Capoeman v. United States, 524-69.

• Citation: 194 Ct. Cl. 664,440 F.2d 1002
• Decision Date: 16 April 1971
• Docket Number: No. 524-69.,524-69.
• Parties: Horton CAPOEMAN v. The UNITED STATES.
• Court: Court of Federal Claims

194 Ct. Cl. 664, 440 F.2d 1002 (1971)

Horton CAPOEMAN v. The UNITED STATES.

No. 524-69.

United States Court of Claims.

April 16, 1971.

Charles A. Hobbs, attorney of record for plaintiff, Wilkinson, Cragun & Barker, and Charles H. Gibbs, Jr., Washington, D.C., of counsel.

Herbert Pittle, Washington, D.C., with whom was Asst. Atty. Gen. Shiro Kashiwa, for defendant.

Before COWEN, Chief Judge, LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

NICHOLS, Judge.

This case is before us on cross motions for summary judgment. The plaintiff is a so-called "noncompetent" Quinault Indian who is suing for recovery of certain charges made by the Government incident to the sale by it, as trustee, of the timber standing on plaintiff's trust allotment. This court presently has jurisdiction under 28 U.S.C. § 1491, to hear the claims of individual citizen Indians. Fields v. United States, 423 F.2d 380, 191 Ct.Cl. 191 (1970).

Defendant holds title to plaintiff's land as trustee pursuant to the General Allotment Act of 1887, 25 U.S.C. §§ 331 et seq., under which plaintiff was allotted in October, 1907, a "trust patent" for 93.25 acres situated on the Quinault Indian Reservation in the State of Washington. Between June 30, 1943, and August 10, 1946, defendant sold timber standing on plaintiff's allotment to the Aloha Lumber Company, for $15,080.80, from which it retained $1,238.87, as administrative expenses, under purported authority of 25 U.S.C. § 413, and credited only $13,841.93 to plaintiff's trust account.

Plaintiff says that defendant had no right to make any deductions from the proceeds of the sale and that by so doing there has been assessed a "charge" on plaintiff's trust allotment in violation of the rights vested in plaintiff by 25 U.S. C. § 348. That act provides, inter alia, that:

Upon the approval of the allotments provided for in sections 331-334 of this title, by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents 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, or, in case of his decease, of his heirs according to the laws of the State or Territory where such land is located, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: * * *. (Emphasis supplied.)

The trust period has been extended. See 25 U.S.C. § 391 and 25 U.S.C. § 462.

Defendant, in its cross motion for summary judgment, has raised the threshold question of whether plaintiff's claim is barred by the six year period of limitations provided in the Tucker Act, 28 U.S.C. § 2501:

Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.

The contested deduction was made and notice given to plaintiff in 1946. Plaintiff filed his claim in this court on December 24, 1969. He does not contend that he is within the six year period but he asserts that the statute of limitations should not be applied to bar his claim. In support of this contention, he advances three related theories which we will consider one at a time.

First, he cites as a rule that where the Government holds property in trust for another, "the statute does not run against a beneficiary until the trust is terminated or repudiated." As authority he refers us to United States v. Taylor, 104 U.S. 216, 26 L.Ed. 721 (1881); Wayne v. United States, 26 Ct.Cl. 274 (1891), and Russell v. United States, 37 Ct.Cl. 113 (1902). But those cases all involved liquidated claims for which money had been appropriated and the validity of which was uncontested. That is, money which the Government acknowledged owing to the plaintiffs was allowed by the plaintiffs to sit unclaimed in the Treasury for many years. The court in each case held that the statute of limitations did not begin to run until demand for payment had been made. The refusal to pay on demand was held to be a "repudiation" of the trust. In United States v. Taylor, supra, the Supreme Court said at 221:

This section limits no time within which application must be made for the proceeds of the sale. The Secretary of the Treasury was not authorized to fix such a limit. It was his duty, whenever the owner of the land or his legal representatives should apply for the money, to draw a warrant therefor without regard to the period which had elapsed since the sale. The fact that six or any other number of years had passed did not authorize him to refuse payment. The person entitled to the money could allow it to remain in the treasury for an indefinite period without losing his right to demand and receive it. It follows that if he was not required to demand it within six years, he was not required to sue for it within that time.

