The United States has capacity to maintain a suit to set aside
conveyances made by allottee Indians of allotted lands within the
statutory period of restriction, and this suit brought against
numerous defendants, all of whom were grantees of allottees of the
same tribe, is properly maintainable in equity; the return of the
consideration to the grantee is not essential; there is no defect
of parties because the allottee Indians making the conveyances are
not joined; there is no misjoinder of causes of action, and the
bill is not multifarious.
Congress has power to extend the restrictions upon alienation of
allotted lands by allottee Indians,
Tiger v. Western Investment
Co., 221 U. S. 286, and
so held that the provision for extending the period of alienation
of lands allotted in severalty to full-blood Cherokees in the Act
of May 27, 1908, 35 Stat. 312, c.199, is a valid exercise by
Congress of its power over Indian affairs.
The relations of the United States to the Cherokee Indians as
established by treaties and statutes reviewed, and
held
that, in executing the policy of extinguishing the tribal
organization and title, and the allotment of the tribal lands in
severalty, the intent of Congress was to fulfill the national
obligation not only by an equitable apportionment of the property,
but by safeguarding, through suitable restrictions, the individual
ownership of the allottees.
Page 224 U. S. 414
The placing of restrictions upon the right of alienation was an
essential part of the plan of individual allotment of tribal lands
among the members of the Five Civilized Tribes, and such
restrictions evinced the continuance to this extent of the
guardianship of the United States over the Indians as wards of the
Nation.
Conferring citizenship upon an allottee Indian is not
inconsistent with retaining control over his disposition of lands
allotted to him.
Tiger v. Western Investment Co.,
221 U. S. 286.
The maintenance of limitations prescribed by Congress as part of
its plan for distribution of Indian lands is distinctly an interest
of the United States, and one which it may sue in its own courts to
enforce.
A transfer of allottee lands in violation of statutory
restrictions is not simply a violation of the proprietary rights of
the Indian, but of the governmental rights of the United
States.
Where there is a violation of the rights of the United States,
and a justiciable question as to the effect thereof, the United
States may invoke the jurisdiction of a court of equity, and a
pecuniary interest in the controversy is not essential.
United
States v. American Bell Telephone Co., 128 U.
S. 315.
Congress has power to authorize the government to sue to
maintain the statutory restrictions upon alienation of Indian
allottee lands.
Minnesota v. Hitchcock, 15 U. S.
373.
Where Congress has power to authorize the government to sue, an
appropriation for expenses of suits already brought is a
recognition of the right to bring them, and so
held that
the provisions of the Act of May 27, 190, 35 Stat. 312, c.199, and
of subsequent acts making appropriations for suits brought to
cancel conveyances made by Cherokee allottee Indians in violation
of statutory restrictions on alienation are within the power of
Congress.
The presence of the Indian grantors as parties to suits brought
by the United States to set aside conveyances of allotted lands
made in violation of statutory restrictions on alienation is not
essential; nor are the grantees placed in danger of double
litigation by reason of the absence of the grantors as parties.
The effect of an act of Congress passed in pursuance of a policy
and a matter of general knowledge cannot be destroyed so as to
assist those who attempted to profit by violating its provisions,
and so
held that, when a conveyance is made by an allottee
Indian in violation of statutory restrictions on alienation, the
return of the consideration is not an essential prerequisite to a
decree of cancellation.
Quaere, but not presented on this record, whether cases
may arise where, without interfering with the policy of restricting
alienation,
Page 224 U. S. 415
the decree should provide in cancelling the transfers for a
return of the consideration and the bringing in a parties of any
person whose presence might be necessary.
The bill in a suit brought to cancel for the same reason in each
instance a large number of conveyances of allotted lands, made by
different members of the same tribe to different defendants,
held not to be multifarious in this case as it is
manifestly in the interest of justice to avoid unnecessary suits;
nor is there in such a case a misjoinder of causes of action.
179 F. 13 modified and affirmed.
The United States, by its Attorney General, upon the
recommendation of the Secretary of the Interior, brought this suit
in the Circuit Court of the United States for the Eastern District
of Oklahoma to cancel certain conveyances of allotted lands made by
members of the Cherokee Nation. Demurrer to the bill was sustained
by the circuit court, and the bill was dismissed.
United States
v. Allen and similar cases, 171 F. 907. The judgment was
reversed by the circuit court of appeals, and the trial court was
directed to proceed with the suits in accordance with the views
expressed in its opinion. 179 F. 13. The government states in its
brief that, between July 14, 1908, and October 12, 1909, the United
States brought 301 bills in equity against some 16,000 defendants
to cancel some 30,000 conveyances of allotted lands, made by as
many or more grantors, members of the Five Civilized Tribes, upon
the ground that the conveyances were in violation of existing
restrictions upon the power of alienation. It is said that the
selection and grouping of defendants in each case was determined by
the substantial identity of the facts and propositions of law upon
which the question of alienability of the lands depended.
Forty-six bills were filed to cancel 3715 conveyances of lands
of Cherokee Indians.
This particular suit deals with conveyances by Cherokee
allottees of the full-blood of lands allotted subsequent
Page 224 U. S. 416
to the Act of April 26, 1906, 34 Stat. 137, c. 1876. The
grantors were not made parties. There are involved a number of
separate conveyances to distinct grantees, parties defendant, two
of whom prosecute this appeal from the judgment of the circuit
court of appeals.
