Kale v. United States

Decision Date17 December 1973
Docket NumberNo. 26020.,26020.
Citation489 F.2d 449
PartiesKenneth M. KALE, Plaintiff-Appellant, v. The UNITED STATES of America et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

Kenneth M. Kale, in pro per.

Robert L. Meyer, U. S. Atty., Los Angeles, Cal., James Akers, Asst. U. S. Atty., Glen R. Goodsell, Atty. (argued), Dept. of Justice, Dale K. Frizzell, Asst. Atty. Gen., Land & Natural Resources Div., Dept. of Justice, Washington, D. C., Edward D. Neuhoff, San Marino, Cal., and Milo V. Olson, Los Angeles, Cal., (argued), for Sea View Estates, and for defendants-appellees.

Before BROWNING, HUFSTEDLER and CHOY, Circuit Judges.

ORDER

After rehearing of this appeal and consideration of the additional briefs and oral arguments of the parties, our original opinion filed herein on January 18, 1973 is withdrawn and we substitute therefor the attached opinion.

No further motion for rehearing will be entertained on any ground covered by the petition for rehearing and the rehearing just concluded.

CHOY, Circuit Judge:

Kenneth M. Kale, a Chickasaw Indian, brought suit in federal court alleging that the Secretary of the Interior (the Secretary) had improperly denied his Indian allotment petition-application covering land in Coachella Valley, Riverside County, California. Kale sought to enjoin the enforcement of a California judgment which, relying on a federal land patent issued to one Errett Lobban Cord, quieted title to the land in Sea View Estates, Inc. (Sea View) and ordered Kale and his family ejected. The district court granted summary judgment against Kale. We affirm.

Cord, a holder of Soldier's Additional Homestead Rights,1 filed an application for 275 acres of public land on April 9, 1962 with the Bureau of Land Management (BLM), a division of the Department of the Interior, pursuant to 43 U. S.C. §§ 274, 278. The BLM classified the 275 acres as being proper for Soldier's Additional Homestead Title Transfer on June 15, 1964 after determining that the land was not needed for retention in federal ownership, was not mineral in character and was suitable in a broad sense for some farming use.

Kale filed an Indian allotment2 petition-application for 160 acres of land pursuant to 25 U.S.C. § 334 on October 6, 1966. Ninety-five of the acres were within the area applied for by Cord. In November, 1966 Kale entered a portion of the land covered by Cord's application and placed a mobile home there. Kale subsequently built a water tower, stock corral, and made other improvements.

The BLM, on February 8, 1967, authorized publication of notice that a patent was to be issued to Cord.3 Cord published notice for five consecutive weeks in the Coachella Valley Sun, the local newspaper. The notice called for any protestant to file his objection with the local BLM office. Although Kale had notice of the proposed action of the BLM, he failed to file a protest.4

The BLM granted a land patent to Cord for the 275 acres on June 22, 1967. Cord and his wife conveyed the property to Sea View on April 22, 1968. Sea View commenced suit for ejectment and to quiet title against Kale in state court in June, 1968. Pending that lawsuit, on December 13, 1968, the Secretary denied Kale's petition-application for the entire 160 acres he sought, finding that 95 of the acres had been patented to Cord and were not under the jurisdiction of the Department. The Secretary also found that all but 5 of the remaining 65 acres were in a proposed withdrawal for the Bureau of Reclamation, and that even assuming all the lands were immediately available, they were not suitable for Indian allotment.5

The California court entered judgment for Sea View on March 10, 1969, quieting title in Sea View and ruling that Kale had no right, title, or interest in the 95 acres in controversy. Kale filed the present action on March 31, 1969. The district court concluded as matters of law that: (1) the real property in question did not qualify for Indian an allotment because it had been previously appropriated and had not been classified for settlement under Indian allotment rights; (2) Kale had failed to exhaust available administrative remedies and was barred from judicial relief; and (3) the judgment of the California court was res judicata as to the ownership of the land.

REGULATORY SCHEME

Use of soldier's rights and Indian allotments was relatively simple until the Secretary of the Interior, pursuant to Executive Order 6910, November 26, 1934, and Executive Order 6964, February 5, 1935, withdrew all public lands in the ten western states from selection or settlement. Thereafter, classification by the Secretary was a prerequisite to a soldier's scrip selection or Indian settlement. Section 7 of the Taylor Grazing Act, 43 U.S.C. § 315f, authorized the Secretary "in his discretion, to examine and classify any lands withdrawn or reserved" by the executive orders. Bronken v. Morton, 473 F.2d 790, 793 (9th Cir. 1973).

When Cord filed his application for public lands in 1962, the regulations then in effect required that the owner of a soldier's additional right first select a tract of land and then file a formal application. 43 C.F.R. § 132.6 (1954). The application was considered a petition for classification of the lands sought as proper for soldier's scrip selection. 43 C.F.R. § 296.2 (1954). The filing of the application did not give Cord the right to occupy or settle upon the land and settlement prior to the allowance of his selection constituted a trespass. 43 C.F.R. § 296.5 (1954).

