Lemieux v. United States

• Decision Date: 18 October 1926
• Docket Number: No. 7306.,7306.
• Citation: 15 F.2d 518
• Parties: LEMIEUX v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

15 F.2d 518 (1926)

LEMIEUX v. UNITED STATES et al.

No. 7306.

Circuit Court of Appeals, Eighth Circuit.

October 18, 1926.

Arnold, Hollister & Arnold, of Duluth, Minn., for appellant.

James A. Wharton, Asst. U. S. Atty., of St. Paul, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., and W. C. Preus, of Minneapolis, Minn., on the brief), for appellees.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and JOHN B. SANBORN, District Judge.

JOHN B. SANBORN, District Judge.

Peter Lemieux, the appellant, is a mixed-blood Chippewa Indian, a member of the Fond du Lac band of that tribe. He was born in 1851, in Wisconsin, near the city of Superior. His father was a mixed-blood and his mother a full-blood, both Chippewas and members of the same band. Lemieux has been enrolled as a member of the tribe and has participated in every payment made by the government to it and its members since his birth. He has never resided upon the Fond du Lac reservation in the state of Minnesota, except possibly for a few months at the time he selected the allotment hereinafter referred to. At the time of selection of this allotment, his wife and children lived in the city of Superior, Wis., and he and they have resided there since that time.

The boundaries of the present Fond du Lac reservation in Minnesota were fixed by the Treaty of September 30, 1854, article 2, § 4 (10 Statutes at Large, 1109). The treaty, after fixing the boundaries, provides (article 2, § 7): "Each head of a family or single person over twenty-one years of age at the present time of the mixed bloods, belonging to the Chippewas of Lake Superior, shall be entitled to eighty acres of land, to be selected by them under the direction of the President, and which shall be secured to them by patent in the usual form."

Article 3 provides: "The United States will define the boundaries of the reserved tracts, whenever it may be necessary by actual survey, and the President may, from time to time, at his discretion, cause the whole to be surveyed, and may assign to each head of a family or single person over twenty-one years of age, eighty acres of land for his or their separate use; and he may, at his discretion, as fast as the occupants become capable of transacting their own affairs, issue patents therefor to such occupants, with such restrictions of the power of alienation as he may see fit to impose."

On November 26, 1884, and on November 27, 1887, schedules of allotments of lands to Indians made under the terms of this treaty were approved by the President. On February 8, 1887, Congress passed the General Allotment Act, which is entitled "An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the territories over the Indians, and for other purposes." 24 Statutes at Large, 388. Section 1 provides in part:

"That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon."

Section 4 (Comp. St. § 4198) provides:

"That where any Indian not residing upon a reservation, * * * shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, he or she shall be entitled, upon application to the local land office for the district in which the lands are located, to have the same allotted to him or her, and to his or her children, in quantities and manner as provided in this act for Indians residing upon reservations; and when such settlement is made upon unsurveyed lands the grant to such Indians shall be adjusted upon the survey of the lands so as to conform thereto; and patents shall be issued to them for such lands in the manner and with the restrictions as herein provided."

On January 25, 1888, the appellant made claim to an allotment under the provisions of section 1 of the Act of February 8, 1887, and selected lot 6 and the northeast quarter of the southwest quarter of section 12 of township 49, range 19. He received from Tom Wall, United States special agent to allot lands to Indians, the following certificate:

"No. 132.

"La Pointe Agency, Jan'y 25, 1888.

"I hereby certify that Peter Lemieux, a member of the Fond du Lac Tribe of Indians, has selected as his allotment of land under the provisions of the Act of Congress approved February 8, 1887, the lot 6 and N. E. of S. W. of section 12 of township 49, range 19, containing 69.20 acres, subject to the approval of the Secretary of the Interior.

"Selection No. 132, dated Jan'y 25, 1888. Tom Wall, U. S. Special Agent to Allot Lands to Indians."

