The grant in letters patent, issued in pursuance of the Treaty
of Dancing Rabbit Creek of September 27, 1830, 7 Stat. 333,
conveying the tract described to the Choctaw Indians in fee simple
to them and their descendants to inure to them while they should
exist as a nation and live thereon, was a grant to the Choctaw
Nation, to be administered by it as such; it did not create a trust
for the individuals then comprising the nation and their respective
descendants in whom as tenants in common the legal title would
merge with the equitable title on dissolution of the nation.
The facts are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity purporting to be brought by and on
Page 215 U. S. 57
behalf of some thirteen thousand persons,
"all persons of Choctaw or Chickasaw Indian blood and descent,
and members of a designated class of persons for whose exclusive
use and benefit a special grant was made"
of certain property in Oklahoma. The principal defendants are
the Secretary of the Interior; McCurtain, Chief of the Choctaws;
Johnston, Governor of the Chicasaws, and all persons whose names
appear with theirs on the rolls of "citizens" of the Choctaw and
Chickasaw Nations, respectively, and all persons whose names appear
upon the "freedmen" rolls of those Nations, as approved by the
Secretary of the Interior on or before March 4, 1907, these being
the persons to whom the Secretary of the Interior is proceeding to
allot the above-mentioned property, being all the property of the
tribe. The main object of the bill is to restrain the allotment to
the defendants, and to undo it so far as it has taken place, to
establish the title of the plaintiffs for the purpose of allotment,
and to have a new distribution decreed. A firm of lawyers is joined
on the allegation that they have received a portion of the property
under a fraudulent arrangement. The bill was demurred to for want
of equity and for want of jurisdiction in the court.
The circuit court examined the treaty and conveyance under which
the plaintiffs claim, and held that they did not confer the rights
alleged in the bill; that the right to share in the distribution
depended on membership in one of the two tribes, except in the case
of freedmen, specially provided for; that who were members of the
respective tribes, and entitled to enrollment as such, was a matter
for Congress to determine; that Congress had adopted certain rolls
when finally approved by the Secretary of the Interior; that the
Secretary had acted and the plaintiffs had been excluded; that his
action was final, and that the court had no jurisdiction in the
case. The demurrer to the jurisdiction was sustained, the bill was
dismissed, and the plaintiffs appealed to this Court.
The plaintiffs found their claim upon the Choctaw Treaty of
Dancing Rabbit creek, September 27, 1830, Article 2, 7 Stat.
Page 215 U. S. 58
333, and letters patent of March 23, 1842, coupled with a Treaty
between the Choctaws and Chickasaws of January 17, 1837, ratified
by the Senate March 24, 1837, 11 Stat. 573. By Article 2 of the
Treaty of 1830,
"the United States, under a grant specially to be made by the
President of the United States, shall cause to be conveyed to the
Choctaw Nation a tract of country west of the Mississippi River, in
fee simple, to them and their descendants, to inure to them while
they shall exist as a nation and live on it,"
with the boundaries. The letters patent recite this article,
and, "in execution of the agreement," grant the described tract, to
have and to hold the same
"as intended to be conveyed by the aforesaid article 'in fee
simple, to them and their descendants, to insure to them while they
shall exist as a nation and live on it,' liable to no transfer or
alienation except to the United States or with their consent."
The treaty with the Chickasaws gave the Chickasaws a district
within the limits of the Choctaws' country,
"to be held on the same terms that the Choctaws now hold it,
except the right of disposing of it, which is held in common with
the Choctaws and Chickasaws, to be called the Chickasaw district of
the Choctaw Nation."
The plaintiffs say that the patent conveyed the legal title to
the Choctaw Nation in trust for such persons as were members of the
tribe at the date of the treaty, or of the Chickasaw tribe at the
date of the treaty with them, and their respective descendants, and
that, upon the dissolution of the Nation, the legal title merged
with the equitable title, and the designated class became the
absolute owners of the property as tenants in common.
