Petition for Writ of Certiorari — Chickasaw Nation v. United States

Opinions below - - .. - .- --------------------+---------------

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Questions presented -- ---- -- -----------------------------

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Reasons for granting the writ-_-----------------------------

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Appendix... ......-.-------------------------------22---

CITATIONS

Cases:

Bowman v. Loperena, 311 U. 8. 262_._-.-----------------

Brinckerhoff v. Wemple, 1 Wend. Le & Sere

Catlin v. United States, 324 U. S. 229. .....-------------

Cherokee Nation v. United States, 270 U.S. 476__ pee Nici tenes

Chickasaw Nation v. United States, 95 C. Cls. 192, reversed,

Chickasaw Nation v. United Slates and the Choctaw Nation,

No. 169, present Term - -.--.-.---------------------

Choctaw Nation v. United States, 21 C. Cls. 59, affirmed in

part, 110 U. 8. 1.........-.--.-.------+------------

Choctaw Nation v. United States, 83 C. Cls. 140. --.------

Choctaw Nation v. United States, 318 U. 8. 423_.---------

Colgate v. United States, 280 U. 8. 48_-..-.-------------

Coutant v. Catlin, 2 Sand. Ch. 485 (N. Y.) --------------

Harris v. Hewes, 75 Me. 436. ......-...-----~--~.-------

Kingman v. Western Manufacturing Co., 170 U. 8. 675_---

Legg v. Legg, 34 Wash. 132_---.------------------------

McAllister v. Reel, 53 Mo. App. 81- --------------------

Meda v. Zewten, 214 Cal. $06... .. ... <2 0. 2. ee

United States v. Ellicott, 223 U. S. 524. ...-..------------

United States v. Seminole Nation, 299 U. 8, 417. .---.-----

Watson v. Union Gravel Co., 50 Mo. App. 635_---- ~~ -----

Zimmern v. United States, 298 U. S. 167_....------------

Statutes and treaty:

Act of March 3, 1875, 18 Stat. 476__.-.-..-------------

Act of March 3, 1881, 21 Stat. 504. __....-...----.-.-----

Act of April 26, 1906, 34 Stat. 137, Section 18_--....-----

Act of June 7, 1924, 43 Stat. 537:

Act of February 13, 1925, as amended, Sees. 3(b) and 8..

Bonk, 1, SS. SC Os Sk... = ss. kk

Treaty of January 20, 1825, 7 Stat. 234___....---.-..-----

662348—45——1 re)

II

Miscellaneous: Page

Report of Commissioner of Indian Affairs (1888), pp. viii-ix. 13

Report of Commissioner of Indian Affairs (1906), p. 450--. 13

Report of Commissioner of Indian Affairs (1920), p. 200--- 13

Restatement of the Law on Restitution (1939), sec. 125. -- 10

Tiffany on Real Property (2nd ed., 1920), sec. 199, pp. 678-

Inthe Supreme Court of the Hnited States

OcroBeR TERM, 1945

No. 337

Untrep States OF AMERICA, CROSS-PETITIONER

v.

Tur CHICKASAW NATION AND THE CHOCTAW

NATION

CROSS-PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CLAIMS

On June 25, 1945, the Chickasaw Nation filed a

petition for a writ of certiorari in Chickasaw Na-

tion v. United States and the Choctaw Nation, No.

169, seeking review of those parts of the judgment

rendered in said case by the Court of Claims hold-

ing that the value of the land taken was $.50 per

acre, that interest was due only from 1906 rather

than from the date of taking in 1875, that the

counterclaim of $57,500 by the United States

should be allowed, and that the United States was

entitled to gratuity offsets, such offsets not being

needed in said case. A brief in opposition to the

foregoing petition is being filed by the Gov-

ernment.

(1)

2

The Acting Solicitor General on behalf of the

United States prays in the event the Court grants

the petition for writ of certiorari in No. 169, but

only in that event, that a cross-writ of certiorari be

directed to the Court of Claims to review those

portions of its judgment in this case which hold

that the United States is under any liability to

make payment to the Chickasaw Nation for its

one-fourth interest in the land involved, and that

the United States should pay interest on the

amount awarded from February 19, 1906, to the

date of judgment. The certified transcript of

record filed in No. 169 includes those portions

ef the record upon which this cross-petition is

based.

