Supplemental Brief for the Petitioner — Arenas v. United States

ssh haan ala ie aaa

Office - Su: ome Court, U. S.

Yr xs3D r

“MAR -1° 1944

CHARLES ELMORE CROPLEY

OLERK

IN THE

Supreme Court of of the Unit

—————

“October erm, 1943

No. 463.

j LEE ARENAS, ©

es : Petitioner,

ct as

Tue Unitep States OF AMERICA, 0 ___ igs eae eee

\

PETITIONER'S SUPPLEMENTAL BRIEF.

i . : Joun W. PRESTON,

“712 Siete Building, Los Angeles,

Counsel for Petitioner.

*

SUBJECT INDEX.

. zt . PAGE

Sombemment @6 fesse nw ....nc.nssccceenrsseseseses fet, Sacer ee 2

Assignments Oe ccc ctestrestinnmnicintsnjpnerynicienneeininemnetiignagemamnntiianagnion 5

Summary of argument Lscptienitesiadsetiehninideiéatiitiipiggsadishiesageatnciciapeanennaiaeadsapticie 6

Argument .... sarin s sslil a csetitceat dancin naan lieaiedetanbubinneeisdibhapiabcammdateisabin 7

A. Petitioner is vested with an equitable right to a trust pat-

ent for lands selected by and-allotted to him......................- m4

B. Petitioner's vested right to a trust patent accrued under

the General Allotment Act, as amended, and other applica-

ble acts of Comgress..........2....s.sesc0eecceeeone camel Sciseanineae 9

General Allotment Act. canantnianastisecghannsensns thee ee ,

_* Mission Indian Act.......... ads Saleem Se

Te An el foe Bh

The Act of March 2, 1917-3.

The Act of February 14, 1923. 20..jc0cccceccsccesessnesseeueesten 18

GS _ Petitioner is entitled to a trust patent to the lands selected

by and certified for allotment to him...:...°.........-. eae a... 20

Conclusion, ............... haces AROS. Sit ea nH ad rem,

i we

TABLE OF AUTHORITIES CITED.

A ar

\ * a ‘ a

, CAsEs. _ PAGE

- Ballinger v. United States ex bei Frost, 216 U. S. 240, 54 L. ,

> 2 AMEE NTI sebehceacereniepshiamatiicsrenasbpaphceleihcdnisentiieliessnidlsceiaapinisginbaisiaeiccngdad 21, 22

Bankers’ Trust Co. vy. ewan, BP Ns ech sinegatctierinenmncnnamtnes a

_ Barney v. Dolph, 97 U. S. — BP Baa Fs ce csntnncsnssccensinign 22

Bookhart v. Greenlease-Lied Motor Co., 215. lowa 8, 244 N. W..

BU Dasnicinbnciiniads idiatiniaci ; 20

Comuiiesioned v. Flynn, 285 Mass. 136, 188 N. E. 627, 92 A.

FUE Ti icicticreteLivicctnces ie isicedeas seasees "20

Commonwealth v. Maxwell, 271- PAs ‘St. 378, 114 Atl. 825, 16 A.

< SS Isiseshisapesisogansinitlontiiiteinnessibibedas 14

Cornelius v. Kessel, 128 U. S. 469) 32 L. Ed. i annegesee Bb *

Fairbanks v. United States, 223 U. S. 215, 56 L: Ed. 409... 21

F arrington v: Commissioner of Internal Revenue, 30:-F. (2d) a

67 A. L. R. 535 (Cert. den. 279 U. S. 873, 73 L. Ed. 1008)...

Fox Film Corporation, Re, 295 Pa. 461, 145 Atl. 514, 64.A. L.

Oe a as ‘ Sse,

™ General Motors Acceptance Corp. v. Crumpton, 220 Ala. 297,

\ Meee Se Oa LS 1.8 20

Naselton. v. Interstate Stage Lines, 82 N. H. 327, 133 Ad. 481,

47 A. L. R. 218 Seine te

Heiden v. Cremin, 66. FE. (2d) 943, 91 MN L. R. 247 (Cert den.

290 Uy S. 687, 78 L: Ed: 592)............ pee a

Henry Gad Co. v. United States, 191 | eee ey

Hy-Yu-Tse-Nil-Kin v. Smith, 194 U, S. 401, 48 L Ed, 1039....... 21

Kernin v. City 9¢ Coquille, 143 Or. 127, 21 P. (2d) ‘1078... i

Kneeland v-Kmerton, 280 Mass. 371, 183 N. E. 155, 87 A. L.

4. my ee 20

Ladiga-v- Roland, ae 2 How. 581, 43 U- s S°381,11 L. Ed 387. 21

Lytle, et al. v. Arkansas, Y\Howard 314, 13 L.’Ed. 153................. 22

Moore v. C. & O. Ry. Co., 291. U. S. 205, 78-L. Ed. 755..0..000002.°19

General Allotment Act (Act of February 8, 1897,. Chan 1 119, 24

Stat. FOB) 3:-nssapsnenneen-sodnoncsnsagesnvesacensinssnsyeenbscnssnstigssnssactocsarssscansereassodey D

