Begay v. Albers, ETH-KA-NES-PAH
| Decision Date | 14 November 1983 |
| Docket Number | ETH-KA-NES-PAH,83-1210 and 83-1376,Nos. 81-1926,s. 81-1926 |
| Citation | 721 F.2d 1274 |
| Parties | Joanne BEGAY, Appellee, United States of America, Appellee, v. Betty R. ALBERS, R.E. Albers, Vera A. Albers, Sharon Albers (Fuller) Robinson, Rebecca Claire Albers, Imogene Albers, Unknown Heirs of R.E. Albers, deceased, Unknown Heirs of Vera A. Albers, deceased, Unknown Heirs of William B. Albers, deceased, Appellants.(Mrs. Cecil Navajo), Appellee, United States of America, Appellee, v. Betty R. ALBERS, R.M. Albers, Imogene Albers, Betty R. Albers (as trustee for Sharon Albers Robinson , Rebecca Claire Albers and William Alan Albers), Sharon Albers Robinson, (formerly Sharon Albers Fuller), Rebecca Claire Albers, and William Alan Albers, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Paul E. Frye, DNA-People's Legal Services, Inc., Window Rock, Ariz., and Wayne H. Bladh, Asst. Atty. Gen., Santa Fe, N.M. (William L. Lutz, U.S. Atty., and Herbert A. Becker, Asst. U.S. Atty., Albuquerque, N.M., with them on briefs), for Begay, Navajo, and U.S.
Russell Moore, Albuquerque, N.M. (Phil Krehbiel, Robert H. Clark, and Clyde F. Worthen, Albuquerque, N.M., with him on briefs), Keleher & McLeod, P.A., Albuquerque, N.M., for Albers.
Before HOLLOWAY, BARRETT and MILLER *, Circuit Judges.
In these consolidated appeals, the primary questions are whether the District Court had jurisdiction over the actions brought by plaintiffs, Indian allottees, to cancel certain deeds which were forged, purporting to convey fee title in their respective 160-acre allotment tracts, approved by the Department of the Interior, and whether the court erred in granting judgment for the plaintiffs-appellees (for convenience hereafter referred to as Begay and Mrs. Cecil Navajo) that plaintiffs recover possession and beneficial title to their allotments, subject to the interest of the United States as trustee, concurrent with plaintiffs' conveyance to defendants-appellants, Betty R. Albers, et al. (Albers), of the lands originally exchanged for the allotment tracts. A summary recitation of relevant facts will place the issues in focus.
Prior to 1946, both Begay and Mrs. Cecil Navajo received patents, in trust through the United States, to 160-acre tracts of land in McKinley County, New Mexico, pursuant to the General Allotment Act, 25 U.S.C. Sec. 331, et seq. (1976). The allotment tracts were located in a checkerboard area where ownership alternated between non-Indian, Indian fee land, Indian trust land, Tribal land, and state and federal government land. Proposals to effect large scale exchanges of these lands were advanced and actively pursued in the 1940's in order to effect consolidation of ownership and to lessen the tensions which had existed by reason of trespasses. In order that the conveyance of restricted Indian lands could be effected, the Department of the Interior, on May 26, 1945, advised that before the exchange of lands of equal value could be made, the individual Indian allottee must personally consent thereto or, if a minor, through a natural guardian, pursuant to the act of June 30, 1932 (47 Stat. 474). 1 [Plaintiff's Exhibit 8, Vol. III, No. 81-1926; Plaintiff's Exhibit T, Vol. VII, No. 83-1210].
Pursuant to said instructions, deeds were thereafter executed purporting to convey the Begay restricted lands to Hazel W. Prewitt. [Plaintiff's Exhibit 6, Vol. III, No. 81-1926]. In regard to the conveyance by Mrs. Cecil Navajo, a deed to Betty R. Albers was executed on October 29, 1946, purportedly bearing Mrs. Navajo's thumbprints. [Plaintiff's Exhibit 72, Vol. VI, No. 83-1210].
The United States of America was joined as a party defendant in both actions. In Begay's case, she alleged that the exchange deeds are forgeries in that she did not execute same and that she has not at any time requested, authorized, consented to or ratified the conveyance of her allotment to any person. In Mrs. Navajo's case, she alleged that the exchange deed of October 29, 1946, is a forgery in that it does not contain her thumbprint (she can neither read or write) and that she has not, at any time, knowingly and voluntarily consented to the deed of her allotment.
