Appendix — Alonzo v. United States (No. 682)

A

APPENDIX A

Statutes Invoived in the Current Controversy

The Rule of Comity, 28 U.S.C. § 2283

A court of the United States may not grant an injune-

tion to stay proceedings in a State court except as ex-

pressly authorized by Act cf Congress, or where necessary

in ald of its jurisdiction, or to protect or cffectuate its

judgements. |

tn

Duty to Furnish Attorney 25 U.S.C. § 175

In all States and Territories where there are reserva-

tions or alletted Indians the United States district attorney

shall represent them in all suits at law and in equity.

In re Restriction on Lands of Pueblos—

Section 17 of Pueblo Lands Act of 1924,

25 U.S.C. § 331, Historical Note

No right, title, or interest in or to the Tands of the

Pueblo Indians of New Mexico to which their title has ft

been extinguished as hereinbefore determined shall here-

after be acquired or initiated by virtue of the laws of the

State of New Mexico, or in any other-manner except as

may hereafter be provided by Congress, and no sale, grant,

lease of any character, or other conveyance of lands, or

any title or claim thereto, made by any pueblo as a com-

munity, or any Pueblo Indian living in a community of

Pueblo Indians, in the State of New Mexico, shall be of

any validity in law or in equity unless the same be first

approved by the Secretary of the Interior.

The New Mexico Enabling Act, Section 2(2),

36 Stat. 557, 558-559, Identical With Article

XXI, Section 2, New Mexico Constitution

That the people inhabiting said proposed State do agree

and declare that they forever disclaim all right and title to

unappropriated and ungranted public lands lying with the

).

boundaries thereof, and to all lands lying within said

boundaries owned or held by any Indfan or Indian tribes

the right or title to which shall have been acquired through

or from the United States or any prior sovereignty, and

that until the title of such Indian or Indian tribes shal!

have been extinguished the same shall be and remain sub-

ject to the disposition and under the absolute jurisdiction

and control of the Congress of the United States; . .-.

The Pueblo a Juristic Person,

N. M. Stat. 1953, Sec. §1-17-1

a

The inhabitants within the state of New Mexico, known

by the name of the Pueblo Indians, and living in towns

or villages built on lands granted to such Indians by the

Jaws of Spain and Mexico, and conceding to such inhabit-

ants certain lands and privileges, to be used for the com-

mon benefit, are severally hereby created and constituted

bodies politic and corporate, and shall be known in the

law by the name of the Pueblo de .......... , (naming it),

and by that name they and their suecessors shall have

perpetual succession, sue and be sued, plead and be im-

pleaded, bring and defend in any court of law or equity,

all such actions, pleas and matters whatsoever, proper to

recover, protect, reclaim, demand or assert the right of

such inhabitants, or any individual thereof, to any lands,

tenements or hereditaments, possessed, occupied or claimed

contrary to law, by any person whatsoever, and to bring

and defend all such actions, and to resist any eneroach-

ment, claim or trespass made -upon such lands, tenements

or hereditaments, belonging to said inhabitants, or to any

individual.

3a

APPENDIX B

Opinion of the Court of Appeals for the Tenth Circuit

Dated September 25, 1957

Before Bratton, Chief Judge, and Puivups and Breiren-

stein, Circuit Judges.

Putups, Cireuit Judge.

On January 25, 1957, Lupe Alonzo, Jim Alonzo, Joe

Alonzo, Valentino Alonzo and James Garcia commenced

an action in the District Court of the Second Judicial

District in and for the County of Valencia, State of New

Mexico, against John Herndon, Anaconda Copper Min-

ing Company, a corporation, the Pueblo of Laguna’ and

Clemente Lente, as governor of the Pueblo and in his

individual capacity, and against Willie Creager, Joe Ross,

Joe Marmon and Lee Marmon, as members of the board

of the Pueblo and in their individual capacities, seeking

a writ of ejectment with respect to certain lands described

in their complaint against the above-named defendants

and damages for minerals alleged to have been wrong-

fully extracted from said lands by the above-named de-

fendants. The state court action was numbered 8016 on

the docket of the state court. Thereafter, on February

21, 1957, the United States, in its own behalf and in be-

half of the Pueblo, commenced this action in the United

States District Court for the District of New Mexico against

the four Alonzos, James Garcia, John Herndon and the

Anaconda Company (formerly Anaconda Copper Mining

Company), a corporation, seeking a judgment quieting

the tithe to certain of the lands embraced in the state

eourt action and enjoining the plaintiffs in the state court

action from prosecuting such action. From an order grant-

ing a preliminary injunction the Alonzos have appealed.