General Allotment Act, Sec. 1 ........ peeimekars a 11," 12

‘| vies : PAGE

, Palmer v. State; 197 Ind. 625, 150 N. E917 .enjunennnnne 4

Panama R. Co. v. Johnson, 264 U. S. 375, 68 L. Ed. 748............ 14

Payine v. Mexicoy 255. U. S. 367, 65 L. Ed. 680.cceccnennnee 22

Raymond Beat’ Hill, 52 L. D,/68..ccsccowcviecssoee- Sa aa

- Richardson v. Harmon, 222°U. S. 96, 56 L. Ed. cl 13

_ Sehus v. Powers-Simpson Co., 85 Minn. 447, 89 N. Ww. cst “44

"Smith v. Boniface, 132 Fed. ST Ee

~~St. Marie -v. United States, 108 F. (2d ) 8A......... om 7, 9, 18, 22

State ex rel. Anderson v. Eousek, 91 Mont. 448, 8 P. (2d) 791,

84 ALL. Re 308. ticeinnnnee 1s

Supervisors of ‘Rock Island County v. United States ex rel. State. ,

_ Bank, - 4. Wall. 435, 71 U. S. 435, 18 L. Ed. 419. el

‘Thomason v. Wellman & Rhoades, 206 Fed.’ 895.......000cepeoe. 21

Tragessor v. Cooper, 313 Pa. 10, 169 Atl. i cies ew 19

United States v: " Aridona, 295 U. S. 174, 79-L. Ed. A371. M4

United States. v. Dowden, 220 Fed. 277 ccscccuPrcpessscsnree aia, ae

‘United States v. Ewing, 237 U. S. 197, 59 L. Ed. |

United States 'v. Jefferson saand Co., 291 U. S. 386, 78 i. Ea.

859 ..... salami senge-s _ 14

United States v. ‘Page, eh Feb OF: etek 22

United’ a v. Ww hitmire, 236 F ed. 474. beacin plbapincdascai an 21

" Starores.

‘Act of Sdtewney 6, 1901, Chap. 217, 31 Stat. 760. (25. USC.

. A, Sec. 345) cotatinidiion cease ae

| Act df June 25, 1910, See. 17 oo eens eeepc 15, 16

’ Act of March 2, 1917 (39 Stat. 969- 970)... aBsP. ee ee 17, 18

Act of February 14, 1923 (Chap. 70, 42 Stat. 1246)... 18, 19 -

PAGE

“General Allotment Act, Sec. 2.....:c0cccecneeeeneeneneneny, 10, 11, 12

General Allotment Act, Sec. 3.0000. ecco ecceseeeeeeeeeeeec&y 10, MU, 12

General Allotment Act, See. 5..0.00.0..0c sn nannies al

General Allotment Act, Sec. 8 . aide aia

Judicial Code, Sec. 240, as amended by the Act of Paani 13,

1925 (28 U. S.C. A., Sec. 347(a)).. aaa ae

Mission Indian Act {Act of- Janay 1 12, 1891, Chap. | 65, 26

25 Ruling Case Law 778, Sec. 24.00.0000. ceeececcceessesessreseeseseeseseeerenecr. 14

—-25-Ruling-Case-Law-1052;-See= 277 25sec 20

25 Ruling Case Law 1060,"See. 285.0 eececcessseeseesseeeleeeeteseeeeseeeee 13

25 Ruling Case Law 1063, Seo. 287 eececeocnennenenenencnnmane M4

a ma ;

Supreme Court of the United States

te October Term, 1943

- : No. 463.

Lee ARENAS

Petitioner.

= ,* vs. ,

“Tue Unitrep States oF AMERICA,

Respondent. .

_ PETITIONER’S SUPPLEMENTAL BRIEF.

The decision of the Circuit Court of 4s is reported |

in 137 F. (2d) 199...

> a |

The jurisdiction of this Court is invoked under the order

of this Court dated December 20, 1943, granting certiorari.

under Section 240 of the Judicial Code, as ‘amended by the

Act of February 13, 1925 (28 U. S. C. -.A.) section

347(a)). Presumably, the writ-was granted because the

decision of the Court below was ini conflict with applicable

_ Acts ‘of* Congress and with the decisions of this Court

. and other Circuit Courts of Appeals. ; ;

Hf.

The principal question presented: is W hether the Seere-

- Ys =

,

ee

- patent to lands in severalty in the Agua Caliente or Palm

Springs (California) reservation of the Mission Indians

selected by and allotted to petitioner pursuant to the Mis-

sion Indian Act (Act of. January 12, 1891, ch. 65, 26 Stat.

7 12) and other applicable Acts of Congress. -

‘TV.

. “Statement of Posen.

Petiiloner $ is a. » deal blood Mission Saling and is a mern-

ber of the Palm Springs band of Mission Indians of Cali-

‘fornia. He was born and has at all times since lived upon

the Palm Springs Indian Reservation and has at all times -

kept and maintained his tribal relationship, membership

“.and enrollmerit in said Palm Springs Band of Mission

Indians; and has likewise kept and maintained his home

and residence separate and apart from any tribe of In-

dians_on said Reservation, and throughout his whole life

has adopted and: followed the its, ways and. methods

of ‘civilized life [R. 2-4]. etitioner is able to read and

write the English language, possesses a degree of educa-

tion and intelligence above the average .of any race, _and

since February 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]. , :

On or about June 7. 1921, ‘the Secretary .of the. In-

terior determined that the members of the’ Palm Springs

Band of Mission Indians, including petitioner, were suf-

ficiently advanced in civilization,and had so far ‘adopted

the habits and ways of civilized life as to be capable of

owning and’ managing land in Severalty [R. 3-4], ‘and

pursuant. to such determination and to applicable Acts of

wx Oe

Congress the Secretary of the Interior appointed one H.

