(2) On December 21, 1931, J. W. Henderson, J. E. Pemberton, and James M. Hanley, petitioned the Court of Claims to be recognized as attorneys of record in the above-entitled cause (R. 1).

(3) On March 21, 1932, the Court of Claims denied that petition upon the ground that:

"The court is of the opinion that it is without authority under the jurisdictional act to grant the petition herein to recognize J. W. Henderson as attorney of record." (R. 16.)

(4) On November 10, 1934, J. W. Henderson, J. E. Pemberton and T. L. Sloan, each of them being members of the bar, in good standing, in the Court of Claims of the United States, petitioned that court on behalf of Indians of California to recognize J. W. Henderson as attorney of record for the said Indians and attached to their petition affidavits of Indians of California in support thereof (R. 16).

(5) On February 4, 1935, after oral argument, the Court of Claims overruled the petition, presumably upon the same ground the petition of December 21, 1931, was denied (R. 34).

(6) This petition is filed within the time required by the rules of this Court and seeks to obtain a writ of certiorari to review the judgment of the Court of Claims denying the petition of November 10, 1934, which judgment was entered by the said court on February 4, 1935.

REASONS WHY A WRIT OF CERTIORARI SHOULD BE GRANTED

The petitioner prays that a writ of certiorari be issued to review the aforesaid judgment of the Court of Claims of the United States, and in support thereof submits:

(a) The Indians of California are citizens of the State of California, and of the United States, and as such, they are legally entitled to be represented in court by attorneys of their own selection, and choice.

(b) The Court of Claims by its judgment denying the petition of November 10, 1934, has denied to the Indians of California their inherent constitutional right of a full and complete hearing; a hearing given without right of petitioners to be represented by counsel of their own selection does not meet the constitutional requirement of due process.

(c) The Enabling Act of May 28, 1928, does not prohibit the Indians of California from having attorneys of their selection in the trial of their case in the Court of Claims.

(d) This is a case of first impression. We know of no case arising from an act of Congress containing a provision authorizing or directing a State officer to sign and verify a petition in the Court of Claims in which citizens of the United States are parties plaintiff with a recognized, justifiable claim. Such an act of Congress it is submitted, should be so construed that it will preserve the right of the petitioners to have their own attorneys prepare and prosecute their case, if such a construction does no violence to and is fairly within the language and intent of the Enabling Act.

(e) The decision of the Court of Claims is untenable, and is in conflict with the decisions of this Court in dealing with the right of litigants to be represented in court by attorneys of their own choice.

(f) Should the decision of the Court of Claims be permitted to stand it would deny to the Indians their constitutional right to a full and fair hearing, which carries with it the correlative right to be represented by attorneys of their selection. Wherefore, the petitioners respectfully pray that a writ of certiorari be issued by this Court, directed to the Court of Claims of the United States, directing and commanding it to produce in this Court the entire record in this case for examination and determination by it.

A. K. SHIPE,

736-42 Transportation Bldg., Washington, D. C., Counsel for Petitioners, J. W. Henderson, J. E. Pemberton, and T. L. Sloan.

Of counsel:

ESCH, KERR, TAYLOR & SHIPE,

736-42 Transportation Bldg.,
Washington, D. C.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1934, NO. 930

INDIANS OF CALIFORNIA, PETITIONERS VS. THE UNITED STATES

On petition for writ of certiorari to the Court of Claims of the United States BRIEF FOR THE PETITIONERS

OPINION BELOW

The order of the Court of Claims is found in the Record, page 34.

JURISDICTION

The judgment of the Court of Claims was entered February 4, 1935. Petition for Writ of Certiorari was filed May 1, 1935. The jurisdiction of the Court rests on the Act of February 13, 1925; 43 Stat. at L. 939; U. S. Code, Title 28, Sec. 288.

STATEMENT OF THE CASE

Public Law No. 423, 70th Congress, 45 Stat. L. 602 hereinafter termed the "Enabling Act", approved May 18, 1928, conferred jurisdiction upon the Court of Claims of the United States to hear, determine, and render final decree upon the equitable claims which the Indians of California may have against the respondent growing out of the failure of the respondent to comply with the terms and obligations of eighteen certain unratified treaties of 1852.

Section 2 of the Enabling Act provides that the Attorney General of California may submit the claims to the Court of Claims. Section 4 of the Act provides that the Attorney General of California shall sign and verify the petition filed in the Court of Claims, and such petition must be filed within three years from the date of the passage of the Act.

The Attorney General of California filed the petition within the three-year period.

On December 21, 1931, J. W. Henderson, J. E. Pemberton, and James M. Hanley, attorneys at law, filed a petition with the Court of Claims to be recognized as attorneys of record for and on behalf of the Indians of California, and supported the petition with affidavits of certain of the prominent Indians of that state. After oral argument the court below, on March 21, 1932, denied the petition upon the grounds that the Enabling Act precluded the court from jurisdiction to grant it.

