Appendix — Preston v. United States

oe wee

date of entry of the supplemental decree] * * = *.”

The sale was to be made not earlier than October 24,

1953. This order of sale or judgment was made August

6, 1953, and entered August 10, 1953.

Thereafter, the United States made a motion to the

district court to delete from the order of sale or judg-

ment, the inclusion of interest on the unpaid sums, upon

the ground that:

“* * * the judgment herein as entered [the April

6, 1951, judgment] does not require the payment. of

interest, and interest is not recoverable herein in any

event.”

The court denied the motion as made, but ordered the

supplemental decree to be modified so as to require inter-

est to run from October 6, 1951, the end of the six-month

period in which the fees were payable, without resort to

sale of the land. The last referred to order (modifying

the order of sale) was made October 26, 1953, and

entered November 10, 1953. No appeal was ever taken

from this order.

Subsequently, and before public sale of the property,

private sale of certain portions of the property was made,

and by stipulation and court order the cash proceeds were

deposited in the registry of the court, subject to the same

lien as was impressed on the land.

Appellee Preston petitioned the district court for an

order of payment, out of the money in the court's

registry, of the interest and costs involved (together

with advances made in another action which will be later

clarified) and, after the issuance of a show-cause order, a

hearing, and the findings of fact and conclusions of law,

the court approved by its judgment dated August 21,

a

1954, and entered August 23, 1954. It is from. this

latter judgment that the instant appeal by the United

States and Lee Arenas is taken as to the items of interest

and the advances in the other action.

It is the contention of the appellee that the basis of

the ruling, on the inclusion of the interest and costs in

the judgment, is the order of sale made October 26, 1953,

and entered November 10, 1953, from which no appeal

was ever taken, and that the inclusion of interest and

costs became res judicata thereby.

To this contention little defense is made but appellant

United States says in its brief (and Arenas advances the

same idea):

“Since the suit involved restricted Indian land it was a

suit against the United States and the court’s power was

limited to the extent of the consent of Congress. Con-

gress had not permitted the imposition of interest. There-

fore the order or judgment attempting to charge interest

against the fund was more than erroneous—it was voic

United States v. United States Fidelity [& Guaranty] Co.,

1940, 309 U. S. 506, 514 [60 S. Ct. 653, 84 L. Ea. 894];

United States v. New York [Importing] Rayon Co., 1947

$29 U. S. 654, 658-663 [67 S. Ct. 601, 91 L. Ed. 577];

United States v. Shaw, 1940, 309 U. S. 495 [60 S. Ct.

059, 84 L. Ed. 888]; Tillson v. United States, 1879, 100

U.S. 43 [25 L. Ed. 543]; Carr v. United States, 1878,

98 U. S. 433 [25 L. Ed. 209]. Consequently, whether

or not appealed from, the order of November 10, 1953,

was without effect.”

Unquestionably, the suit is, in nature, against the

United States. In the case of United States v. New York

Rayon Importing Co., 1947, 329 U. S. 654, 658, 67 S. Ct.

a

—e-

601, 603, 91 L. Ed. 577, the United States Supreme Court

(after referring to $177(a) of the Judicial Code wherein

the awarding of interest is specifically proscribed in suits

before the Court of Claims unless upon a contract ex-

pressly stipulating for the payment of interest) says:

“* * * |T]his provision codifies the traditional rule

regarding the immunity of the United States from lia-

bility from interest on unpaid accounts or claims. In

other words, in the absence of constitutional requirements,

interest can be recovered against the United States only

if express consent to such a recovery has been given by

Congress. * * * The consent necessary to waive the

traditional immunity must be express, and it must be

strictly construed. Tillson v. United States, 100 U. S.

43, 25 L. Ed. 543; United States v. Thayer-West Point

Hotel Co., supra [329 U. S. 585, 67 S. Ct. 398, 91 L.

Ed. 521}.”

The principle is applied in Anglin & Stevenson v. United

States, 10 Cir., 1947, 160 F. 2d 670, a case strikingly

similar to the instant case. See Huntley v. Southern

Oregon Sales, 9 Cir., 1939, 104 F. 2d 153.

