Although the federal right was first claimed in the state court
in the petition for rehearing, if the question was raised, was
necessarily involved, and was considered and decided adversely by
the state court, this Court has jurisdiction under § 709,
Rev.Stat.
The United States has retained such control over the allotments
to Indians that, except as provided by acts of Congress,
controversies involving the determination of title to and right to
possession of Indian allotments while the same are held in trust by
the United States are not primarily cognizable by any court, state
or federal.
The Act of August 15, 1894, 28 Stat. 286, delegating to federal
courts the power to determine questions involving the rights of
Indians to allotments, did not confer upon state courts authority
to pass upon any questions over which they did not have
jurisdiction prior to the passage of such act, either as to title
to the allotment or the mere possession thereof which is of
necessity dependent upon the title.
This suit was commenced in the Circuit Court of Umatilla County,
Oregon, by the filing of a complaint in the name of Agnes Kalyton,
suing by her mother, Louise Kalyton, as guardian
ad litem.
Mary Kalyton and six other persons were made defendants, one such
(Charles Wilkins) being sued as the acting United States Indian
agent at the Umatilla reservation.
It was alleged in substance as follows: by virtue of an act of
Congress approved March 3, 1885, and the amendments
Page 204 U. S. 459
thereto, a tract of land in the Umatilla Indian reservation was
duly allotted on April 21, 1891, to one Joe Kalyton, a member of
the Cayuse Tribe residing on said reservation. It was alleged that,
in or about the year 1893, Joe Kalyton, the allottee, in accordance
with the customs of the Cayuse Tribe, married Louise _____, an
Indian woman of that tribe, and the plaintiff, Agnes Kalyton, was
issue of the marriage. In 1898, Joe Kalyton died intestate, leaving
the plaintiff as his sole heir, and, under the laws of Oregon and
the provisions of the act of Congress referred to, she became
entitled to the land allotted to her father and to the possession
and enjoyment thereof. It was charged that Mary Kalyton and four of
the defendants, all insolvent, claiming to be the heirs of the
deceased, had taken and held possession if the land in question,
which had a rental value of $274.75 per annum. It was alleged that
one of the defendants, named Glasscock, claimed to have some
interest in the land and was confederating with the other
defendants, who were wrongfully alleging themselves to be the heirs
of Joe Kalyton, with the object of depriving plaintiff of the use
of the land and the enjoyment of the rents and profits thereof.
Averring that, under the rules and regulations of the Department of
the Interior, in order that plaintiff might obtain the use and
enjoyment of the land, it was requisite that her status as legal
heir of the deceased should be adjudged by a court of competent
jurisdiction, the court was asked to so decree and to perpetually
restrain the defendants from interfering with her possession and
use of the land. General relief was also prayed.
An answer was filed on behalf of the defendant Mary Kalyton. It
was therein denied in substance that there had been a marriage
between Joe and Louise Kalyton, and that the plaintiff was their
child, and, averring that Joe Kalyton was a resident and citizen of
Oregon and had died intestate, unmarried, and without any lineal
descendant, it was alleged that the defendant, as the sister of Joe
Kalyton, was his sole heir, and as such was the owner of, and
entitled to the possession
Page 204 U. S. 460
of, the land in controversy and to its enjoyment. A decree was
prayed quieting her alleged title.
The others of the defendants, who were alleged to be
confederating with Mary Kalyton, filed a disclaimer of any interest
in the lands in controversy. The cause was heard by the court.
Deciding that, if Joe Kalyton and Louis Kalyton had been married
according to the custom of the Indians of the Cayuse Tribe, such
marriage would have been void, and that there had been no marriage
between the parties because none had been solemnized in accordance
with the laws of the State of Oregon, the plaintiff was held to be
an illegitimate child of the deceased, and to have no right, title,
or interest in or to the lands in question, and a decree was
entered in favor of the defendant Mary Kalyton.
The cause was appealed to the Supreme Court of the State of
Oregon. That court, having found that Joe and Louise Kalyton were
married according to the custom and usage of the Indian tribe to
which they belonged, and that the plaintiff was the issue of such
marriage, held, in view of the legislation of Congress,
"that the plaintiff herein was born in lawful wedlock, and is
the sole heir of Joe Kalyton, deceased, and, as such, entitled to
the possession of the real property of which he died seised."
The decree of the trial court was therefore reversed, and a
decree was entered in favor of the appellant in accordance with the
opinion. A motion for a rehearing was made and overruled. This
motion was based upon the contention that the court had erred in
taking jurisdiction of the cause, for the reason that it involved
the title and right to possession of public land held in trust by
the United States for the benefit of Indians, and hence the United
States was a necessary party defendant, and not subject to the
jurisdiction of a state court. We say the petition for a rehearing
was based upon the grounds just stated, although the petition is
not in the record, because it is manifest that such was the case
from the opinion which the court delivered in refusing the
rehearing. 45 Or. 116. In that opinion,
Page 204 U. S. 461
the question whether the matter was one of exclusive federal
cognizance was elaborately considered, and it was decided that it
was not, because a decree as to the right of possession would not
interfere with the title or trust interest of the United States.
