Bordeaux v. Hunt
| Decision Date | 14 November 1985 |
| Docket Number | Civ. No. 82-3081. |
| Citation | 621 F. Supp. 637 |
| Parties | Shirley Lee BORDEAUX, Individually and as Special Administratrix of the Estate of Clara Hudson, No. 3196, Deceased v. Mary Ann HUNT, Estate of Lyle T. Hunt; Alvina Woockmann; 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, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Ramon A. Roubideaux, Rapid City, S.D., Mario Gonzalez, Pine Ridge, for plaintiffs.
Philip N. Hogen, U.S. Atty., Sioux Falls, S.D., Robert Mandel, Asst. U.S. Atty., Pierre, S.D., Kenneth A. Pels, U.S. Dept. of Justice, Washington, D.C., for U.S. of America, James Watt, and Ken Smith.
William T. Finley, Jr., David F.B. Smith, Kevin W. McLean, Pierson, Semmes & Finley, Washington, D.C., for Named Title Ins. Companies as amici curiae.
This case is one of thirteen filed in this court between December, 1982 and January, 1984, dealing with an identical issue: whether Indian land formerly held in trust for plaintiff's ancestor, but which had been unilaterally taken out of trust by the United States and subsequently alienated by plaintiff's ancestor approximately sixty years ago, should be recovered from its present possessors and returned to trust status for the benefit of the members of plaintiff's family.
The court, having been the recipient of extensive briefing by the parties and by amici, and having considered carefully the contentions of all involved, finds that the removal of the land from trust status, while regrettable, was nonetheless legal. Plaintiff therefore has no valid claim for recovery of the land, and summary judgment must be entered for defendants.
The roots of this litigation lie in the General Allotment Act (Dawes Act) of February 8, 1887, Ch. 119, 24 Stat. 388 (). This Act provided that individual Indians should receive allotments, with title left in the United States in trust for the allottee for twenty-five years, during which time the allotment could not be sold, mortgaged, or taxed. Section 6 of this Act also provided that upon completion of the "allotments and the patenting of the lands to said allottees," the allottees would become citizens of the United States and subject to the laws of the state or territory in which they resided.
In South Dakota, the individual Indian reservations were created by the Act of March 2, 1889, Ch. 405, 25 Stat. 888. Individual allotments, very similar to those created under the Dawes Act, were authorized under Sections 8 through 11 of the 1889 Act. Section 11 also provided that "each and every allottee under this act shall be entitled to all the rights and privileges and be subject to all the provisions of section six of" the Dawes Act.
The United States Supreme Court, in Matter of Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848 (1905), construed Section 6 of the Dawes Act as conferring citizenship upon Indians upon the initial issuance of an allotment. Under Heff, this made the Indians subject to state laws, including those dealing with liquor sales. Congress, in the Burke Act of 1906, Ch. 2348, 34 Stat. 182 (codified at 25 U.S.C. § 349) moved to amend Section 6 of the Dawes Act to defer citizenship until issuance of the fee patent. Congress also enacted, as part of the same Act, the language which is at the heart of the present controversy:
Provided, That the Secretary of the Interior may, in his discretion, and he is hereby 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....
From 1906 to 1916, the Secretary of the Interior implemented the Burke Act under a policy of granting fee patents to allottees who made application and were deemed competent, generally on the local Indian superintendent's recommendation. In 1916, the application requirement was withdrawn, and the Secretary began the issuance of patents after a government "competency commission" found individual Indians "competent." The requirements were loosened much further on April 17, 1917, with the promulgation of a document entitled "A Declaration of Policy":
To all able-bodied adult Indians of less than one-half Indian blood, there will be given as far as may be under the law full and complete control of all their property. Patents in fee shall be issued to all adult Indians of one-half or more Indian blood who may, after careful investigation, be found competent, provided, that where deemed advisable patents in fee shall be withheld for not to exceed 40 acres as a home. Indian students, when they are 21 years of age or over, complete the full course of instruction in the government schools, receive diplomas and have demonstrated competency will be so declared.
