Petition for Writ of Certiorari — Arenas v. United States

cee WRT SE Office -

LEE ARENAS,

_ Petitioner,

Vs.

: _THE U NITED STATE S OF AMERIC ‘A.

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE NINTH —

: J Joun W. Preston, |

Counsel for Petitioner.

CCT 29 13

SUPREME COURT OF THE UNITED STATES ew

— *, ‘OCTOBER TERM, 1943

~ No. 463

PETITION FOR WRIT OF CERTIORARI TO THE

INDEX. ..

SUBJECT ™ INDEX.

Petition for writ of certiorari— aor

| EP CPE ET Ere Seer Te veya

J urisdiction See ee ea i tai Tabauhs oe Sex

Summary statement.... ................... eet

. Holding of Circuit Court of iia, Miganaa hace

Sense sn nents

>

The questions involved’. ..... bceeE Rade es Prks i

Reasons relied on for the allowance of the writ...

I. The decision of the Circuit Court of ct

rests-upon St. Marie v. United States, 108 F.

2d 876, which is in. conflict with applicable

Acts of Congress and the decisions of this

Court and other Circuit Courts of Appeals. .

A. (Errors below in holding that St. Marie |

v. United States, 108 F. 2d 876, is con-

trolling of this case) Peay TP Sao

& The St. Marie Case is clearly diz

-«

2. The decision of the Circuit Court

in St. Marie v. United States, 108

F. 2d 876, is in conflict with the

applicable acts of Congress and

the Decisions of this Court and of

other Circuit: Courts of Appeals. .

B. (Error below in holding that the federal

authorities are not estopped to question | -

the validity of petitioner’s right and

equitable title to the lands selected for

allotment by him)... .. PR rae

- II. The law does not authorize the Secretary of

the Interior to withhold a trust patent from

a qualified allottee who has established a

ss -equitable right thereto....... eee

8630"

.

-ease at-bar:—-- 6

-eunalen ean enero —— of Appeals-for the Ninth. ae

“Ll

14

ee

ii uate . INDEX

A. -_ the. enactment of he Mission _a

Act and the Amendments thereto (Act

of January 12, 1891, Ch. 65, 26 Stat.

' 712; Act of March 2, 1917, Ch. 146, 39

ngress obviously

intended that when an allotment was

selected by and scheduled to a qualified

Mission Indian, under the supervision

of the Secretary of. the Interior, there

a was thereby vested an equitable right .”

~ in the allottee of which he could not be

deprived by the failure of the Secretary

Mes oa - to comply with the direction of these

ae eee: ER Iter eee

ag : ~B. (Petitioner has done everything which .

the law, required him to do, and. his .

equitabie right and title to the lands -

selécted, surveyed, scheduled and cer--

‘ified cannot be defeated by the failure

or neglect of the Secretary of the In-

‘terior to ae, t eater aS 16

TE eo he ca: ton ahs ee ae ee ets 19

° TABLE OF CASEs Chena,

= ili Frost, 216 U. S. 240, 54° L. Ed. 464....... - 15,17

Barney v. Dolph, 97 U. S. 652, 24 ?. = “ 18,17

Beam v. United States, 162 Fed. 260........... tre Sactanct 15

Bonifer v. Smith, 166 Fed. [3 ear CTT ae

Bronson v. Wirth, 17 Wall. 32, 21 L. Ed. 566. Rimi aw ho =

Cornelius v--Keésel, 128 U, S. 456, 32 L. Ed. 482...... 15,17

Hannibal & St. Jo. R. R. Co. v. Smith, 9 Wall. 95,19

ge ad ee ee ia 2 - 13,17

Hooks v. Kennard, 28 Okla. 457, 114 Pac. 744........ 15

" Hy-Yu-Tse-Mil-Ken v. Smith, 194 U.S. 401, 48 L. Ed.

P 1039. ERPS SSP ERR 7 DPI area a

Lytle. Arkansas, 9 Howard 314, 13 L. cs aa 15,17

Millet +. Bilby, 110 Okla. 241, 237 Pac. 859....... J. See

Mullen v: United States, 224 U. S. 457, 56 L. Ed. 834.. 16

‘Parr v. United States, 153 Fed. 468... ~. POPU eee Pe 15

- Payne v. Central P. R. Co., 255 U.S. 228, 65 5 L. Ed. 598. 15

INDEX == a

Page

Payne v. New Mexico, 255 U: 8. 367, 65 L. Ed. 680.. , 15, 17

Pomeroy v. Wright, 2 Land Dec. 166. . Tie.

_ Raymon Bear Hill, 52-Land Dec. 688, a3 .;°..,. Ba

~. Reynolds v. Brooks, 49 Okla. 188, 195, 152 Pac. 411.. ‘/ iF

Simmons v. Wagnér, 101 U. S. 260, 25 L. Ed. 910..... 16

- Smith v. Bonifer, 132 Fed. 889, 891, 154 Fed. 883, 887.. 15,17..

Stark v. Starr, 6 Wall. 402, 18 L. ‘Ed. eae k ec is ; 16

State v. Horr, 165 Minn. 1, 205-N. W. 444..........:. 12

— St. Marie v. United Sates, 24 F. Supp: 237,108 F. 2d

ee OE a es bs c's 5,8

Thomason v. Wellman & Diite, 206 Fed. 895.. - 15,16

United States v. Big Ben Transit Co., 42 F. Supp. 459,474 12

+ United States v. City and County of San Francisco, 310

Fee ee | Ree reer are -12

United States v. Denver & R. G. W. R. Co., 16 Fed. 2d

Nea ee ines eee ee Sit | tes Gas G's. 6 (12,13

United States v. Pane: 284 Fed. 827 :. RS, 17.

Utah Light & Power Co..v. ‘United Sai, 243 U. S. 339,

i | ERRNO A Et Grade x Od parame y reer ae 5,12

Van Wyck v. Knevals, 106 U. 8.367, 27 L. Ed. 201, 203.. 13,17

) Wallace v. Adams, 143 Fed. 721, 74 C. C. A. BAO. . err 16

+ Yuma v. Schlecht, 262 U. Ss. 138, 67 L. Ed. 909. Ria bias ‘, ot 12

| \ Texts. Cirep.

