The Nelson Act of January 14, 1889, 25 Stat. 642, c. 24,
providing for allotment of lands of Chippewa Indians in the White
Earth Reservation, was still effective as to those Indians who had
not received allotments thereunder when the Steenerson Act of April
24, 1904, 33 Stat. 589, c. 1786, was enacted, and such Indians were
not required to await proceedings under the Steenerson Act to
obtain their original allotments under the Nelson Act.
The Steenerson Act is part of a plan of legislation in regard to
Indian allotments, and modified and changed the prior general
allotment acts of February 8, 1887, and February 28, 1891, by
superseding certain of their provisions and enlarging the quantity
of land to be allotted, and the scheme of legislation of which it
is a part is to have existence and continuity of action until its
purpose shall have been fulfilled.
Oakes v. United States,
172 F. 304.
Under the Nelson Act and the other acts relating to Indian
allotments in the White Earth Reservation, in force August 8, 1904,
children born on the reservation subsequent to the final order and
who had not had allotments were entitled to allotments of eighty
acres.
Indians who had already received allotments under the Nelson Act
were not entitled, prior to August 8, 1904, to make selections of
additional land under the Steenerson Act to the exclusion of one
who had not received any allotment under the Nelson Act.
In a continuous proceeding in the Land Department under the
Indian Allotment Acts, all parties are chargeable with notice of
the different steps taken.
Quaere whether a decree can be made in a suit against
the United States by a party claiming a selection under Indian
allotment acts which would affect the rights of other claimants to
the same land who are not parties to the suit.
The facts, which involve the title to lands in the White Earth
Indian Reservation, allotted under the Chippewa Indian Treaty of
1867, and various acts of Congress relating thereto, are stated in
the opinion.
Page 223 U. S. 216
MR. JUSTICE McKENNA delivered the opinion of the Court.
The appellants were plaintiffs in the court below, and we shall
so designate them.
The plaintiffs, one a minor (No. 112) and the other an adult
(113), residing on the White Earth Indian Reservation, brought
these actions to determine their rights, respectively, to
allotments of land under the provisions of a treaty with the
Chippewa Indians proclaimed April 18, 1867, and certain acts of
Congress relating to such Indians.
The government claims that two minor children of Samuel Mooers,
also Chippewa Indians, residing on the reservation with their
father, have been justly allotted the lands on account of a
superior right under the treaty and acts of Congress. The cases
were tried together, and a decree was entered in each case in
accordance with the prayer of the plaintiffs, respectively. The
decrees were reversed by the circuit court of appeals, and the
bills directed to be dismissed. 171 F. 337.
The Treaty of March 19, 1867, and certain acts of Congress are
elements in the controversy. The treaty provided that, as soon as
the location of the reservation should have been approximately
ascertained, it should be surveyed in conformity with the system of
government surveys, and that any Indian of bands parties to the
treaty, either male or female, who should have 10 acres of land
under cultivation should be entitled to a certificate showing him
to be entitled to 40 acres and a like number of
Page 223 U. S. 217
acres for every additional 10 acres cultivated until the full
amount of 160 acres should be certified. 16 Stat. 721. This was
denominated the "cultivation clause," and many allotments of 160
acres were made under it.
On February 8, 1887, 24 Stat. 388, c. 119, Congress passed an
act "to provide for the allotment of lands in severalty to Indians
on the various reservations." The first section of the act provided
that where any tribe or band of Indians had been or should be
located upon any reservation created for their use by treaty, act
of Congress, or executive order, the President was authorized, if
the reservation or any part thereof was advantageous for
agricultural and grazing purposes, to cause the reservation to be
surveyed or resurveyed, and to allot the lands in severalty as
follows: to each head of a family, 1/4 of a section; to each single
person over eighteen years of age, 1/8 of a section; a like
fraction to an orphan child under eighteen years; to each single
person under eighteen then living, or who might be born prior to
the date of the President's order directing allotment, 1/16 of a
section. In case of deficiency, the allotments were to be made
pro rata. It was provided further that where the treaty or
act of Congress setting apart the reservation provided for
allotments in excess of those designated, the allotments should be
made in the quantities specified in such treaty or act.