Detailed classification procedures were adopted during the pendency of Cord's petition-application. After determining the regularity of a petition, a proposed decision was required to be issued containing a statement of the reasons for the classification. 43 C.F.R. § 2411.1-3(a) (1964). For thirty days protests could be filed. 43 C.F.R. § 2411.1-4(a) (1964). If no protests were filed, the proposed classification action was issued as the initial decision of the State director. 43 C.F.R. § 2411.1-4(a)(1) (1964). For sixty days the decision was subject to the exercise of the supervisory authority of the Secretary of the Interior and became a final order, reviewable by a court, after that time. 43 C.F.R. § 2411.1(a), (b) (1964). If public land was classified pursuant to a petition-application, the applicant was entitled to a preference right of entry. If the application of the preference right claimant was rejected, the next applicant in order of filing succeeded to the preference right. If no successor existed, the land was opened to application for the purpose it was classified or the classification could be revoked. 43 C.F.R. § 2411.3 (1964).

When Kale filed his Indian allotment petition-application in 1966, the regulations specified that settlement had to be authorized by classification. 43 C.F.R. § 2212.0-3(b) (1964). Settlement prior to that time constituted a trespass. 43 C.F.R. § 2411.3-3 (1966). Once classification occurred and an allotment application was approved, the land was segregated for the Indian allottee and later applications rejected. 43 C.F.R. § 2212.1-3(c) (1964). After the issuance of a "certificate of allotment," 43 C.F.R. § 2212.2-1(a) (1964), a trust patent was granted two years from the date of settlement. 43 C.F.R. § 2212.2-2(a) (1964).

The classification procedures in effect when Kale filed his petition-application were basically the same as in 1964 when Cord's petition for classification was granted with one significant addition. The new section, 43 C.F.R. § 2411.1-1(f) (1966), read as follows:

(1) A final order of the Secretary shall continue in full force and effect so long as the lands remain subject to classification under the authorities cited in Subpart 2410 until an authorized officer revokes or modifies it. Until it is so revoked or modified, all applications and petition-applications for the lands not consistent with the classification of the lands will not be allowed. Any payments submitted therewith will be returned. If the order is revoked or modified, the land will be opened to entry on an equal-opportunity basis after public notice in accordance with applicable regulations for the purpose for which it may be classified. (emphasis added).

Cord complied precisely with the regulations governing his application for the 95 acres in question and was entitled to a preference right of entry at the time of Kale's application. The BLM's classification of the land as proper for soldier's rights in 1964, although not precluding holders of those rights from filing applications until a patent had been issued to Cord, did foreclose Kale's application because it was not consistent with the classification. 43 C.F.R. § 2411.1-1(f) (1966). Kale's settlement was a trespass. Congress did not intend that an Indian acquire a vested right to an allotment simply by settling on a piece of land and then filing an application. Hopkins v. United States, 414 F.2d 464, 467-468 (9th Cir. 1969). Indian allotment rights may be exercised only upon public lands not otherwise appropriated. The land in question was appropriated to holders of soldier's rights after the 1964 classification decision. Until that classification was revoked, Kale's petition-application for the 95 acres was properly disallowed.

Kale has no basis for an attack upon the land patent granted to Cord....

To continue reading

Request your trial
24 cases
  • Pacific Legal Foundation v. Watt
    • United States
    • U.S. District Court — District of Montana
    • January 19, 1982
    ...of the court. United States v. Abilene and Southern Ry., 265 U.S. 274, 282, 44 S.Ct. 565, 567, 68 L.Ed. 1016 (1924); Kale v. United States, 489 F.2d 449, 454 (9 Cir. 1973), cert. denied, 417 U.S. 915, 94 S.Ct. 2617, 41 L.Ed.2d 220 As of June 15, 1981, as a result of the withdrawal order, th......
  • Matter of Townview Nursing Home
    • United States
    • U.S. Bankruptcy Court — Southern District of New York
    • February 25, 1983
    ...Cir.1973) (primary jurisdiction); Hayes v. Secretary of Defense, 515 F.2d 668 (D.C.Cir.1975) (exhaustion of remedies); Kale v. United States, 489 F.2d 449 (9th Cir.), cert. denied, 417 U.S. 915, 94 S.Ct. 2617, 41 L.Ed.2d 220 (1973) (exhaustion of remedies); Dry Creek Lodge, Inc. v. United S......
  • Pence v. Morton
    • United States
    • U.S. District Court — District of Alaska
    • April 8, 1975
    ...action involving the right of a person of Indian descent to an allotment of land under any Act of Congress or treaty. Kale v. United States, 489 F.2d 449 (9th Cir. 1973); Scholder v. United States, 428 F.2d 1123 (9th Cir. 1970); United States v. Pierce, 235 F. 2d 885 (9th Cir. 1956). Pallin......
  • High Country Citizens Alliance v. Clarke
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 21, 2006
    ...that the patentee should not have received the patent; he must also show that he (the challenger) is entitled to it." Kale v. United States, 489 F.2d 449, 454 (1973) (internal citations omitted); see also Leisnoi, Inc. v. United States, 313 F.3d 1181, 1185 (9th Cir.2002).12 Moreover, as rec......
  • 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