Office of Indian Affairs, Dept. of the Interior, Report of the Commissioner of Indian Affairs, 4 (October 16, 1917).
The presumption of competence was extended further in 1919 to include adult allottees of one-half Indian blood. Large numbers of "forced" fee patents were issued under these policies, involving many thousands of allottees in the western United States. Abuses were rampant: it is clear from the historical evidence cited in plaintiff's brief that many patents were issued to Indians obviously incapable of taking on the burdens of unrestricted property ownership in the midst of a more sophisticated white society. It is clear that some holders of these patents were cheated out of their land by speculators and merchants, and that some land was lost when the Indians sold or mortgaged it for money to pay state property taxes, taxes which could not be legally assessed under the rule of Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941 (1912).
The forced fee patent policy was halted in 1921, and Congress eventually moved to provide some relief to the patent holders in the so-called Cancellation Acts of 1927 and 1931, 25 U.S.C. §§ 352a, 352b. These allowed the Secretary of the Interior, in certain circumstances, to return the patented land to trust status, so long as the land was not encumbered or sold. Less than 500 forced fee patents were "cancelled" under these statutes.
Plaintiff here is claiming under an allotment originally issued to Clara Hudson, a Rosebud Sioux Indian of one-half or less Indian blood. The trust patent was issued to her on April 27, 1909.
In response to the April 17, 1917, "Declaration of Policy," Assistant Commissioner E.B. Meritt provided the Secretary of the Interior, on October 16, 1917, with a list of Rosebud allottees of one-half or less Indian blood, including Clara Hudson, and noted:
As it appears from the record that all of the above named allottees including Clara Hudson have less than one-half Indian blood, it is respectfully recommended that the Commissioner of the General Land Office be requested to issue patents in fee to them for the lands set opposite their respective names and that the issuance of these patents be made special.
Assistant Secretary of the Interior S.G. Hopkins endorsed the proposal as follows:
I find from the evidence submitted that the allottees above named including Clara Hudson are qualified to care for their own affairs in a degree that entitles them to patents in fee covering the lands described above, and I, therefore, direct the Commissioner of the General Land Office to issue a patent in fee to them for the lands set opposite their respective names, and that the issuance of these patents be made special.
A fee patent was then issued in the name of Clara Hudson on December 29, 1917 for the subject land, although she evidently made no application for its issuance. The fee patent was delivered to her, and she signed a receipt for it on February 13, 1918.
Clara Hudson executed a mortgage covering the subject land on December 5, 1918, to W.H. Tackett. Consideration was listed as $2,500. Clara Hudson then executed a warranty deed on July 8, 1919, covering the same land, to Fritz J. Huddin, acknowledging receipt of $12,500 as consideration. The grantee assumed the outstanding mortgage hereby.
APPLICABILITY OF THE BURKE ACT TO SOUTH DAKOTA RESERVATIONS.
The argument has been advanced in this litigation that because the allotments in South Dakota were made under the 1889 Act, rather than the 1887 Dawes Act, the Burke Act, as an amendment to the Dawes Act, never applied to South Dakota. Thus, this argument proceeds, any issuance of a patent in South Dakota under the Burke Act was without authority and accordingly void. This argument is without merit.
Section 6 of the Dawes Act, the precise portion of that Act which was amended by the Burke Act, was incorporated in and made expressly applicable to South Dakota allotments by Section 11 of the 1889 Act.1 As Muenich v. United States, 410 F.Supp. 944, 946 (N.D.Ind.1976) put it:
It is a basic rule of statutory construction that when one statute incorporates another by reference, an amendment to the incorporated statute operates as an amendment to the statute which incorporated the original act: "When a statute adopts the general law on a given subject, the reference is construed to mean that the law is as it reads thereafter at any given time including amendments subsequent to the time of adoption ..."
See Sutherland Stat. Const. § 51.07 (4th Ed.1984). (Emphasis supplied.) The foregoing rule does not apply to "limited and particular provisions", see Sutherland, supra, and plaintiff apparently contends that Section 6 of the Dawes Act is such a limited provision. Contrary to plaintiff's position, however, Section...
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