This act was amended February 28, 1891, 26 Stat. 794, c. 383.
The allotment to which each Indian was to be entitled was made 1/8
of a section of land. In case of an insufficiency, a
pro
rata allotment as near as might be, according to legal
subdivision, was provided. On January 14, 1889, an act was passed
entitled, "An Act for the Relief and Civilization of the Chippewa
Indians in the State of Minnesota." 25 Stat. 642, c. 24. It is
known as the Nelson Act, and provided for the appointment by the
President of three commissioners to negotiate with the different
bands of Chippewas for the cession of all their
Page 223 U. S. 218
lands except so much of the White Earth and Red Lake
Reservations as the commissioner should deem necessary for
allotments to be made to the Indians. It also provided for the
removal to the White Earth Reservation of all but Red Lake Indians,
and for allotments to such Indians on White Earth Reservation under
the direction of such commissioners.
Section 4 of the act provided for the survey of the lands after
the cession and relinquishment of the Indian title, and that, upon
the report of the survey, the Secretary of the Interior should
appoint a sufficient number of competent examiners to go upon the
lands thus surveyed and personally make a careful, complete, and
thorough examination of the same by 40-acre lots for the purpose of
ascertaining upon which lots there was growing or standing pine
timber, and the tract upon which such timber was standing or
growing should be termed pine lands. The minutes of examination
were directed to be entered in books, showing with particularity
the quantity of timber, to be estimated by feet, and the quality of
timber, which estimates and reports should be filed with the
Commissioner of the General Land Office as a part of its permanent
records, and that officer should thereupon make up a list of such
lands, describing each 40-acre tract separately, and opposite each
description place the actual cash value of the same, according to
his best judgment and information, but such valuation should not be
less than $3 per thousand feet, board measure. The list should
thereupon be transmitted to the Secretary of the Interior for his
approval, modification, or rejection, as he may deem proper. It is
further provided that "all other lands acquired from the said
Indians on said reservation, other than pine lands, are, for the
purposes of this act, termed agricultural lands." There are
provisions for the sale of the pine lands in 40-acre parcels, for
the disposal to actual settlers only of the agricultural lands, and
that the money
Page 223 U. S. 219
received from both shall be deposited in the Treasury of the
United States for the benefit of the Indians.
There are amending acts which need not be noticed. Then came the
Act of April 28, 1904, entitled, "An Act to Provide Allotments to
Indians on White Earth Reservation in Minnesota." It is called the
Steenerson Act. It authorized the President to allot to each
Chippewa Indian legally residing on the White Earth Reservation
under the treaty or laws of the United States 160 acres of land.
The act recited that it was enacted in accordance with the express
promise made to the Indians by previous acts and the treaty, and
that the allotments should be made and the patents issued therefor
should be in the manner and have the same effect as provided in the
Acts of February 8, 1887, and February 28, 1891. And it was
provided
"that, where any allotment of less than one hundred and sixty
acres has heretofore been made, the allottee shall be allowed to
take an additional allotment, which, together with the land already
allotted, shall not exceed one hundred and sixty acres."
There is a provision, in case of insufficiency, for
pro
rata allotment, as follows:
"That if there is not sufficient land in said White Earth
(diminished) Reservation subject to allotment, each Indian entitled
to allotments under the provisions of this act shall receive a
pro rata allotment."
These acts constitute the statutory law of the case.
The facts are as follows: on June 29, 1904, and June 30, 1904,
respectively, the plaintiffs, Annie Fairbanks, through her father,
Warren, for himself, applied at the White Earth Agency for an
additional allotment of 80 acres each, respectively, being the W.
