An agreement as to division and allotment of lands between the
Secretary of the Interior and chiefs representing Indians which is
informal in terms and is afterwards ratified by Congress should be
construed so as to confer upon the Indians the full measure of
benefit intended.
The best interests of the Indians do not always require that
they should be allotted lands in fee, rather than by having them
held in trust by the government for them.
Page 227 U. S. 614
The agreement with Chief Moses and others of July 7, 1883, as to
distribution of lands in the Columbia and Colville reservations and
the Act of July 45, 1884, 23 State. 79, validating it, and the
subsequent acts relating thereto, were properly construed by the
Secretary of the Interior to the effect that the government held
the land in trust for the Indian allottees for a period of ten
years, and without power of alienation meanwhile except by consent
of the Secretary.
The general rule that a conveyance with warranty estops the
grantor when he afterwards becomes the owner to deny the grantee's
title does not apply to a conveyance made by one
non sui
juris or that is contrary to public policy or statutory
construction.
An allottee Indian who conveys by warranty deed before patent
and during the period of suspension of alienation without the
consent of the Secretary acts contrary to the policy of the law,
and is not estopped to deny the validity of the deed after patent,
and the grantee acquires no rights.
59 Wash. 190 affirmed.
The facts, which involve the title of Indians to lands within
the Columbia Indian Reservation and the construction of an
agreement allotting lands between Chief Moses and others, are
stated in the opinion.
MR. JUSTICE PITNEY delivered the opinion of the Court.
The plaintiff in error brought this action against the
defendants in error in the Superior Court of the State of
Washington in and for the County of Chelan to establish and quiet
his title to certain lands in that county. The answer showed that
the plaintiff claimed his title under a deed made by the
defendants, and attacked the validity of this instrument on the
ground of fraud in its procurement, and on the further ground that,
at the time of its execution,
Page 227 U. S. 615
the title to the lands therein described was in the United
States, and the defendants were without power to convey them. The
trial court made findings of fact negativing the charges of fraud,
and concluded as matter of law that the conveyance made by the
defendants to plaintiff was valid, and that the plaintiff was
entitled to recover. From the resulting judgment, the defendants
appealed to the supreme court of the state, which reversed the
judgment and remanded the cause, with directions to enter a
judgment in favor of the defendants upon terms that they should
repay the consideration paid by the plaintiff to them, with certain
additional charges. 52 Wash. 138. After the cause was remanded, a
further hearing was had and a second and final judgment entered in
accordance with the mandate. From this judgment the plaintiff
appealed, and the supreme court of the state affirmed the judgment,
59 Wash. 190, and the case comes here by writ of error.
The facts are as follows: the defendants are husband and wife
and full-blooded Indians, and the lands in question are a part of
what was the Columbia Indian Reservation. On July 7th, 1883, in the
City of Washington, the Secretary of the Interior and the
Commissioner of Indian Affairs, on the part of the United States,
and Chief Moses and other Indians of the Columbia and Colville
Reservations in the then Territory of Washington, entered into a
certain agreement, subject to the approval of Congress, the
material parts of which are as follows:
"In the conference with Chiefs Moses and Sar-sarp-kin, of the
Columbia Reservation, and Tonasket and Lot, of the Colville
Reservation, had this day, the following was substantially what was
asked for by the Indians:"
"Tonasket asked for a saw and gristmill, a boarding school to be
established at Bonaparte Creek to accommodate one hundred (100)
pupils, and physician to reside with them, and $100 (one hundred)
to himself each year. "
Page 227 U. S. 616
"Sar-sarp-kin asked to be allowed to remain on the Columbia
Reservation with his people, where they now live, and to be
protected in their rights as settlers, and, in addition to the
ground they now have under cultivation within the limit of the
fifteen-mile strip cut off from the northern portion of the
Columbia Reservation, to be allowed to select enough more
unoccupied land in severalty to make a total to Sarsarp-kin of four
square miles, being 2,560 acres of land, and each head of a family
or male adult one square mile, or to remove onto the Colville
Reservation, if they so desire, and in case they so remove, and
relinquish all their claims to the Columbia Reservation, he is to
receive one hundred (100) head of cows for himself and people, and
such farming implements as may be necessary."
