Adams v. Freeman

Adams v. Freeman
1897 OK 49
50 P. 135
Decided: 07/30/1897
Supreme Court of Oklahoma

Supreme Court of the Territory of Oklahoma.

ADAMS et al.
v.
FREEMAN et al.

July 30, 1897.

Syllabus by the Court.

¶0 1. Congress has the exclusive and unfettered power to regulate commerce with the Indian tribes, to treat them as wards in this respect, to whom protection is due, and to extend that regulation to intercourse with the individual members of the tribe, not only in the Indian country, but through the states themselves, wherever the Indians who belong to any tribal organization may be found, and to say with whom and by what terms they shall deal.
2. The president is empowered to make such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs.
3. All orders and instructions which are issued from either of the executive departments by an officer authorized by law, and under the charge of the departments then acting are presumed to have been issued by the approbation and direction of the president. The president speaks and acts through the heads of the several departments of the administration in relation to the subjects which appertain to their respective duties, and the act in such cases is, in legal contemplation, the act of the president; and consequently, under the constitution, the acts of congress, and the rules and regulations adopted in the Indian department, the power of the commissioner of Indian affairs, and the agent acting under him and by his discretion, in removing any one not a member of an Indian tribe from the reservation of such tribe, is a matter intrusted to the direction of the commissioner, and he is expressly authorized to make such removal, and the power is to be exercised under the discretion of the commissioner, and is not reviewable here.

Cotteral v. Hornor, for plaintiffs in error.
C. R. Brooks, U. S. Atty., and T. F. McMeachan and Roy Hoffman, Asst. U. S. Attys., for defendants in error.

McATEE, J. (after stating the facts).

¶1 The assignments of error are that (1) the district court erred in overruling the motion for a new trial, and (2) in rendering judgment for plaintiffs, and (3) in admitting immaterial evidence, and (4) in finding and entering judgment in favor of the defendants in error; and these are argued upon the single proposition that H. B. Freeman, the agent, and Robacker, chief of police, acting under him, were without authority to exclude the plaintiffs from the Osage Indian reservation at the time complained of. The manner in which white citizens of the United States or other persons, and the terms upon which white citizens of the United States and others, may be permitted to deal with Indian tribes or members of Indian tribes, or enter upon their reservations, are provided for by the constitution of the United States, in which it is declared, in article 1, § 8, that "congress shall have the power to regulate commerce with *** the Indian tribes." It is here made the subject of congressional regulation, and the extent to which this regulation may go has been repeatedly described by the supreme court of the United States. It was said by Chief Justice Marshall, in the case of Cherokee Nation v. Georgia, 5 Pet. 1, that the relation of the United States to the Indian resembles that of the guardian to his ward, and that, inasmuch as the government of the United States has undertaken to exercise authority over them, and that its citizens were in constant contact with them, the Indians necessarily looked to the government for protection, relied upon its kindness and power, and appealed to it for relief in their wants. And it was reiterated by the supreme court in the case of U. S. v. Kagama, in an opinion prepared by Mr. Justice Miller, in which it was said that the Indian tribes were the "wards of the nation," and that the people of "the states where they [the Indians] are found are often their deadliest enemies from their very weakness and helplessness," and that hence arose the "duty of protection, and with it the power"; and he further said that "this has always been recognized by the executive, by congress, and by this court whenever this question has arisen." 118 U.S. 375, 6 Sup. Ct. 1109. And it was again said by that court in the case of U. S. v. Holliday, 3 Wall. 407, Judge Miller delivering the opinion of the court, that: "Judge Marshall, in speaking of the power to regulate commerce with foreign states, says: 'The power does not stop at the jurisdictional limits of the several states. It would be a very useless power if it could not pass those lines. If congress has power to regulate it, that power must be exercised wherever the subject exists.' It follows from these propositions, which seem to be incontrovertible, that if commerce or traffic or intercourse is carried on with an Indian tribe, or with a member of such tribe, it is subject to be regulated by congress, although within the limits of a state. The locality of the traffic can have nothing to do with the power. The right to exercise it in reference to any Indian tribe, or any person who is a member of such tribe, is absolute, without reference to the locality of the traffic, or the locality of the tribe, or of the member of the tribe with whom it is carried on." And the subject was again reviewed and discussed in the case of U. S. v. Forty-Three Gallons of Whisky, 93 U.S. 188, in which Mr. Justice Davis, delivering the opinion of the court, reiterated and held that: "Congress now has the exclusive and unfettered power to regulate commerce with the Indian tribes; a power as broad as that to regulate commerce with foreign nations. The only efficient way of dealing with the Indian tribes was to place them under the protection of the general government. Their peculiar habits and character required this; and the history of the country has shown the necessity of keeping them 'separate, subordinate, and dependent.' Accordingly, treaties have been been made and laws passed separating Indian territory from that of the states, and providing that intercourse and trade with the Indians should be carried on solely under the authority of the United States. Congress very early passed laws relating to the subject of Indian commerce, which were from time to time modified by the lessons of experience. *** But this court held that the power to regulate commerce with the Indian tribes was, in its nature, general, and not confined to any locality; that its existence carried with it the right to exercise it whenever there was a subject to act upon, although within the limits of a state; and that it extended to the regulation of commerce with the individual members of such tribes. It was also contended that the intercourse act was not a regulation of commerce, within the meaning of the constitution; but the court held otherwise, and said: "It [the act] relates to buying and selling and exchanging commodities, which is the essence of all commerce; and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce, and a very important one.' The power is in no wise affected by the magnitude of the traffic or the extent of the intercourse. As long as the Indians remain a distinct people, with existing tribal organizations, recognized by the political department of the government, congress has the power to say with whom and on what terms they shall deal. ***" And it was declared in Ex parte Crow Dog, 109 U.S. 556, 3 Sup. Ct. 396, that: "The Indian country embraces all land within the limits of the United States to which the Indian title has never been extinguished, except that which lies within the exterior geographical limits of a state, and which was not excepted from the jurisdiction of that state at the time of its admission into the Union."

