118 F. 283 | U.S. Circuit Court for the District of Nebraska | 1902
These several suits, the United States being the defendant therein, are brought under the provisions of the act of congress approved February 6, 1901 (31 Stat. 760), which enacts :
“That all persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of congress, or who claim to be so entitled to land under any allotment act or under any grant made by congress, or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any act of congress, may commence and prosecute or defend any action, suit or proceeding in relation to their right thereto in the proper circuit court of the United States; and said circuit courts are hereby given jurisdiction to try and determine any action, suit, or proceeding arising within their respective jurisdictions, involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty, and in said suit the parties thereto shall be the •claimant as plaintiff and the United States as party defendant.”
The plaintiffs in the several cases aver, in substance, that they are in part of Indian blood, being members of the Omaha tribe, and are, therefore, entitled to allotments of land in the reservation of that tribe situated in Thurston county, in the state of Nebraska; that their applications for allotments have been unlawfully denied them by the officers and agents of the United States charged with the duty of allotting the lands of that tribe in severalty, and therefore they invoke the jurisdiction conferred upon the court by the act of congress just cited for the ascertainment and enforcement of their rights. On behalf of the government it is contended that the provisions of the act of congress of February 6, 1901, above cited, do not confer upon the courts jurisdiction to review or vacate the decisions rendered by the interior department upon the applications of the several plaintiffs herein, nor to hear and determine whether the plaintiffs are members of the Omaha tribe in such sense that they are entitled to allotments in severalty of portions of the tribal reservation. This construction of the act practically defeats the evident purpose of the enactment, which is to provide a method for enabling parties, whose claims to allotments have been denied by the department, to obtain an adjudication upon their rights in the proper courts. While due weight must be given to the rulings and decisions of the department as. affecting the merits of the cases, yet it cannot be held, in view of the express terms of the act of congress, that the rendition of a decision in a given case adverse to the claim of a particular person prevents the proper court from taking jurisdiction over a suit brought by such person to establish the right or claim denied to him by the action of the department. Sloan v. U. S. (C. C.) 95 Fed. 193; Smith v. He-yu-tse-mil-kin (C. C.) 110 Fed. 60. When the case of Sloan v. U. S. was before the court upon demurrer to the bill, it was held, in substance, that the act of 1882 (22 Stat. 341) was intended
“That with the consent of said Indians as aforesaid, the secretary of the interior be and he is hereby authorized, either through the agent of said tribe or such other person as he may designate, to allot the lands lying east of the right of way granted to the Sioux Oity and Nebraska Bailroad Company, under the agreement of April 19th, 1880, approved by the Acting Secretary of the Interior July 27th, 1880, in severalty to the Indians of said tribe in quantity as follows: To each head of a family, one quarter of a section; to each single person over eighteen years of age, one eighth of a section; to each orphan child, under eighteen years of age, one eighth of a section; and to each other person under eighteen years of age, one-sixteenth of a section; which allotments shall be deemed and held to be in lieu of the allotments or assignments, provided for in the fourth article of the treaty with the Omahas, concluded March 6, 1865, and for which, for the most part, certificates in the names of individual Indians to whom tracts have been assigned, have been issued by the commissioner of Indian affairs, as in said article provided: provided, that any Indian to whom a tract of land has been assigned, and certificate issued, or who was entitled to receive the same, under the provisions of said fourth article, and who has made valuable improvements thereon, and any Indian who being entitled to an assignment and certificate under said article, has settled and made valuable improvements upon a tract assigned to any Indian who has never occupied or improved such tract, shall have a preference right to select the tract upon which his improvements are situated, for allotment under the provisions of this section: provided further, that all allotments made under the provisions of this section shall be selected by the Indians, heads of families selecting for their minor children, and the agent shall select for each orphan child; after which the certificates issued by the commissioner of Indian affairs as aforesaid shall be deemed and held to be null and void.”
