St. Marie v. United States

• Decision Date: 03 January 1940
• Docket Number: No. 9089.,9089.
• Citation: 108 F.2d 876
• Parties: ST. MARIE et al. v. UNITED STATES et al., and seventeen other cases.
• Court: U.S. Court of Appeals — Ninth Circuit

108 F.2d 876 (1940)

ST. MARIE et al. v. UNITED STATES et al., and seventeen other cases.

No. 9089.

Circuit Court of Appeals, Ninth Circuit.

January 3, 1940.

Thomas L. Sloan, of Palm Springs, Cal., and J. W. Henderson, of San Francisco, Cal., for appellants.

Norman M. Littell, Asst. Atty. Gen., C. W. Leaphart, Sp. Asst. to Atty. Gen., Norman MacDonald, of Washington, D. C., and John L. Wheeler, Attys., Department of Justice, Ben Harrison, U. S. Atty., and Russell K. Lambeau, Asst. U. S. Atty., all of Los Angeles, Cal., for appellees.

Before WILBUR, GARRECHT, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

Eighteen suits were brought by members of the Agua Caliente band of Mission Indians to obtain adjudications that allotments of tribal lands had been made to them, and that they were entitled to trust allotment patents. The cases were consolidated for trial, and decrees were entered against the Indians, of which review is here sought.

There are several bands of Mission Indians. The Act of January 12, 1891, Ch. 65, 26 Stat. 712, hereafter called the Mission Indian Act, was enacted "for the relief" of such Indians. The act provided, in general, for the selection of reservations, and for allotments in severalty. Provision was made in the first three sections for the appointment of three commissioners who were "to select a reservation for each band or village of the Mission Indians", which selection was to be valid when approved by both the President and the Secretary of the Interior, after which patent was to issue for each reservation to the band occupying the same.

In conformity with that act, three commissioners were appointed, and they recommended that a reservation of 6 sections in one township, and 1 section in another township be reserved for the Agua Caliente band. The President and the Secretary of the Interior approved the report of the commissioners, on December 29, 1891, and the lands mentioned were withdrawn. The quantity of land in the reservation has been greatly increased by further withdrawals for that purpose. Lands were patented to the band on May 14, 1896, on October 29, 1906, on January 5, 1911 and on March 29, 1923, and in addition a section and a quartersection were purchased for the band. The reservation is near and almost surrounds Palm Springs, California. The Agua Caliente band is located on this reservation.

The Mission Indian Act in §§ 4 and 5 made provision for allotments in severalty. The material parts of these sections are:

"Sec. 4. That whenever any of the Indians residing upon any reservation patented under the provisions of this act shall, in the opinion of the Secretary of the Interior, be so advanced in civilization as to be capable of owning and managing land in severalty, the Secretary of the Interior may cause allotments to be made to such Indians, out of the land of such reservation, in quantity as follows: specifying quantities of grazing and arable land to be allotted.

"Sec. 5. That upon the approval of the allotments provided for in the preceding section by the Secretary of the Interior he shall cause patents to issue therefor in the name of the allottees, which 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 * * *."

The Secretary of the Interior made no attempt to allot any of the lands until enactment of the Act of March 2, 1917, Ch. 146, 39 Stat. 969, 976.

Section 3 of the act last mentioned amended § 3 of the Mission Indian Act and authorized "the President, in his discretion and whenever he shall deem it for the interests of the Indians affected thereby, to extend the trust period for such time as may be advisable on the lands held in trust for the use and benefit of the Mission Bands or villages of Indians in California". It further provided: "* * * That the Secretary of the Interior be, and he is hereby, authorized and directed to cause allotments to be made to the Indians belonging to and having tribal rights on the Mission Indian reservations in the State of California, in areas as provided in section seventeen of the Act of June 25, 1910, 36 Stat. 859, instead of as provided in section four of the Mission Indian Act. * * *"

The Act of June 25, 1910, Ch. 431, § 17, 36 Stat. 855, 859, 25 U.S.C.A. §§ 331, 336, mentioned in the preceding statute, is an amendment of the General Allotment Act, Act of February 8, 1887, Ch. 119, 24 Stat. 388, 25 U.S.C.A. § 331 et seq.

