An Indian woman, head of a family of the Walla Walla tribe,
having asked under the Act of March 3, 1885, 23 Stat. 340, for an
allotment of land on which she resided and had made improvements,
was refused on the ground that she was not on the reservation at
the time of the passage of the act. She was directed to remove from
the land which was allotted to another Indian who knew of her
claims and improvements and who did not pay for her improvements or
make any himself. Subsequently she was notified to make a
selection, but was not allowed to select the land formerly
occupied, but was told by the land officer that her selection of
other lands would not prejudice her claim thereto. No patent was
issued to her for the lands so selected. In an action brought by
her against the allottee in possession of the lands originally
selected by her,
Held that it was not necessary under the Act of March
3, 1885, that the individual members of the tribes mentioned in the
act should be actually residing on the reservation at the time of
the passage of the act, and that as her selection was prior to that
of anyone else, she was entitled to the allotment originally
selected and that her right thereto had not been lost by the
selection of other lands.
Held that, in a contest between two Indians, each
claiming the same land, the United States, having no interest in
the result, is not a necessary party.
Page 194 U. S. 402
This is a suit in equity, brought by the appellee, complainant
below, in the Circuit Court of the United States, District of
Oregon, against the appellant to obtain the cancellation of an
allotment of land made by the officers of the government to the
appellant on the Umatilla Indian reservation in Oregon in 1891, and
to have the land allotted to her (the appellee). Issue being joined
in the case, it was referred to a special examiner to ascertain and
report the facts, and upon his report the circuit court gave
judgment in favor of appellee, 110 F. 60, which was affirmed by the
circuit court of appeals, 119 F. 114, and the appellant thereupon
appealed here.
The action was brought pursuant to the authority of an Act of
Congress (before amendment) passed in 1894, chapter 290. 28 Stat.
286, 305; amended, 31 Stat. 760. The right to the allotment claimed
by the appellee is based on the Act of March 3, 1885, chapter 319,
23 Stat. 340, and grows out of the Treaty of June 9, 1855, between
the United States and the Walla Walla and other Indian tribes,
which treaty was ratified by the Senate, March 8, 1859, and
proclaimed by the President, April 11, 1859. 12 Stat. 945.
A demurrer to the bill was filed by the defendant on the ground
that it did not state facts sufficient to constitute a cause of
action. The demurrer was overruled, and the defendant then
answered, denying many of the material allegations in the bill.
Witnesses were examined before the special examiner, and he made
a report and findings of facts, which findings were subsequently
adopted by the circuit court and by the circuit court of appeals.
Among others, the following facts were found: the appellee,
Philomme Smith, is a full-blooded Indian woman, and at all times
mentioned in the complaint was, and is now, a member of the Walla
Walla band or tribe of Indians, and resides upon the Umatilla
Indian reservation, in the State of Oregon. The defendant
(appellant) is also a full-blooded Indian, residing upon the
reservation. Pursuant to the authority granted by the
above-mentioned Act of March 3, 1885,
Page 194 U. S. 403
the President appointed commissioners for the allotment of lands
on the Umatilla reservation, and the commissioners carried out the
duty devolved upon them by the President under that act, and
completed the allotments on or about April 1, 1891, but refused at
that time to make any allotment to the appellee, because of her
absence (although but temporary) when the commissioners made a
census of the Indians entitled to allotment. At the time the other
allotments were made, the appellee was the wife of W. A. Smith, a
white man, and she was also the real head of the family, which
consisted of the husband, his wife, and their eight children. The
parties were married January 16, 1861, and the appellee has been
recognized by the Interior Department as the head of the family in
the sense mentioned in the act of Congress of 1885.
At the time the allotments were made to the other Indians by the
commissioners as above mentioned, appellee was located and actually
residing with her family upon the reservation, upon a large tract
of land, some 560 acres, including the land in controversy herein,
and she and her family at that time were living in a house about
twenty steps from the boundary line of this particular 160 acres.