Counsel for the United States earnestly contend that this section must be read in connection with the limitations found in article 4 of the treaty of 1865 (14 Stat. 667), which declares that: “The Omaha Indians being desirous of promoting settled habits of industry and enterprise amongst themselves by abolishing the tenure in common by which they now hold their lands, and by assigning limited quantities thereof in severalty to the members of the tribe, including their half or mixed blood relatives now residing with them, to be cultivated and improved for their own use and benefit, it is hereby agreed and stipulated that the remaining portion of their present reservation shall be set apart for said purposeand that, so reading it, allotments under the act of 1882 can be made only to the mixed blood relatives who were on the reservation when the treaty of. 1865 was adopted. I can see no good reason for adopting this view of these statutes. The treaty of 1865 made provision for the allotment in severalty to “members of the tribe,” it being declared that the half or mixed blood relatives then residing on the reservation should be deemed to be members of the tribe. The treaty does not recognize the mixed bloods as a separate and distinct class, and does not confer any rights upon them by reason of their being mixed bloods, but the declaration of the treaty in substance is that the mixed bloods
“That the act of Congress approved August 7, 1882, * * * be and the same is hereby amended so as to authorize the secretary of the interior, with the consent of the Indians of that tribe, to allot in severalty, through an allotting agent of the interior department, to each Indian woman and child of said tribe bom since allotments of lands were made in severalty to the members thereof under the provisions of said act, and now living, one eighth of a section of the residue lands held by that tribe in common, instead of one sixteenth of a section as therein provided.”
Taking into consideration the express provisions of the act of 1882 and of the amendatory, act of 1893, it is clear that it was not the intent of congress to limit the right to allotments in the Omaha reservation to such persons only as could have asserted the right under the terms of the treaty of 1865. If such had been the legislative intent, apt words of limitation to that end would undoubtedly have been incorporated in these acts; but none of that import are to be found therein.
The act of 1882, in the first section thereof, declares “that with the consent of the Omaha tribe of Indians, expressed in open council, the secretary of the interior be, and hereby is, authorized to cause to be surveyed,” etc.; and in section 5 it is declared “that with the consent of said Indians as aforesaid the secretary of the interior be and is hereby authorized * * * to allot the lands,” etc. The tribe whose consent was to be obtained was the Omaha tribe as it existed in 1882, and not the tribe of 1865. The allotment in severalty was not to be made to the members of the tribe living in 1865, but to the members living in 1882. The purpose of the government in inducing the Indians to take allotments in severalty was to provide for the breaking up of the tribal relation,, and to place the several
“In construing any treaty between the United States and an Indian tribe, * * * the treaty must, therefore, be construed not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.”
As further evidence that it is not the intent of congress, in determining the status of mixed bloods, that the technical rule of the common law should govern, reference may be made to the general Indian appropriation act of June 7, 1897 (30 Stat. 90), wherein it is declared:
“That all children, bom of a marriage heretofore solemnized between a white man and an Indian woman by blood and not by adoption, where said Indian woman is at this time, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belong, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior act of congress shall be construed as to debar such child of such right.” ,
Counsel for the government strongly contend that the court is practically bound to follow the rulings and decisions of the department of the interior in these cases, upon two grounds: First, that the construction given by the department charged with the duty of supervising the affairs of the Indians to the statutes and treaties dealing therewith are entitled to great weight, and in doubtful cases should control the judgment of the court; and, second, that the rights of the claimants present cases of mixed questions of law and fact, which prevents the court from considering the same under the recognized rule that courts will not re-examine questions of fact decided by the department in the disposition of the lands placed in its charge, but are limited to a consideration only of questions of law. When congress adopted the act of August 15, 1894, and amended it by the act of February 6, 1901, conferring upon the circuit courts of the United States “jurisdiction to try and determine any action, suit, or proceeding arising within their respective jurisdictions involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty,” and further provided that any one in whole or in part of Indian blood or descent, who claimed “to have been unlawfully denied or excluded from any allotment or parcel of land,” might bring suit in the proper circuit court for the enforcement of his rights, it certainly must have been the legislative intent to confer upon the courts full authority and right to hear and determine every question arising in any suit brought by a claimant to an allotment. These acts were adopted by congress because it .was brought to its attention that many persons, claiming allotments, had been denied that right by the department, and it was sought to make provision for a method whereby such persons could reassert their claims before a judicial tribunal. The real purpose of the acts conferring jurisdiction upon the courts in this class of cases would be practically nullified if the contention of counsel should be sustained to the effect that in all cases wherein the department had ruled against the claimant the courts are bound to follow the decision of the department. The remedial intent of the legislation in question mus't be given fair and full force, and this imposes upon the court the duty of hearing and deciding all questions of law and fact necessary to the full consideration and determination of the rights of the several claimants.
