Whether or not, by a cession of lands from an Indian tribe, the
United States becomes trustee for the Indians or acquires an
unrestricted title depends in each case upon the terms of the
agreement or treaty by which the cession is made. P.
252 U. S.
164.
The Act of April 27, 1904, c. 1624, 33 Stat. 352, amending and
ratifying an agreement with the Crow Indians, established the
relation of trustee and beneficiary, the Indians ceding their
possessory rights in certain lands of which the fee was in the
United States and the United States undertaking to sell them
(sections 16 and 36 excepted) to settlers and to apply the proceeds
in specified ways for the benefit of the Indians.
Id.
Such lands therefore are not "public lands" of the United
States, but are Indian lands within the meaning of Rev.Stats. §
2117, which imposes a penalty for driving stock to range and feed
on any land belonging to any Indian or Indian tribe without the
tribe's consent. P.
252 U. S.
166.
Considered in the light of its purpose, early origin, and long
practical construction, Rev.Stats. § 2117 includes sheep under the
term "cattle."
Id.
The rule of strict construction is not violated by allowing the
words of a penal statute to have full meaning or the more extended
of two meanings, where such construction best harmonizes with the
context and most fully promotes the objects of the legislation. P.
252 U. S.
170.
An action by the United States to recover a statutory penalty
for a trespass is not barred by an earlier decree in equity
awarding it an injunction and nominal damages but denying a claim
for the penalty as incompatible with the equity jurisdiction.
Id.
250 F. 591, 254
id. 59, affirmed.
The cases are stated in the opinion.
Page 252 U. S. 163
MR. JUSTICE CLARKE delivered the opinion of the Court.
These two cases were argued and will be decided together.
No. 212 is an appeal from a decree, entered in a suit in equity,
in favor of the government granting a permanent injunction
restraining the appellant from trespassing upon described lands in
Montana by grazing sheep thereon, and for nominal damages for such
trespass.
No. 285 is a proceeding in error, in which reversal is sought of
a judgment rendered in an action at law against plaintiff in error,
appellant in the equity suit, for a penalty for the same
trespass.
The validity of the right asserted by the government in both
cases turns upon whether the lands involved were "Indian lands" or
"public lands." If they were the former, the decree in the equity
case should be affirmed, but in the law case there would remain the
question as to whether "sheep" were within the terms of the act
under which the penalty was imposed.
In both cases, the government contends that the appellant
violated § 2117 of the Revised Statutes of the United States, which
reads as follows:
"Every person who drives or otherwise conveys any stock of
horses, mules, or cattle, to range and feed on any land belonging
to any Indian or Indian tribe without the consent of such tribe is
liable to a penalty of one dollar for each animal of such
stock."
The company admits that it pastured 5,000 sheep on the described
lands without the consent of the Crow Tribe of Indians or of the
United States, but denies that they were "Indian lands" and
contends that they were "public lands," upon which it was lawful
for it to pasture its stock.
Whether the described lands were Indian or public lands depends
upon the construction to be given the Act of Congress, approved
April 27, 1904, c. 1624, 33 Stat. 352, entitled:
Page 252 U. S. 164
"An act to ratify and amend an agreement with the Indians of the
Crow Reservation in Montana, and making appropriations to carry the
same into effect."
The agreement embodied in this act of Congress provided for a
division of the Crow Indian Reservation in Montana on boundary
lines which were described, and the lands involved in this case
were within the part of the reservation as to which the Indians, in
terms, "ceded, granted and relinquished" to the United States all
of their "right, title and interest."
The argument of the Sheep Company is that, the United States
being owner of the fee of the land before the agreement, the effect
of this grant and release of their possessory right by the Indians
was to vest the complete and perfect title in the government, and
thereby make the territory a part of the public lands, with the
interest of the Indians transferred to the proceeds to be derived
from them. For this conclusion the following cases are cited:
United States v. Choctaw Nation, 179 U.
S. 494;
Bean v. Morris, 159 F. 651,
221 U. S. 221 U.S.
485. But, in the first of these cases, the Indians parted with
their possessory rights for a cash payment by the United States (p.
179 U. S.
527), and in the second, the character of the agreement
under which the Indian title was said incidentally to have
terminated does not appear.
Whether or not the government became trustee for the Indians or
acquired an unrestricted title by the cession of their lands
depends in each case upon the terms of the agreement or treaty by
which the cession was made.
Minnesota v. Hitchcock,
185 U. S. 373,
185 U. S. 394,
185 U. S. 398;
United States v. Mille Lac Band of Chippewa Indians,
229 U. S. 498,
229 U. S.
509.
