The assignment of land provided for by Article IV of the treaty
of March 6, 1865, 14 Stat. 667, with the Omaha Indians was merely
an apportionment of the tribal right of occupancy to the members of
the tribe in severalty, leaving the fee in the United States
and
Page 245 U. S. 90
leaving the United States and the tribe free to take such
measures for the ultimate and permanent disposal of the lands,
including the fee, as might become appropriate in view of changing
conditions, the welfare of the Indians, and the public
interests.
The facts that the treaty does not say that the fee shall pass,
that it makes no provision for patents, and does not relieve
assignees from federal guardianship or subject them to state laws,
or dissolve the tribe, or abridge its power to speak and act for
its members, while it does expressly provide that all the lands,
assigned and unassigned, shall remain an Indian reservation,
subject to the Indian trade and intercourse laws of Congress, and
upon which white persons, other than federal employees, shall not
be allowed to reside or go without written permission from the
Indian agent or a superior officer, confirm this construction of
Article IV.
This construction also is confirmed by the practical
construction placed upon the treaty by the United States and the
tribe, as evidenced by the terms of the certificates of assignment,
the petition of a number of the assignees, including chiefs who had
participated in the treaty, for a better tenure, the passage of the
Act of August 7, 1882, c. 434, 22 Stat. 341, to become operative
when consented to by the tribe, the acceptance of that act by the
tribe, and the execution of the act through the surrender and
accounting for outstanding certificates of assignment, and the
making and acceptance of allotments under it -- a construction of
the treaty which has become practically a part of it and could not
be now rejected without seriously disturbing the titles of those
who not unreasonably relied upon it.
Possessory rights based on assignments made under Article IV of
the treaty of 1865,
supra, were terminated by the Act of
1882,
supra. An assignee who failed to exercise his
preferred right of selection waived it, and his assigned tract
became allottable to any other qualified selector.
The provision in § 4 of the Act of August 7, 1882,
supra, that "any right in severalty acquired by any Indian
under existing treaties shall not be affected by this act" was not
intended to qualify the plan of allotment defined in § 5, but only
to prevent the sale under the earlier and separable portion of the
act of tracts subject to Indian rights in severalty acquired under
treaties.
A patent for an allotment issued under the Act of August 7,
1882,
supra, in the name of an Indian who was dead at the
time, inures to the benefit of his heir under § 2448, Rev.Stats.;
the fact that the patentee had died before requisite proceedings
had been taken
Page 245 U. S. 91
upon his selection would not render the patent void, but, at
most, voidable in an appropriate proceeding. Such a patent cannot
be attacked by a mere occupant of the allotment in an action
brought by the United States and the patentee's heir to recover
damages for wrongful use and occupation of the premises.
222 F. 593, reversed.
The case is stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is an action to recover for the wrongful use and occupancy
of 40 acres of land in Nebraska to which two Omaha Indians assert
conflicting claims. The land is within the Omaha Indian
reservation, was assigned in 1871 under the treaty of March 6,
1865, 14 Stat. 667, to Clarissa Chase, a member of the Omaha tribe,
and was allotted in 1899 under the Act of August 7, 1882, c. 434,
22 Stat. 341, to Reuben Wolf, another member of the tribe. The
defendant, who has been using and occupying the land for some time,
claims as the sole heir of Clarissa Chase, and the other claimant,
for whom the United States sues as trustee and guardian, claims as
the sole heir of Reuben Wolf. In the district court, judgment went
against the defendant, but he prevailed in the circuit
Page 245 U. S. 92
court of appeals. 222 F. 593. Whether the assignment to Clarissa
Chase under the treaty passed the full title in fee or only the
Indian right of occupancy, and whether all right under the
assignment was extinguished prior to the allotment to Reuben Wolf
under the Act of 1882 are the controlling questions.
