1. The cession made by the Omaha Indians through the treaties of
1854 and 1865, the provision made by the latter for assigning
parcels, in the retained reservation, to members of the tribe in
severalty, for the exclusive use of themselves, their heirs, and
descendants, the provisions made by the Act of 1882 (and the Act of
1893) for granting allotments in severalty in trust for 25 years
and then in fee, and the further provision of the former act (not
carried out) for conveying the unallotted residue of the
reservation to the tribe in trust for a like period and then in fee
discharged of the trust and of all charge and incumbrance
whatsoever, did not deprive Congress of the power to make other
disposition of the unallotted reservation for the benefit of the
Indians. P.
256 U. S. 6.
United States v. Chase, 245 U. S. 89;
Sizemore v. Brady, 235 U. S. 441.
2. The right to obtain an allotment under the acts referred to
was not a vested right as respects this power of Congress. P.
256 U. S. 7.
3. The Act of May 11, 1912, c. 121, 37 Stat. 111, by which the
Secretary of the Interior was "authorized" to sell all the
unallotted lands of the Omaha Reservation in parcels, with certain
specific exceptions, covers the whole subject of the disposition of
those lands, and supersedes the earlier provisions,
supra,
for allotting them. P.
256 U. S. 8.
Page 256 U. S. 2
4. Even if this act should be construed as permissive, rather
than mandatory, the Secretary's refusal to allow further allotments
because of it is an exercise of his discretion to reserve the land
for disposition under it. P.
256 U. S. 8.
5. Whether a party defendant, upon reversal of a judgment in his
favor, may introduce a new defense which was available on the
former trial is not a question of jurisdiction, but of practice. P.
256 U. S. 9.
6.
Held, that the courts below rightly permitted the
United States to set up a statutory repeal at the second trial
which was ignored at the first. P.
256 U. S. 10.
261 F. 833 affirmed.
Appeal from a decree of the circuit court of appeals which
affirmed a decree of the district court dismissing the bill in a
suit brought by the appellant against the United States for an
adjudication of his membership in the Omaha Tribe of Indians, with
a right to select an allotment out of the lands of the Omaha
Reservation. The facts are stated in the opinion.
Page 256 U. S. 4
MR. JUSTICE McKENNA delivered the opinion of the Court.
Suit to adjudge Hiram Chase, Jr., a member of the Omaha Tribe of
Indians and to have a right to select 80 acres for an allotment out
of the lands of the Omaha Reservation, the selection having been
denied by the Secretary of the Interior.
The right of selection depends upon the effect of certain
treaties between the Omaha Tribe and the United States, and certain
acts of Congress.
The treaties were made in 1854 and 1865, 10 Stat. 1043; 14 Stat.
667, and by them the Indians ceded certain lands to the United
States and certain other lands were retained constituting the
reservation with which this suit is concerned and of which the
lands sought to be allotted are a part.
Page 256 U. S. 5
It was expressed in the treaty of 1865 to be the desire of the
Indians to abolish the tenure in common by which they held their
lands and to acquire tracts in severalty of 160 acres to heads of
families and 40 acres to each male person of 18 years and upwards,
and it was provided that the whole of the lands so assigned or
unassigned should constitute and be known as the Omaha
Reservation.
The assignments were to be approved by the Secretary of the
Interior, be evidenced by certificates, and be final and
conclusive.
In execution of the purposes of the treaty, Congress passed an
act in 1882 (22 Stat. 341) by which the Secretary was authorized to
allot the portion of the reservation lying east of the Sioux City
& Nebraska Railroad in severalty to a head of a family a
quarter section (160 acres) to each single person over 18,
one-eighth of a section, to each orphan child under 18 one-eighth
of a section, and to each other person under that age,
one-sixteenth of a section. The issue of patents was provided for,
the lands to be held in trust for 25 years for the sole use and
benefit of the respective allottees, and it was provided that the
residue of the lands should be patented to the tribe, but held in
trust for 25 years, then to be conveyed in fee discharged of the
trust. From these lands, however, it was provided the allotments
should be made and patented to each Omaha child who might be born
prior to the expiration of the 25-year trust period.