In both cases, the plaintiffs sought relief, inter-alia, of cancellation of the deeds purporting to convey their allotment lands, recovery of possession thereof, quieting title as to their beneficial title subject only to the interest of the United States as trustee and damages representing rental value of the allotment lands from which they allege to have been wrongfully deprived possession. Both plaintiffs were denied damages for the use of their allotment lands, on the ground that each had the use of the exchange lands and did not detail [prove] damages. The Memorandum Opinion in Begay's case was entered by Judge E.L. Mechem on June 18, 1981. Final judgment was entered July 17, 1981. The Memorandum Opinion in Mrs. Cecil Navajo's case was entered by Chief Judge Howard Bratton on December 9, 1982. Final judgment was entered January 25, 1983.
On appeal, defendants-appellants advance three common contentions of trial court error, to-wit: (1) in finding that it had subject matter jurisdiction over the cases; (2) in failing to find and hold that the approval by the United States of the Begay and Navajo conveyances in the exchange relieved the subject Indian allotment lands of restrictions against alienation imposed by statute, and (3) in failing to find/hold that the New Mexico law of adverse possession does not apply to the subject allotment lands so as to bar the Begay and Mrs. Cecil Navajo claims and entitles defendant-appellant Albers to possession of the allotment lands. Appellant Albers in the Mrs. Cecil Navajo case contends that the trial court imposed an unconstitutional burden of proof upon her. In addition, appellee Mrs. Cecil Navajo appeals from the trial court's denial of her claim for damages pursuant to 25 U.S.C. Sec. 179. She contends that the trial court erred in "setting-off" the use of the lands received in the exchange for the allotment lands.
Appellants contend that the trial court erred in finding/concluding that it had subject matter jurisdiction under 25 U.S.C. Sec. 345 2 and 28 U.S.C. Sec. 1331. 3
Appellants argue that these consolidated cases are actions to set aside allegedly forged deeds and to quiet title in plaintiffs and that these are clearly not actions against the United States to establish an allotment, inasmuch as plaintiffs received their allotments. Appellants contend that because the plaintiffs have not challenged the allotments, but rather the alleged invalid transfer of the allotments, Sec. 345 jurisdiction does not exist. We disagree. We hold that the district court did not err in finding subject matter jurisdiction pursuant to Sec. 345, supra.
The appellants contend that the approval of the forged deeds by the Secretary of the Interior in the exchanges validly terminated the trust status existing between the Indian allottees and the United States in relation to the exchanged lands, and, furthermore, the Secretary had the power to terminate the trust status without the consent of the allottees, Begay and Mrs. Cecil Navajo.
25 U.S.C. Sec. 194 (1976) allows an Indian a presumption of title "from the fact of previous ownership or possession" and imposes the burden of proof in a land dispute between an Indian and non-Indian on the latter. In each of these cases, Begay and Mrs. Cecil Navajo established their ownership in the allotment lands by virtue of the patents issued to them in trust by the United States. See Wilson v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979).
Vicenti v. United States, 470 F.2d 845 (10th Cir.1972), cert. dismissed, 414 U.S. 1057, 94 S.Ct. 561, 38 L.Ed.2d 343 (1973), involved a suit by individual Navajos who were issued allotments. In 1949, the Bureau of Indian Affairs prevailed upon the Navajos, or their predecessors, to surrender their allotments in exchange for lieu lands. The Navajos were thereafter removed from their allotment lands, as improved, into other areas. The majority of the Navajos who surrendered their allotments did not, however, receive lieu (exchange) lands. The district court ruled that it had jurisdiction under 25 U.S.C. Secs. 345 and 346 to entertain the Navajos' suit to clear any cloud on the title of the allotted lands, but that these statutes did not afford jurisdiction for recovery of damages against the United States because the United States had received no money in the exchange. This court affirmed. The trial court's judgment provided relief, inter-alia, (a) affording the Indian appellants immediate and exclusive use and enjoyment of the allotments, (b) vesting exclusive title in the allotments in appellants, and (c) declaring all prior relinquishments of the allotments executed by the appellants or their predecessors null and void. The Navajo plaintiffs appealed solely from the trial court's denial of their claim of money damages against the United States. While there was no issue of consent to the exchange in Vicenti, the trust relationship between the Indian allottees and the United States was paramount in reliance of jurisdiction under 25 U.S.C. Secs. 345 and 346. This court there observed that the trial court "[n]oted particularly that it was 'regrettable' that there was no damage claim available to the appellants because either the Bureau of Indian Affairs, the Bureau of Land Management, or the Department of the Interior had allowed a 'cruel...
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