Where plaintiff in error was defendant in the state court in a
suit upon a contract to convey Indian allottee lands and relied as
a defense upon an act of Congress making the conveyance invalid, he
is entitled to come to this Court.
Nutt v. Knut,
200 U. S. 12.
While one may contract that a future event shall come to pass
over which he has no, or only a limited, power,
Globe Re;fining
Co. v. Landa Cotton Co., 190 U. S. 540, he
is not liable for nonperformance of, nor can he be compelled to
perform, a contract that, on its face requires an illegal act
either of himself or of a third party.
A contract that invokes prohibited conduct makes the contractor
a contributor to such conduct.
Kalem Co. v. Harper Bros.,
222 U. S. 55.
A contract tending to bring to bear improper influence upon an
officer of the United States and to induce attempts to mislead him
is contrary to public policy, and nonenforceable.
The protection of the Indians in their title to allotments is
the policy of the United States, and one that the states cannot
regard or disregard at will.
Where a contract affecting Indian lands might be held
unenforceable as a matter of common law, but this Court construes a
federal statute
Page 235 U. S. 100
broadly so as to include such a contract within its
prohibitions, this Court has jurisdiction to review under § 237,
Judicial Code.
The United States can make its prohibitions on alienation of
Indian allotments binding upon others than Indians to the extent
necessary to carry out its policy of protecting the Indians in
retaining title to the land allotted to them.
87 Kan. 536 reversed.
The facts, which involve the validity of a contract for sale of
allotted Indian lands during the period of restriction on
alienation, are stated in the opinion.
Page 235 U. S. 103
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is an action brought by the defendant in error (Hampe) to
recover damages for breach of a contract to
Page 235 U. S. 104
purchase certain land and to convey to the plaintiff certain
other land of greater value. The answer alleges that the land to be
conveyed by the defendant (Sage) was Indian land, not belonging to
him but allotted and patented to members of the Pottawatomie Tribe
under the Act of Congress of February 8, 1887, c. 119, 24 Stat.
388. By § 5 of that act, any conveyance or contract touching such
land within twenty-five years from the date of the allotment and
trust patent was made null and void, and it is alleged that the
period had not expired and had not been abrogated at the date of
the contract. Evidence was offered to prove the facts alleged, but
was excluded, subject to exception. It is unnecessary to set forth
the contract more particularly because, whatever doubts might be
felt whether it was or could be shown to be a contract for specific
land, the case was tried on the footing that it was such a
contract, and the breach and the damages, so far as we can judge,
both depended on that view. The Supreme Court of Kansas was of the
same opinion, and held that, notwithstanding the character of the
land contracted for and the statute, the defendant, being a
stranger to the allotment, was bound by his contract so far as to
be liable in damages at law. 87 Kan. 536.
The defendant relied upon the act of Congress as a defense, and
is entitled to come to this Court.
Nutt v. Knut,
200 U. S. 12. With
regard to that defense, no doubt it is true that a man may contract
that a future event shall come to pass over which he has no, or
only a limited, power.
Globe Refining Co. v. Landa Cotton Oil
Co., 190 U. S. 540,
190 U. S. 545.
And we assume in accordance with the decision of the Kansas courts
that the principle applies to contracts for the conveyance of land
that the contractor does not own. But that principle is not enough
to dispose of the case, even if, subject to what we have to say
hereafter, the universality of the invalidating language of the
statute ("any contract") be confined to
Page 235 U. S. 105
contracts by the owners of the land. A contract that, on its
face, requires an illegal act either of the contractor or a third
person no more imposes a liability to damages for nonperformance
than it creates an equity to compel the contractor to perform. A
contract that invokes prohibited conduct makes the contractor a
contributor to such conduct.
Kalem Co. v. Harper Brothers,
222 U. S. 55,
222 U. S. 63. And,
more broadly, it long has been recognized that contracts that
obviously and directly tend in a marked degree to bring about
results that the law seeks to prevent cannot be made the ground of
a successful suit.
Providence Tool Co. v.
Norris, 2 Wall. 45;
Trist v.
Child, 21 Wall. 441;
Oscanyan v. Winchester
Repeating Arms Co., 103 U. S. 261;
Fuller v. Dame, 18 Pick. 472. It appears to us that this
is a contract of that class. It called for an act that could not be
done at the time, and it tended to lead the defendant to induce the
Indian owner to attempt what the law, for his own good, forbade.
Such contracts, if upheld, might be made by parties nearly
connected with the Indian, and strongly tend by indirection to
induce him to deprive himself of rights that the laws seeks to
protect.
It is true that later statutes in force when the contract was
made allowed a conveyance with the approval of the Secretary of the
Interior. Act of August 15, 1894, c. 290, 28 Stat. 286, 295. Act of
May 31, 1900, c. 598, § 7, 31 Stat. 221, 247. The Kansas court laid
these statutes on one side, and, in our view, also they do not
affect the case. The purpose of the law still is to protect the
Indian interest, and a contract that tends to bring to bear
improper influence upon the Secretary of the Interior, and to
induce attempts to mislead him as to what the welfare of the Indian
requires, are as contrary to the policy of the law as others that
have been condemned by the courts.
Kelly v. Harper, 7 Ind.
Terr. 541.
See Larson v. First National Bank, 62 Neb. 303,
308.
Page 235 U. S. 106
The only doubt open in the present position of the case is
whether the ground upon which we hold the contract unenforceable is
not a matter of common law, which we may think that the Kansas
courts ought to apply, but which is not open to review here. The
case at first sight seems like those in which a state decides to
enforce or not to enforce a domestic contract notwithstanding or
because of its tendency to cause a breach of the law of some other
state.
Graves v. Johnson, 176 Mass. 53, 156 Mass. 211. But
the policy involved here is the policy of the United States. It is
not a matter that the states can regard or disregard at their will.
There can be no question that the United States can make its
prohibitions binding upon others than Indians to the extent
necessary effectively to carry its policy out, and therefore, as on
the grounds that we have indicated, the contract contravenes the
policy of the law, there is no reason why the law should not be
read, if necessary, as broad enough to embrace it in terms.
Judgment reversed.
