St. Marie v. United States , 108 F.2d 876 ( 1940 )

HANEY, Circuit Judge.

Eighteen suits were brought by members of the Agua Caliente band of Mission Indians to obtain adjudications that allotments of tribal lands had been made to them, and that they were entitled to trust allotment patents. The cases were consolidated for trial, and decrees were entered against the Indians, of which review is here sought.

There are several bands of Mission Indians. The Act of January 12, 1891, Ch. 65, 26 Stat. 712, hereafter called the Mission Indian Act, was enacted “for the relief” of such Indians. The act provided, in general, for the selection of reservations, and for allotments in severalty. Provision was made in the first three sections for the appointment of three commissioners who were “to select a reservation for each band or village of the Mission Indians”, which selection was to be valid when approved by both the President and the Secretary of the Interior, after which patent was to issue for each reservation to the band occupying the same.

In conformity with that act, three commissioners were appointed, and they recommended that a reservation of 6 sections in one township, and 1 section in another township be reserved for the Agua Caliente band. The President and the Secretary of the Interior approved the report of the commissioners, on December 29, 1891, and the lands mentioned were withdrawn. The quantity of land in the reservation has been greatly increased by further withdrawals for that purpose. Lands were patented to the band on May 14, 1896, on October 29, 1906, on January 5, 1911 and on March 29, 1923, and in addition a section and a quartersection were purchased for the band. The reservation is near and almost surrounds Palm Springs, California. The Agua Caliente band is located on this reservation.

The Mission Indian Act in §§ 4 and 5 made provision for allotments in severalty. The material parts of these sections are:

“Sec. 4. That whenever any of the Indians residing upon any reservation patented under the provisions of this act shall, in the opinion of the Secretary of the Interior, be so advanced in civilization as to be capable of owning and managing land in severalty, the Secretary of the Interior may cause allotments to be made to such Indians, out of the land of such reservation, in quantity as .follows: [specifying quantities of grazing and arable land to be allotted].

“Sec. 5. That upon the approval of the allotments provided for in the preceding section by the Secretary of the Interior he shall cause patents to issue therefor in the name of the allottees, which shall be of the legal effect and declare that the United States does and will hold the land thus allotted for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made * * *

The Secretary of the Interior made no attempt to allot any of the lands until enactment of the Act of March 2, 1917, Ch. 146, 39 Stat. 969, 976.

Section 3 of the act last mentioned amended § 3 of the Mission Indian Act and authorized “the President, in his discretion and whenever he shall deem it for the interests of the Indians affected thereby, to extend the trust period for such time as may be advisable on the lands held in trust for the use and benefit of the Mission Bands or villages of Indians in California”. It further provided: “ * * * That the Secretary of the Interior be, and he is hereby, authorized and directed to cause allotments to be made to the Indians belonging to and having tribal rights on the Mission Indian reservations in the State of California, in areas as provided in section seventeen of the [Act of June 25, 1910, 36 Stat. 859], instead of as provided in section four of the [Mission Indian Act], * * * ”

The Act of June 25, 1910, Ch. 431, § 17, 36 Stat. 855, 859, 25 U.S.C.A. §§ 331, 336, mentioned in the preceding statute, is an amendment of the General Allotment Act, Act of February 8, 1887, Ch. 119, 24 Stat. 388, 25 U.S.C.A. § 331 et seq.

The General Allotment Act was intended to be and was a general act relating to all Indian reservations, except certain ones named in § 8, 25 U.S.C.A. § 339. The Mission Indian reservations were not excepted, undoubtedly because at that time no reservations for the Mission Indians had been made. Section 1 of the General Allotment Act authorized the President to survey reservations and allot the lands therein in severalty in specified quantities. Section 2 provided that “all allotments set apart under the provisions of this act [of sections 331 to 334, inclusive, and 336] shall be selected by the Indians, heads of families selecting for their minor children, and the agents shall select for each orphan child * * * ”. Section 3 provides for the making of allotments “by special agents appointed by the President for such purpose, and the agents in charge of the respective reservations * * * ” and for certification of such allotments. Section 5 is nearly identical to § 5 of the Mission Indian Act in the part thereof quoted, and provides for issuance of a trust patent upon approval of the allotments. The Act of June 25, 1910, Ch. 431, § 17, 36 Stat. 855, 859, 25 U.S.C.A. § 331, amended § 1 of the General Allotment Act, as previously amended, but only as to the areas to be allotted, requiring the President to cause allotments “to be made in such areas as in his opinion may be for their best interest not to exceed eighty acres of agricultural or one hundred and sixty acres of grazing land to any one Indian. * * * ”

