. SMITH

KEVIN W. MCLEAN

PIERSON SEMMES AND FINLEY

1054 Thirty-first Street, N.W.

Washington, D.C. 20007

(202) 333-4000

Attorneys for Amici Curiae

August 7, 1987