179 F. 13 | 8th Cir. | 1910
Lead Opinion
The lands of the Five Civilized Tribes were allotted in severalty to their members, subject to express restrictions against their alienation for specified periods of time. The bills in these suits charge that many thousand conveyances have been made in violation of those restrictions, and the suits have been brought by the United States to have some 4,000 of these conveyances declared to be void and canceled of record. The restrictions against alienation arise out of numerous statutes and treaties, and vary according to such matters as the amount of Indian blood of the allottee, whether the land was a homestead, and whether it was held as an original allotment or by inheritance. The grantees under the conveyances are classified according to some distinct feature of the restriction upon alienation, and all grantees coming under each class are combined as defendants in a single suit. The allottees are not made parties either as plaintiff or defendant, and it is not charged in the bills that the conveyances were obtained by fraud, misrepresentation, or for an inadequate consideration. They are assailed solely upon the ground that they were made in violation of the restriction which Congress imposed upon the alienation of the allotments.
These bills were demurred to upon numerous grounds. The demurrers were sustained by the trial court for the reason (1) that the complainant has not such an interest in the matters involved as entitles it to maintain the action; (2) that the allottees are necessary parties, and that there is therefore a defect of parties; (3) that the bills are multifarious. A decree was entered in each case dismissing the bill upon the merits, to review which is the object of this appeal.
The consideration of the case will be simplified if it is understood
' The same observations .may be made as to the .statement of the relation between the national government and the Indians being that of 'guardian and ■ ward. These are familiar terms' in decisions dealing With Indian matters. ■ They are, however, words of illustration, and not'of-' definition, and' to attempt to reason from the private law of guardián ánd wáfd to the measures of the federal government in dealing with the Five Civilized- Tribes leads only to confusion and the sub-r version"of the real scheme óf government.
Turning now to the objections which were made and sustained by the trial-coiirt,'has the federal government such an interest as entitles it to maintain these suits ? It will be conceded at the outset that it has no legal or equitable estáte in the allotments; and if such an estate is necessary, it has-no standing in court. It is, however, too plain for -controyers)b" that the federal government' imposed restrictions upon the alienation of dhese allotments. That restriction, was its main reliance for the social, and 'industrial elevation of the Indians. Has it- a stándi-hg in court for-the enforcement of its policy? .To say that it has not is to make the restraints upon alienation a mere brutum- ful•mén. - -Shall-the Indians who- are intended,to be restrained, be made .thé'sole'agency for-the enforcement of the restraint? If so, the act Of Congress is nothing more than a benevolent admonition-. If they aré amable, to- resist the- allurements by which they .are enticed into making the conveyances,,will'-they be-.expected to undertake the diffi'cult'-aniDproitrácted litigation necessary to. sefe:aside. their own acts?
The‘Supreme Court of the United States in the case which carried the emancipation of the Indians and their property to the fullest extent, expressly recognizes the right of the government to enforce, by appropriate action in court, the restraints which it imposed upon the alienation of Indian allotments. The court says in the Heff Case, 197 U. S. 489, 509, 25 Sup. Ct. 512, 49 L. Ed. 848:
“Undoubtedly an allottee can enforce his right to an interest in the tribal or other property (for that right is expressly granted), and equally clear is it that Congress may enforce and protect any condition which it attaches to any of its grants. This it may do by appropriate proceedings in either a national or state court. * * * Many a tract of land is conveyed with conditions subsequent. A minor may not alienate his lands; and the proper tribunal may at the instance of the rightful party enforce all restraints upon alienation.”