OPINIONS BELOW

The opinion rendered by the Court of Claims

on May 5, 1941, is reported in 94 C. Cls. 215.’

The court’s opinion of January 8, 1945 (R. 33-

36) is not yet reported.

JURISDICTION

The jurisdiction of the Court of Claims was

invoked under the Act of June 7, 1924, 43 Stat.

537, as amended by the Joint Resolution of Feb-

ruary 19, 1929, 45 Stat. 1229. The judgment

sought to be reviewed was entered on January 8,

1 Pertinent parts of this opinion are set forth in the Ap-

pendix, infra, pp. 15-21. References thereto will be indicated

by (App.), while references to the printed record in No. 169

will be indicated by (R.).

3

1945 (R. 42). A motion by the Chickasaw Na-

tion for a new trial was overruled on April 2, 1945

(R. 42). On June 27, 1945, the time within

which to file a cross-petition for writ of certiorari

was extended by Mr. Justice Rutledge to and in-

eluding August 31, 1945. The jurisdiction of

this Court is invoked under Section 4 of the Act

of June 7, 1924, 43 Stat. 537, and Section 3 (b)

of the Act of February 13, 1925, as amended by

the Act of May 22, 1939, 28 U. S. C. sec. 288 (b).

QUESTIONS PRESENTED

1. Whether this cross-petition is timely filed.

2. Whether the Choctaw Nation, rather than

the United States, should make payment to the

Chickasaw Nation for its one-fourth interest in

the lands involved.

3. Whether, if the United States is deemed

liable to the Chickasaw Nation, interest is allow-

able on the amount awarded, and, if so, whether

the United States is entitled to recover that in-

terest from the Choctaw Nation.

STATEMENT

This is a suit by the Chickasaw Nation to

recover compensation for its one-fourth interest

in the lands taken by the United States (R. 1-9).

A full statement of the facts and statutes in-

volved and of the proceedings in the Court of

Claims is set forth in the brief of the United

States in opposition, filed in No. 169, to which

4

reference is made. The facts and proceedings

material for a consideration of this cross-petition

are as follows:

In 1820 the United States ceded to the Choctaw

Nation a tract of land west of the Mississippi

River, lying between the Arkansas and Red

Rivers, in exchange for a cession by the Choc-

taws of a portion of their lands in the State of

Mississippi. 7 Stat. 210. By the Treaty of Jan-

uary 20, 1825, 7 Stat. 234, the Choctaw Nation

receded to the United States the eastern portion

of the tract so that the new eastern boundary was

a line “‘beginning on the Arkansas, one hundred

paces east of Fort Smith, and running thence, due

south, to Red River.’’ When the eastern bound-

ary was surveyed and marked later in 1825, the

line erroneously veered to the west, thus exclud-

ing from the Choctaw country a triangular tract

of 136,204.02 acres, which is the subject of this

suit. (R. 37-38.) The error in the survey was

not discovered until a new survey was begun in

1857, but at that time the old, incorrect line was

retraced and remarked (R. 39-40). A dispute

then arose as to the lands here involved, and by

the Act of March 3, 1875, 18 Stat. 476, Congress

declared the 1825 line to be the permanent bound-

ary between the State of Arkansas and the In-

dian country (R. 40). Meanwhile, in 1837 the

Chickasaw Nation had acquired 2 one-fourth in-

terest in the Choctaw lands (R. 38-39).

5

Pursuant to the Jurisdictional Act of March 3,

1881, 21 Stat. 504, the Choctaws instituted a suit

in the Court of Claims for an adjudication of

their claims against the United States, including

a claim for compensation for the taking of the

same lands here involved. The court found the

value of the lands to be $68,102 and awarded that

amount to the Choctaws. Choctaw Nation Vv.