49 Am. Jur. 698, Sec. 160. . 2... ee eee cane. ee ks 12

31. C.J. 8. 411,.Sec. Sorc e pucaran arc’ knee sae nes 12

10.R. C. L. 704, See. 31, ae el ae vais Sis. * ae

STATUTES CITED.

Act of January 12, 1891 (Mission Indians Act)... .. ae

Act’ of February 8, 1887 (General Allotment Act)..... ‘2

Act of March 2, 1937 (Amending Mission Indians Act). 2,15

Act of February 14, 1923 (Making General Allotment

Act’ applicable to Mission Indians).......... Lae a Se

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 143

— .

—

¥

No. 463 i

LEE ARENAS,

vs.

Petitioner,

THE UNITED STATES OF AMERICA.

PETITION FOR WRIT OF CERTIORARI TO THE

FOR THE NINTH aaanes

To the Honorable the Chief Justice and the —_— Jus-

tices of the Supre me Court of the United States:

(R. 61-64), respectfully prays that a writ of certiorari issue

to review the judgment of the United States Circuit Court

of Appeals for the Ninth Circuit entered in the above en-

titled cause (R. 59) on the 30th day of June, 1943. A. peti-

tion for rehearing was filed on the 28th day of July, 1943

(R. 77), and a rehearing was denied by said Court on the

4th day of August, 1943 (R. 77), and the judgment of said

Court i is final.

dg.-

Petitioner, Lee Arenas, appellant in: the Court below

__UNITED STATES CIRCUIT COURT OF APPEALS

2.

The - Circuit Court of Appeals - ‘the Ninth Cireuit

ae rendered one opinion in the case, which is not yet reported.

‘ A copy of said opinion is set forth in the Appendix, p. 19.”

ee:

240 of the J udicial Code, as amended by the ‘Act of Febru-

ary 13, 1925 (28 U: S. C. A. See. 347 (a)).

ae

Statutes Involved.

The statutes involved are: (1) The Act of January. 12,

1891 (Ch. 65, 26 Stat. 712), known as the Mission Indians _

Act; (2) The General Allotment Act of February 8, 1887

(Ch. 119, 24 Stat. 388, 25 U.S. C. A‘, See. 331, et seq.) ; (3)

The Act of March 2, 1917 (Ch, 146, 39°Stat. 969, 976), amend-

iug said Mission-Indians Act; and (4) The Act of February |

14, 1923 (Ch. 76, 42 Stat. 1246, 25°U. S. C. A., Sec. 335), -

makiog the-General Allotment Act applicable to the i

. sion Indians. Pertinent parts of these Acts are set forth .

in the Appendix, pp. 20-23. Other. statutes, incidental to .

the foregoing, will be referred. to herein.

Summary Statement.

Petitioner brought this suit in the District Court of the.

United States for the Southern District of California to -

secure a judicial determination of his. right to an allotment

of tribal lands, under Section 345 of Title, 25 U. S*C.-A.

_ {31 Stat. 760) (R. 2-48). The complaint alleges: That peti-

_tioner is-a full. blood Mission Indian and is a member of the ©

Agua Caliente (Palm Springs) Band of. Mission Indians of

_ California; that he was born and has ever‘since lived-upon

the Palm Springs Indian Reservation, and has at all times -

3

kept and maintained his tribal relationship, membership

‘and enrollment in said Agua Caliente (Palm Springs) Band

of Mission Indians; that he has at all times kept and main-

tained his home and residence separate and apart from any

tribe of Indians on said Reservation, and throughout his

entire life has adopted the habits, ways and methods of

civilized life (R. 2-4); that he is able to read and write the

' English Ilanguage, possesses'a degree of education and in-

.+ telligence above the averagé of any. race, and since Febru-

~ ary 8, 1887, has been entitled to all of the rights, privileges

-. and immunities of a citizen of the United States and of the

heritage of his Indian ancestry (R. 2-3); and that, he is

entitled to a trust patent to certain lands, specifically de-

‘seribed i in.the complaint, from the United States of America

(R. 47). The complaint further alleges that, in accordance

with Acts of Congress (Appendix pp. 20-23) the Secretary

of the Interior, on or about June 7, ‘1921, determined that

the Palm Springs Band of Mission Indians, including peti-

tioner, were so far advanéed in civilization and had so far

~~adopted the habits and wavs of civilized life as to be

. capable of owning and managing land in severalty (R. 3-4) ;

that shortly thereafter said Secretary of the Interior ap-

- pointed a Special Allotting Agent.to make or cause tobe

~ made allotments: of f land situated within the Palm Springs

Indian Reservation t to such of the Mission Indians, includ-

_ ing petitioner, as made or might make selections for allot-

ment in severalty to the duly and regularly enrolled mem-

bers of said Band .(R. 3-5) ; that; pursuant to said action and

said Acts of. Congress, petitioner selected: the lands de-

scribed in the complaint (R. 4) and said Special Allotting

Agent, thereupon allotted the lands so selected to petitioner

and issued to petitioner a certificate of ‘*Selection for Allot-

ment”’ covering said lands. (R. 4-9) and in evidence thereof

inscribed said selection for allotment on the Official Special

Allotment Schedules, and thereafter certified: said selection ~

'

. 4.

‘ °

for allotment, and other such selections, and said Schedules « °

to the Secretary of the Interior (R. 4-5); and that said ‘

Secretary thereafter, on or about October 26, 1923, in: -—

structed said Special Allotting Agent to put petitioner and

other allottees in physical possession of the properties~

selected by them, respectively, for the use and enjoyment —

thereof (R. 10-11). for agricultural and other purposes. *

The complaint: further alleges that thereafter -petitioner

took sole and exclusive possession of the lands selected by

and allotted to him by said Special Allotting Agent, and

with the knowledge and consent of and upon encouragement °

by said Special Allotting Agent, petitioner made costly and

extensive improvements upon said lands of: the approxi-

mate value of Fifteen Thousand Dollars'($15,000.00) which

otherwise he would not have made, and that- by reason

thereof the respondent United States of America is

estopped to deny that petitioner acquired and now has

equitable title to said lands (R. 11-15). Petitioner prayed

that it be adjudged and decreed that he is vested with equi-

table title to said lands, that hé is entitled to a Trust Patent.

to said lands, that a copy of such judgment and decree of.

the Court be certified to the Secretary of the Interior of the

. ~ United States, and for his costs and such other and further ~

relief as justice and equity may reqnire (R. 44-48).

