95 F. 193 | U.S. Circuit Court for the District of Nebraska | 1899
On the 15th day of August, 1894, the congress of the United States enacted a statute reading as follows (28 Stat. 305):
“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 he lawfully entitled by virtue of any act of congress, may commence or prosecute or defend any action, suit, or proceedings in relation to their right thereto, in the proper circuit court of the United States. And said courts are hereby given jurisdiction to try and determine any action, suit, or proceedings 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 the judgment or decree of any such court in favor of any claimant to an allotment of land, shall have the same effect, when properly certified to the secretary of the interior, as if such allotment had been allowed and approved by him.”
The present proceedings were instituted under the jurisdiction created by this act of congress, it being averred in the amended bill
The extent of the- jurisdiction of courts over the rulings and decisions of the land department in the disposition of the public lands is well settled, and is stated in Moore v. Robbins, 96 U. S. 530, in the following terms:
“That the decision of the officers of the land department, made within the scope of their authority on questions of this kind, is in general conclusive everywhere, except when reconsidered hy way of appeal within that department; and that as to the facts on which the decision is based, in the absence of fraud or mistake, that decision is conclusive, even in courts of justice, when the title afterwards comes in question; but that in this class of cases, as in all others, there exists in the courts of equity the jurisdiction to correct mistakes, to relieve against frauds and impositions, and, in cases where it is clear that those officers have, by a mistake of the law, given to one man the land which, on the undisputed facts, belonged to another, to give appropriate relief." Johnson v. Towsley, 13 Wall. 72; Shepley v. Cowan, 91 U. S. 340; Marquez v. Frisbie, 101 U. S. 473; Quinby v. Conlan, 104 U. S. 420.
In the exercise of the jurisdiction to give relief within the limits thus defined, courts will not take cognizance of a controversy over the title to particular premises, so long as the title thereto remains in the United States, but will only do so after the title has vested in a private party. Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 Wall. 298; Litchfield v. Richards, Id. 575; Marquez v. Frisbie, 101 U. S. 473.
Under the averments of tire ¿mended bill, it must be held to be true, as matters of fact, that the complainant is a member of the Omaha tribe, of mixed blood, and that since 3.880 he has been a resident upon the reservation. The law now in force regulating the allotment in severalty of portions of the Omaha reservation- is the act of congress approved August 7, 1882 (22 Stat. 341). This act recites that, by consent of the Omaha tribe of Indians, so much of their reservation in the state of Nebraska as lies west of the right of way granted to the Sioux City & Nebraska Railway Company was to be surveyed and sold, the proceeds to belong to the Indians, the purchasers to receive patents for the lands bought, it being provided that any right in severalty acquired by any Indian under existing treaties should not be affected by this act; and by section 5 it is further recited and enacted “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 City & Nebraska Railroad Company * * * in severalty to the Indians of said tribe in quantity as follows.” Can any other construction be properly given to this act- than that it was intended to take the place of all other acts or treaties on the subject of the allotment of lands in severalty within the Omaha reservation? By the proviso therein contained, all rights in severalty which had vested under the previous laws were reserved from the operation of the act, but with this exception: This act of 1882 (22 Stat. 341) was clearly intended to take the place of all previous treaties or laws upon that subject. It decreased the territory within which allotments may be made. It enlarges the nuznber of persons entitled to-allotments over those, provided for in the treaty of 1865, in that it does not limit allotments to male persons only, as is done in the treaty of 1865. It also changes the definition of the quantities of land to be allotted. In other words, the act deals so fully with the subject-matter that it must be held to be the only act now in force under which allotments can be made upon the Omaha reservation. The right of the complainant in this case must therefore be determined by the provisions of this act. It is true that, in construing the meaning of the act, light may be sought from the previous treaties had between the Indian tribe and the United States dealing with this subject-matter, but such reference to prior treaties is only to aid in properly construing the terms of the act .now in force. The words used in the act are to be construed with reference to the situation as it existed when the same was passed.
