Pallin v. United States

• Decision Date: 30 May 1974
• Docket Number: No. 71-1624.,71-1624.
• Citation: 496 F.2d 27
• Parties: Irene Mitchell PALLIN, Plaintiff-Appellee, v. UNITED STATES of America and Edward Elmer Mitchell, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

496 F.2d 27 (1974)

Irene Mitchell PALLIN, Plaintiff-Appellee, v. UNITED STATES of America and Edward Elmer Mitchell, Jr., Defendants-Appellants.

No. 71-1624.

United States Court of Appeals, Ninth Circuit.

April 1, 1974.

As Modified on Denial of Rehearing May 30, 1974.

Carl Strass (argued), George R. Hyde, Dept. of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., Shiro Kashiwa, Asst. Atty. Gen., San Francisco, Cal., for defendants-appellants.

William C. Wunsch (argued), Faulkner, Sheehan, Wunsch & Hartman, San Francisco, Cal., for plaintiff-appellee.

Before ELY and TRASK, Circuit Judges, and MURPHY, District Judge.^*

OPINION

MURPHY, District Judge.

Defendant-appellant, Edward Mitchell, Jr., and his sister, plaintiff-appellee, Irene Mitchell Pallin, are both enrolled Indians of the Yurok Tribe. Both sought the same tract of land as an Indian allotment. The tract, 160 acres of the public domain located north of Hoopa in Humboldt County, California,¹ was originally patented in 1907 to Nancy Burrill, grandmother of Edward and Irene. Since Nancy Burrill lived on land previously allotted to her on the Hoopa Valley Indian Reservation, she allowed her son, Edward Mitchell, Sr., father of the litigants, to establish a home on the public domain allotment. Edward Mitchell, Sr. occupied and improved the land. After his death his wife, Theresa Mitchell, lived on the land until 1953. Appellee Irene has occupied the allotment since 1953.

The Bureau of Indian Affairs eventually discovered that Nancy Burrill had illegally received both the 160-acre public domain allotment and the prior allotment on the Hoopa Valley Indian Reservation. Accordingly, on May 16, 1957, the public domain allotment patent was cancelled and the land restored to the public domain pursuant to the Act of April 23, 1904, as amended, 25 U.S.C. § 343.

On July 16, 1957, Irene and her brother Edward simultaneously filed Indian allotment applications for the 160-acre tract of land under Section 4 of the General Allotment Act of 1887, as amended, 25 U.S.C. § 334. As a result of a drawing in September 1957 to determine the priority of the two applications, the Bureau of Land Management ("BLM") awarded Irene the entire tract. On appeal, the decision was vacated by the BLM Director because the land had not been classified.

Since 1934 land in the public domain may not be disposed of by an Indian allotment until it has been classified as irrigable, nonirrigable agricultural or nonirrigable grazing land. The regulatory scheme was changed in 1934 when the Secretary of the Interior, pursuant to Executive Order 6910, withdrew all public lands in the ten western states from settlement. "Thereafter, classification by the Secretary was a prerequisite to * * * Indian settlement. Section 7 of the Taylor Grazing Act, 43 U.S.C. § 315(f), 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)." Kale v. United States, 489 F.2d 449 (9th Cir., 1973).

On remand a BLM examiner recommended that 80 acres of the tract be classified as nonirrigable agricultural land and 80 acres be classified as nonirrigable grazing land. The examiner's report described the land as steep, rough terrain with several drainages and two small creeks. Valuable improvements had been made by the litigants' parents. Approximately 12 acres of land had been cleared. The grazing area was almost entirely covered by valuable timber. There were several structures in various states of disrepair. Most of the improvements, including a house, barn and fences, were located on the agricultural portion. The examiner concluded that:

"While it would not be considered an economic unit by itself, the tract would constitute a good home, with a few repairs being made, for an individual who might obtain employment in the number of lumber mills located in the Hoopa Valley and has been proven so in view of the long and continued occupancy by Mrs. Theresa Mitchell and her children." (Emphasis ours.)

