The power of supervision and correction vested in the Secretary
of the Interior over Indian allotments is not unlimited and
arbitrary; it cannot be exercised to deprive any person of land the
title to which has lawfully vested.
However reluctant the courts may be to interfere with the
executive department, they must prevent attempted deprivation of
lawfully acquired property, and it is their duty to see that rights
which have become vested pursuant to legislation of Congress are
not disturbed by any action of an executive officer.
Page 216 U. S. 241
The head of a department of the government is bound by the
provisions of congressional legislation, which he cannot violate,
however laudable may be his motives.
After all the requirements of the Act of Congress providing for
distribution of Indian lands have been complied with, and the
statutory period has elapsed without contest, the title of the
allottee becomes fixed and absolute, and only the ministerial duty
of execution and delivery of the patent remains for the Secretary
of the Interior.
The performance of a ministerial duty by an executive officer
can be compelled by mandamus, and so held as to the delivery of
patent to land selected by a Cherokee Indian allottee after all
requirements of the Acts of Congress under which the election was
made had been complied with.
30 App.D.C. 165 affirmed.
The facts are stated in the opinion.
Page 216 U. S. 244
MR. JUSTICE BREWER delivered the opinion of the Court.
The defendant in error, a citizen and resident of the Choctaw
Nation in the Indian territory, whose enrollment had been approved
by the Secretary of the Interior and who was entitled to an
allotment under the acts of Congress, on December 20, 1906, filed
her petition in the Supreme Court of the District of Columbia for a
mandamus compelling the Secretary of the Interior to deliver, or
cause to be delivered, to her a patent to a tract of land
consisting of forty acres, located in the Choctaw Nation in the
Indian Territory, and which she had selected in accordance with
law. The then Secretary of the Interior, Ethan A. Hitchcock, filed
an answer, giving his reasons for declining to issue that patent.
Subsequently, James R. Garfield, becoming Secretary of the
Interior, was substituted as defendant, and filed an amended
answer. A demurrer to the amended answer having been sustained,
Page 216 U. S. 245
judgment was entered as prayed for, which was affirmed by the
Court of Appeals of the District, and thereupon the case was
brought to this Court. After the record had been filed in this
Court, and during the present term, Richard A. Ballinger, the
successor of Secretary Garfield, was substituted for him as
plaintiff in error.
The facts essential to a decision are briefly these: by treaty
between the Choctaw Nation and the United States dated September
27, 1830 (7 Stat. 333) and the proclamation of the President of the
United States of February 24, 1831, the United States caused
"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."
By subsequent treaties and agreements the Choctaw and Chickasaw
Nations were consolidated. The nations have not become extinct, and
are still resident on the lands. The Act of June 28, 1898, 30 Stat.
495, c. 517, authorized the allotment of the land to the Choctaws
and Chickasaws in fair and equal proportions, and provided that
this should be done under the direction of the Secretary of the
Interior; also that, as soon as practicable after the completion of
the said allotment, the principal chief of the Choctaw Nation and
the governor of the Chickasaw Nation should jointly execute, under
their hands and the seals of their respective nations, and deliver
to their allottees, patents conveying to them all the right, title,
and interest of the Indians in and to the lands allotted. The Act
of May 31, 1900, 31 Stat. 221, c. 598, also authorized the
Secretary of the Interior to lay out, survey, and plat the sites of
such towns as then had a population of two hundred or more, and
that he might, upon the recommendation of the Commission to the
Five Civilized Tribes at any time before the allotment, set aside
and reserve, not exceeding 160 acres in any one tract at such
stations as were or should be established on the line of any
railway which should be constructed or be in process of
construction in or through either of said nations
Page 216 U. S. 246
prior to the allotment of the lands therein. These townsite
provisions were incorporated into the act of March 1, 1901, 31
Stat. 848, 851, c. 675.
On October 26, 1900, the townsite of Mill Creek, containing
155.45 acres, on which there was a railway station, was designated
and laid out. The land in controversy is adjacent to that townsite.