It should be noted that there are important differences between the General Allotment Act and the Mission Indian Act. The former provides for survey of lands, appointment of allotting agents, selection of lands by Indians, and certification of allotments. None of these features are found in the Mission Indian Act.

On June 7, 1921, the Secretary of the .Interior appointed one Wadsworth a special allotting agent at large for the Mission Indian reservations in California, effective July 1, 1921, and authorized him to survey and classify the lands in the Agua Caliente reservation, prepare an allotment schedule and issue certificates of selection. Wads-worth prepared an allotment schedule in 1923 and issued certificates of selection. In preparing the allotment schedules in 1923, Wadsworth made arbitrary or compulsory selections for Indians who failed or refused to make selections. Subsequently he was directed to prepare new allotment schedules containing only selections voluntarily made by the Indians. In 1927, Wadsworth prepared new allotment schedules, and issued certificates of selection.

The classification of the lands in the reservation resulted in three classes; desert lands, irrigable lands, and town lots. It was decided that the proper amount of lands to be allotted was 40 acres of desert land, 5 acres of irrigable lands and two acres of town lots to each Indian.

Typical of the selection certificates is the following:

“Selection for Allotment on Palm Springs Indian Reservation,

1927.

“This is to certify that Genevieve Pierce St. Marie has selected the S-½ NE-¼ SE-¼ SE-¼ Sec. 22; NW-¼ of Section 22, township No. 4 South, Range No. 4 East, of the San Ber, M., containing 45 acres, more or less, according to Government survey. Stake No.- — . Not valid unless approved by the Secretary of the Interior.

“See Remarks other side this certificate.

“H. E. Wadsworth,

“U. S. Special Allotting Agent.”

“Remarks:

“In addition to the parcels described on the front of this certificate an unsurveyed two-acre tract has been selected in the SW-¼ SW-¼ SW-¼ Sec. 14, Tp. 4 South, Range 4 East, which will be scheduled when the necessary surveys have been made.

“H. E. Wadsworth,

“Special U. S. Allotting Agent.”

Certification of the allotment schedule of 1927 was made as follows:

“Palm Springs, California,

“May 9, 1927.

“This is to certify that listings of allotment selections for the Indians of Palm Springs (Agua Caliente) Indian Reservation, Calif., began on June 1, 1923, and the same were completed on May 9, 1927; and that it is further certified that the allotments shown hereon were made in accordance with the provisions of the act of Congress of February 8, 1887 (24 Stat.L. 388), as amended by the act of June 25, 1910 (36 Stat.L. 855), and supplemented by the act of March 2, 1917 (39 Stat.L. 969-76).

“H. E. Wadsworth,

“Special Allotting Agent.

“C. L. Ellis,

“Superintendent Mission Indian Agency, California.”

Some of the selections have become valuable for use asa winter resort, and as a result of considerable private expenditures. Neither the allotment schedules nor the certificates of selection have been approved by the Secretary of the Interior.

These suits were begun by Indians to whom certificates of selection were made and in some cases by the heirs of a deceased selector. The prayer was for a decree adjudicating that allotments had been made, and that the complainants were entitled to a trust allotment patent. The trial court held that before there could be a valid allotment the Secretary must: (1) determine that the Indians have reached the degree of civilization required by the act; (2) make an order “setting up the mechanics for selection”; and (3) make and approve actual allotments; that no allotment was made; and that if the certificates of selection could be considered as a certificates of allotment the same were not effective because there had been no determination that the Indians in question were sufficiently advanced so as to comply with the act, and the approval of the Secretary was lacking. 24 F.Supp. 237, 240. Findings and decree were made in accordance with the opinion of the trial court. The decree was entered on August 22, 1938, and a motion for rehearing was denied on September 26, 1938.