United States, 21 C. Cls. 59, 72, 110, affirmed on

this point, 119 U.S. 1,41. The award was paid to

the Choctaws on June 29, 1888. Thereafter the

Chickasaws, zince they owned a one-fourth inter-

est in the lands, demanded of the Choctaws one-

fourth of the amount recovered. (R. 41.) After

much discussion the governments of the Choctaw

and Chickasaw Nations in 1905 arrived at an

agreement by which the Choctaws were to pay to

the Chickasaws one-fourth of the recovery, less

the costs of collecting, or a net sum of $16,003.97

(R. 41-42). This agreement was approved by the

_ President of the United States on February 19,

1906. However, the Choctaw Nation never paid

the agreed amount to the Chickasaw Nation.

(R. 42.)

Under these circumstances, when the Chickasaw

Nation filed the present suit to recover compen-

sation for its interest in the same lands for which

the United States had already paid the Choctaws

in full, the United States impleaded the Choctaws

pursuant to Section 6 of the Jurisdictional Act

6

(43 Stat. 537, 538) under which this suit was

instituted, and filed a eross-complaint alleging

that any judgment to which the Chickasaws

might “be entitled should be rendered against

the Choctaws (R. 12-13). The Government also

filed an answer denying any liability toward

the Chickasaws and praying that (1) the peti-

tion be dismissed, (2) any judgment in favor of the

Chickasaws be entered against the Choctaws, or

(3) if judgment be entered against the United

States, it have judgment for a like amount over

against the Choctaws (R. 9-12). In their answer

to the ecross-complaint the Choctaws denied any

liability toward either party (R. 14-15).

The Court of Claims found that the value of the

lands in question was $68,102 as of Mareh 3, 1875,

and held that the Chickasaws were entitled to re-

cover from the United States one-fourth of such

value, or $17,025.50, with interest at 5 per cent

per annum from February 19, 1906, the date of

approval of the Choctaw-Chickasaw agreement ~

(R. 26, 33; App. 17-18). However, the amount of

this recovery was more than offset by the allow-

ance of a government counterclaim against the

Chickasaws, so that their suit was dismissed (R.

33, 42). On its ecross-complaint the United States

was awarded judgment for $16,003.97 without in-

terest against the Choctaws (R. 33, 42; App.

20-21). .

The judgment of the Court of Claims was en-

tered on January 8, 1945, and the Chickasaws filed

7

a motion for new trial, which was denied on April

2, 1945 (R. 42). On June 25, 1945, the Chicka-

saws filed a petition for a writ of certiorari (No.

169), and on June 27, 1945, Mr. Justice Rutledge

extended to August 31, 1945, the time within

which to file this cross-petition, the order being

made ‘‘provided the statutory time has not already

expired.”’

REASONS FOR GRANTING THE WRIT

1. Section. 4 of the Jurisdictional Act here in-

volved, 43 Stat. 537, 538, provides—

That from the decision of the Court of

Claims in any suit prosecuted under the

authority of this Act, an appeal may be

taken by either party as in other cases to the

Supreme Court of the United States.

This statute has been construed to authorize a writ

of certiorari from this Court to the Court of

Claims. Choctaw Nation v. United States, 318

U. S. 423; see also Colgate v. United States, 280

U. S. 43. Section 4 consequently assimilates the

provisions of Section 3 (b) and Section 8 of the

Act of Februaty 13, 1925, as amended, with the

attendant three-months’ time limit for applica-

tions for certiorari.

The order of June 27, 1945, extending the time

within which to file this cross-petition, was

made ‘‘providing the statutory time has not al-

ready expired’”’. This proviso raises the ques-

662348—45——2

tion whether, in the absence of a motion for a

new trial by the United States, the Government’s

time for filing a petition or obtaining an exten-

sion therefor expired on April 8, 1945 (three

months after judgment), or on July 2, 1945

(three months after denial of the Chickasaws’

motion for a new trial). There is no doubt that

the Chickasaws had until July 2, 1945, to file

their petition (United States v. Seminole Nation,

299 U. S. 417, 421), and we submit that the

United States should be entitled to the same

length of time within which to file its petition or

obtain an extension. It is well-settled that the

filing of a motion for a new trial suspends the

finality of a judgment and tolls the running of

the statutory period until the disposition of the

motion. Bowman v. Loperena, 311 U. 8. 262,

266; United States v. Ellicott, 223 U. 8. 524, 539;

Kingman v. Western Manufacturing Co., 170

U. S. 675, 678, 680-681. Moreover, the finality of

the judgment being in suspense until confirma-

tion or modification by the court, it is immaterial

that a petitioner did not himself move for a new

trial. Cf. Zimmern v. United States, 298 U. 8.