The bill alleges that, under the treaties between the United
States and the Cherokee Tribe of Indians and its members, the
United States granted to the Cherokee Tribe certain lands in the
Indian Territory, now the Eastern District of Oklahoma, and
obligated itself by the terms of these treaties and of its laws to
protect the Cherokee Tribe in the enjoyment of the lands granted;
that, according to the terms of said treaties and laws, and of the
patent to the lands, the Cherokee Tribe and every member thereof
have at all times been and now are without power to dispose of any
interest in the lands without the authority of the United States,
or otherwise than in the manner it prescribed; that the government
of the United States, by reason of the helpless and dependent
character of the Indian tribes, and of their several members, is
the guardian and has exclusive control of their property, by virtue
of which there is imposed upon the United States the duty to do
whatever may be necessary for their guidance, welfare, and
protection; that the Cherokee Tribe has always been and is now
treated as a tribe of Indians by the government of the United
States and its several branches; that this tribe is now under the
care of an Indian agent duly appointed under the laws of Congress,
and large sums are still appropriated by Congress for the benefit
and protection of the tribe and of its individual members, and for
the maintenance of schools, and that, under the laws of Congress,
the government of the United States still has a large sum of money
in its possession belonging to the tribe, and there still remains
unallotted a large area of tribal lands, the common property of the
tribe.
It is further alleged that, in the exercise of its powers to
Page 224 U. S. 417
regulate and govern the affairs of the Cherokee Tribe of Indians
and its members, having in view their welfare and the carrying out
of its treaty obligations, Congress, by the Act approved July 1,
1902, 32 Stat. 716, c. 1375, provided that the lands belonging to
the Cherokee Tribe in the present State of Oklahoma should be
allotted in severalty among its members, but deeming the Indians to
be untutored and improvident, and still requiring the protection
and supervision of the general government, it was provided by this
act that the portion of the lands so allotted as homesteads should
be inalienable, and further that the allotted lands other than
homesteads should be alienable only in five years after the
issuance of patent to the allottee, and that, in accordance with
its provisions, the Act of Congress was duly ratified by the
Cherokee people on the seventh day of August, 1902.
The bill describes certain conveyances of lands situated in the
Eastern District of Oklahoma, made by Cherokee Indians to the
defendants, respectively, with particulars as to the lands embraced
in the conveyances, the consideration, the dates of execution,
acknowledgment, and recording, and also the dates of the allotment
certificates and of the recording of allotment deeds. The dates of
the conveyances were between November 19, 1904, and May 7, 1908,
and of the allotment certificates between April 30, 1906, and May
4, 1908. It is alleged that each of the tracts of land described
was land of the Cherokee Tribe which had been allotted to
full-blood Indians of that tribe -- that is, to those mentioned as
grantors in the conveyances specified; that they were so allotted
as to be subject to restrictions upon their alienation and
encumbrance, and were so subject at the date of the execution and
recording of the deeds described, which restrictions have never
been removed; that the facts concerning the allotments and
restrictions were matters of public record and notorious, and that
the restrictions were imposed
Page 224 U. S. 418
by public laws of the United States of which the defendants had
knowledge, and by which they were put upon inquiry and notice as to
all matters concerning the condition of the particular tracts of
land mentioned in the bill; that the deeds had been secured by the
defendants in willful violation of law and of the duty which rested
upon this nation and every member thereof, and for the purpose of
unlawfully encumbering the allotted lands, and that, by causing the
deeds to be recorded, the defendants had unlawfully obtained an
apparent title or interest of record in the lands described in
defiance of said agency supervision and in open violation and
contempt of the laws of the United States, to the irreparable
injury of the Indians and in direct interference with the
supervision and control, policy, and duty of the government of the
United States in that behalf.
It is also averred on information and belief that the defendants
have unlawfully secured from members of the Cherokee Tribe other
deeds, conveyances, mortgages, powers of attorney, and contracts
for and about their allotments which the Indians and freedmen were
without authority to make; that, as these have not been recorded,
the complainant is unable to give a minute and correct description
without the discovery prayed for; that the defendants are
continuing to induce the members of the Cherokee Tribe named in the
bill, and other members of said tribe, to execute deeds and
instruments for and about their allotments, and threaten that they
will continue such unlawful acts; that this unlawful conduct will
greatly harass the United States in the discharge of its duties and
in the administration of its policy in relation to these Indians,
and compel it to bring many suits in order to annul the deeds and
instruments which the defendants have taken and are taking, as
alleged; that, in addition to the instruments specified in the
bill, upward of four thousand instruments of a similar nature,
purporting to convey
Page 224 U. S. 419
or to encumber the title to lands located within the Eastern
District of Oklahoma, and duly allotted to members of the Five
Civilized Tribes or belonging to said tribes, have been executed
and placed on record by the defendants herein and other persons and
corporations, in contravention of the treaties entered into between
the United States and the several Indian tribes and the laws of the
United States, and that, unless the United States shall be
permitted to join in its bills numerous defendants, against each of
whom it has a like cause of action, and against each of whom it
seeks the same relief, and whose pretended claims are based upon
similar facts and involve precisely the same questions of law, it
will be driven to the necessity of bringing a great number of
distinct and separate suits, and that it will be practically
impossible for the United States to prosecute, and for the courts
to adjudicate and dispose of, so large a number of separate and
distinct suits within any reasonable length of time.
The bill prays that the specified conveyances be declared void,
and that the title to the lands described be decreed to be in the
allottees or their heirs, subject to the terms, conditions, and
limitations contained in the treaties, agreements, and laws of the
United States. Discovery of all claims to lands allotted to any of
the Cherokee Tribe, or to unallotted lands of the tribe, and the
surrender of instruments for cancellation, are sought, and it is
also prayed that all defendants in possession or claiming
possession be ordered to vacate or to cease making such claims, and
that the United States have such other and further relief as may be
proper.
The objections to the sufficiency of the bill as set forth in
the demurrers are thus summarized in the appellants' brief:
(1) That the United States has no capacity to maintain the
suit.
(2) That the bill is wholly without equity.
Page 224 U. S. 420
(3) That there is a defect of parties.
(4) That there is a misjoinder of alleged causes of action.
(5) That the bill is multifarious.
The appeal from the judgment of the circuit court of appeals,
which reversed the judgment of the circuit court sustaining the
demurrers, is taken under § 3 of the Act of June 25, 1910, c. 408
(36 Stat. 837).
Page 224 U. S. 426
MR. JUSTICE HUGHES, after making the above statement, delivered
the opinion of the Court.
