Brief for the United States — Chinburg v. United States

Gnihe Supreme Court of the United States

OctToBER TERM, 1955

No. 423

RatpH A. CHINBURG, doing business as Fremont

Plumbing Shop ; SuNser LUMBER AND HARDWARE

Company, a Wyoming corporation; Ep Von

Krosi@H; CLARENCE E. BiompBera; and C, A.

McDovaa.tL, Sheriff, Fremont County, prEri-

TIONERS

v.

Unrrep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals is reported

at 224 F. 2d 177, and appears also at Pet. App.

17-22.

JURISDICTION

The judgment of the Court of Appeals was en-

tered on June 29, 1955. The petition for a writ of

(3)

UNIS ENUM EAP Ret TOON ERE

2

certiorari was filed on September 26, 1955. The

jurisdiction of this Court is invoked under 28 U.S.

C. 1254(1).

QUESTION PRESENTED

Whether permanent improvements, erected by

an Indian upon land held in fee by the United

States in trust for the Indian, become part of the

trust land and are thus immune from the imposi-

tion of mechanics’ liens under state law and from

sale to satisfy such liens.

STATUTE INVOLVED

Section 5 of the General Allotment Act of Feb-

ruary 8, 1887, 24 Stat. 388, 389, 25 U.S.C. 348,

provides in part as follows:

Upon the approval of the allotments pro-

vided 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 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 or Territory where such land is

located, and that at the expiration of said

period the United States will convey the same

by patent to said Indian, or his heirs as afore-

said, in fee, discharged of said trust and free

of all charge or incumbrance whatsoever:

TENE AG EERO IMEEM Ray |e RERUN EET owt EPI EE ACRE ae TREY gE? a

——— SERED NTE ON CORI AIRE NE oR

3

Provided, That the President of the United

States may in any case in his discretion ex-

tend the period. And if any conveyance shall

be made of the lands set apart and allotted as

herein provided, or any contract made touch-

ing the same, before the expiration of the time

above mentioned, such conveyance or contract

shall be absolutely null and void: * * *.

[Italics supplied. ]

STATEMENT

The facts in this case were stipulated and are

set out in the decision of the court of appeals

(Pet. 17-19). On January 6, 1908, certain land in

Wyoming was allotted to an Indian, Kate S.

Breaker, under section 5 of the General Allot-

ment Act of February 8, 1887, supra. As required

by the Act the patent provided that the United

States hold title in trust for the Indian for a

period of twenty-five years, and the trust period

has been extended by Executive Orders to 1968,

as authorized by the Act. On June 12, 1950, the

land was conveyed by the heirs of the allottee,

with approval of the Secretary of the Interior, to

another Indian allottee, by a deed which preserved

the status of the land as held in fee by the United

States.

In September, 1951, Esther Chamberlin con-

tracted with Ernest Grider, d/b/a U.S. Construc-

tion Company, for the erection of a dwelling house

on the trust property. The petitioners, other than

Cc. A. McDougall, furnished labor and materials

in the construction of the house and filed notice

4

of claim of liens upon the improvements. Esther

Chamberlin paid to Ernest Grider $18,714.00 in full

satisfaction of her indebtedness for the house, such

payment being out of her unrestricted funds. The

four petitioners who had filed mechanics’ liens,

not having been paid off by Grider, filed suits

against the Indian in the District Court of Fre-

mont County, Wyoming, seeking enforcement of the

liens, and on September 23, 1953, judgment was en-

tered against the Indian for an aggregate amount

of $4,968.49, with interest at 7%. The judgment

declared liens for such amount. The state court

judgment provided as follows:

2. That the plaintiffs are entitled to a lien

upon the dwelling house building and improve-

ments placed upon said real property under the

contract with Ernest Grider, * * *, but that

said plaintiffs are not entitled to a lien upon

one acre or any of the said real property here-

inabove described. —

The judgment entered in those cases further ap-

pointed the Sheriff of Fremont County, Wyoming,

to sell the improvements to satisfy the liens as

declared.