Under the general allotment act of 1887, a provisional patent was issued to the allottee, and the naked legal title retained in the government for the period of 25 years. In the case of the Five Civilized Tribes, this plan was modified to the extent of granting the legal title to the Indian, but imposing upon it a restraint against alienation. These plans present simply differences of method. The object sought in each case was the same, namely, to clothe the Indian with such title to the property as seemed best calculated to encourage his industrial development, and yet accompany this grant with such a restriction as would prevent the main reliance of the government for the industrial betterment of the Indian from being defeated by the alienation of the property. The right of the government to invoke the aid of its court to prevent the defeat of its object is the same under the one statute as the other. Its right to maintain a suit to prevent the defeat of its allotment scheme under'the general law of 1887, is fully sustained in United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. Ed. 532. It is contended, however, in the present case, that that decision
But we are not left to inference from the general scheme of the national government in its dealings with the Eive Civjlized Tribes, to find authority for the maintenance of these suits. They are authorized by express act of Congress. The last paragraph of section 6’ of the act of May 27, 1908, c. 199, 35 Stat. 312, is a saving clause. Viewed solely in that light it declares the belief and intent of Congress that the rights which it saves, exist. It does not, however, stop with the language which saves the rights specified, but proceeds to declare the conditions upon which those rights shall be exercised by stating that the suits shall be brought upon the recommendation of the Secretary of the Interior, and without cost to the allottees. It thus passes beyond the scope of a saving clause, and uses language which is consistent only with the grant of the power to institute the suits. When this language is read in connection with the earlier part of the section appropriating $50,000 to cover the expenses incurred by the Attorney General in this litigation, the intent of Congress, that the power to maintain the suits is granted, and its purpose that such suits should be instituted in proper cases, is clearly manifest. It is incredible that the purpose of Congress was simply to provide for the institution of suits to obtain a judicial determination as to whether the power of the government to maintain such suits existed. Congress by its own declaration could have placed that question beyond controversy, and the courts ought not to give a meaning to its acts which would make of them a mere squandering of public funds. That which is implied is as much a part of a statute as that which is expressed. City of Little Rock v. U. S., 103 Fed. 418, 43 C. C. A. 261; United States v. Babbit, 1 Black, 55, 17 L. Ed. 94. Implications, far less clear than the power to maintain these suits, have been enforced by the courts. Gelpcke v. City of Dubuque, 1 Wall. 220, 17 L. Ed. 530; Postmaster General v. Early, 12 Wheat. 136, 146, 6 L. Ed. 577; Telegraph Company v. Eyser, 19 Wall. 419, 22 L. Ed. 43; Great Northern Railway Co. v. United States, 155 Fed. 945, 84 C. C. A. 93. The trial court held that because a statute conferring the jurisdiction here in question by more direct language was not enacted, though brought to the
Much of the briefs is devoted to arguments deduced solely from the fact that Congress has conferred national citizenship upon the Indians. These arguments have been frequently presented to the courts, but so far as we are aware, they have never defeated the exercise of national authority over the Indian except in the Heff Case, 197 U. S. 488, 25 Sup. Ct. 506, 49 L. Ed. 848. That decision, however, as now explained by the Supreme Court in United States v. Celestine, 215 U. S. 278, 30 Sup. Ct. 93, 54 L. Ed. —, lends no support to the defendants. The case arose under the general allotment act of 1887. That statute provides that, upon the completion of the allotments, the Indians “shall have the benefit of, and be subject to the laws, both civil and criminal, of the state.” Mr. Justice Brewer carries this feature of the statute through his opinion at every step as the basis of the decision of the court. He has now removed all possible doubt on the subject by his opinion in the Celestine Case, where he expressly states that the Heff opinion rests upon the fact that under the general allotment act Congress has, by direct provision, entirely renounced its own authority over the Indians, and subjected them to the laws of the state, both civil and criminal. The decision of the Heff Case simply gives effect to this positive declaration of the legislative intent. In its dealings with the Eive Civilized Nations, Congress has been at great pains to indicate a different purpose. Here it has from time to time, down to the organic act admitting Oklahoma and the provisions which it insisted should be embodied in the Constitution of that state, reserved to itself express authority to pass such laws with respect both to the Indians and their lands, as shall in its judgment seem wise. In the present case, though it conferred citizenship upon the Indians, it accompanied its grant of the allotments to them with an express provision against their alienation. The difference between the present case and the Heff Case is this: In the former case Congress expressly renounced its own authority over the Indians, and subjected them to the laws, both civil and criminal, of the state. Here Congress, with equal explicitness, has imposed a restraint upon the alienation of allotments. It is as much the duty of the courts to give effect to the legislative intent in the present case as in the former. See, also, U. S. v. Sutton, 215 U. S. 291, 30 Sup. Ct. 116, 54 L. Ed. —.