The conveyances which this suit was brought to cancel were
executed by members of the Cherokee Tribe of Indians, of the
full-blood, of lands allotted to them in severalty. The statute
under which the allotments were made (Act of July 1, 1902, c. 1375,
32 Stat. 716, accepted by the Cherokee nation on August 7, 1902)
provided that the lands should be inalienable for a period
specified. Secs. 11-15 (
id., p. 717). The lands in
question were "surplus" lands -- that is, those other than
homesteads. While the restrictions applicable to lands of this
character were still in force, Congress extended the period of
inalienability by the Act of April 26, 1906. 34 Stat. 137, c. 1876.
Section 19 of this act (
id., p. 144) is as follows:
"SEC. 19. That no full-blood Indian of the Choctaw,
Page 224 U. S. 427
Chickasaw, Cherokee, Creek, or Seminole tribes shall have power
to alienate, sell, dispose of, or encumber in any manner any of the
lands allotted to him for a period of twenty-five years from and
after the passage and approval of this act, unless such restriction
shall, prior to the expiration of said period, be removed by act of
Congress, and for all purposes the quantum of Indian blood
possessed by any member of said tribes shall be determined by the
rolls of citizens of said tribes approved by the Secretary of the
Interior:
Provided, however, That such full-blood Indians
of any of said tribes may lease any lands other than homesteads for
more than one year under such rules and regulations as may be
prescribed by the Secretary of the Interior, and in case of the
inability of any full-blood owner of a homestead, on account of
infirmity or age, to work or farm his homestead, the Secretary of
the Interior, upon proof of such inability, may authorize the
leasing of such homestead under such rules and regulations:
Provided further, That conveyances heretofore made by
members of any of the Five Civilized Tribes subsequent to the
selection of allotment, and subsequent to removal of restriction,
where patents thereafter issue, shall not be deemed or held invalid
solely because said conveyances were made prior to issuance and
recording or delivery of patent or deed; but this shall not be held
or construed as affecting the validity or invalidity of any such
conveyance except as hereinabove provided, and every deed executed
before, or for the making of which a contract or agreement was
entered into before, the removal of restrictions be and the same is
hereby declared void:
Provided further, That all lands
upon which restrictions are removed shall be subject to taxation,
and the other lands shall be exempt from taxation as long as the
title remains in the original allottee."
The power of Congress thus to extend the restriction upon
alienation was sustained by this Court in
Tiger
v.
Page 224 U. S. 428
Western Investment Co. 221 U.
S. 286. There, the question related to a conveyance of
inherited lands, made by a Creek Indian of the full blood without
the approval of the Secretary of the Interior as required by § 22
of the Act of 1906. The conveyance had been executed after the
expiration of the five-year limitation upon alienation prescribed
by the supplemental agreement with the Creek Nation (Act of June
30, 1902, c. 1323, § 16, 32 Stat. 503), but meanwhile, and during
the continuance of the original restriction, the Act of 1906 had
been enacted. It was held that the restriction of the later statute
was valid.
The reasoning of this decision is conclusive as to the validity
of the extension by § 19 of the Act of 1906 of the period of
inalienability of lands allotted, as in this case, to full-blood
Cherokees. And the same principle governs the restrictions provided
by the Act of May 27, 1908, c. 199, 35 Stat. 312.
It is not open to dispute that, upon the facts alleged, all the
conveyances specified in the bill in this suit were executed in
violation of restrictions lawfully imposed.
The principal question now presented is with respect to the
capacity of the United States to sue in its own courts to enforce
these restrictions.
The relations of the United States to the Cherokees have
repeatedly been described in the decisions of this Court.
Cherokee Nation v.
Georgia, 5 Pet. 1;
Worcester
v. Georgia, 6 Pet. 515;
United
States v. Rogers, 4 How. 567;
Mackey v.
Coxe, 18 How. 100;
The Cherokee Trust
Funds, 117 U. S. 288;
Cherokee Nation v. Southern Kansas Ry. Co., 135 U.
S. 641;
United States v. Old Settlers,
148 U. S. 427;
Cherokee Nation v. Journeycake, 155 U.
S. 196;
Stephens v. Cherokee Nation,
174 U. S. 445;
Cherokee Nation v. Hitchcock, 187 U.
S. 294;
Lowe v. Fisher, 223 U. S.
95. But in view of the nature of the present
controversy, the facts of main importance may be briefly
restated.
Page 224 U. S. 429
The United States made its first treaty with the Cherokees on
November 28, 1785 (7 Stat. 18). Constituting one of the most
powerful tribes of Indians which then inhabited the country, they
claimed the principal part of the territory now comprised within
the states of North and South Carolina, Georgia, Alabama, and
Tennessee. By this treaty, the Cherokees acknowledged that they
were under the protection of the United States of America, and of
no other sovereign, the boundary of their hunting grounds was
fixed, and it was provided that,
"for the benefit and comfort of the Indians and for the
prevention of injuries or oppressions on the part of the citizens
or Indians, the United States, in Congress assembled, shall have
the sole and exclusive right or regulating the trade with the
Indians, and managing all their affairs in such manner as they
think proper."
Another treaty with similar objects was made on July 2, 1791 (7
Stat. 39). In 1817, following a migration of a portion of the tribe
to lands of the United States on the Arkansas and White Rivers, the
Cherokee Nation ceded to the United States certain tracts which
they formerly held, and in exchange the United States bound
themselves to give to that branch of the Nation on the Arkansas as
much land as they had received, or might thereafter receive, east
of the Mississippi. 7 Stat. 156. A further cession of land was made
to the United States in 1819. 7 Stat.195.