' The United States of America thereupon filed motion for

-dismissal of said complaint or, in the alternative, for. a sum.

mary judgment, upon the files, records and pleadings in

this case and upon the files, records, pleadings and further

ptoceedings in the case of Geneviere St. Marie v.-United 5

States of America, et al., filed in the same District, num-

* bered_Eguity 918-Y therein, reported in 24 F. Supp. 237,

and, upon appeal reported in 108 F. 2d 876. -Upona hearing |

of said motion to dismiss, or fot summary judgment; the |

District Court grgnted the motion for a summary judgment |

. z f

5 e

upon the ground that the issues raised herein had been

previously decided adversely to petitioner's contention in’

| St. Marie v. United States, supra (R. 59-60). Petitioner

appealed from said. judgment to the Circuit Court of Ap-

_peals for the Ninth Circuit (R. 61-69) and said Court, in a- .

one-page opinion, affirmed the judgment of the District

Court ppendix p. 19).

- Holding of the Circuit Court of Appeals.

The Cireuit Court of Appeals held that its decision i in the

case of St. Marie v. United States, 108 F. (2d) 876, must be

followed, and that said decision held ‘‘that until the Secre-

tary of the Interior approved the alleged allotments there

’ was no right thereto vested in the alleged allottee.’’ The

Court further held that there can be no > estoppel on the part

_. of the federal authori rities to question ‘the validity of the

on —-

alleged allotment fo petitioner, citing Utah Power & Light

Co. v. United States, 243 U. S. 389, 61 L. Ed. 791, and. Yuma

Couyty Water Users’ Association v. Schlecht, 262 U.S. 138,

67 L. Ed. 909, in Support | thereof. Petitioner respectfully

asserts that sat holding is contrary to well-recognized |

petncipios of law. -

‘The principal questions here involved are:

1. The decision of the Cireuit Court of Appeals is con-

trary té the applicable Acts of C ongressand to the decisions

of this Court and other Circuit C ourts of Yppeals.

2. Under the facts pleaded in the complaint the United .

States of America is estopped to deny the power and the

duty of the Secretary of the Interior to issue a frust pat-

ent to petitioner to the lands selected for allotment by him.

3. The United States of America is estopped by reason,

_ . Of the laches.of the Secretary of the literior, in withholding

20

‘

6

formal approval of petitioner’s selection for allotment, to

deny petitioner’s eet right and title to the lands

selected by him. Ns

“

+

4. The law does not authorize the Secretary of the In-

terior to withhold a trust, patent from a qualified allottee

who has established an equitable right thereto.

5. The petitioner has done everything which the Acts of .-

Congress and law réquiré him to do to attain his right to a.

trust patent to the lands selected by him for allotment, and

the neglect or failure of the Secretary of the Interior to

issue such patent does not defeat petitiéner’s right thereto.

- Reasons Relied On for the Allowance of the Writ.

The Decision of the Circuit Court of Appeals In This

Case was Rendered upon the sole Authority of its Decision

. in St. Marie v. United States, 108 F., 2d_876, and That De-

_ cision is in Conflict With the Applieable Acts of Congress

and the Decision of This Court and Other Circuit Courts of

Appeals. . |

(Errors below in holding that St. Marie v. United States,

108 F.2d 876, is controlling of this case.)

1. The St. Marie case, supra; is clearly distinguishable

from the case at bar. ° :

Reference to the one-page opinion of the-Cireuit Court of

_ Appeals shows clearly that the decision of that Court rested

almost entirely upon its decision in the St. Marie case,

“ supra. The St. Maric case is distinguishable-from the case

at bar. Moreover, the decision of the Cireuit Court of

- Appeals in the St. Marie case is in conflict with applicable

law. Pare |

| of the Department of the Interior.

7

In the.St. Marie case, supra, the Circuit Court of Appeals |

held that ‘‘there had been no determination that the (Mis-

sion) Indians in question were sufficiently advanced so as

’ to comply with the act, and the approval of the Secretary

was lacking, 24 F, Supp. 240." (108'F. 2d 876,879.) This

conclusion was reached by the District Court after a trial on

the merits. The Cireuit Court of Appeals: affirmed the

- judgment of the District Court.

In the case at bar there was no trial, on the wins:

instead, a summary judgment was rendered upon motion of

respondent for dismissal ‘of the complaint or for a sum-.

mary judgment (R. 48-49, 59-60). Such a motion admits

the truth of the facts alleged i in the.complaint. -The com-

plaint in this ¢ase alleges inter alia: That ‘“‘the Secretary

* * * did, on or about,

to wit, the 7th day of June, 1921, determine that, in his

opinion, the aforesaid Band of Mission Indians, inéluding °

- complainant, were so far advanced in civilization and had so

far adopted the life, habits and ways of civilized life’as to

be capable of owning and managing lands in severalty”’

(R. 3-4); and that, pursuant to such*determination and

the Act of January 12, 1891, as amended, the Secretary

_of the Interior appointed one’ H. E. Wadsworth Special

. Allotting Agent at Large for, the Mission Indians of Cali-

' fornia, and ‘‘that said H. E. Wadsworth, as.such Special |

' Allotting Agent at Large, of the Department of the Inter- .

ior, surveyed and classified, the lands of said Band of Mis-

sion Indians, contained within the limits and boundaries of ©

‘ said: Indian Reservation, and did allot to your complainant -

m severalty * * * the’following * * *’” (R. 4-9).

