Hopkins v. United States

• Citation: 414 F.2d 464
• Decision Date: 19 May 1969
• Docket Number: No. 21456.,21456.
• Parties: Amos A. HOPKINS (Dukes) et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

414 F.2d 464 (1969)

Amos A. HOPKINS (Dukes) et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 21456.

United States Court of Appeals Ninth Circuit.

May 19, 1969.

Fred W. Gabourie (argued), of Merdler & Gabourie, Sherman Oaks, Cal., for appellants.

Raymond N. Zagone, Washington, D. C. (argued), Shiro Kashiwa, Asst. Atty. Gen., S. Billingsley Hill, Atty., Dept. of Justice, Washington, D. C., Richard J. Dauber, Asst. U. S. Atty., Wm. M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Richard B. Collins, Jr., George F. Duke, Lee J. Sclar, Santa Rosa, Cal., Calif. Indian Legal Services, Inc., amicus curiae.

Before BARNES and BROWNING, Circuit Judges, and^* McNICHOLS, District Judge.

BROWNING, Circuit Judge:

Each plaintiff-appellant filed an application with the Department of Interior for an Indian allotment of 160 acres of grazing lands in the public domain under section 4 of the General Allotment Act of 1887, as amended, 25 U.S.C. § 334.

Seven applications were rejected by the District Land Office on the ground that the lands had been ordered sold pursuant to 43 U.S.C. § 1171, and notice of this order had been published prior to the filing of the applications. See 43 C.F.R. § 2243.1-6. The applicants were informed of their right to appeal the District Land Office's decision to the Director of the Bureau of Land Management. They did not appeal.

The remaining twenty-six applications were rejected by the Secretary of Interior on the ground that the land applied for was not proper for allotment under the General Allotment Act because it did not constitute an economic grazing unit upon which the applicant could make a home and earn a livelihood raising livestock.

The applicants filed the present suit in the district court to require allotment of the lands. The court granted summary judgment dismissing the action. The court held that it lacked jurisdiction to review rejection of the first group of applications because the applicants had not exhausted their administrative remedy. It held that judicial review of rejection of the remaining applications was barred by 5 U.S.C. § 701(a) (2), because classification of lands for allotment under the General Allotment Act was action committed to the discretion of the Secretary of Interior by section 7 of the Taylor Grazing Act, 43 U.S.C. § 315f. The court went on to hold that, assuming jurisdiction to review the rejection of the second group of applications, the administrative record demonstrated that the Secretary's action was based upon a reasonable construction of the statutes, and was not arbitrary, capricious, or in bad faith.

We deal first with the district court's treatment of the second group of applications.

25 U.S.C. § 345 and 28 U.S.C. § 1353 give district courts original jurisdiction of actions involving the right to an allotment under the General Allotment Act. Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 368, 88 S.Ct. 982, 19 L.Ed. 2d 1238 n. 5 (1968); Arenas v. United States, 322 U.S. 419, 429-430, 64 S.Ct. 1090, 88 L.Ed. 1363 (1944); United States v. Payne, 264 U.S. 446, 44 S.Ct. 352, 68 L.Ed. 782 (1924); Wise v. United States, 297 F.2d 822, 823 (10th Cir. 1961). Plaintiffs' contention that the Secretary exceeded the powers conferred upon him by the governing statutes¹ is subject to judicial review in such a suit. Arenas v. United States, supra, at 432, 64 S.Ct. 1090; Wise v. United States, supra, 297 F.2d at 823.

Plaintiffs' basic premise is that section 4 of the General Allotment Act,² as amended, grants a non-reservation Indian who has made settlement upon 160 acres of grazing lands³ in the public domain the unconditional right to have the lands allotted to him upon application to the local land office in which the lands are located. They assert that they have satisfied all of the other requirements of the statute, but have been prevented from settling upon the lands by the Secretary. They conclude that the Secretary acted unlawfully in denying them their statutory allotments because the lands would not provide a livelihood from grazing. Essentially the same contention was recently rejected in Finch v. United States, 387 F.2d 13 (10th Cir. 1967).

