# Appendix — Preston v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1956
- **Citation:** 352 U.S. 871

## Text

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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. 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

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