The land (including the 160 acres) was enclosed in one body by
having a furrow plowed around the same, marking it off from the
other adjacent land. The appellee had selected the land in 1888,
and, with her family, was then in possession thereof, and retained
such possession until the fall of 1896, with the consent of Homily,
chief of the Walla Walla Indians, and Show-a-way, chief of the
Cayuse Indians, and also with the consent of _____ Coffee, who was
at that time acting as Indian agent upon that Indian
reservation.
Since 1888, and prior to the time when the allotment to
defendant was made, the appellee made valuable improvements upon
and around the land in question by building upon it a small cabin
and a barn and making other improvements, and by putting a wire
fence around the whole tract, the whole cost amounting to between
$700 and $775, and from April, 1888,
Page 194 U. S. 404
until the fall of 1896, long after the allotments were made by
the commissioners, the appellee and her family had possession of
the land in question with the improvements thereon, and she and her
family continued to live during that time in the house, about
twenty steps from the boundary line of this land. When the appellee
left the land in the fall of 1896, she left it because she was
ordered to do so by the then Indian agent pursuant to a
determination by the Interior Department, made in 1893, that she
was not entitled to any allotment under the act of 1885.
Before the land was allotted to the defendant, and while the
allotting commissioners were engaged in allotting lands in 1891, as
above stated, the appellee asked to be allotted the particular 160
acres in controversy in this case by the commissioners, but they
declined to do so because her name was not upon their allotting
list. The defendant obtained possession of the 160 acres in
October, 1896, and the land was allotted to him at that time, when
appellee was ordered off the same by the Indian agent, and the
defendant has never paid the appellee any money or in any manner
reimbursed her for the improvements which she had made upon the
lands in controversy, and the defendant had made no improvements
thereon, and was aware of all that had been done by appellee when
he made the selection of this land, and when it was allotted to
him. There is neither allegation nor proof that appellant has since
made any improvements on the land.
In April, 1897, the Department of the Interior reconsidered its
former decision and held that appellee was entitled to an allotment
of land upon the reservation, and it directed one G. W. Harper, the
then Indian agent of that Indian reservation, to make an allotment
to her, and, pursuant to that direction, Harper called upon her to
make a selection of lands for her allotment, and she thereupon
selected certain lands, which were not the lands in question, the
land selected amounting to 146.2 acres in all, and she was
recognized by the Department as the head of a family, entitled to
make selection and
Page 194 U. S. 405
have an allotment. A part of this land she has since leased to a
tenant, and has accepted rental from the tenant, the lease covering
only 70 acres.
The land selected by the appellee after she had been forced to
relinquish the possession of the 160 acres was not as valuable as
the land from which she was ordered, and at the time the selection
of this other land was made by her, she and her husband came to the
office of the Indian agent and asked him if it would affect her
rights in the land in question for her to select land as directed
by the Indian commissioner. She was told by the agent that he
thought it would not; that she was under orders from an officer,
and not under her own free will, when she left the land, and it was
taken possession of by the defendant, and with that understanding
the appellee made the selection of the other and less valuable
land.
The particular relief asked by the appellee in her bill was a
decree declaring her
"to be the allottee upon the said tract of land, and that the
allotment thereof to the defendant be cancelled and annulled, and
that the defendant, his servants, and all persons holding under
him, as tenants, lessees, or otherwise, be forever enjoined from
interfering with your orator's possession thereof, and that she may
have judgment against the defendant for damages,"
etc.
Page 194 U. S. 407
MR. JUSTICE PECKHAM, after making the above statement of facts,
delivered the opinion of the Court.
The first objection made by counsel for the appellant is that
the Act of Congress of August 15, 1894, 28 Stat. 286, 305, under
which the complainant instituted this suit, is not applicable to
this case, and therefore the court has no jurisdiction of the
subject matter. The objection made by the appellant is, that to
make the act applicable to the appellee would be to give it a
retrospective effect, while its purpose is plainly prospective. The
objection is untenable.