The reservation was established and maintained under early
treaties as the tribal home. The Indian right of possession was in
the tribe, and the fee in the United States. The possessory right
was enjoyed by all the members in common, none having a several
right in any part of the reservation. While this was so, the treaty
of 1865 was negotiated. By it, the tribe ceded a portion of the
reservation to the United States and the latter, in consideration
of the cession, engaged to make certain payments to the Indians and
to take certain measures, not material here, for their benefit. The
treaty then proceeded:
"Article IV. The Omaha Indians, being desirous of promoting
settled habits of industry and enterprise amongst themselves by
abolishing the tenure in common by which they now hold their lands,
and by assigning limited quantities thereof in severalty to the
members of the tribe, including their half or mixed blood relatives
now residing with them, to be cultivated and improved for their own
individual use and benefit, it is hereby agreed and stipulated that
the remaining portion of their present reservation shall be set
apart for said purposes, and that, out of the same, there shall be
assigned to each head of a family not exceeding one hundred and
sixty acres, and to each male person, eighteen years of age and
upwards, without family, not exceeding forty acres of land -- to
include in every case, as far as practicable, a reasonable
proportion of timber; six hundred and forty acres of said lands,
embracing, and surrounding the present agency improvements, shall
also be set apart and appropriated to the occupancy and use of the
agency for said Indians.
Page 245 U. S. 93
The lands to be so assigned, including those for the use of the
agency, shall be in as regular and compact a body as possible, and
so as to admit of a distinct and well defined exterior boundary.
The whole of the lands, assigned or unassigned, in severalty, shall
constitute and be known as the Omaha reservation, within and over
which all laws passed or which may be passed by Congress regulating
trade and intercourse with the Indian tribes shall have full force
and effect, and no white person, except such as shall be in the
employ of the United States, shall be allowed to reside or go upon
any portion of said reservation without the written permission of
the superintendent of Indian affairs or the agent for the tribe.
Said division and assignment of lands to the Omahas in severalty
shall be made under the direction of the Secretary of the Interior,
and, when approved by him, shall be final and conclusive.
Certificates shall be issued by the Commissioner of Indian Affairs
for the tracts so assigned, specifying the names of the individuals
to whom they have been assigned respectively, and that they are for
the exclusive use and benefit of themselves, their heirs, and
descendants, and said tracts shall not be alienated in fee, leased,
or otherwise disposed of except to the United States or to other
members of the tribe, under such rules and regulations as may be
prescribed by the Secretary of the Interior, and they shall be
exempt from taxation, levy, sale, or forfeiture until otherwise
provided for by Congress."
Some of the Omahas sought and received assignments under this
article, while others, although having the requisite status,
neither sought nor received anything under it. Clarissa Chase was
among those who obtained an assignment of 160 acres as the head of
a family, and, in 1871, a certificate evidencing her assignment was
issued to her by the Commissioner of Indian Affairs. The 160 acres
included the 40 acres now in question.
Page 245 U. S. 94
Without any doubt, the fourth article contains provisions which,
in other situations, would suggest a purpose to pass the full title
in fee. This is true of the provisions that the assignments, when
approved by the Secretary of the Interior, "shall be final and
conclusive," that the certificates to be issued by the Commissioner
of Indian Affairs shall specify that the tracts assigned are for
the exclusive use and benefit of the assignees, "their heirs and
descendants," and that the tracts shall not be "alienated in fee,
leased, or otherwise disposed of except to the United States or to
other members of the tribe." But, as applied to the situation then
in hand, these provisions are consistent with a purpose to
apportion the Indian possessory right, leaving the fee in the
United States as before. The assignments, when approved, could well
operate as a final and conclusive apportionment of that right
without affecting the fee, and the right of each assignee to occupy
and use the tract assigned to him, to the exclusion of other
members, could well pass to his heirs and descendants, upon his
death, without his being invested with the fee. If not invested
with it, he, of course, could not alienate it, and a cautious
provision intended to prevent him from attempting to do so hardly
would enlarge his right. True, the provision vision says, "except
to the United States or to other members of the tribe," but, as the
restriction is also directed against leasing or other disposal, it
is not improbable that the real purpose of the excepting clause is
to qualify this part of the restriction. In any event, the
implication attributed to the provision is too uncertain to afford
a substantial basis for thinking the assignee was to take the
fee.
