Dillon v. Antler Land Company, Civ. No. 891.

Decision Date02 May 1972
Docket NumberCiv. No. 891.
Citation341 F. Supp. 734
PartiesPhoebe Wilson DILLON, Plaintiff, v. ANTLER LAND COMPANY of Wyola, a Montana corporation, et al., Defendants.
CourtU.S. District Court — District of Montana

COPYRIGHT MATERIAL OMITTED

Towe, Nealy & Ball, Billings, Mont., for plaintiff.

Hibbs, Sweeney & Colberg, Crowley, Kilbourne, Haughey, Hanson & Gallagher, Otis L. Packwood, U. S. Atty., Billings, Mont., for defendants.

OPINION AND ORDER

RUSSELL E. SMITH, Chief Judge.

In October 1955 plaintiff, a Crow Indian, sold 1040 acres of land to the Antler Land Company of Wyola (hereafter Antler Land). In June 1970 she filed this action. In her first claim she seeks to vest the title to the land in herself or in the United States as her trustee and to recover rents and profits.

In support of the first claim, three theories, all stemming from plaintiff's status as an Indian, are urged: first, that there was fraud which vitiated the patent from the United States to plaintiff and the deed from her to Antler Land; second, that while the land was in trust status plaintiff executed a contract to convey it which, under the provisions of the General Allotment Act,1 made the subsequent deed invalid; and third, that Antler Land on the date of the delivery of the deed owned lands in excess of the acreage limitations contained in Section 2 of the Crow Indian Allotment Act.2 Motions for summary judgment are directed to the first claim.

In her second claim plaintiff seeks to recover $33,000.00 in damages, alleging that the agents of the United States, by refusing to take action in her behalf with respect to the 1040 acres, breached the duties enjoined upon them by 25 U.S.C. § 185.3 A motion to dismiss is directed to the second claim. Pursuant to Fed.R. Civ.P. 12(b) the court considers matters outside the pleadings and treats the motion to dismiss the second claim as a motion for summary judgment.

On the motions for summary judgment the court considers the defendants' answers to interrogatories and requests for admissions where favorable to plaintiff, the plaintiff's answers to interrogatories and requests for admissions, the affidavit of plaintiff in toto4 and the affidavits filed on behalf of defendants to the extent they are not controverted. From all of this the following facts appear:

The Crow Reservation was created by treaty on May 7, 1868.5 The lands here involved were within the reservation. They were allotted to plaintiff while she was still a minor by trust patents issued in 1923 and 1924. These patents provided that the United States would hold the lands in trust for 25 years and at the end of the trust period "... convey the same by patent to said Indian an in fee, discharged of said trust and free from all charges and encumbrances whatsoever."

Plaintiff's father managed the land for her for some years. Matt Tschirgi6 leased the land from plaintiff's father and later leased it through the Indian agency. On April 12, 1949, plaintiff was placed on the list of competent Crow Indians under the authority of the Crow Indian Allotment Act.7 When plaintiff was declared to be competent she undertook the leasing and increased the rental from 14.23 cents per acre to 50 cents per acre. Tschirgi took advantage of the plaintiff's need for money and utilized a scheme prevalent on the reservation whereby leases were made for five years with rentals payable in whole or in part in advance. When the advance payments had been spent the white ranchers, including Tschirgi, were then in a position to apply economic pressure upon the Indians to obtain future concessions. Tschirgi's purpose was to obtain the land or the use of it for as little as possible and without regard for the values involved. In 1955 at a time when plaintiff needed money Tschirgi refused to advance any except on the condition that plaintiff apply for a fee patent. Upon her agreement to apply he loaned her $100.00.

On February 25, 1955, plaintiff applied for a fee patent. Tschirgi instructed plaintiff as to all of the representations that should be made to the Indian agency in order to obtain the fee patent, and she followed his instructions.

On May 21, 1955, she entered into a written contract to sell the land to Antler Land for $7280.00. A portion of the purchase price was a credit on advances previously made, and a sum of $570.00 was advanced on the date of the contract. At the time of the execution of the contract Tschirgi promised that he would, notwithstanding the written contract which called for a purchase price of $7.00 per acre, pay plaintiff whatever the appraised value of the land turned out to be. On August 23, 1955, the land was appraised at $10,400.00.

The application for a fee patent was approved after an investigation, and on October 3, 1955, a fee patent dated September 19, 1955, was delivered to plaintiff who on that date issued her receipt for it. On October 6, 1955, she executed and delivered a warranty deed to Antler Land. Plaintiff received $3,711.00 in cash. The balance of the purchase price was accounted for by the items of advances mentioned in the contract, including a deduction for prepaid lease rentals.

Before plaintiff executed the deed she asked Tschirgi what the appraised value was and Tschirgi told her that the appraised value was unimportant because she was bound by the contract which she had signed. Following the execution of the deed plaintiff determined that the appraised value was $10.00 per acre and asked Tschirgi for the additional money. He refused.