The appellee claims that, under the act of 1885, she was
entitled to an allotment of land in the Umatilla reservation, and
that it was improperly refused her. The act provides (p. 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
Page 194 U. S. 408
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."
That this act embraces the case of a person situated as was the
appellee at the commencement of this suit seems to us so plain as
to require no further argument. It is not in any way a
retrospective operation which is thus given to the act, except as
it applies, by its language, to any one who was then (at the time
of the passage of the act of 1894) entitled to an allotment. She
claims that she was so entitled to an allotment of the land in
question, and that it had been improperly allotted to defendant
(appellant), and that the act permits her to assert her claim in
the circuit court, as against the appellant, and to have it
adjudged between them. We have no doubt she has that right.
The next objection is that the complaint does not state facts
sufficient to constitute a cause of action, in that it fails to
allege the residence of the complainant (appellee) on the
reservation at the time of the passage of the allotment act (1885),
and shows upon its face that her claim for this allotment was
decided against her by the Secretary of the Interior in 1891, long
prior to the passage of the act of 1894, under which she is now
suing, and when the sole authority for setting disputes concerning
allotments resided with the Secretary of the Interior.
We are of opinion that it was not necessary to allege or prove
the residence of the appellee on the reservation at the time of the
passage of the act of 1885, called the "Allotment Act." That act
had reference, as its preamble states, to the "Confederated bands
of Cayuse, Walla Walla, and Umatilla Indians, residing upon the
Umatilla reservation, in the State of Oregon."
It related to the residence of the bands as bands, and not as
individual Indians, many of whom were residing off the
particular
Page 194 U. S. 409
reservation, and yet within the country theretofore ceded to the
United States by the treaty of 1855. Under the act mentioned, a
commission was appointed by the President, the members of which
were to go upon the reservation and ascertain as near as might be
the number of Indians who would remain on that reservation and who
should be entitled to take lands in severalty thereon, and the
amount of land required to make the allotment, and the commission
was then to determine and set apart so much of their reservation as
should be necessary to supply agricultural lands for allotments in
severalty. The commission was to report to the Secretary of the
Interior the number and classes of persons entitled to allotment as
near as they might be able to do so, and if the report were
approved by the Secretary of the Interior, the tracts selected
should thereafter constitute that reservations for those Indians,
and within which the allotments provided for in the act should be
made.
Under this act, a report had been made to the Secretary of the
Interior by the commission sometime after the conclusion of their
labors in the Indian countries in 1891, and an opinion was asked by
the Department of the Interior from the Assistant Attorney General
regarding the rights of the appellee, among others, to an allotment
under that act, which had been refused by the commission. An
opinion was delivered on July 1, 1893, by one of the Assistant
Attorneys General, in which he held that the appellee was not
entitled to an allotment; but, upon reviewing that opinion, on June
28, 1895, he held that she was entitled thereto. In his latter
opinion, he thought that, while it was agreed in the treaty of
1855, already mentioned in the statement of facts, that the Indians
should remove within one year to the permanent reservation (which,
in this case, was the Umatilla reservation), yet there was no
penalty affixed to its violation, and the failure of the Indians to
so remove and reside would not work a forfeiture of their tribal
rights, and that, while the appellee was not residing upon this
reservation at the time that the act of 1885 became operative, she
was,
Page 194 U. S. 410
so far as that fact was concerned, in the same position as a
majority of the Indians belonging to the confederated tribes
mentioned in the act; that the record showed that, when the agents
of the government went on this reservation, they found but few
Indians actually residing there, and it was only after weeks of
sending out runners and using all the means at their disposal that
the commissioners succeeded in securing the attendance of a
majority of the male adults of these tribes. The Assistant Attorney
General gave the opinion that that was itself a recognition by the
Department that residence upon the reservation was not essential to
tribal recognition.