And the court declared that, for the purposes of determining its
jurisdiction, it was wholly irrelevant to consider whether it would
have the power to enforce its decree for the possession of the
allotted land against the officer of the United States in charge of
the Indian reservation in case that official should decline to give
effect to the decree for possession.
The case was then brought to this Court.
Page 204 U. S. 463
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
It is contended that we are without jurisdiction because no
title, right, or immunity was specially set up or claimed under any
federal statute and denied. But, leaving aside for a moment all
other considerations, it is plain that the defendant below set up a
claim of immunity from suit in the state court under the laws of
the United States, and that the right to the immunity so asserted
under an act or acts of Congress was expressly considered and
denied by the state court. True it is that the immunity which was
asserted was first claimed in a petition for rehearing; but, as the
question was raised, was necessarily involved, and was considered
and decided adversely by the state court, there is jurisdiction.
Leigh v. Green, 193 U. S. 79.
Page 204 U. S. 464
At the threshold lies the question raised and decided below
relative to the jurisdiction of the state court over the
controversy.
Allotments of land in severalty to Indians residing upon the
Umatilla reservation, in Oregon, were authorized by the Act of
Congress of March 3, 1885, c. 319, 23 Stat. 340, which contained
the following provision:
"The President shall cause patents to issue to all persons to
whom allotments of lands shall be made under the provisions of this
act, which shall be of the legal effect and declared that the
United States does and will hold the land thus allotted, for the
period of twenty-five years, in trust for the sole use and benefit
of the Indian to whom such allotment shall have been made, or, in
case of his decease, of his heirs, according to the laws of the
State of Oregon, and that, at the expiration of said period, the
United States will convey the same by patent to said Indian or his
heirs as aforesaid, in fee, discharged of said trust, and free of
all charge or encumbrance whatsoever,
Provided, That the
law of alienation and descent in force in the State of Oregon shall
apply thereto after patents have been executed, except as herein
otherwise provided."
The allotment to Joe Kalyton was made on April 21, 1891. Before
that allotment, Congress, on February 8, 1887, c. 119, 24 Stat.
388, passed what is known as the General Allotment Act. By that
act, as said in
United States v. Rickert, 188 U.
S. 432,
188 U. S. 435,
provision was made for the allotment of lands in severalty to
Indians on the various reservations, and for extending the
protection of the laws of the United States and the territories
over the Indians. To that end, the President was authorized
whenever, in his opinion, a reservation or any part thereof was
advantageous for agriculture and grazing purposes, to cause it or
any part thereof to be surveyed or resurveyed, if necessary, and to
allot the lands in the reservation in severalty to any Indian
located thereon, in certain quantities specified in the statute,
the allotments to be made by special agents appointed for that
purpose, and by the
Page 204 U. S. 465
agents in charge of the special reservations on which the
allotments were made. In one of the provisos of the first section
of the act, it was declared --
"That where the treaty or act of Congress setting apart such
reservation provides for the allotment of lands in severalty in
quantities in excess of those herein provided, the President, in
making allotments upon such reservation, shall allot the lands to
each individual Indian belonging thereon in quantity as specified
in such treaty or act."
A provision of like nature to that heretofore excerpted from the
Act of March 3, 1885, was embodied in section 5 of the General
Allotment Act of 1887, reading as follows (24 Stat. 389):
"SEC. 5. That, upon the approval of the allotments provided for
in this act by the Secretary of the Interior, he shall cause
patents to issue therefor in the name of the allottees, which
patents shall be of the legal effect, and declare, that the United
States does and will hold the land thus allotted, for the period of
twenty-five years, in trust for the sole use and benefit of the
Indian to whom such allotment shall have been made, or, in case of
his decease, of his heirs, according to the laws of the state or
territory where such land is located, and that, at the expiration
of said period, the United States will convey the same by patent to
said Indian, or his heirs, as aforesaid, in fee, discharged of said
trust, and free of all charge or encumbrance whatsoever:
Provided, That the President of the United States may, in
any case, in his discretion, extend the period. And if any
conveyance shall be made of the lands set apart and allotted as
herein provided, or any contract made touching the same, before the
expiration of the time above mentioned, such conveyance or contract
shall be absolutely null and void:
Provided, That the law
of descent and partition in force in the state or territory where
such lands are situate shall apply thereto after patents therefor
have been executed and delivered, except as herein otherwise
provided. "
Page 204 U. S. 466
The supervisory power possessed by the United States over
allotted lands while the title remains in the United States was
pointed out in the opinion in
United States v. Rickert,
supra, a case which came to this Court upon questions
certified from a circuit court of appeals. The suit was instituted
under the direction of the Attorney General of the United States
for the purpose of restraining the collection of taxes alleged to
be due the County of Roberts, South Dakota, in respect of certain
permanent improvements on, and personal property used in the
cultivation of, lands in that county occupied by members of the
Sisseton band of Sioux Indians in the State of South Dakota. The
lands referred to had been allotted under the provisions of an
agreement made in 1889, ratified by an act of Congress in 1891, and
more particularly under section 5 of the Act of February 8, 1887,
heretofore referred to. Discussing the interest which the Indians
primarily acquired in the allotted land, it was concluded that
"the United States retained the legal title, giving the Indian
allottee a paper or writing improperly called a patent, showing
that at a particular time in the future, unless it was extended by
the President, he would by entitled to a regular patent conveying
the fee. . . . These lands are held by the United States in
execution of its plans relating to the Indians -- without any right
in the Indians to make contracts in reference to them, or to do
more than to occupy and cultivate them -- until a regular patent
conveying the fee was issued to the several allottees."