On November 10, 1934, J. W. Henderson, J. E. Pemberton, and T. L. Sloan, each of them being members of the Bar of the Court of Claims and in good standing, at the request of a large number of the Indians of California and with supporting affidavits of the Indians, filed a petition with the Court of Claims praying that J. W. Henderson be recognized as attorney of record for and in behalf of the petitioners.

After oral argument, the court on February 4, 1935, entred a judgment overruling the petition, presumably upon the same grounds the petition of December 21, 1931, was denied.

It is to review this last mentioned judgment that this petition is filed.

STATUTES INVOLVED

Public Law No. 423, 70th Congress, approved May 18, 1928; 45 Stat. L. 602.

QUESTIONS PRESENTED

The questions presented are:

1. May citizens of the United States be denied the right to be represented in court by attorneys of their selection?

2. Does the Enabling Act preclude the petitioners from having attorneys selected by them to appear on their behalf in this suit?

3. May the Enabling Act be so interpreted and applied as to preserve the inherent constitutional right of petitioners to their own attorneys?

4. Does a hearing granted, with the right of counsel of petitioners choice denied to them, meet the constitutional requirements of due process?

SPECIFICATIONS OF ERROR

1. The court below erred in holding that it was without jurisdiction under the Enabling Act to grant the petition.

ARGUMENT

I. Citizens of the United States have the right to be represented in court by attorneys of their own selection

All Indians born within the territorial limits of the United States are citizen s of the United States. 43 Stat. 253. The Indians of California are citizens of

the State of California. Anderson v. Matthews, 174 Cal. 537, 163 Pac. 902. Clients have a right to change their attorneys at their will. Woodbury v. Andrew Jergens Co., 37 F. (2d) 749.

The clients' absolute right to discharge an attorney with or without cause has long been established. The Flush, 277 Fed. 25; 12 C. J. p. 1198, sec. 963, "Constitutional Law."

This Court recognized the right of litigants to be represented in court by counsel in Powell v. Ala., 287 U. S. 45.

The right of a client to be recognized in court by counsel of his own choice was recently applied in the case of Roberts v. Anderson, 66 F. (2d) 874. In the latter case the State Court refused to permit an Indian to have counsel of her own choice. That opinion was reversed by the Federal District Court, which opinion was affirmed by the 10th Circuit in the above recited case, the court basing its opinion upon Powell v. Ala., supra.

II. The Enabling Act does not preclude the petitioners from having attorneys selected by them to appear on their behalf in this suit

For aught that appears from the Enabling Act the only duty of the Attorney General of California was to sign, verify, and submit the petition on behalf of the Indians of California to the Court of Claims. He is under no compulsion to prosecute the case to judgment. There is no express language in the Enabling Act denying to the petitioners the right to be represented by attorneys of their own selection and choice. The affidavits attached to the petition at pages 18, 23, 29 of the record clearly disclose that the Indians of California are dissatisfied with the Attorney General of California. They never selected him as their counsel, and they are desirous of having counsel of their own choice represent them in this suit. We recognize that Congress in granting a right to sue the United States may place such limitations and restrictions upon that right as in its judgment may be expedient. However, the Enabling Act contains no provision expressly, or even impliedly, denying to the petitioners the right to have their own counsel. Unless that inherent right is expressly taken from them we respectfully submit that the Congress intended to reserve that right in the petitioners.

III. The Enabling Act may very properly be interpreted and applied so as to preserve the constitutional right of petitioners to their own counsel

Congress has granted to the Indians of California the right to present their claims to the Court of Claims of the United States, and that Court is directed to hear, determine, and render judgment on the claims. The right to hear, determine, and render judgment contemplates a hearing consistent with the constitutional requirement of due process.

No citation of authorities is necessary in support of the proposition that an act of Congress should be so construed that it will preserve its constitutionality. Thus this Enabling Act should be so construed as to preserve the right of the petitioners to have their own attorneys to prepare and prosecute their case if such a construction does no violence to and is fairly within the language and intent of the Act.

IV. A denial of the right of petitioners to have counsel of their own choice is repugnant to the constitutional requirement of due process

"The constitutional right to be secure against deprivation of life, liberty or property without due process of law extends to all natural persons within the jurisdiction of the United States. This guaranty, therefore, protects Indians." C. J. Sec. 963, p. 1198. See also Chase v. U. S. 222 Fed. 593; Van Deman etc. Co. v. Rast, 214 Fed. 827.

12

It is submitted that the Congress in the Enabling Act did not interfere with the procedure of the court in determining a final judgment. There was no effort to impose upon the petitioners any arbitrary or unreasonable restraint on their freedom to select their own counsel. An interpretation of the Act which places such arbitrary and unreasonable restraint upon the petitioners is plainly a violation of the constitutional right of due process.

CONCLUSIONS

It is respectfully submitted that the petitioners have the inherent constitutional right of selecting attorneys to represent them in this suit. The Congress has not taken that right from them. The Court below has denied the right to them. This is the first instance in which the Congress has placed a provision in an Enabling Act providing that a certain attorney should present a petition in the Court of Claims of the United States in behalf of claimants therein.

