Sampson v. U.S., 75-1883

Decision Date02 April 1976
Docket NumberNo. 75-1883,75-1883
Citation533 F.2d 499
PartiesMartin J. SAMPSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before WALLACE and KENNEDY, Circuit Judges, and BOHANON, * District Judge.

PER CURIAM:

This suit was brought to compel an Indian land allotment. 25 U.S.C. § 345; 28 U.S.C. § 1353. The district court granted judgment for the defendant United States, and we affirm.

Procedural Background

Plaintiff Sampson is a Swinomish-Skagit Indian. Under the Treaty of Point Elliott, Jan. 22, 1855, 12 Stat. 927, and the General Allotment Act of 1887, as amended, 25 U.S.C. §§ 331-58, members of his tribe were eligible to apply for individual allotments of land within the Swinomish Indian Reservation, located on an island in Puget Sound, Washington.

In 1926, Sampson applied for allotment of a certain 80 acres of tidelands bordering Swinomish Slough, a passage of water dividing part of the reservation from the mainland. The local superintendent favorably endorsed this application, but it was subsequently denied by the Commissioner of Indian Affairs. The administrative record included two reasons for the denial: (1) that the tidelands in question had not been included in a survey of land appropriate for allotment; and (2) that, since Swinomish Slough was non-navigable, the tidelands belonged to the adjacent riparian owners.

Sampson made subsequent inquires about this land, and over much of this century he has used it for nonresidential purposes such as grazing horses. In 1934, the Indian Reorganization Act, as amended, 25 U.S.C. §§ 461-79, foreclosed further allotments on the Swinomish reservation.

This action was brought in 1971. Sampson claimed that the Commissioner had improperly denied his application for an allotment in 1926, and that he thus acquired a vested right to the land in question prior to passage of the Indian Reorganization Act in 1934. The government conceded that Swinomish Slough was in fact navigable in 1926. However, the district court agreed with the government's contention that Sampson's application had been properly rejected, since the land had not been included in a previous survey.

Availability of Judicial Review

Sampson claims eligibility for an allotment under a treaty and a statute which vest considerable discretion in the President or his delegate. Article VII of the treaty provides that the President

may further at his discretion cause the whole or any portion of the lands hereby reserved . . . to be surveyed into lots, and assign the same to such individuals or families as are willing to avail themselves of the privilege . . . .

12 Stat. 927, 929. With regard to Indian reservations, the General Allotment Act authorized the President

to cause the same or any part thereof to be surveyed or resurveyed whenever in his opinion such reservation or any part may be advantageously utilized for agricultural or grazing purposes by such Indians, and to cause allotment to each Indian located thereon to be made in such areas as in his opinion may be for their best interest . . . .

25 U.S.C. § 331.

The discretion accorded by these provisions is not unreviewable. Section 345 specifically authorizes an action by one who claims to have been unlawfully denied an allotment; the district court is empowered to enter a judgment with the same effect as if the allotment had been approved. Thus the Secretary's decision to deny Sampson's application is subject to judicial review in this lawsuit. Arenas v. United States, 322 U.S. 419, 429-34, 64 S.Ct. 1090, 1094-96, 88 L.Ed.2d 1363, 1370-73 (1944); Pence v. Kleppe,529 F.2d 135, 139 (9th Cir. 1976). 1

The Superintendent's Approval

The district court found that the superintendent did not have the authority to effect an allotment to Sampson in 1926. Therefore, his endorsement of the application did not create a vested right to the land. Indeed, the application itself indicated that a favorable decision by the Commissioner was necessary. Under the facts of this case, we are satisfied the district court was correct in rejecting the argument that further approval by the Commissioner was purely a ministerial act. See Lemieux v. United States,15 F.2d 518, 521 (8th Cir. 1926), cert. denied, 273 U.S. 749, 47 S.Ct. 458, 71 L.Ed. 872 (1927).

The Commissioner's Decision

Under both the treaty and statute involved here, a precondition to allotment was an...

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3 cases
  • Nichols v. Rysavy, 593
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 25 Febrero 1987
    ...United States' sovereign immunity in this case. 13 In so concluding, the Ninth Circuit noted its awareness of Sampson v. United States, 533 F.2d 499 (9th Cir.1976), in which no statute of limitations was applied to a section 345 claim that had accrued in 1926. The court stated that "specula......
  • Big Spring v. U.S. Bureau of Indian Affairs, s. 84-4141
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 31 Julio 1985
    ...has reached the merits of claims that clearly had accrued more than six years before suit was filed. See Sampson v. United States, 533 F.2d 499 (9th Cir.1976) (per curiam). There have also been doubts as to whether section 2401(a) applies to both legal and equitable relief sought under sect......
  • Christensen v. U.S., 84-1971
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 12 Marzo 1985
    ...to apply a statute of limitations to actions which would appear to have been untimely under section 2401(a). See Sampson v. United States, 533 F.2d 499 (9th Cir.1976) (although section 345 action brought for a denial of a 1926 allotment application, court does not apply statute of limitatio......

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