E. Wadsworth as Special Allotting-Agent of the United

States'to make, and cause to be made, allotments of land

in severalty in the Palm Springs Indian Reservation to

such of the duly and regularly enrolled members of said.

Band ‘of Mission Indians, including petitioner, as made

or might make selection of lands for’ allotment in severalty

and to allot, or cause to be allotted, to them the lands.

selected by them. respectively, in severalty [R. 3-4]. Pur-

__suant to such appointment, the said H. E. Wadsworth, as:

such’ Special Allotting Agent of the United States, made

surveys of the lands of the various tribes or bands of

. the Mission Indians: of California, including the Palm

Springs Band. in order to make allotments in severalty

to the members of the several tribes or bands of Mission

Indians, including said Palm Springs Band. - .

On or about the ..... day of June, 1923, petitioner made

his. selection of lands for allotment in severalty to him’

as follows: Lot: No. 46, Section 14; Tract No. 39, Sec- -

“tion 26, and E14 SW44 NWY% and SEY NWY4NWY

and SW4% NEY NW of Section. 26, all in Township 4

South, Range No. 4 East of the San Ber. M., containing

- 47 acres .more or less according to Government Survey.

Said selection included the homesite which. petitioner then

and fora long time prior thereto had occupied and parti-

ally improved as his homesite |-R. 4-5].

‘On or about June 21, 1923, the’ said H.‘E. Wadsworth,

as such Special Allotting Agent ‘of the United States.

‘issued to petitioner a certificate of ‘selection for allotment

_ of-said lands [R. 4-9] and in evidence thereof inscribed

said. selection for allotment on the Official Special Al-—

lotment Schedules, and thereafter certified. satd selection

eR

for allotment, and other such selections, and said Sched-

ules to the Secretary of the Interior [R. 4-5].

The Certificate so issued to the petitioner is in the

words and figures following: |

“5-201

“SELECTION FOR ALLOTMENT

“On Agua Caliente Indian Reservation, 1923. ° -

“This is to Certify That Lee Arenas has selected

‘the Lot No. 46; Sec. 14, Tract No. 39, Sec..26, and

EY% SW% NWY% & SEY NWY% NWY & SWY

NE% NW% of Sec. 26, all'in Township 4 South,

Range No. 4 East of the San Ber. M., containing

47 acres, more or less, according to Government

Survey.. Stake No. ................ -

“Not valid unless approved by the Secretary of

the Interior. ..

(signed) _ ‘H. E. Wapswortu

VU. 3. Special ‘ulloting Agent.”

“6-1660.” [R. 5-7.]

_On or about | October 26, 1923, the said H. E. Wads-

worth, as such Special Allotting Agent of the United

States, was notified by the Bureay of Indian Affairs ot

the Department of the Interior that the members of the

Palm Springs Band of Mission Indians, including peti-

tioner, might enter upon and take physical ‘possession

of the lands selected by them, respectively, for the plant-

ing and cultivation of craps IR. 10}. And thereafter the

said Special Allotting Agent of the United States, in ac-

cordance with the custom of the Bureau of Indian Af-

fairs, encouraged and permitted petitioner to make, and

petitioner did make, permanent improvements upon the

-lands so selected by and allotted to him of the cash value

of $15,000: [R. 12-15]. |

The Secretary of the Interior has failed to issue to”

_and withholds from petitioner a trust patent in severalty

to the lands selected by petitioner, and this suit is brought

to secure a judicial determination of petitioner’s right to

such patent. a

The District Court held that the ‘issues raised by the

complaint had been decided adversely in St. Marie v.

United States, 108 F: (2d) 876 [R. 59-60], and’ the

Circuit Court of Appeals affirmed the—decision-of—the———

District Court (137 F. (2d) 199). This Court . has

granted certiorari.

- -

Assignments of Error.

The Court. below (the Circuit Court “ hain for the

. Ninth Circuit), erred in affirming thé judgment of = |

District Court for the following reasens:

1. The decision of the Circuit Court’ of Appeals ‘is

contrary to. the applicable Acts of Congress and to the

decisions of this Court and other Circuit Courts of Ap-

peals. . os

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 trust patent

to petitioner to the lands selected for allotment by him.

3. The United States of America is estopped by rea~

’ son of the laches of the Secretary ot the Interior, in with-

holding formal approval of petitioner's selection for al-

lotment, to deny petitioner’s equitable right and title to the

lands selected by him.

°

4. The law does not authorize the Secretary of the

Interior _to- withhold a trust patent from a qualified al- :

lottee who has-established an equitable right thereto.

5. The petitioner has done everything which the Acts

of Congréss and law: require him to do to attain his. ©

right to a trust patent to the lands selected by him’ for

allotment, and the neglect_or failare of-the- Secretary ——

.the Interior to. issue such patent does not defeat peti-

tioner’s right.thereto.

Vi.

Summary of Argument.

Under the facts shown by the Complaint, petitioner

has.a vested right to a trust patent to the lands selected

. by and allotted ta him, and the Secretary of the Interior

is without authority to withhold such patent and is estopped

to deny petitioner's equitable right and title in said lands. ©

ae

VII. x |

“ARGUMENT. ae

A Petitioner. Is Vested With an Equitable Right to

a Trust Patent for Lands Selected wale and Allotted

to Him. - :

The decisions of the District Court and of the Circuit

Court of Appeals in this case rest entirely upon the au-

‘thority of St. Marie v. United States, 108 F: (2d) 876...