On December 20, 1938, appellant St. Marie filed a petition for appeal “for herself and for those similarly situated”. An order allowing “said appeal” was made on December 20, 1938. There also appears in the record a “Notice of Appeal” dated December 16, 1938, filed December 23, 1938, signed by the attorneys for all complainants, and which names all complainants as the appealing parties. Appellees move to dismiss the appeals of all parties except appellant St. Marie, on the ground that the cases, although consolidated for trial, required separate appeals. It is also pointed out that the cost bond is signed by appellant St. Marie and not by the other appellants.

We think the motion to dismiss should be denied. The Federal Rules of Civil Procedure, Rule 73, 28 U.S.C.A. following section 723c, governs the manner of appeal after September 16, 1938. Subdivision (a) of that rule provides that an appeal is taken “by filing with the district court a notice of appeal”. Subdivision (b) requires the notice of appeal to specify (1) “the parties taking the appeal”; (2) “the judgment or part thereof appealed from”; and (3) the name of “the court to which the appeal is taken”. The notice of appeal complies with the rule. While we think it would be better practice to file a notice of appeal in each case, it is apparent that notice of appeal was effectually given, which, after all, is the purpose of the rule. The point concerning the lack of cost bonds is covered by subdivision (a) as follows: “Failure of the appellant to take any of the further steps to secure the review of the judgment appealed from does not affect the validity of the appeal, but is ground only for such remedies as are specified in this rule or, when no remedy is specified, for such action as the appellate court deems appropriate, which may include dismissal of the appeal”. We are not asked to take any action with regard to the failure to file cost bonds. We are asked to dismiss the appeals on the ground that separate appeals should have been taken. In this state of the record and in the absence of a showing of disadvantage to the appellees, we see no reason for invoking any remedy.

Appellants contend that the selections gave the Indians vested rights in severalty to the land selected, and that thereafter nothing remained to be done by the Secretary of the Interior but the ministerial duty of issuing a trust allotment patent. Compare Lemieux v. United States, 8 Cir., 15 F.2d 518. The contention, of course, is based on the proposition that appellants were given the right to make the selections. The cases relied upon¹ as showing that appellants obtained a vested right, all involve a treaty or statute giving to the Indians the right of selection. Such cases do not, therefore, control here.

There is nothing in the Mission Indian Act which confers upon the Indians the right of selection of allotments. The amendment of that act by the Act of March 2, 1917, Ch. 146, is likewise silent in that respect, as is the Act of June 25, 1910. It is urged, however, that appellants have the right of selection under the General Allotment Act of 1887, as amended. It is argued that no method of allotting was made in the Mission Indian Act, and therefore it must have been intended that the method specified in the General Allotment Act was applicable: The method followed actually was in close compliance with the method specified in the General Allotment Act in that a Special Allotting Agent was appointed, some of the lands were surveyed and classified, and certificates of selection issued. We think, however, that whether or not the General Allotment Act was applicable must be determined by ascertaining what the intent of Congress was in adopting the Mission Indian Act. If the former act is not applicable, then it seems clear that Congress, by not specifying the method of allotment in the Mission Indian Act intended that the Secretary of the Interior might choose such method of allotment as he thought desirable. The mere fact that he followed the procedure specified in another statute fails to show that Congress intended such other statute to be applicable.

There is, we think, no basis for saying that the action of the Secretary of the Interior amounted to an administrative construction of the Mission Indian Act, because the method followed was the most reasonable one. It would be well-nigh impossible for the Secretary to make allotments on a basis of equality, without surveying and classifying the land. Likewise, the preliminary work of allotment could not personally be done by the Secretary, and it was only natural that an agent would be appointed for that purpose. In addition, the Secretary undoubtedly permitted a temporary selection by the Indians, because that method had already been approved in Hy-Yu-Tse-Mil-Kin v. Smith, 194 U.S. 401, 414, 24 S.Ct. 676, 48 L.Ed. 1039.