1/2 and E. 1/4 of the N.W. 1/4 of Section 15, T. 142, R. 39. The
applications were under the Steenerson Act, the plaintiffs having
received their full quota under the Nelson Act. The applications
were refused on the ground that they could not then be
received.
On August 8, 1904, Lewis and Alice Mooers, aged,
respectively,
Page 223 U. S. 220
four and six years, made application through their father,
Samuel Mooers, for an original allotment of 80 acres of land each
under the Nelson Act, the act of Congress approved January 14,
1889. The selection for Lewis was the same 80 acres applied for by
Annie Fairbanks; the selection for Alice the same 80 acres applied
for by Warren. In the Mooers application, the land was described as
not pine land. At the time of the applications, the Indian agent
was away, but his clerk received the applications, marking the land
on the agency plats as allotted to them, and made the usual entries
on the allotment roll. He made the allotment therefore as far as he
could.
Subsequently, the agent required the clerk to cancel the
allotment on the ground that the lands were pine lands, and
notified Moores of such cancellation, which was done by mail, and
he was directed to select other lands for his children.
On April 24, 1905, the allotments were commenced on the
reservation under the Steenerson Act, and on that date the
plaintiffs, respectively, made application and were allotted the
lands in controversy, they being the same as applied for by them on
June 29th and 30th, 1904.
Against the action of the agent cancelling the allotments to
Lewis and Alice on August 8, 1904, Mooers appealed to the Indian
Office. The commissioner ruled in favor of his contention, and
directed the agent to reallot the lands to Mooers' children. The
agent, however, suspended action pending an investigation, which
resulted in the commissioner, under the directions of the Secretary
of the Interior, revoking his ruling and sustaining the allotments
to plaintiffs. Other lands were directed to be allotted to the
Mooers. Upon Mooers' appeal, the last decision of the commissioner
was reversed and the land directed to be allotted to his
children.
The commissioner, in his letter directing the restoration
Page 223 U. S. 221
of the allotment to the Mooers children, discussing the right of
selection of pine lands, said:
"It is true that in, the early work of the Chippewa Commission
in making allotments on the White Earth Reservation, the office did
direct that only agricultural lands should be allotted, reserving
the pine lands for the common benefit of all the Indians on the
reservation; but after the passage of the Steenerson Act, which
contemplated the allotment of all of the lands of the reservation,
such instructions necessarily could have no application."
The order of the commissioner allotting the land to the Mooers
children, as we have seen, was reversed by the then Secretary of
the Interior, but not on the ground that pine lands could not be
selected. The ruling of the Secretary was on the ground that the
selection by the Mooers was premature. The Secretary said:
"The testimony shows that Mr. Mooers was at the agency, arrived
on Sunday, the day before the allotting began, but he did not take
his place in line until quite late, if at all, but seems to have
relied upon the fact that he had designated to a clerk at the
agency the particular lands which he desired, even after he had
been told that the selections would not be recognized as against
other claimants."
Secretary Garfield, in reversing the decision of his
predecessor, took the view that "the applications of the Mooers
children were for original allotments, were actually allowed, and
that there was no valid reason against such action." The Secretary
also said that it was "plain that there was no reason for laying
upon Mooers the rule governing additional allotments under the
Steenerson Act" -- that is, that Mooers should appear in line and
take his chances with other Indians. Concluding his opinion, the
Secretary said:
"It appears that allotments have been made to the Mooers
children for which Samuel A. Mooers says he did not apply. Our
office will also adjust this matter accordingly. "
Page 223 U. S. 222
From these repeated changes in views and decisions in the
Interior Department we gain little light upon the controversy
between the parties, so far as it depends upon the interpretation
of the statutes, and even the government in this case is somewhat
uncertain as to what position it will ultimately take. "It might,"
it says, "find occasion to reverse its former attitude by conceding
the plaintiffs' claim or denying that any of the contestants is
entitled." But it concedes "that lands classified as pine lands
outside of the reservation, which had been ceded by the Indians to
be sold for their benefit, were not allottable."
