1. A court has power at any stage of a case to require an
attorney to show his authority to appear. P.
273 U. S.
319.
2. The clearest of proof is required to establish authority in
the captain of an Indian Pueblo to deed without valuable
consideration a one-half interest in a vast tract of land claimed
by the Pueblo and to execute an irrevocable power of attorney to
bring suit in its name to establish the title. P.
273 U. S.
319.
3. Section 2103, Rev.Stats., declaring void, unless executed and
supported as the section prescribes, any agreement with a tribe of
Indians for payment or delivery of anything of value in
consideration of services for such Indians relative to their lands,
and § 2116, declaring that no conveyance of lands etc. from any
Indian nation or tribe shall be of any validity unless made by
treaty or convention entered into pursuant to the Constitution,
apply to Pueblo as well as nomadic Indians. P.
273 U. S.
320.
4. A decree dismissing a suit for want of authority in the
counsel bringing it should be without prejudice to the bringing of
any other suit properly authorized. P.
273 U. S. 321.
12 F.2d 332 reversed.
Certiorari (
post, p. 678) to a decree of the Court of
Appeals of the District of Columbia which affirmed a decree of the
Supreme Court of the District dismissing on the merits a suit in
the name of the Pueblo of Santa Rosa
Page 273 U. S. 316
to enjoin the Secretary of the Interior and the Commissioner of
the General Land Office from offering, listing, or disposing of
certain lands in Arizona as public lands of the United States.
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
Our order granting the writ of certiorari in this case directed
a hearing on the issue as to the existence of authority of counsel
who filed the bill to represent complainant. That hearing now has
been had.
The suit is brought to enjoin respondents from offering,
listing, or disposing of certain lands in Arizona as public lands
of the United States. The case was here before on appeal,
Lane
v. Pueblo of Santa Rosa, 249 U. S. 110, and
was remanded to the District Supreme Court with directions to
overrule a motion to dismiss on the merits and allow defendants to
answer the bill. After receipt of the mandate, an answer was filed
denying the allegations of the bill and alleging, among other
things, that the so-called pueblo had never authorized the suit or
ratified or approved the acts of the attorneys in bringing or
prosecuting it, and, upon that ground, a motion to dismiss,
supported by affidavits, was filed at the same time. After a
hearing upon the motion, the trial court postponed a decision until
final hearing, and the taking of testimony was proceeded with, much
of it relating to the issue now before this Court.
Page 273 U. S. 317
The record is a long one, but the pertinent facts may be shortly
stated. About the year 1880, deeds were drawn and acknowledged by a
number of Indians conveying to one Hunter, as trustee, an interest
in the lands, grants, and privileges of certain named villages.
Among these deeds was one which purported to be made by "Luis,
captain of the village or pueblo of Santa Rosa," for himself and
inhabitants of that village and others, and to convey an undivided
half interest in 720 square miles of land. At the same time, powers
of attorney were executed by the various grantors. The only one
with which we are here concerned is that given by Luis, the terms
of which, we assume for present purposes, were sufficient to
authorize Hunter to bring and maintain an suit like the present. It
granted to Hunter powers of delegation, substitution, and
revocation, and recited that, as it was "accompanied with an
interest, . . . it is hereby made irrevocable." While Hunter was
authorized to render services in establishing the claim of the
Indians to the lands, it does not appear that he agreed to do so
unless by implication merely; nor does it appear that there was any
other consideration for the conveyance.
In 1911, Hunter entered into contracts with one Martin by which
the latter was to undertake to establish the Indian title and make
certain cash payments in consideration of the conveyance to him of
an undivided three-fourths interest in the lands which would fall
to Hunter upon a partition between himself and the Indians. The
same year, and long after the death of Luis, Hunter executed a
delegation of his powers to one Cates. Hunter died in 1912, and
this suit was brought in 1914 by a firm of lawyers of which Cates
was a member. Cates died in 1920, several years before the motion
to dismiss was heard in the court of first instance.
The Luis deed was not recorded in the counties where the lands
are situated until 34 years after its execution
Page 273 U. S. 318
and 2 years after the death of Hunter, the grantee. The delay is
not explained. Careful and comprehensive inquiries conducted among
the Indians over a period of several years failed to disclose
anyone who knew of any authority from the Indians to bring or
maintain the suit. Among them were contemporaries of Luis, but none
had ever heard of the deed or the power, and it is made clear that
these instruments properly could not have been executed, or any
interest of the Indians conveyed, without previous deliberation for
that purpose on the part of the Indians in council, and that no
such council was ever assembled. The evidence further shows that no
suit properly could have been brought without the prior consent of
the Indians in council, and that no council for that purpose was
ever assembled. The attitude of the government seems to have been
that the lands claimed are public lands, subject only to the
ordinary right of Indian occupancy.
Early in the year 1922, after consideration, 181 of the 195
adult male inhabitants of the villages said to form the pueblo of
Santa Rosa signed a petition declaring that none of them knew about
the suit until after it was brought, or gave any one a right to
bring it, and that none of them approves of it, or wants it to go
on, and requesting "that this suit, which we do not want, and with
which we have nothing to do, be dismissed."
