Gerard v. United States, 11591.

• Decision Date: 01 June 1948
• Docket Number: No. 11591.,11591.
• Citation: 167 F.2d 951
• Parties: GERARD et al. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

167 F.2d 951 (1948)

GERARD et al. v. UNITED STATES et al.

No. 11591.

Circuit Court of Appeals, Ninth Circuit.

April 15, 1948.

Rehearing Denied June 1, 1948.

S. J. Rigney, of Cut Bank, Mont., for appellants.

Wilbur P. Werner, of Cut Bank, Mont., and Louis P. Donovan, of Shelby, Mont., for appellees Shupe and McCanaha.

H. C. Hall and C. Alexander, both of Great Falls, Mont., for appellees Frary and Mercer.

Murrills & Frisbee, of Cut Bank, Mont., for appellees Sherburne.

A. DeVitt Vanech, Asst. Atty. Gen., Roger P. Marquis, of Washington, D. C., and John B. Tansil, U. S. Atty., of Billings, Mont., for appellee U. S. A.

Before DENMAN, STEPHENS, and ORR, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from a judgment dismissing the complaint of two Blackfeet Indians seeking to establish title to land held by them under trust patents issued to them on land previously allotted to them. The dismissal was on the ground that the United States is a necessary party and that its wards have no power so to join it.

The complaint alleges the land covered by the trust patent is in the Blackfeet Indian Reservation. The plaintiffs are members of that tribe and the trust patent was made under the Treaty of 1887, 25 Stat. 113, with that tribe and the Allotment Act of February 8, 1887, 24 Stat. 388. These trust patents contained the provision that the land described as held by the United States "for the period of twenty-five years, in trust for the sole use and benefit of the said Indian and at the expiration of said period the United States will convey the same by patent to said Indian in fee, discharged of said trust and free from all charge and encumbrance whatsoever."

The date of the trust patent is February 28, 1918. The complaint further alleges that less than four months later, on June 11, 1918, without the Indians' application or consent, an unrestricted fee patent was issued to them. Instead, they accepted the second deed only because of the representations of the officials of the Indian Bureau of the United States in Washington, D. C., and the Indian Agency at Browning, Montana, to the effect that the patent in fee must be accepted and that the lands must be rendered subject to taxation by the taxing authorties under the laws of the State of Montana.

After the unrestricted patent of June 11, 1918, was issued, Glacier County, Montana, purported to levy upon and assess taxes on these lands and later purported to sell them for delinquent taxes to one McDonald, and now the several defendant appellees other than the United States claim an interest therein. The relief sought by the complaint is:

(1) That the defendants and each of them be adjudged to have no right, title or interest in and to the real property described in this complaint or any lien, claim or demand whatsoever against the same or any part thereof, save and except that any interest the United States may claim as guardian of the complainants.

(2) That the fee patents, issued to the complainants on or about June 11, 1918, to be held and determined to have been issued without the application or consent of the complainants, or either of them, and that any right, claim or interest claimed by any of the defendants, except the United States, be determined to have been without any right and null and void for all purposes.

(3) That the complainants be declared to be the owners of the respective tracts claimed by each of said complainants and to have the right of immediate possession, subject to such right as the United States may have as guardian of the complainants.

(4) That the lands be adjudged to be inalienable, and immune from taxation during the period of restriction on alienation provided by law.

These Blackfeet Indians are wards of the United States, as were the Creek Indian plaintiffs in Board of Commissioners v. Seber, 318 U.S. 705, at page 715, 63 S.Ct. 920, 926, at page 925, 87 L.Ed. 1094, of whom the court said:

"In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people needing protection against the selfishness of others and their own improvidence. Of necessity the United States assumed the duty of furnishing that protection and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent, qualified members of the modern body politic. This was classically summarized in United States v. Kagama, 118 U.S. 375, 384, 385, 6 S.Ct. 1109, 1114, 30 L.Ed. 228:

"`From their the Indians' very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive and by congress, and by this court, whenever the question has arisen. * * *

"`The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, * * *. It must exist in that government, because it never has existed anywhere else; because the theater of its exercise is within the geographical limits of the United States; because it has never been denied; and because it alone can enforce its laws on all the tribes.'"

The right of the Indian ward to sue in the United States District Court in a suit respecting his rights under a patent in which the United States is his trustee, is conferred by the Act of February 6, 1901, 25 U.S.C.A. §§ 345, 346. We think this is clear from the statutory provisions, and that it is unnecessary to invoke the rule of liberal construction stated in Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 42, 63 L.Ed. 138: "This conclusion has support in the general rule that statutes passed for the benefit of dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians. Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 56 L.Ed. 941, and cases cited."

The Act of 1901¹ has provisions giving jurisdiction in personam over Indian wards in the circuit (now district) courts in two classes of cases. They are provisions (a), where an Indian is seeking to establish his "right * * * to any allotment" and provisions (b), where he is seeking to protect his interest in "land" to which he is entitled "under any grant made by Congress." In the instant case there is no question of the appellants' right to their allotments. Here are Indians already allotted land to which a trust patent has been issued under the Congressional statute providing for the grant of such lands in trust, 24 Stats. 388.

The Act of 1901 further has provided for suits by the Indians where the Indian wards are "excluded from * * * any parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress." As to litigation concerning the two classes, claims to allotments to be made and to land already allotted and held under trust patents, the Act's provisions are that the Indians "may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper circuit court of the United States." 31 Stat. 760, 25 U.S.C.A. § 345.

The distinction between the provisions of the 1901 Act for suits concerning an Indian's right to an allotment in the first instance and the provisions for suits where the trust patent has been issued is recognized in several cases. Typical were cases bought by Indians to determine who are heirs to land already allotted to an Indian ancestor to whom a trust patent is issued. McKay v. Kalyton, 204 U.S. 458, 27 S.Ct. 346, 51 L.Ed. 566; Heckman v. United States, 224 U.S. 413, 414, 32 S.Ct. 424, 56 L.Ed. 820.

This particular jurisdiction respecting heirship to lands already allotted was taken from the federal courts by the Act of June 25, 1910, 36 Stat. 855,² and restored to the Secretary of the Interior. The Supreme Court states in a case where the issue was as to the heirs of already allotted land that the Act of 1910 "restored to the Secretary the...