159 N.W. 39 | S.D. | 1916
There is only one question involved in the' determination of this case and that is, as concisely stated by appellant:
“Did the act of July 4, 1884, which was not passed until after Owaykiduta had completely earned the title to his homestead subject to the .restriction of only 5 years upon its alienation imposed by the act of 1875, so amend that act as to' extend that restriction to 25 years ?”
The trial court, following the decision of the United States District Court for this district in the case of United States v. Hemmer, 195 Fed. 790, decided that 'the act of 1884 did extend the period of restriction against alienation and incumbrance to 25 years, and therefore that the contract with Steinmetz was a nullity. Upon appeal to the United States Circuit Court of Appeals in the Hemmer Case the decision of the District Court was reversed, 'and the aot of 1884 was held inapplicable to a case where the entryman had earned his right to the patent before the passage of the act of 1884. Hemmer v. U. S., 204 Fed. 898, 123 C. C. A. 194. In that case the Indian entryman had earned his patent before the passage of the act of 1884, but he had not made his application for final proof until December, 1884. In the present ease the entryman had not only earned his right to
“The act of 1884 applied to Indians then located on the public lands. Regarding Taylor simply as an Indian, those words might be considered to be applicable to him; regarding the purpose of the a-dt, which was to confer a benefit, not confirm one, they did not apply to him, or to Indians in his situation, for he, and Indians such as he, were the beneficiaries of the prior act, and he and other Indians, it may be, but certainly he, had substantially performed its conditions. What remained to- be done, and could have been done before the aat of 1884 was passed, was not much more than ceremony. Nor does the fact that the aot of 1884 applied to such Indians as might then be located upon the public lands broaden it so as to include Indians who were proceeding under -the act of 1875. The rule is established that under acts of Congress concerning the public lands tliose are not regarded as such to which a claim has attached, though Congress may, if it be so advised, exercise control over them. Blastings & Dakota Ry. Co. v. Whitney, 132 U. S. 357, 361, 364 [10 Sup. Ct. 112, 33 L. ed. 363] ; Hodges v. Coloond, 193 U. S. 192, 196 [24 Sup. Ct. 433, 48 L. ed. 677] ; Bunker Hill Co. v. United States, 226 U. S. 548, 530 [33 Sup. Ct. 138, 37 L. ed. 345]. Homestead entries under the act of 1875 cannot, therefore, be considered as 'having been referred to. Taylor and those in like situation did not need the aid of the act of 1884. Its language was n-ot of confirmation of rights, but was permissive and prospective, and related to the -initiation and acquisition of rights by a different class. And having this definite purpose, it would be difficult to- suppose that, besides, rights acquired under nrior laws were intended to be limited without reference to such laws.*493 This view makes it unnecessary to inquire whether Taylor’s rights had progressed beyond the point of subjection to the power of Congress; he having] as we have said, completed 'bis residence tipon the land, and nothing remaining but to make final proof and receive the assurance of his title, which, we have seen, was his situation nearly a year before the passage of the act of 1884. Congress has undoubtedly .by its legislation indicated a policy to protect Indians against a hasty and improvident alienation ox their lands, and the government has cited a number of statutes. But, as we have pointed out, such policy was satisfied by the act of 1875, and we do not think there is anything, in the history of the act of 1884 which sustains the 'contention that it was intended to be an amendment of the act of 1875, or to indicate that the latter act was not sufficiently potent for the purposes of protection.”
The judgment and order denying a new trial are reversed, and the cause is remanded for further proceedings in harmony with this opinion.