We may gather, notwithstanding the confusion, that the
department and all of the claimants regarded the Nelson Act as
still effective as to Indians who had not received its benefits,
and the Steenerson Act as applying to additional allotments,
leaving only the question whether allotments could be made of pine
lands. If so, the allotments to the Mooers children were good,
because selections under the Nelson Act were not required to wait
for proceedings under the Steenerson Act. But, notwithstanding the
uncertainty and seeming confusion, the question in the case is
simple when certain elements are kept in mind -- that is, the
distinction between the lands ceded and those not ceded, but
reserved for allotments.
Section 1 of the Nelson Act provides for the negotiation with
the Chippewas "for the cession and relinquishment" of their title
to their reservations, "except White Earth and Red Lake, and to all
of those two which may not be required to
fill the allotments
required by this and existing acts." (Italics ours). The land
reserved for allotments is the diminished reservation, to which we
shall presently refer, and § 3 provides for its allotment. Section
4 applies to the lands ceded, not those reserved for allotments,
and provides for the examination of the pine lands and for their
sale in 40-acre pieces. It provides also (§ 6) for the disposal of
agricultural lands to settlers under the
Page 223 U. S. 223
homestead laws at $1.25 per acre, the proceeds of which and of
the sale of pine lands to be put into the Treasury of the United
States for the benefit of the Indians. § 7.
The Department at first, as we have seen, regarded only
agricultural lands as allottable, making no distinction between
ceded and the reserved part of the reservation. In the reserved
part (diminished reservation) -- that is, the part that was to be
allotted -- there was no distinction made between pine land and
agricultural lands. In the ceded part, there was a distinction, but
only in the manner of their disposition. Neither was allottable,
not because of their character, but because of their situation. The
Indian Department, as we have seen, took back its ruling, and even
if it was not done under the compulsion of the Steenerson Act,
plaintiffs might have no ground of complaint. Certainly not if the
first ruling was made under a misapprehension of the Nelson Act, as
the court of appeals strongly intimates. However, the department
justifies its last ruling under the Steenerson Act, and upon the
decision of the court of appeals sustaining that ruling plaintiffs
assign error.
It becomes necessary, therefore, to consider the Steenerson Act,
and it may be well to repeat somewhat. The Steenerson Act
authorized the President to allot 160 acres of land "to each
Chippewa Indian now legally residing upon the White Earth
Reservation under the treaty or laws of the United States." And it
was provided that, where an allotment had theretofore been made of
less than 160 acres, and additional allotment should be made,
which, together with the land already allotted, should not exceed
that amount. The act is very direct as to quantity, and there is no
qualification as to the character of the land to be allotted, and
no classification of the lands to cause misunderstanding. The
general allotment act and the Act of February 28, 1891, are
referred to, but only to adopt the manner of the allotment and the
effect of the patent.
Page 223 U. S. 224
The provision is: "The allotment shall be, and the patent issued
therefor, in the manner and having the same effect as provided in
the general allotment act." The manner of allotment is one thing,
and the kind of land to be allotted is another, and cannot well be
confounded, and we cannot hold that Congress did not observe or
intend to make the distinction.
It is contended further that the Mooers children, being,
respectively, four and six years of age, were not entitled to an
original allotment under the Nelson Act.