"All of which the Secretary agrees they should have, and that he
will ask Congress to make an appropriation to enable him to
perform."
"The Secretary also agrees to ask Congress to make an
appropriation to enable him to purchase for Chief Moses a
sufficient number of cows to furnish each one of his band with two
cows; also to give Moses one thousand dollars ($1,000) for the
purpose of erecting a dwelling house for himself; also to construct
a sawmill and gristmill as soon as the same shall be required for
use; also that each head of a family or each male adult person
shall be furnished with one wagon, one double set of harness, one
grain cradle, one plow, one harrow, one scythe, one hoe, and such
other agricultural implements as may be necessary."
"And, on condition that Chief Moses and his people keep this
agreement faithfully, he is to be paid in cash, in addition to all
of the above, one thousand dollars ($1,000) per annum during his
life."
"All this on condition that Chief Moses shall remove to the
Colville Reservation and relinquish all claims upon the government
for any land situate elsewhere. "
Page 227 U. S. 617
"Further, that the government will secure to Chief Moses and his
people, as well as to all other Indians who may go onto the
Colville Reservation and engage in farming, equal rights and
protection alike with all other Indians now on the Colville
Reservation, and will afford him any assistance necessary to enable
him to carry out the terms of this agreement on the part of himself
and his people; that, until he and his people are located
permanently on the Colville Reservation, his status shall remain as
now, and the police over his people shall be vested in the
military, and all money or articles to be furnished him and his
people shall be sent to some point in the locality of his people,
there to be distributed as provided. All other Indians now living
on the Columbia Reservation shall be entitled to 640 acres, or one
square mile, of land to each head of family or male adult, in the
possession and ownership of which they shall be guaranteed and
protected; or, should they move onto the Colville Reservation
within two years, they will be provided with such farming
implements as may be required, provided they surrender all rights
to the Columbia Reservation."
"All the foregoing is upon the condition that Congress will make
an appropriation of funds necessary to accomplish the foregoing and
confirm this agreement, and also with the understanding that Chief
Moses, or any of the Indians heretofore mentioned shall not be
required to remove to the Colville Reservation until Congress does
make such appropriation,"
etc.
This agreement was ratified and confirmed by act of Congress of
July 4, 1884, c. 180, 23 Stat. 79, which reads as follows:
"For the purpose of carrying into effect the agreement entered
into at the City of Washington on the seventh day of July, eighteen
hundred and eighty-three, between the Secretary of the Interior and
the Commissioner of Indian Affairs and Chief Moses and other
Indians of the Columbia
Page 227 U. S. 618
and Colville Reservations, in Washington Territory, which
agreement is hereby accepted, ratified, and confirmed, including
all expenses incident thereto, eighty-five thousand dollars, or so
much thereof as may be required therefor, to be immediately
available:
Provided, that Sarsopkin and the Indians now
residing on said Columbia Reservation shall elect within one year
from the passage of this act whether they will remain upon said
reservation on the terms therein stipulated or remove to the
Colville Reservation:
And provided, further, that in case
said Indians so elect to remain on said Columbia Reservation, the
Secretary of the Interior shall cause the quantity of land therein
stipulated to be allowed them to be selected in as compact form as
possible, the same when so selected to be held for the exclusive
use and occupation of said Indians, and the remainder of said
reservation to be thereupon restored to the public domain, and
shall be disposed of to actual settlers under the homestead laws
only, except such portion thereof as may properly be subject to
sale under the laws relating to the entry of timber lands and of
mineral lands, the entry of which shall be governed by the laws now
in force concerning the entry of such lands."