(Italics ours.) It thus appears that there was a deter-

mination by the Secretary of the Interior that Petitioner —

" had capacity to own and manage tands in severalty. But,

‘ even if the Secretary had not made such a determination, - °

the Congress had already made the necessary determina-

/ ‘

/ 4

8

"tion, by the Act of March 2, 1917 (Appendix p. 22) and

had: thereby imposed upon the Secretary the mandatory

duty of making allotments in sev eralty to the Mission In-

dians. (Ibid.) .

It is clear froin the foregoing that the St. Marie ¢ case,

even if sound, is distinguishabie from the case at bar.

2. The décision of the Circuit Court of Appeals for the .

Ninth Circuit in St. Marie v. United States, 108 F. 24.876, is

in Conflict with the Applicable Acts of Congress and the

Decisions of this Court and- - other Circuit Courts of

Appeats. Sis .

_ The decision of the Ciréuit Court of Appeals in St. Marie

v. United States, 108 F.'2d 876, was by a divided Court,

Judge Garrecht dissenting from the majority decision (108 .

- F. 2d 881-897) in a-very able and comprehensive opinion

wherein the various applicable Acts of Congress and Court

decisions are collated, discussed and applied to.the facts of

- that case. Much of that dissenting opinion is applicable to

the case at bar._It is especially valuable in its discussion

and’ construction of Congressional legislation providing

for allotment of lands in severalty to the Mission oe

and its reasoning is sound and convincing. —

The Mission Indian Act (Aet of January 12, 1891)==(see

Appendix pp. 20, 21) provides (Sections 2 and 3) for the

selection of reservations by commissioners appointed for -

that purpose for the various bands of Mission Indians of

California, for the certification of such selections to the

Secretary of the Interior, and, if no objections are filed, to

the issuance of a patent to each band in trust for a. period

of twenty-five (25) years. Section 4 of the Act (Appendix

p. 21) provides ‘‘that- whenever any of the Indians Ie pow

shall, in the opinion of the Secretary of the Intéripr, be so

advanced: in civilizaticn’ as te-be-capable of owning and _

managing land in severalty, the:-Seeretary * / * -may

; a

2

eause allotnients to be ale to such Indians * * oo

_ From these provisions it is apparent that the issuance of

patents to individual Mission Indians rested within the dis-.

cretion. and judgment of the Secretary during said period

of twenty-five years. .Some individual allotments were

made under these provisions of the Act.

Shortly after the expiration of the twenty-five year

period prescribed in the Act, during which the United

States should hold in trust for each Band of Mission In- -

dians the lands selected by the commissioners, the Congress

amended the Mission Indian. Act by the Act of March 2 2,

1917 (Appendix, p: 22) as follows: ‘‘Provided, that the

Secretary of the Interior be, and he is hereby, aithesiend

and directed to cause allotments to be made to the Indians

belonging to and having tribal righis on the Mission In- |

dian reservations in the State of California, in areas as

provided in section seventeen of the Act of June twenty-

fifth, nineteen hundred and ten: * * * instead of as

provided in section 4 of the Act of January twelfth, eighteen

hundred and ninety-one.- * * .*’’ (Italics ours.) This ©

* amendment, as indicated by the italicized portion thereof,

supra, shows clearly: (1) That the Congress itself thereby

determined that the Mission Indians were sufficiently ‘ad-

~yanéed in eivilization to warrant allotments to them in

severalty, and (2) that the Secretary of the Interior no

-longer had discretion but that thereafter it was his manda-

tory duty to make allotments and issue patents ‘to these

Indians in severalty. The majority opinion of the Circuit

Court of Appeals (108 F. 2d 881) refers to the foregoing:

interpretation of the Act of March 2, 1917, but makes no

decision thereon, merely say ing: ‘‘Since this is not a pro-

ceeding to eompel action by. the Secretary, we need not

decide which meaning is correct.”’

Following the. passage of the amendatory Act of Mareh

2, 1917, the Secretary of the Interior np diteienaah a Special “

ir

10

Allotting Agent to survey and make selections for allot-

ment of lands in severalty for the Mission Indians, and

such surveys and selections were duly made, and certifi-

-eates issued to the Indians accordingly. These acts of the

' Secretary and the Special Allotting Agent are utterly mean-

ingless, except as being in performance of the mandatory .

duties imposed apon the Secretary by said Act.. The very

— of the Mission Indian Act and. the Act-ef Mareh

2, 1917, supra, that is, to allot lands to the Mission Indians -

in severalty, was thus carried out. :

That the Act of March 2, 1917, imposed a mandatory duty,

and not mere discretion, a the Secretary of the Suisiiet |

to make’ allotments and issue patents in. severalty to the»

_ Mission Indians is clearly indicated: in a communication

from the Secretary of the Interior, signed by the Assistant ‘

Secretary, to the Attorney ‘General of the United States,

saying: i

‘*As to the allotment feature of the situation, we are *

confronted ‘with the provision in the act of March 2,

1917 (39 Stat. 976), amending Section 3 of the act of

January 12, 1891 (26 Stat. 712), so as to direct the

Secretary of the Interior to. make allotments to the

‘Indians of the Mission Reservations in California in :

_areas as provided in section_17_-of -the-aet-of June 25, :_

~ 1910 (36 Stat: 859), rather than as provided in section

4 of the act of January 12, 1891, supra; in other words, -

usually regarde das mandatory rathe r than discretion-—

ary. le ‘gislation.’’ (¥talies ours.)

