Nichols v. Rysavy
| Decision Date | 10 May 1985 |
| Docket Number | Civ. No. 83-5002,83-5033 and 83-5055. |
| Citation | 610 F. Supp. 1245 |
| Parties | Katherine B. NICHOLS, Individually, and as Special Administratrix of the Estate of Amelia Huston Nichols No. 593, deceased, Plaintiff, v. Don RYSAVY, et al., Defendants. Clover POTTER, Individually, and as Special Administratrix of the Estate of James Wilde, Plaintiff, v. STATE OF SOUTH DAKOTA, et al., Defendants. Gladys ECOFFEY, Individually, and as Special Administratrix of the Estate of John Yellow Bird, Plaintiff, v. WASHABAUGH COUNTY, et al., Defendants. |
| Court | U.S. District Court — District of South Dakota |
Ramon A. Roubideaux, Rapid City, S.D., Mario Gonzalez, Pine Ridge, S.D., John T. Hughes, Sturgis, S.D., Kim Jerome Gottschalk, Jeanette Wolfley, Boulder, Colo., for plaintiffs.
William T. Finley, Jr., David F.B. Smith, Kevin W. McLean, Washington, D.C., amici curiae.
Tom D. Tobin, Winner, S.D., David Albert Mustone, Washington, D.C., for Leo Novotny.
John Simpson, Winner, S.D., for defendants Rysavy.
John P. Guhin, Asst. Atty. Gen., Pierre, S.D., for State of S.D.
Philip N. Hogen, U.S. Atty., Sioux Falls, S.D., and Kenneth A. Pels, Atty. U.S. Dept. of Justice, Washington, D.C., for U.S. defendants.
Tom Tobin and William W. Shakely, amici curiae, Bennett & Ziebach Cos.
Robert A. Sambroak, Jr., Kadoka, S.D., for Washabaugh County.
These three cases were consolidated pursuant to F.R.C.P. 42(a) for the purpose of determining motions to dismiss filed in each of the three forced fee patent cases.1
These three cases are actions to recover title and possession of former allotments on the Rosebud and Pine Ridge Indian Reservations from which the Plaintiffs claim to have been unlawfully denied and excluded and of which they claim to be entitled by virtue of acts of Congress. Plaintiffs further sue for injunctive declaratory relief against the federal Defendants (United States of America, James Watt, as United States Secretary of the Interior, and Ken Smith, as Assistant Secretary of the Interior for Indian Affairs), claiming that the federal Defendants have breached their fiduciary duty imposed by law to protect and defend Plaintiffs' rights to the subject property and profits therefrom and ordering the federal Defendants to take all action necessary to protect and defend the Plaintiffs' rights to the subject property and the profits therefrom. In Potter and Ecoffey, the Plaintiffs also seek money damages from the federal Defendants. In addition, the Plaintiffs have sued certain non-federal Defendants.
In Nichols, the Plaintiff sued private defendants, Rysavy, et al., (present and past owners/occupiers from July 15, 1943 to present) for damages for trespass, conversion and unlawful exclusion from the subject property, an accounting for rents and profits, and for injunctive relief to enjoin them from interfering with plaintiff's free use and enjoyment of the land.2 Katherine Nichols is the Special Administratrix of the Estate of Amelia Nichols, Rosebud Sioux Allottee No. 593. Ms. Nichols is a daughter-in-law, not a lineal descendant of Amelia Nichols.
In Potter, the Plaintiff seeks money damages against the State of South Dakota, because South Dakota, through its Rural Credit Board, foreclosed against this property in 1927, and retained the mineral rights. The surface estate was later sold. The Plaintiff claims that the foreclosure and retention of mineral rights violated her civil rights under 42 U.S.C. § 1983. The Plaintiff also seeks an order declaring that the South Dakota state court judgment is null and void. Defendant Jacob Sharp is the present owner. No past landowners were joined in this action. Clover Potter is a lineal descendant and Special Administratrix of the Estate of James Wilde, Oglala Sioux Tribe, Pine Ridge Agency, Allottee No. 3759.
In Ecoffey, the Plaintiff seeks damages against Washabaugh County, claiming that the County violated her civil rights under 42 U.S.C. § 1983 by levying taxes on land upon which a void fee patent was issued. Washabaugh County levied taxes on the property in the amount of $403.77 after the issuance of the fee patent. No past or present landowners were joined in this action. Gladys Ecoffey is a lineal descendant and Special Administratrix of the Estate of John Yellow Bird, Pine Ridge Allottee No. 4202.
