The Nelson Act of January 14, 1889, c. 24, 25 Stat. 642, for
allotment to Chippewas of the White Earth Indian Reservation
contemplated only selections on the part of living Indians acting
for themselves or through designated representatives. There was no
displacement of the usual rule that incidents of tribal membership,
like the membership itself, are terminated by death.
Page 239 U. S. 63
While not conclusive, the construction given to an act of
Congress relative to Indian allotment in the course of its actual
execution by the Secretary of the Interior is entitled to great
respect, and ought not to be overruled without cogent and
persuasive reasons.
The fact that the act provided for a census of the Indian is not
conclusive that the allotments were to be made to all those
included in the census.
Fairbanks v. United States,
223 U. S. 215.
The Act of March 3, 1891, c. 561, 26 Stat. 1099, establishing a
six-year limitation for actions by the United States to annul
patents, has been construed as being part of the public land laws,
and refers to patents issued for public lands, and does not relate
to suits to annul trust patents for allotments of reserved Indian
lands.
The Act of April 23, 1904. c. 1489, 33 Stat. 297, limiting and
defining the authority of the Secretary of the Interior to correct
mistakes in, and to cancel, trust patents for Indian allotments
does not restrict or define the powers or jurisdiction of the court
to cancel such a patent.
198 F. 645 affirmed.
The facts, which involve the construction of the Nelson Act of
1889 and an allotment to a Chippewa Indian in the White Earth
Indian Reservation in Minnesota, are stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This is a suit to cancel a so-called trust patent for an
allotment in the White Earth Indian Reservation in Minnesota on the
ground that the allotment was made inadvertently and in
contravention of the Act of January 14, 1889, c. 24, 25 Stat. 642,
known as the Nelson act. In the circuit court, there was a decree
dismissing the bill
Page 239 U. S. 64
upon the merits, and this was reversed by the circuit court of
appeals with instructions to enter a decree according to the prayer
of the bill, subject to a qualification not here material. 198 F.
645.
The facts are not in dispute, and are these: Vincent La Roque,
in whose name the trust patent issued, was a Chippewa Indian born
in 1883 of parents residing on the White Earth Reservation, and was
among those whose names were included in the census of Minnesota
Chippewas, made under the Nelson act. Had he lived, he would have
been entitled to take an allotment under that act. He died shortly
after 1889 without an allotment being selected by or for him.
Thereafter, an application in his name for the allotment in
question was presented to the allotting officers, and upon this
application the allotment was made and the trust patent was issued,
both in his name, as if the selection were made while he was
living. Henry La Roque, the defendant, is his father, and, as sole
heir, claims the land under the allotment and trust patent.
Whether the Nelson Act contemplated that allotments should be
made on behalf of Indians otherwise entitled thereto, but who
should die without selecting or receiving them, is the principal
question for decision. The regulations and decisions of the
Secretary of the Interior, under whose supervision the act was to
be administered, show that it was construed by that officer as
confining the right of selection to living Indians, and that he so
instructed the allotting officers. While not conclusive, this
construction given to the act in the course of its actual execution
is entitled to great respect, and ought not to be overruled without
cogent and persuasive reasons.
United States v. Moore,
95 U. S. 760,
95 U. S. 763;
Hastings & Dakota R. Co. v. Whitney, 132 U.
S. 357,
132 U. S. 366;
United States v. Hammers, 221 U.
S. 220,
221 U. S. 225,
221 U. S. 228;
Logan v. Davis, 233 U. S. 613,
233 U. S. 627.
Not only so, but it receives additional force from its adoption by
the Circuit Court of Appeals for the Eighth Circuit
Page 239 U. S. 65
in
Woodbury v. United States, 170 F. 302, where it was
said by district judge Amidon, in speaking for that court:
"Until the allotment was made, Woodbury's right was personal --
a mere float -- giving him no right to any specific property. This
right, from its nature, would not descend to his heirs. They, as
members of the tribe, were severally entitled to their allotments
in their own right. To grant them the right of their ancestor, in
addition to their personal right, would give them an unfair share
of the tribal lands. The motive underlying such statutes forbids
such a construction."
The Nelson Act embodied a plan for securing a cession by the
several bands of Chippewa Indians in Minnesota of all reservations
occupied by them except portions of the White Earth and Red Lake
reservations required to make allotments, for removing to the White
Earth Reservation all the bands save those on the Red Lake
Reservation, for making allotments in severalty in the unceded
lands, and for disposing of the ceded lands, placing the net
proceeds at interest and distributing them in severalty at the end
of fifth years. Section 1 required that a census be made of each
tribe or band for the purpose of ascertaining whether the proper
number of Indians assented to the cession and "of making the
allotments and payments" contemplated, and Section 3 directed that,
following the census, the cession, and the removal to the White
Earth Reservation, allotments in severalty be made as soon as
practicable to the Red Lake Chippewas in the Red Lake Reservation,
and to the others in the White Earth Reservation, "in conformity
with" the general allotment act of February 8, 1887, c. 119, 24
Stat. 388, subject to a proviso that any Indian living on any of
the ceded reservations might, in his discretion, take his allotment
therein instead of moving to the White Earth Reservation.