It is also urged that since the Mission Indian Act did not authorize allotment of irrigable lands, and selections of such lands were actually permitted, the only authority therefor was to be found in the General Allotment Act. We believe that argument to be untenable. Section 3 of the Act of March 2, 1917, “authorized and directed” the Secretary to make the allotments in areas as provided in § 17 of the Act of June 25, 1910, which provision authorized allotment of “agricultural or grazing” land “in such areas as in his opinion may be for their best interest”. The authority to allot irrigable lands is specific. Section 3 of the Act of March 2, 1917, however, does not make the entire General Allotment Act applicable to the Mission Indians. Only the provision of the General Allotment Act (Act of June 25, 1910, § 17) specifying the amount or area of “agricultural or grazing” land to be allotted is made applicable to the Mission Indians.

It is further asserted that the certificate of Wadsworth to the allotment schedules of 1927, indicates that the General Allotment Act is applicable. We do not believe that such a statement by a subordinate officer can be said to be indicative of Congressional intent. It amounts to no more .than an erroneous opinion, and has not had the official sanction of the Secretary. Had there been official sanction of that interpretation, the question as to the effect to be given administrative interpretation would then be considered. We add that for lack of ambiguity, it is doubted that administrative construction has any weight. United States v. Missouri Pac. R. Co., 278 U.S. 269, 280, 49 S.Ct. 133, 73 L. Ed. 322.

Finally, it is urged that the Act of February 14, 1923, Ch. 76, 42 Stat. 1246, 25 U.S.C.A. § 335, makes the General Allotment Act applicable to the Mission Indians. The Act relied on is: “That unless otherwise specifically provided, the provisions of the [General Allotment Act], as amended, be. and they are hereby, extended to all lands heretofore purchased or which may hereafter be purchased by authority of Congress for the use or benefit of any individual Indian or band or trible of Indians.”

We think this provision does not have the effect ascribed to it. Prior thereto, the General Allotment Act and its amendments spoke of allotting only lands that were reserved or set apart for the Indians. To prevent any doubt that Congress also intended allotment of lands “purchased” for the Indians, the above act was adopted. It does not refer to or mention the Mission Indian Act, and is merely a part of the General Allotment Act.

Considerable argument is made regarding the power of the Secretary of the Interior to determine when the Indians are sufficiently advanced in civilization to warrant allotments in severalty. The determination of that question, it is true, rested in the discretion of the Secretary by § 4 of the Mission Indian Act. The Act of March 2, 1917, § 3, “authorized and directed” the Secretary “to cause allotments to be made * * * in areas as provided in” § 17 of the Act of June 25, 1910. There are two possible constructions of that provision. It might mean that Congress had made the determination that the Mission Indians were sufficiently advanced in civilization to warrant allotments, and unequivocably “directs” the Secretary to make them. On the other hand, it might mean that the Secretary must still exercise his discretion, but upon its exercise, he is “directed” to make allotments in areas he deemed best. Since this is not a proceeding to compel action by the Secretary, we need not determine which meaning is correct.

Affirmed.

1 Ladiga v, Roland et al., 2 How. 581, 43 U.S. 581, 11 L.Ed. 387; Hy-Yu-Tse-Mil-Kin v. Smith, 194 U.S. 401, 414, 24 S.Ct. 676, 48 L.Ed. 1039; Ballinger v. United States ex rel. Frost, 216 U.S. 240, 249, 30 S.Ct. 338, 54 L.Ed. 464; Fairbanks v. United States, 223 U.S. 215, 32 S.Ct. 292, 56 L.Ed. 409; Henry Gas Co. v. United States, 8 Cir., 191 F. 132, 136; Thomason v. Wellman & Rhoades, 8 Cir., 206 F. 895, 897; United States v. Dowden, 8 Cir., 220 F. 277. Compare: United States ex rel. Knight v. Lane, 228 U.S. 6, 33 S.Ct. 407, 57 L. Ed. 709.