Under the provisions of the previous treaties, some progress had been made in the mattér of allotments in severalty, but it is evident that the parties in interest deemed it advisable to adopt a new basis
The parties to the contract evidenced by the act: of 1882 (22 Stat. 341) were the Omaha tribe of Indians and the United States, and, as already said, that tribe included many mixed bloods, who were then residing on tlie reservation, and, under these circumstances, it was agreed and enacted that the allotments in severalty should he made “to the Indians of said tribe in quantity as follows.” The act of 1882 (22 Stat. 341) deals with the situation as it existed at the date of its adoption, and there cannot: be read into it limitations found in the previous, treaties, but which are not re]seated in the act itself. In view of the situation and the several provisions of the act, there may be good ground for holding that only those Indians residing on the reservation when tlie act of 1882 (22 Stat. 341) was adopted, and their after-born children, art' or can become entitled to allotments under its provisions; but, whatever may be the true construction of ike act in this particular, there seems to be no ground for holding that the act intended to exclude front its benefits any Indians of the Omaha tribe residing on the reservation at the date of the act. It is admitted that the comjthiintint was in fact a resident of the reservation in 1882, when the act of August 7th of that year was approved, and, if he was an Indian of the Omaha tribe, then it must be held that, he comes within the class of persons entitled to allotments in severalty under the act in quest ion.
If is admitted that complainant is of mixed blood, being one-eighth Indian; that he was educated as an Indian, at the expense of the United States, at: the school maintained at Hampton, Va.; and that since the year 1880 he has resided upon the reservation, and, under these facts, he must be held to be an “Indian,” in the sense in which that term is used in- the act of 1882 (22 Stat. 341). The fact: that in blood he is but: one-eighth an Indian cannot: outweigh the other admitted facts, showing that he has been recognized to be an Indian of the Omaha tribe by the United States, and has always maintained his tribal relations with the Omahas.
It is further urged in argument that, in construing the act of 1882 (22 Stat. 341), the land department has uniformly held that the fifth section of the act of 1882 related back to the treaty of 1865, the sole purpose being to secure to the Indians a more perfect and satisfactory
It is further urged in argument that the father of complainant and his grandmother obtained allotments in severalty of lands in Nemaha county. Under the provisions of the treaty of July 15, 1830 (7 Stat. 328-330), by convention between the Omaha and other Indian tribes and the United States, a large tract of country in Nebraska known as the “Nemaha Reservation” was set apart for the accommodation, use, and benefit of the mixed bloods of the named tribes, and it is contended that, because of these alleged allotments to the father and grandmother of complainant, the latter is barred of any right to an allotment, under the act of 1882 (22 Stat. 341). It is not claimed that any allotment of land in the Nemaha reservation has ever been made to the complainant, so that the case does not present the question whether a person who has had an allotment in the one reservation can demand a second allotment in- the other.
The complainant’s right, if any he has, to an allotment under the act of 1882 (22 Stat. 341), is not inherited from his father or other ancestors. If it exists, it is because he is an Indian of the Omaha tribe residing on the Omaha reservation. It is a personal right, conferred on him by reason of his being an Indian of the Omaha tribe. If complainant possesses the right to an allotment, this right never belonged to his father or any other of his ancestors, but it is conferred upon him by the act of congress because he is an Indian of the Omaha tribe. The complainant is not seeking in this proceeding to assert a right to any property heretofore owned by his ancestors. He is asserting a right to an allotment in severalty out of premises belonging in common to the Omaha tribe of Indians, and he bases his claim upon the provisions of the act of congress of 1882 (22 Stat. 341), which act was passed for the benefit of the Omaha tribe of Indians then residing upon the reservation. Under the averments of fact in the bill contained, it must be held that the complainant is an Indian of the Omaha tribe, and that he was, when the act of 1882 (22 Stat. 341) was adopted, and still is, a resident upon the reservation. If these averments are true, then complainant shows himself entitled to the benefits of the act, and to an allotment in severalty, in accordance with the terms of the act. The demurrer to the amended bill is therefore overruled, with leave to defendant, if so advised, to answer the bill by the August rule day.