1. The power of the United States to ensure, by appropriate
measures, that land allotted in severalty to a tribal Indian shall
enure to the benefit of the allottee and his heirs while the title
is restricted for their security is no less where the allotment has
been patented in fee but subject to a restriction on alienation
than where only a "trust patent" has issued and the fee remains
with the United States in trust to be conveyed to the allottee or
his heirs free of restriction at the end of the trust period. P.
256 U. S.
486.
2. In either case, as an incident of the power, Congress may
authorize and require the Secretary of the Interior to determine
the heirs of a deceased allottee and may make his decision final
and conclusive. P.
256 U. S.
487.
3. The power of the Secretary of the Interior to determine the
heirs of deceased allottees if, as originally granted by 1 of the
Act of June 25, 1910, c. 431, 36 Stat. 855, it was intended to be
confined to trust allotments, was extended to allotments in fee
subject to restriction on alienation by the Act of August 1, 1914,
c. 222, 38 Stat. 582, the first of a series appropriating money to
meet the cost of
"determining the heirs of deceased Indian allottees having any
right, title, or interest in any trust or restricted allotment
under regulations prescribed by the Secretary of the Interior."
So
held in view of continuous executive practice
antedating the first appropriation whereby the heirs of allottees
holding restricted fees were determined in numerous cases,
communication thereof through official reports to Congress, and
provisos declaring the appropriations inapplicable to specified
tribes whose allotments are of the restricted fee class. P.
256 U. S.
488.
261 F. 657 reversed.
The case is stated in the opinion.
Page 256 U. S. 485
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was an action by the United States to recover the
possession of a tract of land in Oklahoma, with damages for its
detention and use by the defendants for several years. The trial
resulted in a judgment for the defendants which the circuit court
of appeals affirmed. 261 F. 657.
The land was allotted and patented under the Act of March 2,
1889, c. 422, 25 Stat. 1013, to Pe-te-lon-o-zah, or William Wea, a
member of the Confederated Wea, Peoria, Kaskaskia, and Piankeshaw
Tribes of Indians, as his distributive share of the tribal lands.
The patent was dated April 8, 1890, conveyed a fee simple title and
imposed a restriction upon alienation for a period of 25 years from
its date. Wea died intestate and seized of the land January 23,
1894. Shortly after his death, persons claiming to be his heirs
executed a conveyance of the land, and on May 4, 1914, this Court
affirmed a decree against two of the present defendants, cancelling
that conveyance as made in violation of the restriction.
Bowling v. United States, 233 U.
S. 528.
This action was commenced January 20, 1915, during the period of
restriction, and, according to the petition, was brought in the
interest of designated Indians who were alleged to be the heirs at
law of Wea, to be entitled to the possession, and to be members of
the confederated tribes and still under the supervision and
guardianship of the United States. The defendants, by their answer,
admitted that the land had been allotted and patented to Wea and
that they were in possession, denied all the other allegations in
the petition, including the heirship
Page 256 U. S. 486
of those in whose interest the action was brought, and alleged
that, at the time of answering, the defendants were rightfully in
possession under conveyances executed by the real heirs after the
restriction upon alienation expired.
At the trial, the United States, to establish the heirship of
those in whose interest the action was brought, offered in evidence
an exemplified copy of a decision by the Secretary of the Interior
dated October 21, 1914, during the period of restriction, finding
and holding that they were the heirs, and the sole heirs, of Wea
and stating their respective shares. To this the defendants
objected upon the ground that the law of Congress under which the
decision was given applied only where the deceased allottee held
under a trust patent. The court sustained the objection, and no
other evidence on the subject was presented by either side. Whether
the court erred in excluding the Secretary's determination is the
only question reserved at the trial and now presented for decision.
It was not claimed that the Secretary proceeded without notice or
without according all who were interested a full hearing, but only
that he had not been empowered to determine who were the heirs
where the deceased allottee held, as did Wea, under a patent in
fee, even though the land was subject to a restriction upon
alienation.
Before coming to the acts under which the Secretary of the
Interior proceeded, it will be helpful to refer to the modes, long
in use, by which Indians are prevented from improvidently disposing
of allotted lands. One is to issue to the allottee a written
instrument or certificate, called a trust patent, declaring that
the United States will hold the land for a designated period,
usually 25 years, in trust for the sole use and benefit of the
allottee, or, in case of his death, of his heirs, and, at the
expiration of that period, will convey the same to him or
Page 256 U. S. 487
his heirs in fee, discharged of the trust and free of all charge
or incumbrance. The other is to issue at once to the allottee a
patent conveying to him the land in fee and imposing a restriction
upon its alienation for 25 years or some other stated period. While
alienation is effectually restricted by either mode, allotments
under the first are commonly spoken of as trust allotments, and
those under the second as restricted allotments. As respects both
classes of allotments -- one as much as the other -- the United
States possesses a supervisory control over the land, and may take
appropriate measures to make sure that it inures to the sole use
and benefit of the allottee and his heirs throughout the original
or any extended period of restriction. [
Footnote 1] As an incident to this power, Congress may
authorize and require the Secretary of the Interior to determine
the legal heirs of a deceased allottee and may make that
determination final and conclusive. [
Footnote 2] It rests with Congress to say which of the two
modes shall be followed in respect of the lands of a particular
tribe, and this usually is done in the act directing that the lands
be allotted. The Act of 1889, under which the lands of the
confederated tribes were allotted, required that the second mode be
following-that of issuing a patent in fee imposing a restriction
upon alienation for a fixed period.