The agreement we have in this case is elaborate, and, in
consideration of the grant by the Indians of their possessory
right, the government assumed many obligations with respect to the
lands and the proceeds of them, notably
Page 252 U. S. 165
that it would sell the land to settlers, except sections 16 and
36, for not less than $4 per acre and would pay the proceeds to the
Indians, under the direction of the Secretary of the Interior, in a
manner prescribed. Thus, the government contracted to expend
$90,000 of the proceeds of the land in the extension of the
irrigation system on the reservation remaining, $295,000 in the
purchase of stock to be placed on the reservation, with a further
contingent purchase in contemplation of $200,000, $40,000 in
fencing, $100,000 for schools, and $10,000 for a hospital for the
Indians, for the maintenance of which $50,000 additional was to be
held in trust. It was further provided that, to the extent that
feasible irrigation prospects could be found, parts of the released
lands should be withdrawn under the Reclamation Act and be disposed
of within five years, but not for less than $4 an acre.
There were many other like provisions, all intended to secure to
the Indians the fullest possible value for what are referred to in
the agreement as "their lands" and to make use of the proceeds for
their benefit.
It was provided that semiannual reports should be made by the
Secretary of the Interior to the Indians showing the amounts
expended from time to time and the amounts remaining in each of the
several funds.
It is obvious that the relation thus established by the act
between the government and the tribe of Indians was essentially
that of trustee and beneficiary, and that the agreement contained
many features appropriate to a trust agreement to sell lands and
devote the proceeds to the interests of the
cestui que
trust. Minnesota v. Hitchcock, 185 U.
S. 373,
185 U. S. 394,
185 U. S. 398.
And that this was precisely the light in which the Congress
regarded the whole transaction is clear from the terms of the
concluding section, the eighth:
"That nothing in this Act contained shall in any manner bind the
United States to purchase any portion of the land
Page 252 U. S. 166
herein described, except sections sixteen and thirty-six or the
equivalent in each township, or to dispose of said land except as
provided herein, or to guarantee to find purchasers for said lands
or any portion thereof, it being the intention of this act that the
United States shall act as trustee for said Indians to dispose of
said lands and to expend and pay over the proceeds received from
the sale thereof only as received, as herein provided."
33 Stat. 352, 361.
Taking all of the provisions of the agreement together, we
cannot doubt that, while the Indians by the agreement released
their possessory right to the government, the owner of the fee, so
that, as their trustee, it could make perfect title to purchasers,
nevertheless, until sales should be made, any benefits which might
be derived from the use of the lands would belong to the
beneficiaries, and not to the trustee, and that they did not become
"public lands" in the sense of being subject to sale or other
disposition under the General Land Laws.
Union Pacific R. Co.
v. Harris, 215 U. S. 386,
215 U. S. 388.
They were subject to sale by the government, to be sure, but in the
manner and for the purposes provided for in the special agreement
with the Indians which was embodied in the Act of April 27, 1904,
33 Stat. 352, and as to this point, the case is ruled by the
Hitchcock and
Chippewa cases,
supra.
Thus, we conclude that the lands described in the bill were "Indian
lands" when the company pastured its sheep upon them in violation
of § 2117 of Revised Statutes, and the decree in No. 212 must be
affirmed.
There remains the question as to the construction of Rev.Stats.
§ 2117.
In the law case, it is admitted in the bill of exceptions that
the Sheep Company, without the permission of the Crow Tribe of
Indians or of the United States, drove, ranged, and grazed 5,000
head of sheep on the land described in the complaint, and that, at
the time, no settlement
Page 252 U. S. 167
or entries thereon had been authorized under acts of Congress.
The judgment against the company was for $5,000 -- $1 for each
sheep pastured on the land.
The company contends that the judgment should be reversed for
the reason that Rev.Stats. § 2117 imposes the penalty prescribed
only for ranging and feeding on the lands of an Indian tribe
without permission "any stock of horses, mules, or cattle," and
that "sheep" are not within its terms.
If this were a recent statute, and if we were giving it a first
interpretation, we might hesitate to say that, by the use of the
word "cattle" Congress intended to include "sheep."
But the statute is an old one, which has been interpreted in
published reports of the courts for almost 50 years, and in an
opinion by the Attorney General of the United States, rendered in
1884, as fairly comprehending "sheep" within the meaning of the
word "cattle" as used in it.
The statute first appears as § 2 of an "Act to regulate trade
and intercourse with the Indian tribes, and to preserve peace on
the frontiers," enacted in 1796, and was then applicable only to
"any stock of horses or cattle," etc. 1 Stat. 469, 470. The section
was reenacted without change in 1802. 2 Stat. 139, 141. In 1834, it
was given its present form, which was carried into the Revised
Statutes without change in the wording we are considering.
Rev.Stats. § 2117.
In 1871, suit was brought in the United States District Court
for the District of Oregon, claiming that penalties under the
section had been incurred by pasturing "sheep," as in this case, on
Indian lands without the consent of the tribe. In a carefully
prepared and clearly reasoned opinion, Judge Deady overruled a
demurrer to the complaint and held that "sheep" were clearly within
the mischief to be remedied, and fairly within the language of the
act.