See dissonting.opinion; 108 F. 2d 890.

| The -Attorney. General, in this connection, wrote to the

_ United States District Attorney at Los Angeles in part.

as follows:

‘Moreover, in view of the present status of the law

“on the subject it is not quite certain whethéy the Gov-

ernment, could successfully resist the action of these

~~~ E

11

or any other individual insaihiane of the tribe (Mission

- Indians) for allotments within said’ reservation.’

(Ibid.)

; ‘Furthermore, the certification of the allotment: schedul

. by the Special Allotting Agent-shows that the Act of March

~ 2, 1917, as well as the General Allotment Act, was followed

in making the selections for allotment. ‘That certification

is as follows: ' ;

- ‘*Palm Springs, California,

‘May 9, 1927.

‘“‘This is to certify that listings of allotment selec-

tions for the Indians of Palm Springs (Agua Caliente)

_. Indian Reservation, Calif., began on June 1, 1923, and °

the same were completed on May 9, 1927; and that it is

_ further certified’ that the allotments shown hereon were

‘made in. accordance ‘with the provisions. of the act. of

Congress of “February 8, 1887 (24 Stat. L. 388), as

amended by the act of June.25, 1910 (36 Stat. L. 855),

and suppleniented by the act of March 2, 1917 (39 Stat.

L 969-76). *

= “OH, KE, WapswortH,

- i ‘‘Special Allotting Agent. ° *

$C, L. Exuis, | |

Superintendent Mission Indian

The w ording of. the Acts of Congress and the interpreta-

tion placed thereon by Administrative officers, supra,

show that the decision of the Cireuit Court of Appeals in

St. Marie v. United States is.in conflict with said Acts, is -

unsound, and should not have been follow ed ih the case at

bar.

, | a a

(Error below in holding that the federal authorities are

not estopped to question the validity of petitioner’s right

and equitable title to the lands se lected for allotment by

him.) .- pie os

ae Aeency, Calahinaga® (108. F.2d 879.) — —— ae

*.

Sd

(+12 . :

~The Court indie held that there i is no mertttn the estop-

pels pleaded by petitioner in his complaint, citing in sup-

_pert thereof Utah Prd Lt. Ce 0. Vv. ie "nited States, 243 U.S.

389, 61_L. Ec : > 262 ; Fr

67 L. Ed. 909. J These cases are aia in point; but rok: anil

the prepasition that “the United States is neither bound

‘nor estopped by acts of its officers. or agents in entering —

into an arrangement or agreement to do or cause to be done

what the law does not sanction or permit.”’ (Utah Lt. &

_ Pr. Co. v. United: States, supra.) (Italics ours.) But in

the case at bar the law (Acts of-Congress, supra) not only-

: sanctioned but directed the Secretary of the Interior to do

the pets relied on by petitioner for estoppel. The two

cases cited, supra, do not support the Court’ s holding. See —

United States v. Big Bend Transit Co., 42 F. Supp. 459,

474;-United States v. City aid County of San Francisco,

310 U. S. 16; 60S. Ct. 749, 757, 84 L. Ed. 1050.

It is conceded that the United States may not be estopped

to exercise its: sovereign powers. But, in respect of. the

acts and omissions any peesae of in this case, the United

States was acting, not as ‘a sov ereign, but as a fiduciary

or trustee for the ea Indians, including petitioner:

Under the authorities, it may be estopped in the latter

_3- eanacity (See, 29-Awi-Fier-822-36e- 169; 31 C. J. S. 411, —

ke - , See. 140; 10 R.C. L. 704, 705, sees. 31, 32; Bronson v. Wirth,

17 Wall. 32, 21 L. Ed. 566; United States v. Denver & R. G.’

W.R.Co., 16 F. 2d 374; United States v. Big Bend Transit

Co.,42 F. Supp. 459; 19 Harvard L. Rev. 127; State v. Horr,

165 Minn. 1, 205 N. W..444.) The rule applicable here

- , is thus stated in 51 C. J..S. 411, see. 140:

_ “It has been broadly statéd that there ‘can be no

estoppel against the United States of a State. Never-

theless, subject to, limitations and exceptions consid-

Jered supra’ section. 138, it is well established that in a

‘proper. case’ the doctrine of equitable estoppel may

a

y, ne

apply as. against the federal and state. governiients,

and that under circumstances. which would estop a pri-

/ ‘vate individual an estoppel may be asserted against

<+—_the-Enited States, a state, or a State agency,. commis-

sion, or officer.”’

he United States v. Denver & R.G. W. ‘R. Ca. (8 Cir.),

16 F. 2d 374, supra, it was said:

‘‘The equitahle claims of the state or of the United

States:are no stronger than those of an individual

under like circumstances, and a state or the United

‘States may waive a*elaim and be estopped from the

assertion of a claim under circumstances that would

estop an individual from the assertion of a similar

claim. State of Towa v. Carr (C. C..A.), 191 F. 257,

266; United States -v. Chandler-Dunbar Water Power

Co.(C. C. A.), 152 F..25, 41; nited States v. Debell

(C. C. AL), 227 F. 775, 779; Ranneis v. Rowe (C. CLA. ),

145 F. 296, 301;,1 Pomeroy’ s Kq..Jur., See. 451.""

To like effect are Hannibal & St. Jo. R. R. Co. v. Smith, 9

Wall. 95, 19 L. Ed. 599; Fan Wyck v. Knevals, 106 U.S

367, 27 L. Ed. 201, 203 ; 2 Land Bee. 166; Bonifer v. sega.

166 Fed. 846, 849.;

es felbetitiey sagadinen of tact-in the complaint Tully ~

support the estoppels pleaded: Determination by Secretary

' of the Interior that Mission Indians are capable of owning

and managing their lands in severalty; order appointing

and authorizing Special Allotting Agent to survey or ‘cause

' to be surveyed Mission Indian lands and to select or: cause

to be selected for allotment such lands in sev eralty. to the

members of the Palm Springs Band of Mission Indians;

the actual survey and selection of said lands; the inseribing

of the selections made upon the Official Special Allotment

Schedules; the certification of said Schedules to the Seeré-~

tary of the Interior; the issuance of Certificates of ‘*Selec-

tions for Allotment’’ to the several Mission Indians mak-

14

‘ing such selections, including petitioner; repres ntations

and statements to petitioner by Special Allotting Agent

-that ‘‘patent in trast would issue to csstabaias (peti--

tiqner) covering said parcels of land. ° * * by reason e:

_of said selection, scheduling and certification for allotment**

(R. 12); placing petitioner in physical possession of: said

lands, upon order of ‘the Secretary of the Interior; per-

miiting and encouraging petitioner to make improvements -

on lands selected by him of the value of $15,000.00, whiel:

‘otherwise he would not have made; occupancy of said .

_ selected lands: by petitioner since October 26, .1923, under |

said proceedings and orders; and thereafter negligence:

and failure of Secretary of the Interior to issue patent in

trust to petitioner as authorized and directed by law (Act

of Congress, March 2, 1917, amending Mission Indian Act,

39 Stat. 969, 976), providing: ‘‘That the Secretary of the

Interior be, and he is hereby, authorized and directed to

cause allotments to be made to the Indians ‘belonging to

and having tribal rights on the Mission Indian reservations

of the State of Californa * * *” (Italics ours. )

in this connection, the estoppels pleaded by petitioner

also distinguish the case at bar from Sf Marie v. United

~ “States, supra. aay pe 7

i

The Law Does Not Authorize the Secretary of ee In-

terior toWithhold a Trust Patent From a Qualified Allottec

Who Has Established a Vested Equitable Right Thereto.

_ The determination made and the action taken by the

- Secretary of the Interior and the proeedure followed in the

' surveying, selection, scheduling and. certifying of peti-

tioner’s allotment was the inception of an equitable title

which vested in petitioner, and of which he cannot now be

deprived by failure of the Secretary to act. -This equitable

title is given added strength by the subsequent acts and.

o

15-

-omissions of ¢he Secretary over a period of many years; as

hereinbefore set forth. See Smith v. Bonifer, 154 Fed. 883,

887; Wyoming v. United States, 255 U. S. 489, 65 L. Ed. 742;

Payne v. New Mexico, 255 U. S. 367, 65 L. Ed. 680; Payne v.

Central P. R. Co., 255 U. S. 228, 65 L.Ed. 598; Raymon Bear

* Hill, 52 Land Dee. 688, 690; Parry. United States, 153 Fed...’

‘468; Thomason v. Wellman & Rhoades, 206 Fed: 895; Lytle

ie Arkansas, 9 Howard 314, 13 L. Ed. 153; Beam v United

States, 162 Fed. 260; Barney v. Dolph, 97 ©. S. 652, 24

i. Ed. 1063; Cornelius v. Kessel, 128 UJ. 8. 456, 32 L. Ed.

482; Ballinger v: Frost, 216 U.S. 240, d4 L. Ed. 464; Millet

v. Bilby, 110 Okla. 241, 237 Pac. 859; Reynolds v. Brooks,

. 49-Okla. 188, 195, 152 Pac. 411,413."

A.

- (In the enactment of the Mission Indian Act and the

_ Amendments thereto (Act of January 12, 1891, Ch. 65, 26

Stat. 712; Act of March 2, 1917, Ch. 146, 39 Stat. 969, 976) ©

the Congress obviously intended that when an allotment was

selected by and scheduled to a qualified Mission Indian,

~ under the supervision of the Secretary of the Interior, there

_was thereby vested .an equitable: right -in the allottee of

which he could not be deprived by the failure of the/Secre- —

tary to comply with the direction ef these statutes. )

It should be remembered the petitioner was entitled to

' land-in the Palm Springs Indian Reservation as a matter

of right. Selection of particular lands Was not the incep-

tion of his right but of his title thereto.’ See Hooks y. Ren-

nard, 28 Okla. 457, 463, 114 Pac. 744, 746; Re -ynolds v.

Brooks, 49 Okla. 188, 195, 152 Pac. 411, 413; and Parr v.

United States, 153 Fed. 468, where it was said: *

‘The word“allot’ as used in an act for the allotment

of lands to Indians in severalty * * * “is not a term) ‘

_ of sale or grant, but of apportionment of that to which '

the parties are entitled as of right.”* {Italics ours:)

: 16 :

And, in Millet v. Bilby, 101 Okla: 241, 237 Pac. 859, the

Court said:

. “The vight to the dlehnent already existed, and the :

United States, by the allotment or certificate, merely —

set aside to the Indian the land that was rightfully his,

after he had made his selection.’’ (Italics ours.)

- The allotment certificate, issued by the Special Allotting

- Agent-to petitioner, the inscription thereof upon the allot-

ment schedules, and the certification of these schedules to

the Secretary of the ‘Interior constituted a setting aside to

_ petitioner of the lands selected by him.as a-duly qualified

~ member of the Palm Springs Band of Mission Indians.

Petitioner’s equitable title to said lands thus became vested.

The fact that the Secretary of the Interior has not executed

formal approval or issued the trust patent, in ‘no way

affects petitioner’s equitable rights in the lands selected.

Thomason v. Wellman & Rhoades, 206 Fed. 895, 897; Mullen

v. United-States, 224 U. S. 457, 56 L, Ed. 834. ‘The execution

_and delivery of the patent, after the right to it is complete,

_ are mére ministerial acts of-the Secretary of the Interior. |

See cases cited, supra. It has long been the law that ‘when

the right to a patent once becaine vested *—* * it was |

equivalent, so far as the government was concerned, to a

patent actually issued.’’ Barney v. Dolph, supra; Simmons

v. Wagner, 101 U. S. 260, 25 L.\Ed. 910; Stark v. Starr, 6

Wall. 402, 18 L. Ed. 925; Ballinger v. Frost, supra; Wal-

lace -v. Adams, 143 Fed. 721, 4 C. C. A. 540; shomason \ v.

ee Rhoades, s supre.

iy es

(Petitioner has done everything which the law required |

-him to do, and his equitable right arid title to the lands —

selected, surveyed, ‘scheduled and certified cannot be de-

feated by the failure or neglect of the Secretary of the

Interior to act.)

17 . ;

See, Pomeroy v. Wright, 2 Land Dec. 166; Lytle v. Ar-

. kansas, 9 Howard 314, 333, 13 L. Ed. 153, 160; Hannibal ¢&

Si. Jo. R. R. Co. v. Smith, 9 Wall: 95, 19 L.Ed. 599; Van

eh Wyck v. Knevals, 106 U.S. 367, 27 L. Ed. 201, 203.

In Lytle v. Arkansas, supra, this Court. states the rule,

here invoked, as follows, p. 333 (L. Ed. 160) : ;

‘It is a well- established ‘principle; that where an .

+ individual in the prosecution of a right does every-

thing which the law requires of him to do, and he fails

to attain this right by the misconduct or neglect 0 of.a

_ public officer, the law will protect him.”’

To like effect are Pomeroy’ v. Wright, supra; Hansibal v.