And it was said in United States v. United States

Fidelity & Guaranty Co., 1940, 309 U. S. 506, 514, 60

S. Ct. 653, 657, 84 L. Ed. 894:

“Consent alone gives jurisdiction to adjudge against a

sovereign. Absent that consent, the attempted exercise

of judicial power is void. The failure of officials to seek

review [as in our case by not appealing from the order

of November 10, 1953] cannot give force to this exer-

cise of judicial power.”

Appellee, however, argues that the sale of certain of

the lands and the payment of the proceeds into the court's

registry worked a redemption of the lands from the lien.

a =

But the sale and the payment into court occurred under

agreement of all parties with and under the stipulation

that the money would be under the same restrictions as

the land.

If, as it seems to us we must do, we hold that the

failure to appeal trom the November 10, 1953, order

modifying the “Order for Sale of Real Property to

Satisfy Supplemental Judgment and Decree” which was

in essence a modifying order of the supplemental judg-

ment, it leaves the matter of interest on the allowed at-

torney fees beyond attack as res judicata if the court had

jurisdiction to allow the interest. If the court. was

without jurisdiction, its action was void as to the allowed

interest, and we have just held it to be; therefore. the

order was of no effect and it did not and could not be

held as res judicata upon the item of interest.

It follows, therefore, that when in compliance with

appellee’s petition for distribution of the accumulated

interest, the court ordered interest paid out of the trust

fund in the court’s registry, nothing stood in the way

of an appeal by the United States and Arenas upon the

ground that the order was void.

We hold that the appeal from the order directing

the distribution of interest upon the sum fixed as attorney

fees was proper and that the order in that particular was

and is void.

In the long litigation concerning the right and extent

of the right to allotment of lands to Lee Arenas, an

action was brought by him in which Eleuteria Brown

Arenas and the United States were defendants. Eleuteria

was an adopted daughter, under tribal custom, of Lee and

Guadaloupe Arenas, Lee's wife. In the prosecution of

this suit, appellee Preston at the request of Lee Arenas

RM EER yO Lee

endian

advanced the sum of $468.19 as expenses in the suit and

the court ordered this sum paid to appellee Preston out of

the funds on deposit in the court's registry. There can

be no question as to the right of appeal on this item, since

it is not mentioned in the original judgment or in the

supplemental judgment or in the amendment to the supple-

mental judgment, and it appears for the first time in the

court’s order entered August 23, 1954, and the appeals of

the United States and Arenas were timely.

The record shows no detail as to why the advanced

monies in the Eleuteria case were ordered distributed out

of the trust funds in the court’s registry. The briefs of

the parties are but sketchy and do not agree with each

other. If the Eleuteria case was as appellee’s brief states

it, that it was:

“* * * in reality, a part of the allotment proceed-

ing and was integrated therewith,”

and we note that the trial judge so regarded it, and that

the expenditure was a necessary and proper one,

“to make fully effective the judgment awarding the allot-

ment of Guadaloupe Arenas to Lee Arenas * * ¥*,”

as appellee claims it to be, we think the court was within

its equitable powers in ordering it paid out of the trust

funds. All intendments are presumed in favor a judg-

ment upon subject matter within the jurisdiction of the

trial court. There is nothing before us upon which we

can hold that the court committed clear error as to this

item or that the order in this particular is void.

The court’s order appealed from is reversed and set

aside as to interest on the attorney fees, and affirmed as

to the payment of $468.19 from the court's registry for

advances made in the Eleuteria Brown Arenas suit.

Reversed in part. Affirmed in part.