Under the act and prior to July 11, 1884, allotments were made
to 954 members of the tribe, and patents issued therefor. No patent
was issued to the tribe as provided.
By the Indian Appropriation Act passed March 3, 1893, c. 209, 27
Stat. 630, and expressing itself to be an amendment to the Act of
1882, the Secretary of the Interior was authorized, with consent of
the Indian tribe, to allot in severalty
". . . to each Indian woman and child of said tribe born since
allotments of land were
Page 256 U. S. 6
made in severalty to the members thereof under the provisions of
said act [1882], and now living, one-eighth of a section of the
residue lands held by that tribe in common, instead of
one-sixteenth of a section, as therein provided, and to allot in
severalty to each allottee under said act, now living, who received
only one-sixteenth of a section thereunder, an additional
one-sixteenth of a section of such residue lands. . . ."
Hiram Chase, Jr., was not born until after the Act of 1893 was
passed, and the question is whether he is entitled to an allotment
under it. The government contends to the negative, basing the
contention upon an act passed May 11, 1912, c. 121, 37 Stat. 111,
which, it is the further contention, repealed the Act of 1893 and
cut off the right of allotment.
The district court yielded to the contention and dismissed the
bill, and its decree was affirmed by the circuit court of appeals.
261 F. 833.
Against this action of the courts, appellant asserts error, and
insists that it and the contention of the government are based on
an underestimate of his rights and upon a wrong construction of the
Act of 1893.
First, as to his rights. The contention is that appellant had a
vested right to an allotment "under the treaties and acts of
Congress as they existed at the time when" the allotment was
"selected and claimed," and this whether the Act of 1912 repealed
the Act of 1893 or was subordinate to or complementary of its
provisions. In support of the contention, appellant recites the
various provisions of the treaty of 1865 and the Acts of 1882 and
1893, and insists that they are clear and direct investments of
irrevocable rights in pursuance of "a contractual obligation based
upon ample consideration." In specification, the treaty of 1854 is
adduced as having "ceded to the United States a portion of the
reservation described in Article I" and, "by Article VI, individual
Indians were to receive allotments
Page 256 U. S. 7
of land." This purpose, is the further contention, was executed
by the treaty of 1865 by which the Indians "
did cede, sell,
and convey to the United States'" a part of their reservation,
and, among other provisions, there was one, expressed in Article IV
of the treaty, for allotments to be "for the exclusive use . . . of
themselves [the Indians] their heirs and descendants."
Of the obligations thus incurred, it is the insistence, § 8 of
the Act of 1882 was the fulfillment, and, at the expiration of the
trust period, the reservation (residue) was to be conveyed to the
tribe "in fee discharged of the trust and free of all charges or
incumbrances whatsoever," and that therefore the Act of 1912, which
directed the sale of the unallotted lands of the reservation, was
in contravention of the treaties and the rights to allotments
thereunder and under the Acts of Congress of 1882 and 1893,
supra.
The contention is one that has often been made in this Court,
and rejected as often as made.
Gritts v. Fisher,
224 U. S. 640;
Choate v. Trapp, 224 U. S. 665;
Cherokee Nation v. Hitchcock, 187 U.
S. 294. In those cases, the relation of the individual
Indian to the tribal property is explained, and also the power of
Congress over that property and the tribes. In the recent case of
United States v. Chase, 245 U. S. 89, we
had occasion to consider the reservation here involved and the
effect of Article IV of the treaty of 1865 relied on by the
appellant, and decided that its purpose was to do no "more than
individualize the existing tribal right of occupancy," and that it
left "the fee in the United States," and left
"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."
The case dealt with assignments under Article IV, but
Page 256 U. S. 8
its principle necessarily applies to a mere right under the Act
of 1882.
Lone Wolf v. Hitchcock, 187
U. S. 557;
Sizemore v. Brady, 235 U.
S. 441;
Cherokee Intermarriage Cases,
203 U. S. 76;
Wallace v. Adams, 204 U. S. 415;
Stephens v. Cherokee Nation, 174 U.