Other provisions and considerations suggest that an
apportionment of the tribal possessory right is all that was
intended. The article directly provides for a change in tenure --
an "assignment or division" in severalty of communal property.
Nothing is said about passing the
Page 245 U. S. 95
fee held by the United States, and there is no provision for
patents. The assignees are neither relieved from federal
guardianship nor subjected to state laws. And there is no
dissolution of the tribal organization, nor any abridgment of the
accustomed power of the tribe, as such, to speak and act for its
members. But there is express provision that all the lands,
assigned and unassigned, shall remain an Indian reservation over
which the Indian trade and intercourse laws of Congress shall be in
force, and upon which no white person, not in the employ of the
United States, shall be allowed to reside or go without written
permission from the Indian agent or a superior officer. All this
persuasively points to the absence of any purpose to do more than
to individualize the existing tribal right of occupancy.
A like question was presented and considered in
Veale v.
Maynes, 23 Kan. 1, a case arising out of the treaties of 1861
and 1867 with the Pottawatomie Indians. The earlier treaty
provided, in language similar to that now under consideration, for
the assignment of portions of the tribal reservation to individual
members in severalty, and for the issue by the Commissioner of
Indian Affairs of certificates for the assigned tracts,
"specifying the names of the individuals to whom they have been
assigned respectively, and that said tracts are set apart for the
perpetual and exclusive use and benefit of such assignees and their
heirs."
Assignments were made and certificates issued under that treaty,
and thereafter the treaty of 1867 was negotiated. Following its
provisions, a tract assigned under the earlier treaty to one member
was conveyed by a patent in fee to another. This was claimed to be
violative of the right conferred by the assignment, but the right
under the patent was sustained. Speaking for the Supreme Court of
Kansas, and particularly referring to the earlier treaty, Mr.
Justice Brewer, then a member of that court, said:
Page 245 U. S. 96
"Now, what was intended by this division -- that the title be
thus divided up, or the mere matter of occupancy? Of course, either
was within the power of the contracting parties. They might provide
for a division among the several Indians which should vest an
absolute title in each, beyond the power of the tribe or the
government to disturb without the personal consent of the
individual, or they might provide for an individualizing of the
right of occupancy, giving to each person a sole right of occupancy
in a particular tract, a right guaranteed against invasion by any
individual, but still within the power of the tribe as a tribe to
convey by treaty. In other words, while that remained the tribal
home, each individual desiring it should have separate control of
certain lands, yet subject to the ultimate power of the tribe to
change their home and to make absolute conveyance of the whole body
of lands. The power of the tribe, as a tribe, remained undisturbed
over both the allotted lands and those held in common. That this
was the intent and effect of the treaty we are constrained to hold,
and this notwithstanding many expressions which, if used in
ordinary contracts between individuals, would have marked
significance to the contrary."
". . . At present it is enough to notice that the allottee
remained a member of the tribe, and if the intention had been to
enlarge his title from the ordinary Indian title, one of occupancy,
to that of a fee simple, the intention would, it seems, have been
expressed in unmistakable terms. If, on the other hand, a
difference was to be made in the mere manner in which the various
Indians occupied the tribal home, it was enough that that
difference was made clear, and language used to indicate that
should not be carried to some further meaning."
In
Wiggan v. Conolly, 163 U. S. 56,
163 U. S. 63, where
the rights of an allottee, who was still a tribal Indian, were
restricted by treaty after the allotment was made, this Court
said:
Page 245 U. S. 97
"The land and the allottee were both still under the charge and
care of the Nation and the tribe, and they could agree for still
further protection a protection which no individual was at liberty
to challenge."