INDEX

Page

ET SARS A ARRAS DAS ER ARASRASSE CEC OR bs cond an pee 1

PCL ACACE KEELE AGEN ca a4 k C40 KOR KERN KASt04s CRACK KS 1

IE "60 ccc ass a wc kek 605s UNeawa ha ac hancas 2

nS £iS As ce Read ORGSR CECA RRS RAA CA SKEAD ECLA 2

METS CERCaNCGhishhahnosshawenndcahessaensi ene 3

i TUACLLc ACK S RGR Gand kvash ba vadeeuawaviseccand 8

SE EGCURLOL LG Cece bSaRAhWOCRSABANGO LES ORO RK RCA ll

CITATIONS

CasEs :

Anglin & Stevenson v. United States, 160 F. 2d 670, cer-

en, SO WE WE eck bv ca becccanctdveuacsaac 9

Arenas v. Preston, 181 F. 2d 62, certiorari denied, 340

DT cr Les cece ne enews baahihs Kqakhencesee% 5, 9,10

Arenas v. United States, 60 F. Supp. 411 ................ 4

Arenas v. United States, 187 F. 24 199 .................. 4

Arenas v. United States, 322 U.S. 419 ................... 4

Arenas v. United States and United States v. Arenas, 331

Es ee eee eae bis cee cwakekawas 4

Blackfeather v. United States, 190 U.S. 368 .............. 10

Boston Sand Co. v. United States, 278 U.S. 41 ............ 8

Drummond vy. United States, 324 U.S. 316 .............. 1l

First Moon v. White Tail, 270 U.S. 243 ................ 2

Heckman v. United States, 224 U.S. 413 ................ 11

memes V. Ledbetter, 135 F. 2d G58 .. 2... ccc cece ees 9

Klamath Indians v. United States, 296 U.S. 244 .......... 10

Miller v. Robertson, 266 U.S. 243 ............. ccc ceeee 10

Minnesota v. United States, 305 U.S. 382 ................ 8

Mullen v. Simmons, 234 U.S. 192 ............ cece ceeces 11

St. Marie v. United States, 24 F. Supp. 237, affirmed, 108

F. 2d 876, certiorari denied because petition out of time,

Te Chane te Weane cs ens 06% 640 0KAK a6 60406 +

Standard Oil Co. v. United States, 267 U.S. 76 .......... 10

ee Ws ON WI, ST I GOD ccna a cecanssscwsencs 11

2& eae

ii Index Continued

Page

Sunderland v. United States, 266 U.S. 226 .............. 8

United States v. Arenas, 158 F. 2d 730 .................. 4

United States v. Equitable Trust Co., 283 U.S. 738 ...... 5

United States v. Gilbertson, 111 F. 2d 978 .............. 8

United States v. Goltra, 312 U.S. 203 ................... 8

United States v. Hellard, 322 U.S. 363 .................. s

United States v. Hotel Co., 329 U.S. 585 .............05. 8

United States v. N. Y. Rayon Co., 329 U.S. 654 .......... 8

United States v. Preston, 202 F. 24 740 ................. 5, 10

United States v. Rickert, 188 U.S. 432 .................. 11

United States v. United States Fidelity Co., 309 U.S. 506.. 9

United States v. Worley, 281 U.S. 339 .................. 10

STATUTES:

General Allotment Act of February 8, 1887, 24 Stat. 388,

25 U.S.C. 348,

ea eh RE OLE ET TOT CLEP OT NEE 10

Section 6, as amended by the Act of May 8, 1906, 34

ee. ee Rls MU vo hice Cave Ss OkS bkueene& ce 11

Mission Indian Act of January 12, 1891, 26 Stat. 712,

foes, CT OE OPE CLT EE a OD eee a 11

Act of August 15, 1894, 28 Stat. 286, as amended by the

Act of February 6, 1901, 31 Stat. 760, 25 U.S.C. 345 .... 2,3

Act of Game 21, 1906, 34 Stat. B25 2... ccc ccc wc ucce 10,11

ee Ne EE oso ss wa els Geo Rc ek Cac eck 10

RRM CAL Noel e er tou ein Cn aS ee 11

Judicial Code, see. 24(24), 28 U.S.C. 41(24) (1940 ed.) .. 2

ee ER: UE oc Wein Kae kN Ge RAN eee cece eau be wee kkk 2

Gnthe Supreme Court of the Wnited States

OcToBER TERM, 1956

No. 314

JOHN W. Preston, OLIVER O. CLARK AND

Davip D. Sauer, Petitioners

V.

