Quinault Allottee Association v. United States, 102-71.

Citation485 F.2d 1391
Decision Date17 October 1973
Docket NumberNo. 102-71.,102-71.
PartiesThe QUINAULT ALLOTTEE ASSOCIATION and Individual Allottees Jennie Boome et al., v. The UNITED STATES.
CourtCourt of Federal Claims

Charles A. Hobbs, Washington, D. C., attorney of record, for plaintiffs; Wilkinson, Cragun & Barker, and R. Anthony Rogers, Washington, D. C., of counsel.

Herbert Pittle, Washington, D. C., with whom was Asst. Atty. Gen. Kent Frizzell, for defendant.

Before COWEN, Chief Judge, DURFEE, Senior Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

BENNETT, Judge:

The individual members of the class1 of plaintiffs are owners of interests in Indian land trust allotments on the Quinault Reservation in the State of Washington. The lands are on the Pacific Coast side of the Olympic Peninsula. Plaintiffs contend that the United States, in deducting administrative charges from the proceeds of timber sales on the various allotments, interfered with their vested right not to be subject to any charges assessed on the trust allotments. Plaintiffs seek to recover the total of such charges collected since 1922, the amount to be determined later, together with interest, on alternative theories of a Fifth Amendment taking, a breach of fiduciary duty, and a breach of contract.2 Plaintiffs invoke our general jurisdiction under 28 U.S.C. § 1491. The court concludes, however, that plaintiffs' action must be dismissed since the charges in question were authorized by law, were validly assessed by the United States and violated no treaty, contract or fiduciary duty.3

It was the avowed policy of the United States in the mid-1800's to remove Indian tribes from wide areas of the Pacific Northwest in order to make way for white settlers. Pursuant to this policy, in 1855, Isaac Stevens, Governor and Superintendent of Indian Affairs of the Washington Territory, began negotiations with the fish-eating tribes living on the west coast of the Territory.4 The negotiations culminated in a treaty signed only by the Quinaults and Quileutes on July 1, 1855, and by Governor Stevens on January 25, 1856, 12 Stat. 971 ratified March 8, 1859; proclaimed April 11, 1859. Known as the Treaty of Olympia, parts thereof, which are pertinent here, are as follows:

ARTICLE I. The said tribes and bands hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the lands and country occupied by them, * * *.
ARTICLE II. There shall, however, be reserved, for the use and occupation of the tribes and bands aforesaid, a tract or tracts of land sufficient for their wants within the Territory of Washington, to be selected by the President of the United States, and hereafter surveyed or located and set apart for their exclusive use, * * *.
* * * * * *
ARTICLE VI: The President may hereafter, * * * at his discretion, cause the whole or any portion of the lands to be reserved, or of such other land as may be selected in lieu thereof, to be surveyed into lots, and assign the same to such individuals or families as are willing to avail themselves of the privilege, and will locate on the same as a permanent home, on the same terms and subject to the same regulations as are provided in the sixth article of the treaty with the Omahas 10 Stat. 1043, so far as the same may be applicable.

Article VI of the aforesaid Omaha Treaty provided the details of the method of allotment to single Indians and Indian families and for forfeiture of an allotment if an allottee neglected his land, refused to occupy it, or abandoned it and wandered from place to place. The President of the United States was authorized, in his discretion, to issue patents for assigned land, conditioned on the agreement that such land would not be aliened or leased for periods longer than 2 years. It was also provided that the land should be exempt from "levy, sale, or forfeiture" until such time as a state legislature should remove the restrictions with consent of Congress. 10 Stat. 1045 (1854). The restrictions have never been removed. The validity of this restraint upon alienation was upheld as to both land and standing timber in Starr v. Campbell, 208 U.S. 527, 28 S.Ct. 365, 52 L.Ed. 602 (1908).

In accordance with Article II of the Quinault (Olympia) Treaty supra, a 10,000-acre reservation was set aside for the Quinaults and other Washington Territory tribes in 1861. This tract proved unappealing, however, on account of its limited size and heavy concentration of timberland. The tract included only a small amount of land suitable for farming or grazing. As a result, the Quinault Agency superintendent suggested that since the coastal tribes of southwest Washington drew their sustenance almost entirely from the water, such tribes should be collected on a reservation suitable for their fishing needs. This recommendation led to an order, issued by President Grant on November 4, 1873, designating approximately 220,000 acres of the Washington coast as an Indian reservation.5 The order provided that:

In accordance with the provisions of the treaty with the Quinaielt Quinault and Quillehute Quileute Indians, concluded July 1, 1855, and January 25, 1856 * * *, and to provide for other Indians in that locality, it is hereby ordered that the following tract of country in Washington Territory * * * be withdrawn from sale and set apart for the use of the Quinaielt, Quillehute, Hoh, Quit, and other tribes of fish-eating Indians on the Pacific coast, * * *. Executive Orders Relating to Indian Reservations from May 14, 1855 through July 1, 1912, G.P.O., p. 206 (1912).

