United States v. Nez Perce County, Idaho, 8560.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 95 F.2d 232
• Docket Number: No. 8560.,8560.
• Parties: UNITED STATES v. NEZ PERCE COUNTY, IDAHO, et al.
• Decision Date: 27 January 1938

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.

95 F.2d 233

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.

95 F.2d 234

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...