In the exercise of its guardian powers over tribal Indians
through allotment of lands of their reservation and conversion of
surplus lands into tribal funds, Congress is free to adjust its
action to meet new and changing conditions so long as no
fundamental right is violated.
Having enrolled a white man as an adopted member of an Indian
tribe, and authorized and directed the Secretary of the Interior to
issue him a patent in fee for a designated tract of the tribal land
as his allotment, to be in lieu of all claim on his part to
allotment or to money settlement in lieu thereof, Congress had
power to recall the direction before the fee had passed, upon
finding that the tract designated had been lawfully devoted to a
special use (
e.g., school purposes) from which it could
not be withdrawn with due regard for the tribe, or that in
situation and value it exceeded a fair distributive share of the
common property -- this without prejudice to the right of the
allottee to obtain another allotment in the usual way.
An act of Congress directing the Secretary of the Interior "to
issue a patent in fee" to a designated member of an Indian tribe
for a designated tract of land set apart as his allotment, but
containing no other words indicative of an intention to pass title
by the act itself,
held not a grant
in
praesenti.
Such a provision calls for no acceptance other than such as
would be implied from taking the patent when issued.
Page 243 U. S. 465
A direction by Congress that a patent be issued an individual
for land assigned him as an Indian allotment is to be regarded, not
as a proposal by the government which upon acceptance makes a
contract, but as a law amendable and repealable at the will of
Congress, subject to the qualification that rights created by the
execution of such provision cannot be divested or impaired.
Levey v. Stockslager, Commissioner, 129 U.
S. 470.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is an action in ejectment, brought by the United States
against James F. Rowell and two others. The land in controversy is
a quarter section -- 160 acres -- in an Indian school reserve in
Comanche County, Oklahoma.
Three statutes, all enacted in the same year, must be noticed.
The first of these is a provision in the Act of April 4, 1910, c.
140, 36 Stat. 269, 280, authorizing and directing the Secretary of
the Interior "to enroll and allot" James F. Rowell as an adopted
member of the Kiousa Tribe of Indians. The second is the following
provision in the Act of June 17, 1910, c. 299, § 3, 36 Stat. 533:
"That the Secretary of the Interior is hereby authorized and
directed to issue a patent in fee for" the tract in controversy
"to James F. Rowell, a full member of the Kiousa, Comanche, and
Apache Tribes of Indians of Oklahoma, who has heretofore received
no allotment of land from any
Page 243 U. S. 466
source, this to be in lieu of all claims to any allotment of
land or money settlement in lieu of an allotment."
And the third is the express repeal of the provision just quoted
by the Act of December 19, 1910, c. 3, 36 Stat. 887. The
controversy turns chiefly upon the true construction and effect of
the provision of June 17 and the constitutional validity of the
repealing provision of December 19. These questions are to be
solved in the light of the following facts:
A patent was not issued to Rowell. He asked for one, but at the
suggestion of the chairman of the Committees on Indian Affairs in
the Senate and House of Representatives, the President, in whose
name such patents are issued, withheld his signature from the
patent and directed that nothing be done until Congress could
further consider the matter. Congress was not then in session, and
when it reconvened, the matter was again considered, with the
result that the provision in the Act of June 17 was repealed.
The tract in controversy was part of a large reservation
established by treaties in 1868 as a permanent home for the Kiousa,
Comanche, and Apache Indians. 15 Stat. 581, 589. In 1901, the
members of these tribes were given allotments in severalty in this
reservation and the greater part of the remaining lands was
disposed of by the United States, what was deemed to be their fair
value being credited to the Indians as a trust fund. 31 Stat. c.
813, § 6. At that time, a portion of the reservation embracing the
tract in controversy was set apart for school purposes for these
Indians, and this school reserve is still maintained and used for
their benefit. The tribal relation of these Indians has not been
terminated. They are still in a state of pupilage and under the
control of the United States. It retains the title to their
allotments, and administers their tribal affairs and property.