Not as many Indians as expected moved to the new reservation following the 1873 proclamation. Many tribes chose to stay on their older and smaller reservations or ancestral homelands. This reluctance to move to the new reservation was not shortsighted, however, since only 2 percent of the 220,000-acre reservation was suitable for cultivation or for homesites. The great expanse of the 220,000-acre tract was, and still is, rain forest covered with huge, coniferous trees, some several hundred years old. Settlement on the tract was impossible except in random clearings where those Indians moving to the tract formed small villages.

On February 8, 1887, Congress passed the General Allotment Act, ch. 119, 24 Stat. 388 (1887). Cf. 25 U.S.C. § 331, note on Prior Law. One of the purposes of this Act was to provide Indians with the economic ability to integrate into society. This Act provided for the allotment of land in severalty to Indians on various reservations, including the Quinault Reservation. The Act authorized the President of the United States to grant such allotments whenever, in his opinion, reservation land was found to be suitable for agricultural or grazing purposes. The Secretary of the Interior was directed to issue patents declaring that the United States held the allotted lands in trust for 25 years for the sole use and benefit of the individual Indian allottees. At the end of this 25-year trust period, the United States was to convey the land to the Indian allottee or his heirs "in fee, discharged of said trust and free of all charge or incumbrance whatsoever." Ch. 119, § 5, 24 Stat. 389 (1887), 25 U.S.C. § 348. It is upon this statutory language that plaintiffs base their claim. It is their assertion that such language precludes any charges being levied against the trust, even while it is still in existence. Congress enacted legislation in 19066 and again in 19347 extending such trust period indefinitely.

The allotments made under the General Allotment Act were not to exceed 80 acres of agricultural land or 160 acres of grazing land. No reference was made in the Act to forest or timberland. The allotment process began in 1905 and continued without difficulty until 1911. By that time, over 750 allotments had been made, more than half of which were granted to Indians who were not members of the Quinault or Quileute tribes. For this reason, in 1911, Congress enacted legislation making clear the President's right to grant allotments to Indians not of the Quinault or Quileute tribes. This legislation directed the Secretary of the Interior to grant allotments on the Quinault Reservation —

* * * to all members of the Hoh, Quileute, Ozette or other tribes of Indians in Washington who are affiliated with the Quinaielt and Quileute tribes in the treaty of July first, eighteen hundred and fifty-five, and January twenty-third, eighteen hundred and fifty-six, and who may elect to take allotments on the Quinaielt Reservation rather than on the reservations set aside for these tribes: Provided, That the allotments authorized herein shall be made from the surplus lands on the Quinaielt Reservation after the allotments to the Indians thereon have been completed. Ch. 246, 36 Stat. 1346 (1911).

The allotment process came to a temporary halt in 1912 when the Secretary of the Interior determined that the reservation land was more valuable for its timber than for agricultural or grazing purposes.8 The allotment process did not resume until 1924, after the Supreme Court in United States v. Payne, 264 U.S. 446, 44 S.Ct. 352, 68 L.Ed. 782 (1924), settled the question of whether the Allotment Act, in referring only to grazing and agricultural land, meant to preclude allotment of timberland. The Court ruled that it did not.

The papers before the court indicate that some 2,340 trust allotments on the Quinault Reservation were issued to individual Indians. Some of the alloted land is not now in Indian ownership but the lands of about 2,000 Indians are still in trust status. Plaintiffs are from among this group. This then is the historical and factual context within which Congress enacted the legislation which bears directly on the question presented in this case.

In 1910, Congress authorized the commercial sale of standing...

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  • United States v. Mitchell
    • United States
    • United States Supreme Court
    • June 27, 1983
    ...See Act of June 5, 1850, 9 Stat. 437; Appropriation Act of March 3, 1853, 10 Stat. 226, 238; Quinault Allottee Association v. United States, 202 Ct.Cl. 625, 628-629, 485 F.2d 1391, 1392 (1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1980, 40 L.Ed.2d 312 2. See Halbert v. United States, 283 U.......
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    • January 24, 1979
    ...Ct.Cl. 191, 196 (1970); Capoeman v. United States, 440 F.2d 1002, 1002, 194 Ct.Cl. 664, 666 (1971); Quinault Allottee Ass'n v. United States, 485 F.2d 1391, 1392, 202 Ct.Cl. 625, 628 (1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1980, 40 L.Ed.2d 312 (1974); Coast Indian Community v. United S......
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    ...costs assessed from sales of timber from Indian property. The same damage claims were also raised in Quinault Allottee Ass'n v. United States, 485 F.2d 1391, 202 Ct.Cl. 625 (1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1980, 40 L.Ed.2d 312 (1974). Plaintiffs had an even more tangible damage ......
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