United States v. Nez Perce County, Idaho

• Decision Date: 27 January 1938
• Docket Number: No. 8560.,8560.
• Citation: 95 F.2d 232
• Parties: UNITED STATES v. NEZ PERCE COUNTY, IDAHO, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

95 F.2d 232 (1938)

UNITED STATES v. NEZ PERCE COUNTY, IDAHO, et al.

No. 8560.

Circuit Court of Appeals, Ninth Circuit.

January 27, 1938.

John A. Carver, U. S. Atty., and E. H. Casterlin and Frank Griffin, Asst. U. S. Attys., all of Boise, Idaho, and John L. Wheeler, Sp. Atty., Dept. of Justice, of Los Angeles, Cal., for the United States.

Ray E. Durham and E. C. Butler, both of Lewiston, Idaho, for appellees.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

HEALY, Circuit Judge.

The United States brought suit against Nez Perce County, Idaho, for the purpose of quieting its title to certain lands within the Nez Perce Indian Reservation held by the Government in trust for Caleb Carter, an Indian ward enrolled as a member of the Nez Perce Tribe. The Government sought also to recover taxes paid by the ward.

It is essential to an understanding of the question before us briefly to give an account of the relations between the United States and this tribe and to review certain applicable federal statutes. In 1855 a treaty was entered into by the terms of which these Indians relinquished certain lands, and other lands were set apart to them. 12 Stat. 957. A second treaty was made in 1863 in which the Nez Perce made further relinquishments. 14 Stat. 647. Article 3 of the treaty provided in substance that so much of the reserved lands as might be suitable for cultivation should be surveyed, the parcels so surveyed to be allotted under rules and regulations such as would insure to the allottee, or to his family in case of his death, the possession and enjoyment of the allotment as a permanent home. The residue of the lands reserved were to be held in common for pasturage for the sole use and benefit of the Indians. The Commissioner of Indian Affairs was required to issue certificates specifying the names of the individuals to whom allotments were assigned, and these certificates were required to state that "said tracts are set apart for the perpetual and exclusive use and benefit of such assignees and their heirs." Until otherwise provided by law, these tracts were made exempt from levy, taxation, or sale.

On February 8, 1887, Congress passed the General Allotment Act. 24 Stat. 388. The first four sections of the act, see 25 U.S.C.A. §§ 331-334, and notes, provide for the allotment in severalty of tracts within established reservations. Section 5, 25 U. S.C.A. § 348, requires the issuance of patents in the names of the Indian allottees, declaring that the United States will, for the period of twenty-five years, hold the land thus allotted in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or his heirs, and that the United States will at the expiration of the period convey the same by fee patent to the Indian or his heirs, "free of all charge or incumbrance whatsoever." There is a proviso that the President may in any case extend the period. By Act of May 8, 1906, 34 Stat. 182, 25 U.S.C.A. § 349, the Act of February 8, 1887, was amended to provide "that the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrance, or taxation of said land shall be removed." By Act of June 25, 1910, 36 Stat. 855, 25 U.S.C.A. § 372, it was provided that 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, the Secretary of the Interior shall ascertain the legal heirs of such decedent. If the Secretary finds the heirs of such decedent competent to manage their own affairs, he is directed to issue to such heirs a patent in fee for the allotment of the decedent; and he may, if he finds the lands of the decedent capable of partition to the advantage of the heirs, cause the shares of such as are competent, upon their petition, to be set aside and patents in fee to be issued to them therefor.

It was apparently considered that the Act of May 8, 1906, authorized the issuance of fee-simple patents to the Indians, prior to the expiration of the trust period or extension of such period, without application therefor by the Indian and without regard to his consent. Many patents in fee are said to have been issued to members of the Nez Perce Tribe under authority of that statute. By Act of February 26, 1927, 44 Stat. 1247, 25 U.S.C.A. § 352a, the Secretary of the Interior was empowered, 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, or before the expiration of any extension of the trust period, "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."

Turning now to the facts of the case before us, it appears that in 1895 the Department of the Interior made allotments of lands to John Carter, William Carter and Mary Carter, members of the Nez Perce Tribe. On June 13, 1895, and December 1, 1897, pursuant to the Act of February 8, 1887, trust patents were issued for these Indians covering their allotments. These patents contain the verbiage required by section 5 of that act, including the proviso for the extension of the trust period. Before the expiration of the period the original allottees named in these patents died. In 1919 a petition was filed by certain of their heirs for the partition of the trust lands. Caleb Carter, the Indian involved in the present suit, was one of these heirs, and though named in the application for partition he did not join therein. It is shown, however, that he wrote to an Oklahoma Congressman concerning the partition proceedings, allegedly for the purpose of having the same speedily determined. The lands were partitioned among the heirs, and on May 31, 1921, a fee-simple patent was issued to Caleb Carter for his portion. The instrument was delivered to Carter and receipted for by him. Meanwhile, on March 24, 1920, the trust period applicable to these grants had been extended by the President for an additional term of ten years, and this period was again extended on March 18, 1930, for a further term.¹

The lands embraced in the fee patent to Caleb Carter were placed on the tax rolls of Nez Perce County for the year 1922 and were annually thereafter assessed for taxation until 1933. Carter paid these taxes from 1922 to the last half of 1927, but thereafter the levies became delinquent and remain unpaid, and in 1932 tax deed was issued to the county. This Indian at no time mortgaged or sold any part of the lands patented to him. About 1930 he made application to the Secretary of the Interior, under authority of the Act of February 26, 1927, for the cancellation of his patent and the restoration of his land to a trust status. On April 20, 1932, the Secretary made an order canceling the patent. This order recites that the fee patent was issued during an extension of the original trust period covering the land, without application by or consent of Caleb Carter. The present suit was brought by the United States to quiet its title as against the claimed lien of the county and to recover on his behalf the taxes paid by the Indian.

Upon the conclusion of the trial the court made findings and entered a decree adjudging that the defendant Nez Perce County has a valid and subsisting lien for unpaid taxes levied by it for the last half of 1927 and for the years 1928 to 1932, inclusive, on the real property involved in the suit, and that the order issued by the Secretary of the Interior canceling the patent in fee simple is subject to the lien of the county for these unpaid taxes. It was adjudged that in the event the land...