James F. Rowell is a white man who went to the large
Page 243 U. S. 467
reservation as an Indian trader in 1899 and has since lived with
these Indians. He is a physician, and has practised among them. In
1903, he married a Kiousa woman, and in 1909 was adopted as a
member of the tribe. His wife received an allotment from the tribal
lands in 1900, and some of their children received allotments in
1906 or 1908. 34 Stat. c. 2580, § 6; 35 Stat. c. 216, § 24. But no
allotment had been made to him when the provision of June 17, 1901,
was enacted. It was enacted at his solicitation, and the Committees
on Indian Affairs in the Senate and House of Representatives, in
recommending its repeal, reported that it was enacted in the belief
that the tract described was of no greater value than the average
of those allotted to other members of the tribe, or than other
tracts still subject to allotment, when in truth it was of vastly
greater value, and that misrepresentation and deception were
practised by Rowell in securing the legislation. Senate Report No.
924 and House Report No. 1741, 61st Cong.3d sess. About two years
before, the south half of the same section -- 320 acres -- had been
sold for townsite purposes under the Act of March 27, 1908, c. 106,
35 Stat. 49, for upwards of $250,000.
In June, 1911, six months after the date of the repealing act,
Rowell entered upon the tract in controversy, and since then his
remained in possession, although promptly notified, through the
Indian agent, that he was a trespasser and must vacate the
premises. One of the defendants is Rowell's wife and another is the
wife of a lawyer who assisted him in securing the passage of the
provision which Congress felt called upon to repeal. She holds a
deed from Rowell, made after the date of the repealing act, and
purporting to convey to her an undivided one-half interest in the
tract for a recited consideration of $50,000. The three defendants
had come to be in possession when the action was begun. In the
district court,
Page 243 U. S. 468
there was a directed verdict and a judgment for the
defendants.
Congress was here concerned with the affairs of Indians whose
tribal relation had not been dissolved -- Indians who were still
wards of the United States and entitled to look to it for
protection. The plan of giving them individual allotments in the
reservation theretofore established as a tribal home, and of
converting the surplus lands into interest-bearing funds, was not
theirs. But it was obligatory on them, because it was adopted by
Congress in the exercise of its control over them. As in other
instances, the wish of the ward had to yield to the will of the
guardian. And Congress was free to exert this guardianship in any
manner which it deemed appropriate, and to adjust its action to new
or changing conditions, so long as no fundamental right was
violated.
*
In view of the scope of this power, as reflected by over a
century of practice and by the decisions of this Court, we think it
was quite admissible for Congress to give effect to Rowell's status
as an adopted member of the tribe, to recognize his claim to an
allotment out of the tribal lands, to designate the land which he
should receive, and to direct that it be conveyed to him by a
patent in fee without awaiting the expiration of the usual trust
period of twenty-five years. And if, before that direction was
complied with, it was discovered that the land designated was
lawfully devoted to a special use from which it could not be
withdrawn with due regard for the tribe in general, or that its
situation and value were such that to allot or to convey it to him
would invest him with much more than a fair distributive share of
the common property of the tribe, we think it was equally
admissible for Congress
Page 243 U. S. 469
to recall that direction in the interest of the tribe as a
whole. At most, that direction was but an exertion of the
administrative control of the government over the tribal property
of tribal Indians, and was subject to change by Congress at any
time before it was carried into effect.
Gritts v. Fisher,
224 U. S. 640,
224 U. S. 648.
If the rule were otherwise, and the quarter-section upon which the
Indian school buildings are situate had been inadvertently
designated as the land which he should receive, the situation might
have been one of great embarrassment.
See United States v. Des
Moines Navigation & Railway Co., 142 U.
S. 510,
142 U. S. 544;
United States v. Old Settlers, 148 U.
S. 427,
148 U. S. 466;
Cooley, Const.Lim., 7th ed. 257-259.
But it is insisted that the provision of June 17, 1910, was a
grant
in praesenti, and operated, in itself, to pass the
full title to Rowell, and therefore that he had a vested right in
the land which the repealing act could not affect. If the premise
be right, the conclusion is obviously so. But is the premise right?