So far as the record here shows the only false statement made in the application for the patent was that no person had asked plaintiff to apply for a patent in fee. This false representation was made because Tschirgi advised plaintiff that the patent would not be issued if he were shown to be involved. As previously noted the contract to sell was dated May 1955, and the fact of its existence was not reported to the Indian agency although the application previously filed in February 1955 had stated that there were no contracts to sell. The application did state that the purpose for seeking the fee patent was to enable plaintiff to sell the land. There is nothing in the records of the Bureau of Indian Affairs which indicates that Tschirgi himself made any representations relative to the patent application.

The patent and deed were placed of record as of October 14, 1955. On the date of the conveyance Antler Land was the owner of more than 1,920 acres of grazing land within the Crow Indian Reservation and all of the successors in interest of Antler Land (except Murtha, trustee, the mortgagee) were likewise the owners of in excess of 1,920 acres of reservation lands at the time they acquired their interests in the land.

In the patent application plaintiff represented that she was competent and gave references to persons who could and did vouch for her competence. The finding of competency is not one merely implied from the issuance of the fee patent but is a considered finding made by the Superintendent of the Reservation and approved by the Area Director.8 It is not claimed that there were misrepresentations made in the application proceedings which related to the issue of plaintiff's competency and plaintiff does not now assert that she was incompetent either in 1949 when first placed on the competent rolls or in 1955 when the patent issued.

It is my opinion, based on the facts I am obliged to assume in considering the motion for summary judgment, that the deed from plaintiff to Antler Land was voidable on the first (ordinary fraud) and second (violation of 25 U.S.C. § 348) theories presented and void on the third (violation of Section 2 of Act of June 4, 1920, 41 Stat. 751).

With respect to the first theory — that of fraud as it relates to the validity of the deed — there may be a genuine issue of material fact and it cannot be held that the defendants are entitled to a judgment on that issue as a matter of law.

As to the second theory:

The contract of May 21, 1955, made before the issuance of the trust patent, was void. The existence of the contract did not, however, prevent the plaintiff and Tschirgi from dealing with the land after the issuance of the fee patent,9 provided that there was a new meeting of the minds and that a subsequent deed resulting from those dealings was not a product of the contract. If as claimed here Tschirgi exerted economic pressure upon plaintiff to secure a contract in violation of the congressional policy expressed in 25 U.S.C. §§ 348 and 34910 and then after the issuance of the fee patent Tschirgi secured a deed by misrepresentations or by reason of the mistaken belief of plaintiff that she was obliged to perform the contract, then the deed is the illegal fruit of an illegal contract. In short, if it is shown as a fact that the contract was a factor inducing the execution of the deed, the deed was voidable.

As to the third theory:

The original deed conveying the land to Antler Land was accepted by Antler Land in violation of Section 2 of the Crow Act and was void. Defendants seriously urge that Section 2 relates only to conveyances of trust lands. The report of the conference committee indicates that the purpose of Section 2 of the Crow Act was to prevent any one person from accumulating large holdings on the reservation. Thus the statement of the House managers accompanying a conference committee report said "... it is not thought to be either good public policy or for the best interests of the Indians to permit any one person, firm or corporation to acquire any great acreage of the land..."11 The same thought is expressed elsewhere in the legislative history.12 Section 2 poorly effectuates this legislative purpose because it did not absolutely prohibit large holdings on the reservation in that it forbade only the initial conveyances by or on behalf of the Indians. Thus if corporations A...

To continue reading

Request your trial
8 cases
  • Mattwaoshshe v. United States
    • United States
    • U.S. District Court — District of Columbia
    • August 17, 2021
    ...title problems which may be created by ... Indian[s] dealing with lands which ... are subject to state law.’ " Dillon v. Antler Land Co. , 341 F. Supp. 734, 742 (D. Mont. 1972), aff'd , 507 F.2d 940 (9th Cir. 1974). Further, as with § 175, "an action brought by a competent plaintiff to enfo......
  • Crow Tribe of Indians v. Campbell Farming Corp.
    • United States
    • U.S. District Court — District of Montana
    • July 15, 1992
    ...25 U.S.C. § 349 requires the application of the state statute of limitations in the present case, under § 2.11 See Dillon v. Antler Land Company, 341 F.Supp. 734 (Mont.1972); aff'd Dillon v. Antler Land Company, 507 F.2d 940 (9th Cir.1974); cert. denied 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.......
  • Capitan Grande Band of Mission Indians v. Helix Irrigation Dist.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 14, 1975
    ...---, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974).6 Our recent decision in Dillon v. Antler Land Co., 507 F.2d 940 (9th Cir. 1974), aff'g, 341 F.Supp. 734 (D.Mont.1972), is distinguishable in that it involved the application of the Montana statutes of limitations to land owned by an Indian in fee si......
  • United States v. Pollmann, Crim. No. 4472.
    • United States
    • U.S. District Court — District of Montana
    • August 29, 1973
    ...Acres of Land, etc., 162 F.Supp. 108, 116 (D.Mont.1958); Seifert v. Udall, 280 F.Supp. 443, 444 (D.Mont. 1968); Dillon v. Antler Land Company, 341 F.Supp. 734, 741 (D.Mont.1972). Montana Power Company v. F.P.C., 148 U.S.App.D.C. 74, 459 F.2d 863, 865 (1972) states, without citation, "The Tr......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT