297 F. 2d 822 - Wise v. United States

The appeal is from a judgment denying the appellant relief entitling her to receive an allotment of and a patent to a tract of land located on the Wind River Indian Reservation in Wyoming. The jurisdiction of the Court is derived from 25 U.S.C.A. 345 and 28 U.S.C.A. 1353.

The action was instituted in the District of Columbia and thereafter transferred to the District of Wyoming. While the case was pending in the District of Columbia, the Arapahoe Indian Tribe of the Wind River Reservation was properly permitted to intervene as a party defendant. Subsequently, after the case was transferred, upon motion of the United States of America, Kewanee Oil Company and Delbert Ward were made additional defendants. Kewanee has filed a disclaimer to any interest in the disputed lands and Ward, by answer, stated he is willing to abide the decision of the Court.

The court below made extensive findings of fact based upon the exhibits offered and received in evidence at the pre-trial and trial of the case. The undisputed record shows the following facts:

Appellant, a Shoshone Indian, is the daughter of Del and Susan Ward, who were residing on the Wind River Reservation in Wyoming at the time of appellant's birth. The mother is a full-blooded Shoshone Indian. The Wind River Reservation was originally set apart by treaty in 1868 for the Shoshone Indians, but since 1878 the Arapahoe Indians have resided upon the same Reservation and each tribe is in possession of an undivided one-half interest in the tribal lands of the Reservation.1

On April 5, 1919, when appellant was about one year of age, her parents attempted to select certain lands as an allotment for her, under the Treaty of the United States with the Eastern Band of Shoshonees and Bannack Tribe of Indians, July 3, 1868, 15 Stat. 673, and the General Allotment Act of February 8, 1887, 24 Stat. 388, 25 U.S.C.A. 331 et seq. The land was a tract of one hundred sixty acres on the Wind River Reservation and located adjacent to the allotment previously made to the mother.

The record further shows that there was no authorized allotment agent or superintendent on the Reservation at the time of the alleged selection but, one F. G. Burnett, who was merely a farmer upon the Reservation and employed by the Indian Service, gave to appellant's father a piece of paper upon which was written the description of the one hundred sixty acres and a notation of the attempted selection with Burnett's signature at the bottom.2 The record is clear and the trial court found that Burnett was not an allotting agent, had no instructions from the Department of the Interior authorizing him to entertain or acknowledge a selection of land for an allotment on behalf of the appellant or anyone else. Thereafter, in accordance with the local practice on the Reservation, this alleged selection was recorded in the book containing the allotments made prior thereto. It was recorded only as a tentative selection and not as an allotment. Mitchell v. United States, 9 Cir., 1927, 22 F.2d 771; Sunderland v. United States, 1924, 266 U.S. 226, 45 S.Ct. 64, 69 L.Ed. 259. Recorded in the same book were 397 other selections, none of which have been considered as allotments or as vesting any interest in the lands selected.

The record discloses the allotment history of the Wind River Reservation, which is necessary for the disposition of the case. Allotments were made upon this Reservation in 1894, 1905 and in 1913. On March 27, 1913, instructions to allot were issued to one Thralls W. Wheat, after his appointment by the President, as Special Allotting Agent. Wheat was specifically instructed '* * * you are hereby directed to allot the unallotted Indians of the Shoshone or Wind River Reservation including all living children born up to the time you complete your work and close your allotment rolls * * *.' With these and other detailed instructions, the Agent proceeded to perform his duties as Allotting Agent and on April 25, 1914, he and the Superintendent of the Reservation certified an allotment schedule which was approved by the Secretary of the Interior on November 19, 1915, and which was then referred to the Commissioner of the General Land Office for issuance of patents. The allotment duties of the agent were thereupon concluded and the rolls closed.

Thereafter, the record discloses that various items of correspondence passed between the Superintendent of the Shoshone Agency and the Commissioner of Indian Affairs concerning the advisability of further allotments upon that Reservation, but there is nothing in the record to show that any authority was received from the Secretary of the Interior for the making of any new allotments. By the Act of May 21, 1928, 45 Stat. 617, Congress authorized the Secretary of the Interior to allot non-irrigable and non-timbered grazing lands on the Wind River Reservation to all unallotted living children. Following the enactment of this statute, the record shows consideration was given by the Commissioner of Indian Affairs to the opening of the allotment roll and the making of new allotments, but this statute was interpreted by the Secretary of the Interior to be permissive and not mandatory, and no affirmative action was taken as a result of it. Under the findings of the trial court, no instructions authorizing the making of further selections for allotments on the Wind River Reservation have been issued since 1913.