Of course, a grant may be made by a law as well as by a patent
issued pursuant to a law, but whether a particular law operates, in
itself, as a present grant is always a question of intention. We
turn therefore to the provision relied upon to ascertain whether it
discloses a purpose to make such a grant -- that is to say, a
purpose to pass the title immediately without awaiting the issue of
a patent. We find in it no words of present grant, but only a
direction to the Secretary of the Interior "to issue a patent in
fee" to Rowell for the tract described. Only through this express
provision for a patent do we learn that a grant is intended, and,
if it were eliminated, nothing having any force would remain. This,
we think, shows that a present statutory grant was not intended,
but only such a grant as would result from the issue of a patent as
directed. The cases cited as making for a different conclusion are
plainly distinguishable in that they deal with laws or treaties
making grants, and
Page 243 U. S. 470
either containing no provision for a patent or providing for one
merely by way of further assurance.
It is also insisted that, by applying for a patent before the
provision therefor was repealed, Rowell accepted that provision,
and thereby acquired a right to have it carried into effect of
which he could not be devested by the repealing act consistently
with due process of law. But the provision did not call for an
acceptance, and it is evident that none was contemplated other than
such as would be implied from taking the patent when issued.
Besides, statutes of this type are not to be regarded as proposals
by the government to enter into executory contracts, but as laws
which are amendable and repealable at the will of Congress, save
that rights created by carrying them into effect cannot be devested
or impaired.
Gritts v. Fisher, supra; Choate v. Trapp,
224 U. S. 665,
224 U. S. 671;
Sizemore v. Brady, 235 U. S. 441,
235 U. S. 449.
A case much in point is
United States ex Rel. Levey v.
Stockslager, 129 U. S. 470. The
facts out of which it arose are these: by an Act of March 2, 1867,
Congress confirmed to the widow and children of a deceased claimant
the one-sixth part, amounting to 75,840 acres, of an old land
claim, and then, after reciting that the government had
appropriated the land to other purposes, directed the Commissioner
of the General Land Office to issue to the widow and children
certificates of location in 80-acre lots locatable upon public
lands at any land office, in lieu of their asserted interest in the
old claim. Four days later, the widow and children requested the
Commissioner to issue the certificates, but the request was not
complied with. On the 30th of the same month, Congress, by a joint
resolution, approved by the President, directed that the execution
of the act be suspended, and the suspension was not subsequently
removed. The widow and children contended that, in view of what was
done, they were entitled, in a contractual sense, to the
certificates, and had acquired a vested right
Page 243 U. S. 471
to them of which they could not be deprived by the joint
resolution without denying them due process of law. But both phases
of their contention were denied, it being said in the course of the
opinion that "the whole thing remained in fieri and subject to the
control of Congress," that "there was here no contract between the
United States and the widow and children" in the sense contended,
that the joint resolution "did not deprive the widow and children
of any property, or right of property, in violation of the
Constitution," and that
"the transaction was merely the ordinary one of a direction by
statute to a public officer to perform a certain duty, and a
subsequent direction to him by statute, before he had performed
that duty or had entered upon its performance, not to perform
it."
For these reasons, we conclude that the repealing provision was
valid, and that, while it did not affect Rowell's status as an
adopted member of the tribe, or his right to obtain in the usual
way an allotment from the tribal lands not specially reserved, it
did revoke the special provision made in his behalf in the Act of
June 17, 1910.
It results that the verdict, instead of being directed for the
defendants, should have been directed for the government, as was
requested. This requires that the judgment be reversed and the
cause remanded for a new trial.
Judgment reversed.
*
Stephens v. Cherokee Nation, 174 U.
S. 445,
174 U. S. 488;
Cherokee Nation v. Hitchcock, 187 U.
S. 294,
187 U. S. 307;
Lone Wolf v. Hitchcock, 187 U. S. 553,
187 U. S. 564;
Gritts v. Fisher, 224 U. S. 640,
224 U. S. 648;
Choate v. Trapp, 224 U. S. 665,
224 U. S. 671;
Sizemore v. Brady, 235 U. S. 441,
235 U. S.
449.