While the promise of the United States to allot 160 acres to
each member of the Wichita band of Indians under the Act of March
2, 1895, 28 Stat. 876, 895, may confer a right on every actual
member of the band, the primary decision as to who the members are
must come from the Secretary of the Interior, and, in the absence
of any indication in the act to allow an appeal to the courts for
applicants who are dissatisfied, mandamus will not issue to require
the Secretary to approve the selection of one claiming to be an
adopted member of the tribe but whose application the Secretary has
denied.
In view of long established practice of the Department of the
Interior, and the undoubted power of Congress over the Indians,
this Court will hesitate to construe the language of §§ 441, 463,
Rev.Stat., as not giving the Department of the Interior control
over the adoption of whites into the Indian tribes.
Where the Secretary of the Interior has authority to pass on the
right of one claiming to be a member of a band of Indians to select
land under an agreement ratified by an act of Congress, his
jurisdiction does not depend upon his decision's being right.
26 App.D.C. 290 affirmed.
The facts are stated in the opinion.
Page 205 U. S. 82
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a petition for mandamus to require the Secretary of the
Interior to approve the selection and taking of
Page 205 U. S. 83
one hundred and sixty acres by the relator out of the lands
ceded to the United States by the Wichita and affiliated bands of
Indians, under an agreement of June 4, 1891, ratified by the Act of
Congress of March 2, 1895, c. 188, 28 Stat. 876, 895-897. The
petition alleges that the relator is a white man, married to a
Wichita woman, and thereby a member of the tribe, and that his
adoption was confirmed and recognized in various ways set forth. By
the second article of the agreement, as part of the consideration,
the United States agreed that there should be allotted to each
member of the said bands, native and adopted, one hundred and sixty
acres out of the said lands, to be selected by the members, with
qualifications not in question here. The fourth article contains
provisions as to the title to allotments when they "shall have been
selected and taken as aforesaid, and approved by the Secretary of
the Interior." After a demurrer to the petition, which was
overruled, 19 App.D.C. 333, the Secretary answered, alleging that
he had examined and considered the application of the relator, and
on July 3, 1901, had reached and announced a decision that the
relator was not a member of the tribe, and thereupon had denied the
application. The relator moved for a peremptory mandamus, which was
denied, and filed a demurrer, which was overruled, and thereupon
pleaded that the Secretary did not by the decision alleged, decide
that the relator was not a member of the tribe, and for that reason
deny him the allotment. Issue was joined and evidence taken, and
after a hearing, judgment was entered for the respondent and the
petition dismissed. The judgment was affirmed on appeal, 26
App.D.C. 290, and then the case was brought to this Court. The
issues here are those raised by the plea, the demurrer to the
answer, and the motion for a peremptory writ.
It is argued that the answer admits the averments of the
petition, as it does not deny them in terms, and that therefore it
must be taken that there was no question concerning the relator's
membership for the Secretary to decide. His
Page 205 U. S. 84
identity was not disputed, nor, it is said, the acts of adoption
that took place long before the relator applied to have his
selection approved, and therefore the Secretary's duty was merely
ministerial, to carry out the mandate of the act. But the
admission, at most, is only the admission implied by a plea of
estoppel by judgment. In truth, it hardly goes so far as that, for
when a party says that he is the proper person to decide the
question raised, and that he has decided it against the party
raising it, he hardly can be said to admit that his decision was
wrong.
The approval of the Secretary, required by the agreement, must
include, as one of its elements, the recognition of the applicant's
right. If a mere outsider were to make a claim, it would have to be
rejected by someone, and the Secretary is the natural, if not the
only, person to do it. No list or authentic determination of the
parties entitled is referred to by the agreement, so as to narrow
the Secretary's duty to identification or questions of decent in
case of subsequent death. The right is conferred upon the members
of the bands, but the ascertainment of membership is left wholly at
large. No criteria of adoption are stated. The Secretary must have
authority to decide on membership in a doubtful case, and if he has
it in any case, he has it in all. Furthermore, as his decision is
not a matter of any particular form, his answer saying that he has
decided the case is enough; for even if he had not decided it
before, such an answer would announce a decision sufficiently by
itself.
But the answer was not confined to a general allegation that the
Secretary had decided the case. It gave the date of the decision,
and the relator, under his plea, put the decision in evidence. It
was a letter which seemed to admit that the relator had been
adopted by the Indians as a member of their tribe, but assumed that
the adoption must have been approved by the Indian Office to be
valid, as provided by a regulation of that Department. The relator
contends that the validity of the adoption was a matter purely
of
Page 205 U. S. 85
Indian law or custom, and that the Department could not take it
under control. Probably it would have been unfortunate for the
Indians if such control had not been exercised, as the temptation
to white men to go through an Indian marriage for the purpose of
getting Indian rights is sufficiently plain. We are disposed to
think that authority was conferred by the general words of the
statutes. Rev.Stat. §§ 441, 463,. By the latter section:
"The Commissioner of Indian Affairs shall, under the direction
of the Secretary of the Interior, and agreeably to such regulations
as the President may prescribe, have the management of all Indian
affairs, and of all matters arising out of Indian relations."
We should hesitate a good deal, especially in view of the long
established practice of the Department, before saying that this
language was not broad enough to warrant a regulation obviously
made for the welfare of the rather helpless people concerned. The
power of Congress is not doubted. The Indians have been treated as
wards of the nation. Some such supervision was necessary, and has
been exercised. In the absence of special provisions, naturally it
would be exercised by the Indian Department.
However, it hardly is necessary to pass upon that point.
Although the answer gave the decision a date, that did not open it
for consideration. If the Secretary had authority to pass on the
relator's right to select land, his jurisdiction did not depend
upon his decision's being right. By alleging that he had denied the
application, he did not invoke the revision of his reasons by a
court, even when he saw fit to add the date. He raised no question
of law, but simply stood on his authority and put forward his
decision as final. As we have implied, such an answer affirms not
merely the past, but the present determination of the answering
tribunal, and must be assumed to be based on reasons that the
respondent deems adequate. Even if those given in the letter of
July 3, 1901, had been bad, they could not be taken to exhaust the
Secretary's grounds. He has not disclosed to
Page 205 U. S. 86
the court any statement of those grounds purporting to be
exhaustive and complete, and the court cannot make an inquisition
into his mental processes to see whether they were correct.
See
DeCambra v. Rogers, 189 U. S. 119,
189 U. S. 122.
We doubt if Congress meant to open an appeal to the courts in
all cases where an applicant is dissatisfied. Of course, the
promise of the United States that there shall be allotted one
hundred sixty acres to each member of the Wichita band may be said
to confer an absolute right upon every actual member of the band.
But someone must decide who the members are. We already have
expressed the opinion that the primary decision must come from the
Secretary. There is no indication of an intent to let applicants go
farther. There are insuperable difficulties in the way of at least
this form of suit, and the Department of the Interior generally has
been the custodian of Indian rights.
Judgment affirmed.