United States v. Ferry County

• Decision Date: 16 July 1941
• Docket Number: No. E — 4494.,E — 4494.
• Parties: UNITED STATES v. FERRY COUNTY et al.
• Court: U.S. District Court — District of Washington

39 F. Supp. 1007

UNITED STATES v. FERRY COUNTY et al.

No. E — 4494.

District Court, E. D. Washington, N. D.

July 16, 1941.

Lyle Keith, U. S. Atty., and Harvey Erickson, Asst. U. S. Atty., both of Spokane, Wash., for plaintiff.

Osee W. Noble, of Republic, Wash., for defendants Ferry County and others.

H. N. Martin, of Republic, Wash., and O. C. Moore, of Spokane, Wash., for defendant John Daniels.

SCHWELLENBACH, District Judge.

This is an action brought by the United States against Ferry County, Washington, the Commissioners thereof, the Assessor-Treasurer of said County and one John Daniels. It is brought on behalf of the four Indian daughters of Stephen Lambert and Mary Pierre Lambert and the surviving second husband of Mary Pierre Lambert, all of whom are members of the Colville Tribe of Indians shown upon the Reservation rolls as wards of the Government. The purpose of the action is to quiet title to certain real property in the United States as trustee for the use and benefit of the five Indians. The plaintiff also prays that the tax deed issued to the defendant John Daniels be cancelled and that the outstanding unpaid taxes levied against the property be cancelled and that the defendants be enjoined from taking further action in assessing the property for tax purposes or in attempting to perfect the claim of title of the defendant John Daniels.

The law and the facts in this case were discussed by Judge Neterer in his decision denying motion to dismiss reported in D.C., 24 F.Supp. 399. Because there is a variance between the testimony introduced and the facts alleged in the complaint and because new and additional points have been raised by defendants in their briefs submitted subsequent to trial, it seems advisable that I should set forth the facts in detail.

Stephen Lambert, a Colville Indian, died on March 30, 1915. Thereafter, on June 27, 1917, there was issued in his name a trust patent to the property involved in this action. From the wording of the patent, it is apparent that it was issued in contemplation of the provisions of the Act of June 25, 1910, U.S.C.A. Title 25, Section 372, because the trust patent provided

"That the United States of America, in consideration of the premises, has allotted, and by these presents does allot, unto the said Indian the Land above described, and hereby declares that it does and will hold the Land thus allotted (subject to all statutory provisions and restrictions) for the period of twenty-five years, in trust for the sole use and benefit of the said Indian and at the expiration of said period the United States will convey the same by patent to said Indian in fee, discharged of said trust and free from all charge and encumbrance whatsoever; but in the event said Indian dies before the expiration of said trust period, the Secretary of the Interior shall ascertain the legal heirs of said Indian and either issue to them in their names a patent in fee for said land, or cause said Land to be sold for the benefit of said heirs as provided by law."

On November 26, 1918, the Secretary of the Interior, in accordance with the prescribed procedure, determined the heirs at law of Lambert to be his surviving wife and the four daughters above described. In the meantime, the wife had married Desautel. On October 28, 1919, without the request of any of the heirs or application therefor by any of the heirs, there was issued a fee patent to the five heirs of Lambert. The testimony of these heirs discloses that the issuance of the fee patent was without the consent of any of the heirs except Sarah Daniels who is the wife of John Daniels, one of the defendants in this case. She testified that she wanted the fee patent issued and that she caused the fee patent to be filed for record in the office of the Auditor of Ferry County on March 23, 1920. Mrs. Daniels also testified that her mother wanted the fee patent issued. In this regard the testimony is in conflict with that of her sisters and in direct conflict with a letter which she, herself, wrote to the Agency on January 25, 1920. I was compelled to reject the testimony of Mrs. Daniels insofar as it referred to the mother's attitude and counsel for plaintiff now asks me to reject her testimony concerning her own attitude. I find it impossible to do this, however, since there is no conflict concerning that point and since it is undisputed that she voluntarily caused the fee patent to be filed for record. Counsel cites two cases holding that the mere filing or recording by an Indian of a fee patent is not sufficient to show that the Indian consented to receive it. The first of these cases is United States v. Board of Commissioners of Comanche County, D.C., 6 F. Supp. 401. In that case, however, the Indian protested and only recorded the patent after being forced to do so. The other case is United States v. Board of County Commissioners, D.C., 13 F.Supp. 641. In that case, the Indian was uneducated and ignorant and relied upon the improper advice of the Indian Agent. Every indication in this case is that the action by Sarah Daniels was voluntary and done for the express purpose of creating a situation under which she and her husband might acquire title to the property to the exclusion of her mother and sisters by means of tax foreclosure sale. The two cited cases are not in point.