UnItTep STATES OF AMERICA AND LEE ARENAS

On Petition for a Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The District Court did not write an opinion. The

opinion of the Court of Appeals (Pet. App. 1-8) is

reported at 232 F. 2d 77.

JURISDICTION

The judgment of the Court of Appeals, reversing in

part the judgment of the District Court, was entered

on February 23, 1956 (Pet. App. A., p. 1). A timely

petition for rehearing was denied on May 21, 1956

2

(Pet. App. A., p. 1). The Petition for a writ of cer-

tiorari was filed on August 13, 1956. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

In a suit under the Act of August 15, 1894, to deter-

mine an Indian’s right to certain land allotments, the

Indian claimant was successful. In supplemental pro-

ceedings the District Court assumed jurisdiction to

make an award to the Indian’s attorneys for their serv-

ices and for advances in connection with the litigation,

impressed a lien on the allotted lands to secure pay-

ment of the award, and ordered a portion of the allot-

ment sold to satisfy the award. The proceeds of the

sale were deposited in the registry of the court, sub-

ject to the same lien as was impressed on the land. The

question presented is:

Whether the District Court had jurisdiction to allow

interest on the attorneys’ award from the fund which

represents restricted Indian land.

STATUTE INVOLVED

The Act of August 15, 1894, 28 Stat. 286, 305, as

amended by the Act of February 6, 1901, 31 Stat. 760,

295 U.S.C. 345, is as follows:'

All persons who are in whole or in part of In-

dian blood or descent who are entitled to an allot-

ment of land under any law of Congress, or who

''The jurisdictional provisions of this Act were incorporated in

the Judicial Code, see, 24(24), 28 U.S.C. 41(24) (1940 ed.),

which was identical in scope with the 1894 Act, as amended.

First Moon v. White Tail, 270 U.S. 248, 245. They are now

codified in 28 U.S.C, 1353.

3

claim to be so entitled to land under any allot-

ment Act or under any grant made by Congress,

or who claim to have been unlawfully denied or

excluded from any allotment or any parcel of

land to which they claim to be lawfully entitled

by virtue of any Act of Congress, may commence

and prosecute or defend any action, suit, or

proceeding in relation to their right thereto in the

proper district court of the United States; and

said district courts are given jurisdiction to try

and determine any action, suit, or proceeding aris-

ing within their respective jurisdictions involving

the right of any person, in whole or in part of

Indian blood or descent, to any allotment of land

under any law or treaty (and in said suit the par-

ties thereto shall be the claimant as plaintiff and

the United States as party defendant); and the

judgment or decree of any such court in favor of

any claimant to an allotment of land shall have

the same effect, when properly certified to the

Secretary of the Interior, as if such allotment had

been allowed and approved by him, * * *.

STATEMENT

Invoking the 1894 Act (supra, pp. 2-3), Lee

Arenas, a member of the Agua Caliente or Palm

Springs Band of the Mission Indians, instituted pro-

ceedings in 1940 for the determination of his rights

to trust patent allotments in the Palm Springs Indian

Reservation at Palm Springs, California. After ex-

tended litigation, his rights to certain of the allot-

ments were established.2 Thereupon, his attorneys,

?The course of the litigation was briefly as follows: The Gov-

ernment’s motion for summary judgment of dismissal was granted

on March 6, 1942, and the dismissal was affirmed by the Court of

4

petitioners here, filed in the allotment proceeding a

petition for a supplemental decree which would deter-

mine the amount of compensation for services rend-

ered and the amount of costs and expenses paid by

petitioners for which they had not been reimbursed

by Arenas (R. 3). They sought a judgment against

Arenas, a lien upon the lands to secure the amount

of the judgment, and the sale of a portion of the

allotted lands sufficient to satisfy the judgment. The

United States challenged the jurisdiction of the court

to enter any order which would in any way affect the

restricted allotments, and urged that petitioners’ relief

be limited to a personal money judgment against

Arenas.