The first question presented for consideration is the construction to be given to the 'act of 1882 in ascertaining the class of persons entitled to allotments under its provisions. As already stated!, I cannot concur in the view that only those entitled to allotments under the provisions of the treaty of 1865 can claim the right under the act of 1882. The latter act was intended to deal with the situation as it existed at the time- of its passage. At that time there was in existence the Omaha tribe of Indians, inhabiting their reservation in Thurston county, Neb. The earnest desire^ of the government was to bring about the abolition of the tribal system and community of
“It would be absurd to contend that the treaty of 1865, or the more recent act of congress, under which the allotments are being made, were intended as a general invitation to all persons everywhere, who might be able to prove the existence of a drop or more-of Indian blood in their veins, to repair to the reservation and select an allotment. Manifestly, such was not the intention, nor will any such construction be admitted in making the allotments.”
It may be that in some exceptional cases persons might be recognized to be members of the tribe, and as such to be entitled to allotments, although not upon the reservation when the act of 1882 took effect; but such recognition should be limited to those persons, if any, whom the tribe clearly deemed to be members. It must be
It is further contended on behalf of plaintiffs that the act of 1882 did not take effect until the consent of the tribe was obtained thereto, and therefore all mixed bloods who had returned to the reservation at that date are to be deemed to be within its terms; the same as though they were residents on the reservation in 1882. It is shown in the evidence that a special agent to make the allotment was sent to the reservation in the early part of 1883, and the assent of the tribe to the provisions of the act had evidently been had by that time. Even if it should not be properly held that the rights of the parties are to be determined by the actual situation as it existed on the 7th day of August, 1882, being the date of the adoption, by congress, of the act in question, yet it cannot be held that a mixed blood, who was not at' that date an actual resident of the reservation, could make himself a member of the tribe in such sense as to entitle him to the rights created by the act of 1882, by simply coming upon the reservation, it not being shown that his action was approved by the tribe acting thereon. If the tribe had recognized and approved the application of a particular Indian, their action would have resulted in
A further question necessary to be considered is the effect to be given to an allotment made under the terms of the treaty of 1830, whereby what is known as the “Nemaha Reservation” was assigned for the use and occupancy of the half-breeds of the tribe, it being therein provided that “the president of the United States may hereafter assign to any of the said half breeds, to be held by him or them in fee simple, any portion of said tract not exceeding a section of six hundred and forty acres to each individual.” It cannot be held that it was the intent and purpose of this section of the cited treaty to confer upon the half-breeds of the tribe a greater interest or right than was possessed by the full bloods; and yet that would be the practical result if it should be ruled that a half-breed, after reaping the benefit of an allotment in the Nemaha reservation, should also be entitled to a further allotment in the present reservation; and, without further elaboration of the reasons for so ruling, I hold that all mixed bloods who have secured allotments in the Nemaha reservation are debarred from an allotment in the Thurston county reservation. Where, however, a mixed blood was living in the tribal relation upon the present reservation when the act of 1882 took effect, his right to an allotment, as a member of the Omaha tribe, would not be defeated because his parents, or either of them, had secured an allotment in the Nemaha reservation. Being of the mixed blood, and being in fact an actual resident in the tribal relation upon the reservation, he must be deemed to be an Indian of the Omaha tribe; and, as he had not received an allotment under the treaty of 1865, his rights under the act of 1882 cannot be defeated because his parents may have reaped the benefit of an allotment. Thus, under the express terms of the act of 1882, the heads of a family are entitled to. an allotment, and so, also, are their children. In other words, under the act of 1882 the fact that an allotment under that act has been made to the parent does not defeat the right of the child to a personal allotment. This right of the child is not derived from the allotment right of the parent, nor is it property inherited from the parent, but it is a personal right conferred upon the individual because he is in fact an Indian of the Omaha tribe. If an allotment under the act of 1882 to the parent will not defeat the right of the child to a personal allotment, I can see no good reason for holding that an allotment to the parent under any previous act should be given that effect.