After 1920, taxes were regularly assessed against this property. They were not paid. On May 18, 1925, a certificate of delinquency was issued. On April 5, 1926, foreclosure was started, April 13, 1926, a judgment of foreclosure was entered and on May 6, 1926, the Treasurer of the defendant County executed and delivered to the defendant John Daniels a treasurer's tax deed to the real estate involved. On September 27, 1928, Mary Desautel died and her heirs were thereafter determined to be her surviving husband and the four daughters above described. On May 26, 1930, the Secretary of the Interior, acting under authority of the Act of February 26, 1927, 44 Stats. 1247, U.S.C.A. Title 25, § 352a, cancelled the patent in fee which had been issued to the heirs of Stephen Lambert and restored the lands to their trust patent status.

"§ 352a. Cancellation of patents in fee simple for allotments held in trust. The Secretary of the Interior is hereby authorized, in his discretion, to cancel any patent in fee simple issued to an Indian allottee or to his heirs before the end of the period of trust described in the original or trust patent issued to such allottee, or before the expiration of any extension of such period of trust by the President, where such patent in fee simple was issued without the consent or an application therefor by the allottee or by his heirs: Provided, That the patentee has not mortgaged or sold any part of the land described in such patent: Provided also, That upon cancellation of such patent in fee simple the land shall have the same status as though such fee patent had never been issued. (Feb. 26, 1927, c. 215, 44 Stat. 1247.)"

Later, on August 23, 1937, the defendant John Daniels commenced an action in the Superior Court of the State of Washington for Ferry County seeking to quiet title to the property in himself. Thereafter this action was started.

The position of the defendants can be briefly stated as follows:

They contend that all of the rights acquired by the parties were derived from the Act of Congress of June 25, 1910, U.S.C.A. Title 25, § 372, which provides the ascertainment of heirs of deceased allottees, the pertinent part of which is

"When any Indian to whom an allotment of land has been made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive. If the Secretary of the Interior decides the heir or heirs of such decedent competent to manage their own affairs, he shall issue to such heir or heirs a patent in fee for the allotment of such decedent; if he shall decide one or more of the heirs to be incompetent he may, in his discretion, cause such lands to be sold."

Defendants point out the language of the trust patent, which I have heretofore quoted, and urge that the 1910 Statute was mandatory and that the Secretary, in 1919, had no discretion but was compelled either to issue a patent in fee, if he found the heirs were competent or to sell the land if he found the heirs or any of them to be incompetent.

Defendants then point out that this case differs from any of the cases cited by plaintiff in that it has to do with heirs who inherited from an allottee whose trust patent was issued after the passage of the 1910 Statute. I think I should state at this point that a most exhaustive search by me has failed to reveal any case where this precise question was considered. There are a number of cases involving heirs where the trust patent was issued before 1910. United States v. Nez Perce County, 9 Cir., 95 F.2d 232; Board of County Commissioners, Jackson County, Kansas v. United States, 10 Cir., 100 F.2d 929; United States v. Lewis County, Idaho, 9 Cir., 95 F.2d 236.

There are a number of cases where allottees are involved where the trust patent was issued before 1910. Board of Commissioners of Caddo County, Oklahoma v. United States, 10 Cir., 87 F.2d 55; Morrow v. United States, 8 Cir., 243 F. 854; United States v. Board of County Commissioners of Pawnee County, Oklahoma, D.C., 13 F. Supp. 641; United States v. Board of Commissioners of Comanche County, Oklahoma, D.C., 6 F.Supp. 401; Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; English v. Richardson, 224 U.S. 680, 32 S.Ct. 571, 56 L.Ed. 949; Carpenter v. Shaw, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478.

There is one case where an...