The case at bar is easily distinguishable because here, the Government contends that plaintiff never had a right to the fund in suit, and it has been holding adversely to him ever since the deduction was first made. In the cited cases the only barrier imposed by the defendant against plaintiff's recovery was the passage of time.

Plaintiff next contends that his claim comes under the exception to the limitations period of § 2501, which provides:

A petition on the claim of a person under legal disability or beyond the seas at the time the claim accrues may be filed within three years after the disability ceases.

"Disability" is of course a term of many meanings. A person whose driver's license has been revoked might be deemed to be under a "disability", but we suppose it would not toll the running of limitations under § 2501 as to any claim against the Government he might have. Logically, one would look for a "disability" that impaired his access to the Court of Claims in some manner. Plaintiff's counsel cheerfully concedes that whatever of such access he has today, he had in 1946 when the claim accrued, and has had at all times in between. While the "disability" proviso speaks of all citizens without discrimination, plaintiff seeks to invoke it by some mystique peculiar to Indian law. We do not reject that idea without examining it with care and solicitude, as befits the modern attitude towards that much wronged race.

Plaintiff asserts that his status as a "noncompetent" Indian is indistinguishable from the disability of infancy or mental incapacity. We reject that view. The classification as "noncompetent" is in reference to plaintiff's being an allottee of a trust patent issued pursuant to the General Allotment Act, which provides that any such allottee shall be incapable of alienating his allotment during the period of the trust. The Act of May 8, 1906, 25 U.S.C. § 349, amended the General Allotment Act to provide that:

* * * the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent: * * *

In the plaintiff's case, the Secretary has never issued to him a patent in fee simple, and therefore as to this allotted land he remains to that extent "noncompetent". That, however, does not mean plaintiff is not otherwise capable of managing his affairs and dealing with any other property he might own in any manner he wishes. This "noncompetency" in relation to his trust allotment would not prevent him from making a will, or entering a contract which did not involve the allotted land. There may be other reasons, apart from his being a holder of a patent on restricted land, why plaintiff could be adjudged legally incompetent, but he has alleged none in this proceeding. Indeed, if such were the case, this action would have to be prosecuted by his duly appointed representative under Rule 61(c), and his suing in his own name confesses that such "disability" does not exist. The Supreme Court said in Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 368-369, 88 S.Ct. 982, 984, 19 L.Ed.2d 1238 (1968):

* * *. In our view, these restrictions on the Indian\'s control of his land are mere incidents of the promises made by the United States in various treaties to protect Indian land and have no effect on the Indian\'s capacity to institute the court action necessary to protect his property. * * *

We might infer as a corollary to that statement that the "have no effect" language cuts both ways — that is, the Indian, while not handicapped by his restricted status, is not thereby given a crutch with which to avoid a clear mandate of Congress, i. e., the statute of limitations.

The most authoritative treatise on the subject of Indian law is the handbook, Federal Indian Law, written by the late Felix Cohen, and published by the Department of the Interior. We refer to Cohen on Indians as we would to Wigmore on Evidence. United States v. Native Village of Unalakleet, 411 F.2d 1255, 1259-1260, 188 Ct.Cl. 1, 12 (1969). Mr. Cohen devoted an entire section of his book to the meaning of "incompetency". In the 1958 edition at page 553, under the heading Restricted Meanings, is the following:

* * *. Perhaps the most frequent special use of the term "incompetency" is to describe the status of an Indian incapable of alienating some or all of his real property. Such an Indian may be competent in the ordinary legal sense. An outstanding example is Charles Curtis, who, though he became Senator and Vice President of the United

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