The District Court rejected the Government’s con-

tentions and entered a judgment providing for re-

covery from Arenas of a sum equal to 2214 of the

unascertained value of the allotted lands as fees for

services rendered and an additional $258.67 as reim-

bursement for expenses incurred. <A lien was im-

pressed on the allotted lands to secure payment of the

award. Upon appeal, the judgment was affirmed as

Appeals in reliance upon the decision in St. Marie v. United

States, 24 F. Supp. 237 (S.D. Cal.), affirmed, 108 F. 2d 876, cer-

tiorari denied because petition out of time, 311 U.S. 652. Arenas

v. United States, 137 F. 2d 199 (C.A. 9). This Court reversed

the judgment. Arenas v. United States, 322 U.S. 419. Upon

trial, the District Court found Arenas to be entitled to four

allotments claimed by him. Arenas y. United States, 60 F.

Supp. 411 (S.D. Cal.) This judgment was affirmed by the

Court of Appeals as to two allotments and reversed as to the

other two. United States v. Arenas, 158 F, 2d 730 (CLA. 9).

This Court, on June 9, 1947, denied petitions for writs of certi-

orari filed by both parties. Arenas vy. United States and United

States v. Arenas, 331 U.S, 842.

‘5

to the basic issue of the court’s power to impress a

lien upon the restricted Indian’s allotment as security

for the payment of the judgment and to sell the prop-

erty to enforce such lien. The Court of Appeals

recognized the Government’s continuing interest in

the allotted lands, but, relying upon United States v.

Equitable Trust Co., 283 U.S. 738, reasoned that by

the 1894 Act Congress had impliedly consented to the

exercise of all equitable processes which included the

award of attorneys’ fees and the sale of a portion of

the property to satisfy the award. The Court of Ap-

peals concluded, however, that the trial court had

erred in failing to determine the dollar amount of the

fees, and the judgment was reversed and the cause

remanded for such a determination. Arenas v. Pres-

ton, 181 F. 2d 62 (C.A. 9), certiorari denied, 340 U.S.

819,

On remand, the District Court found that petition-

ers were entitled to $90,000 for their services to

Arenas, and on April 6, 1951, entered a judgment in

the total amount of $90,258.67 (R. 3-8). It was silent

as to interest, but provided for the impressment of a

lien and the sale of the allotted lands if petitioners

were not fully compensated within six months, (R. 5-

7). This judgment was affirmed in all respects on

March 16, 1953 (R. 10). United States v. Preston,

202 F. 2d 740 (C.A. 9).

Thereafter, the judgment not having been paid, peti-

tioners moved for an order for the sale of so much of

the property as might be necessary to pay the judg-

ment (R. 10). On August 10, 1953, a judgment was

entered ordering that the property be sold within 30

6

days after October 24, 1953 (R. 8-14). This judgment

provided that the award of $90,258.67 should bear

interest at the rate of 7% per annum from April 6,

1951 (R. 12). The United States filed a motion for

the deletion of the interest provision (R. 15), and on

November 10, 1953, acting on the Government’s mo-

tion, the District Court entered an order amending

the judgment of August 10, 1953, to provide that the

interest should run from October 6, 1951, rather than

from April 6, 1951 (R. 18-19). No appeal was taken

from either of these two orders.

The ordered sale of the allotted lands was several

times postponed because of the pendency of negotia-

tions by Arenas’ private counsel for the private sale

of several parcels of the allotments, and finally ar-

rangements were completed for the private sale of

three parcels at a total price of $123,845.00 (R, 25-44).

On April 30, 1954, on stipulation by the parties, sep-

arate orders were entered with respect to each of the

three parcels (R. 25-44). These orders provided that

the lien of the judgment of April 6, 1951, be trans-

ferred from the lands to the net proceeds ($122,114.00)

of the sale, which amount was deposited in the reg-

istry of the District Court, and also provided that the

order of sale entered on August 10, 1953, should be

‘vacated and set aside and of no further force or

effect”? insofar as it affected the lands described in

the order (R. 30-31, 37-38, 43). Still later, on July 8,

1954, another order was entered, also on stipulation,

declaring that the order for sale should be deemed

vacated (R. 44-45).