In the above agreement of July 7, 1883 (commonly called the
Moses agreement), the following clause is especially pertinent to
the present controversy, viz.:
"All other Indians now living on the Columbia Reservation shall
be entitled to 640 acres, or one square mile, of land to each head
of family or male adult, in the possession and ownership of which
they shall be guaranteed and protected."
In the confirmatory act, the following proviso is to be
noted:
"That in case said Indians so elect to remain on said Columbia
Reservation, the Secretary of the Interior shall cause the quantity
of land therein stipulated to be allowed them to be selected in as
compact form as possible, the same when so selected to be held for
the exclusive use
Page 227 U. S. 619
and occupation of said Indians, and the remainder of said
reservation to be thereupon restored to the public domain, and
shall be disposed of to actual settlers,"
etc.
By an executive order made by President Cleveland under date May
1, 1886 (Executive Orders, Indian Reserves, 1890, p. 75), the land
in question was restored to the public domain, subject to the
limitations as to disposition imposed by the Act of July 4, 1884,
it being, however at the same time ordered that certain tracts of
land surveyed for and allotted to Sar-sarp-kin and other Indians in
accordance with the provisions of that act, and particularly
described in the order, should be and the same were thereby set
apart for the exclusive use and occupation of said Indians by name.
Long Jim was not included.
But, by a decision of the General Land Office rendered July 9,
1892, affirmed by the Secretary of the Interior January 6, 1893
(Long Jim v. Robinson, 16 L.D. 15), it was held that Long Jim,
although not a party to the Moses agreement, was entitled to its
benefits by the terms of the Act of July 4, 1884, and, because he
and other members of a band of which he was the chief were in
actual occupancy of the land in question, having lived upon it for
many years, cultivated a part of it, raised stock thereon, etc., it
was also held, following Mission Indians v. Walsh, 13 L.D. 269,
that the Executive order of May 1, 1886, did not confer upon white
men claiming under the preemption and homestead laws any right to
settle on, file upon, or enter lands that were in the occupation of
the Indians. It was also held that Long Jim was not deprived of his
rights under the Act of July 4, 1884, by reason of not having
elected within one year from its passage whether he would remain
upon the Columbia Reservation on the terms therein stipulated, or
remove to the Colville Reservation; that limitation in the act
being construed to apply only to Sar-sarp-kin and the Indians who
were
Page 227 U. S. 620
directly represented by him in the making of the Moses
agreement. The conclusion of the matter was that Long Jim and
certain other Indian applicants were held entitled to have
allotments made to them in severalty, in quantities and manner
provided in the agreement of July 7, 1883, and the right of certain
white claimants to the same land was held to be subordinate and
subject to the prior and superior right of the Indians.
In accordance with this decision and in pursuance of the Moses
agreement and the Act of Congress ratifying it, the Secretary of
the Interior, in the year 1894, set apart for the exclusive use and
occupation of Long Jim a certain allotment on the Columbia
Reservation, included in which are the lands involved in the
present action.
On March 29, 1900, Long Jim and his wife, by warranty deed, in
consideration of the sum of $2,000, assumed to convey the lands in
question to the plaintiff. Up to this time, no patent had been
issued by the government.
In April, 1904, the Secretary of the Interior held (In re Long
Jim, 32 L.D. 568) that the Act of July 4, 1884, had made no
provision for issuing a patent; that, if the Moses agreement
contemplated that patents should be issued, the Act of ratification
limited it in this respect, and that, since there was no general
authority of law for issuing patents to Indian allottees, none
could be issued to cover Long Jim's allotment. Thereafter Congress,
by Act of March 3, 1905, c. 1479, 33 Stat. 1064, 1065, authorized
the issuance of such a patent, in the following terms:
"That the Secretary of the Interior be, and hereby is,
authorized and directed to issue a patent in fee to Long Jim for
the lands heretofore allotted to him by the Secretary of the
Interior on April eleventh, eighteen hundred and ninety-four, as
modified and changed by Department order of April twentieth,
eighteen hundred and
Page 227 U. S. 621
ninety-four, under and by virtue of the agreement concluded July
seventh, eighteen hundred and eighty-three, by and between the
Secretary of the Interior and the Commissioner of Indian Affairs
and Chief Moses and other Indians of the Columbia and Colville
Reservations, commonly known as the 'Moses agreement,' accepted,
ratified, and confirmed by the Act of Congress approved July
fourth, eighteen hundred and eighty-four (Twenty-third Statutes,
pages seventy-nine and eighty), and under the decision of the
General Land Office of July ninth, eighteen hundred and ninety-two,
affirmed by the Department of the Interior January sixth, eighteen
hundred and ninety-three, to-wit: the northeast quarter, northeast
quarter of the southeast quarter, and lot one of section eleven,
the northwest quarter and southwest quarter of the southwest
quarter of section twelve, lot one of section fourteen, and lots
one and two of section thirteen, township twenty-seven north, range
twenty-two east, Willamette meridian, Washington, free of all
restrictions as to sale, encumbrance, or taxation."
And on August 2, 1905, pursuant to this authority, a patent was
issued to Long Jim for the lands that had been allotted to him,
including those that were included in his deed to the
plaintiff.
By the Act of March 8, 1906, c. 629, 34 Stat. 55, a general
provision was made for the issuance of patents for the lands
allotted to Indians under the Moses agreement and the act ratifying
it, the patents to
"be of legal effect and declare that the United States does and
will hold the lands thus allotted for the period of ten years from
the date of the approval of this act, in trust for the sole use and
benefit of the Indian to whom such allotment was made, or, in case
of his decease either prior or subsequent to the issuance of such
patent, of his heirs, according to the laws of the State of
Washington, and that at the expiration of said period the United
States will convey the
Page 227 U. S. 622
same by patent to the said Indian, or his heirs, as aforesaid,
in fee, discharged of said trust, and free of all charge or
encumbrance whatsoever."
The same act provided that an allottee holding such a trust
patent might sell the lands covered thereby, except eighty acres,
under rules and regulations prescribed by the Secretary of the
Interior, and provided that any conveyance or contract of sale made
within the trust period, except as provided by the act, should be
absolutely null and void.
The plaintiff in error contends (1) that the land allotted to
Long Jim in the year 1894 passed to him in fee under the terms of
the Moses agreement and the act of ratification, and therefore
passed to the plaintiff under the deed of 1900; and, failing this,
(2) that the deed, having contained covenants of warranty, operated
by way of estoppel to pass to the plaintiff the title afterwards
acquired by Long Jim by virtue of the patent of August 2, 1905.
In
United States v. Moore, 154 F. 712, it was held by
the United States Circuit Court for the Eastern District of
Washington that lands allotted to Indians in severalty under the
Moses agreement and the act of confirmation, and the Executive
order of May 1, 1886, became vested in the allottees in fee simple.
The circuit court of appeals reversed this decision. 161 F. 513.
The Supreme Court of Washington, in the present case (52 Wash.
138), followed the reasoning and opinion of the court of appeals.
We concur in the result reached, and have little to add.
As to the principles to be kept in view in construing an
agreement with the Indians, we adhere to what was said in
Jones
v. Meehan, 175 U. S. 1,
175 U. S.
10-11:
"In construing any treaty between the United States and an
Indian tribe, it must always . . . be borne in mind that the
negotiations for the treaty are conducted, on the part of the
United States, an enlightened and powerful nation, by
representatives skilled in diplomacy, masters of
Page 227 U. S. 623
a written language, understanding the modes and forms of
creating the various technical estates known to their law, and
assisted by an interpreter employed by themselves; that the treaty
is drawn up by them and in their own language; that the Indians, on
the other hand, are a weak and dependent people, who have no
written language, and are wholly unfamiliar with all the forms of
legal expression, and whose only knowledge of the terms in which
the treaty is framed is that imparted to them by the interpreter
employed by the United States, and that the treaty must therefore
be construed not according to the technical meaning of its words to
learned lawyers, but in the sense in which they would naturally be
understood by the Indians."
The Moses agreement is quite informal, and it has been and
should be construed in such manner as to confer upon the Indians
the full measure of benefit that it was intended to secure to them.
But it hardly follows that they would be more benefited by having
the lands in fee than by having them held in trust for them by the
government. That part of the agreement now in question provided
that each head of family or male adult on the Columbia Reservation
should be entitled to one square mile of land, "in the possession
and ownership of which they shall be guaranteed and protected."
This is at least, as consistent with a beneficial ownership,
leaving the title in the government, as with the vesting of a fee
simple title in the Indian.
But, whatever may have been the intent of the framers of the
agreement, ยง 2079, Rev.Stat., prohibited the making of any contract
with the Indians by treaty, and the Moses agreement was expressly
made "upon the condition that Congress will make an appropriation
of funds necessary to accomplish the foregoing, and confirm this
agreement." The act of confirmation (23 Stat. 80, c. 180) was
subject to the proviso that the Secretary of the Interior should
cause the quantity of land stipulated to be selected in as
compact
Page 227 U. S. 624
form as possible,
"the same, when so selected, to be held for the exclusive use
and occupation of said Indians, and the remainder of said
reservation to be thereupon restored to the public domain, and
shall be disposed of to actual settlers under the homestead
laws,"
etc. Irrespective of the general recognition of the guardianship
of the government over the Indians, the clear antithesis in this
proviso between the disposition of other lands to settlers and the
retention of the lands in question for the use and occupation of
the Indians admits of but one construction.
The Executive order of August 1, 1886, is consistent with this.
So are the decisions of the General Land Office and the Secretary
of the Interior, already referred to (16 L.D. 15; 32 L.D. 568).
And the Act of March 3, 1905 (33 Stat. 1064, c. 1479), above
quoted, expressly authorizing and directing the Secretary of the
Interior to issue a patent to Long Jim for the lands that had been
allotted to him, is a recognition by Congress that without the act
he had no right to the land in fee. Further corroboration is to be
found in the Act of March 8, 1906 (34 Stat. 55, c. 629), above
quoted, which requires patents to be issued, with a restriction
against alienation, to the other beneficiaries of the Moses
agreement.
The contention of the appellant that Long Jim had a title in fee
at the time of the making of the warranty deed in the year 1900
must therefore receive a negative response.
As to the effect of the warranty upon the after-acquired title,
while the general rule is that a conveyance with warranty estops
the grantor, when he afterwards becomes the owner of the land
assumed to be granted, to deny the grantee's title (Bigelow,
Estoppel, 2d ed. p. 324, etc.), it is well settled that the
doctrine does not apply to the case of a conveyance made by one
non sui juris or that is contrary to public policy or
statutory prohibition.
Bank of
Page 227 U. S. 625
America v. Banks, 101 U. S. 240,
101 U. S. 247;
Doe v. Ford, 3 Ad. & El. 649;
Den ex dem. Wooden
v. Shotwell, 24 N.J.L. 789;
Connor v. McMurray, 2
Allen 202, 204;
Doyle v. Coburn, 6 Allen 71, 72;
Merriam v. Boston &c. Railroad Co., 117 Mass. 241,
244;
Brick v. Campbell, 122 N.Y. 337, 346;
Kennedy v.
M'Cartney, 4 Porter (Ala.) 141, 158.
Since it is entirely plain, in the case before us, that the
title to the lands in question was retained by the United States
for reasons of public policy and in order to protect the Indians
against their own improvidence, it follows as matter of course that
a conveyance made by one of them before the title was vested in him
pursuant to the Act of 1905 was in the very teeth of the policy of
the law, and could not operate as a conveyance either by its
primary force or by way of estoppel.
Judgment affirmed.