Garfield v. United States ex rel. Goldsby, 30 App. D.C. 177

Garfield v. United States ex rel. Goldsby

30 App. D.C. 177 | D.C. Cir. | 1907

Mr. Chief Justice Shepard

delivered the opinion of the Court:

We consider it unnecessary to review the cases cited on the argument relating to the plenary power of Congress over the lands of the Indians and their allotment, and to the comprehensive powers conferred upon the Secretary of the Interior in regard to all matters of administration relating to the same subjects. It is sufficient to say that we recognize to the fullest extent this power of Congress, as well as those intrusted to the Secretary of the Interior, and concede that, in the performance of the onerous duties confided to the discretion of the Secretary, his decisions are not subject to judicial review. One of the most important and onerous of those duties was that of examining the lists or rolls of membership of these five large tribes when reported to him as finally determined by the Commission. In its performance he could disapprove and strike names from the *183list, and approve others. ' No court was vested with the power, by appeal or otherwise, to review his decisions in either case.

It is equally well settled, on the other hand, that, when the judgment or discretion of an executive officer has been completely exercised in the performance of a specific duty, the act performed is beyond his review or recall, unless power to that extent has also been conferred upon him. United States ex rel. West v. Hitchcock, 19 App. D. C. 333, 345; United States v. Schurz, 102 U. S. 378, 26 L. ed. 167; Butterworth v. United States, 112 U. S. 50, 28 L. ed. 656, 5 Sup. Ct. Rep. 25; Garfield v. United States, Present Term [ante, 165].

It remains to consider whether the Secretary’s discretion had been completely exercised and his power exhausted when he gave his approval to the relator’s enrolment, and reported that approval to the Commission, as shown in this case. The determination of this question depends upon the meaning of sec. 30 of the act July 1, 1902, heretofore set out. It was well known to Congress that the tribes were composed of thousands of undoubted members, and that many others, perhaps thousands, claimed membership. It was known, when the first act looking to allotment of these lands was enacted, that the ascertainment of the true membership of these tribes would require time and be attended with contests. Before the enactment of the act of July 1, 1902, experience had demonstrated the, justice of this apprehension; and thereafter, as we have seen, the time of final completion of the rolls of membership had to be extended until March 4, 1907. Necessarily, the Commission charged with the duty, in the first instance, of preparing the rolls, would have to consider one by one the names of applicants when the facts of their cases were prepared for determination. Por the purpose of expediting this enrolment, as the statute declares, the Commission was not directed to complete the work as a whole, but “from time to time, and as early as practicable, forward to the Secretary of the Interior lists upon which shall be placed the names of those persons found by the Commission to be entitled to enrolment.” And it is further provided that •“the lists thus prepared, when approved by the Secretary of *184the Interior, shall constitute a part and parcel of the final rolls of citizens of the Choctaw and Chickasaw tribes and of Choctaw and Chickasaw freedmen, upon which allotment of land and distribution of other tribal property shall be made as herein provided.” It is admitted that there was no question but that the lands were ample to satisfy all probable claims to the extent provided for each individual allotment, and that there was no danger of exhaustion of the funds which were to be distributed in part to each member then or thereafter to be enrolled. These facts were, of course, well known to the parties entering into the agreement, and to Congress when that agreement was embodied in the statute. The contention of the relator is that each roll so approved became final, under the terms of the law, without waiting for the date fixed until the final closing of the enrolment. That this was the construction given to the section by the Secretary of the Interior is evidenced by the fact that he certified his approval of the sections of the rolls from time to time submitted, sometimes striking therefrom the name of a person whose enrolment he disapproved. A copy of the list was retained by him, and others delivered to the Commission, to the Commissioner of Indian Affairs, and to the chiefs of the two nations. Upon these approved lists the Commission proceeded to make allotments, and the Indian agents distributed a portion of the funds in hand. These agents were under the control of the Secretary of the Interior. Many of these allotments passed to patents, which were delivered with the approval of the Secretary. On March 4, 1907, the day on which all authority to enroll members ended, the then Secretary, who shortly thereafter resigned his office, undertook to cancel approvals that had been made, by erasing relator’s name, with others, from the approved list remaining in his custody. The contention for the authority to do this is founded upon a succeeding paragraph of the section, which reads as follows: “Lists shall be made up and forwarded when contests of whatever character shall have been determined; and when there shall have been submitted to and approved by the Secretary *185of the Interior lists embracing names of all those lawfully entitled to enrolment, the rolls shall be deemed complete.”

We think that the Secretary’s first construction of the entire section — which must be considered as a whole to arrive at its. meaning — was the correct one. Especially when we take into-consideration the conditions before stated, the plain intention of the framers of the agreement and of Congress seems to haw1 been that this final roll, to be completed and ended on or before» March 4, 1907, should be made up and approved in section for convenience and despatch. By this means only, could sufficient time and opportunity be given each claimant for the assertion of his rights either before the Commission or the Secretary. We cannot conceive that either the contracting parties or Congress contemplated a power in the Secretary, after having approved the rolls in sections from time to time, to strike down the whole list of enrolment, or erase any number of names therefrom, on the last day within which any enrolment could be made by him or any other authority. Action of this kind could only be taken, as it was, without notice to a party whose rights, or expectations, if they are to be called such only, were thus attempted to be destroyed.