It is plain that the agreement in the treaty of 1855 by which
the tribes and bands agreed to remove to, and settle upon, the
reservation within one year after the ratification of this treaty
had not been lived up to so far as actual residence upon the
reservation of individual Indians was concerned. Thirty years after
that time, when the act of 1885 was passed, it is seen that a
majority of the Indians were not even then actually residing, in
the strict sense of the term, upon this reservation. There existed
under the treaty an exclusive right among the Indians of taking
fish from the streams running through and bordering upon the
reservation, and at all other usual and accustomed stations, in
common with the citizens of the United States, and the privilege of
erecting suitable buildings for curing such fish, and also the
right of pasturing their stock on unclaimed lands in common with
the citizens of the United States, was secured to them. The right
to roam over so much of the territory as was ceded by them to the
government, as they had been accustomed to do, and such as were not
settled upon or claimed for individual use by citizens of the
United States, seems to have been recognized, or to have been
expected by the government, although the residence of the tribe or
band as such was to be within the reservation mentioned in the
treaty. It was also said in the opinion regarding the facts in this
case:
"The trouble with these claimants seems to have arisen out
Page 194 U. S. 411
of their failure to be upon the reservation when the census roll
of the tribe was made up. They arrived at said reservation in reply
to the communication sent to them by one of the Indians the day
after the census takers had left the reservation, to-wit, on the
7th day of June, 1887, or rather Mrs. Morisette arrived upon that
day and Mrs. Smith shortly afterwards. They were recognized by
Homily, chief of the Walla Wallas, and various other head men and
members of the confederated tribes, and the Indian agent then in
charge assigned each one of them to a parcel of land, after
selection, and they have made valuable improvements on and have
continued to reside thereon, as far as this record shows, ever
since, the value of their improvements amounting to a considerable
sum. They began residence upon the land about the middle of June,
and their reasons for not having arrived sooner, that they lived
some two hundred miles away, and were without money to make the
trip."
Pursuant to this opinion of the Assistant Attorney General, the
Department of the Interior reconsidered its former decision and
held that the appellee was entitled to an allotment under the act
of 1885. We concur with the latter opinion of the Assistant
Attorney General, and hold that it was not necessary that the
individual Indians of the tribes mentioned in the act of 1885
should be actually residing on the reservation at the time of the
passage of that act. If the individual were a member of the tribe
or band, recognized as such by his chiefs, it was not necessary
that such person should be an actual resident of the reservation
when the act was passed. The fact found is that the appellee herein
is a full-blooded Indian woman, and was, at all the times
mentioned, a member of the Walla Walla band or tribe of Indians,
and at the time of the original allotment resided upon the
reservation in the State of Oregon. When such a large percentage of
allottees upon this reservation resided, as did the appellee,
elsewhere than actually upon the reservation at the date of the
passage of the act of 1885, it cannot be that the act passed was
intended
Page 194 U. S. 412
to limit the right to an allotment to those actually residing on
the reservation, to the exclusion of a majority of the members of
the different bands or tribes. The fact of such nonresidence is
presumed to have been known by Congress, and the act should be
construed with reference to that knowledge.
The purpose of the treaty and of the act evidently was to induce
the Indians and encourage them, so far as possible, to break up the
tribal relations and adopt the habits of an agricultural people,
and it would seem that those persons who were Indians and members
of one or the other bands or tribes of Indians mentioned in the
treaty and in the act and recognized by the chief of the tribe
should have the right to an allotment, especially if recognized by
the Land Department as entitled thereto.
The purpose of the act would fall very far short of
accomplishment were the allotments confined exclusively to those
actually residing within the limits of the reservation, while those
who were absent therefrom, but still within the old limits of the
land, and were members of the band, recognized as such, should be
held not entitled to the allotments under the act, simply because
of residence outside of the described limits of the
reservation.
The appellant further contends that the weight of the evidence
shows the appellee is not a member of the Walla Walla tribe of
Indians. We are not disposed to review that question of fact, which
has been determined by the special examiner and adopted by the
circuit court and the circuit court of appeals. There is evidence
upon which the fact as found may be based, and it is not so plainly
erroneous as to call upon this Court to vary from its usual rule
not to review the unanimous finding upon questions of fact of two
courts, unless such finding is plainly erroneous.