The general allotment Act of 1887, in conformity with which the
Chippewa allotments were to be made, after
Page 239 U. S. 66
authorizing a survey of the reservation to be allotted, provided
for an allotment in severalty of a designated area "to any Indian
located thereon," and then directed that all allotments "be
selected by the Indians, heads of families selecting for their
minor children," and the agents selecting for orphan children, and
that,
"if anyone entitled to an allotment shall fail to make a
selection within four years . . . , the Secretary of the Interior
may direct a selection for such Indian"
to be made by an agent.
We think the terms of the general act contemplated only
selections on the part of living Indians, acting for themselves or
through designated representatives. The express provision for
selections in behalf of children and of Indians failing to select
for themselves, and the absence of any provision in respect of
Indians dying without selections, are persuasive that no selections
in the right of the latter were to be made. In other words, as to
them, there was no displacement of the usual rule that the
incidents of tribal membership, like the membership itself, are
terminated by death.
See Gritts v. Fisher, 224 U.
S. 640,
224 U. S. 642;
Oakes v. United States, 172 F. 305, 307. It is upon this
view that the execution of the general act and other similar acts
has proceeded. 30 L.D. 532; 40
id. 9; 42
id. 446,
582;
Woodbury v. United States, supra.
As calling for a different construction of the Nelson Act, the
defendant relies upon the provision for a census of the Indians,
and upon the report of the negotiations with them resulting in the
cession contemplated by the act, the contentions advanced being
that the provision for a census makes it clear that the census,
when completed, was to be accepted as finally determining who were
to receive allotments, and that the report of the negotiations
shows that the Indians gave their assent to the cession in the
belief that the right to select and receive an allotment would
not
Page 239 U. S. 67
be terminated by death, but would pass to the heirs of the
deceased. We are unable to assent to either contention. While that
act directed that a census be made "for the purpose," among others,
"of making the allotments" contemplated, we think this meant
nothing more than that the census should serve as a preliminary
guide in ascertaining to whom allotments should be made. There was
no direction that it be treated as controlling, or that allotments
be made to all whose names appeared therein, or only to them. The
work of allotment could not be undertaken at once. The cession was
not to be effective until approved by the President. Many of the
Indians were to be removed from the ceded reservations to the White
Earth Reservation, and much other work was required to prepare the
way. So it must have been contemplated that many changes would
occur in the membership of the several bands through deaths and
births before the allotments could be made. In
Fairbanks v.
United States, 223 U. S. 215, we
held that children born into the bands after the census were
entitled to allotments, although not listed in it, and we perceive
no reason for giving the census any greater effect in this case
than was given to it in that. No doubt it is to be accepted as an
authorized listing of the members of the several bands who were
living when it was made, but it has no other bearing in cases like
the present. The contention that the Indians understood that the
right to select and receive an allotment would not be terminated by
death, but would pass to the heirs of the deceased, is based upon
excerpts from addresses made to the Indians by the commissioners
representing the government in the negotiations. Even when read
apart from the context, these excerpts afford little basis for the
contention, and, when read with the context, they make against the
contention, rather than for it. The real effect of what was said
was that, on the death of any Indian "after receiving an
allotment," the land would pass
Page 239 U. S. 68
to his heirs, which is quite consistent with our construction of
the act.
The suit was brought between six and seven years after the date
of the trust patent, and because of this it is urged that the suit
was barred by ยง 8 of the act of March 3, 1891, c. 561, 26 Stat.
1099 (
see also c. 559, p. 1093), which provides that
"suits by the United States . . . to vacate and annul patents
hereafter issued shall only be brought within six years after the
date of the issuance of such patents."
This contention must be overruled upon the authority of
Northern Pacific Ry. v. United States, 227 U.
S. 355,
227 U. S. 367,
where it was held that this section is part of the public land
laws, and refers to patents issued for public lands of the United
States. This trust patent was not issued for public lands of the
United States, but for reserved Indian lands to which the public
land laws had no application. And it may be well to observe in
passing that the circuit court of appeals directed that there be
embodied in the decree a provision that the government holds the
lands in the same way it held them before the patent was issued --
that is, as reserved Indian lands.
Another objection to the suit is predicated upon the Act of
April 23, 1904, c. 1489, 33 Stat. 297, limiting and defining the
authority of the Secretary of the Interior to correct mistakes in
and to cancel trust patents for Indian allotments, but of this it
is enough to say that we concur in the view of the circuit court of
appeals that this section, which makes no reference to the courts,
discloses no purpose to restrict or define their jurisdiction or
powers in suits such as this.
Decree affirmed.
MR. JUSTICE McREYNOLDS took no part in the consideration or
decision of this case.