The plaintiffs, in aid of their view, refer to various
indications that the policy of the United States already was
looking toward the disintegration of the Indian tribes, point out
that the words on which they rely were interlined in the government
draft at the instance of the Indians, and from these and other
circumstances argue that their construction is confirmed. They say
that the dominant phrase is "in fee simple to them and their
descendants," and that the use of the plural "them"
Page 215 U. S. 59
shows a transition from the Nation as formal grantee to the
members as beneficiaries. They say that "descendants" was used
instead of "heirs" or "children" to avoid questions of legitimacy,
or giving an absolute title to living members and their children,
and to establish a principle of devolution suitable to the mode of
life and unions in those Indian tribes. They conclude that the
words "inure to them while they shall exist as a nation and live on
it" only mark the duration of the legal title, and do not cut down
the equitable right conferred by the earlier words.
As we cannot agree with this construction, it will be
unnecessary to consider many of the further allegations of the
bill. The foundation of the plaintiffs' case is upon the words of
the treaty and the patent that we have set forth. Those words seem
to us to convey a different meaning on their face -- a meaning that
would not be changed, but rather confirmed, if we were to refer at
length to the earlier and later dealings with the tribes, which we
shall not need to do. We should mention, however, that the United
States already had ceded this tract to the Choctaw Nation, with no
qualifying words, by the Treaty of October 18, 1820, Article 2, 7
Stat. 210.
Choctaw Nation v. United States, 119 U. S.
1,
119 U. S. 38. The
Treaty of 1830 only varied the description a little, and provided
for a special patent. But it would not better the plaintiffs' case
if the Treaty of 1830 were the single root of their grant. In a
grant to the Choctaw Nation as a nation, it was natural, as in
other cases, to use some words of perpetuity. Of course, the United
States could use what words it saw fit to manifest its purpose, but
the habit derived from private conveyances would be likely to
prevail, and as, in such instruments, the gift of a fee is
expressed by adding to the name of the grantee the words "and his
heirs," or, in case of a corporation, although unnecessary, "its
successors and assigns," here, also, some addition was to be
expected to the mere name of the grantee. The word "Nation" is used
in the treaty as a collective noun, and, as such, according to a
common usage, is accompanied by a plural
Page 215 U. S. 60
verb in the very next article. ("The Choctaw Nation of Indians
consent and hereby cede.") Therefore, the second article says "to
them", rather than "to it," just as it says "while they
[
i.e., the Nation] shall exist as a nation," and it adds
to the untechnical "in fee simple" untechnical words of limitation
of a kind that would indicate the intent to confine the grant to
the Nation, which "successors" would not, and at the same time, to
imply nothing as to the rules for inheritance of tribal rights, as
"heirs" might have seemed to do. We may compare "for the government
of the Choctaw Nation of red people and their descendants," in
Article 4. The word was addressed to the Indian mind.
There is not a suggestion of any trust in the language to either
the technical or the unlearned reader, and it is most unlikely that
the United States would have attempted to impose one upon the
Choctaws in favor of the existing members of the tribe in the very
"treaty" that dealt with them as a
quasi-independent
nation, recognized by Article 5 as having the right to make war,
and that, by the fourth article, bound the United States to secure
to that nation "the jurisdiction and government of all the persons
and property that may be within their limits west," etc. It is true
that, in further promising to secure the Nation from all laws
except those enacted by their own national councils, the fourth
article adds, "not inconsistent with the Constitution, treaties,
and laws of the United States;" but this addition is far from
suggesting that a constitutional right of property has been
conferred upon a designated class, that might be enforced in a
circuit court of the United States by a bill in equity against what
was called a Nation. How far anyone was from that understanding, or
from doubting that all the rights granted by the United States were
in the Choctaw Nation, is shown by the treaty with the Chickasaws
upon which the plaintiffs rely. The Nation had no right to make
that treaty as it did if it was subject to the trust supposed.
Again, the limitation of time, "while they shall exist as a nation
and live on it" shows that
Page 215 U. S. 61
the grant has reference to the corporate existence of the Nation
as such, and very plainly qualifies the absoluteness of the earlier
words, "in fee simple." The suggestion that it limits the duration
of the legal title only, but leaves a trust outstanding, is simply
arbitrary. If the plural signifies the members of a class
constituted
cestuis que trustent, the limitation would
attach to the trust. But the only answer necessary is that no such
separation or intent can be discovered in the words.