In its complaint the United States alleged that the

title to eertain of the lands: embraced in the state court

1 }lereinafter referred to as the Pueblo.

4a

action was in the Pueblo, subject to regtrictions against”

alienation, and that the title to certain other lands em-

braced in the state court action was in the United States.

Subsequent to the commencement of the instant action

the plaintiffs in the state court action, by amendment

climivated .from that action lands ow ned by the United

States in fee simple and lands claimed by the United

States to be held by it in trust for the Pueblo, so'that the

state court action involved only. lands owned by the Pueblo

in fee simple and alleged to be subject to. restrictions

against alienation by the United States. ;

,

In its complaint the United States vallegeds that the

Pueblo is a nation er tribe of Indigus, recognized by the

Congress of the United States as,a“dependent Indian com-

munity; that it occupies lands#wned by the Pueblo in fee

simple, but subject to restrfetions imposed by the Federal

law against alienation without the consent of the United

States? : : °

In its complaint the Umited States further alleged that

prior to the Treaty of Guadalupe Hidalgo the Pueblo pos-

sessed a good and complete title to a tract of land located

in the Territory of New Mexico known as the Paguate

Grant or the-Paguate Purchase; that the title ~~ -he

Pueblo to the lands within the Paguate Purchase was eon-

firmed by the Act of Congress of June 21, 1860, 12 Stat.

7!. as Claim No. 30 on a list. of claims | recommended for

confirmation by the Surveyor, teneraly pursuant to the

Act of Congress of July 22, 1854, 10 Stat. 308. That such

tithe of the Pueblo to 75,406.27 aeres of such lands was

lurther confirmed by a patent, dated September 22, 1884,

from the United States to the Pueblo.

“ Because of the amendment in the state court action, reference

to the allegations in the complaint in the instant action to lands

owned by the United States for the use of the Pueblo and lands

owned by the United States in fee simple will be omitted. :

ee

epnenr wee See

ja

‘That by the Act of June 7, 1924, 43 Stat. 636, referred

~to as the Pueblo Lands Board Act, Congress created «he

Pueblo Lands Board and authorized it to investigate, de-

termine and report ‘‘the lands within the exterior bound. |

aries of any land granted or confirmed to the Pueblo In

dians of New Mexico by any authority of the United States

of America, or any prior sovereignty, or acquired by said

Indigns as a community hy purchase or otherwise, title

to which the said board shall find not to have heen ex-

tinguished in accordance with the provisions of this Act,

and the board shall not include in their report any claims |

of non-Indian claimants who, in the opinion of said board

after investigation, hold and oceupy such claims of which

> they have had adverse possession, in accordance with the

provisions of section 4 of this Act.”’

That such Board investigated the claim of the Pueblo

to the lands intkaded in the Paguate Purchase and found

there was a conflict between the Paguate Purchase and

the Cubero Grant of 1833 as to a portion of the Paguate

Purchase, as described in the patent of September 22,

1884, and further found that the title of the claimants to

the Cubero Graut was superior to the claim of the AYblo,

as to the conflicting portion, and that such finding had the

effect of ‘extinguishing the claim of the Pueblo to such

portion of the Paguate Purchase, amounting to 10,601.86

acres. That the Board futher found there was a conflict

between the Paguate Purchase and lands claimed by the

owners of the Cebolleta Grant and certain private land

claimants, and that the Board found that the claim of

the Pueblo was superior to the title of such adverse claim-

ants. That the Board further found there was a conflict

between the Paguate Purchase and the lands claimed by

the owners of the Baca Grant of 1769, and that the claim

of the Pueblo was superior to the title of such adverse

claimants. And that the Board determined that, except

for the 10,601.86 acres found to be a part of ihe Cubero

‘

, 6a

Grant, the Pueblo had a superior title to all of the lands

within the Paguate Purchase described in the patent.