Smith, supra, and Van Wyck-v. Knevals, supra; Barney v.

Dolph, 97 U. S. 652, 24 L. Ed. 1063; Cornelius v. Kessel,

*. 128 U. S. 456, 32 L. Ed. 482; Ballinger v. Frost, 216 U.S

240, 54 L.Ed. 464; United States v. Payne, (9 Cir.) 284 Fed.

827; Payne v. New Mexico, 255 U. S. 367, 65 L. Ed. 680; and

Smith v. Bonifer, 132 Fed. 889, 891, where it was further

said that ‘‘it is a familiar principle that ‘where one offer's

to do everything upon which a right depends, and is pre-

' vented by the other side, his. right shall not -be-lost by his

failure’. - The Yosemite éase, 15 Wall. 91, 21 LL: Ed. 82.""

; The rule stated in these cases, supra, was applied in the.

ease of ee Bear Hill, 52 L. D. 688, 690;'as follows :

sce *

- it may be said generally that it is well settled

that a Perce, to public land whe has done all that. is

. required under the law to perfect his claim, acquires

a right against the Government and that his right to a

legal title ts to be determined as of that time. -This rule

is based. on the theory that by virtue of his compliance

with the requirements, he has. an’ equitable title to the

land; that in equity it is his and the Govrenment holds

it in trust for him, although no legal title passes. 2

patent issues: Wyoming v. United States (255 U. 8.

eat Payne v. New Mexico (255 U. S. 367); Payne

. Central Pacific Railway Company (255 U. S. 298).

18 .

It would seem to follow that what is true concerning

* the equitable rights of an.entryman to public land is

also true as to the equitable rights of a qualified Indian

- to an allotment of tribal or resé¢rvation land. - In fact,

the position of a qualified Indian is stronger. than that

of an entryman of public land, for thé reason that he has

an inherent interest in the common property of his |

tribe.*’

See also-Hy-Yu-Tse-Mil-Ken v. Smith, 194 U. S: 401, 48

_L. Ed. 1039. .

Your petitioner preseyts to this Court, and files herewith

a duly certified transcript of the entire record of the case,

as the same appears in the Cireuit Court of Appeals for the

Ninth Circuit.

Wnenerorg, your petitioner respectfully prays that a writ

of certiorari may be issued out of and under the seal of this

»

Court to the Cireuit Court of Appeals for the Ninth Cir-

cuit, to the end that the judgment of said Cireuit Court of.

Appeals for the said Circuit i may be reviewed by r this Honor-*

able Court.

» Let Asause,

Petitioner,

By Joun W. Preston,

' Counsel for Petitioner.

ww

19

APPENDIX.

Opinion of the Circuit Court of Appeals ing the Ninth

Circuit. (Omitting captions}~ ,

“Upon appeal fromthe Distriet Court of the. United

States for the Southern District of California, Central

Division.

“ Before WilburDenman anid Mathews, Cirenit Julgia.

ee ILBUR, Circuit Judge:

“The appellant is a member of the Agua Caliente’ Band

of Mission Indians of the Palm Springs Reservation in

Riverside, California. He claims the right to certafn land

described in his complaint on the theory that the same ‘ms

been allotted to him by the Secretary of the- Interior. He

admits that the points raised by him were disposed of by

this cour} adversely to his claim in the case of St. Marie-r.

United States, 108 F. 2d 876. He claims, however, that

that decision was in error amd also that this case may be

distinguished from the former decision. uwpan the ground

that itis admitted in the case ‘at bar ‘that. there had been

a determination that the Indians in question were sufti-

__ eiéntly advanced so as to comply with the act’ under which

the allotments were made.. “That case was predicated pon

_- the theory That until the Secretary of Interior approved the ~

“alleged allotments there was no right thereto. vested in the

alleged allottee. In this case we follow the ame here.

* tofore made in the St. Marie case. ‘

“The appellant also urges that there is an-estoppel on

the purt of the federal authorities to question the validity

of the alleged allotment to the appellant. There is no merit

‘in this contention. Utah Pr. & Lt. Co. r. United States,

243 U.S. 389; Yuma r. Schlecht, 262 U.S. 138...

** Affirmed. é

Denman, € oncurring :

“] concur: . Congress ‘by the Act of June 18, 1934, 25

US. ¢C. A. 461, lias taken from the Sec retary of icadeiey

any ' power he theretofore. liad to allot lands, except with

-

- .

20

fan ,

the consent of the. tribe; such. consent not here known to

have been given. 25 U. S. C. A. 478(a). Unless Arenas

had some legal or equitable right to the lands he claims, of

which it would be a violation of the Fifth. Star nta to

deprive him, his claim here is invalid.

“The Act of March 2, 1917, 39 Stat. 969, 976, does no

more than change the acréage which the Secretary miay

allot under the Mission Indian Act of January 12, 1891,

26 Stat. 712. Under the latter Act the Indian has no such

right of selection for the allotment and no such property

right. in the selected land as was given the Indians under

the General Allotment Act of 1887, or its amendments, 25

- U.S. C. A. 331, 332, and as recognized in Sec. 1 of the Act

of 1894, 31 Stat. 760, 25 U. S. C. A. 345, and in such cases

as Hy-Yutse- Mil- Kin v. Smith, 194 U. S. 401.

‘Under the. Mission Indian "Act a selection, made by the

. Secretary as’a step in the allotment of land to some Indian, :

was not binding on the -gov ernment. The Secretary could

have made: sonie- other seleeti :

|

Indian? Only when an giatieent 9 was made did. the allottee

acquire any right inthe land. Since there was no such

action in Arenas’ favor ‘prior to 1934, he has ‘no property

‘right of any kind of which it could be construed that the.

Constitution forbids taking from him by the 1934 Act. -

‘*(Endorsed:) Opinion and Coneurring Opinion. Filed —

Jun. 30, 1943. Paul P. O’Brien, Ch .”*

Mission Indian Act.

The Act of January 12, 1891 (Ch. 65, 26 Stat. 712), omit-

ting caption, provides in part as follows:

‘*See. 2. That it shall be the duty of -said commis-

sioners to select a reservation for each band or.v illage

‘ of the Mission Indians residing within said State,

which reservation shall include, as far as practicable.

the lands and villages which have been in the -actual