The grant of citizenship to the members of the Eive Nations was intended for their protection, and not to strip them of the protection of
Section 1 of the act of May 27, 1908, removes all restraints upon alienation as to several classes of allotments. Section 6 of that act provides for the appointment of representatives of the Secretary of the Interior to counsel and advise Indian allottees having restricted lands, with reference to the same, and also authorizes th.ese agents to bring suits in the name of the allottee to cancel and annul any conveyance or incumbrance thereof made in violation of any act of Congress. These provisions standing alone would afford a strong implication against the right of the government .to maintain these suits in its own name as to lands that are freed from restriction by. section 1. The Indian as a citizen of the United States has a clear right to maintain any suit necessary to set aside illegal conveyances of his property. By section 1 of the act he is vested in certain cases with an unrestricted right to dispose of his allotment. How can the Attorney General contend that as to lands thus freed from restriction by the government he is truthfully representing its present policy by prosecuting these suits in its name? Again, it might well be urged that, inasmuch as Congress has authorized the agents of the Secretary Of the Interior to maintain suits in the name of allottees to cancel any instrument executed in violation of law, it has thereby indicated its intent that no other governmental agency should institute such .suits. These contentions, in our judgment, would be controlling were it not for the last paragraph of section 6 of the act. It reads as follows:
“Nothing in this act shall be construed as a denial of the right of the United States to take such steps as may be necessary, including the bringing of any suit, and the prosecution and appeal thereof, to acquire or retain possession of restricted Indian lands, or to remove cloud therefrom, or clear title to the same, in cases where deeds, leases or contracts of any other kind or character whatsoever have been or shall be made contrary to law with respect to such lands prior to the removal therefrom' of restrictions upon the alienation thereof.”
Is there a defect of parties? The rule as to parties in equity was early stated by Mr. Justice Curtis in language so accurate and comprehensive that it has since been accepted by all federal courts. He says that parties are:
“(1) Formal parties. (2) Persons having an interest in the controversy, and who ought to be made parties in order that the court may act on that rule which requires it to decide on, and finally determine, the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; hut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, tho latter are not indispensable parlies. (3) Persons who not only have an interest in the controversy, but an interest df such a nature that a final decree cannot he made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” Shields v. Barrow, 17 How. 130, 139, 15 L. Ed. 158.
Th Supreme Court in Waterman v. Canal Louisiana Bank Co., 215 U. S. 33, 49, 30 Sup. Ct. 10, 54 L. Ed. —, after quoting the above language with approval, condenses the rule as to indispensable parties as follows:
‘‘The relation of an indispensable party to the suit must be such that no decree can be entered in the case which will do justice between the parties actually before the court, without injuriously affecting the rights of such absent party.”
The defense of multifariousness is without merit. That defense, as the Supreme Court has frequently declared, is “very largely a matter of convenience.” United States v. Bell Telephone Co., 128 U. S. 315, 352, 9 Sup. Ct. 90, 91, 32 L. Ed. 450; Graves v. Ashburn, 215 U. S. 331, 335, 30 Sup. Ct. 108, 54 L. Ed. —. It is addressed to the sound discretion of the court. The convenience both of the defendants and the government is conserved by joining in one action all such conveyances as the government claims are invalid because made in violation of a specific statute.