That pursuant to #3 of the Pueblo Lands Board Act

an action was instituted by the United States in the United

States District Court for the District of New Mexico to

quiet the title of the Pueblo to the lands involved in the

conflicts between the Paguate Purchase and the Cebolleta

and Baca Grants, entitled United States v. Armijo, et al.,

No. 2080.

That on July 20, 1931, upon stipulation of the parties

‘a final decree was entered in No. 2080, which quieted the

title against the United States and the Pueblo in favor

of the owners of the Cebolleta Grant and 72 private claim-

ants to 10,698.93 acres and quieted title in the Pueblo to

- 14,615.76 aeres involved in the conflict.

That on November 7, 1931, a deeree was entered in.

No. 2080, quieting the title against the United States and

the Pueblo in favor of the claimants under the Baca Grant

to 2,527.29 acres and quieting the title in the Pueblo te

3,809.63 acres involved in the conflict between the Paguate—

Purchase and the Baea Grant.

That the Pueblo is the owner, entitled to. the exclusive

possession of 51,578.19 acres of the original Paguate Pur-

chase, being the area embraced in sueh purchase, less the

10,601.86 aeres found by the, Pueblo Lands Board to be

a part of the Cubere Grant, 10,698.93 acres adjudged to

the owners of the Cebolleta Grant and private claimants

and 2,527.29 acres adjudged to the owners of the Baca

Grant in No. 2080.3

That the Pueblo granted to the Anaconda Company a

permit to prospect for uranium and other minerals as-

sociated therewith, covering the lands owned by the Pueblo

in the Paguate Purchase. That such permit was dated

* The complaint sets out a particular description of sueh 51,578.19

acres of the lands excluded from the Paguate Purchase.

————

7a

October t8, 1951, and was approved by the Department of

Interior on November 8, 1951. :

That the Pueblo, on March 27, 1952, eranted to the

Anaconda Company a mining lease for the extraction of

uranium and other minerals associated therewith from

799.09 acres of lands embraced in the Paguate Purchase,’

that such lease was approved by the Department of In-

terior on May 7, 1952, and remains in full force and ¢ffect.

- That prior to the treaty of Guadalupe Hidalgo and

at all times sinee, the Pueblo -had been and now is the

owner in fee simple, subject to the resirictions on alien-

ability imposed by the United States, of such 51,578.19

acres of the original Paguate Purchase and that during

all of such time the Pueblo has been and now is in open,

notorious, actual, exclusive, continuous and adverse pos-

session of such lands. “That the Alonzos and Garcia are

claiming some individual right, title, or interest apart

trom their rights as members of the Pueblo in such 51,578.19

acres of land; adverse -to the Pueblo, which constitutes a

cloud upon the title of the Pueblo.

That the Pueblo is the owner of 2,174.332 acres of land

acquired by purchase from the Board of Trustees of the

Cebolleta Grant, which were conveyed to it by deed from

such Board of Trustee to the Pueblo, dated April 16,

1937. That such-lands so purchased are a portion of the

lands awarded to the Board of Trustees of the Cebolleta

Grant by the judgment of July 20, 1931.

That the Pueblo is the owner of 2,519.028 acres acquired

by purchase from Cruz Baca and Tiburcia Baea, his wile,

which were conveyed by the Bacas to the Pueblo by deed

dated December 9, 1936. That the last-mentioned lands

are the identical lands awarded to the claimants under the

Baca Grant by tte judgment of November 7, 1931.

$Such lands were particularly deseribed in the complaint and

were part of the lands, title to which was quicted in the Pueblo by

judgment entered in Nu. 2080 Ex uity.

Ss | -

°

nm

y

el

Sa

That the Pueblo is the owner of 480 acres of land ac-

quired by purchase from the Bacas, which were conveyed

to the Pueblo by the Bacas by deed dated July 31, 1939.

That the lands last-mentioned are not within the Paguate

Purchase, but adjoin it on the, north.