7

Thereupon, petitioner Preston filed a petition re-

questing the distribution from the fund on deposit of

the moneys owing to the attorneys, including interest

at the rate of 7% per annum from October 6, 1951 (R.

46-57). The United States again opposed the adding

of interest (R. 57-61). However, on August 23, 1954,

the District Court filed findings of fact and conclu-

sions of law and a judgment upholding the claims of

petitioners in all respects (R. 61-78). The interest

which accrued from October 6, 1951, to July 26, 1954,

was found to be $17,725.80 (R. 66). Pursuant to a

stipulation, the principal amount due to the attorneys

was ordered to be distributed immediately (R. 68-69,

75-76), but the amount of the accrued interest ($17,-

725.80) was ordered to be retained in the registry

pending an appeal, with the further sum of $2,500.00

being retained to take care of interest on the interest

in the event the appeal were unsuccessful (R. 76-77).

On appeal by the Government, petitioners contended

inter alia that the order of sale entered on November

10, 1953 (modifying the order entered on August 19,

1953) was res judicata of the interest question (Pet.

App. A., p. 5). The court below reversed the judgment

insofar as it allowed interest, holding that, since re-

stricted Indian lands were involved, the suit was in

nature one against the United States, so that there was

no jurisdiction to allow interest and consequently the

claim of res judicata was without merit (Pet. App.

A., pp. 5-7).

8

ARGUMENT

1. The decision of the court below denying the allow-

ance of interest on a judgment from the proceeds of

the sale of restricted Indian lands is plainly correct

and does not involve any conflict with the decisions of

this Court or of other Courts of Appeal. It is well

settled that the United States has such an interest in

restricpd Indian lands and the proceeds of their sale

that any suit involving those lands or proceeds is a

suit against the United States. Sunderland v. United

States, 266 U.S. 226, 234-235. Minnesota v. United

States, 305 U.S. 382, 386-388; United States v. Hellard,

322 U.S. 363, 366-367. Consequently, it is only to the

extent of the Government’s consent that the fund in

court may be subjected to adverse claims, and con-

gressiona! consent to suit against the United States

does not include consent to the imposition of interest

unless the statute expressly so states. U'nited States

v. Hotel Co., 329 U.S. 585; United States v. N.Y. Rayon

Co., 329 U.S. 654, 658-659; United States v. Goltra,

312 U.S. 208, 210-211; Boston Sand Co. v, United

States, 278 U.S. 41. In determining whether it has the

power to impose interest the court may not consider the

equities. United States v. N. Y. Rayon Co., 329 US.

654, 659-660; ef. United States v. Gilbertson, 111 F. 2d

978, 980 (C.A. 7). Nor does the invalid entry of an

unconcerted judgment against the United States give

any rights to the plaintiff. Even the ‘failure of of-

ficials to seek review [of an order void for lack of

jurisdiction] cannot give force to this exercise of judi-

9

cial power.’’ United States v. United States Fidelity

Co., 809 U.S. 506, 5143

It is true that the court below has previously held

that the 1894 Act was a consent to subject the

allotted lands to the jpayment of fees to the attorneys

who prosecuted the Indian’s claims. Arenas v. Preston,

181 F. 2d 62 (C.A. 9), certiorari denied, 340 U.S.

819. But it does not ‘follow that the lands, now repre-

sented by the fund in the court’s registry, may be sub-

jected to the payment of interest. As was stated in

Anglin & Stevenson vy, United States, 160 F. 2d 670,

673 (C.A. 10), certiomari denied, 331 U.S. 834, a case

which the court below: found to be “strikingly similar”

(Pet. App. A., p. 6) and which petitioners ignore:

But, consent of the United States to be bound

by a judgment does not amount to an express con-

sent that such judgment shall bear interest. When

the judgment was entered and became final, the

equitable jurisdiction of the court was exhausted.

The imposition Of interest on the judgment was

not a part of the equitable process to which the

Government expressly consented to be bound.