The General Allotment Act was intended to be and was a general act relating to all Indian reservations, except certain ones named in § 8, 25 U.S.C.A. § 339. The Mission Indian reservations were not excepted, undoubtedly because at that time no reservations for the Mission Indians had been made. Section 1 of the General Allotment Act authorized the President to survey reservations and allot the lands therein in severalty in specified quantities. Section 2 provided that "all allotments set apart under the provisions of this act of sections 331 to 334, inclusive, and 336 shall be selected by the Indians, heads of families selecting for their minor children, and the agents shall select for each orphan child * * *". Section 3 provides for the making of allotments "by special agents appointed by the President for such purpose, and the agents in charge of the respective reservations * * *" and for certification of such allotments. Section 5 is nearly identical to § 5 of the Mission Indian Act in the part thereof quoted, and provides for issuance of a trust patent upon approval of the allotments. The Act of June 25, 1910, Ch. 431, § 17, 36 Stat. 855, 859, 25 U.S.C.A. § 331, amended § 1 of the General Allotment Act, as previously amended, but only as to the areas to be allotted, requiring the President to cause allotments "to be made in such areas as in his opinion may be for their best interest not to exceed eighty acres of agricultural or one hundred and sixty acres of grazing land to any one Indian. * * *"

It should be noted that there are important differences between the General Allotment Act and the Mission Indian Act. The former provides for survey of lands, appointment of allotting agents, selection of lands by Indians, and certification of allotments. None of these features are found in the Mission Indian Act.

On June 7, 1921, the Secretary of the Interior appointed one Wadsworth a special allotting agent at large for the Mission Indian reservations in California, effective July 1, 1921, and authorized him to survey and classify the lands in the Agua Caliente reservation, prepare an allotment schedule and issue certificates of selection. Wadsworth prepared an allotment schedule in 1923 and issued certificates of selection. In preparing the allotment schedules in 1923, Wadsworth made arbitrary or compulsory selections for Indians who failed or refused to make selections. Subsequently he was directed to prepare new allotment schedules containing only selections voluntarily made by the Indians. In 1927, Wadsworth prepared new allotment schedules, and issued certificates of selection.

The classification of the lands in the reservation resulted in three classes; desert lands, irrigable lands, and town lots. It was decided that the proper amount of lands to be allotted was 40 acres of desert land, 5 acres of irrigable lands and two acres of town lots to each Indian.

Typical of the selection certificates is the following:

"Selection for Allotment on Palm Springs Indian Reservation, 1927.

"This is to certify that Genevieve Pierce St. Marie has selected the S-? NE-ž SE-ž SE-ž Sec. 22; NW-ž of Section 22, township No. 4 South, Range No. 4 East, of the San Ber. M., containing 45 acres, more or less, according to Government survey. Stake No. -------. Not valid unless approved by the Secretary of the Interior.

"See Remarks other side this certificate. "H. E. Wadsworth "U. S. Special Allotting Agent."

"Remarks:

"In addition to the parcels described on the front of this certificate an unsurveyed two-acre tract has been selected in the SW-ž SW-ž SW-ž Sec. 14, Tp. 4 South, Range 4 East, which will be scheduled when the necessary surveys have been made.

"H. E. Wadsworth "Special U. S. Allotting Agent."

Certification of the allotment schedule of 1927 was made as follows:

"Palm Springs, California "May 9, 1927.

"This is to certify that listings of allotment selections for the Indians of Palm Springs (Agua Caliente) Indian Reservation, Calif., began on June 1, 1923, and the same were completed on May 9, 1927; and that it is further certified that the allotments shown hereon were made in accordance with the provisions of the act of Congress of February 8, 1887 (24 Stat.L. 388), as amended by the act of June 25, 1910 (36 Stat.L. 855), and supplemented by the act of March 2, 1917 (39 Stat.L. 969-76).

"H. E. Wadsworth "Special Allotting Agent. "C. L. Ellis "Superintendent Mission Indian Agency, California."

Some of the selections have become valuable for use as a winter resort, and as a result of considerable private expenditures. Neither the allotment schedules nor the certificates of selection have been approved by the Secretary of the Interior.

These suits were begun by Indians to whom certificates of selection were made and in some cases by the heirs of a deceased selector. The prayer was for a decree adjudicating that allotments had been made, and that the complainants were entitled to a trust allotment patent. The trial court held that before there could be a valid allotment the Secretary must: (1) determine that the Indians have reached the degree of civilization required by the act; (2) make an order "setting up the mechanics for selection"; and (3) make and approve actual allotments; that no allotment was made; and that if the certificates of selection could be considered as a...