Mottaz v. U.S., No. 83-2582

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before HEANEY, JOHN R. GIBSON and FAGG; HEANEY
• Citation: 753 F.2d 71
• Parties: Florence Blacketter MOTTAZ, on behalf of herself and all others similarly situated, Appellants, v. UNITED STATES of America, Appellee.
• Docket Number: No. 83-2582
• Decision Date: 18 January 1985

Page 71

753 F.2d 71 Florence Blacketter MOTTAZ, on behalf of herself and all
others similarly situated, Appellants,
v.
UNITED STATES of America, Appellee. No. 83-2582. United States Court of Appeals,
Eighth Circuit. Submitted June 11, 1984.
Decided Jan. 18, 1985.

Page 72

Derck Amerman, Leonard A. Zolna, Jr., Minneapolis, Minn., for appellants.

Kim Jerome Gottschalk, Native American Rights Fund, Boulder, Colo., for Clover Potter.

F. Henry Habicht, II, Asst. Atty. Gen., Larry M. Corcoran, David C. Shilton, J. Carol Williams, Attys., Dept. of Justice, Washington, D.C., for appellee; Mariana R. Shulstad, U.S. Dept. of the Interior, Twin Cities, Minn., of counsel.

Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

Florence Blacketter Mottaz ¹ appeals the district court's dismissal of her "Secretarial Transfer" ² suit against the United States on the ground the twenty-seven-year-old claim was time-barred by 28 U.S.C. Sec. 2401(a) (1982). For the reasons set forth below, we reverse and remand.

I. BACKGROUND.

On December 5, 1905, three Chippewa Indian ancestors of plaintiff Florence Blacketter Mottaz received eighty-acre trust allotments on the Leech Lake Reservation in Cass County, Minnesota, pursuant to the General Allotment Act of February 8, 1887, 25 U.S.C. Secs. 331-334, 339, 341, 342, 348, 349, 354, 381 (1982) and the Nelson

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Act of January 14, 1889, 25 Stat. 642. These ancestors were her mother, Esther Taylor, a/k/a Esther Grasshopper; her mother's sister, Mary Knickerbocker; and the latter's son, David Knickerbocker. Title to their allotments was held in trust by the United States for periods which were eventually extended indefinitely. See 25 U.S.C. Sec. 462 (1982). Mottaz inherited one-fifth of the Taylor allotment and one-thirtieth of the Knickerbocker allotments. In the early 1950's, some, but not all, of the heirs with fractional holdings petitioned the Department of Interior, pursuant to 25 U.S.C. Sec. 483 (1952), to sell their allotments. Mottaz claims that this statute and Department of Interior regulations and policies prevent the Secretary of Interior from selling the allotment interest of a non-consenting owner. In May, 1953, the United States Department of the Interior's Office of Indian Affairs sent to Mottaz forms which were captioned "Consent to Sale of Inherited Lands" for her Taylor and Knickerbocker allotments. The letters which accompanied the consent forms read in relevant part:

Some of the owners have requested the sale of this land. We have appraised both land and timber, if any, and as soon as we get the consent to sell, an effort will be made to obtain a buyer by advertising for sale bids. This land will not be sold unless the high bid is equal to, or more than, the appraisal value. If no reply is received from you within ten (10) days, it will be assumed that you have no objection to the sale. [Emphasis added.]

Mottaz did not sign and return the consent forms to the Office of Indian Affairs.

Although apparently fewer than one-half of the Indian land-owners who received the notices returned them consenting to the sale, the government nonetheless sold the land in 1954. All three of the Mottaz allotments were sold to the United States Forest Service and they are now included within the Chippewa National Forest. Mottaz claims that she did not consent to the sale of her land, and that she did not receive payment for it. The government claims that she did receive payment in 1955.

In 1967, Mottaz visited the Bureau of Indian Affairs (BIA) and received a list of all her allotment interests. The list did not show that she had an interest in the Taylor or two Knickerbocker allotments. In 1981, she again requested from the BIA a list of her allotment interests. The BIA indicated that she had held an interest in the Taylor and Knickerbocker allotments and that she might have a "Secretarial Transfer" claim under the "2415 Land Claims Project" ³ on the ground her land was sold without her consent.

On December 30, 1981, Mottaz filed a complaint in United States District Court on her own behalf and on behalf of other Indians with similar secretarial transfer claims. Her complaint alleged that the Taylor and Knickerbocker allotments were sold without her consent and thus their sale was illegal and void, that her property had been taken without due process and just compensation, and that the BIA's sale of the allotments without her consent was negligent and a breach of fiduciary duty. She sought damages in the amount of the fair market value of the Taylor and Knickerbocker allotments or rescission of their sale with title to revest in the heirs. Following a pretrial hearing on June 6, 1982, Mottaz withdrew her demand for rescission of the sale leaving only her demand for money damages in the amount of fair market value of...