Bisek v. Bellanger

CANT, District Judge. Harry Tibbetts, was a mixed-blood Chippewa Indian. On December 30, 1902, the United States issued to him a trust patent, so-called, covering the 80 acres of land here in controversy. This land was alloted to him under the provisions of Nelson Act Jan. 14, 1889 (25 Stat. 642). Act May 8, 1906 (34 Stat. 182), provides that all Indian allottees, with patent in fee to their lands, shall be subject in all things to the laws of the State wherein they - reside. This would include the laws with respect to the probate of estates. On june 21, 1906, and March 1, 1907, the so-called Clapp Amendments were passed. They are respectively 34 Stat. 325, 353, and 34 Stat. 1015,1034. These ámendments gave adult mixed-blood Indians title in fee to their allotted lands, with power to sell and convey the same. Tibbetts died during the year, 1907. Thereafter Rock G. Tibbetts, the father of said deceased, by warranty deed, conveyed the lands here in question, and by successive conveyances thereunder the plaintiff claims title. The estate of Harry Tibbetts was probated in Cass county, Minn., in which county he died, and in that proceeding the said Rock G. Tibbetts was held to be his sole heir. Plaintiff’s rights in the land, if any, were acquired in the year 1914. In the year 1920, and without notice to plaintiff, the Land Department of the United States in form canceled the patent to Harry Tibbetts, which cancellation, if valid, would annul plaintiff’s claim to the land. After such attempted cancellation, various of the defendants and interveners have made application to have said land allotted to them. Under the authority of Act June 30, 1913 (38 Stat. 77, 88), the Enrollment Act, it was duly determined and is a matter of record that Harry Tibbetts was a mixed-blood Chippewa Indian, that he died on October 7, 1907, and that he was 21 years of age at the time of his death. Upon these points, this record is conclusive. Aside from the language of the statute, there are persuasive practical reasons why this formal document, prepared with great care, should be final. The law and the enrollment covered allottees on the White Earth Reservation. 'Harry Tibbetts was such an allottee. This is not the case of a mixed-blood protesting against his accepting the benefits of the Clapp Amendments, which, being greatly in his favor, would presumably be accepted by him. It is the case of the government passing the Clapp Amendments, and then proceeding arbitrarily to ignore their existence and cancel the trust patent, as though no such acts were on the books, and wholly irrespective of what the attitude of the mixed blood may have been. It is like saying in one breath, “We have emancipated you,” and in the next, “We have not” This cannot be done. In 1920, therefore, the United States was not holding the title to these lands in trust. Baker v. McCarthy, 145 Minn. 167, 176 N. W. 643; United States v. Waller,243 U. S. 452, 37 S. Ct. 430, 61 L. Ed. 843. Under such circumstances, Act April 23, 1904 (33 Stat. 297), giving the right of cancellation to the Secretary of the Interior, does not apply. Even if the original allotment and the. trust deed were induced through fraud, the equity of a bona fide purchaser thereunder would be superior to the rights of the government. U. S. v. Debell, 227 F. 760, 763, 142 C. C. A. 284. Plaintiff was and is a bona fide purchaser of the land in question. There could be no cancellation without notice to the person actually interested and opportunity for a hearing in reference to the action proposed. Any other course, would be [996] without due process of law. So are all the authorities. Garfield, Sec’y., v. U. S. ex rel. Goldsby, 211 U. S. 249, 29 S. Ct. 62, 53 L. Ed. 168. The validity of the attempted cancellation may properly be litigated in this action. The application on behalf of Harry Tibbetts for the lands in question took precedence of all other applications made therefor. A decree should be entered in favor of plaintiff in accordance with this opinion.