By the terms of the Treaty of May 6, 1828 (7 Stat. 311, 315),
with the representatives of the Cherokee Nation, West, reciting the
purpose of securing to them and their friends and brothers from the
East who might join them, "a permanent home," which should,
"under the most solemn guaranty of the United States, be and
remain theirs forever, a home that shall never, in all future time,
be embarrassed by having extended around it the lines or placed
over it the jurisdiction of a territory or state, "
Page 224 U. S. 430
the United States agreed to guarantee to the Cherokees forever
seven millions of acres of land, as described, situated in what
became known as the Indian Territory, and, in addition,
"a perpetual outlet west, and a free and unmolested use of all
the country lying west of the western boundary of the
above-described limits, and as far west as the sovereignty of the
United States and their right of soil extend."
On May 28, 1830, Congress authorized the President to assure
title to the Indians to such exchanged lands, and to execute a
patent, if desired, "provided always, that such lands shall revert
to the United States if the Indians become extinct or abandon the
same." 4 Stat. 412, c. 148. A supplementary treaty confirming the
guaranty of lands and fixing boundaries was made on February 14,
1833. 7 Stat. 414.
The continued presence of the Eastern Cherokees gave rise to
serious controversies and oppressive legislation in the states
where they resided. To terminate these difficulties, and "with a
view to reuniting their people in one body," a treaty was signed at
New Echota, in the State of Georgia, on December 29, 1835. 7 Stat.
478. The Cherokee Nation ceded to the United States all their land
east of the Mississippi River in consideration of the payment of
$5,000,000, and in addition to the lands described in the treaties
of 1828 and 1833, the United States agreed to convey to the
Cherokees 800,000 acres for the sum of $500,000. It was stipulated
that the ceded lands should not at any future time, without the
consent of the Cherokee Nation, be included "within the territorial
limits or jurisdiction of any state or territory," and the United
States agreed to secure to the Cherokee Nation "the right by their
national councils" to make such laws as might be deemed
necessary
"for the government and protection of the persons and property
within their own country, belonging to their people, or such
Page 224 U. S. 431
persons as have connected themselves with them: provided always
that they shall not be inconsistent with the Constitution of the
United States and such acts of Congress as have been or may be
passed regulating trade and intercourse with the Indians, and also
that they shall not be considered as extending to such citizens and
Army of the United States as may travel or reside in the Indian
country by permission according to the laws and regulations
established by the government of the same."
The two tracts -- the one consisting of the 7,000,000 acres and
the "outlet," together aggregating 13,574,135.14 acres, and the
other of 800,000 acres -- were conveyed to the Cherokee Nation by
patent on December 31, 1838, subject to the condition specified in
the Act of 1830 that the land should revert to the United States if
the Cherokee Nation should become extinct or abandon the same. On
September 6, 1839, the Cherokees adopted a constitution for the
reunited nation. Dissensions having arisen among the members of the
tribe, a new treaty was made with the United States on August 6,
1846 (9 Stat. 871), in which it was set forth that the lands
occupied by the Cherokee Nation should "be secured to the whole
Cherokee people for their common use and benefit," and provision
was made for the settlement of differences. There was a further
treaty on July 19, 1866. 14 Stat. 799.
The "Cherokee Outlet" was purchased by the United States in 1893
for the sum of $8,595,736. 27 Stat. 640, c. 209.
At this time, the conditions in the Indian Territory were most
unsatisfactory. There had been a large accession of whites who made
no claim to Indian citizenship, and were residing in the territory
with the approval of the Indian authorities. These greatly
outnumbered the Indians. The existing means of government had
failed of their purpose, and an exigency had arisen, originally
unforeseen, requiring the adoption of new measures. This led to the
enactment of legislation which contemplated
Page 224 U. S. 432
the dissolution of the tribal organizations and the distribution
of the tribal property. By § 15 of the Act of March 3, 1893, c. 209
(27 Stat. 645), it was provided:
"The consent of the United States is hereby given to the
allotment of lands in severalty, not exceeding one hundred and
sixty acres to any one individual, within the limits of the country
occupied by the Cherokees, Creeks, Choctaws, Chickasaws, and
Seminoles, and upon such allotments, the individuals to whom the
same may be allotted shall be deemed in all respects citizens of
the United States, . . . and upon the allotment of the lands held
by said tribes respectively, the reversionary interest of the
United States therein shall be relinquished and shall cease."
And, by § 16 of the same act, provision was made for the
appointment of commissioners to enter into negotiations with the
Five Civilized Tribes
"for the purpose of the extinguishment of the national or tribal
title to any lands within that territory now held by any and all of
such nations or tribes, either by cession of the same or some part
thereof to the United States, or by the allotment and division of
the same in severalty among the Indians of such nations or tribes,
respectively, as may be entitled to the same, or by such other
method as may be agreed upon between the several nations and tribes
aforesaid, or each of them, with the United States, with a view to
such an adjustment, upon the basis of justice and equity, as may,
with the consent of such nations or tribes of Indians, so far as
may be necessary, be requisite and suitable to enable the ultimate
creation of a state or states of the Union which shall embrace the
lands within said Indian Territory."
But, in executing this policy, Congress was solicitous to
conserve the interests of the Indians and to fulfill the national
obligation not simply by assuring an equitable apportionment of the
property, but by safeguarding the individual ownership of allottees
through suitable restrictions
Page 224 U. S. 433
which were designed to secure them in their possession and to
prevent their exploitation.
The necessity for legislative action and the purposes to be
subserved were fully presented in the report submitted in May,
1894, by the Senate Committee on the Five Civilized Tribes (S.Rept.
No. 377, 53d Cong., 2d Sess.), a portion of which is quoted in the
statement of facts made by the Court in
Stephens v. Cherokee
Nation, supra, pp.
174 U. S.
447-451. The committee said:
"This section of country was set apart to the Indian with the
avowed purpose of maintaining an Indian community beyond and away
from the influence of white people. We stipulated that they should
have unrestricted self-government and full jurisdiction over
persons and property within their respective limits, and that we
would protect them against intrusion of white people, and that we
would not incorporate them in a political organization without
their consent. Every treaty, from 1828 to and including the Treaty
of 1866, was based on this idea of exclusion of the Indians from
the whites, and nonparticipation by the whites in their political
and industrial affairs. We made it possible for the Indians of that
section of country to maintain their tribal relations and their
Indian polity, laws, and civilization if they wished so to do. And
if now the isolation and exclusiveness sought to be given to them
by our solemn treaties is destroyed, and they are overrun by a
population of strangers five times in number to their own, it is
not the fault of the government of the United States, but comes
from their own acts in admitting whites to citizenship under their
laws, and by inviting white people to come within their
jurisdiction to become traders, farmers, and to follow professional
pursuits."