That the Pueblo is the owner and entitled to the exclu-

sive possession of all the lands referred to in the last three

preceding paragraphs. That<be Alonzos and Garcia are

clafming some individual right, title, or interest, apart

- from their rights as members of the Pueblo, in such lands,

adverse to the Pueblo, which constitutes a cloud upon the

title of the Pueblo to sucly lands.

That the Pueblo, prior to the Treaty of Guadalupe -

Hidalgo, had a good and complete title to lands now in

the State of New Mexico, known as the 1 Rito, San Juan

and Gigante Ranchos; that such Ranchos included, among

others, lands situated’ in Township 10 North, Range 4

West, N.M.P.M. and Township 10 North, Range 5 West

N.M.P.M.5 That the title of the Pueblo to the Ranchos

lands was confirmed by Act of Congress of June 21, 1860,

12 Stat. 71, by patent dated September 22, 1884, from

the United States to the Pueblo, and by the report of the

Pueblo Lands Board made pursuant to the Act of June

7, 1924; that the Pueblo is the owner and entitled to the

exclusive possession of such lands and beginning prior

_to' the Treaty of Guadalupe Hidalgo and at all times since

as been in the open, notorious, actual, exclusive, con-

tinuous and adverse possession of such lands; that the

Alonzos and Garcia are claiming some individual right,

title, or interest, apart from their rights as members of

the Pueblo, in such lands, adverse to the Pueblo, which

constitutes a cloud upon the title of the Pueblo.

As grounds for injunctive relief the United States al-

leged the commencement and pendency of the state court

* Such lands are particularly described in the complaint.

“>

9a

action, No. 8016, and the relief sought in such action;

that the purpose and effect of such state court action is

to challenge the title and possesion of the United States

and the Pueblo to the 51,578.19 acres of the original

Paguate Purchase and the lands acquired by purchase by

the Pueblo, as above set out.

That in such state court action, No. 8016, the plaintiffs

therein seek to oust the United States and the Pueblo

from such lands to which the Pueblo has title and pos-

session under the guardianship uf the United States; that

the United States is not and cannot be made a party to

the state court action, No. 8016; that in the instant action

the United States has brought before the court all of the

interested parties, so that all conflicting claims may be

litigated in one action; that a judgment entered in the

instant action will be binding upon the Pueblo and all

other parties named as defendants in such action; that

the state court action, No. 8016, constitutes a threat against

and interference with the substantial right of the Pueblo,

as a ward of the United States; and the mineral lessee,

and that the United States does not have an adequate

remedy at law.

That the Anaconda Company discovered a very valu-

able deposit of uranium-bearing ore in the lands covered

by the lease, has proceeded under such lease to develop

a mine, known as the Jackpile Mine, from which large

amounts of uranium-bearing dre are being removed, and

that under the lease the Pueblos have received from the

Anaconda Company royalties of approximately $2,906,000.

In United States v. Sandoval, 231 U. S. 28 47, the court

said:

‘*As before i-.dicated, by an uniform course of action

beginning as early as 1854 and continued up to the

present time. the legislative and executive branches

of the Government have regarded and treated the

Pueblos of New Mexi¢o as dependent communities

10a

.

entitled to its aid and protection, like other Indian

‘tribes, and, considering their Indian lineage, isolated

and communal life, primitive customs’ and _ limited

civilization, this assertion of guardianship over them

cannot be said to be arbitrary but must be regarded

as both authorized and controlling. * * *’”

Under the Spanish law and the laws of Mexico the

Pueblo Indians in New Mexico, ‘although having full title

to their lands, were regarded as in a state of tutelage and

under a special national guardianship and they could alien-

ate their land only under governmental — and

with the approval of des{gnated authorities.”

While the ‘‘Indians of each pueblo’’ in New Mexico,

‘*collectively as a community, have a fee simple title to

the lands of the pueblo * * * their lands, like the tribal

lands of other Indians owned in fee under patents from

the United States, are ‘subject to the legislation of Con-

gress enacted in the exercise of the Government’s guardian-

ship’ over Indian tribes and their property.’”®

Two significant manifestations of the purpose-of Con-

gress to subject the Pueblo Indians and their lands to ’

such legislation oceurred after the decision in United States

v. Joseph, 94 U.S. G14, namely: a decision of the Terri- ©

torial Court of New Mexico !u 1904, holding that Pueblo

lands were taxable, Territory v. Persons, Ete., in Delin-

quent Tax List, 12 N. M. 139, 76 P. 307, ‘‘was promptly

followed by a congressional enactment annulling the taxes

already levied and forbidding further levies,’’ 33 Stat.