As the act of 1882 and the amendatory act of 1893 give to the heads of families one-quarter of a section, and to all others one-eighth,. the question arises whether the quantity to be allotted in a given case is to be determined by the status of the claimant at the date of the act or at the time when the allotment is made. By sec
Having thus considered the questions of law pertaining to the cases in general, it will be necessary to determine in each case, from the facts thereof, the rights of the claimant under the construction given to the treaties and acts governing the situation as hereinbefore outlined, each suit being indicated by the name of the plaintiff therein.
Thomas L. Sloan: Claimant is a mixed blood, one-eighth Indian. Is the grandson of Margaret Sloan, the daughter of Michael Barada, a full-blood white man, and Taeglaha Haciendo, a full-blood Indian woman of the Omaha tribe. Margaret married one Thomas Sloan, a white man, in St. Louis; and in 1857, with her husband and children, came to the Nemaha reservation, and was allotted 320 acres therefrom. In 1881 Margaret Sloan, with her grandson, Thomas L. Sloan, came to the present reservation, and they were residents thereof when the act of 1882 was adopted. Thomas L. was educated by the United States government at the school at Hampton, Va., and, while the evidence shows that he is by habit, mode of life, and education a white man, that fact does not deprive him of the right to claim an allotment under the act of 1882, as he was at the date of its adoption living on the reservation, and is in fact of mixed blood. Being a married man, he is entitled to an allotment of 160 acres.
No. 174. John M. Sloan, Artemesia Frost, and Thomas L. Sloan: In this case plaintiffs claim as the heirs at law of Margaret Sloan, averring that during her lifetime, and while residing on the present reservation, she selected the land in the bill described for allotment purposes, and that upon her death, in 1898, the plaintiffs, as her heirs, succeeded to her rights'. The evidence shows that Margaret Sloan received an allotment of 320 acres in the Nemaha reservation, which debarred her from claiming a further allotment. Furthermore, Margaret Sloan never obtained a patent or certificate conveying to her a title to a specific piece of land. Even though it might be true that she had, as a member of the Omaha tribe, an interest in the tribal land, that interest did not confer upon her heirs the right to demand the conveyance to them of this specific tract. In section 6 of the act of'1882 it is declared that the law with respect to descent in force in the state of Nebraska shall apply to the lands after patents therefore have been executed and delivered. Until a patent confirming a previous selection has been executed and delivered, the lands included therein would remain part of the tribal property, so far as the right of inheritance is concerned; and, as I view the sitúa
No. 175, Garry P. Myers: Being of mixed blood, and a resident of the reservation in 1882, Myers is entitled to an allotment, and his right thereto is not seriously questioned by the department, but the debatable point in the case is as to the amount to which he is entitled. It is averred in the answer in this case that Myers claimed to have selected the land for allotment in 1892, he being then a single man, of about 18 years' of age, and therefore he is entitled to 80 acres only. The stipulation of facts in the case shows that Myers, by marriage, became the head of a family on March 5, 1893, and that he entered upon the occupancy of the quarter section claimed by him in the spring of 1894. I do not find in the record any evidence to sustain the averrment in the answer that Myers made his selection in 1892, and under the facts stated in the stipulation it must be held that he made his selection in the spring of 1894, at which time he was the head of a family, and entitled to an allotment of 160 acres. The evidence further shows that Myers had occupied and improved the 160 acres by him selected in such sense that under the provisions of section 5 of the act he is entitled to be preferred over any other claimant, and the allotment of 80 acres of the land in question to Taehena Webster was, therefore, an error on part of the agent, Myers being entitled to the whole quarter section. A decree in this case will therefore be entered establishing Myers’ right to the 160 acres described in the bill.
In all the other cases submitted to the court, being Nos. 265, 266, 267, 268, 269, 362, 363, 364, 365, 4.60, 461, 462, 502, 503, 504, 505, 506, 507, 508, 509, 574, and 579, docket T, the several plaintiffs therein have failed to show themselves entitled to the benefit of the allotment provisions of the act of 1882, as construed in the foregoing opinion, and therefore in each case a decree will be entered dismissing the bill on the merits, at the cost of the plaintiff therein.