Section 45 of the Act of July 1, 1902, 32 Stat. 641, c. 1362,
authorized an addition to such townsites on the recommendation of
the Commission to the Five Civilized Tribes, not exceeding 640
acres, and the Appropriation Act of March 3, 1903, 32 Stat. 982,
996, c. 994, appropriated $25,000 to pay the townsite expenses,
with this proviso:
"That the money hereby appropriated shall be applied only to the
expenses incident to the survey, platting, and appraisement of
townsites heretofore set aside and reserved from allotment:
And
provided further, That nothing herein contained shall prevent
the survey and platting at their own expense of townsites by
private parties where stations are located along the lines of
railroads, nor the unrestricted alienation of lands for such
purposes, when recommended by the Commission to the Five Civilized
Tribes and approved by the Secretary of the Interior."
On February 17, 1903, the Commission to the Five Civilized
Tribes made recommendation that this adjacent land be segregated as
an addition to Mill Creek, under the provisions of the Act of July
1, 1902,
supra. This recommendation, having been approved
by the Commissioner of Indian Affairs, was by him transmitted to
the Secretary of the Interior, who, on March 18, 1903, addressed a
letter to the Commission, reciting the segregation of Mill Creek
townsite on October 26, 1900, and the recommendation of the
Commission, approved by the Commissioner of Indian Affairs, and
said: "The Department does not deem it advisable to make the
recommendation, in view of the Act of March 3, 1903." On July 23,
1903, the relator selected as her allotment the land in
controversy, upon
Page 216 U. S. 247
which were her buildings and improvements. This was received by
the Commission, and, nine months thereafter, the time prescribed by
statute for contest (Act of July 1, 1902,
supra) having
elapsed, and no contest of her right to the designated allotment
having been made, a certificate of allotment was issued and
delivered to her. Thereafter the principal chief of the Choctaw
Nation and the governor of the Chickasaw Nation jointly executed a
patent under the seals of their respective nations conveying to her
the title of said nations in and to said forty acres of land.
Sections 23 and 24 of the Act of July 1, 1902,
supra, read
as follows:
"SEC. 23. Allotment certificates issued by the Commission to the
Five Civilized Tribes shall be conclusive evidence of the right of
any allottee to the tract of land described therein, and the United
States Indian agent at the Union Agency shall, upon the application
of the allottee, place him in possession of his allotment, and
shall remove therefrom all persons objectionable to such allottee,
and the Acts of the Indian agent hereunder shall not be controlled
by the writ or process of any court."
"SEC. 24. Exclusive jurisdiction is hereby conferred upon the
Commission to the Five Civilized Tribes to determine, under the
direction of the Secretary of the Interior, all matters relating to
the allotment of land."
The Secretary alleged in his answer that, after the issue of the
allotment to relator, and on or about March 11, 1905, his
predecessor in office was advised that the land had then, and prior
to its selection by petitioner, been under urban occupancy, and on
June 19, 1905, he ordered an investigation, and finding such to be
the fact, and that the inhabitants had expended large sums in
building upon and improving their tracts, and were entitled to be
protected, he did, on October 23, 1905, by virtue of the powers in
him vested, segregate the lands for townsite purposes, and cancel
petitioner's allotment thereof, with leave to select other lands to
fill her right to tribal lands in severalty. The patent that had
previously been executed
Page 216 U. S. 248
for delivery to her was returned, and remained on file in the
office of the Commissioner of Indian Affairs, to be cancelled.
The Interior Department has general control over the affairs of
the Indians -- wards of the government. In addition, the Secretary
of the Interior was by these several acts specially charged with
the duty of supervising the action of the Commission to the Five
Civilized Tribes in making the allotments authorized by those acts.
On both of these grounds, he claims authority to have done what he
did, and that his acts in that respect are not subject to review by
the courts. We have no disposition to minimize the authority or
control of the Secretary of the Interior, and the court should be
reluctant to interfere with his action. But, as said by Mr. Justice
Field in
Cornelius v. Kessel, 128 U.
S. 456,
128 U. S.
461:
"The power of supervision and correction is not an unlimited or
an arbitrary power. It can be exerted only when the entry was made
upon false testimony, or without authority of law. It cannot be
exercised so as to deprive any person of land lawfully entered and
paid for. By such entry and payment, the purchaser secures a vested
interest in the property and a right to a patent therefor, and can
no more be deprived of it by order of the Commissioner than he can
be deprived by such order of any other lawfully acquired property.
Any attempted deprivation in that way of such interest will be
corrected whenever the matter is presented so that the judiciary
can act upon it."
