Hallowell v. Commons

• Decision Date: 29 January 1914
• Docket Number: 3923.
• Citation: 210 F. 793
• Parties: HALLOWELL v. COMMONS et al.
• Court: U.S. Court of Appeals — Eighth Circuit

210 F. 793

HALLOWELL v. COMMONS et al.

No. 3923.

United States Court of Appeals, Eighth Circuit.

January 29, 1914

[Copyrighted Material Omitted]

Hiram Chase, of Pender, Neb., for appellant.

A. W Lane, Asst. U.S. Atty., of Omaha, Neb. (F. S. Howell, U.S Atty., of Omaha, Neb., on the brief), for appellees.

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

SMITH Circuit Judge.

Simeon Hallowell brought suit in equity against John M. Commons as Acting Indian Agent and Superintendent and Special Disbursing Agent for the Omaha Tribe of Indians of Nebraska, and Sarah Hallowell Walker. The defendants demurred to the bill on the grounds that the complainant was not entitled to the relief prayed for, and that the bill of complaint was without equity. The demurrer was sustained, and, the complainant electing to stand on his bill, it was by the court dismissed, and Mr. Hallowell appeals.

It appears from the bill that Jacob Hallowell was a member of the Omaha Tribe of Indians, and was allotted 80 acres of land under section 5, 22 Stats. 341. On December 29, 1884, the United States issued to him the preliminary patent as provided in section 6 of the same act, which is as follows:

'Sec. 6. That upon the approval of the allotments provided for in the preceding section by the Secretary of the Interior, he shall cause patents to issue therefor in the name of the allottees, which patents shall be of the legal effect and declare that the United States does and will hold the land thus allotted for the period of twenty-five years in trust for the sole use and benefit of the Indians to whom such allotment shall have been made, or in case of his decease, of his heirs according to the laws of the state of Nebraska, and that at the expiration of said period the United States will convey the same by patent to said Indian or his heirs as aforesaid, in fee discharged of said trust and free of all charge or incumbrance whatsoever. And if any conveyance shall be made of the lands set apart and allotted as herein provided, or any contract made touching the same before the expiration of the time above mentioned, such conveyance or contract shall be absolutely null and void: Provided, that, the law of descent and partition in force in the said state shall apply thereto after patents therefor have been executed and delivered.'

In 1885 Jacob Hallowell died. He left a widow who died in 1886. There were left surviving him a number of persons who claim, or may claim, to be Jacob Hallowell's 'heirs according to the laws of the state of Nebraska. ' At the time of the death of Jacob Hallowell he left a then living half-sister, Megretae Clay, who died in December, 1906, and the heirs of a deceased half-brother, Benjamin Hallowell.

When Megretae Clay died, she left, first, a grandson, Hiram Chase, 2d, now of Pender, Neb., who was the son of Hiram Chase, 1st, and his wife, the latter was the daughter of Megretae Clay, and second, a great granddaughter, Eileen Lawless, who was the daughter of Pauline Lawless, who was the daughter of Mrs. Hiram Chase, 1st, who was the daughter of the said Megretae Clay. Said Benjamin Hallowell, about 50 years ago, was married, and the appellant, Simeon Hallowell, is the sole fruit of such marriage. Thereafter, and prior to 1874, Benjamin Hallowell married an Omaha Indian, Mary Tyndall. There are no children surviving as the result of this marriage. In 1875, and while his wife, formerly Mary Tyndall was still living and still his wife, Benjamin Hallowell took a second plural and polygamous wife, Gradustawe Blackbird, an Omaha Indian woman, and she bore him one daughter on November 15, 1876, named Sarah Hallowell, now Sarah Hallowell Walker. It thus appears that this Sarah Hallowell Walker is the half-sister of the appellant. The appellant in his bill states that none of these parties, Sarah Hallowell Walker nor Hiram Chase, 2d, nor Eileen Lawless are entitled to participation in the rents of the said 80 acres. In his bill he prays:

(1) That it be decreed that under the terms of the sixth section of the act of Congress of August 7, 1882, 22 Stats. 341, the fee-simple estate of inheritance in and to the real estate herein described is retained by the United States of America but charged with an express trust of 25 years, without power of alienation for said beneficiaries.

