La Roque v. United States

delivered the opinion of the court.

This is a' suit to cancel a so-called trust patent for an allotment in the Whi4 Earth Indian Reservation in Minnesota on the ground that the allotment was made inadvertently and in contravention of the act of January 14, 1889, c. 24, 25 Stat. 642 , known as the Nelson Act. In the Circuit Court there was a decree dismissing the bill

The facts are not in dispute and are these: Vincent La Roque, in whose name the trust patent issued, was a Chippewa Indian bom in 1883 of parents residing on the White Earth Reservation and was among those whose names were included in the census of Minnesota Chippewas made under the Nelson Act. Had he lived he would have been entitled to take an allotment under that act. He died shortly after 1889 without an allotment being selected by or for him. Thereafter an application in his name for the allotment in question was presented to the allotting officers, and upon this application the allotment was made and the trust patent was issued, both in his name, as if the selection were made while he was living. Henry La Roque, the defendant, is his father and as sole heir claims the land under the allotment and trust patent.

Whether the Nelson Act contemplated that allotments should be made on behalf of Indians otherwise entitled thereto but who should die without selecting or receiving them is the principal question for decision. The regulations and decisions of the Secretary of the Interior, under whose supervision the act was to be administered, show that it was construed by that officer as confining the right of selection to living Indians and that he so instructed the allotting officers.. While not conclusive, this construction given to the act in the course of its actual execution is entitled to great respect and ought not to be overruled without cogent and persuasive reasons. United States v. Moore, 95 U. S. 760 , 763; Hastings & Dakota R. R. v. Whitney, 132 U. S. 357 , 366; United States v. Hammers, 221 U. S. 220 , 225, 228; Logan v. Davis, 233 U. S. 613 , 627. Not only so, but it receives additional force from its adoption by the Circuit Court of Appeals for the Eighth Circuit

The Nelson Act embodied a plan for securing a cession by the several bands of Chippewa Indians in Minnesota of all reservations occupied by them except portions of the White Earth and Red Lake reservations required to make allotments, for removing to the White Earth Reservation all the bands save those on the^Red Lake Reservation, for making allotments in severalty in the unceded lands, and for disposing of the ceded lands, placing the net proceeds at interest and distributing them in severalty at the end of fifty years. Section 1 required that a census be made of each tribe, or band for the purpose of ascertaining whether the proper number of Indians assented to the cession and “of making the allotments and payments” .contemplated; and section 3 directed that, following the census, the cession and the removal to the White Earth Reservation, allotments in severalty be made, as soon as practicable, to the Red Lake Chippewas in the Red La.ke Reservation, and to the others in the White Earth Reservation, “iñ conformity with” the general allotment act of February 8, 1887, c. 119, 24 Stat. 388 , subject to a proviso that any Indian living on any of the ceded reservations might, in his discretion, take his allotment therein instead of moving to the White Earth Reservation.

The general allotment act of 1887, in conformity with which the Chippewa allotments were to be made, after

We think the terms of the general act contemplated only selections on the part of living Indians acting for themselves or through designated representatives. The express provision for selections in behalf of children and of Indians failing to select for themselves and the absence of any provision in respect of Indians dying without selections are persuasive that no selections in the right of the latter were to be made. In other words, as to them there was no displacement of the usual rule that the incidents of tribal membership, like the membership itself, are terminated by death. See Gritts v. Fisher, 224 U. S. 640 , 642; Oakes v. United States, 172 Fed. Rep. 305 , 307. It is upon this view that the execution of the general act and other similar acts has proceeded. 30 Land Dec. 532; 40 Id. 9; 42 Id. 446, 582; Woodbury v. United States, 170 Fed. Rep. 302 .

As calling for a different construction of the Nelson Act the defendant relies upon the provision for a census of the Indians and upon the report of the negotiations with them resulting in the cession contemplated by the act, the contentions advanced being that the provision for a census makes it clear that the census when completed was to be accepted as finally determining who were to receive allotments, and that the report of the negotiations shows that the Indians gave their assent to the cession in the belief that the right to select and receive an allotment would not

The suit was brought between six and seven years after the date of the trust patent, and because of this it is urged that the suit was barred by § 8 of the act of March 3,1891, c. 561, 26 Stat. 1099 (see also c. 559, p. 1093), which provides that “suits by the United States . . . to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents.” This contention must be overruled upon the authority of Northern Pacific Ry. v. United States, 227 U. S. 355 , 367, where it was held' that this section is part of the public land laws and refers to patents issued for public lands of the United States. This trust patent was not issued for public lands of the United States but for reserved Indian lands to which the public land laws had no application. And it may be well to observe in passing that the Circuit Court of Appeals directed that there be embodied in the decree a provision that the Government holds the lands in the same way it held them before the patent was issued, that is, as reserved Indian lands.

Another objection to the suit is predicated upon the act of April 23, 1904, c. 1489, 33 Stat. 297 , limiting and defining the authority of the Secretary of the Interior to correct mistakes in and to cancel trust patents for Indian allotments, but of this it is enough to say that we concur in the view of the Circuit Court of Appeals that this section, which makes no reference to the courts, discloses no purpose to restrict or define their jurisdiction or powers in suits such as this.

Decree affirmed.

Mr. Justice McReynolds took no part in the consideration or decision of this case.