The court of first instance, assuming, without deciding, that
the plaintiff was a pueblo as set forth in the bill and owned the
lands in question, held that it had never authorized the bringing
or maintenance of the suit, and that it did not have, under any law
or by any custom, usage, or tradition, the power to make the
conveyance or power of attorney in question, and entered a decree
dismissing the bill. The court of appeals disapproved the holding
of the court of first instance upon the question of authority to
bring the suit on the ground that a challenge
Page 273 U. S. 319
to the right of counsel to appear is a preliminary matter, to be
disposed of before proceeding to the merits, but affirmed the order
of dismissal upon the merits. 12 F.2d 332. In this we think that
court erred.
The question as to the authority of counsel was raised by motion
to dismiss filed with the answer. There was a hearing upon the
motion, but the trial court, of its own accord, postponed a
decision upon it until final hearing on the merits, an order
clearly within its discretion. Whether, as a matter of practice,
the challenge to the authority of counsel was seasonably interposed
it is not important to decide, for, in any event, the trial court,
or this Court, has power at any stage of the case, to require an
attorney, one of its officers, to show his authority to appear. In
The King of Spain v. Oliver, 2 Wash. C.C. 429, 430, Mr.
Justice Washington, sitting in the Circuit Court, said:
". . . It would be strange if a court whose duty it is to
superintend the conduct of its officers should not have the power
to inquire by what authority an attorney of that court undertakes
to sue or to defend, in the name of another, whether that other is
a real or fictitious person, and whether its process is used for
the purpose of vexation or fraud, instead of that for which alone
it is intended. The only question can be as to the time and manner
of calling for the authority and as to the remedy, which are in the
discretion of the court, and ought to be adapted to the case."
See also W. A. Gage & Co. v. Bell, 124 F. 371, 380;
McKiernan et al. v. Patrick et al., 4 How. 333, 335;
Clark v. Willett, 35 Cal. 534, 539, 541;
Miller v.
Assurance Co., 233 Mo. 91, 99;
Munhall v. Mitchell,
178 Mo.App. 494, 501;
San Francisco Savings Union v. Long,
123 Cal. 107, 113.
To justify the conclusion that there was no authority to bring
or maintain the suit really needs nothing beyond the foregoing
short recital of the facts. That Luis was without power to execute
the papers in question, for lack
Page 273 U. S. 320
of authority from the Indian council, in our opinion is well
established. Indeed, there is no evidence to the contrary worthy of
serious consideration. The rights of Indians, unlettered and under
national wardship, are here involved, and a deed purporting to
convey their half interest in an enormous tract of country, without
consideration aside from some indefinite and doubtful promise to
establish their claim against the government, is upon its face so
improvident as to call for affirmative proof of authority of the
clearest kind. Instead of this, we have no affirmative evidence of
a substantial character, and the suspicious circumstance of long
unexplained delay in recording the deed and power and in bringing
the suit.
But, wholly aside from this, the conveyance and the power were
both void by force of §§ 2103 and 2116 Revised Statutes. The first
of these sections provides that any agreement with any tribe of
Indians for the payment or delivery of anything of value in present
or in prospective, in consideration of services for such Indians
relative to their lands, is void unless, among other requirements,
the agreement is in writing, executed before a judge of a court or
record, bears the approval of the Secretary of the Interior and the
Commissioner of Indian Affairs indorsed upon it, and contains the
names of all parties in interest, their residence and occupation,
and further that, "if made with a tribe, by their tribal
authorities, the scope of authority and the reason for exercising
that authority, shall be given specifically." Section 2116 declares
that no
"conveyance of lands, or of any title or claim thereto, from any
Indian nation or tribe of Indians, shall be of any validity in law
or equity unless the same be made by treaty or convention entered
into pursuant to the Constitution."
These sections apply here whether the Indians concerned are to
be classified as nomadic or Pueblo Indians.
United States v.
Candelaria, 271 U. S. 432,
271 U. S.
441-442. None of their requirements can be dispensed
with,
Page 273 U. S. 321
and it does not appear that, in respect of most of them, there
was even an attempt to comply.
See and compare Green v.
Menominee Tribe, 233 U. S. 588,
233 U. S. 568.
Lease of Indian Lands for Grazing Purposes, 18 Op. Attys.Gen. 235,
237; Indian Contract,
id., 497.
We agree with the conclusions of the court of first instance,
but are of opinion that the dismissal should have been not upon the
merits, but without prejudice to a suit, if properly brought. The
decrees of both courts therefore are erroneous, and the cause must
be remanded to the court of first instance with directions to
dismiss the bill on the ground that the suit was brought by counsel
without authority, but without prejudice to the bringing of any
other suit hereafter, by and with the authority of the alleged
pueblo of Santa Rosa. Other grounds appearing from the record,
which would lead to the same result, we pass without
consideration.
Decree reversed.