137 F.2d 199 (9th Cir. 1943), 10219, Arenas v. United States

Docket Nº:10219.
Citation:137 F.2d 199
Case Date:June 30, 1943
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 199

137 F.2d 199 (9th Cir. 1943)




No. 10219.

United States Court of Appeals, Ninth Circuit.

June 30, 1943

Rehearing Denied Aug. 4, 1943.

Oliver O. Clark, David D. Sallee, Harry Ashton, and Robert A. Smith, all of Los Angeles, Cal., for appellant.

Norman M. Littell, Asst. Atty. Gen., Norman MacDonald, Atty., Dept. of Justice of Washington, D.C., and Irl D. Brett, Sp. Asst. to Atty. Gen., for appellee.

Before WILBUR, DENMAN, and MATHEWS, Circuit Judges.

WILBUR, Circuit Judge.

The appellant is a member of the Agua Caliente Band of Mission Indians of the Palm Springs Reservation in Riverside, California. He claims the right to certain land described in his complaint on the theory that the same has been allotted to him by the Secretary of the Interior. He admits that the points raised by him were disposed of by this court adversely to his claim in the case of St. Marie v. United States, 9 Cir., 108 F.2d 876. He claims, however, that that decision was in error and also that this case may be distinguished from the former decision upon the ground that it is admitted in the case at bar 'that there had been a determination that the Indians in question were sufficiently advanced so as to comply with the act' under which the allotments were made. That case was predicated upon the theory that until the Secretary of Interior approved the alleged allotments there was no right thereto vested in the alleged allottee. In this case we follow the decision heretofore made in the St. Marie case.

The appellant also urges that there is an estoppel on the part of the federal authorities to question the validity of the alleged allotment to the appellant. There is no merit in this contention. Utah Power & Light Co. v. United States, 243 U.S. 389, 37 S.Ct. 387, 61 L.Ed. 791; Yuma County Water Users' Ass'n v. Schlecht, 262 U.S. 138, 43 S.Ct. 498, 67 L.Ed. 909.


Page 200

DENMAN, Circuit Judge (concurring).

I concur. Congress by the Act of June 18, 1934, 25 U.S.C.A. § 461, has taken from the Secretary of Interior any power he theretofore had to allot lands, except with the consent of the tribe, such consent not here known to have been given. 25 U.S.C.A. § 478a. Unless Arenas had some legal or equitable right to the lands he claims, of which it would be a violation of the Fifth Amendment to deprive him, his claim...

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