United States v. Raiche

• Decision Date: 15 June 1928
• Citation: 31 F.2d 624
• Parties: UNITED STATES et al. v. RAICHE et al.
• Court: U.S. District Court — Western District of Wisconsin

31 F.2d 624 (1928)

UNITED STATES et al. v. RAICHE et al.

District Court, W. D. Wisconsin.

June 15, 1928.

COPYRIGHT MATERIAL OMITTED

Stanley M. Ryan, U. S. Atty., of Janesville, Wis., and Harold E. Hanson, Asst. U. S. Atty., of Stoughton, Wis., for complainants.

Oliver M. Olson, of Wheaton, Ill., and O'Melia & Kaye, of Rhinelander, Wis., for defendants.

LUSE, District Judge (after stating the facts as above).

In my opinion, the paper which purports to be a contract between Saw-bad-deese-once-ish and David Blackbird must be rejected as written evidence of a transaction of sale and purchase, first, because its age is insufficient to warrant its acceptance under the ancient document rule; second, because there was no evidence proving the signatures upon the paper; and, third, because the circumstances of its production are as consistent with nondelivery to Blackbird as with delivery. It is quite clear, also, that there has never been approval of sale of the 6 acres in controversy by the President or the Secretary of the Interior. It is contended, on behalf of the defendants, that the part taken by the Indian farmer and the reservation chief of police indicates approval of the transaction so far as John Frenchman, Sr., was concerned; but such acts were as consistent with preparations for an application for the approval of the President or Secretary of the Interior as with the carrying out of a transaction already approved, or as with an intent to approve on the part of the Indian farmer, assuming that the act of approval was or could be delegated to such a subordinate employee of the department.

It is true that the approval by the Commissioner of Indian Affairs of the expenditure of Blackbird's money, first for the purchase of the land, and later for the erection of a dwelling thereon, hints strongly of departmental approval of the entire transaction; but the proof falls short of showing that the Commissioner of Indian Affairs was advised that Blackbird intended to purchase the land and erect a dwelling upon land purchased from a noncompetent Indian. Hence, so far as the approval of the Commissioner of Indian Affairs is concerned, while it may be, and is, concluded that he gave his approval to the use of Blackbird's funds, it is also concluded that there was no approval given by the Commissioner of Indian Affairs to the sale by Frenchman, Sr., of the lands which he held under a deed containing restrictions upon alienation. Furthermore, there is no proof that the duty of approving the sale by Frenchman was ever delegated by the President of the United States or the Secretary of the Interior to any subordinate officer or employee. The fact that a record authorized by law was kept of such deeds as were approved by the President or the Secretary of the Interior, and that no record of the transaction in question appears in that book, is persuasive that no such approval was ever given.

Furthermore, the fact that the transaction apparently never proceeded beyond the point where Frenchman, Sr., signed the contract of sale, is indicative that the transaction never reached a stage where it would likely have been submitted either to the President or to the Secretary for approval of a deed. Assuming, as counsel for both sides apparently assume, though there is no proof on the subject, that the funds of Blackbird were under the supervision of the Department of Indian Affairs in the same degree as were the lands of Frenchman under the control of the President, the conclusion is unavoidable that a mistake was made in permitting the expenditure of Blackbird's funds for the purchase of the land and building of a home, without first obtaining a deed from Frenchman, approved by the President or Secretary of the Interior.

It is true, also, that neither the treaty in question, nor any statute, nor any regulation which has been brought to the attention of this court, prescribes how the permission of the President or the Secretary of the Interior to alienation by the holder of an allotment with restrictions against alienation, should be expressed. In the second appeal in the case of Lomax v. Pickering, reported in 173 U. S. 26, 19 S. Ct. 416, 43 L. Ed. 601, it is said: "How that permission should be obtained or expressed is left undetermined by the proviso. We see no reason why it might not have been by a memorandum at the foot of the petition for approval, or even by a letter to that effect. The essential fact was that permission should be obtained and expressed in some form, of which, in all probability, a record was kept in the department." Nevertheless I am unable to find from the evidence in this case that there was any approval, and the matter must be disposed of on the basis of a transaction which lacked the approval of either the President or the...