S. 445.
The next contention of appellant is that he acquired a vested
right under the Acts of 1882 and 1893, assuming the latter Act did
not repeal the other, and we are brought to the Act of 1912. By the
Act, the Secretary is
"authorized to cause to be surveyed, if necessary, and
appraised, in such manner as he may direct, in tracts of 40 acres
each, or as nearly as to the Secretary may seem practicable, and,
after such survey and appraisement, to sell and convey, in
quantities not to exceed 160 acres to any one purchaser, all the
unallotted lands on the Omaha Indian Reservation, in the state of
Nebraska, except such tracts as are hereinafter specifically
reserved:
Provided, that the said land shall be sold to
the highest bidder under such regulations as the Secretary of the
Interior may prescribe, but no part of said land shall be sold at
less than the appraised value thereof. . . ."
There is provision for the reservation from sale of certain
tracts with which this case is not otherwise concerned except as it
shows complete delegation of administration to the Secretary.
Appellant's contention is that the Act is neither directory nor
mandatory; it is permissive only, and has been, it is said, so
construed by the Secretary. There are cases, however, that decide
that an officer "authorized" is an officer commanded in a matter of
public concern.
* Besides, there are
words of direction in the Act, and they are necessary to its
purposes. But if it
Page 256 U. S. 9
may be assumed there is a discretion in the Secretary, he has
exercised it against the appellant by denying his right to an
allotment, presumably in reservation of the land for sale as
provided in the Act. And a sale is provided for -- a sale of the
unallotted lands mentioned in § 8 of the Act of 1882, and all of
them. We agree, therefore, with the circuit court of appeals that
it (the Act of 1912) "covers so completely the subject of the
disposition" of those lands "that it must be held to have repealed
that portion of the Act of 1882 which authorized allotments to
Omaha children during the trust period." And, again quoting the
court of appeals:
"the Secretary of the Interior, of course, could not allot the
unallotted lands under the Act of 1882 and also sell them under the
Act of 1912, nor could he allot the unallotted lands and at the
same time make the reservations which he is commanded to make by
section 2 of the latter Act. It is so plain that both Acts cannot
be carried out that it is unnecessary to discuss that
question."
It supersedes, therefore, that Act, though it contains no
repealing words.
United States v.
Tynen, 11 Wall. 88;
King v. Cornell,
106 U. S. 395;
Paquete Habana, 175 U. S. 677,
175 U. S.
685.
This appeal is a review of the second trial of the case. In the
first trial, the district court, on motion of the United States,
dismissed the bill. Upon appeal, the circuit court of appeals
reversed the district court and remanded the case to that court
"with instructions to permit the defendant [United States] to
answer, if so advised." 238 F. 894.
Upon the return of the case, the United States set up as a
defense the Act of 1912 presenting the questions here involved.
Appellant contends that the United States,
"having relied at the first trial upon the single proposition
that the Act of 1893 repealed the Act of 1882, and thereby cut off
the right of these Indian claimants to allotments, and
Page 256 U. S. 10
having failed in that defense, cannot, upon the second trial,
abandon that defense and insist that the Act of May 11, 1912,
repealed the Act of 1882."
The proposition has a relevant and conclusive application when a
judgment of a former action is pleaded, but limited application
when urged in the same suit, it expresses a practice only and
useful as such, but not a limitation of power.
Messinger v.
Anderson, 225 U. S. 436.
The district court and the circuit court of appeals, having the
power and exercising it, entertained the defense of the Act of
1912, estimated it, and decided it conclusive against appellant's
right to an allotment. As we have seen, there was no error in that
ruling, and the decree of the circuit court of appeals is
Affirmed.
*
Anne Arundel County Comm'rs v. Duckett, 20 Md. 468;
Flynn v. Canton Co., 40 Md. 312, 319;
Magaha v. City
of Hagerstown, 95 Md. 62;
Rankin v. Buckman, 9 Or.
253, 262;
Supervisors v. United
States, 4 Wall. 435;
Maryland v. Miller,
194 F. 775;
United States v. Cornell Steamboat Co., 137 F.
455.