And the Court approvingly quoted the following passage from an
opinion of the Attorney General, delivered in 1888, advising that
allotments of lands provided for in an act of Congress were exempt
from state or territorial taxation,
"that the lands covered by the act are held by the United States
for the period of twenty-five years in trust for the Indians, such
trust being an agency for the exercise of a federal power, and
therefore outside the province of state or territorial
authority."
It was decided, in view of the object to be accomplished
Page 204 U. S. 467
by allotting Indian lands in severalty, that it was not within
the power of a state to tax either the permanent improvements made
on allotted lands or the personal property consisting of cattle,
horses, and other property of like character which might be
furnished to Indians for use upon such land. And, answering a
question as to whether the United States had such an interest in
the controversy or in its subjects as entitled it to maintain the
suit, the Court declared (p.
186 U. S. 444)
that no argument to establish that proposition was necessary. Nor
are the principles which were thus announced as to the nature and
character of an allotment of Indian lands and the interest of the
United States therein as trustee before the expiration of the
period for their final disposition in any way affected by the
decision in
In re Heff, 197 U. S. 488,
dealing with the subjection of allottee Indians in their personal
conduct to the police regulations of the State of which they had
become citizens.
The present suit was commenced in 1899. At that time, there was
in force an act approved August 15, 1894, c. 290, 28 Stat. 286, in
which it was provided
inter alia, as follows (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 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 it was provided that
"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. "
Page 204 U. S. 468
Considering the act of 1894 in
Hy-Yu-Tse-Mil-King v.
Smith, 194 U. S. 413,
the Court said:
"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's 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
Rickert case settled that, as the necessary result
of the legislation of Congress, the United States retained such
control over allotments as was essential to cause the allotted land
to inure during the period in which the land was to be held in
trust "for the sole use and benefit of the allottees." As observed
in the
Smith case,
194 U. S. 408,
prior to the passage of the act of 1894, "the sole authority for
setting disputes concerning allotments resided in the Secretary of
the Interior." This being settled, it follows that, prior to the
act of Congress of 1894, controversies necessarily involving a
determination of the title, and, incidentally, of the right to the
possession, of Indian allotments while the same were held in trust
by the United States, were not primarily cognizable by any court,
either state or federal. It results, therefore, that the act of
Congress of 1894, which delegated to the courts of the United
States the power to determine such questions, cannot be construed
as having conferred upon the state courts the authority to pass
upon federal questions over which, prior to the act of 1894, no
court had any authority. The purpose of the act of 1894 to continue
the exclusive federal control over the subject is manifested by the
provision of that act which commands that a judgment or decree
rendered
Page 204 U. S. 469
in any such controversy shall be certified by the court to the
Secretary of the Interior. By this provision, as pointed out in the
Smith case,
supra, the United States consented to
submit its interest in the trust estate and the future control of
its conduct concerning the same to the result of the decree of the
courts of the United States -- a power which such courts could
alone exercise by virtue of the consent given by the act. The
subsequent legislation of Congress, instead of exhibiting a
departure from this policy, confirms it. By the amendments to the
act of 1894 approved February 6, 1901, c. 217, 31 Stat. 760, it is
expressly required that in suits authorized to be brought in the
circuit courts of the United States respecting allotments of Indian
lands, "the parties thereto shall be the claimant as plaintiff and
the United States as party defendant." Nothing could more clearly
demonstrate than does this requirement the conception of Congress
that the United States continued, as trustee, to have an active
interest in the proper disposition of allotted Indian lands, and
the necessity of its being made a party to controversies concerning
the same for the purpose of securing a harmonious and uniform
operation of the legislation of Congress on the subject.
The suggestion made in argument that the controversy here
presented involved the mere possession, and not the title, to the
allotted land is without merit, since the right of possession
asserted of necessity is dependent upon the existence of an
equitable title in the claimant under the legislation of Congress
to the ownership of the allotted lands. Indeed, that such was the
case plainly appears from the excerpt which we have made from the
concluding portion of the opinion of the Supreme Court of
Oregon.
Because, from the considerations previously stated, we are
constrained to the conclusion that the court below was without
jurisdiction to entertain the controversy, we must not be
considered as intimating an opinion that we deem that the
principles applied by the court in disposing of the merits of the
case were erroneous.
Page 204 U. S. 470
The judgment of the Supreme Court of Oregon is reversed, and
the cause remanded to that court for further proceedings not
inconsistent with this opinion.
THE CHIEF JUSTICE, MR. JUSTICE BREWER, and MR. JUSTICE PECKHAM
dissent.