It is, therefore, necessary to state briefly the-substanee ——-——

3 of the: decision in that case. It was there held that => |

“before there could be a valid allotment the Secretary

‘must: (1). determine that the Indians have reached

a\degree of civilization required by the (Mission In-.

dian) Act; (2) make.an order ‘setting up the me-

-chanics for~selection’; and (3) make and approve ~

~ actual allotments; that no allotment was made; and

that ifthe certificates of selections could be consid-

ered as. . .* certificates of allotment the same

were not effective because there had been no determi-

nation’.that the Indians in question were sufficiently _

advanced .so'as to comply with the Act, and the ap-

‘proval of the Secretary was lacking. 24 F. Supp.

237-240.” (St. Marie v. United States, 108 FF. (2d)

876, at-p. 879.)

‘This holding was given full’ application to the case at ;

bar.

The answer to the foregoing s statéments and’ holdings in

_the St. Marie, case may be summarized as “follows: (z)-

The Congress, by the Act of - Marelf 2 1917, determined

that the Mission Indians of Califormia_were so advanced

- In civilization as‘‘to be capable of owning’ and managing .

\

.

‘oe:

lands in severalty, and accordingly _directed the Secre-

tary of the Interior

“to cause allotments to be made to the Indians be-

longing to and having tribal rights on the Mission

Indian Reservations in the State of California,”

which determination and dfrection were " recognized and

followed by. the. Secretary of the Interior, who appointed |

a_ Special Allotting Agent .for the Mission Indians of

California and thereafter. caused selections for allotments —

of lands in “severalty to be made and certified for them. _

(2) “The mechanics for selection” had, already been

.created by the General-Allotment Act (Act of February

8, 1887, Ch. 119, 24 Stat. 388) and were, therefore, \. Ae

operation of law as well as in-fact, embraced in. the ap-

——pointment and authorization of the Special ‘Allotting

; Agent to cause selections for allotments to be made in

conformity with the provisions. of both the Mission In-

dian Act, as amended, and the General Allotment Act

(Sections 2 and 3) as amended. (3) The approval of

the selections for allotments which were later made is°

implicit in the acts and conduct of the Secretary of

the Interior in (a) putting the allottees, including peti-

tioner, in possession of the lands ‘selected. by and certi-

' fied to them; (b) in the authorization by the Secretary

" to occupy, use and improve the same, and (c) in the failure

-of the Secretary for many years thereafter to question

the equitable right and title of the allottees therein. And

(4) the Secretary issued trust patents, under the same

procedure, to approximately one thousand _Mission In-—

Sn

dians on other Mission Indian Reservations in Califor-

nia (St. Marie v. United . States, 108 F. (2d) 876, p.

_ 887), thereby conclusively showing that he was follow-

ing the determination of civilization, made by Congress

_by the Act of March 2, 1917, and that he had. set up |

. and followed the mechanics, for selection created by the

General Allotment Act, and had made the allotments

and issued the trust ‘patents in conformity with these and

——other Acts’ of Congress. An examination of ‘thé. several —

_ applicable Acts of Congress. becomes advisable.—

___B._ Petitioner's Vésted-Right to-a Trust Patent Ac-

crued Under the General Allotment Act. as

Amended, and Other Applicable Acts of Con-

( Pertinent Acts. or portions of Acts, of Congress ap-

pear in the Appendix to the, Petition and supporting .

Brief. ,

GENERAL ALLOTMENT. ACT:

The General Allotment Act (Act of February &, 1887.

Ch. 119, 24 Stat. 388)

“was intended. to be and was a general act. relating

to all Indian reservations, except thése meritioned in

section 8, 24 U. S. C. A., section 388.” (St. Marie

v. United States, 108 F. (2d) 876, 878.) |

_. The reservations excepted in Section "8 of the Act do

_-not include the Mission Indian reservations.

Section 1 of the General Allotment Act provides :

Seay in all cases: where any tribe or band of .

¥-has-been;-or shalt hereafter he, located q upon

a a TT er nl

ae

—10—

any reservation created for their use * . * * the

: President of the United States ‘be, and he hereby is,

authorized * * *. to cause said reservation or any

; theréof, to be surveyed, or resurveyed, if neces-

ry, and to allot lands in said reservation in sever-

‘ie to any Indian located thereon . 8 8”

. Section 2 of the Act provides:

“That all ‘allotments set apart under the provisions

of this Act shall be selected by the Indians, heads

of families selecting for their minor children, and the

-— _agents-shalt select-for each orphan child, and in such

aoe _________manner—as-to-embrace-the improvements of ¢ ‘re In-

dians making the selection.”

_ Section 3 of the Act provides:

“That the allotment provided for in this act shall

be made by special agents appointed by the President

for such purpose, ‘and the agents in charge of the

respective. reservations:on which the allotments are

directed to be made, under such rules and regulations

~-as the Secretary of the Interior may from time. to

time — -

Section’ 5 of the Act provides:

/That upon approval of the siieiients provided for

in this act by the Secretary of the Interior, he shall

cause patents to issue therefor in the name of the

allottees, which patents shall be of legal effect, and

declare that the United States.does and will hold

the land thus allotted, for a period of twenty-five

years, in trust * * *.” |

. These provisions of the General Allotment Act became

engrafted upon and/a part of the Mission Indian Act upon

its enactment in tel and therefore supplied “the me-

—i---

_ chanics for selection” of allotments under. the latter Act.