The examiner indicated that the equities favored Edward because he was willing to provide a home for his mother and therefore recommended that he be awarded the improved portion of the tract, the nonirrigable agricultural land, and that Irene be awarded the unimproved portion, the nonirrigable grazing land.²

The recommendations of the examiner were accepted by the BLM and on July 5, 1960, a patent for the 80 acres of nonirrigable grazing land was issued to Irene and a patent for the 80 acres of nonirrigable agricultural land was issued to Edward. Irene then petitioned the BLM Director to cancel the patents and to divide the land differently. The petition was dismissed. The Secretary of Interior affirmed the decision of the Director of the BLM.³

Pursuant to 25 U.S.C. § 345⁴ and 28 U.S.C. § 1353,⁵ Irene brought the present suit against the United States and her brother⁶ in the District Court for the Northern District of California claiming that she had been wrongfully denied her right to an allotment by the Government and that the allotment issued to her brother was contrary to law. Notwithstanding the prior classification of the land by the Secretary of the Interior, the District Court found the entire tract to be nonirrigable grazing land, also that Edward was statutorily ineligible for an allotment. Accordingly, it ordered the cancellation of his patent and the issuance of a patent for that land to Irene in addition to the lands already allotted to her.

The District Court's principal findings of fact and conclusions of law are quoted in the margin.⁷ It will be observed that it refrained from stating what standard of review it applied in reversing the Secretary's classification of the 80 acres allotted to Edward, and likewise refrained from stating its reason for cancelling Edward's allotment and ordering the issuance of a trust patent for those lands to the plaintiff Pallin. We surmise that Edward's allotment was cancelled because the Court found he was an Indian living on an Indian Reservation at the time he applied for the allotment. Such Indians are specifically excluded by 25 U.S.C. § 334 from allotments of non-reservation land.

We therefore are called upon to decide what is the proper standard of review by a District Court of the Secretary of Interior's decision in granting these allotments in an action brought pursuant to 25 U.S.C. § 345 and 28 U.S.C. § 1353. Such a determination in turn fixes the scope of appellate review of factual determinations by a trial court. Cf., F.R. C.P. 52. In addition, we must decide whether it was error to review and reverse the Secretary's classification of the tract.

It is common ground that the District Court held a trial de novo on the classification by the Secretary of the 160 acres allotted to Irene and Edward. It heard and accepted the testimony of an associate timberland and timber properties appraiser employed by the Humboldt County Assessor's Office, who opined that no portion of the 160-acre tract constituted agricultural land but admitted on cross-examination that he applied the standards of the Humboldt County Assessor's Office and did not know what standards the Secretary of Interior applied in the classification of lands under the Taylor Grazing Act (Tr. 15). Cf., Regulations 43, C.F.R. § 176.9(b) (1960).⁸ It also obviously rejected the testimony of Edward Mitchell and his mother and another relative to the effect that a considerable part of the tract was used for agricultural purposes for many years.

Although the scope of review by a District Court of Indian allotments made by the Secretary of Interior is not crystal clear, we are satisfied that in an action brought by an Indian under 25 U.S.C. § 345 and 28 U.S.C. § 1353, Congress has given to the District Court original jurisdiction to determine whether, in actions involving the right to an allotment under the General Allotment Act, 25 U.S.C. § 334 the Secretary acted within the limits Congress has placed on him. Hopkins v. United States, 414 F. 2d 464 (9th Cir. 1969); Finch v. United States, 387 F.2d 13 (10th Cir. 1967), cert. denied, 390 U.S. 1012, 88 S.Ct. 1262, 20 L.Ed.2d 162 (1968).

In Hopkins we held:

"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. Plaintiffs\' contention that the Secretary exceeded powers conferred upon him by the governing statutes is subject to judicial review in such a suit." (Citations and footnote omitted.) 414 F.2d at 466.

Sections 345 and 1353 give the District Court original jurisdiction of actions involving the right to an allotment under the General Allotment Act, 25 U. S.C. § 334. Both plaintiff Irene and her brother Edward were, in fact, given an allotment. What was at issue in the court below was Irene's claim (1) that Edward was not entitled to an allotment because (a) he was living on an Indian Reservation at the time he applied and (b) that he had not made settlement on such land, and (2) that she alone was entitled to the entire tract of 160 acres because (a) she had made settlement and was living on it since 1953 and (b) the entire tract of 160 acres was nonirrigable grazing land and (c) that under the General Allotment Act she was entitled to an allotment of 160 acres of nonirrigable grazing land.⁹

The rights to an allotment thus put in issue were (1) Edward's right to an allotment, and (2) Irene's right to the entire 160 acres.

We hold that the District Court quite properly received evidence negating Edward's right to an allotment. Such evidence tended to prove that at the filing time he was living with his wife on an Indian Reservation and was therefore statutorily ineligible for an allotment of land in the public domain. 25 U.S.C. § 334. The District Court accordingly had the power to order his allotment cancelled....