Only one question remains for consideration. The statutes imposing restraints upon alienation were changed from time to time between the year 1893, when the allotment of the lands in severalty began, and the time of their completion some 15 years later. It is earnestly contended by the defendants that after allotments had been made subject to a specific limitation, the government was without power to enlarge the period of that limitation; that the Indian obtained a vested riglit in his allotment, subject only to the restriction which was imposed upon it at "the time the allotment was made, and that to enlarge the period of the restriction would be. an impairment of his vested rights, in violation of the fourteenth amendment to the Constitution. So long
The whole scheme of allotment of lands in severalty to the Indians is an experiment. Congress, in the case of the Five Nations, has attempted to reserve to itself power to deal with the subject in the light of experience. If the plan proves a failure, after a fair trial, it would be disastrous, indeed, if the mere grant of citizenship to the Indian had placed him beyond the power of the federal government to adopt such measures for his welfare as experience should show'to be necessary.
The decrees are reversed, and the trial court is directed to proceed with the suits in accordance with the views here expressed.
Dissenting Opinion
(dissenting). I am unable to agree with my Associates that the United States can of its own motion, without the request or consent of the Indians whose rights are involved, maintain these suits to remove a cloud from their title. When the suits were instituted the individual Indians held title in fee simple absolute to their several allotments. The undivided interests which they originally owned in tribal property had been effectually partitioned in the process of allptment provided by the act of March, 1893 (Act March 3, 1893, c. 209, 27 Stat. 612), and subsequent acts supplemental thereto. Any reversionary interest of the United States dependent upon possible abandonment of the land or extinction of the tribe had been relinquished. The United States, therefore, had no proprietary right legal or equitable to protect or safeguard by suit or otherwise. Moreover, the Indians had become citizens of the United States and of the state of Oklahoma, and had become entitled to all the rights, privileges, and immunities of such citizens. As a result of all these things guardianship of the government over them had ceased, and the Indians had become completely emancipated from federal control. Daws restricting alienation, hereafter referred to, had been passed for their protection, but this fact does not militate against the completeness of their emancipation. Matter of Heff, 197 U. S. 488, 25 Sup. Ct. 506, 49 L. Ed. 848.
. With no title legal or equitable to protect, and no duty of a trust character to perform, a new head of equity jurisdiction had to be dis
The foregoing considerations, in my opinion, indicate that Congress has adopted a new policy concerning these Indians, namely: the promotion of self-reliance, self-respect, economy, and thrift, and to this end after making the special provision above indicated and perhaps others of like character, has left them otherwise subject to general laws governing all citizens. Equality of opportunity is all an American citizen ought to demand; and this and'more in the respects just indicated Congress has given the members of the Five Civilized Tribes. With these special provisions made in their behalf the legislative intent and purpose seems! to..hgve been to leave,them to justify their
“Said representatives of the Secretary of the Interior are further authorized, and it is made their duty, to counsel and advise all allottees, adult or minor, having restricted lands of all of their legal rights with reference to their restricted lands, without charge, and to advise them in the preparation of all leases authorized by law to be made, and at the request of any allottee having restricted land he shall, without charge, except the necessary court and recording fees and expenses, if any, in the name of the allottee, take such steps as may be necessary, including the bringing of any suit or suits and the prosecution and appeal thereof, to cancel and annul any deed, conveyance, mortgage, lease, contract to sell, power of attorney, or any other incumbrance of any kind or character, made or attempted to bo made or executed in violation of this act or any other act of Congress, and to take all steps necessary to assist said allottees in acquiring and retaining possession of their restricted lands.”
Notwithstanding other provisions of the act, referred to in the opinion of the majority, I think the part just quoted manifests a clear legislative intent and purpose that the United States by and through the Secretary of the Interior should act with respect to the violation of restrictions primarily in an advisory way and instead of ever bringing suits in its own name at pleasure, should bring them only when requested by allottees, and then only in their names. If these suits can be maintained, it is not apparent where the government can stop in its litigation in behalf of private persons in the enforcement of national policies. There are certainly many recognized policies besides the Indian policy'which might be materially subserved by the practice of governmental intervention as in this case. Where would it end?
In my opinion the judgment below should be affirmed.