In addition, each of the non-federal defendants in all three cases have crossclaimed against the federal government, seeking indemnification if they are held liable. In Nichols, Defendant Novotny has also filed a counterclaim against the Plaintiff seeking compensation for improvements made on the property.
"The origin of the forced fee patent claims can be traced to the period in the administration of Indian affairs known as the allotment period, 1887 to 1933." LaFave, supra, at 62. In South Dakota, this requires the examination of three Acts: 1) The General Allotment Act (Dawes Act) of 18873, 2) Act of March 2, 1889,4 and 3) The Burke Act of 1906.5
Under the Dawes Act, individual Indians received parcels of land, called allotments, title to which was to be held in trust by the United States for the benefit of the allottee for a period of twenty-five years. During the trust period, the land could not be sold, mortgaged or taxed. After expiration of the trust period, the allottees would receive an unrestricted fee patent to the allotment, along with full United States citizenship. Although the trust period was to have expired twenty-five years after the issuance of the allotment, the trust period was extended indefinitely by Congress, and has never expired. LaFave, supra, at 64 and 70.
An Act of March 2, 1889, divided the Great Sioux Reservation into several smaller reservations. This Act provided a scheme for allotments in Western South Dakota. This Act also incorporated Section 6 of the General Allotment Act (Dawes Act). Ch. 405, 25 Stat. 888.
The Burke Act of 1906, 25 U.S.C. § 349, amended Section 6 of the General Allotment Act. This amendment was enacted in response to two different situations. First, was the 1905 case of Matter of Heff, 197 U.S. 488, 25 S.Ct. 506, 49 L.Ed. 848 (1905), in which the U.S. Supreme Court declared Indians became citizens upon the initial issuance of an allotment. This meant that the Indians were subject to state law, particularly the sale of liquor. Second, was the increasing number of bills enacted by Congress authorizing the issuance of unrestricted fee patents prior to the expiration of the trust period to allottees who were specifically named in the legislation. LaFave, supra, at 65-66.
The Burke Act deferred citizenship until the allottee received a fee patent. More importantly, the Burke Act delegated to the Secretary of the Interior the authority to issue fee patents to allottees prior to the expiration of the trust period. 25 U.S.C. § 349.
After passage of the Burke Act, the Secretary of the Interior issued fee patents to Indian allottees who applied for such patents and were deemed competent (usually on the recommendation of the local Indian superintendent). This policy of issuing fee patents only to allottees who applied for them continued until 1916. LaFave, supra, at 66-68; Cohen, Handbook of Federal Indian Law 136-137 (1982).
In 1916, Secretary of the Interior, Franklin K. Lane and Commissioner of Indian Affairs, Cato Sells, established a new policy. Officials of the Department of the Interior were assigned to "competency commissions" and directed to visit reservations and determine whether individual Indian allottees were competent. Fee patents were issued to allottees found to be competent by these competency commissions regardless of whether the allottee applied for a patent.
On April 17, 1917, the Department of the Interior's policy regarding the issuance of fee patents to allottees was modified further by a document entitled "A Declaration of Policy" issued by Commissioner Sells and Secretary Lane. Under the terms of the declaration, competency commissions thenceforward were to investigate only allottees of one-half or more Indian blood. Allottees of less than one-half Indian blood were to be given their fee patents without investigation. The declaration provided:
In 1919, the policy of presuming that allottees of less than one-half Indian blood were competent was extended to include allottees with one-half Indian blood. Id.
In 1921, the newly-elected Harding Administration ended the policy of issuing fee patents to Indians without application. Charles H. Burke, the former congressman from South Dakota and author of the Burke Act, became the Commissioner of Indian Affairs. On April 1, 1921, he announced that an application and examination of competency would be required for all allottees who received fee simple patents after that date.
Mr. Burke claimed that his policy was consistent with the original intent of the Burke Act, and that the previous administration's policy had violated the drafter's intent:
Although for a few years prior to 1921 great numbers of patents were issued during the trust period without application by or consent of patentees, under an erroneous construction of the Act of 1906, the practice was discontinued,...
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