But, if the terms of the treaty of 1865 be regarded as confused
or uncertain, the question still must be resolved in the same way,
for the parties -- the United States and the tribe -- have in
practice placed upon the treaty the construction to which we are
inclined. In the certificates issued by the Commissioner of Indian
Affairs and accepted by the assignees, it was declared that:
"the said [assignee] is entitled to and may take immediate
possession of said land and occupy the same, and the United States
guarantees such possession, and will hold the title thereto in
trust for the exclusive use and benefit of [the assignee] and _____
heirs so long as such occupancy shall continue."
The obvious import of this is that the assignee was to have a
right of occupancy, but not the fee. In January, 1882, a
considerable number of the assignees, some being chiefs who had
participated in the negotiation of the treaty and whose names were
signed to it, memorialized Congress as follows (Sen. Mic. Doc., No.
31, 47th Cong., 1st Sess.):
"We, the undersigned, members of the Omaha tribe of Indians,
have taken out certificates of allotment of land, or entered upon
claims within the limits of the Omaha reserve. We have worked upon
our respective lands from three to ten years; each farm has from
five to fifty acres under cultivation; many of us have built houses
on these lands, and all have endeavored to make permanent homes for
ourselves and our children."
"We therefore petition your honorable body to grant to each one
a
clear and full title to the land on which he has
worked."
"We earnestly pray that this petition may receive
Page 245 U. S. 98
your favorable consideration, for we now labor with
discouragement of heart,
knowing that our farms are not our
own, and that, any day, we may be forced to leave the lands on
which we have worked. We desire to live and work on these farms
where we have made homes, that our children may advance in the life
we have adopted. To this end, and that we may go forward with hope
and confidence in a better future for our tribe,
we ask of you
titles to our lands."
Shortly after the presentation of this memorial, a bill
providing for the sale of the western part of the Omaha reservation
passed the Senate. At that time, the only provision in the bill
having any possible reference to the existing assignments was a
saving clause in its fourth section, declaring that "any right in
severalty acquired by any Indian under existing treaties shall not
be affected by this act." In the House of Representatives, four new
sections were added, and in that form the bill became the Act of
August 7, 1882, before cited. The new sections, 5 to 8, contain
elaborate provisions for making allotments in severalty out of the
unsold portion of the reservation, for adjusting the situation to
which the Indian memorial invited attention, for the issue of trust
patents and patents carrying the fee, for disposing of the surplus
lands in the reservation, and for ultimately bringing the Indians
within the operation of state laws. The fifth section, the one
providing for allotments and dealing with the existing assignments,
was both comprehensive and easily understood. It was in the nature
of a proposal, and, in terms, required "the consent of the Omaha
tribe of Indians, expressed in open council" to make it operative.
Shortly stated, what it proposed was this: all unsold lands,
including those theretofore assigned under the treaty of 1865, were
to be available for allotments. The right to receive allotments was
to be accorded to the members generally, including those holding
assignments under the
Page 245 U. S. 99
treaty. The allotments were to be on a scale
* of 160 acres to
each head of a family, 80 acres to each single person over 18 years
of age, 80 acres to each orphan child under 18 years, and 40 acres
to each other person under 18 years. The Indians were severally to
select the lands to be allotted to them, heads of families
selecting for their children, and the agent selecting for orphan
children. These allotments were to be "deemed and held to be in
lieu of" the assignments under the treaty of 1865, but each
assignee, when selecting the lands to be allotted to him, was to be
accorded "a preference right" to select the tract embracing his
improvements. In short, all rights under the assignments, as such,
were to be extinguished, and each assignee was to have the same
right to take an allotment as was accorded to other members, but
with a preferred right to make his selection in such way that his
allotment would include his improvements. The sixth section
provided for the issue of trust patents covering a period of 25
years, and for full patents conveying the fee at the end of that
period.