Furthermore, the Special Allotting Agent’s certification _

of these allotments to the Secretary of the Interior shows

“that the allotments shown hereon were made in ac-

cordance 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. I:. 855), and

supplemented: by-the Act of March. 2, 1917 (39 Stat. «

LL. 969-976). (St. Marie v. United States, 108 F.

(2d) 876, at page 879.) Se

- upon the Mission Indian Act, was |

-“that—all-allotments —*- —*-*~—Shall be selected | =

ye Indians, -heads of families selecting for their

minor children * * *.” (Sec. 2, Gen. Allot. Act.)

This right of selection by the Indians therefore -existed.

at the time of the- passage of the Mission Indian Act .

(Secs. 1 and 2) and became, and is. a part thereof.

Mission INpIAN ACT.

The Mission’ Indian -Act (Act of January 12, 1891,

Ch. 65, 26 Stat. 712) was passed by Congress “for the

' relief of the Mission Indians in the State of California”

and “to arrange a just and satisfactory settlement of the

Mission Indians .* * * upon reservations which shall.

be secured to them” as provided therein. To aceomplish

these objects and purposes, the Act provided for the ap-- -

pointment o a Commission “to select a reservation for

each band/or village of the Mission Indians residing |

within said State * * *° sufficient in extent to meet

their just. requirements * * **.” (Secs. 1 and 2 ) The M

Act farther prov ated. (Sec. 3). that. upon-completion—of- <7

/. : oe)

ad

their work, ‘the. Commission “shall report’ the’ ‘result to :

the Secretary of the Interior, who, if no valid objection

exists, shall cause a patent to issue for each of the reser-\

vations selected by the Commission and approved by him |

in favor of each band or village” in trust for 25 years

“and that at the expiration of said period the United

_. States will convey the same or remaining portion not previ-

on ously patented’ in severalty by patent to said band or

and leave little, if anything, to si discretion of the e Secre- :

‘tary of the ‘Interior. Spey

Section 4 of the Act provides

“that whenever any of the Indians residing upon any

reservation patented ‘under the provisions df. 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

* -* .* may cause allotments to be made to such

Indians, out of the land of: such reservation, in‘quan-

tity as follows * * *.” :

Section 5 of the Act provides

“that upon approval of the allotments provided for

in the preceding section by. the Secretary of the In-.

if terior he shall cause patents (in trust) to issue there-

for in the name ‘of the allottees”

: for twenty-five years.

It thus appears ‘that the Mission Indian Act wal no

express provision for’ the selection of land in severalty by

the Mission Indians, nor did it provide any mechanics’

9

—1l3—

for such selection and allotment. The Mission Indian

Act was silent in these respects, because the right of

- selection, and the mechanics necessary to make selections

and allotments in severalty, already existed under the ay

General Allotment. ‘Act. It was wholly \unnecessary for

the. Congress to incor porate the. provisions af existing

. \ general law ‘into the Mission Indian Act. ° ‘This is true:

first, because: the General Allotment’ Act in terms was

—-made-applicable to—“any- tribe-or band of Indians—(that )

-has- been; or-shalt-hereafter be, tocated upon any reserva-

= _ tion created for their use” ; and, “second, because the Gen :

~—eral’ Allotment “Act and the Mission Indian Act are stat-"~

-— aates-in pari.materia and should be construed together-in

order to determine and make effective the legislative in-

. tent with respect, to the Mission Indians..

In this connection, it. is said in 25 R. C. I. * 1069, Sec-

tion 285, that: ae is

“It is .a- furidanvental rule a statutory construc-

tion that not only should ‘the intention of. the law-

maker be deduced ftom a view of the whole statute

- and of its every material part, but statutes in pari

materia should be constried together.”

See, also:

: Richardson v. Harmon, 222 U. S. 96. 56 L. EA.

110; :

: United States v. Ewing. 237 U. ‘. 197, 59 L. Ed.-

913; .

a Bankers’. Trust Co: V2 1. Bowers, 295: Fed. 89:

. Heiden v. Cremin, 66 F. (24). 943,.91 A. L. R.-

=~ 247 7 (Cert. den. 290 US 087, 78 L. Ed. 592).

{

—14—

This rule applies not only to contemporaneous statutes,

but also to earlier ‘statutes in pari materia. See 25 R. C.

L., p. 1063, Section 287, where it is said that

“Statutes in pari materia to which reference may be

_made in aid of construction are not only cafttempor-

_ amegus statutes, but also earlier statutes m pari-

materia. The legislature is presumed to have been _

. acquainted with their judicial construction, and to

have passed new statutes on the same — with |

reference thereto.”.

The-raie-frsis-ariopte-cappore-in- Pexems It Co. @. John-

son, 264 U.S. 375, 68 L- Ed. 748: United States v.