occupation and possession of said Indians, and, which

shall be sufficient in, extent to meet their just require. |

ments, which selection shall be valid when approved by

the President and Secretary of the Interior * *

21

- **See..3. That the commissioners, upon the comple-

tion of their duties, shall report the result to the Secre-

tary of the Interior, who, if no valid objection ‘exists,

shall cause-a patent to issue for each of the reserva-

‘tions selected by the commission and approved by him

in favor of each band or village of Indians qecupying

any such reservation, which patents shall be of the.

legal effect, and declare that the United States does and

will. hold the land thus patented, subject to the pro- _

visions of section four of this act, for the period of —— .-

twenty-five years, in trust, for the sole use and benefit

‘of the band or village to. which it is issued, and that at

the expiration of said period the United States will

- convey the same or remaining portion not: previously

patented in severalty by patent ‘to said band or village,

discharged of said trust, and free of all charge..or

incumbrance whatsoever: * * *

ing ‘upon any reservation patented under the pro-

visions of this act shall, in the opinion of the Secretary

of the Interior, be so advanced in civilization as: to be

capable of owning and managing land in severalty, the

Secretary of the Intérior may cause allotments to be

niade to such Indians, out of the land of such reserva-

. tion, in quantity as follows: * * *:

-¢See. 5. That upon the approval ‘of the allotments

provided for in the preceding section by the Secretary

of the Interior he shalf cause patents to issue therefor

in the name of the allottees, Which shall be of the legal

effect and declare that the United States does and will

hold the land thus allotted for the period of twenty-five

years, in trust for the sole use and benefit of the Indian -

to whom such allotment shall have been made, or, in

case of his decease, of his heirs, according to the laws —

of the State of California, and that at the expiration of

said period the United States will convey the same by

patent to the said Indian, or his heirs as aforesaid, in

fee, discharged of said trust and free of all chargé ‘or

incumbrance whatsoev eo ;

? 22

Amendment of Mission Indian Act.

‘ The Mission Indian Act was amended by ‘the Act of-

March 2,'1917 (39 Stat. 969, 976) as follows:

‘*Provided, that the Secretary of the Interior: be,

and he is hereby, authorized and directed to cause allot-

ments to be made to the Indians belonging to and. har-

ing tribal rights on the Mission Indian Reservations in —

the State of California, in areas as provided in section

seventeen of the Act of June twenty-fifth, nineteen

hundred and ten (Thirty-sixth Statutes at Large, page

eight hundred and fifty -nine),.instead of as provided

in section four of the Act of January twelfth, eighteen

hundred and ninety-qne (Twenty- sixth Statutes at’

Large page seven hundred and thirteen): Provided,

that this act. shall not affect any allotments heretofore

patented to these Indians:’’ (Italics ours.)

General Allotment Ak

The Act of February 8, 1887 (Ch. 119, See. 1, 24 Stat. 38s)

us amended by the Act of February 28, 1891 (Ch. 383, Sec..1,

26 Stat. 794) and by the Act of June 25, 1910 (Ch. 431, See.

17, 36 Sta‘. 859). is codified in Title 25 b S. C. A., Section

- 331, as follows:

‘**TIn all cases-where any tribe or band of Indians has

been or shall be located upon any reservation created

for their use by treaty stipulation, Act of Congress, or

Executive order, the Presideiit shall be authorized te ,

cause the same or-any part thereof-to be surveyed -or

resurveyed whenever in his opinion such reseryation or

-any part may be advantageously utilized:for agri-

cultural or grazing purposes by such Indians, and to -

cause allotment to each Indian located -thereon-to be

made. in such-areas as in his opinion may be. for their

best interest not to éxceed eighty acres of agricultural

or one hundred.and sixty acres of grazing land to any ’

one Indian. And w henever it shall appear to the Presi-

dent that lands on any Indian reservation subject to

allotment by authority of law have been or may be

-. 33

brought within any irrigation project, he may cause |

allotments of such irrigable lands to ‘be made to the

Indians entitled thereto.in such areas as may be for

their best interest not to exceed, however, forty acres

to any one Indian, and such irrigable land shall be

held to be equal in quantity to twice the number of

acres of nonirrigable agricultural land and four times

the number of acres of nonirrigable grazing land:

‘Provided, That the remaining area to which any Indian

_may be entitled under existing law after he shall have

received his proportion of irrigable land on the basis of —

equalization herein established may be allotted:to him

from fonirrigable agricultural or grazing lands: Pro-

vided further, That where.a treaty or Act of Congress

setting apart such reservation provides for allotments —

in severalty in quantity greater,.or léss than that”

herein uthorized, the President shall eause allotments - .

on such reservations to be made in quantity as specified |

_____—-sueh-treaty—or_Act subject, trowever, to the basis of

equalization between irrigable and nonirrigable: lands

established therein, but in such cases allotments may

be made in quantity as specified herein with the con-

sent of the Indians: expressed in such manner as the

President in his discretion may require.”’

Act of February 14, 1923 :

The Act of February 14, 1923, Ch. 76, 42 Stat. 1246 (Title

25 U.S. C. A., Section 355) extends the General Allotment

Act to the Mission Indians, inter alia, as follows: ote

‘*That unless otherwise -specifically provided, the

provisions of the * * * (General Allotment Act), as

amended, be and they are hereby, extended to all lands

heretofore purchased or which may hereafter be pur-

+ chased by authority of Congress for the use or benefit

of any individual Indian or band or tribe of Indians.’

(8630)