¶2 Since, therefore, it has been held that congress has the exclusive and unfettered power to regulate commerce with the Indian tribes, to treat them as wards to whom protection is due, and to extend that regulation to the individual members of the tribe, not only in the Indian country, but through the states themselves wherever the Indians who belong to any tribal organization may be found, and to say with whom and by what terms they shall deal, it remains to be seen what enactments congress has made in the exercise of this sweeping power. It is by section 2114 of the Revised Statutes of the United States provided that the president is authorized to exercise general superintendence and care over any tribe or nation which was removed upon the exchange of territory under authority of the act of May 28, 1830, and "to provide for the exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the Mississippi," and to "cause such tribe or nation to be protected at their new residence, *** or from any other person or persons whatever." And by section 2128 of the Revised Statutes of the United States it was provided that: "Any loyal person or citizen of the United States of good moral character shall be permitted to trade with any Indian tribe upon giving a bond to the United States in the penal sum of not less than five nor more than ten thousand dollars." And by section 2129 that: "No person shall be permitted to trade with any of the Indians in the Indian country without a license from the superintendent of Indian affairs or Indian agent, to be issued for a term not exceeding three years for the tribes west of the Mississippi river." And by section 2131 that: "The superintendent of the district shall have power to revoke and cancel any license to trade within the Indian country whenever the person licensed has, in his opinion, transgressed any of the laws or regulations provided for the government of trade and intercourse with the Indian tribes, or whenever, in his opinion, it is improper to permit such person to remain in the Indian country." And by section 2133 that: "Any person other than an Indian who shall attempt to reside in the Indian country as a trader, or to introduce goods, or to trade therein without such license, shall forfeit all merchandise offered for sale to the Indians, or found in his possession, and shall moreover be liable to a penalty of five hundred dollars." And it is provided by 19 Stat. 200, § 5: "That the commissioner of Indian affairs shall have the sole power and authority to appoint traders for the Indian tribes, and to make such rules and regulations as he may deem just and proper, specifying the kind and quality of goods, and the prices at which such goods shall be sold to the Indians." And by section 2132, Rev. St. U. S., that: "The president is authorized to regulate all licenses to trade with the Indians. ***" By section 463 that: "The commissioner of Indian affairs shall, under the direction of the secretary of the interior, and agreeably to such regulations as the president may prescribe, have the management of all Indian affairs, and of all matters arising out of Indian relations." And by section 465 that: "The president may prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs. ***" And by section 2058 that: "Each Indian agent shall, within his agency, manage and superintend the intercourse with the Indians, agreeably to law; and execute and perform such regulations and duties, not inconsistent with law, as may be prescribed by the president, the secretary of the interior, the commissioner of Indian affairs, or the superintendent of Indian affairs." Under these statutes, rules and regulations were adopted providing for the renewal and revocation of licenses to trade, and by rule 542: "If credit is given to Indians by a trader, he must take the risk of his action; no assistance in the collection of alleged claims will be given him by the agent." And rule 556 that: "Licensed traders will actually carry on the business themselves, and will habitually reside upon the reservation where they are licensed. They will not farm out, sublet, transfer, or assign the business to others. The presence of a silent partner, not under bond, in any trading establishment will be considered sufficient cause for the revocation of the license." And by rule 558 that: "Agents are enjoined to observe with care the laws, and the rules and regulations thereunder, governing the business of licensed traders, and to see that they are strictly complied with. If persons carrying on trade within a reservation with the Indians without a license, or if persons who have received a license and neglecting to renew the same continue to trade after the expiration of the license, agents will close the stores of such traders and immediately report the facts in the case to the Indian office, in order that legal steps may be taken to enforce the penalties of the law." And section 2147 of the Revised Statutes of the United States provides that: "The superintendent of Indian affairs and the Indian agents and subagents shall have authority to remove from the Indian country all persons found therein contrary to law, and the president is authorized to direct military force to be employed in such removal." Section 2149, Id., provides that: "The commissioner of Indian affairs is authorized and required, with the approval of the secretary of the interior, to remove from any tribal reservation, any person being therein without authority of law, or whose presence within the limits of the reservation may, in the judgment of the commissioner, be detrimental to the peace and welfare of the Indians; and may employ for the purpose such force as may be necessary to enable the agent to effect the removal of such persons." And section 2150, Id., provides that: "Military forces of the United States may be employed in such manner and under such regulations as the president may direct: First, in the apprehension of every person who may be in the Indian country in violation of law, and in conveying him immediately from the Indian country; *** third, in preventing the introduction of persons and property into the Indian country contrary to law."