The tribe, in open council, gave its consent to this plan of
allotment and adjustment, and, through the cooperation of the
administrative officers and the tribe, the plan was carried to
completion. The report of the allotting agent shows that, of the
297 outstanding certificates of assignment, 230 were produced and
surrendered, and 67 were accounted for as lost by fire, flood, or
other accident, and that most of the certificate holders took the
assigned tracts for their allotments, others selecting different
lands. Thus, it is apparent that the parties to the treaty -- the
United States and the tribe -- have in all their dealings relating
to the subject proceeded upon the theory that what was intended by
article IV and what
Page 245 U. S. 100
was accomplished by the assignments under it was merely a
distribution or apportionment of the tribal right of occupancy,
leaving the fee in the United States and leaving the United States
and the tribe free to take such measures for the ultimate and
permanent disposal of the lands, including the fee, as might become
essential or appropriate in view of changing conditions, the
welfare of the Indians, and the public interests. This construction
of the treaty by those who entered into it and to whom its proper
administration and application were of obvious importance has
become practically a part of it, and could not be rejected now,
after the lapse of many years, without seriously disturbing the
titles of those who, not unreasonably, relied upon it.
Concluding, as we do, that the assignment to Clarissa Chase
passed only the Indian or tribal right of occupancy, the remaining
question is not difficult of solution. She took that right as it
was held by the tribe, without enlargement or diminution. It was
merely individualized. Upon her death in 1875, it passed to the
defendant, he being her sole heir. The Act of 1882, consented to by
the tribe, put into effect a general plan of allotment which
completely displaced the Indian right of occupancy and, in that
sense, terminated all right under the assignment. Under that plan,
the assigned tract was available for allotments, and the defendant
was entitled to an allotment. He could select the assigned tract
for his allotment -- indeed, he had a preferred right to do so. He
could exercise that right or waive it and select other lands. But
he could not select other lands and also hold the assigned tract.
He was entitled to one allotment, not two. If not selected by him,
the tract in question would be open to selection by another. He
does not assert that he selected it, or that he was denied the
right to do so, or that he received less than a full allotment
without this tract. But he claims that the assignment
Page 245 U. S. 101
passed the title in fee, and in consequence was an
insurmountable obstacle to the allotment of the tract under the Act
of 1882. This claim, as has been shown, is untenable. All that
passed by the assignment was a possessory right, and this was
terminated by the Act of 1882.
Some reliance is had upon the provision in § 4 that "any right
in severalty acquired by any Indian under existing treaties shall
not be affected by this act." But this, as an examination of the
act discloses, is merely a saving clause in that part of the act
providing for the sale of a distinct portion of the reservation. If
the provision be read in connection with what is said in § 5 in
dealing with allotments and with assignments under the treaty, it
becomes manifest that it was not intended to interfere with or
qualify the plan of allotment as defined in that section, but only
to prevent the sale under the earlier and separable portion of the
act of any tract to which an Indian had a right in severalty under
a treaty. The legislative history of the act also sustains this
view.
See Cong.Rec. 47th Cong., 1st Sess., pp. 3028-3032,
3077-3079.
According to the pleadings, Reuben Wolf died at some time after
selecting the tract for his allotment, and before the issue of the
patent in his name, and this is set up as an obstacle to a recovery
on behalf of his heir. If there be any merit in this objection, it
does not render the patent void, but only voidable. A statute in
force for many years, and which this Court has applied to a patent
issued under an Indian treaty for Indian lands, provides that,
where the person to whom the patent issues is dead at the time, the
title shall inure to and become vested in his heirs, devisees, or
assigns, as if the patent had issued in his lifetime. Rev.Stats. §
2448;
Crews v.
Burcham, 1 Wall. 352,
68 U. S. 357.
Thus, the fact that Reuben Wolf was dead when the patent issued is,
in itself, of no moment. If his selection had not advanced before
his death to the
Page 245 U. S. 102
point where the patent properly could be issued thereafter, that
is a matter of which only the United States and the tribe can
complain -- and then only in an appropriate proceeding. Apparently
both are content to let the patent stand, and certainly it is not
open to the defendant to make the objection.
It results that the judgment of the circuit court of appeals
must be reversed, and that of the district court affirmed.
It is so ordered.
* The quantity of some of the allotments was subsequently
enlarged with the consent of the tribe. Act March 3, 1893, c. 209,
27 Stat. 630.