1069; and a decision of the Territorial Court, United

States v. Maresy et al” 14 N. M. 1, 88 P. 1128, ‘‘constru-

ing the statute which prohibits the sale of liquor to In-

dians and its introduction into the Indian country as not

®See also United States v. Candelaria, 271 U.S. 432, 439, 440.

7 United States v. Candelaria, 271 U. S. 432, 443.

* United States v. Candelaria, 271 U. 8. 432, 440.

rad

:

lla

including’’ the Pueblo 'ndians or their lands “‘was shortly

followed by an enactment’’ by Congress ‘‘declaring that

the statute should be construed as including both,’’ 36

Stat. 580. ;

Section 12 of the Act of June 30, 1834, 4 Stat. 723,

730 provided : ;

‘‘That no purchase, grant, lease, or other convey-

ance of lands, or of any title or claim thereto, from

any Indian nation or tribe of Indians, shall be of

a any validity in law or, equity, unless the same be made

by treaty or convention entered intg pursuant to the

constitution. * * *’’

The provisions of the last-mentioned statute, ‘with

others ‘regulating trade and intercourse with the Indian

tribes’ was extended, dver ‘the Indian tribes’ of New

Mexico’’ by the Act of February?27, 1851, 9 Stat. 574, 586.

‘In holding that the phrase ‘‘Indian tribes’? as used

in the last two statutes beforémentioned included the

Pueblo Indians, the court in United States v. Candelaria,

271 U. S. 432, 441 said: ma

‘‘While there is no express reference in the provision

to Pueblo Indians, we think it must be taken as in-

cluding them. They are plainly within its spirit and,

in our opinion, fairly within its words, ‘any trjbe of

Indians.’- Although sedentary, industrious and. dis-

posed to peace, they are Indians in race, customs and

domestic government, always have lived in isolated

communities, and are a simple, uninformed people, ill-

prepared to cope wih the intelligence and greed of

other races. It therefore is difficult to believe that

Congress in 1851 was not intending to protect them,

but only the nomadie and savage Indians then living

in New Mexico. A more reasonable view is that the

term ‘Indian tribe’ was used in the acts of 1834 and

1851 in the sense of ‘a body of Indians of the same or

a similar race, gnited in a community under one leader-

ship or governr ent, and inhabiting a particular though

sometimes ill-defined oo "

|

——}

12a

The\ court further held. in the Candelaria ease that Con-

gress had imposed a restriction on the alienation of the |

lands ot the Pueblo Indians, to which the Pueblos had Tull”

title, as a’continuation of a “poliey which the governments

of Spain and Mexico ‘‘had deemed essential to the pro-

tection of such Indians.’” —

Finally, the court in the Candelaria case held that the

Pueblo Indians ‘‘are wards of the United States and hold

their lands subject to the restriction that the same cannot

be alienated in any-wise without its consent. * * *’’; that

a transfer of the lands of a New Mexico Pueblo ‘“eontrary 2

to the inhibition of Congress would be a’ violation of the

governmental rights of the United States arising from its

obligation to a dependant people’’; that ‘‘no stipulations,

contracts, or judgments rendered in suits to which the Gov-

ernment is a stranger can affect its interest’’; and that

“The atuthor ‘ity of the United States to enforce the re-

—straint lawfully created cannot be impaired by’ any action

without its consent.’

Moreover, $17 of the Act of June 7, 1924, 43 Stat, 636,

641 provided:

‘“No right, title, or interest in or to the lands of

the Pueblo Indians of New Mexico to which their title

has not been extinguished as hereinbefore determined

shall hereafter be acquired or initiated by virtue of

the laws of the State of New Mexico, or in any other

manner except as may hereafter be provided by Con-

gress, and no sale, grant, lease of any character, or

other conveyance of lands, or any title or claim thereto,

made by any pueblo as a community, or any Pueblo

Indian living in a community of Pueblo Indians, in

the State of New Mexico, shall be of any validity in

law or in equity unless the same be first approved by

the Secretary of the Interior.”’

d States'v, Candelaria, 271 U. S. 432, 440, 442.