These facts, as found by the trial court, are fully supported by the record and must be accepted by this Court. Walker v. Wiar, 10 Cir., 276 F.2d 39, 41; Winslett v. Rozan, 10 Cir., 279 F.2d 654, 656; Federal Rules of Civil Procedure, Rule 52(a), 28 U.S.C.A. In fact, they are taken from the documentary history of allotments on the Wind River Reservation.

The sole question presented by this appeal is whether, upon the facts, as found by the trial court, appellant has established a vested right to the tract of land she claims.

The right to allotments of land by the members of the Shoshone Indian Tribe is based upon the Treaty between that Tribe and the United States of America, 15 Stat. 673. That Treaty, in and of itself, did not vest any right in an individual Indian to a tract of land. Before the allotting provisions of the Treaty could become effective it was necessary to implement the same by appropriate legislation.

The legislative authority setting forth the procedure for allotments applicable here is the General Allotment Act of February 8, 1887, 24 Stat. 388, as amended, 25 U.S.C.A. 331 et seq. The pertinent sections as hereinafter set out provide that certain administrative steps must be taken to effectuate a vested interest in an allottee. For example, 'the whole subject of the distribution of the lands embraced in the reservation' rests '(with) the President, acting through the Interior Department.' United States v. Fairbanks, 171 F. 337, 339, 96 C.C.A. 229, affirmed 223 U.S. 215, 32 S.Ct. 292, 56 L.Ed. 409. Thus under 1 of the Act, the President is authorized to first cause a survey or resurvey of the Indian land 'whenever in his opinion such reservation or any part thereof may be advantageously utilized for agricultural or grazing purposes by such Indians' and 'to cause allotment to each Indian located thereon to be made in such areas as in his opinion may be for their best interest * * *.'3 Before any allotting may begin, there must be an administrative determination that the Indian land is suitable for agriculture or grazing, there must be a survey, and, after the survey, there must be a second administrative determination, i.e., that allotment is in the best interest of the Indians.

Only after these requirements have been met, may the selection process take place, as provided for in Section 2 of the Act, 25 U.S.C.A. 332.4 This section of the Act provides that the allotments 'shall be selected by the Indians, heads of families selecting for their minor children * * *,' and further for selection by Indian agents for orphan children or for anyone who fails to make a selection within four years after the President directs that allotments may be made.

Section 3 of the Act, 25 U.S.C.A. 333,5 requires that these by made 'by special agents appointed by the President for such purpose, and the superintendents or agents in charge of the reservations (jointly)' or 'by the superintendent or agent in charge of such reservation, under such rules and regulations as the Secretary of the Interior may from time to time prescribe * * *.' The allotments are thereafter certified by the allotting agent to the Commissioner of Indian Affairs, who in turn transmits them to the Secretary of the Interior. Under Section 5 of the Act, 25 U.S.C.A. 348,6 after the Secretary approves the allotments, trust patents issue in the names of the allottees

Counsel for appellant puts stress upon the Act of May 21, 1928,45 Stat. 617,7 to sustain the claim to a valid allotment. This statute merely authorized the Secretary of the Interior to allot non-irrigable, non-timbered grazing lands on the Wind River Reservation 'to all unallotted living children enrolled or entitled to be enrolled on said reservation * * *.' It contains no mandatory language, and it has been correctly construed by the Department of the Interior as granting where and when in the Secretary's discretion to make new allotments. United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588; Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 58 L.Ed. 1121; LaRoque v. United States, 239 U.S. 62, 64, 36 S.Ct. 22, 60 L.Ed. 147; United States v. Leslie Salt Co., 350 U.S. 383, 396, 76 S.Ct. 416, 100 L.Ed. 441. Before this Act could be said to vest unallotted land on the reservation in appellant, or anyone else in a similar situation, all of the preliminary administrative procedures heretofore fully discussed would have to be complied with. Lemieux v. United States (CCA 8, 1926), 15 F.2d 518, cert. den.,273 U.S. 749, 47 S.Ct. 458, 71 L.Ed. 872; Woodbury v. United States (CCA 8, 1909), 170 F. 302, 95 CCA 498; United States v. Reynolds (1919), 250 U.S. 104, 39 S.Ct. 409, 63 L.Ed. 873; LaRoque v. United States, 239 U.S. 62, 36 S.Ct. 22 (supra). That has not been done and the provisions of the Act are not available to sustain the claim. See Woodbury v. United States, 170 F. 302 (supra); Segundo v. United States (S.D.Cal.1954), 123 F.Supp. 554, Cf. United States v. Pierce, 9th Cir., 235 F.2d 885. Enactment of allotment legislation does not of itself vest any rights to allotments. Chase v. United States, 256 U.S. 1, 41 S.Ct. 417, 65 L.Ed. 801.

The trial court was correct in holding that appellant was not entitled to a trust or a fee patent because no valid selection or allotment was made, and the judgment of the trial court is affirmed.