The lower courts disagreed as to this contention, the circuit
court supporting it and the circuit court of appeals deciding that
it was untenable. Plaintiffs urge that the circuit court of appeals
fell into error by assuming that § 1 of the Act of February 8,
1887, was part of the Nelson Act, and hence decided that the power
of the President to make allotments, which was given by the former,
was a continuing power, and could be exercised from time to time in
favor of those born upon the reservation subsequent to the first
order. It is, however, insisted that, under the Nelson Act, the
power to make allotments was taken from the President and vested in
commissioners, and that the provision relied on by the circuit
court of appeals was omitted from the act, and it is insisted
further that, if it be considered part of the act, the whole of the
provision must be considered, and that it limits an allotment to
1/16 of a section to any single person then living, or who should
be born prior to the date of the order directing an allotment of
lands. Undoubtedly, if that part of the provision had remained the
law, an allotment of 80 acres could not have been made; but
plaintiffs concede that it did not remain the law. It was
superseded by the Act of February 28, 1891, and they admit that
"the Land Department has treated the Act of February 28, 1891,
as amending § 1 of the Act of 1887. By such amendment, the
classification
Page 223 U. S. 225
found in the Act of February 8, 1887, is entirely omitted, and
the language is: 'To each Indian located thereon, one-eighth of a
section of land.'"
The conclusion that plaintiffs draw from that provision is that
being on the reservation at the instant of time the act was passed
is a necessary condition. But such conclusion misses the meaning of
the word "located." Of itself, it has no reference to time. It has
reference entirely to place, and is used to designate upon what
Indians the powers given by the act, when exercised, should operate
-- that is, "to each Indian located" on the reservation. The act
was a part of a scheme of legislation to have existence and
continuity of action until its purpose should be completely
fulfilled.
See Oakes v. United States, 172 F. 304.
This being so, the Steenerson Act is easily seen to be a part of
the plan of legislation, and, contrary to the contention of
plaintiffs, did modify and change the prior acts of Congress by
superseding certain of their provisions and enlarging the quantity
of land to be allotted.
It is finally contended that Secretary Garfield had no power to
set aside the allotments to plaintiffs on an
ex parte
appeal. In other words, they were entitled to notice and
opportunity to be heard.
Garfield v. United States,
211 U. S. 249. The
only evidence offered to sustain the contention is that of an
attorney, who testified that he appeared "before the department for
Warren and Fairbanks in this case," and that he "did not learn
until after the decision had been rendered on the rehearing or
appeal" that an appeal had been taken from the letter or order of
the Commissioner of Indian Affairs of July 13, 1906, in which the
Commissioner directed the agent not to cancel the allotments to
Warren and Fairbanks, and to restore the allotments to them. It may
well be, urged by the government, that such testimony does not
preclude the inference that other attorneys, or Warren, or the
father of the Fairbanks, had notice. We, however, do not
consider
Page 223 U. S. 226
the inference material. It is manifest that the proceedings were
single and continuous -- at one time, the Mooers prevailing, at
others the plaintiffs, and finally the Mooers, and all were
chargeable with notice of what was happening in regard to their
rights. We have seen that an allotment to the Mooers children and
that to plaintiffs were made without notice. The Mooers had a
subsequent hearing, it is true, and the cancellation of the
allotments to them ordered to be set aside. The latter order was
suspended and an investigation instituted, upon which one Secretary
decided in favor of plaintiffs and another Secretary decided in
favor of the Mooers. The latter was considered as the final
decision, and plaintiffs have sought its review in this
proceeding.
It is objected by the government that the Mooers children are
necessary parties. The point was suggested by the court of appeals,
but passed by, as the court said, because counsel had not raised
it. A doubt was expressed, however, if a decree could be rendered
seriously affecting the rights of the Mooers children without their
being made parties. A query to the same effect was made in
Oakes v. United States, supra.
The jurisdictional act has this provision as to a suit brought
under it: "In said suit, the parties thereto shall be the claimant,
as plaintiff, and the United States, as party defendant." It may
well be contended, therefore, that the United States stands in
judgment for all opposing claimants -- not, it may be, excluding
the power of the court to permit them to come in, or, in its
discretion, to order them to be brought in. However, we are not
called upon to decide the question. Upon the suit brought and case
made by plaintiffs, we decide that they have no grounds for the
relief they pray.
The decree of the circuit court of appeals is
Affirmed.