222 F. 593 | 8th Cir. | 1915
The question in this case is whether Hiram Chase, the sole heir of the grantee of a' tract of 40 acres of land under section 4 of the treaty of March 6, 1865, with the Omaha Tribe of Indians (14 Stat. 667, 668), or Rose Wolf Setter, the sole heir of the grantee of the same land under section 5 of the act for the sale of a part of the reservation of the Omaha Tribe of Indians of August 7, 1882 (22 Stat. p. 434, pp. 341, 342), has the title and the right to the possession of the tract. The facts which condition the answer to this question were set forth and admitted in the pleadings in this action, in which the United States, as trustee for Rose Wolf Setter and for the Omaha Tribe, brought an action and recovered a judgment against Chase for the value, use, and occupation of the land for many years. Those facts are these:
By the treaty of March 6, 1865, the United States agreed to pay the Omaha Tribe $57,000, the tribe agreed to sell and convey a part of their reservation to the United States, the United States and the tribe further agreed that the remainder of the reservation of the Omaha Tribe should be set apart for the purpose of abolishing the tenure in common by which the Omaha Indians held their lands and of assigning the same to them in severalty—
t‘and that out of the same there shall be assigned to each head of a family ■not exceeding one hundred and sixty acres, and to each male person, eighteen years of age and upwards, without family, not exceeding forty acres of land. * * * Said division and assignment of lands to the Omahas in severalty •shall be, made under the direction of the Secretary of the Interior, and when approved by him, shall be final and conclusive. Certificates shall be issued by the Commissioner of Indian Affairs for the tracts so assigned, specifying the names of the individuals to whom they have been assigned respectively, and that they áre for the exclusive use and benefit of themselves, their’heirs and descendants; and,said tracts shall not be alienated in fee, leased or otherwise disposed of except to the United States, or to other members of the tribe, under such rules and regulations as may be prescribed by the Secretary of the •Interior, and they shall be exempt from taxation, levy, or forfeiture, until otherwise provided for by Congress.”
Pursuant to this treaty the land in controversy,, which was a part of the land reserved thereunder to be assigned in severalty, was duly assigned about the year 1870 by the Secretary of the Interior to Clarissa .Chase, a member of the Omaha Tribe, and the mother of the defend
Under this state of facts the question is whether the treaty of 1865 granted to Clarissa Chase a substantial title to or right in the 40-acre tract in question, or a mere revocable license of possession and use thereof. If the latter, the act of 1882 was undoubtedly a sufficient-revocation of the license, and the title of Rose Wolf Setter is the superior one. If the former, the act of 1887 is ineffective to impair or destroy the right and title of Chase, and his title and right of possession
First, Indians as -well as other residents and citizens of the United States are protected by the fifth amendment to the Constitution against deprivation of property, life, or liberty without due process of law. No act of Congress or legislative fiat constitutes due process of law, whereby a vested right in or title to property may be either seriously impaired or destroyed. Choate v. Trapp, 224 U. S. 665, 670, 677, 32 Sup. Ct. 565, 56 L. Ed. 941; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49; In re Heff, 197 U. S. 488, 504, 25 Sup. Ct. 506, 49 L. Ed. 848; Cherokee Nation v. Hitchcock, 187 U. S. 294, 307, 23 Sup. Ct. 115, 47 L. Ed. 183; Jackson v. Goodell, 20 Johns. (N. Y.) 188; Lowry v. Weaver, 4 McLean, 82, Fed. Cas. No. 8,584; Whirlwind v. Von der Ahe, 67 Mo. App. 628; Taylor v. Drew, 21 Ark. 485, 487.
“That any right in severalty acquired by any Indian under existing treaties shall not be affected by this act.”
We turn, therefore, to the treaty of 1865 to .ascertain what right or title'was granted to Clarissa Chase, and we lay out of consideration here the terms of- the certificate issued under that treaty and of the certificate and patent issued under the act of 1882, because their validity
Counsel for the United States argue that there was no consideration for the grant of any substantial right to Clarissa Chase by the treaty of 1865, and that it is therefore not probable that it was the intention of the parties to make any such grant. But before the treaty was made Clarissa Chase had the right in common with all the members of her tribe to the joint use and occupation of all the lands of the tribe. By the treaty she surrendered to the other members of the tribe her right to the common use and occupation of the lands assigned to them in severalty under the treaty, as well as her beneficial right in the lands sold. She did this in consideration of the grant to her in severalty of her tract and the receipt by her tribe of the amounts paid for the lands sold. The consideration was ample to sustain a valid grant or contract. It is contended that the tribe had nothing hut the right of possession and occupancy of the land, and therefore the assignment in severalty gave nothing but a right of possession and occupancy of the land assigned in severalty. But the United States had the title to the land and the power to convey it, and by the treaty the United States and the tribe, which together had the title and the right of possession and occupancy, assigned all their interest in the land here in question to the Indian designated by the Commissioner of Indian Affairs, in this case Clarissa Chase, for the exclusive use and benefit of that Indian, her heirs, and descendants, “not to be alienated in fee, except to the United States or other members of
This conclusion has not been reached without a careful consideration of the opinions of Judge Shiras in Sloan v. United States (C. C.) 95 Fed. 193, 196, and Sloan v. United States (C. C.) 118 Fed. 283. But m those cases the attention of the court does not appear to have been challenged to the rights of. grantees holding their lands in severalty under the treaty of 1865, and so far as there are expressions in these opinions inconsistent with the conclusions that have been reached in this case they fail to persuade, i
Let the judgment below be reversed, and let the case be remanded to the District Court, with instructions to render a judgment on the merits of the case in favor of Hiram Chase, the defendant below.