There was upon this land at that time 571,640 feet of merchantable timber. It is difficult, from the record, to tell who sold the timber, but there is no evidence that it was sold with the authority of the United States government. It was sold, however, with the knowledge and consent, apparently, of the Indian agent for the tribe, and, of its value, which the court determines to be $2,858.20, Peter Lemieux received $1,143.28, and the balance of $1,714.92 was paid into the treasury of the United States. The court below determined that Lemieux had sold the timber with the knowledge and consent of the agent, and his conclusion in that regard we think is justified. Lemieux claims that the value of the land without the timber was $15 an acre, and the court below finds that it was $10 an acre from the year 1888 to the year 1895.

The selection of this land by Lemieux or its allotment to him by Wall, the special agent, was never certified to the Commissioner of Indian Affairs or to the Secretary of the Interior, as provided by the act, and was never approved or disapproved, and no patent was ever issued to Lemieux for it. While the selection by and the allotting of lands to the Indians of the Fond du Lac Tribe under the act of 1887 was proceeding and before it was completed, Congress passed the "Nelson Act" of January 14, 1889 (25 Statutes at Large, 642, c. 24). This act provides for the allotment of lands in severalty upon certain reservations in the state of Minnesota, and the ceding of other reservations by the Indians, the allotments to be made pursuant to the act of 1887. It contains this provision for the protection of the Indian allottees under the act of 1887 and the treaty of 1854:

"That in any case where an allotment in severalty has heretofore been made to any Indian of land upon any of said reservations, he shall not be deprived thereof or disturbed therein except by his own individual consent separately and previously given, in such form and manner as may be prescribed by the Secretary of the Interior." Section 1.

In 1895, Shah-bah-yaust, a Chippewa Indian of the Fond du Lac Band, selected this same land, under the provisions of the act of 1889. His selection was reported to and approved by the Secretary of the Interior and a patent was issued to him therefor. Lemieux on the 7th day of November, 1923, more than 35 years after he had made his selection and 27 years after the land had been allotted to Shah-bah-yaust, brought this action under the provisions of the Act of August 15, 1894 (28 Stat. 305), as amended by the Act of February 6, 1901 (31 Stat. 760 Comp. St. §§ 4214, 4215) to have it determined that he is the owner of this allotment, and that the government has converted the timber which was originally upon it.

Briefly the contention of the appellant is that he was entitled to an allotment under the act of 1887, that he selected his allotment, and that, under the familiar rule "that where an individual, in the prosecution of a right, does everything which the law requires him to do, and fails to attain his right by the misconduct or neglect of a public officer, the law will protect it" (Lytle v. State of Arkansas, 9 How. 314, 13 L. Ed. 153; Smith v. Bonifer C. C. 132 F. 889; Smith v. Bonifer C. C. 154 F. 883; Bonifer v. Smith, 166 F. 846, 92 C. C. A. 604; Barney v. Dolph, 97 U. S. 652, 24 L. Ed. 1063; Cornelius v. Kessel, 128 U. S. 456, 9 S. Ct. 122, 32 L. Ed. 482; Ballinger v. Frost, 216 U. S. 240, 30 S. Ct. 338, 54 L. Ed. 464; United States v. Payne C. C. A. 284 F. 827; Payne v. Mexico, 255 U. S. 367, 41 S. Ct. 333, 65 L. Ed. 680), he is entitled to this allotment.

Three questions are involved in the consideration of this appeal:

(1) Was Lemieux one of those Indians entitled to an allotment upon the Fond du Lac reservation under section 1 of the act of 1887?

(2) Was this land allotted to him prior to the passage of the act of 1889?

(3) Under all of the circumstances, is his claim barred by laches?

All of these questions were answered adversely to the contentions of the appellant by the court below, and we think the court was correct in its conclusions.

Section 1 of the act of 1887 gave the right to an allotment to an Indian "located" upon the reservation; in other words, to a reservation Indian. Section 4 gave to the nonreservation Indians the right to an allotment of other public lands. The plan seems to have been to grant to those Indians whose location was upon the reservation the right to allotments in severalty thereon, but not to extend this right to those who had never been located upon it. Lemieux was at no time located upon the reservation, except at the time he made his selection and sold the timber upon the selected lands. So far as residence was concerned, he was not then located upon it, because he was...