C. Hobart Keith appeals pro se from the district court's1 judgment dismissing his action for alleged violations of a statute prohibiting non-Indians from trading with Indians on a reservation without a federal trading license. Keith sues as a qui tam litigant,2 acting under the authority of 25 U.S.C. § 201 (1976).3 He seeks to recover statutory penalties against 128 defendants in the Rapid City, South Dakota, area for trading on the Pine Ridge Indian Reservation without having obtained a license from the Commissioner of Indian Affairs. We affirm.

Keith's complaint alleges that the defendants violated 25 U.S.C. § 264 (1976),4 which provides for sanctions against non-Indians who trade on an Indian reservation without a license. The district court divided the defendants into several groups for trial, and Keith appeals from the judgment dismissing those defendants tried on November 14, 1979, February 8, 1980, and April 4, 1980.

From the district court's memorandum opinion5 it appears that bureaucratic nonfeasance makes it impossible to obtain the federal trader's license required by section 264 in the Pine Ridge area in South Dakota. Wayne Adkinson, Administrative Manager of the Pine Ridge Reservation and a Department of the Interior employee, testified that he attempted to implement the licensing program on the Reservation, but abandoned his efforts because of the administrative difficulties and adverse public opinion that resulted. For example, his office did not even have any of the license forms available.

Although the section 264 license is not available on the Pine Ridge Reservation, it appears that the Oglala Sioux Tribe assesses a tribal tax requiring that businesses trading on the Reservation buy permits. The district court found that this license serves the same function as the federal trader's license: to protect against unscrupulous traders who seek to take advantage of Indians.

The district court found that only one defendant, Frank Groomes, engaged in trade at Pine Ridge within the meaning of section 264.6 Although Groomes traded without a section 264 license, he did obtain the Oglala Sioux Tribal trading permit. The district court held that it would be unfair to fine Groomes for not obtaining a license that was impossible to obtain. In dismissing the complaint against Groomes, the district court further held that any person who obtained a tribal permit would be considered to be in substantial compliance with the licensing requirement of section 264 because of the Department's failure to implement the section 264 program.

We agree with the district court that given the unavailability of the federal trader's license at Pine Ridge Indian Reservation, Groomes' conduct does not amount to a violation of section 264. It would be both ironic and unjust to fine Groomes for not having obtained an unobtainable license.7 Moreover, the Oglala Sioux Tribe, on whose reservation Groomes trades, has awarded him its trading permit. Under these circumstances, Groomes must be deemed to be in substantial compliance with the legal requirements of the statute.8

The district court found that defendants Green Star Homes, Inc., and Rushmore Homes, Inc., executed sales of goods to the Reservation.9 It held that these sales do not come within the statute. We need not reach this issue because no federal traders' license is available for this activity. In the absence of federal regulations defining what constitutes trade on the Reservation within the meaning of the statute, the district court did not err.10

For these reasons, we affirm the district court's judgment.