The United States was not a party to and did

not participate in those actions. Thereafter, on

December 10, 1953, the United States brought the

instant action against the lienors and C. A. Me-

Dougall, Sheriff of Fremont County. The com-

plaint alleged that the United States holds legal

title to the land and improvements, was not a party

a

5

to the state court litigation, and has not consented

to such a suit. The complaint prayed that the

liens be set aside, that the Government’s title be

quieted against any claims of the defendants, and

that they be enjoined from levying execution, sell-

ing, or removing the improvements.

The cause was submitted to the district court

which concluded that the state court judgments

were valid and that the Government’s application

for injunctive relief should be denied. Upon ap-

peal, the court of appeals reversed upon the author-

ity of this Court’s decision in United States v.

Rickert, 188 U.S. 482.

ARGUMENT

The court of appeals correctly held that the case

is governed by the decision in United States v.

Rickert, supra. There the question was whether

a lien for state taxes could attach to permanent

improvements erected by Indians upon lands held,

as is the land in this case, in trust by the United

States and whether such improvements could be

sold to satisfy such a lien. This Court held that

the improvements became part of the realty, en-

joyed the same immunity, and that the ‘object

[of Congress in making the allotments] would be

defeated if the improvements could be assessed and

sold for taxes’’ (188 U.S. at p. 442).

The circumstance that this case involves an at-

tempt to impose mechanics’ liens, rather than tax

liens, is irrelevant. As the court of appeals put

it (Pet. App. 22), ‘‘The results that would flow

—

_—_ Fao NER Heres curmtns CaamRanmEse eecnesrenes

6

from the taxation of improvements upon land held

in trust by the United States and the sale of such

i improvements for taxes would likewise flow from

the imposition of mechanics’ liens upon lands held

in trust by the United States and the sale of such

improvements to satisfy such liens, and would

frustrate the declared policy of the United States

with respect to such lands.”’

Petitioner purports to distinguish the Rickert

case (Pet. 9-10) by asserting that there the im-

provements were admitted to be a part of the

realty held in trust. The holding to this effect

was not put by this Court on the ground of admis-

\ sions, but as a matter of federal law (188 U.S. at

442). Moreover it is not true that the improve-

ments were admitted to be part of the realty. Re-

spondent in the Rickert case argued that the im-

provements were personalty by virtue of a state

law which undertook to declare them personalty

(Rickerts’ brief, pp. 7-9). This Court flatly re-

jected the argument that state law could intervene

to frustrate the federal policy underlying the mak-

ing of the allotments in trust (188 U.S. at 442), and

this establishes the irrelevancy of Wyoming !aw

relied upon by petitioner (Pet. 7-8).

The suggestion of conflict (Pet. 10-11) between

the decision of the court of appeals and the de-

cisions in McCurdy v. United States, 246 U.S. 263,

and Williams v. First National Bank, 216 U. S.

582, is baseless. The court of appeals was

so unimpressed with the relevancy of those

cases that it made no mention of them, although

ee chee ees eee ee LARS AP eat este Teves

PREETI IS ERO SEARS, LOI ITE TRG SNP ORE BE OTE RR ALN CEE ORE NRE NE ES Pa MN TR ET Oe 8S

7

they were relied upon by the petitioners. And it

is enough to say of them here that they dealt with

matters far afield and wholly unrelated to the ques-

tion in this case, and in no way purported to over-

rule or limit the Rickert decision.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

Srmwon E. Sosevorr,

Solicitor General.

Perry W. Morton,

Assistant Attorney General.

Roger P. Marquis,

Fred W. Smita,

Attorneys.

OctToBER, 1955

470

¥ U. S. GOVERNMENT PRINTING OFFICE: 1955 363492

PPL TIER AREER TAL LIONPSE TE LST CLL CEN PE INI ED