1° United States v. Candelaria, 271 U.S. 432, 442, 444.

13a

That provision insured that the restrictions implicit in

the decision in United States v. Sandoval, 231 U. S. 28, 48,

would continue in force as to lands, title to which was

found to be in the Pueblos. ’

- Counsel for the Alonzos, while impliedly conceding that

the lands of the Pueblo generally have at all times been

subject to restrictions against alienation, without the con-

sent of the United States, make the narrow contention

that lands acquired by the Pueblo by purchase and to

which they hold the fee simple title are not subject to

restrictions against alienation....They predicate their con-

tention in part on language found in §2 of the Now Mexico,

Arizona Enabling Act, 36 Stat. 557, 558, 559, reading as

follows: aoe

‘‘That the people inhabiting said proposed State do

agree and declare that they forever disclaim all right

and title to * * * all lands lying within said boundaries

owned or held by any Indian or Indian tribes the right

or title to which shall have been acquired through or

from the United States or any prior sovereigniy, and

that until the title of such Indian or Indian tribes shall

have been extinguished the same shall be and remain

subject to the disposition and under the absolute juris-

diction and control of the Congress of the United

States;* * *.°’’ (Italics ours.)

It will be observed, however, that the language of the

Act of June 30, 1834, imposes restrictions against the

purchase, grant, lease, or other conveyance of lands or

of any title or claim thereto from any Indian nation or

tribe of Indians, and that the word ‘‘lands’’ is in nowise

limited by any express or implied language in the Act.

The legislative history of the Enabling Act shows that

the purpose of §2,.above quoted, was to preclude any pos-

sible challenge by the state of titles acquired by Indians

through grants made by the Governments of Spain or

Mexico. We think it clear there was no intent to limit

the provisions of the Act of June 30, 1834.

—_

l4a

Moreover, the reason for the Ymposition of the restrie-

tions is in nowise related to the manner in which the Indians

acquired their lands. The purpose of restrictions is to

protect the Indians, ‘‘a simple, uninformed people, ill.

repared to cope.with the intelligence and greed of other

races’! against the loss of their lands by improvident

disposition or through overreaching by members of other

rices. There is as great a need for such protection of

the Pueblos in New Mexico, with respect to their lands

acquired by purchase, as there is to lands otherwise ae-

quired. *

Furthermore, the’51,578.19 acres of land of the original

Paguate Purchase and the Ranchos lands were_ acquired

by the Pueblo prior to the Treaty of Guadalupe Hidalgo

and were owned and possessed by it at the time of the

passage of the Act of June 7, 1924. Section 17 of that Act,

quoted above, insured that the restrictions which Congress

recognized as theretofore existing, with respect lands

owned and possessed by the New Mexico Pueblos, as a

community, should continue, exeept in cases where the

Pueblos’ title had been extinguished, as provided for in

such Act. Ms"

&

Finally, United States v. Candelaria, 271 U. S. 482, was

an action brought by the United States as guardian of the

Pueblo of Laguna to quiet the title to the lands embraced

in the Paguate Purchase and in that case the court held

that such lands were subject to restrietions against aliena-

tion without the consent of the United States.

We are of the opinion that the restrictions against

alienation apply to lands aequired by the Pueblo through

purchase, as well as to lands acquired by the Pueblo in

any other manner.

But if we be wrong in our conclusion, which we do not

concede, that the Enabling Act did not by implication re-

™ T'nited States v. Candelariz, 271 U. S. 432, 442.

loa

move restrictions with respect to lands acquired by the

Pueblos by purchase, such restrictions were clearly reim-

posed by §17 of the Act of 1924, which clearly applies

without. qyalification to all. lands of the Pueblo Indians

of New Mexico. The power of Congress to reimpose re-

strictions while the Pueblos were still wards of the Nation

is not open to question.”