And, referring to the tribal lands, the report continued:
"The theory of the government was, when it made title to the
lands in the Indian Territory to the Indian tribes as bodies
politic, that the title was held for all of the Indians
Page 224 U. S. 434
of such tribe. All were to be the equal participators in the
benefits to be derived from such holding. But we find in practice
such is not the case. A few enterprising citizens of the tribe,
frequently not Indians by blood, but by intermarriage, have in fact
become the practical owners of the best and greatest part of these
lands, while the title still remains in the tribe, theoretically
for all, yet in fact the great body of the tribe derives no more
benefit from their title than the neighbors in Kansas, Arkansas, or
Missouri. . . . As we have said, the title to these lands is held
by the tribe in trust for the people. We have shown that this trust
is not being properly executed, nor will it be if left to the
Indians, and the question arises, what is the duty of the
government of the United States with reference to this trust? While
we have recognized these tribes as dependent nations, the
government has likewise recognized its guardianship over the
Indians, and its obligations to protect them in their property and
personal rights. In the treaty with the Cherokees made in 1846, we
stipulated that they should pass laws for equal protection and for
the security of life, liberty, and property. If the tribe fails to
administer its trust properly by securing to all the people of the
tribe equitable participation in the common property of the tribe,
there appears to be no redress for the Indian so deprived of his
rights unless the government does interfere to administer such
trust."
The commission for which provision was made by the Act of 1893
-- known as the Dawes Commission -- also made reports to Congress
(November 20, 1894, and November 18, 1895) "finding a deplorable
state of affairs and the general prevalence of misrule." In the
report of November 18, 1895, the commission said:
"There is no alternative left to the United States but to assume
the responsibility for future conditions in this territory. It has
created the forms of government which have brought
Page 224 U. S. 435
about these results, and the continuance rests on its authority.
. . . The commission is compelled by the evidence forced upon them
during their examination into the administration of the so-called
governments in this territory to report that these governments, in
all their branches, are wholly corrupt, irresponsible, and unworthy
to be longer trusted with the care and control of the money and
other property of Indian citizens, much less their lives, which
they scarcely pretend to protect."
Stephens v. Cherokee Nation, supra, pp.
174 U. S.
452-453.
By the Acts of June 10, 1896, c. 398, 29 Stat. 321, 339, and of
June, 7, 1897, c. 3, 30 Stat. 62, 84, the authority of the Dawes
Commission was continued and extended and provision was made for
the hearing and determination of applications for citizenship in
the tribes and for the making of rolls of membership. It was
further provided by the statute of 1897 that none of the acts,
ordinances, and resolutions (with certain stated exceptions) of the
council of either of the Five Tribes should take effect if
disapproved by the President. Then followed the Act of June 28,
1898, c. 517, 30 Stat. 495, a comprehensive statute embracing
provisions as to the enrollment of members of the tribes and for
the allotment of
"the exclusive use and occupancy of the surface of all the lands
of said nation or tribe susceptible of allotment, among the
citizens thereof, as shown by said roll, giving to each, so far as
possible, his fair and equal share thereof, considering the nature
and fertility of the soil, location and value of same."
By this legislation,
"the United States practically assumed the full control over the
Cherokees as well as the other nations constituting the Five
Civilized Tribes, and took upon itself the determination of
membership in the tribes for the purpose of adjusting their rights
in the tribal property."
Cherokee Nation v. Hitchcock, supra, p.
187 U. S.
306.
Between 1898 and 1902, allotment agreements with
Page 224 U. S. 436
the Five Civilized Tribes were approved by Congress. The
allotment Act of July 1, 1902, which related to the Cherokees, 32
Stat. 716, c. 1375, provided (§ 63) that the tribal government
should not continue longer than March 4, 1906. But, by joint
resolution of Congress, passed March 2, 1906, the tribal existence
and government of this tribe and of the others were
"continued in full force and effect for all purposes under
existing laws until all property of such tribes, or the proceeds
thereof, shall be distributed among the individual members of said
tribes, unless hereafter otherwise provided by law."
34 Stat. 822. A similar provision was contained in the Act of
April 26, 1906. 34 Stat. 148, c. 1877.
The placing of restrictions upon the right of alienation was an
essential part of the plan of individual allotment, and limitations
were imposed by each of the allotment agreements. The separate
statutes were supplemented by the general acts of 1906 and 1908,
already mentioned. These restrictions evinced the continuance, to
this extent at least, of the guardianship which the United States
had exercised from the beginning. That the conferring of
citizenship was in no wise inconsistent with the retention of
control over the disposition of the allotted lands was expressly
decided in the case of
Tiger v. Western Investment Co.,
supra, in which the conclusions of the Court were thus
stated:
"Conceding that Marchie Tiger, by the act conferring
citizenship, obtained a status which gave him certain civil and
political rights, inhering in the privileges and immunities of such
citizenship, unnecessary to here discuss, he was still a ward of
the nation so far as the alienation of these lands was concerned,
and a member of the existing Creek Nation. . . . Upon the matters
involved, our conclusions are that Congress has had at all times,
and now has, the right to pass legislation in the interest of the
Indians as a dependent people; that there is nothing in
Page 224 U. S. 437
citizenship incompatible with this guardianship over the
Indian's lands inherited from allottees, as shown in this case;
that, in the present case, when the Act of 1906 was passed, the
Congress had not released its control over the alienation of lands
of full-blood Indians of the Creek Nation; that it was within the
power of Congress to continue to restrict alienation by requiring,
as to full-blood Indians, the consent of the Secretary of the
Interior to a proposed alienation of lands such as are involved in
this case; that it rests with Congress to determine when its
guardianship shall cease, and, while it still continues, it has the
right to vary its restrictions upon alienation of Indian lands in
the promotion of what it deems the best interest of the
Indian."
