Eastman v. United States

• Decision Date: 26 August 1939
• Docket Number: No. 45.,45.
• Citation: 28 F. Supp. 807
• Parties: EASTMAN et al. v. UNITED STATES et al.
• Court: U.S. District Court — Western District of Washington

28 F. Supp. 807

EASTMAN et al. v. UNITED STATES et al.

No. 45.

District Court, W. D. Washington, S. D.

August 26, 1939.

W. A. Ackerman, of Aberdeen, Wash., for plaintiffs.

J. Charles Dennis, U. S. Atty., and Oliver Malm, Asst. U. S. Atty., both of Tacoma, Wash., for the United States and N. O. Nicholson, Superintendent of Taholah Indian Agency, and James A. Howarth, United States Forest Sup'r.

YANKWICH, District Judge.

The plaintiffs, Indians, holding timber allotments in the Quinaielt Indian Reservation, have brought suit against the United States of America, N. O. Nicholson, Superintendent of the Taholah Indian Agency, James A. Howarth, United States Forest Supervisor, and others, attacking the legality of Section 10, of the General Timber Sales Regulations and of the Forest Regulations of April 23, 1936, insofar as they apply to them.

Six of the plaintiffs are owners of timber allotments in the five areas designated for logging in the Reservation by contracts signed but not logged. Another plaintiff has a timber allotment on which there is no contract for sale of timber. There are many others in both classes.

The complaint avers that by the regulation of selective logging, they are being excluded unlawfully from a large and valuable part of their allotments.

The timber was clear cut on the reservation from November 8, 1922, the time of the first logging, to August 20, 1936, when the Forest Regulations of April 20, 1936, were put into effect.

Through the enforcement of these regulations, there is held back from cutting 25 to 60 per cent of the standing timber and along the highways and streams certain widths in strips are held back from cutting.

Injunctive relief is asked against the enforcement of these regulations of the Secretary of the Interior by the subalterns named.

The Government of the United States and the two designated officials, have moved to dismiss the complaint. The Government urges that this is a suit against it, in its sovereign capacity, and that the complaint does not allege affirmatively its consent to be sued. Louisiana v. McAdoo, 1914, 234 U.S. 627, 34 S.Ct. 938, 58 L.Ed. 1506; Minnesota v. United States, 1939, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235.

The contention is untenable.

As allottees, the plaintiffs are entitled to sue the Government of the United States under Section 345, Title 25, U.S. C.A.

This section confers jurisdiction upon the Court, and is, in effect, the consent for the institution of any action against the United States Government, for any of the causes designated in it. Hy-yu-tse-mil-kin v. Smith, 1902, 9 Cir., 119 F. 114, affirmed, 1904, 194 U.S. 401, 24 S.Ct. 676, 48 L.Ed. 1039; Morrison v. Work, 1924, 266 U.S. 481-490, 45 S.Ct. 149, 69 L.Ed. 394.

And acts are clearly averred in the complaint which, if true, amount to an unlawful exclusion of the plaintiffs from a portion of their allotments or parcels of lands.

Through an allotment, the Indian allottee acquires an equitable title to the land. While the Government retains the legal title in trust for the Indian, the title of the Indian, except for the limitation against alienation, is, in reality, a title in fee simple. United States v. Paine Lumber Co., 1907, 206 U.S. 467, 473, 27 S.Ct. 697, 51 L.Ed. 1139; United States v. Rickert, 1903, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed. 532.

The right to cut timber is an incident of ownership (United States v. Paine Lumber Co., supra), and is also conferred specifically by statute (Title 25, U.S.C.A. § 406).

Any act which excludes the allottee from full enjoyment of the timber on his land, is an interference with his right of ownership.

Certain it is, that if the Government cannot compel an Indian tribe to share occupancy of its land with another, without just compensation (Shoshone Tribe v. United States, 1937, 299 U.S. 476, 57 S. Ct. 244, 81 L.Ed. 360; United States v. Shoshone Tribe, 1938, 304 U.S. 111, 58 S. Ct. 794, 82 L.Ed. 1213), it cannot, under the supervisory powers it may possess, while it is holding the naked title in trust for the Indians, deprive them of the full use of timber upon the land, absent a specific statutory authorization, or reservation of power in the certificate of allotment. See Starr v. Campbell, 208 U.S. 527, 28 S.Ct. 365, 52 L.Ed. 602. See, also, United States v. Klamath & Moadoc Tribes of Indians, 1938, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219.

The provisions for the sale of the timber, with the consent of the Secretary of the Interior (§ 8, 36 Stat. 857, 25 U.S. C.A. § 406) and for the disposal of the proceeds for the benefit of the allottee "under regulations to be prescribed by the Secretary of the Interior", do not confer the right to limit the disposal of timber to portions designated by the Secretary.

Under this section, the sale of timber is conditioned upon the consent of the Secretary. The "regulations" which, under the mandate of this section, he may make, relate not to the sale, but to the payment or disposal of the proceeds.

Granted that the Secretary might refuse his assent to an improvident sale by an individual allottee, there is no warrant in this section for a policy of timber conservation, which, no matter how laudable and socially beneficial, does, in fact, diminish an Indian allottee's full enjoyment of his fee, as to a matter not limited by the allotment or by law. The only limitation in the certificate of allotment relates to alienation. The other, consent to the sale of timber, is added by this section.

Neither justifies the withholding of a portion of the timber from sale.

The complaint,...