809 F.2d 1317 (8th Cir. 1987), 85-5234, Nichols v. Rysavy

Docket Nº:85-5234, 85-5432, 85-5445, 86-5034 to 86-5042.
Citation:809 F.2d 1317
Party Name:Katherine B. NICHOLS, Individually and as Special Administratrix of the Estate of Amelia Huston Nichols No. 593, Deceased, Appellant, v. Don RYSAVY, Margaret Rysavy, Raymond DeMers, Leo Novotny, Raymont DeMers, Geraldine DeMers, Doris Rysavy, Estates of W. & A. Rysavy, J. Rysavy, James Rysavy, William Rysavy, Amelia Rysavy, the United States of Ame
Case Date:January 15, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
FREE EXCERPT

Page 1317

809 F.2d 1317 (8th Cir. 1987)

Katherine B. NICHOLS, Individually and as Special

Administratrix of the Estate of Amelia Huston

Nichols No. 593, Deceased, Appellant,

v.

Don RYSAVY, Margaret Rysavy, Raymond DeMers, Leo Novotny,

Raymont DeMers, Geraldine DeMers, Doris Rysavy, Estates of

W. & A. Rysavy, J. Rysavy, James Rysavy, William Rysavy,

Amelia Rysavy, the United States of America, Hon. Donald P.

Hodel as United States Secretary of the Interior, Ken Smith

as Assistant Secretary of the Interior for Indian Affairs,

Appellees.

Clover POTTER, Individually and as the Special

Administratrix of the Estate of James Wilde, Appellant,

v.

STATE OF SOUTH DAKOTA, United States of America, Donald P.

Hodel as U.S. Secretary of the Interior, Ken Smith

as Assistant Secretary of the Interior

for Indian Affairs, Appellees.

Gladys ECOFFEY, Individually and as Special Administratrix

of the Estate of John Yellow Bird, Appellant,

v.

WASHABAUGH COUNTY, United States of America, Donald P. Hodel

as U.S. Secretary of the Interior, Ken Smith as

Assistant Secretary of the Interior for

Indian Affairs, Appellees.

Chicago Title Insurance Company, First American Title

Insurance Company, Lawyers Title Insurance Corporation,

Safeco Title Insurance Company of Idaho, Stewart Title

Guaranty Company, Ticor Title Insurance Company, Title

Insurance Company of Minnesota, Transamerica Title Insurance

Company, USLIFE Title Insurance Company of America, Amici

Curiae For Appellees.

Rosemond GOINS, Individually and as Special Administratrix

of the Estate of Ida Huston Roubideaux, Appellants,

v.

Nick ASSMAN, Edwin Assman, W.O. Assman, William Assman,

Isabelle Assman, Dorothy Assman, Donald Assman, Clarence

Assman, Sadie Assman, Joe Assman, Esther Assman, Assman

Realty, the United States of America, Honorable James Watt,

as United States Secretary of the Interior; Ken Smith, as

Assistant Secretary of the Interior for Indian Affairs, Appellees.

Lois Emery FALLIS, Individually and on behalf of the Heirs,

Devisees, Benefactors and Assigns of Robert Emery,

deceased, Appellant,

v.

G.W. HOLMES and Delores Holmes, United States of America,

Honorable William Horn, United States Secretary of the

Interior and Ross Swimmer, as Assistant Secretary of the

Interior for Indian Affairs, Appellees.

Shirley Lee BORDEAUX, Individually and as Special

Administratrix of the Estate of Clara Hudson, No.

3196, deceased, Appellant,

v.

Mary Ann HUNT, Estate of Lyle T. Hunt; Alvina Woockmann,

The United States of America: Honorable Donald Hodel, as

United States Secretary of the Interior; Ken Smith, as

Assistant Secretary of the Interior for Indian Affairs, Appellees.

Mary PRITZKAU, Individually and as Special Administratrix of

the Estate of Narcisse Rich, Allotment No. 1163,

Deceased, Appellant,

v.

COTTONWOOD RANCH & LIVESTOCK CO., Charles Steen, Vera Steen,

Louis Buduhl, Chester Buduhl, the United States of America,

Honorable Donald Hodel, as Secretary of the Interior; Ken

Smith, Secretary of the Interior for Indian Affairs,

Tri-County Water Association, Appellees.

Mary H. PRITZKAU, Individually and as Special Administratrix

of the Estate of Julia Narcelle, Appellant,

v.

Helen LARSON, Estate of Clifford Larson; Ziebach County,

The United States of America, Honorable Donald Hodel, as

United States Secretary of the Interior; and Ken Smith,

Assistant Secretary of the Interior for Indian Affairs, Appellees.

Elsie BONSER, Individually and as Estate Administratrix of

the Estate of Mattie J. Bonser, No. 142 1/2,

Deceased, Appellant,

v.

Ruth SHELBOURN; Julius Wahl; Dorothy Wahl; Todd County

Independent School District; Joseph Shelbourn; Floyd

Reagle; Ethelena Reagle; The United States of America;

Honorable Donald Hodel, as United States Secretary of the

Interior and Ken Smith, as Assistant Secretary of the

Interior for Indian Affairs, Appellees.

Anna Rose LAPOINTE, individually, and as Special

Administratrix of the Estate of Lena Lima

Bourdeaux, Appellant,

v.

C. & M. McCORMICK; Mary Abdellah; Charles McCormick; Will

Maggrett; United States of America; Honorable Donald

Hodel, as United States Secretary of the Interior and Ken

Smith, as Assistant Secretary of the Interior for Indian

Affairs, Appellees.

Duane R. SANOVIA, Individually and as Special Administrator

of the Estate of James Sanovia, Deceased, Appellant,

v.

Leslie HANDCOCK, Thelma Handcock, Mae Handcock, Estate of

M.D. Handcock, United States of America; Donald Hodel,

Secretary of the Interior; Ken Smith, Assistant Secretary

of the Interior for Indian Affairs, Appellees.

Mary Louise BORDEAUX, Individually and as Special

Administratrix of the Estate of Clementine Hudson, Appellant,

v.

Henry HORN, Marion Horn, Elmer Horn, Estate of A. Horn, Anna

Horn, United States of America; Honorable Donald Hodel, as

Secretary of the Interior; Ken Smith, Assistant Secretary

of the Interior for Indian Affairs, Appellees.

Marceline HASTINGS, Individually, and as Special

Administratrix of the Estate of Frank McCloskey,

Deceased, Appellant,

v.

PLATTE VALLEY AND INVESTMENT CO.; Earl Hollenbeck; Vincent

Hollenbeck; V. Hollenbeck; The United States of America;

Honorable Donald Hodel, as United States Secretary of the

Interior and Ken Smith, as Assistant Secretary of the

Interior for Indian Affairs, Appellees.

Marceline HASTINGS, Individually and as Special

Administrator of the Estate of Mary Pure

Blacksmith, Deceased, Appellants,

v.

Frank MASSA, Esther Massa, Guisto Massa, Maria Massa,

Charlotte Abrams, a/k/a C. Cherniak; The United States of

America; Honorable Donald Hodel, as Secretary of the

Interior; Ken Smith, as Assistant Secretary of the Interior

for Indian Affairs, Appellees.

Nos. 85-5234, 85-5432, 85-5445, 86-5034 to 86-5042.

United States Court of Appeals, Eighth Circuit

January 15, 1987

Submitted May 13, 1986.

Rehearing and Rehearing En Banc Denied Feb. 25, 1987.

Page 1318

[Copyrighted Material Omitted]

Page 1319

[Copyrighted Material Omitted]

Page 1320

Kim Gottschalk, Boulder, Colo., for appellant.

Maria Iizuka, Washington, D.C., for Government.

John Guhin, Pierre, S.D., for State.

Tom Tobin, Winner, S.D., for private parties.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

From 1916 to 1921, appellants' ancestors received fee simple patents, granting them full title to land allotments originally held for them in trust by the United States. These fourteen cases, consolidated on appeal, stem from the government's issuance of those fee patents. Appellants claim that the fee patents were illegally issued to their forebears, thus voiding all later transfers of the property. Appellants seek recognition that the land is still held in trust, return of possession, damages for wrongful possession, and attorneys' fees. Appellees are the United States, the State of South Dakota, Washabaugh County, South Dakota (now Jackson County), and various private landowners who obtained the land in good faith through chain of title. Several title insurance companies filed amicus curiae briefs for appellees. The district courts 1 entered summary judgment for appellees. We affirm, based on the following: (1) We do not reach the legality of the forced fee patents, as our disposition rests on purely procedural grounds. (2) The statute of limitations in 28 U.S.C. Sec. 2401(a) bars this action as against the United States. (3) The United States is an indispensable party, requiring dismissal of the action as to all appellants with prejudice. (4) Another potential source of limitation on appellants' claims is 25 U.S.C. Sec. 347.

I. HISTORICAL BACKGROUND.

These cases arise from the General Allotment Act (Dawes Act) of February 8, 1887, Ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. Sec. 331 et seq.). The Dawes Act reflected a:

policy of encouraging the assimilation of Indians into the white man's culture. * * * This policy was carried out by "alloting" to individual Indians sufficient resources

Page 1321

to enable them to become independent farmers and ranchers. * * * As stated in [a] Senate Report [in 1907]:

The policy of alloting Indian lands in severality, so as to break up the old tribal relations, has been going on for years. Ultimately the Indian must become a citizen and work upon the new lines necessarily created by his present environments. He must learn to farm, to raise live stock, and to abandon the aboriginal methods of life. Large areas of Indian lands have already been thus alloted, and many of the tribes have become farmers and stock raisers.

United States v. Overlie, 730 F.2d 1159, 1162 (8th Cir.1984).

The Dawes Act divided up Indian reservations when they could "be advantageously utilized for agricultural or grazing purposes" by the Indians. Indians then received individual land allotments, with the United States holding title in trust for the allottees for twenty-five years, during which time an allotment could not be sold, mortgaged, or taxed. After twenty-five years, the allottee or his heirs received the land in fee simple.

The main purpose of the twenty-five-year trust period was "for the new citizen to become accustomed to his new life, to learn his rights as a citizen, and prepare himself to cope on an equal footing with any white man who might attempt to cheat him out of his newly acquired property * * *."...

To continue reading

FREE SIGN UP