During the continuance of this guardianship, the right and duty
of the nation to enforce by all appropriate means the restrictions
designed for the security of the Indians cannot be gainsaid. While
relating to the welfare of the Indians, the maintenance of the
limitations which Congress has prescribed as a part of its plan of
distribution is distinctly an interest of the United States. A
review of its dealings with the tribe permits no other conclusion.
Out of its peculiar relation of these dependent peoples sprang
obligations to the fulfillment of which the national honor has been
committed.
"From their very weakness and helplessness, so largely due to
the course of dealing of the federal government with them and the
treaties in which it has been promised, there arises the duty of
protection, and with it the power. This has always been recognized
by the Executive and by Congress and by this Court whenever the
question has arisen."
United States v. Kagama, 118 U.
S. 375,
118 U. S.
384.
This national interest is not to be expressed in terms of
property, or to be limited to the assertion of rights incident to
the ownership of a reversion or to the holding of a technical title
in trust. When, in 1838, patent was issued
Page 224 U. S. 438
to the Cherokees providing that it was subject to the condition
that the granted lands should revert to the United States if the
Cherokee Nation became extinct or abandoned them, neither the
rights nor the duties of the United States were confined to the
reversionary interest thus secured. And its relinquishment made it
no less a matter of national concern that the restrictions designed
to protect the Indian allottees should be enforced. But this object
could not be accomplished if the enforcement were left to the
Indians themselves. It is no answer to say that conveyances
obtained in violation of restrictions would be void. That, of
course, is true, and yet, by means of the conveyances and the
consequent assertion of rights of ownership by the grantees, the
Indians might be deprived of the practical benefits of their
allotments. It was the intent of Congress that, for their
sustenance, and as a fitting aid to their progress, they should be
secure in their possession during the period specified, and should
actually hold and enjoy the allotted lands. As was well said by the
court below:
"If they are unable to resist the allurements by which they are
enticed into making the conveyances, will they be expected to
undertake the difficult and protracted litigation necessary to set
aside their own acts? To ask these questions is to answer them.
Congress intended that both the Indians and the members of the
white race should obey its limitations. A transfer of the
allotments is not simply a violation of the proprietary rights of
the Indian. It violates the governmental rights of the United
States. If these Indians may be divested of their lands, they will
be thrown back upon the nation a pauperized, discontented, and
possibly belligerent people."
The authority to enforce restrictions of this character is the
necessary complement of the power to impose them.
Whether these restrictions upon the alienation of the allotted
lands had been violated and the alleged conveyances
Page 224 U. S. 439
were void was a justiciable question, and in order that it might
properly discharge its duty, and that it might obtain adequate
relief suited to the nature of the case in accordance with the
principles of equity, the United States was entitled to invoke the
equity jurisdiction of its courts. It was not essential that it
should have a pecuniary interest in the controversy. In
United
States v. American Bell Telephone Co., 128 U.
S. 315, where the suit was brought to obtain the
cancellation of certain patents, this Court, in commenting upon the
statements which had been made in the case of
United States v.
San Jacinto Tin Co., 125 U. S. 273,
with respect to the right of the United States to sue, said:
"This language is construed by counsel for the appellee in this
case to limit the relief granted at the instance of the United
States to cases in which it has a direct pecuniary interest. But it
is not susceptible of such construction. It was evidently in the
mind of the Court that the case before it was one where the
property right to the land in controversy was the matter of
importance, but it was careful to say that the cases in which the
instrumentality of the court cannot thus be used are those where
the United States has no pecuniary interest in the remedy sought,
and is also under no obligation to the party who will be benefited
to sustain an action for his use, and also where it does not appear
that any obligation existed on the part of the United States to the
public or to any individual. The essence of the right of the United
States to interfere in the present case is its obligation to
protect the public from the monopoly of the patent which was
procured by fraud, and it would be difficult to find language more
aptly used to include this in the class of cases which are not
excluded from the jurisdiction of the court by want of interest in
the government of the United States. It is insisted that these
decisions have reference exclusively to patents for land, and that
they are not applicable to patents for inventions and discoveries.
The
Page 224 U. S. 440
argument very largely urged for that view is the one just
stated: that in the cases which had reference to patents for land,
the pecuniary interest of the United States was the foundation of
the jurisdiction. This, however, is repelled by the language just
cited, and by the fact that, in more than one of the cases, notably
in
United States v. Hughes, 11
How. 552, the right of the government to sustain the suit was based
upon its legal or moral obligation to give a good title to another
party who had a prior and a better claim to the land, but whose
right was obstructed by the patent issued by the United
States."
And in
In re Debs, 158 U. S. 564,
where the question was as to the jurisdiction of a court of equity
at the suit of the government to enjoin interference with the
transportation of the mails, the Court, while adverting to the fact
that the United States had a property in the mails, declined to
place its decision upon that ground alone, and rested it also upon
governmental duty. The Court said (pp.
158 U. S.
584-586):
"Every government, entrusted, by the very terms of its being,
with powers and duties to be exercised and discharged for the
general welfare, has a right to apply to its own courts for any
proper assistance in the exercise of the one and the discharge of
the other, and it is no sufficient answer to its appeal to one of
those courts that it has no pecuniary interest in the matter. . . .
The national government, given by the Constitution power to
regulate interstate commerce, has by express statute assumed
jurisdiction over such commerce when carried upon railroads. It is
charged, therefore, with the duty of keeping those highways of
interstate commerce free from obstruction, for it has always been
recognized as one of the powers and duties of a government to
remove obstructions from the highways under its control."
In
United States v. Rickert, 188 U.