By § 1 of the Act of June 25, 1910, c. 431, 36 Stat. 855,
Congress provided:
"That when any Indian to whom an allotment of land has been
made, or may hereafter be made, dies before the expiration of the
trust period and before the issuance of a fee-simple patent,
without having
Page 256 U. S. 488
made a will disposing of said allotment as hereinafter provided,
the Secretary of the Interior, upon notice and hearing, under such
rules as he may prescribe, shall ascertain the legal heirs of such
decedent, and his decision thereon shall be final and
conclusive."
The courts below concluded from the words of this provision that
it was confined to trust allotments -- those held under trust
patents. Separately considered, it hardly admits of any other view,
and yet other provisions in the same section suggest that its words
may not have been happily chosen and that it may have been intended
to be more comprehensive. To illustrate, a closely following
proviso declares:
"That the Secretary of the Interior is hereby authorized, in his
discretion, to issue a certificate of competency, upon application
therefor, to any Indian, or in case of his death, to his heirs, to
whom a patent in fee containing restrictions on alienation has been
or may hereafter be issued, and such certificate shall have the
effect of removing the restrictions on alienation contained in such
patent."
But we need not dwell upon the internal proof of what was
intended, for by a series of appropriation acts, beginning August
1, 1914, and extending to the present time, Congress has treated
and construed the provision as including both trust and restricted
allotments. [
Footnote 3] Each
of the appropriation acts contains a paragraph appropriating
$100,000 to meet the cost of
"determining the heirs of deceased Indian allottees having any
right, title, or interest, in any trust or restricted allotment,
under regulations prescribed by the Secretary of the Interior,"
and they show affirmatively that they refer to a determination
under § 1 of the Act of
Page 256 U. S. 489
1910. Not only so, but they all contain a proviso that "this
paragraph shall not apply to the Osage Indians, nor to the Five
Civilized Tribes," which would be a needless provision, if Congress
had not intended that the power to determine heirships should
extend to restricted as well as trust allotments, for the
allotments to the Osages and to members of the Five Civilized
Tribes were not trust, but restricted, allotments. The annual
reports of the Indian Bureau [
Footnote 4] show that the officers of that bureau,
including the Secretary of the Interior, have uniformly regarded §
1 of the Act of 1910, in connection with these appropriation acts,
as enabling them to determine the heirs of both classes of deceased
allottees, and they further show that in each year since these
appropriations began these officers have determined the heirs of
hundreds of deceased allottees who held under restricted as
distinguished from trust allotments. In one year alone, the number
was 566 and, of course, the aggregate of the values involved was
great. These reports were regularly laid before Congress and, with
the knowledge thus obtained, it repeated the appropriation each
year. Of course, this can be accounted for only upon the theory
that in the opinion of Congress the officers were but exercising
the power which it intended they should have and exercise. It was
after the original provision had been so construed and supplemented
by the first of the appropriation acts that Wea's heirs were
determined by the Secretary. Apparently the appropriation acts and
the reports of the Indian Bureau were not brought to the attention
of the courts below.
We conclude that the district court erred in sustaining
Page 256 U. S. 490
the defendants' objection to the introduction in evidence of the
Secretary's determination, and therefore that the judgment must be
reversed and the case remanded for a new trial.
Judgment reversed.
[
Footnote 1]
United States v. Rickert, 188 U.
S. 432;
Tiger v. Western Investment Co.,
221 U. S. 286;
Heckman v. United States, 224 U.
S. 413;
Brader v. James, 246 U. S.
88;
Talley v. Burgess, 246 U.
S. 104;
La Motte v. United States, 254 U.
S. 570.
[
Footnote 2]
Hallowell v. Commons, 239 U. S. 506.
And see Lane v. Mickadiet, 241 U.
S. 201;
Egan v. McDonald, 246 U.
S. 227.
[
Footnote 3]
Act Aug. 1, 1914, c. 222, 38 Stat. 582, 586; Act May 18, 1916,
c. 125, 39 Stat. 123, 127; Act March 2, 1917, c. 146, 39 Stat. 969,
972; Act May 25, 1918, c. 86, 40 Stat. 561, 567; Act June 30, 1919,
c. 4, 41 Stat. 3, 8; Act Feb. 14, 1920, c. 75, 41 Stat. 408,
413.
[
Footnote 4]
House Doc. No. 90, p. 38, 64th Cong. 1st Sess.; House Doc. No.
1899, p. 51, 64th Cong.2d Sess.; House Doc. No. 915, p. 53, 65th
Cong.2d Sess.; House Doc. No. 1455, p. 53, 65th Cong.3d Sess.;
House Doc. No. 409, p. 51, 66th Cong.2d Sess.; House Doc. No. 849,
p. 45, 66th Cong.2d Sess.