St. Marie v. United States, 918-Y.

• Decision Date: 23 July 1938
• Docket Number: No. 918-Y.,918-Y.
• Court: U.S. District Court — Southern District of California
• Parties: ST. MARIE et al. v. UNITED STATES et al.

24 F. Supp. 237

ST. MARIE et al. v. UNITED STATES et al.

No. 918-Y.

District Court, S. D. California, Central Division.

July 23, 1938.

Thomas L. Sloan, of Palm Springs, Cal., and G. M. Gannon, of Los Angeles, Cal. (Daniels, Sokolow & Swope, of Los Angeles, Cal., of counsel), for plaintiffs.

Ben Harrison, U. S. Atty., and Carl Eardley, Asst. U. S. Atty., both of Los Angeles, Cal., for defendants.

YANKWICH, District Judge.

The members of the Agua Caliente or Palm Springs band of Mission Indians of California have resided since 1897 upon the Agua Caliente or Palm Springs Indian Reservation set aside for their occupancy and use by executive and congressional decree, pursuant to an Act of the Congress entitled "An act for the relief of the Mission Indians in the State of California", enacted January 12, 1891 (26 Stat. 712). This Act, after providing for the appointment of a commissioner to arrange the settling of Mission Indians residing in California upon reservations, provides, in Sections 4 and 5:

"Sec. 4. That whenever any of the Indians residing upon any reservation patented under the provisions of this act shall, in the opinion of the Secretary of the Interior, be so advanced in civilization as to be capable of owning and managing land in severalty, the Secretary of the Interior may cause allotments to be made to such Indians, out of the land of such reservation, in quantity as follows: To each head of a family not more than six hundred and forty acres nor less than one hundred and sixty acres of pasture or grazing land, and in addition thereto not exceeding twenty acres, as he shall deem for the best interest of the allottee, of arable land in some suitable locality; to each single person over twenty-one years of age not less than eighty nor more than six hundred and forty acres of pasture or grazing land and not exceeding ten acres of such arable land.

"Sec. 5. That upon the approval of the allotments provided for in the preceding section by the Secretary of the Interior he shall cause patents to issue therefor in the name of the allottees, which shall be of the legal effect and declare that the United States does and will hold the land thus allotted for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or, in case of his decease, of his heirs according to the laws of the State of California, and that at the expiration of said period the United States will convey the same by patent to the said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same, before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void.

"Provided, That these patents, when issued, shall override the patent authorized to be issued to the band or village as aforesaid, and shall separate the individual allotment from the lands held in common, which proviso shall be incorporated in each of the village patents." 26 Stat. 713. Italics added.

Section 3 of the Act was amended by the Act of March 2, 1917 (39 Stat. 976), to read as follows: "That section three of the Act of January twelfth, eighteen hundred and ninety-one (twenty-sixth Statutes at Large, page seven hundred and twelve), entitled `An Act for the relief of Mission Indians in the State of California,' be, and the same is hereby, amended so as to authorize the President, in his discretion and whenever he shall deem it for the interests of the Indians affected thereby, to extend the trust period for such time as may be advisable on the lands held in trust for the use and benefit of the Mission Bands or villages of Indians in California: Provided, That the Secretary of the Interior be, and he is hereby, authorized and directed to cause allotments to be made to the Indians belonging to and having tribal rights on the Mission Indian reservations in the State of California, in areas as provided in section seventeen Sec. 17 of the Act of June twenty-fifth, nineteen hundred and ten (thirty-sixth Statutes at Large, page eight hundred and fifty-nine), instead of as provided in section four of the Act of January twelfth, eighteen hundred and ninety-one, (Twenty-sixth Statutes at Large, page seven hundred and thirteen): Provided, That this act shall not affect any allotments heretofore patented to these Indians."

In 1921, the Secretary of the Interior appointed H. E. Wadsworth as general allotting agent and authorized him to prepare allotment schedules for the various Indian bands in Southern California. In 1923, Wadsworth appeared on the Palm Springs reservation and made certain selections on behalf of all enrolled members of the band. He returned in 1927 and made selections for all Indians desiring allotments,—approximately one half of the tribe. To each selector Wadsworth gave a selection certificate which was identical in wording with that issued to the plaintiff here, which read:

"Selection for Allotment

"On Palm Springs Indian Reservation, 1927

"This is to certify that Genevieve Pierce St. Marie has selected the S½ NE¼ SE¼ SE¼ Sec. 22; NW¼ NE¼ of Section 22 Township No. 4 South, Range No. 4 East, of the San. Ber. M., containing 45 acres, more or less, according to Government survey. Stake No.____

"Not valid unless approved by the Secretary of the Interior.