The main purpose of the General Allotment Act was to end the tribal and nomadic life of the Indians by allotting a portion of reservation lands in severalty to each Indian residing on a reservation, and selling off the excess lands. The Indians were to be established as individual settlers on separate allotments of land gaining a livelihood by pastoral pursuits.⁴

Congress recognized, however, that not all Indians were prepared for transition to the life of an independent settler living on and from his privately owned tract of land, and that not all lands were suitable for this purpose. Therefore, section 1 of the General Allotment Act, as amended, 25 U.S.C. § 331 (see note 2), did not require allotment in severalty of all reservation lands, but instead provided that as to each reservation "the President shall be authorized to cause the same or any part thereof to be surveyed or resurveyed whenever in his opinion such reservation or any part may be advantageously utilized for agricultural or grazing purposes by such Indians, and to cause allotment to each Indian located thereon to be made in such areas as in his opinion may be for their best interest * * *."

It is apparent from this provision of section 1 of the General Allotment Act that Congress did not intend that an Indian should acquire a vested right to an allotment simply by selecting land, settling upon it, and then filing an application under the Act. Such a right could not arise until the President, acting through the Secretary of Interior, made the determinations required by section 1 of the Act. And the legislative history of the Act supports the conclusion that one of the standards to be applied by the Secretary in making the determinations required by section 1 is whether the reservation lands selected for allotment are capable of yielding support for an Indian settler and his family. If the lands are too poor to accomplish this purpose, the Secretary is not to approve the allotment.⁵

Section 4 of the General Allotment Act, applicable to Indians not residing on a reservation, is to be read with the same limitations. This section expressly provides that allotments to nonreservation Indians are to be made in the same "quantities and manner" as allotments to reservation Indians under section 1.⁶ Moreover, the legislative purpose to authorize allotments only upon lands which the Secretary determined could provide a home and furnish a livelihood by farming, raising livestock, or both, applies to the General Allotment Act as a whole.

Section 4 of the General Allotment Act has long been so construed by the Secretary of Interior,⁷ and is so construed today.⁸ Judicial authority is to the same effect.⁹

Plaintiffs point to one possible departure from the long standing interpretation of section 4 as requiring that the lands allotted be sufficiently productive to support an Indian family. Regulations issued by the Department of Interior on February 1, 1928, contained the following statement: "Where an Indian makes settlement in good faith upon lands not reserved therefrom, an allotment therefor can not be denied on the ground that the lands are too poor in quality." 52 Interior Dec. 383, 387.¹⁰ Taken alone and literally, this statement is inconsistent with the meaning of section 4 of the General Allotment Act reflected in legislative history and prior and subsequent departmental interpretations. However, the statement's textual and historical context suggests a narrower reading.

In 1928, when the regulations containing the statement were issued, the public domain was open to selection, settlement, and entry under various public land laws without a prior determination by the Department of Interior that the lands selected were proper for entry and settlement under the applicable statute. Indeed, by the express terms of section 4 of the General Allotment Act, entry and settlement were preconditions to application and allotment under that section. In practice, therefore, an applicant for allotment was required to locate suitable lands, occupy them, and put them to use, before applying for allotment.

In this context the Department decided Clark v. Benally, 51 D.D. Interior Dec. 91 (1925), the apparent source of the statement in the regulations of February 1, 1928. There, the Indian applicant had used and occupied the land, maintaining a flock of 325 sheep, for five years prior to his application for an allotment. A competing applicant for a permit to prospect for oil and gas upon the same lands filed affidavits which described the general area as rocky, barren, and arid, and asserted that lands both east and west of the proposed allotment were better suited for grazing. As the Department pointed out, however, sufficient water was available on the lands sought, and large areas of adjacent range were open to grazing. The Department noted that "the Navajo has supported himself as a herdsman for several hundred years, and his ability to select good grazing land should not be questioned." The Department concluded, "inasmuch as these Indians have voluntarily made settlement upon certain lands not in any manner reserved therefrom, the Department can not arbitrarily deny them allotments on the ground that the lands are too poor in quality" (emphasis added).

The substance of the holding in Clark v. Benally is that where a qualified Indian applicant has demonstrated that particular lands can provide a home and livelihood by actually occupying and successfully using those lands, it would be arbitrary for the Department to refuse to allot the lands on the basis of generalized affidavits characterizing the land as too poor in quality.¹¹ Obviously this ruling is consistent with the interpretation of section 4 of the ...