261 F. 833 | 8th Cir. | 1919
May 19, 1910, this action was instituted under tire provisions of the act of Congress approved February 6, 1901 (31 Stat. 760, c. 217), by Hiram Chase, Jr., a member of the Omaha Tribe of Indians, by his next friend, Hiram Chase, Sr., to secure a decree for an allotment of land in the Omaha reservation, which had been denied to him by the Secretary of the Interior. The case was before this court at a former term, and, as stated in the opinion of the court, on appeal from a decree dismissing the amended complaint for the reason that it did not state facts sufficient to constitute a cause of action. We then decided that the amended complaint did state a cause of action under the act of Congress of August 7, 1882 (22 Stat. 341, c. 434). 238 Fed. 887, 152 C. C. A. 21. When the case went back to the trial court, the appellee answered, alleging among other things the acts of Congress of March 3, 1893 (27 Stat. 630, c. 209), and May 11, 1912 (37 Stat. Ill, c. 121), as repealing the act of 1882, so far as the right of Chase, Jr., to an allotment was concerned. After a trial on the merits, a decree of dismissal of the action was entered, and appellant appealed.
“That the residue of lands lying east of the said right of way of the Sioux City & Nebraska Railroad, after all allotments have been made, as in the fifth section of this act provided, shall be patented to the said Omaha Tribe of Indians, which patent shall be of the legal effect and declare that the United States does and will hold the land thus patented for the period of twenty-five years in trust for the sole use and benefit of the said Omaha Tribe of Indians, and that at the expiration of said period the United States will convey the same by patent to said Omaha Tribe of Indians, in fee discharged of said trust and free of all * * * incumbrance whatsoever: Provided, that from the residue of lands thus patented to the tribe in common, allotments shall be made and patented to each Omaha child who may be born prior to the expiration of the time during which it is provided that said lands shall be held in trust by the United States, in quantity and upon the same conditions, restrictions, and limitations as are provided in section C of this a.ct, touching patents to allot-tees therein mentioned. But such conditions, restrictions, and limitations shall not extend beyond the expiration of the time expressed in the patent; herein authorized to be issued to the tribe in common: And provided further, that these patents, when issued, shall override the patent authorized to be issued to the tribe as aforesaid, and shall separate the individual allotment from the lands held in common, which proviso shall be incorporated in the patent issued to the tribe.”
Chase, Jr., was born December 3, 1895. Hiram Chase, Sr., testified that he transmitted to the Secretary of the Interior an application for an allotment for the land described in the complaint; that said application was denied; that witness was not able to produce said application nor the letter written him in reply thereto; that said papers had been lost or mislaid. The trust period mentioned in the act of 1882 expired in 1909. In the absence of other legislation it therefore appears that Chase, Jr., was within the terms of the act of 1882 allowing allotments to Omaha children born during the trust period. We proceed, therefore, to consider the question heretofore stated as being the question for decision. The act of 1912, supra, reads as follows:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the Secretary of the Interior be, and he is hereby, authorized to cause to be surveyed, il necessary, and appraised, in such manner as he may direct, in tracts of forty acres each, or as nearly as to the Secretary may seem practicable, and after such survey and appraisement, to sell and convey, in quantities not to exceed one hundred and sixty acres to any one purchaser, all the unallotted lands on the Omaha Indian reservation, in the state of Nebraska, except such tracts as are hereinafter specifically reserved; Provided, that the said land shall be sold to the highest, bidder under such regulations as the Secretary of the Interior may prescribe, but no part of said land shall be sold at less than the appraised value thereof: And provided further, that prior to such appraisement and sale any member of the Omaha Tribe whose allotment is subject to erosion by the Missouri river shall be permitted to relinquish such allotment and select lieu lands of equal area from the unallotted lands, the lands so relinquished to become a*836 part of the unallotted tribal lands and subject to appraisement and sale under the terms of this act.