- Jefferson Elec. Co.. 291 U: S. 386, 78 L. Ed. 859, and

United States v. Arizona, 295 VU. SA74, 79 E. Ed--1371-

The Mission Indian Act discloses the legislative intent

‘to be, that reservations be created for the Mission In-

dians and that, as soon as any of these Indians should be

‘capable of owning and managing lands in severalty.

patents in trust be issued to them. This legislative intent

can. be made completely effective, by applying the provi-

signs of the General Allotment Act, and this should -be

done because j

-

“it is a rule of statutory construction that Idvista:

tive enactments in general and comprehensive terms.

prospective in operation, apply alike to all persons.

subjects and business within ‘their general purview

and scope coming into existence subgequent to their

passage.” » (25 R. C..L. 778, sec. 24.) ®

Schus v. Powers-Simpson Co., 85 Minn. 447, 89.

N. W. 68;

Palmer v. State, 197 Ind. 625, 150 N. E. 917:

Commonwealth v. Maxwell, 271 Pa. St. 378, 114 «@

Atl. 825, 16 A. L. R. 1134;

State ex rel Anderson v. Fousck, 91 Mont. 448.-

8 P. (2d) 791, 84 ALL. R. 303:

Haselton v. Interstate Stage Lines, 82 N. H. 327,

133 Atl. 451,47 A. L. R. 218:

Re Fox Film Corporation, 295 Pa. 461, 145 Atl.

514, Aa A. L. R. 9. oo.

Tue Act or June 25, 1910.

Section 17 of the Act of June 25, 1910, amended the _

Act of February 28, 1891, which latter Act amendéd the -

General Allotment Act. Said Section 17 provided:

____:"__— et io cases where any tribe_or band of In-——-

dians has been or shall hereafter be located upon . .

any reservations created for their use by treaty, stipu- = *

lation. Act of Congress, or executive order, the

‘President’ shall be authorized to cause the same or

any part thereof to be surveyed: cr resurveyed when-

ever in his opinion such reservation or any part there-

sof may be advantageously utilized for agricultural

or grazing purposes by such. Indians, and to caus¢ -

allotment to each Indian located therein to be made

in. such areas.as in his opjnion may be for thei? best

interest not to exceed eighty acres of agricultural or

one hundred and sixty acres of grazing land to any

one Indian. And whenever it shall appear to the

President that lands on any Indian reservations sub- .

ject to allotment by authority of ‘law have been or

may be 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 wo cake in ot seteentied to twice

SR, REN . SN ERO Re

. . ——

a

: ——— x ,

° ——e

* ‘ " <--

—— bal

y .

. "“

\ ‘

the number of acres of tion-irrigable agricultural land ©

and four times the number of.acres of non-irrigeble

grazing land. * * *.”.

_ The similarity between the language of section 17 of”

“the Act of June 25, 1910, and section 1 of. the General

Allotment Act. is apparent, and conforms to the general

pattern of Congressional legislation for Indians.

The Act of June 25, ‘1910, has an important bearing

an: the rights of, the Mission Indians of California,’ in

that

it provides for and regulates allotments of irrigable

lands, for which no provision was made in any. of the

Mission Indian Acts. It is also important because it is

an amendment to. the General Allotment Act which” by

the Act 6f March 2, 1917 (39 Stat. 969-976), by name

and.

dian

It

designation. is ‘made applicable to the Mission In-

reservations in California.

THE Act of Marcu 2, 1917. |

is provided: in the Act of March 2, 1917, which is

amendatory of the Mission Indian- Act:

“That section three of the -Act of Jamdfary twelfth, ;

- eighteen hundréd.and ninety-one (Twenty-sixth Stat-

_ utes at Large, page seven hundred and twelve) en-

‘titled ‘An Act for the relief of Mission Indians in’

California,’ be, and the same is hereby amended so

as to authorize the President, in his. discretion and

whenever he shall deem it for the best interests of

the Indians affected thereby, to extend the trust pe-

riod for such time as may be advisable on the lands

held in trust for the use and benefit_of the Mission

-Bands or villages of Indians in California: Provided,

. §

4

that the Secretary of. the Interior. be. and he's here-

a

ee

by, authorized and directed to cause allotments to

be madc to the Indians belonging to and having tribal

rights on the Mission Indian Reservations in ‘le

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 pro-

vided in section four of the Act of January twelfth,

eighteen: hundred and ninety-one (Twenty-sixth Stat-

‘utes at Large, page seven hundred and thirteen) :

Provided, that this act shall not affect any: allotsnents

heretofore patented to these Indians.” _ (Italics ours. )

rat

It is significant that when the Act of March 2, 1917

was enacted more than twenty-five years had elapsed since

the enactment of the Mission Indian Agt. Thus the Con-

gressional intent was to be effectuated.

It is obvious that the Act of March 2. 1917, was de-

signed not only to provide for the allotment of irrigable’

lands for which no provision fad previously been made,

but to make mandatory, instead of «discretionary, the

allotment of these and other lands in severalty to- the

Mission Indians in California. It is also obvious that

the Secretary of the-Interior so construed this Act, for

_soon.thereafter he appointed a Special Allotting Agent.

and other proceedings. were had to carry out the jegisla-

tive mandate expressed in the Act. Moreover, the same

construction of the Act appears in a communication from

the Attorney General of the United States, signed by the

': Assistant Attorney General to the Secretary of the In-

terior,"wherein it was said:

“As to the allotment feature of the situation, we

are confronted with the provtsion in the Act of

March 2, 1917 (39. Stat 976), amending section 3

—18—

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 Reserva-

_ tions in-California in areas as provided in section

17 of the Act 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 re-

garded as mandatory rather than discretionary legis-

lation.” (St. Marie v. United States, 108 F. (2d)

890. ) (Italics ours.)