¶3 The evidence in this case showed that the defendant Freeman applied to the commissioner of Indian affairs on the 23d day of May, 1894, for permission for persons from outside the reservation to attend the Osage annuity payments for the purpose of collecting debts incurred by members of the Osage tribe at their stores outside of the reservation, and that in reply to this application the commissioner replied upon June 1st that: "All such annuity payments should be made in compliance with section 163 of Regulations 1894, which reads: 'Annuity funds must be paid directly into the hands of the Indians entitled thereto. No trader or agent for a trader or any collector will be allowed in the room or in the vicinity of the building at the time of payment, and no arrangement to favor any trader or any other person must be made by the agent.' I do not feel warranted in granting this request, and, further, if one firm or trader or any collector is allowed this privilege, you would soon discover that the same would be claimed by many, and you and this office would be much embarrassed." And again, upon the 17th of January, 1895, that: "I trust you will succeed in excluding all collectors of every class from the agency during annuity payments." And upon the 26th day of January, 1895, that: "It was not wise to modify or relax it in behalf of the merchants represented;" that is, the plaintiffs here. And it has been held by the supreme court of the United States that all orders and instructions which are issued from either of the executive departments by an officer authorized by law and under the charge of the department then acting are presumed to have been issued by the approbation and direction of the president, and that the president speaks and acts through the heads of the several departments in relation to the subjects which appertain to their respective duties, and that the act in such cases was in legal contemplation the act of the president, and, consequently, that within the scope of the law the act of the commissioner of Indian affairs in this matter, and the agent under him, was the act of the president himself. Wilcox v. Jackson, 13 Pet. 498. Inasmuch, therefore, as the regulation of intercourse with the Indian tribes was committed by the constitution wholly to congress, and by successive enactments was placed in the hands of the president of the United States and the commissioner of Indian affairs, "to remove from the Indian country all persons found therein contrary to the law, and to use military force therefor," and "to remove from any tribal reservation any person found therein without authority of law," or whose presence within the limits of the reservation may, in the judgment of the commissioner, be detrimental to the peace and welfare of the Indians, and to employ such force as might be necessary to enable the agent to effect the removal of any such person, and that military force might be used therefor, and rules and regulations had been passed and published by the department directing the Indian agents, including the defendant here, the agent of the government for the Osage Indians, and leaving the matter wholly to the discretion of the commissioner acting thereafter through the agent, we see no room for interpreting the statutes otherwise than as conceding the discretion entirely to the commissioner of Indian affairs. Under the express provisions of the constitution and the laws of congress, we do not consider the question open for discussion as to whether or not it was a wise measure to intrust the discretion in the matter to the commissioner of Indian affairs. It is plainly given by the statute. In order to subvert and declare that it did not exist in this case, we should be compelled to hold either that the commissioner had not given plain and explicit directions to the agent, the defendant here, for the removal of all unauthorized persons from the reservation, or that, in his judgment, the continuance of the plaintiffs upon the reservation was not detrimental to the peace and welfare of the Indians at the time specified, or that congress had no power to enact the laws which it did, or that the rules and regulations adopted by the commissioner of Indian affairs which were directory of the conduct of the agent under the circumstances were nugatory and void. We cannot take either position, and can see no escape from the conclusions which, beginning with the authority of congress given in the constitution of the United States, and by congress committed to the president and to the commissioner of Indian affairs, and through the directions given by the commissioner of Indian affairs to the agent, made it his plain duty, in obedience to the full discretion reposed in the commissioner, and authorized by the rules and regulations of the department and the express authority thus given, to remove the plaintiffs from the reservation; and this court is not empowered to review the decision and "discretion" of the commissioner. U. S. v. Crook, 5 Dill. 453, Fed. Cas. No. 14,891; U. S. v. Sturgeon, 6 Sawy. 29, Fed. Cas. No. 16,413.