“Sec. 2. That the 'Secretary of the Interior is hereby directed to reserve from sale, under the terms of this act, the following tracts of land for the purposes designated: Forty-nine acres of the land now used for agency purposes to be reserved for agen9y and school purposes for so long as the need thereof exists; ten acres to be selected by the tribe for use as a tribal cemetery; ten acres of the land now reserved for the use of the Presbyterian Church to be selected by the officials of said church for the use of the church so long as needed for religious or educational purposes; two acres of the land on which is standing what is known as the old Presbyterian mission building, and the Secretary of the Interior is hereby authorized to cause a patent in fee simple to issue therefor in the name of the State Historical Society of Nebraska: Provided, that of the land now reserved for agency purposes the Secretary of the Interior is directed to reserve and set aside for town-site purposes one hundred and sixty-four acres, other than the' forty-nine acres hereinbefore reserved, and shall cause the same to be surveyed and platted into town lots, streets, alleys, and parks, the lots to be appraised and sold under the terms of this act, and the streets, alleys, and parks are hereby dedicated to public use: Provided further, that the lands allotted, those retained or reserved, and the surplus lands sold, set aside for town-site purposes, or otherwise disposed of, shall be subject for a period of twenty-five years to all of the laws of the United States prohibiting the introduction of intoxicants into the Indian country.
“Sec. 3. That the proceeds of such sale, after paying all the expenses incident to and necessary for carrying out the provisions of this act, and after reimbursing the general trust fund of the tribe for any assessment paid therefrom for protecting the unallotted tribal lands from overflow, shall be divided pro rata among the children of the Omaha Tribe living on the date of the passage -and approval.of this act who have not^received allotments of land under the acts of August seventh, eighteen hundred and eighty-two (twenty-second United States Statutes at Large, page three hundred and forty-one) and March third, eighteen hundred and ninety-three (twenty-third United States Statutes at Large, page six hundred and thirty), and shall be expended for the benefit of said Indians when and in such manner as in the opinion of the Secretary of the Interior shall be to their best interests, and pending such expenditure by the said Secretary the sums due the respective Indians shall be placed to the credit of the said Indians in the treasury of the United States, and shall beair interest at the rate of five per centum per annum, but in the event of the death of any such Indian while there remains in the treasury to his credit any part of the sum so deposited the said sum shall be paid at once to his heirs, who shall be determined by the Secretary of the Interior in accordance with the laws of descent in force in the state of Nebraska, and the action of the Secretary of the Interior in determining the legal heirs of any deceased Indian, as provided herein, shall in all respects be conclusive and final.
“Sec. 4. That for the purpose of carrying out the provisions of this act there is hereby appropriated, out of any money in the treasury not otherwise appropriated, the sum'of three thousand dollars, or so much thereof as may be necessary, to be reimbursable out of the funds arising from the sale of said lands.”
It appears on the record that no allotment of land was ever made to children born during the trust period under the act of 1882. The title of the Omaha Tribe of Indians and the individual members thereof in the unallotted lands mentioned in section 8 of the act of 1882 was merely one of occupancy or possession. United States v. Chase, 245 U. S. 89, 38 Sup. Ct. 24, 62 L. Ed. 168. From a reading of the act of 1912, it clearly appears, in our opinion, that the act deals wholly and completely with the unallotted lands referred to in section 8 of the
“Whenever it is provided that a corporation or officer ‘may’ act in a certain way, or it ‘shall be lawful’ for them to act in a certain way, it may be insisted on as a duty for them to act so, if the matter, as here, is devolved on a public-officer, and relates to the public or third persons. * - * * Without going into more details, these cases fully sustain the doctrine, that what a public corporation or officer is empowered to do for others, and it is beneficial to them to have done, the law holds he ought to do. The power is conferred for their benefit, not his; and the intent of the Legislature, which is the test in these cases, seems under such circumstances to have been ‘to impose a positive and absolute duty.’ ” Mayor of New York v. Furze, 3 Hill (N. Y.) 612; Minor et al. v. Mechanics’ Bank of Alexandria, 1 Pet. 46, 64, 7 L. Ed. 47, and note; Livingston v. Tanner, 14 N. Y. 64; Ralston v. Crittenden (C. C.) 13 Fed. 508; Supervisors Rock Island County v. U. S., 4 Wall. 435, 18 L. Ed. 419.