What we have said shows another sufficient answer to the
plaintiffs' claim. They say and argue, as they must, in order to
make out their right to a distribution to themselves, that the
Choctaws and Chickasaws no longer exist as nations. But, if so, the
grant also was at an end when the nations ceased to be, and it
rested with the bounty of the United States to decide what should
be done with the land, except so far as it already had been decided
by treaties or statutes upon which the plaintiffs do not and cannot
rely. It is said that, by Article 18, in case of any well founded
doubt as to the construction of the treaty, it is to be construed
most favorably toward the Choctaws; but there is no well founded
doubt, except whether the construction contended for would have
been regarded as favorable to the Choctaws, since it would have cut
down the autonomy that the treaty so carefully expressed.
See
further Stephens v. Cherokee Nation, 174 U.
S. 445,
174 U. S. 488;
Cherokee Nation v. Hitchcock, 187 U.
S. 294,
187 U. S. 307;
Lone Wolf v. Hitchcock, 187 U. S. 553,
187 U. S.
568.
The residue of the bill becomes immaterial upon the failure of
the plaintiffs to make out a title under the treaty and patent. It
refers to the Act of June 28, 1898, c. 517, 30 Stat. 495, and the
earlier statutes leading up to it, which established a commission,
ordered it to prepare correct rolls of citizenship, and provided,
by § 21 of the Act of 1898, that the rolls so made, when approved
by the Secretary of the Interior, should be final (
see
also Acts of March 3, 1901, c. 832, 31 Stat. 1058, 1077). By §
11, a division
Page 215 U. S. 62
was to be made among the "citizens" of the tribes according to
the rolls, and by § 12 the allottees were to have undisturbed
possession when the report of the allotments had been made to the
Secretary of the Interior and confirmed by him. By § 29 an
agreement with the Choctaws and Chickasaws on the matter was
ratified, and, by Act of July 1, 1902, c. 1362, 32 Stat. 641, a
further agreement was ratified, which again excluded all except
those whose names were on the roll. Art. 35. The bill charges that
these agreements, as well as a part of the Act of 1898, were void
as excluding some of the plaintiffs who were not residents of the
Nation on June 28, 1898, and as not having been approved by the
class, or a majority of the class, alleged to have been designated
by the treaty and patent that we have discussed. The bill goes on
to allege that rolls were prepared by the commission, and approved
by the Secretary, within the time allowed by the statutes (Act of
April 26, 1906, c. 1876, § 2, 34 Stat. 137), and that the time has
expired, but the rolls were not made in conformity to the Act of
1898, and are not correct, but fraudulent, in various particulars
set forth.
But these allegations make out no case for the plaintiffs. It is
said that the statutes recognize individual rights as already
existing. It is true that, by a Treaty of June 22, 1855, 11 Stat.
611, the United States guaranteed the lands
"to the members of the Choctaw and Chickasaw tribes, their heirs
and successors, to be held in common; so that each and every member
of either tribe shall have an equal, undivided interest in the
whole,"
with provisos. But the plaintiffs do not claim under this
treaty, or mention it in their bill, or a Treaty of April 28, 1866,
14 Stat. 769, by Articles 11-36 of which the change from common to
individual ownership was agreed, and it was provided that
unselected land should "be the common property of the Choctaw and
Chickasaw Nations, in their corporate capacities," etc. Art. 33.
They might be descendants or the members of the tribe as it was in
1839 or 1842, and yet not members or heirs of members of the
tribe
Page 215 U. S. 63
of 1854; therefore, it is unnecessary to construe this treaty.
Neither do the plaintiffs claim under any title to be derived from
the statute providing for distribution according to the rolls of
citizenship. They do not allege that they are citizens, or attempt
to bring themselves within any grant later than the treaty and
patent that we have discussed. They disclose that their names are
not upon the rolls, and that the decision of the Secretary of the
Interior has been against them, and they show no reason for our not
accepting the rolls and decision as final according to the terms of
distributing acts.
West v. Hitchcock, 205 U. S.
80;
Garfield v. United States, 211 U.
S. 249,
211 U. S.
259.
Decree affirmed.