It is apparent that the Act of “March 2,°1917, not only

amended but superseded sections 3 and 4 of.the Mission ‘

Indian Act in the respects mentioned. Moreover, the

- Act of March 2. 1917, being mandatory, constituted a

' determination by the Congress that the Mission Indians |

in Caiifornia had so advanced in civilization as to be

capable of owning and managing lands in severalty.

| THE Act or FEBRUARY 14, 1923.

It was provided in the Act of February 14, 1923 (Ch. 7

76, 42 Stat. 1246), |

“That unless otherwise specifically provided, the pro-

visions of the Act of February 8, 1887 (Twenty-

faurth Statutes at large. page 388), as amended, be,

and they are hereby, extended to all lands heretofore

purchased or which may hereafter be purchased by

authority of Congress for the use or benefit of any

individual Indian or band or tribe of Indians.”

This Act made lands purchased for the Indians on all

reservations subject to the General Allotment Act, and a

— plain implication arises that public lands of the United

States, withdrawn and.set apart for the use of these In- .

dians, are by existing statutes made subject to the provi-

sions of that Act. | a

With the passage of the Act of February 14, 1923, a

comprehensive legislative scheme. for making allotments |

in severalty to all Indians, including the -Mission Indians

in California, was completed by ‘the Congress, covering

all classes of land set apart for the use of any tribe or

band of Indians.

The five Acts of Congress hereinbefore. mientioned and

discussed constitute a complete and fully integrated legis-

lative plan: for the allotment of lands in severalty to the

Mission Indians in -California. Each of these five “Acts

is entirely consistent with the others. There is no repug-

nancy between them. These statutes are in pari materia

and must be construed as one system and must be gov-

erned by one spirit and policy in order to carry out the -

legislative intent. (See Moore v. C. & O. Ry. Co.; 201

U.S. 205, 214, 78 L. Ed. 755: Kernin v. City of Co-

quille, 143 Or. 127. 21 P. (2d) 1078, 1080: Tragessor

v. Cooper, 313 Pa. 10, 169 Atl. 376, 377; and other cases,

supra.) Thus considered and given effect, the itent.

and plan of the Congress will not be thwarted. —

These. statements .and conclusions are in harmony with

well recognized rules of statutory construction. One of |

these is that in the “construction of statutes we are to 3

look to the state of the law when the statute was enacted

in- order to see for what -it was intended as a substitute.”

fSo"R. C. L. 1052, * sec. 277.) Moreover, “no single

' statute should’ be interpreted solely by its own words”

for “upon enactment it becomes a-part of, and is to be

_read in‘connection with, the whole body of the law. Its.

_ interpretation is to be in the light of the general policy of —

previous legislation” * * * and “should receive such

construction as will not conflict. with general principles

e and will make it harmonize with the pre-existing body of

a 6

Vv

aw.” (Idem.)

See, also: - ;

‘Farrington wv. C ommissioner of Internal Revenue,

30 F :(2d) 915, 67 A. L. R. 535 (Cert. den.

(279 U. S. 873, 73 L. Ed. 1008) ;

Conard Motors Acceptance Corp. v. Crumpton,

220 Ala: 297, 124 So. 870, 65 A..L. R.1313:.

. Bookhart v. Greenlease- Lied Motor Co., 215 Towa

8, 244 .N. W. 721: ,

Kneeland v.. Emerton,'280 Mass: 371, 183 N. E..

155, 87-A.L. R21;

Com. v. Flynn, 285 Mass. 136, ‘188 N. E. 627, 92

A. L. R. 206., ~

Cc. Petitioner ls Entitled to a Trust ‘Patent to the

_ Lands Selected: “i and Certified for a

to Him.

It is ciear that, in such circumstances as appear iu the

~ record of this case, the selection of an allotment is the -

‘inception of an equitable title; and the right thereto may

not, be defeated by the arbitrary action of the Seeretary

of the Interior in withholding | a trust patent to the lands

selected, . ee

ae

ae

Ladiya v. Roland, et al., 2-How. 581, 43 U. S.

581, 11: L. Ed.’ 387; | oe

. Hy-Yu-Tse-Mil-Kin v. Smith, 194 U. S. 401,

' . 414, 48 L. Ed. 1039: Ballinger v. United States

ex rel Frost, 216 U. S. 240, 249, 54 L. Ed. 464;

Fairbanks v. United States, 223 Uz S. 215, 56

‘Li. Be 409;

Henry Gas Co. v. United States, 191 Fed. 136;

‘Thomason v. Wellman & Rhoades, 206 Fed. 895,

' + BO: :

United States v. Dowden, 220 Fed. 277:

_.United States v. Whitmire, 236 Fed. 474,

The fact that no patent is issued is immaterial.

“When the right to a patent has once become

_ vested under the law, it is equivalent, so far as the”

_ government, is concerned. to a patent. actually: issued.

Simmons v. Wagner, 101 U. S. 260, 25 I... Ed. 910; x

_ Deffeback v. Hawke, 115 U. S. 392, 6 Sup. St. 95,

29 L. Ed. 423; Hedrick v. Railroad Co., 167 U. S.

673, 17 Sup. Ct. 922, 42 L. Ed. 320; Wallace

v. Adams, 143 Fed. 716, 74 C. C. A. 540, affirmed

“dd., 204 U. S. 415, 27 Sup. Ct. 363, 51°L. Ed. 547.

dn allotment certificate has the same effect as the

action of the Land Department in the disposition

-. of the public lands within its control. .Wallace v.