It is quite true that individual members of the Indian tribes, had no vested rights in the lands by virtue of enrolment only, and that their allotment was entirely within the unlimited powers of Congress; yet these powers had been exercised only after a solemn agreement with the tribes. And even if the individual,, after his enrolment had been approved, had nothing more than a mere expectancy, that expectancy represented something of considerable pecuniary value; and the power to destroy that, reasonable expectancy, without notice and opportunity to defend it, is so opposed to the genius of our institutions that it ought not to be inferred to exist. Nothing less than the plain provision of an imperative law would seem to warrant it.

The appellant relies further upon the act of April 26, 1906 (34 Stat. 137, chap. 1876), as conferring, by implication, the-power upon the Secretary of the Interior to strike the name of the relator from the roll after approval. Sec. 2 of this act, as, *186before stated, requires that the rolls shall be fully completed on or before March 4, 1907, and prohibits the Secretary from approving the enrolment of any person after said date. _ Sec. 4 permits the transfer, under certain conditions, of a person from the approved roll of freedmen to that of citizens by blood. Sec. 5 provides that all patents to allottees shall be recorded in the office of the Commissioner, “and when so recorded shall convey legal title, and shall be delivered, under the direction of the Secretary of the Interior, to the party entitled to receive the same.” Sec. 6 provides for the removal, by the President, of principal chiefs of the nations who shall refuse or neglect to perform the duties imposed upon them. Their duty under the former statute was to execute patents to allottees holding certificates from the Commission. The same section also provides, in case of the failure of said chiefs to execute a patent for thirty days after notice that the same is ready for signature, that such patent may be approved by the Secretary without such execution, and when so approved and recorded shall convey legal title.

We see nothing in this statute enlarging the powers of the Secretary, save under the conditions expressly provided for. The power given to transfer a freedman to the citizenship roll is limited thereto. The transfer, which increases his allotment, is for his advantage, and does not infringe the legal rights of other members. This power to add names under certain conditions does not include the power to strike a name from the citizenship roll. The strictly limited power of transfer from the freedman’s roll to that of citizenship by blood, before March 4, 1907, does not confer the power to cancel the approval of the latter roll, previously given. The natural inference is against the exercise of the further power.

Entertaining the opinion that the Secretary had no power- to cancel his approval and remove relator’s name from the roll at the time and in the manner stated, the further question is presented: Is it within the judicial power to compel him to undo his action by removing his entry of cancelation and restoring the name to the roll ?

Conceding that mandamus will not- ordinarily lie to compel *187the undoing of an act, it is clear that the doctrine has some necessary limitations. In the first place, it has not been suggested, nor can we perceive, that there is any other legal remedy for the relief of the relator from the consequences of the injury that has been done him. A cloud has been cast upon his right to the land allotted to him, that will prevent his obtaining his patent; and his right to share in the distribution of the tribal funds, dependent upon his recognized enrolment, has been impeded, if not finally destroyed These conditions have been brought about solely by the failure and refusal of the Secretary to give effect to, and enforcement of his former decision that has been held to be final and beyond the power of review or recall. Unless the writ of mandamus can be issued, the mischief is wholly without judicial remedy. That it will issue in such a case as here presented, to undo an unlawful act and restore a former condition, is, in our opinion, well settled. Stafford v. Union Bank, 17 How. 275, 282, 10 L. ed. 101, 102; Ex parte Dubuque & P. R. Co. (Dubuque & P. R. Co. v. Litchfield) 1 Wall. 69, 73, 17 L. ed. 514, 515; United States ex rel. Romero v. Cortelyou, 26 App. D. C. 298, 301; United States ex rel. Daly v. Macfarland, 28 App. D. C. 552.

In Stafford v. Union Bank, supra, the United States court for the district of Texas had rendered a decree for the payment of money, and the judge had thereafter granted an appeal with supersedeas upon wholly inadequate bond. Having held that this bond did not have the legal effect to supersede the execution of the decree, the court issued an order compelling the judge to carry the decree into effect. See also Stafford v. New Orleans Canal & Bkg. Co. 17 How. 283, 15 L. ed. 102. In the Dubuque & P. R. Co.'s Case the Supreme Court had reversed a judgment of the district court of Iowa, and directed a judgment for the defendant. Upon return of the mandate a judgment was entered in accordance therewith. Thereafter the court, upon the affidavits of ability to show new facts, granted a new trial. The judge was compelled by mandamus to erase and vacate the order granting the new trial, and execute the judgment. In United States ex rel. Romero v. Cortelyou, supra, the Postmaster Gen*188eral was compelled to re-establish a postoffice that had been, abolished. In United States ex rel. Daly v. Macfarland, the Commissioners of the District of Columbia were ordered to-vacate the revocation of a plumber’s license, and restore his status. The facts of this case bring it under the principle governing those cases, and the one last cited is directly in point.

We are of the opinion that the court was right in ordering the appellant to erase the entries upon the roll and restore relator’s name thereto; and the judgment must therefore be affirmed, with costs. It is so ordered.

Affirmed.

A writ of error to the Supreme Court of the United States was allowed January 6, 1908.