With respect to the right of the United States to

injunetive relief, we think the decision of the United States

in Leiter Minerals, Inc.’ v. United States, 352 U. S. 120,

is controlling. Leiter brought an action in a Louisiana

state court against certain mineral lessees of the United

States. Leiter was out of possession, but claimed title

to and sought to have itself declared owner of the mineral

rights under land owned by the United States and also

sought an accounting for oil and other minerals removed

by such lessees under.their lease from the United States.

‘Leiter founded its claim on Louisiana Act No. 315 of

1940, La. Rev. Stat. 1950, 9:5806, which, it alleged, made

‘‘imprescriptible’’ a reservation of mineral rights in a

deed of December 21, 1938,.to the United States by its

predecessor in title. After the commencement of the state

court action the United States filed an independent action

to quiet its title to the mineral rights, naming all the

parties to the state court action as defendants, and sought

a preliminary and permanent injunction to restrain the

defendants from further prosecution of the state court

action. The Federal District Court issued a preliminary

injunction. On appeal, the United States-Court of Appeals

for the Fifth Cireuit affirmed the order granting the pre-

liminary injunetion.’* The Supreme Court granted certi-

orari and affirmed the judgment of the Court of Appeals.

In its decision the Supreme Court held that the United

12 Brader v. James, 246 U. S. 88, 96; MeCurdy v. United States,

°246.U. S. 263, 273.

13 Lefter Minerals, Inc. v. United States, 5 Cir., 224 F. 2d 381.

‘

16a

States was not precluded from seeking injunctive relief

by the provisions of 28 USC §2283, and that injunctive

relief, under the circumstances, was proper.

Counsel for the Alonzos seek to distinguish the Leiter

case by reason of the fact that there the Government was

-the owner of the lands in fee simple and in the instant

ease the fee simple title to the lands involved is in the

Pueblo and the Government is suing to vindicate the title

of the Pueblo. But restricted Indian land is property in

which the United States has an interest. In United States

v. Hellard, 322 U. S. 363, the question was presented as

to whether full-blood Indians of the Five Civilized Tribes

could be divested of title to restricted land by a sale

pursuant to a judgment of a state court in a partition

proceeding to which the United States was not a party.

In holding that the United States was not bound by the

judgment in the state court action to which it was not a

party, the court in its opinion said:

‘*Restrieted Indian land is property in which the

Inited States has an interest. ‘This national interest

is not to be expressed in terms of property, or to be

limited to the assertion of rights incident to the owner-

ship of a reversion or to the holding of a technical

title in trust.’ Heckman vy. United States, 224 U. S.

413, 487. Though the Indian’s interest is alienated by

judicial decree, the United States may sue to cancel

the judgment and set the conveyance aside where it

was not a party to the action. Bowling & Miami

Investment Co. v. United States, 233 U. S. 528; Privett

v. United States, 266 U. S. 201; Sunderland v. United

States, 266 U. S. 226. Under §2 of the Act of June

14, 1918 lands partitioned in kind to full-bloods remain

restricted. Only if the land is sold at partition sale

are the restrictions removed. The governmental inter-

est throughout the partition proceedings is as clear

as it would be if the fee were in the United States.

Minnesota v. United States, 305 U. S. 382, 387-388:

Town of Okemah v. United States, 140 F. 2d 963.

soe (eee ore

lfva

We are of the opinion that the Governmental interest

in the instant action is as great as it would be if the fee

to the lands involved were in the United States. Indeed,

since the United States is suing as a guardian of a depend-

ent nation in diseharge of a fiduciary duty, its right and

duty to protect the interests of its wards may be even

greater than it would if it were suing in its own behalf

with respect to its own iands.

Counsel for the Alonzos further contend that the United

States could have appeared in the state court action and

that it was its duty so to do, but in the Leiter case the

Supreme Court said:

«<* * * In this case, a private party is seeking by

a state proceeding to obtain property currently in

the hands of persons holding under the United States;

the United States,is seeking to protect that possession »

and quiet title-by a federal court proceeding. There-

fore, since the position of the United States is essen-

tially a defensive one, we think that it should be per-

mitted to chocse the forum in this case, even though

the state litigation has the elements of an action char-

acterized as quasi in rem. * * * ’’ (Italies ours.)

Accordingly, we conclude that the United States is en-

titled to injunctive relief.

Affirmed.