(2) That it be decreed that the beneficiaries of said trust of 25 years are Jacob Hallowell, but in the event of his death during said trust of 25 years, then the residue and unexpired trust of 25 years inures and vests in the legal heirs according to the laws of Nebraska, of the said Jacob Hallowell, deceased, in the character of purchasers and grantees of the United States, by force and effect of the executory character of said trust of 25 years, and governed by the rules of law governing executory devises, uses, and trusts created in wills and deeds, and not by law applicable to inheritable freehold estates of inheritances.

(3) That it be decreed that Simeon Hallowell, the complainant, being the nearest kin and only nephew and heir at law of the said Jacob Hallowell, deceased, is the sole and only beneficiary of said residue and unexpired trust of 25 years, and entitled to lease the same and receive all the rents and profits of the same without hindrance from any person whomsoever under the Acts of Congress and the rules and regulations of the Interior Department providing for the leasing of Indian lands and allotments.

(4) That it be decreed that Hiram Chase of Pender, Neb., has only an expectant right in and to said trust of 25 years to take effect and enjoyment and possession in the event that said Simeon Hallowell should die during the existence of said trust of 25 years.

(5) That it be decreed that Eileen Lawless, of Oklahoma, has only an expectant right in and to said trust of 25 years, to take effect and enjoyment and possession in the event of the extinction of the nephews and grandnephews and grandnieces of the said Jacob Hallowell.

(6) That it be decreed that Sarah Hallowell Walker is not a legal heir of the said Jacob Hallowell, and is not entitled to be a beneficiary of said trust of 25 years.

(7) That an injunction issue as against John M. Commons, as Indian Agent, Superintendent, and Special Disbursing Agent, and Sarah Hallowell Walker, from preventing the complainant Simeon Hallowell from making a lease of said premises alone, and not to prevent him from receipting for all rent of said premises as provided by the laws of Congress and the rules and regulations of the Interior Department, and for general equitable relief.

The bill does not make Hiram Chase, 2d, a party because it is alleged he makes no claim adverse to the complainant, and the said Hiram Chase brings this suit as solicitor for the complainant, and Eileen Lawless was not made a party because she was beyond the jurisdiction and processes of the court. It is stated in the brief for appellant that Eileen Lawless is now deceased.

Notwithstanding the rule in Shelley's Case it is first contended that the words 'his heirs according to the laws of the state of Nebraska,' as used in section 6, 22 Stats. 341, and as also used in the preliminary patent, are words of purchase and not of limitation of the estate. Appellant cites Hall v. Russell, 101 U.S. 503, 25 L.Ed. 829; McCune v. Essig, 199 U.S. 382, 26 Sup.Ct. 78, 50 L.Ed. 237, and Cutting v. Cutting (C.C.) 6 Fed. 259.

By operation of the law and the preliminary patent the equitable interest in this land, subject to the restrictions contained in the statute, and possibly to the plenary power of Congress to enact legislation for the government of the Indians, passed and the government retained the legal title for 25 years.

The District Court found against the appellant on this question, and we are inclined to think it was correct, as the law and the preliminary patent vested in the grantee the equitable title, but reserved the legal title in the government; the case is unlike the cases cited, but in view of other questions in this case, it is unnecessary to decide that question.

The first question to decide is whether the court below had any jurisdiction of this case.

On June 25, 1910, Congress passed a law:

'That when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive.' 36 Stats. 855.

It is contended this law was clearly in conflict with the provisions of the Constitution:

First. 'The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. ' Article 3, Sec. 1.

Second. 'The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority. ' Article 3, Sec. 2.

While it is true that the judicial power of the United States extends to all cases in equity arising under the laws of the United States, it does not follow that the jurisdiction of any given court extends thereto. The Congress had power to confer such jurisdiction upon any court created by it. The original jurisdiction of the Supreme Court is defined by the Constitution by clause 2 of section 2...