Adams, supra; United States v. Dowden, supra.”

(United States 0. Whitmire, 236 Fed. 474, 480.)

(Italics ours.) . |

When a selection for allotment has been niade and the

right of allotment has attached, delay in issuing, or fail-

ure’ io issue the patent does not postpone or defeat the

vesting of.the equitable interest in the allottee. The right,

_in that case; depends upon what ought to have been done.

A selection made at a time when the right exists to do .

so creates an interest or right -so vested that it descends:

to the heirs and fixes the right of Property.

Smith v. Boniface, 132 Fed. 889, 891;

«St. Marie v. United States, 876, 895 ( dissenting

op.) ; !

Lytle, et al. 2. dieing, 9 Howard 314, 13 L. Ed.

153;

Barney. v, Dolph. 97 U. S. 652, 24 L. Ba. 1063:

Cornelius v. Kessel, 128 U. S. 469, 32 L. Ed. 482:

Ballinger v. United States ex rel Frost, 216 U. S.

240,. 54 L. Ed. 464;

. United. States v. Piss, 284 Fed. 827;

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

| The Department of the Interior, as late as July 31,

1929, some years after petitioner’s right to a patent had

accrued, held in Raymond Bear Hill, 52 1. D. 68, that the

right of a qualified Indian to an-allotment is analogous to

that of an entryman to public lands, saying :

_ “& *° # it may be said generally that it gis well

_ settled that a-claitmant to public land who has done.

__all that is required under the law to ‘perfect his claim,

acquires.a right against the Goyernment and that, his — -

. Tight-to a legal title is 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 —s the Government holds it in. trust for him,

oz .

although no legal title passes until patent issues.

Wyoming v. United States (255 U.S. 489 (41

S. Ct. 393, 65 L.Ed. 742)); Payne v. New Mexico

(255 U. S. 367 (41 S--Ct. 333; 65 L. Ed. 680)):

Payne v. Central Pacific Railway Company (255 U.

S. 228 (41 S. Ct. 314, 65 L. Ed. 598)). 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 reseryation land.- Infact, |

the position of a qualified Indian\is stronger than that -

of’an.entryman of public land, for-the reason that he

has an inherent interest in the common proper ty of

his tribe.”

_ ee es Pe ae oe ee

“The rule applicable in this matter is the same as

_. that applying to any qualified person who performs -

all. conditions prescribed by: law to secure entry of

_ lands open thereto—the law considers that as done

and virtually views the entry made. Hy-7'u-Tse-

Mil-Kin v. Smith (194 U. S. 401 (24S S. Ct. 676, 48

L.Ed. 1039)).” 7

Even if the Act of March 2, 1917, -had not deprived

the Secretary of the Interior of the discretion granted to

him by section 4 of the Mission’ Indian Act, petitioner's

Tight to-a patent | under the facts disclosed here would

exist. See, Supervisors of Rock Asland County v. United

States ex rel. State Bark; + Walt- 435-71 U. S. 435,

18-L. Ed. 419 where the question was, whether the Super-

. visors: were compelled te levy and‘ collect, by taxation, .an

amount specified by the Court below. The act involved -

provided, that where “current revenue * * * is not

sufficient to pay (the Supervisors). may, if deemed ad-

visable, levy a-special tax * *. *.” (Italics ours.) As

—24—

. & °.

to the construction to be placed upon this language. the

Court said, page 446, 18 L. Ed. 419:

“The conclusion to be deduced from the authorities

‘is, that where power ‘is givert to public officers, in

the languag ge of the act before'us, or in equivalent lan-

guage—whenever the: public: interest or .individual

rights call for its exercise—the languagt used,

though permissive in form, is in fact peremptory.

_ What they are empowered ‘to do for _a_third person

the law requires shall be.done, “The power is given,

’ ‘not for their benefit, but for his.” - eye (uae

Moreover ,as ‘shown in the Petitiort and supporting

brief, pages 11-14, the United States is estopped to ques-_

tion petitioner’s equitable right and title to ‘the lands se-

- lected for allotment: by him. i

Under the a Cited uae and, in the Petition.

to the age sclected by wid alloted to” him: If the See-

retary of the Interior can, upon his own capricious judg-.

ment, decide that lands authorized to be allotted by Con- |

- gress ought. not. to be allotted, or if he can ‘refyse with-

out lawful cause to approve allotments made i in conformity

with law’when submitted for action, then he can, in_ef-

fect, nullify the law. by withholding lands. from allotment

which the Congress has authorized _and_directed—to- be-

~ apportioned among the Indians entitled thereto. That he 2

cannot lawfully withhold a trust. patent from any Indian

entitled thereto is clearly shown by the Act of February .

6, 1901, Ch.’ 217, 31 Stat. 760, 25 U. S.C. A., section’

345, which was enacted to correct such | an abuse of _power.

.

Conclusion. |

The decision. ‘below is erroneous. It is therefore re-

- spectfully submitted that the judgment of the Court below

should be reversed and this cause be remanded for. further

proceedings in conformity with the opinion of. this Court.

a submitted, ;

_ ‘JouN. W. Preston,

6 ounsel for: Petitioner.

«

nverneme’®