See also Orchard v. Alexander, 157 U.
S. 372,
157 U. S. 383,
in which it was declared:
"Of course, this power of reviewing and setting aside the action
of the local land officers is, as was decided in
Cornelius v.
Kessel, 128 U. S. 456, not arbitrary and
unlimited. It does not prevent judicial inquiry.
Johnson v.
Towsley, 13 Wall. 72. The party who makes proofs
which are accepted by the local land officers, and pays his money
for the land, has
Page 216 U. S. 249
acquired an interest of which he cannot be arbitrarily
dispossessed."
Whenever, in pursuance of the legislation of Congress, rights
have become vested, it becomes the duty of the courts to see that
those rights are not disturbed by any action of an executive
officer, even the Secretary of the Interior, the head of a
department. However laudable may be the motives of the Secretary,
he, as all others, is bound by the provisions of congressional
legislation. It must be borne in mind that this allotment provided
by Congress contemplated a distribution among the Choctaw and
Chickasaw Indians of the lands that belonged to them to common.
They were the principal beneficiaries, and their titles to the
lands they selected should be protected against the efforts of
outsiders to secure them. White men settling on townsites were not
the principal beneficiaries. Congress, it is true, authorized
townsites, and the Town of Mill Creek was established in compliance
with the statute. It further provided for an enlargement of any
townsite upon the recommendation of the Commission to the Five
Civilized Tribes. That recommendation was made in respect to the
Town of Mill Creek, but disapproved by the Secretary of the
Interior. Thereafter, the relator selected the land in controversy,
a tract of forty acres, on which were her improvements. Notice was
given, as required, and the time in which contest could be made --
nine months -- elapsed. Thereupon, as provided by the statute, the
title of the allottee to the land selected became fixed and
absolute, and the chief authorities of the Choctaw and Chickasaw
Nations executed to her a patent, as required, of the land
selected. The fact that there may have been persons on the land is
immaterial. They were given nine months to contest the right of the
applicant. They failed to make contest, and her rights became
fixed. Thereafter, the Secretary of the Interior had nothing but
the ministerial duty of seeing that a patent was duly executed and
delivered.
That the performance of a ministerial duty can be compelled
Page 216 U. S. 250
by mandamus has been often adjudged. As said by Mr. Justice
Peckham in
Roberts v. United States, 176 U.
S. 221,
176 U. S.
229:
"The law relating to mandamus against a public officer is well
settled in the abstract, the only doubt which arises being whether
the facts regarding any particular case bring it within the law
which permits the writ to issue where a mere ministerial duty is
imposed upon an executive officer, which duty he is bound to
perform without any further question. If he refuse under such
circumstances, mandamus will lie to compel him to perform his
duty."
See also Noble v. Union River Logging Co., 147 U.
S. 16, in which Mr. Justice Brown cites many cases and
draws distinctions between them.
But the authorities come more closely to the facts in this case.
In
Barney v. Dolph, 97 U. S. 652,
97 U. S. 656,
Mr. Chief Justice Waite said:
"The execution and delivery of the patent after the right to it
is complete are the mere ministerial acts of the officer charged
with that duty."
In
Simmons v. Wagner, 101 U. S. 260,
101 U. S. 261,
the same Chief Justice repeated the proposition in these words:
"Where the right to a patent has once become vested in a
purchaser of public lands, it is equivalent, so far as the
government is concerned, to a patent actually issued. The execution
and delivery of the patent after the right to it has become
complete are the mere ministerial acts of the officers charged with
that duty.
Barney v. Dolph, 97 U. S.
652;
Stark v. Starr, 6 Wall.
402."
In
United States v. Schurz, 102 U.
S. 378,
102 U. S. 403,
Mr. Justice Miller, delivering the opinion of the Court, said:
"No further authority to consider the patentee's case remains in
the land office. No right to consider whether he ought, in equity
or on new information, to have the title or receive the patent.
There remains the duty, simply ministerial, to deliver the patent
to the owner -- a duty which,
Page 216 U. S. 251
within all the definitions, can be enforced by the writ of
mandamus."
We think the judgment of the Court of Appeals of the District of
Columbia affirming the judgment of the Supreme Court of the
District was right, and it is
Affirmed.