"H. E. Wadsworth "U. S. Special Allotting Agent." (Italics added.)

The selections were never approved by the Secretary and no actual allotment was ever made.

The plaintiff and others similarly situated have instituted actions for the purpose of compelling the United States to recognize the selection of lands as an allotment and to compel issuance to them of a trust allotment patent which, under the terms of the Act, would ripen into complete ownership in the allottee at the end of a twenty-five year period and entitle him to a conveyance by patent in fee, discharged of the trust.

The cases were tried together and the facts, in the main, are undisputed. We are to determine whether the plaintiffs acquired vested rights, the recognition of which we can compel. 25 U.S.C.A. § 345.

Title to Indian tribal lands, whether occupied by Indians under treaties between the United States and a particular Indian nation, or under acts of settlement on reservations, is, except where a special treaty or law gives the fee to the Indian tribes, vested in the Government of the United States in fee. The Indians have a right to perpetual occupancy and use. See Marsh et al. v. Brooks, 1850, 8 How. 223, 232, 12 L.Ed. 1056; Spalding v. Chandler, 1896, 160 U.S. 394, 402, 403, 16 S.Ct. 360, 40 L. Ed. 469; United States v. Chase, 1917, 245 U.S. 89, 99, 100, 38 S.Ct. 24, 62 L.Ed. 168; United States v. Creek Nation, 1935, 295 U.S. 103, 109, 110, 55 S.Ct. 681, 684, 79 L. Ed. 1331; Shoshone Tribe v. United States, 1937, 299 U.S. 476, 496, 57 S.Ct. 244, 251, 81 L.Ed. 360.

If the tribal lands are allotted to individuals, the allottee, upon receipt of a certificate of allotment, acquires an equitable title and the right to exclusive possession of the allotted land, subject, however, to the supervisory power of the Government, or limitation of alienation, during a twenty-five year period. Marsh et al. v. Brooks, supra; Duncan Townsite Co. v. Lane, 1917, 245 U.S. 308, 310, 38 S.Ct. 99, 62 L.Ed. 309; United States v. Bowling et al., 1921, 256 U.S. 484, 487, 41 S.Ct. 561, 562, 65 L.Ed. 1054. The superior title of the Government in tribal lands and in allotted lands where no patents have been issued, implies, of course, wise management. It does not confer on the Government the right to despoil a tribe or an allottee of accrued rights. As Mr. Justice Cardozo said so eloquently, in Shoshone Tribe v. United States, supra, at page 498, 57 S.Ct. at page 252: "Spoliation is not management." But the paternalistic position of the Government also imposes an obligation to protect the tribe or individual Indians against spoliation by others than the Government,— even spoliation by fellow tribesmen. These general considerations should aid in determining what, if any, rights the tribesmen acquired through these selections for allotment. On their face, the certificates contained the legend: "Not valid unless approved by the Secretary of the Interior." Such approval was never given. That it was necessary is evident from the language of the Act of 1891. The Act, in Section 4, provides that the Secretary of Interior may cause allotments to be made to Indians residing upon the designated reservation, whenever "in the opinion of the Secretary of the Interior any of the Indians be so advanced in civilization as to be capable of owning and managing land in severalty." The allotments when made must, under Section 5 of the Act, be approved by the Secretary. The section provides that upon such approval, "he shall cause patents to issue therefor" which shall have certain legal effect. It is evident that this procedure contemplates the following acts on the part of the Secretary:

(1) A determination that, in his opinion, the Indians have reached the degree of civilization spoken of in the Act.

(2) An order setting up the mechanics for selection.

(3) Actual allotments approved by the Secretary.

These acts are all optional involving the exercise not of ministerial but of executive and almost quasi-judicial discretion and judgment. Lemieux v. United States, 8 Cir., 1926, 15 F.2d 518, 521; United States v. Reynolds, 1919, 250 U.S. 104, 39 S.Ct. 409, 63 L.Ed. 873. And the act so declares them by using the optative word "may". It is only after the third stage is passed (the approval of the allotment by the Secretary) that further action on the part of the Secretary becomes mandatory, and the mandatory word "must" appears in the Act. When he has given his...