It appears that the word “authorized” is used in the acts of 1882 and 1893, and in the act of 1882 in almost the identical language of
The result that would follow a decision by us that the act of 1912 was of no force or effect must be considered. It appears that besides the present suit there are about 83 other plaintiffs whose suits are now pending in the court below, all of whom have made their selections for allotments and instituted their suits against the United States subsequent to the passage and approval of the act of May 11, 1912, and if they are entitled to these allotments regardless of the act of 1912, it would amount to a repeal thereof by this court, as the land claimed by these various plaintiffs practically takes up all the unallotted tribal lands. It appears, also, that upon the lands mentioned in section 2 of the act of 1912 are located the government buildings described therein, also a large Presbyterian church, Presbyterian mission building, also a cemetery wherein the Indians have buried their dead for many years. Moreover, to rule in favor of the plaintiff in this action would be to decide contrary to the construction placed upon these laws, for many years by the executive officers of the United States charged with their execution. While their construction is not conclusive it is entitled to much weight . This proposition is sup
In considering these contentions it is necessary to look at the record as it stood on the former appeal. The record on this appeal does not show that the amended complaint was ever attacked as a pleading. _ It does show that a general demurrer was filed to the original complaint September 8, 1910, and sustained by the District Court October 2, 1911. It does not show that the complaint, either original or amended, or the action itself was ever dismissed. Turning to the opinion of this court, on the former appeal we find the recital:
“The United States appeared in due time and moved to dismiss the bill, on the ground that its allegations were not sufficient to constitute a cause of action. This motion was sustained, and, plaintiff declining to plead further, the bill was dismissed.”
We therefore conclude that the record on the former appeal did show that the bill or complaint was dismissed as stated. The appellant in his amended complaint, with the treaties of March 16, 1854 (10 Stat. 1043), and March 6, 1865 (14 Stat. 667), as a background, pleaded his right to an allotment tinder the act of 1882, and also pleaded the act of 1893, stating his view as to the proper construction of the latter act. The act of 1912 was not mentioned in the complaint. Appellee in his motion to dismiss insisted that the complaint did not state a cause of action. The trial court adopted this view. On appeal this court decided that the trial court was in error, in that under the facts pleaded appellant was entitled to an allotment under the act of 1882, and reversed the case. The appellee had pleaded nothing, except as stated. The question for decision, therefore, on the former appeal was necessarily confined to the allegations of the complaint. Appellee contended on the former appeal that the act of 1893, and which appellant pleaded repealed the act of 1882, and made no other contention. It is thus made clear that this court on the former appeal, so far as the record shows, did not consider the effect of the act of 1912, nor was it called to the attention of the court as conclusively appears from its opinion, and the briefs of counsel. The judgment on the former appeal being one of reversal, the rule as stated in Mutual Life Insurance Co. v. Hill, 193 U. S. 553, 24 Sup. Ct. 539, 48 L. Ed. 788, applies. It was there stated:
*840 “Hence the rule Is that a judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided. An actual decision of any question settles the law in respect thereto for future action in the case. Here, after one judgment on the pleadings had been set aside, on amended pleadings a trial was had, quite a volume of testimony presented, and a second judgment entered. That judgment is now before us for review, and all questions which appear upon the record and have not already, been decided are open for consideration.”
See, also, In re Fork & Tool Co., 160 U. S. 248, 16 Sup. Ct. 291, 40 L. Ed. 414; Ex parte Union Steam Boat Co., 178 U. S. 317, 20 Sup. Ct. 904, 44 L. Ed. 1084.
The question has been decided the same way by this court. The court said:
“Only those issues of law which were before the appellate court, and by it determined, become the law of the case, when, upon reversal, the cause is retried.” Iowa Central Ry. Co. v. Walter, 255 Fed. 648,-C. C. A. - — .
What is called the “law of the case” is only a rule of convenience, generally adhered to, of course, but not necessarily.
In view of what we have said, the decree below must be affirmed; and it is so ordered.