167, 168-170; Meda v. Lawton, 214 Cal. 588. If

the rule were otherwise, a party not seeking re-

lief in the trial court, in order to protect his

interests, would be compelled to file one petition

within three months after judgment and then file

another petition in the event the judgment was

9

modified as a result of the new trial motion, thus

bringing his case to the appellate court in frag-

ments, a result contrary to appellate practice.

Catlin v. United States, 324 U. 8. 229, 233-234.

If a new trial were granted, the situation would

be much worse, with the appellate court being

asked to give relief to one party while the trial

court was considering the entire case. Hence, the

order extending time having been entered within

three months after the denial of a new trial, it is

clear that there is no jurisdictional defect in the

granting of the extension.

2. At the time of taking by the United States

in 1875, the lands in question were owned in com-

mon by the Choctaw and Chickasaw Nations, the

Choetaws owning three-fourths and the Chicka-

saws the remainder (R. 7, 38-39, 41). See Choe-

taw Nation v. United States, 318 U. S. 423,

424; Choctaw Nation v. United States, 83 C. Cls.

140. Inasmuch as the Chickasaws had at the time

no right to bring suit against the United States,

the act of the Choctaws in claiming compensation

(Choctaw Nation v. United States, 21 C. Cls. 59)

for the taking of these lands must be regarded as

having been for the benefit of their co-tenants,

the Chickasaws. ‘Therefore, the United States,

having made payment in full to the Choctaws in

1888 (R, 41), is under no liability to make another

payment to the Chickasaws for the same lands.

Watson v. Union Gravel Co., 50 Mo. App. 635;

10

Tiffany on Real Property (2nd ed., 1920), sec.

199, pp. 678-679. Rather, the Choctaws, having

received a proportionate share of the amount re-

covered in trust for the Chickasaws, are under a

duty to account therefor to their co-tenants.

Coutant v. Catlin, 2 Sand. Ch. 485, 489 (N. Y.);

Brinckerhoff v. Wemple, 1 Wend. 470, 473-474

(N. Y.); Legg v Legg, 34 Wash. 132; ef. Harris v.

Howes, 75 Me. 436; McAllister v. Reel, 53 Mo.

App. 81, 85. See Restatement of the Law on

Restitution (1939), sec. 125 and eases cited in the

note thereto.

Moreover, both tribes in the 1905 agreement,

subsequently ratified by the President in 1906 (R.

41-42), recognized that the Choctaws were under

an obligation to make payment to the Chickasaws.

The court below also recognized the liability of the

Choctaws by ordering them to pay $16,003.97 to

the United States (R. 42). However, instead

of settling the case by adjudging that the Choc-

taws should make payment of $16,003.97 (one-

fourth of the amount received, less the cost of

collecting) to the Chickasaws, the court held the

United States liable to Chickasaws with a right

to recover over against the Choctaws. In so ad-

judicating a liability of the Choctaw Nation, the

court reached the inequitable result of ordering

the United States to make payment of $17,025.50

(one-fourth of the land value), with interest of

11

$33,102.77, to the Chickasaws and at the same time

ordering the Choctaws to pay to the United States

$16,003.97 (one-fourth of the amount received in

1888, less costs of collecting) without interest.

(R. 42). The court below reasoned that inasmuch

as the 1906 agreement between the two tribes was

never executed by a Choctaw payment to the

Chickasaws of their share ($16,003.97) of the

funds awarded the Choctaws by the court below

in 1886, the United States could not rely upon it

as a settlement (App. 16-17, 19). But the court

failed to recognize that the United States had ab-

solved itself of all liability for the taking of the

lands by payment in full to one of two co-tenants

and that the claim of the Chickasaws against the

United States, although couched in terms of a re-

quest for payment for a taking, was actually noth-

ing more than a claim against the guardian for not

prosecuting the ward’s rights against third parties.