S. 432, the suit was brought to restrain the collection
of certain county taxes alleged to be due in respect of permanent
improvements
Page 224 U. S. 441
on, and personal property used in the cultivation of, lands
occupied by Sioux Indians in South Dakota. The lands had been
allotted under the general allotment act of February 8, 1887, 24
Stat. 389, c. 119. One of the questions certified to this Court was
whether the United States had such an interest in the controversy
or in its subjects as entitled it to maintain the suit, and the
question was answered in the affirmative. It is true that, in that
case, the statute provided that the United States should hold the
land allotted for twenty-five years in trust for the sole use and
benefit of the Indian allottee. But the decision rested upon a
broader foundation than the mere holding of a legal title to land
in trust, and embraced the recognition of the interest of the
United States in securing immunity to the Indians from taxation
conflicting with the measures it had adopted for their protection.
The Court said (p.
188 U. S.
444):
"In view of the relation of the United States to the real and
personal property in question, as well as to these dependent
Indians still under national control, and in view of the injurious
effect of the assessment and taxation complained of upon the plans
of the government with reference to the Indians, it is clear that
the United States is entitled to maintain this suit."
By the Act of August 15, 1894, c. 290, 28 Stat. 305, as amended
by the Act of February 6, 1901, c. 217, 31 Stat. 760, Congress
authorized suits to be brought against the United States, in its
circuit courts, "involving the right of any person, in whole or in
part of Indian blood or descent" (with certain exceptions), "to any
allotment of lands under any law or treaty."
Sloan v. United
States, 193 U. S. 614.
Prior to the amendment of 1901, the United States could not be sued
in such a case. But the amendment required that, "in said suit, the
parties thereto shall be the claimant as plaintiff and the United
States as party defendant." Commenting upon this, the Court said,
in
McKay v. Kalyton, 204 U. S. 458,
204 U. S.
469:
"Nothing could more clearly
Page 224 U. S. 442
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."
And in
In re Heff, 197 U. S. 488,
197 U. S. 509,
this Court said:
"In
United States v. Rickert, 188 U. S.
432, we sustained the right of the government to protect
the lands thus allotted and patented from any encumbrance of state
taxation. Undoubtedly an allottee can enforce his right to an
interest in the tribal or other property (for that right is
expressly granted), and equally clear is it that Congress may
enforce and protect any condition which it attaches to any of its
grants. This it may do by appropriate proceedings in either a
national or a state court."
Not only was the United States entitled to prosecute this suit
by virtue of the interest springing from its peculiar relations to
the Indians and the course of dealing which had finally led to the
plan of separate allotments, accompanied by restrictions for the
protection of the allottees, but Congress has explicitly recognized
the right of the government thus to enforce these restrictions, and
has made appropriations for the maintenance of suits of this
description. And at least the power of Congress to authorize the
government to sue, in view of the relation of the United States to
the subject matter and of the nature of the question to be
determined, cannot be doubted.
Minnesota v. Hitchcock,
185 U. S. 373,
185 U. S.
387-388.
By the Act of May 27, 1908, c. 199 (35 Stat. 312), which defined
restrictions with respect to allotments to members of the Five
Civilized Tribes, the representatives of the Secretary of the
Interior were authorized to advise all allottees having restricted
lands, of their rights, and, at the request of any such allottee,
to bring suit in his name
Page 224 U. S. 443
to cancel any conveyance or encumbrance in violation of the act,
and to take all steps necessary to assist the allottees in
acquiring and retaining possession. But the following provision was
added:
"Nothing in this act shall be construed as a denial of the right
of the United States to take such steps as may be necessary,
including the bringing of any suit and the prosecution and appeal
thereof, to acquire or retain possession of restricted Indian
lands, or to remove cloud therefrom, or clear title to the same in
cases where deeds, leases, or contracts of any other kind or
character whatsoever have been or shall be made contrary to law
with respect to such lands, prior to the removal therefrom of
restrictions upon the alienation thereof; such suits to be brought
on the recommendation of the Secretary of the Interior, without
costs or charges to the allottees, the necessary expenses incurred
in so doing to be defrayed from the money appropriated by this
act."
It is urged that this clause did not confer authority to sue,
but was inserted merely to rebut any possible inference of an
intention to deny this right to the United States. This seems to us
a strained construction in view of the obvious purpose of the act.
And it fails to give adequate effect to the words
"such suits to be brought on the recommendation of the Secretary
of the Interior, without costs or charges to the allottees,
the
necessary expenses incurred in so doing to be defrayed from the
money appropriated by this act."
In addition to the appropriation of moneys for expenditure under
the direction of the Secretary of the Interior, that act
appropriated the sum of $50,000, "to be immediately available, and
available until expended as the Attorney General may direct," which
was
"to be used in the payment of necessary expenses incident to any
suits brought at the request of the Secretary of the Interior in
the Eastern Judicial District of Oklahoma,"
with the proviso that $10,000 of this amount,
Page 224 U. S. 444
or so much as might be necessary, should be expended in the
prosecution of cases in the Western Judicial District of that
state. In 1909 (Act of March 4, 1909, c. 299, 35 Stat. 1014), a
further appropriation of a like sum for the same purposes was made
under the heading, "Suits to set aside conveyances of allotted
lands." Another appropriation was made in 1910 (Act of June 25,
1910, c. 384, 36 Stat. 748), under a similar heading, with specific
reference to the "Five Civilized Tribes," and also with the
provision
"and not to exceed ten thousand dollars of said sum shall be
available for the expenses of the United States on appeals to the
Supreme Court of the United States,"
and still another to the same effect in 1911 (Act of March 4,
1911, c. 285, 36 Stat. 1425).
We conclude that the United States has the capacity to prosecute
this suit.
It is further urged that there is a defect of parties on account
of the absence of the Indian grantors. It is said that they are the
owners of the lands, and hence sustain such a relation to the
controversy that final decree cannot be made without affecting
their interest.
Shields v.
Barrow, 17 How. 130,
58 U. S. 139;
Williams v.
Bankhead, 19 Wall. 563.
