United States v. Allen

• Decision Date: 08 June 1910
• Docket Number: 3279.,3276,3150-3163,3265
• Citation: 179 F. 13
• Parties: UNITED STATES v. ALLEN et al. [d]
• Court: U.S. Court of Appeals — Eighth Circuit

179 F. 13

UNITED STATES v. ALLEN et al. ^[d]

Nos. 3150-3163, 3265, 3276, 3279.

United States Court of Appeals, Eighth Circuit.

June 8, 1910

[Copyrighted Material Omitted]

Charles W. Russell, Asst. Atty. Gen., for the United States.

S. T Bledsoe, George S. Ramsey, B. B. Blakeney, James E. Humphrey Joseph C. Stone, and Robert L. Owen, pro se (A. W. Clapp, O. L. Rider, Kenneth S. Muchison, Wm. M. Matthews, C. L. Thomas, N. A. Gibson, Robert J. Boone, George C. Butte, Garfield Johnson, T. S. Cobb, Crump, Rogers & Harris, Willmott & Wilhoit, W. L. McCann, Thomas H. Owen, W. B. Crossan, and Davis & Davis, on the briefs), for appellees.

Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.

AMIDON District Judge.

The lands of the Five Civilized Tribes were allotted in severalty to their members, subject to express restrictions against their alienation for specified periods of time. The bills in these suits charge that many thousand conveyances have been made in violation of those restrictions, and the suits have been brought by the United States to have some 4,000 of these conveyances declared to be void and canceled of record. The restrictions against alienation arise out of numerous statutes and treaties, and vary according to such matters as the amount of Indian blood of the allottee, whether the land was a homestead, and whether it was held as an original allotment or by inheritance. The grantees under the conveyances are classified according to some distinct feature of the restriction upon alienation, and all grantees coming under each class are combined as defendants in a single suit. The allottees are not made parties either as plaintiff or defendant, and it is not charged in the bills that the conveyances were obtained by fraud, misrepresentation, or for an inadequate consideration. They are assailed solely upon the ground that they were made in violation of the restriction which Congress imposed upon the alienation of the allotments.

These bills were demurred to upon numerous grounds. The demurrers were sustained by the trial court for the reason (1) that the complainant has not such an interest in the matters involved as entitles it to maintain the action; (2) that the allottees are necessary parties, and that there is therefore a defect of parties; (3) that the bills are multifarious. A decree was entered in each case dismissing the bill upon the merits, to review which is the object of this appeal.

The consideration of the case will be simplified if it is understood at the outset that the plan of the government, in dissolving the five civilized nations and distributing their lands in severalty, was not simply a real estate transaction. It was a great government project, having for its objective the social and industrial elevation of the Indians. For the accomplishment of that result there were two main reliances: (1) The added incentive which comes from the individual ownership of property as distinguished from its joint or tribal ownership; (2) the continuance of that ownership for such a period as should bring the Indian into a state where he could safely be trusted to protect his interests in the sharp competition with members of the white race. During all the years that this scheme was in process of execution, the Indian lands, like the Indians themselves, were subject to the supreme authority of the national government. The United States proceeded, in so far as it could, with the consent of the Indians. That, however, it did as a matter of wise governmental policy, and not in obedience to any constitutional restriction. Whenever it encountered the obstinate opposition of the Indians to its plans, it did not hesitate to set aside their will and substitute its own authority. The title to these lands was in the Indian tribes, and the formal conveyances to the individual members were made by tribal officers. All this, however, was done in obedience to the regulations of the national government. To attempt to cramp these large governmental measures to the narrow limits of a real estate transaction is to deprive them of their distinctive character. And yet much of the argument contained in the briefs, as well as the opinion of the trial court, treats these measures as a matter between grantor and grantee, and, wherever they do not fit the private law of real property, they are declared to be ineffective.