It is submitted, therefore, that liability rested

primarily upon the Choctaw Tribe and that a

direct judgment should have been entered in favor

of the Chickasaws against the Choctaws. The

statement of the court below (App. 16) that the

Government in its cross-complaint requested that

if judgment were rendered against it, a Judgment

in like amount should be given to it against the

Choctaws is inaccurate. The Choctaws were mede

a party to this case under Section 6 of the Juris-

dictional Act,’ and the Government’s cross-

complaint asked that any judgment ‘‘be made and

entered against the Choctaw Nation and not

against the United States’’ (R. 13). The Court

of Claims had jurisdiction to render such judg-

ment (Chickasaw Nation v. United States, 95 C.

Cls. 192, reversed on other grounds, 318 U. S. 423)

and should have done so, the Choctaws being pri-

marily liable.

3. If procedural reasons require the United

States to make payment to the Chickasaws in the

first instance, then it is submitted that the Govern-

ment is entitled to recover over against the Choe-

taws the same amount and, more urgently, that

no interest should be allowed on the amount pay-

able to the Chickasaws. In its answer, the United

States alternatively asked recovery over against

the Choctaws in the amount of any judgment in

favor of the Chickasaws. The United States paid

in full the just compensation required by the Fifth

Amendment for the taking when in 1888 it paid

$68,102 to the Choctaws, co-tenants with the Chick-

asaws (see supra, pp. 9-12). Thereafter, if the

United States was under any duty toward the

Chickasaws, it was merely to fulfill the Gov-

? Section 6 of the Jurisdictional Act of June 7, 1924, 48

Stat. 537, 538, provides:

“The Court of Claims shall have full authority by proper

orders and process to bring in and make parties to such suit

any or all persons deemed by it necessary or proper to the

final determination of the matters in controversy.”

ie RC eo ee SSR ae See

13

ernment’s obligation as guardian by seeing to

it that the Chickasaws received their share of the

payment made to the Choctaws.* For delay in

effecting the transfer of the Chickasaws’ share of

the proceeds from the Choctaw fund in the Treas-

ury,‘ neither the Fifth Amendment nor any statute

or treaty requires or authorizes the payment

of interest. In the absence of such authori-

zation, it is clear that the court below erred in

allowing interest to the Chickasaws from Feb-

ruary 19, 1906, when the Choctaw-Chickasaw

agreement was approved. Cherokee Nation Vv.

United States, 270 U. S. 476, 487; 490; R. S. sec.

1091, 28 U.S. C. see. 284.

4. In the field of Indian law this case is sui

generis. While the United States regards the

questions raised by this cross-petition as having

3 Thus, instead of the recovery of $17,025.50 allowed by the

Court of Claims, the amount of recovery by the Chickasaws

should be $16,003.97, one-fourth of the amount paid to the

Choctaws, less the expense of collecting. This is the same

amount. agreed upon by the tribes in 1905 (R. 41-42) and

ordered by the court to be paid by the Choctaws to the United

States (R. 42).

* At all material times there were Choctaw funds on deposit

in the Treasury. Report of Commissioner of Indian Affairs

(1888), pp. viii-ix; Report of Commissioner of Indian

Affairs (1906), p. 450; Report of Commissioner of Indian

Affairs (1920), p. 200. If the transfer of funds could not

have been effected by administrative action alone, there was

ample authority under Section 18 of the Act of April 26,

1906, 34 Stat. 137, 144, to litigate the Chickasaws’ claim

against the Choctaws and pay any judgment rendered out of

Choctaw funds.

14

substantial importa?¢® it does not urge that they

are of sufficient imyoTtance taken alone to justify

review, and accoraii8ly it does not desire to press’

its cross-petition in the event certiorari is denied

to the Chickasaw pation in No. 169. If, on the

other hand, eortiorst! is there granted, we believe

that the entire juament of the Court of Claims,

presenting as it do® 2 doubtful interpretation of

the interrelationsh? between the United States

and the Indian tril®» should be reviewed.

CONCLUSION

For the reasons stated, and on the conditioa

suggested above, it is respectfully submitted that

this cross-petition for a writ of certiorari be

granted.

Haroip JUDSON,

Acting Solicitor General.

Avaust 1945.