¶4 It is very strongly urged by the plaintiffs in error that the action of the president in these matters ought to be amenable to the law of the land, that discretion does not mean arbitrary power, and that between different courses the president must choose that which is legal, and not that which is illegal. And the argument of Mr. Caleb Cushing, then attorney general, as suggested in a case in which he was called upon to advise the president as to what his duty was as to allowing certain claims against the Pottowatomie tribe of Indians, stated that discretion was to discover by the law what was right. 6 Ops. Attys. Gen. U. S. 56. It is true that the president is amenable to the law of the land, and it is fully shown herein that the law of the land, and it is fully shown herein that the law of the land gave him discretion in the particular matter now here for consideration, and that the exercise of that discretion cannot be challenged here. There is no appeal from it. And this can be plainly and fully gathered from the opinion of Mr. Cushing, here cited as authority, since he there declares in the syllabus of the opinion that "the president may or not, in his discretion, recognize the pecuniary engagements of the tribe of Indians," and that the president "will examine into all such contracts, and confirm them according to what appears to be their legality and sufficiency for their consideration and for their relation to the interests of the Indians," and, further, that "congress has empowered him to consider, in his discretion, whether the payment of the given assignment to third parties is or is not for the aid of Indians themselves," and that "in the present case *** the question of obligation for good faith is to be judged by the president." And this matter being one of intercourse with the Indians, when the president, or, through him, the proper executive department, acts, it is solely a matter of discretion of the president, from which there is no appeal. The judgment of the lower court dismissing the application for the injunction, and refusing it, should be affirmed, and this is accordingly done.

¶5 All the justices concur, except BIERER, J., who presided at the trial below, and KEATON, J., who was of counsel.