However, the Act does not take from the Court of Claims its jurisdictional power to give to the petitioners the right to be represented in the prosecution of their case by attorneys of their own selection. The Court below erred in denying that right to the petitioners and their only relief rests in a determination by this Court granting the relief requested in the petition. Respectfully submitted.

A. K. SHIPE,

736-42 Transportation Bldg., Washington, D. C.,
Counsel for Petitioners, J. W. Henderson,
J. E. Pemberton, and T. L. Sloan,

Of Counsel:

ESCH, KERR, TAYLOR & SHIPE,

THE INDIANS OF CALIFORNIA, Claimants, by U. S. Webb, Attorney General of the State of California,

VS.

THE UNITED STATES

I. HISTORY OF PROCEEDINGS

The original petition in this case was filed August 14, 1929, by U. S. Webb, Attorney General of the State of California.

On September 23, 1929, the defendant filed a general traverse to said petition. On February 8, 1930, on motion made therefor and allowed by the Court, Messrs. J. W. Henderson, J. E. Pemberton, and James M. Hanley, were allowed to appear as amicus curiae.

On December 21, 1931, Messrs. J. W. Henderson, James M. Hanley, and J. E. Pemberton filed a motion to be substituted as attorneys of record, with power of attorney from W. G. Walker.

On December 24, 1931, the defendant filed objections to the substitution of said attorneys.

On January 4, 1932, U. S. Webb, Esq., filed objections also to the substitution of said attorneys.

On February 4, 1932, J. W. Henderson, Esq., filed a memorandum in support of his motion to be substituted as attorney of record.

On February 8, 1932, the motion for substitution was ordered to the law calendar.

On March 2, 1932, A. K. Shipe, Esq., entered his appearance as of counsel for J. W. Henderson.

On March 9, 1932, U. S. Webb, Esq., filed a memorandum in opposition of petition of J. W. Henderson, Esq., to be recognized as attorney of record.

On March 14, 1932, the motion to substitute attorneys of record was argued by Mr. A. K. Shipe, for Mr. J. W. Henderson, and by Mr. U. S. Webb, present attorney, in opposition to the motion.

On March 14, 1932, on motion made therefor and allowed in open court, the plaintiffs filed an amended petition which is as follows:

II. FIRST AMENDED PETITION-Filed March 14, 1932

The Indians of California, as defined in that certain Act of Congress, Public Law No. 423, 70th Congress, First Session, approved May 18, 1928 (45 S. L. 602), acting herein by and through U. S. Webb, Attorney General of the State of California, in this First Amended Petition respectfully submit the following facts:

I

On or about the eighteenth day of March, 1851, the nations, tribes and bands of Indians then living in the State of California, including those named in the eighteen several treaties hereinafter more particularly referred to as "Exhibit A," and the individual Indians comprised within said nations, tribes and bands, and such individual Indians then living in said State as were not members of any such nation, tribe or band, were the owners and entitled to the use, occupancy and possession of certain lands then and now comprised within the territorial boundaries, and a part of the State of California, amounting, in all, to more than seventy-five million acres of land, and they and the descendants of said individual Indians continued so to be the owners and entitled to the use, occupancy and possession of said lands at the respective dates of each and all of the treaties hereinafter mentioned.

II

Between the nineteenth day of March, 1851, and the seventh day of January, 1852, both dates inclusive, at the special instance and request and upon the invitation of the United States of America, the defendant herein, the said nations, tribes and bands of Indians referred to in the hereinafter mentioned treaties, and the individual Indians comprised within said nations, tribes and bands, through certain chiefs, captains and head men representing and acting in their and each of their behalf, made, entered into and executed with the United States of America a series of several certain treaties, eighteen in number, copies whereof are hereto attached, marked “Exhibit A,” and hereby ex- [fol. 3] pressly referred to, incorporated herein, and made a part hereof, as fully and with the same effect as though set forth herein at length. III

Each of said treaties provided in substance:

(a) That the nations, tribes and bands of Indians therein respectively named, and the individual Indians comprised within said nations, tribes and bands, thereby surrendered and quitclaimed to the Government of the United States all of their lands within the territorial boundaries of the State of California.

(b) That certain areas of lands within the territorial boundaries of the State of California and in each of said treaties more particularly described should be set aside and held by the United States, and forever devoted to the sole enjoyment, use, occupancy and possession of the nations, tribes and bands of Indians therein specifically named, and the individual Indians comprised within said nations, tribes and bands and their descendants.

(c) That the United States should furnish and deliver to the nations, tribes and bands of Indians therein specifically named and to the individual Índians comprised within said nations, tribes, and bands and their descendants, certain goods, wares and merchandise, to wit: certain live stock, foodstuffs, clothing, instruments of husbandry, cloth and other materials, and various educational, industrial, health and other facilities, services and aids, specifically enumerated in each of said treaties attached hereto marked "Exhibit A", and to which reference is hereby made for the full particulars thereof, designed to enable the said nations, tribes and bands of Indians therein specifically named, and the individual Indians comprised within said nations, tribes and bands and their descendants, to change their habitat and reestablish themselves in the territory in and by such treaties reserved to and for them as and for a new and permanent home and place of habitation.