See also Ickes v. Ledbetter, 135 F. 2d 658, 662 (C.A.

D.C.). The opinion in the Anglin & Stevenson case

* Thus, as the court bellow held (Pet. App. A., p. 7), the order

entered on November 10, 1953, could not be res judicata upon the

interest question. See Pet. 12. Moreover, that order (R. 18-19)

could not possibly be res jiudicata upon any issue. Standing alone,

it is plainly not a ‘‘final’’ order, but must be read along with the

order of August 10, 19533 (R. 8-14), which it serves to amend.

Inasmuch as the order of August 10, 1953, was vacated on stipu-

lation (R. 30-31, 37-38, 43, 44-45), it would seem that the order

of November 10, 1953, was likewise ineffective for any purpose.

i

SFE ATRL AST FF OADM

Raed cin AN Iectshaeat Aled le

Lp AON ABR RE I oe

WIRE BP Se

458i ous

CPL SG eee *

teas

AL eg

4

a

Sey ee Ber 2

eS

10

(160 F. 2d at p. 673) also serves to distinguish the

holding in Miller v. Robertson, 266 U.S. 2438, upon

which petitioners chiefly rely (Pet. 6, 7, 15). And

Standard Oil Co. v. United States, 267 U.S. 76, the

only other case upon which petitioners rely which is

even remotely in point, is adequately explained in

United States v. Worley, 281 U.S. 339, 342.

2. If there is error in the disposition by the Court

of Appeals of these supplementary proceedings ini-

tiated by petitioners, it lies in the holding that by the

1894 Act Congress had impliedly consented to the

award of attorneys’ fees and the sale of a portion of

the allotted lands to satisfy such award. Arenas y,

Preston, 181 F. 2d 62 (C.A. 9), certiorari denied, 340

U.S. 819; United States v. Preston, 202 F. 2d 740

(C.A. 9). Such holding was made despite the absence

of any explicit language to that effect in the 1894 Act

and contrary to the principle that, just as in the case

of any other special jurisdictional act waiving the

sovereign immunity from suit, a jurisdictional act

for the benefit of Indians ‘‘is to be strictly construed

and may not by implication be extended to cases not

plainly within its terms.’’ Alamath Indians v. United

States, 296 U.S. 244, 250; Blackfeather v. United

States, 190 U.S. 368, 376. The ruling, in the absence

of which the interest question would not arise, also

runs counter to express statutory restrictions, inelud-

ing the provision that the trust patent allotments were

not to be ‘“‘liable to the satisfaction of any debt con-

tracted prior to the issuing of the final patent in fee

therefor.’’ Act of June 21, 1906, 34 Stat. 325, 327,

25 U.S.C. 354. See also Section 5 of the General Al-

— CO — ms CD

-- > ODO OD

11

lotment Act of February 8, 1887, 24 Stat. 388, 389, 25

U.S.C. 348; Section 5 of the Mission Indian Act of

January 12, 1891, 26 Stat. 712, 713; Section 6 of the

General Allotment Act as amended by the Act of May

8, 1906, 34 Stat. 182, 25 U.S.C. 349; Act of June 21,

1906, 34 Stat. 325, 327, 25 U.S.C. 410. Such restrie-

tions on the disposition of Indian allotments are not to

be lightly disregarded. United States v. Rickert, 188

U.S. 482; Heckman v. United States, 224 U.S. 413, 447;

Starr v. Long Jim, 227 U.S. 613, 625; Mullen v. Sim-

mons, 234 U.S. 192; Drummond v. United States, 324

U.S. 316.

The government has not sought review of this por-

tion of the judgment below, but we refer to it here

because, in our view, this even reveals another reason

why petitioners’ contention is meritless.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

J. LEE RANKIN,

Solicitor General.

Perry W. Morton,

Assistant Attorney General.

Roger P. MargQvis,

JOHN C. HARRINGTON,

Attorneys.

August 1956

WU. S. GOVERNMENT PRINTING OFFICE 1956—396062/P.0. 173