The argument necessarily proceeds upon the assumption that the
representation of these Indians by the United States is of an
incomplete or inadequate character; that, although the United
States, by virtue of the guardianship it has retained, is
prosecuting this suit for the purpose of enforcing the restrictions
Congress has imposed, and of thus securing possession to the
Indians, their presence as parties to the suit is essential to
their protection. This position is wholly untenable. There can be
no more complete representation than that on the part of the United
States in acting on behalf of these dependents, whom Congress, with
respect to the restricted lands, has not yet released from
tutelage. Its efficacy does not
Page 224 U. S. 445
depend upon the Indians' acquiescence. It does not rest upon
convention, nor is it circumscribed by rules which govern private
relations. It is a representation which traces its source to the
plenary control of Congress in legislating for the protection of
the Indians under its care, and it recognizes no limitations that
are inconsistent with the discharge of the national duty.
When the United States instituted this suit, it undertook to
represent, and did represent, the Indian grantors whose conveyances
it sought to cancel. It was not necessary to make these grantors
parties, for the government was in court on their behalf. Their
presence as parties could not add to or detract from the effect of
the proceedings to determine the violation of the restrictions and
the consequent invalidity of the conveyances. As by the Act of
Congress they were precluded from alienating their lands, they were
likewise precluded from taking any position in the legal
proceedings instituted by the government to enforce the
restrictions which would render such proceedings ineffectual or
give support to the prohibited acts. The cause could not be
dismissed upon their consent; they could not compromise it, nor
could they assume any attitude with respect to their interest which
would derogate from its complete representation by the United
States. This is involved necessarily in the conclusion that the
United States is entitled to sue, and in the nature and purpose of
the suit.
These considerations also dispose of the contention that, by
reason of the absence of the grantors as parties, the grantees are
placed in danger of double litigation, so that, if they should
succeed here, they would still be exposed to suit by the allottees.
It is not pertinent to comment upon the improbability of the
contingency, if it exists in legal contemplation. But if the United
States, representing the owners of restricted lands, is entitled to
bring a suit of this character, it must follow that the
Page 224 U. S. 446
decree will bind not only the United States, but the Indians
whom it represents in the litigation. This consequence is involved
in the representation.
Kerrison v. Stewart, 93 U. S.
155,
93 U. S. 160;
Shaw v. Railroad Co., 100 U. S. 605,
100 U. S. 611;
Beals v. Ill. &c. R. Co., 133 U.
S. 290,
133 U. S. 295.
And it could not, consistently with any principle, be tolerated
that, after the United States, on behalf of its wards, had invoked
the jurisdiction of its courts to cancel conveyances in violation
of the restrictions prescribed by Congress, these wards should
themselves be permitted to relitigate the question.
In what cases the United States will undertake to represent
Indian owners of restricted lands in suits of this sort is left,
under the Acts of Congress, to the discretion of the Executive
Department. The allottee may be permitted to bring his own action,
or, if so brought, the United States may aid him in its conduct, as
in the
Tiger case. And, as already noted, the Act of May
27, 1908, makes provision for proceedings by the representatives of
the Secretary of the Interior in the name of the allottee. But in
the opportunities thus afforded there is no room for the vexation
of repeated litigation of the same controversy. And when the United
States itself undertakes to represent the allottees of lands under
restriction, and brings suit to cancel prohibited transfers, such
action necessarily precludes the prosecution by the allottees of
any other suit for a similar purpose relating to the same
property.
It is said that the allottees have received the consideration,
and should be made parties in order that equitable restoration may
be enforced. Where, however, conveyance has been made in violation
of the restrictions, it is plain that the return of the
consideration cannot be regarded as an essential prerequisite to a
decree of cancellation. Otherwise, if the Indian grantor had
squandered the money, he would lose the land which Congress
intended he should hold, and the very incompetence and
Page 224 U. S. 447
thriftlessness which were the occasion of the measures for his
protection would render them of no avail. The effectiveness of the
Acts of Congress is not thus to be destroyed. The restrictions were
set forth in public laws, and were matters of general knowledge.
Those who dealt with the Indians contrary to these provisions are
not entitled to insist that they should keep the land if the
purchase price is not repaid, and thus frustrate the policy of the
statute.
United States v. Trinidad Coal Co. 137 U.
S. 160,
137 U. S.
170.
But it is suggested that there may be instances where the
consideration could be restored without interfering with the policy
which prohibited the transfer -- that is, without in any way
impairing the right to the recovery of the land or the assurance to
the Indian of his possession free from encumbrance. It is said, for
example, that there may have been an exchange of lands, and that
the Indian grantor should not, on retaking the restricted lands, be
permitted at the same time to retain those which he has received
from the grantee. Or there may be other property held by the Indian
grantor free from restrictions, so that restoration of the
consideration may be enforced without working a deprivation of the
restricted lands, contrary to the Act of Congress. We need not
attempt to surmise what cases of this sort may arise. It is
sufficient to say that no such case is here presented. It is not
presented by the mere allegation of the bill that the conveyances
assailed purport to have been made for pecuniary consideration. It
will be competent for the court, on a proper showing as to any of
the transactions that provision can be made for a return of the
consideration consistently with the cancellation of the conveyances
and with securing to the allottees the possession of the restricted
lands in accordance with the statute, to provide for bringing in as
a party to the suit any person whose presence for that purpose is
found to be necessary.
Page 224 U. S. 448
A further objection is that the bill is multifarious. But, in
view of the numerous transfers which the government attacks, it was
manifestly in the interest of the convenient administration of
justice that unnecessary suits should be avoided and that
transactions presenting the same question for determination should
be grouped in a single proceeding. The objection to the misjoinder
of causes of action is likewise without merit.
Our conclusion is that the suit was well brought. The judgment
of the court below is affirmed, with the modification that the
cause shall proceed in conformity with this opinion.
It is so ordered.
MR. JUSTICE LURTON dissents on the question of jurisdiction, but
not on the merits.