United States v. Chase

delivered the opinion of the court.

This is an action to recover for the wrongful use and occupancy of -forty acres of land in Nebraska to which two Omaha Indians assert conflicting claims. The land, is within the Omaha Indian Reservation, was assigned in 1871 under the treaty of March 6, 1865, 14 Stat. 667 , to Clarissa Chase, a member of the Omaha tribe, and was allotted in 1899 under the Act of August 7, 1882, c. 434, 22 Stat. 341 , to Reuben Wolf, another member of the tribe. The defendant, who has been using and occupying the land for some time, claims as the sole heir of Clarissa Chase, and the other claimant — for whom the United States sues as trustee and- guardian — claims as the sole heir of Reuben Wolf. In the District Court judgment went against the defendant, but he prevailed in the Cir

The lands to be so assigned, including those for the use of the agency, shall be in as regular and compact a body as possible, and so as to admit of a distinct and well-defined exterior boundary. The whole of the lands, assigned or unassigned, in severalty, shall constitute and be known as the Omaha reservation, within and over which all laws passed or which may be passed by Congress regulating trade and intercourse with the Indian tribes shall have full force and effect, and no white person, except such as shall be in the employ of the United States, shall be allowed to reside or go upon any portion of said reservation without the written permission of the superintendent of Indian affairs or the agent for the tribe: Said division and assignment of lands to the Omahas in severalty shall be made under the direction of the Secretary of the Interior, and when approved by him, shall be final and conclusive. Certificates shall be issued by the Commissioner of Indian Affairs for the tracts so assigned, specifying the names of the individuals to whom they have been assigned respectively, ánd that they are for the exclusive use and benefit of themselves, their heirs, and descendants; and said tracts shall not be alienated in fee, leased, or otherwise disposed of except to the United States or to other members of the tribe, under such rules and regulations as may be prescribed by the Secretary of the Interior, and they shall be exempt from taxation, levy, sale, or forfeiture, until otherwise provided for by Congress.”

Some of the Omahas sought and received assignments ■under this article, .while others, although having the requisite status, neither sought nor received anything under it. Clarissa Chase was among those''who obtained an assignment of 160 acres as the head of a family, and in 1870 a certificate evidencing her assignment was issued to her by the Commissioner of Indian Affairs. The 160 acres included the 40 acres now in question.

Other provisions and considerations suggest that an apportionment of the tribal possessory right is all that was intended. The article directly provides for a change in .tenure — an “assignment or division” in severalty of communal property. Nothing is said about passing the

A like question was presented and considered in Veale v. Maynes, 23 Kansas, 1, a case arising out of the treaties of 1861 and 1867 with the Pottawatomie Indians. The earlier treaty provided in language similar to that now under consideration for the assignment of portions of the tribal reservation to individual members in severalty and for the issue by the Commissioner of Indian Affairs of certificates for the assigned tracts, “specifying the names of the individuals to whom they have been assigned, respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of such assignees and their heirs.” Assignments were made and certificates issued under that treaty and thereafter the treaty of 1867 was negotiated. Following its provisions a tract assigned under the earlier treaty to one member was conveyed by a patent in fee to another. This was claimed to be violative of the right conferred by the assignment, but the right under the patent was sustained. Speaking for the Supreme Court of Kansas, and particularly referring to the earlier treaty, Mr. Justice Brewer, then a member of that court, said:

“Now what was intended by this division — that the title be thus divided up, or the mere matter of occupancy? Of course either was within the power of the contracting parties. They might provide for a division among the Several Indians whieh should vest an absolute title in each, beyond the power of the tribe or the government to disturb without the personal consent of the individual; or they might provide for an individualizing of the right of occupancy, giving to each person a sole right of occupancy, in a particular tract, a right guaranteed against invasion by any. individual, but still within the power of the tribe as a tribe to eonvey by treaty. In other words, while that remained the tribal home each individual desiring it should have separate control of certain lands, yet subject to the ultimate power of the tribe to. change their home and to make absolute conveyance of the whole body of lands. The power of the- tribe, as a tribe, remained undisturbed over both the allotted lands and those held in common. That this was the intent and effect of the treaty, we are constrained to hold, and this notwithstanding many expressions which, if used in ordinary contracts between individuals, would have, marked significance to the contrary.

“ ... At present it is enough to notice that the allottee remained a member of the tribe, and if the intention had been to enlarge his title from the ordinary Indian title, one of occupancy, to that of a fee-simple, the intention would, it seems, have been expressed in unmistakable terms. If, on the other hand, á difference was to be made in the mere manner in which the various Indians occupied the tribal home, it was enough that that difference was made clear, and language used to indicate that should not be carried to some further meaning.”