Page 252 U. S. 168
This case has not been overruled or modified by any later
decision. The court quotes definitions of the word "cattle" from
several dictionaries, emphasizing especially this from the 1837
edition of Webster:
"In its primary sense, the word includes, camels, horses, asses,
all the varieties of domesticated horned beasts of the bovine
genus, sheep of all kinds and goats, and perhaps swine. . . .
Cattle in the United States, in common usage, signifies only beasts
of the bovine genus."
Upon this authority, and applying the rule that, in determining
the legislative intent, the mischief to be prevented should be
looked to, and saying that "it will not be denied that sheep are as
much within the mischief to be remedied as horses or oxen," the
court concludes:
"I have no hesitation in coming to the conclusion that the word
cattle, as used in the Indian Intercourse Act of 1834, includes,
and was intended to include, sheep as well as cows and oxen."
United States v. Mattock, 2 Sawy. 148.
Twelve years later, in 1884, the Attorney General of the United
States, in an opinion to the Secretary of War, regarded the
question as so little doubtful that he disposed of it in this
single sentence:
"The standard lexicographers place sheep under the head of
cattle, and it would seem to be in derogation of the manifest
intention of Congress to take the word in a more confined
sense."
18 Ops.Atty.Gen. 91.
In 1874, in
Decatur Bank v. St. Louis
Bank, 21 Wall. 294, this Court held that the word
"cattle," in a letter of credit guaranteeing "drafts on shipments
of cattle," was comprehensive enough to justify the giving of
credit on shipments of "hogs." This pertinent paragraph is from the
opinion:
"That stock of some kind formed part of the guarantee is quite
plain, but is the word 'cattle' in this connection to be confined
to neat cattle alone -- that is, cattle of the bovine genus? It is
often so applied, but it is [quoting
Page 252 U. S. 169
from Worcester's Dictionary] 'also a collective name for
domestic quadrupeds generally, including not only the bovine tribe,
but horses, asses, mules, sheep, goats, and swine.' In its limited
sense, it is used to designate the different varieties of horned
animals, but it is also frequently used with a broader
signification as embracing animals in general which serve as food
for man. In England, even in a criminal case, where there is a
greater strictness of construction than in a civil controversy,
pigs were held to be included within the words 'any cattle.'"
The most recent definitions of the dictionaries are as
follows:
Webster's New International Dictionary defines "cattle"
thus:
"Collectively, live animals held as property or raised for some
use, now usually confined to quadrupeds of the bovine family, but
sometimes including all domestic quadrupeds, as sheep, goats,
horses, mules, asses, swine,"
etc.
The Standard Dictionary defines the word as meaning:
"Domesticated bovine animals, as oxen, cows, bulls, and calves;
also, though seldom now as compared with former times, any
livestock, kept for use or profit, as horses, camels, sheep, goats,
swine"
etc.
Thus, although the word "sheep" is not in the section, and
although in present day usage the word "cattle" would rarely be
used with a signification sufficiently broad to include them,
nevertheless, since the pasturing of sheep is plainly within the
mischief at which this section aimed, since the word "cattle,"
which is used, may be given, say all the authorities, a meaning
comprehensive enough to include them, and since the courts and the
Department of Justice for almost 50 years have interpreted the
section as applicable to "sheep," we accept this as the intended
meaning of the section, for, had it been otherwise, Congress, we
must assume, would long since have corrected it.
Page 252 U. S. 170
It is argued that the rule that penal statutes must be strictly
construed forbids such latitude of construction. But this is
sufficiently and satisfactorily answered by repeated decisions of
this Court.
"The admitted rule that penal statutes are to be strictly
construed is not violated by allowing their words to have full
meaning, or even the more extended of two meanings, where such
construction best harmonizes with the context and most fully
promotes the policy and objects of the legislature."
United States v.
Hartwell, 6 Wall. 385;
United
States v. Freeman, 3 How. 556,
44 U. S. 565;
United States v. Lacher, 134 U. S. 624,
134 U. S.
628.
It is also contended, far from confidently, that the recovery of
nominal damages in the equity suit is a bar to the recovery of the
penalty in the case at law. While the amount of the statutory
penalty for the trespass was prayed for in the equity suit, yet the
trial court, saying that equity never aids the collection of such
penalties,
Marshall v.
Vicksburg, 15 Wall. 146,
82 U. S. 149,
and that no evidence of substantial damage had been introduced,
limited the recovery to one dollar and costs. Rejection of a claim
because pursued in an action in which it cannot be entertained does
not constitute an estoppel against the pursuit of the same right in
an appropriate proceeding. We agree with the court of appeals
that
"a judgment is not conclusive of any question which, from the
nature of the case or the form of action, could not have been
adjudicated in the case in which it was rendered."
It results that the decree in No. 212 and the judgment in No.
285 must both be
Affirmed.