The same observations may be made as to the statement of the relation between the national government and the Indians being that of guardian and ward. These are familiar terms in decisions dealing with Indian matters. They are, however, words of illustration, and not of definition, and to attempt to reason from the private law of guardian and ward to the measures of the federal government in dealing with the Five Civilized Tribes leads only to confusion and the subversion of the real scheme of government.

Turning now to the objections which were made and sustained by the trial court, has the federal government such an interest as entitles it to maintain these suits? It will be conceded at the outset that it has no legal or equitable estate in the allotments; and if such an estate is necessary, it has no standing in court. It is, however, too plain for controversy, that the federal government imposed restrictions upon the alienation of these allotments. That restriction was its main reliance for the social and industrial elevation of the Indians. Has it a standing in court for the enforcement of its policy? To say that it has not is to make the restraints upon alienation a mere brutum fulmen. Shall the Indians who are intended to be restrained, be made the sole agency for the enforcement of the restraint? If so, the act of Congress is nothing more than a benevolent admonition. If they are unable to resist the allurements by which they are enticed into making the conveyances, will they be expected to undertake the difficult and protracted litigation necessary to set aside their own acts? To ask these questions is to answer them. Congress intended that both the Indians and the members of the white race should obey its limitations. A transfer of the allotments is not simply a violation of the proprietary rights of the Indian. It violates the governmental rights of the United States. If these Indians may be divested of their lands, they will be thrown back upon the nation a pauperized, discontented, and, possibly, belligerent people. To prevent such results the United States may invoke the aid of its courts. That question was put to rest in the decision of In re Debs, 158 U.S. 564, 15 Sup.Ct. 900, 39 L.Ed. 1092. When a suit in equity is an appropriate method for the enforcement of a governmental policy, the national government may maintain such a suit. The present case presents a right of the nation which has been violated and cannot be redressed in any other way than by a suit in equity. If its interest in its measures does not give it a standing in court, then the violation of those measures must go wholly without redress. Governmental action cannot be thus paralyzed. If the aid of the court is an appropriate remedy, the government has the same right to proceed in that manner that it has to use executive power where that power is an appropriate agency for the accomplishment of its purposes.

The Supreme Court of the United States in the case which carried the emancipation of the Indians and their property to the fullest extent, expressly recognizes the right of the government to enforce, by appropriate action in court, the restraints which it imposed upon the alienation of Indian allotments. The court says in the Heff Case, 197 U.S. 489, 509, 25 Sup.Ct. 512, 49 L.Ed. 848:

'Undoubtedly an allottee can enforce his right to an interest in the tribal or other property (for that right is expressly granted), and equally clear is it that Congress may enforce and protect any condition which it attaches to any of its grants. This it may do by appropriate proceedings in either a national or state court. * * * Many a tract of land is conveyed with conditions subsequent. A minor may not alienate his lands; and the proper tribunal may at the instance of the rightful party enforce all restraints upon alienation.'

Under the general allotment act of 1887, a provisional patent was issued to the allottee, and the naked legal title retained in the government for the period of 25 years. In the case of the Five Civilized Tribes, this plan was modified to the extent of granting the legal title to the Indian, but imposing upon it a restraint against alienation. These plans present simply differences of method. The object sought in each case was the same, namely, to clothe the Indian with such title to the property as seemed best calculated to encourage his industrial development, and yet accompany this grant with such a restriction as would prevent the main reliance of the government for the industrial betterment of the Indian from being defeated by the alienation of the property. The right of the government to invoke the aid of its court to prevent the defeat of its object is the same under the one statute as the other. Its right to maintain a suit to prevent the defeat of its allotment scheme under the general law of 1887, is fully sustained in United States v. Rickert, 188 U.S. 432, 23 Sup.Ct. 478, 47 L.Ed. 532. It is contended, however, in the present case, that that decision is not controlling because there the government held the legal title to the property for a period of 25 years in trust for the Indian, whereas here the legal title has been conveyed to the Indian, but subject to a restraint upon alienation.

The decision in the Rickert Case does not rest upon a principle of the law of real property, but...