Witt v. U.S.

• Decision Date: 20 July 1982
• Docket Number: 81-5260,Nos. 81-5147,s. 81-5147
• Citation: 681 F.2d 1144
• Parties: Moss J. WITT, an American Citizen of Choctaw Indian Descent, Plaintiff-Appellant, v. The UNITED STATES of America; The Secretary of Interior; The U. S. Commissioner of Indian Affairs; The Attorney General of the United States, Defendants-Appellees. Jackie Laverne JARMAN, a Cherokee Indian Citizen, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1144

681 F.2d 1144

Moss J. WITT, an American Citizen of Choctaw Indian Descent, Plaintiff-Appellant, v. The UNITED STATES of America; The Secretary of Interior; The

U. S. Commissioner of Indian Affairs; The Attorney

General of the United States,

Defendants-Appellees.

Jackie Laverne JARMAN, a Cherokee Indian Citizen, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.

Nos. 81-5147, 81-5260.

United States Court of Appeals, Ninth Circuit.

Submitted March 3, 1982.

Decided July 20, 1982.

Moss J. Witt, Jackie L. Jarman, Noble, Okl., for plaintiff-appellant.

Brian L. Sullivan, Las Vegas, Nev., Laura Frossard, Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before SNEED, POOLE, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

This consolidated appeal involves entitlement to Indian land allotments under Section Four of the General Allotment Act of 1887 (the Act), 25 U.S.C. § 334. At issue is the requirement of acquiring an eligibility certificate indicating that an ancestor was enrolled by the Dawes Commission. Additionally, we are confronted with the propriety of dismissing a pro se litigant's case for failure to comply with a local rule requirement for filing an answering legal memorandum.

I Facts

Moss Witt and Jackie Jarman filed claims with the Bureau of Land Management (BLM) on behalf of minor children in their care for Indian land allotments under Section Four of the Act, 25 U.S.C. § 334. Witt claimed to be of Choctaw descent, and Jarman claimed Cherokee descent. The BLM rejected the applications for failure to submit a certificate of eligibility from the Commissioner of Indian Affairs. Jarman's applications were also rejected because the tracts requested had previously been withdrawn from allotment and classified for federal retention, and Jarman had failed to file petitions for reclassification. ¹ The Interior Board of Land Appeals (IBLA) upheld the rejection of the applications. See Geneiva Nell Maston Smith, 48 IBLA 199, 201 (1980) (Witt); Robert Dale Marston, 51 IBLA 115 (1980) (Jarman). Both brought actions in the United States District Court for the District of Nevada under 25 U.S.C. § 345 to establish rights to allotments. ²

In Witt's district court action, it was undisputed that he could not qualify for an eligibility certificate. He argued that the eligibility requirements unconstitutionally deprived him of property in violation of the Fifth Amendment, and deprived him of his full rights as a United States citizen conferred by 8 U.S.C. § 1401. Jarman challenged both the requirement of an eligibility certificate and the existence and exercise of the Secretary of the Interior's power to classify land before it becomes available for Indian allotments. He contended that the Secretary had acted illegally by classifying large tracts of public lands, making them unavailable for public disposal, including for Indian land allotments.

The district court granted summary judgment against Witt on the grounds that he had not filed for and was ineligible for a certificate. In Jarman's case, the district court dismissed the action pursuant to Nevada District Court Local Rule 16(e) upon failure to file a memorandum of points and authorities in opposition to the Government's Fed.R.Civ.P. 12(b)(6) motion. The two cases were consolidated for appeal. We hold that the eligibility standards are constitutional, and therefore, summary judgment was properly granted against Witt. The dismissal of Jarman's action for failure to file a memorandum of points and authorities was an abuse of discretion, and we remand and instruct that an opportunity to cure the defect be provided.

II Background

Under Section Four of the Act, 25 U.S.C. § 334, any Indian not residing on a reservation may apply for and is entitled to allotment of a parcel of public land "not otherwise appropriated." ³ Heads of families may select allotment lands for their minor children. 25 U.S.C. § 332.

The original purpose behind the 1887 General Allotment Act was to alter tribal existence and lifestyle by allotting lands in severalty to individuals and family groups. See generally Hopkins v. United States, 414 F.2d at 467; U.S. Dep't of the Interior, Federal Indian Law 773-77 (1958) (hereinafter Federal Indian Law ). Section One of the Act authorized allotment of reservation lands to Indians residing thereon. 25 U.S.C. § 331. Section Four created a similar allotment system in unappropriated public lands for off-reservation Indians.