In Wiggan v. Conolly, 163 U. S. 56 , 63, where the rights of an allottee, who was still a tribal Indian, were restricted by treaty after the allotment was made, this court said:

“The land and the allottee were both still under the charge and care of the Nation and the tribe, and they could agree for still further protection, a protection which no individual was at liberty to challenge.” -

But if the terms of the treaty of 1865 be regarded as confused or uncertain the question still must be resolved in the same way, for the parties — the United States and the tribe — have in practice placed upon the treaty the construction to which we are inclined. In the certificates issued by the Commissioner of Indian Affairs and accepted by the assignees it was declared that “the said [assignee] is entitled to and may take immediate possession of said land and occupy the same, and the United States guarantees such possession, and will hold the title thereto in trust for the exclusive use and benefit of [the assignee] and — heirs so long as such occupancy shall continue.” The obvious import of this is that the assignee was to have a right of occupancy, but not the fee. In January, 1882, a considerable number of the assignees, some being chiefs who had participated in the negotiation of the treaty and whose names were signed to it, memorialized Congress as follows (Sen. Misc. Doc., No. 31, 47th Cong., 1st sess.):

“We, the undersigned, members of the Omaha tribe of Indians, have taken out certificates of allotment of land, or entered upon claims within the limits of the Omaha reserve. We have worked upon our respective lands from three to ten years; each farm has from five to fifty acres under cultivation; many of us have built houses on these lands, and all have endeavored to make permanent homes for ourselves and our children.

“We therefore petition your honorab’e body to grant to each one a clear and full title to the land on which he has worked.

“We earnestly pray that this petition may receive

your favorable consideration, for we now labor with discouragement of heart, knowing that our farms are not our own', and that any day we may be forced to leave the lands on which we have worked. We desire to live and work on these farms where we have made homes, that our children may advance in the life we have adopted. To this end, and that we may go forward with hope and confidence in a better future for our tribe, we ask of you, titles to our lands.”

Shortly after the presentation of this memorial a bill providing for the sale of the western part of the Omaha Reservation passed the Senate. At that time the only provision in the bill having any possible reference to the existing assignments was a saving clause in its fourth section declaring that “any right in severalty acquired by any Indian under existing treaties shall not be affected by this act.” In the House of Representatives four new sections were added, and in that form the bill became the Act of August 7, 1882, before cited. The new sections, 5 to 8, contain elaborate provisions for making allotments in severalty out of the unsold portion of the reservation, for adjusting the situation to which the Indian memorial invited attention, for the issue of trust patents and patents carrying the fee, for disposing of the surplus lands in the reservation and for ultimately bringing the Indians within the operation of state laws. The fifth section, the one providing for allotments and dealing with the existing assignments, was both comprehensive and easily understood. It was in the nature of a proposal and in terms required “the consent of the Omaha tribe of Indians, expressed in open council,” to make it operative. Shortly stated, what it proposed was this: All unsold lands, including those theretofore assigned under the treaty of 1865, were to be available for allotments. The right to receive allotments was to be accorded to the members generally, including those holding assignments under the

Concluding, as we do, that the assignment to Clarissa Chase passed only the Indian or tribal right of occupancy, the remaining question is not difficult of solution. She took that right as it was held by the tribe, without enlargement or diminution. It was merely individualized. Upon her death, in 1875, it passed to the defendant, he being her sole heir. The Act of 1882, consented to by the tribe, put into effect a general plan of allotment which completely displaced the Indian right of occupancy and in that sense terminated all right under the assignment. ■ Under that plan the assigned tract was available for allotments and the defendant was entitled to an allotment. He could select tííe assigned tract for his allotment — indeed, he had a preferred right to do so. He could exercise that right or waive it and select other lands. But he could not select other lands and also hold the assigned tract. He was entitled to one allotment, not two. If not selected by him, the tract in question would be open to selection by another. He does not assert that he selected it, or that he was denied the right to do so, or that he received less than a full allotment without this tract. But he claims that the assignment

Some reliance is had upon the provision in § 4 that “any right in severalty acquired by any Indian under existing treaties shall not be affected by this act.” But this, as an examination of the act discloses, is merely a saving clause in that part of the act providing for the sale of a distinct portion of the reservation. If the provision be read in connection with what is said in § 5 in dealing with allotments and with assignments under the treaty it becomes manifest that it was not intended to interfere with or qualify the plan of allotment as defined in that section, but only to prevent the sale, under the earlier and separable portion of the act, of any tract to which an Indian had a right in severalty under a treaty. The legislative history of the act also sustains this view. See Cong. Rec., 47th Cong., 1st sess., pp. 3028-3032, 3077-3079.

According to the pleadings, Reuben Wolf died at some time- after selecting the tract for his allotment and before the issue of the patent in his name, and this is set up as an obstacle to a recovery on behalf of his heir. If there be any merit in this objection, it does not render the patent void but only voidable. A statute in force for many years, and which this court has applied to a patent issued under an Indian treaty for Indian lands, provides that where the person to whom the patent issues is dead at the time the title shall inure to and become vested in his heirs, devisees or assigns, as if the patent had issued in his lifetime. Rev. Stats., § 2448; Crews v. Burcham, 1 Black, 352 , 357. Thus the fact that Reuben Wolf was dead when the patent issued is in itself of no moment. If- his selection had not advanced before his death to the.

It results that the judgment of the Circuit Court of Appeals must be reversed and that of the District Court affirmed.

It is so ordered.