Stuart v.
Hayden, 169 U. S. 1;
Baker v. Cummings, 169 U. S. 189,
169 U. S. 198;
The Carib Prince, 170 U. S. 655;
Towson v. Moore, 173 U. S. 17;
Smith v. Burnett, 173 U. S. 430,
173 U. S. 436;
Brainard v. Buck, 184 U. S. 99.
Another objection is made that the United States is a
necessary
Page 194 U. S. 413
party defendant, and, not being before the court, no binding
decree can be entered herein.
The contest here is between two Indians, each claiming the same
land under an allotment which was made last to the appellant
herein. The United States has no interest in the result. Both
parties are Indians claiming under the act of 1885.
In our opinion, the claim that the United States must be made a
party is without foundation. Under the act of 1894 (
supra)
the circuit courts are given jurisdiction to try and determine any
action of this nature, 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, . . .
Provided, That the right of appeal shall be allowed to
either party as in other cases."
The case at bar was commenced prior to the amendment of the
statute of 1894 by the Act of February 6, 1901, 31 Stat. 760,
wherein it is provided that the United States shall be a party
defendant, and the case must be decided without regard to the
amendment.
Under this statute, there is no provision rendering it
necessary, in a private litigation between two claimants for an
allotment, to make the United States a party. The statute itself
provides that the judgment or decree of the court, upon being
properly certified to the Secretary of the Interior, is to have the
same effect as if the allotment had been allowed and approved by
the Secretary. This provision assumes that an action may be
maintained without the government being made a party, and provides
for the filing of a certificate of the judgment and its effect, and
the government thereby, in substance and effect, consents to be
bound by the judgment, and to issue a patent in accordance
therewith. The first section of the act of 1885 (
supra)
provides that an allotment made by
Page 194 U. S. 414
or under the direction of the Secretary of the Interior entitles
the allottee to a patent for the land allotted to him. And the
filing of the certificate of the judgment decreeing an allotment is
to have the same effect with the Secretary as if the allotment had
been made by him. This is sufficient.
Upon the facts herein found, we are also of opinion that the
appellee selected the lands in controversy within the meaning of
the statute long prior to the selection made by the appellant, and
that she is not concluded by the selection she afterwards made of
another tract of land. The act of 1885 provided that the selection
of land for allotment should be made by heads of families. The
appellee was such, and was so recognized by the Land Department. By
ยง 6 of the act, the Secretary of the Interior had power to
determine all disputes between Indians respecting the allotments.
If more than one person claimed the same land, it is, as we think
clear that the dispute should be decided and the allotment made in
favor of the one whose priority of selection and residence and
whose improvements on the land equitably entitled such person to
the land. The government has proceeded upon such principle
heretofore,
Shepley v. Cowan, 91 U. S.
330, and it is a right and eminently just principle. The
defendant knew of the prior possession of the appellee at the time
he made his selection, and knew of her improvements upon the land,
for they were open and visible, while he had made none, and had
obtained possession by direction of the Land Office only because of
the mistake in law which denied the right of allotment to appellee
on account of her absence when the census was taken. Defendant,
with all this knowledge, selected the land, and never offered to
pay a dollar for the improvements, and never has paid anything
therefor, nor does he allege in his answer, and there is no proof,
that he has since made any improvements on the land or expended
anything thereon. When the Land Department corrected its mistake of
law, the appellee had the right to insist upon her original
selection. Her selection of other land, after the Department had
reconsidered her case,
Page 194 U. S. 415
does not prevent her from claiming this land from defendant. She
selected the other land only after advising with the Indian
officer, and upon his statement that it would not affect her claim
for the land she had previously selected, and from which she had
been ordered by the officers of the government. She has never
received any patent from the government for this other land, and
nothing further need be done by her in order to authorize the
government to cancel the allotment for this other land at the time
when patent issues for the original selection.
We find no error in the judgment, and it is
Affirmed.