As enacted, the Allotment Act did not extend to the Five Civilized Tribes, ⁴ including the Cherokee and Choctaw tribes. 25 U.S.C. § 339. Allotment of the lands of these tribes was accomplished by agreements between the United States and the tribes in the late 19th and early 20th centuries. To facilitate negotiation and implementation of those agreements, Congress created the Dawes Commission and directed it to compile rolls of tribal membership. ⁵ Eligibility for allotment of tribal lands was limited to persons enrolled by the Commission. Although not clearly elucidated by the parties, an issue in this appeal is whether the Dawes Commission enrollments also limit eligibility for the allotments of public land sought by Witt and Jarman.

The Act does not define who is an "Indian." Regulations promulgated by the Secretary of the Interior require that an applicant for allotment "show that he is a recognized member of an Indian tribe or is entitled to be so recognized," and that he do so by "obtain(ing) from the Commissioner of Indian Affairs a certificate showing that he or she is an Indian and eligible for such allotment." 43 C.F.R. § 2531.1. ⁶ A person seeking allotment on behalf of a minor child must also be eligible for allotment. 43 C.F.R. § 2531.1(d). The Commissioner will issue an eligibility certificate to a Cherokee or Choctaw for a public land allotment only if the name of one of the person's ancestors is listed on the Dawes Commission rolls.

III Requirement of a Certificate

Witt and Jarman challenge both the requirement of filing an eligibility certificate and the standards used. They contend that the requirement of filing a certificate deprives them of vested property rights and of the rights of national citizenship guaranteed by 8 U.S.C. § 1401. That section, however, is inapplicable to the right, if any, to an Indian land allotment. The statute assures citizenship to Indians born in the United States. Its purpose was to change the earlier rule that an Indian was a citizen only if naturalized. See Elk v. Wilkins, 112 U.S. 94, 103, 5 S.Ct. 41, 46, 28 L.Ed. 643 (1884). See generally Totus v. United States, 39 F.Supp. 7, 11 (E.D.Wash.1941). The statute extends to Indians the rights of national citizenship, but expressly does not affect rights to tribal or other property.

Witt and Jarman's claim to a vested right to receive an allotment without first qualifying for an eligibility certificate is also incorrect. Congress may require proof of eligibility before allotting land. It has broad power over allotment procedures before a patent is issued. Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655-56, 96 S.Ct. 1793, 1796-1797, 48 L.Ed.2d 274 (1976). Appellants' reliance on Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941 (1912), is misplaced. In that case, the Supreme Court recognized that individual Indians had vested property rights in previously allotted land. Unlike the Indians in Choate, Witt and Jarman have not yet received land patents. The requirement of filing an eligibility certificate does not deprive them of any vested right. ⁷ See Sizemore v. Brady, 235 U.S. 441, 449-50, 35 S.Ct. 135, 136, 59 L.Ed. 308 (1914) (Congress may change conditions of entitlement to allotment because no vested rights created prior to selection).

IV The Eligibility Standards

An eligibility certificate will be issued to a person claiming Cherokee or Choctaw descent only if the applicant can trace an ancestor to the Dawes Commission rolls. This standard is derived from the legislation governing the creation of the rolls. The numerous statutes governing the Dawes Commission set up an elaborate system of application, hearing, and judicial review to determine who was to be enrolled as a member of the Five Civilized Tribes. ⁸ Agreements with the tribes and other legislation made the rolls final and conclusive on eligibility for allotment of tribal lands. ⁹

Both Witt and Jarman sought allotments in public, not tribal lands. The effect of the eligibility standards is to extend the restrictions on tribal land allotments to applicants for public land. We have interpreted other restrictions on allotment of tribal lands to apply also to allotment of public lands. Pallin v. United States, 496 F.2d 27, 35 (9th Cir. 1974). The creation of the Dawes Commission rolls was prompted by the need for a conclusive determination of eligibility for allotment of tribal land. The similar need for a conclusive eligibility standard in public land allotments is persuasive evidence that Congress intended the rolls to determine eligibility for both types of land. Therefore, we believe that the Secretary of the Interior acted within his implied powers under the General Allotment Act in promulgating regulations requiring an eligibility certificate which was available only to persons who could trace an ancestor to the Dawes Commission rolls.

We conclude that this use of the rolls does not violate the United States Constitution. Congress, directly or by delegation, has the power to define who is an Indian for purposes of determining property rights. Simmons v. Seelatsee, 244 F.Supp. 808, 813-15 (E.D.Wash.1965), aff'd per curiam, 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed.2d 480 (1966). The Supreme Court has held that the acts creating the Dawes Commission and requiring preparation of conclusive rolls limiting eligibility for distribution of...