Chase v. United States

• Decision Date: 12 December 1916
• Docket Number: 4613.
• Citation: 238 F. 887
• Parties: CHASE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

238 F. 887

CHASE v. UNITED STATES.

No. 4613.

United States Court of Appeals, Eighth Circuit.

December 12, 1916

John Lee Webster, of Omaha, Neb. (Hiram Chase, of Pender, Neb., on the brief), for appellant.

A. W Lane, Asst. U.S. Atty., of Lincoln, Neb., and O. C. Anderson of West Point, Neb. (T. S. Allen, U.S. Atty., of Lincoln Neb., on the brief), for appellee.

Before SANBORN, ADAMS, and CARLAND, Circuit Judges.

PER CURIAM.

This suit was instituted under the provisions of an act of Congress approved February 6, 1901 (31 Stat. 760 (Comp. St 1913, Secs. 4214, 4215)), by Hiram Chase, Jr., by his next friend, Hiram Chase, Sr., a member of the Omaha Tribe of Indians, to secure a decree for an allotment of land in the Omaha reservation which had been denied to him by the Secretary of the Interior. He alleged in his amended bill facts which he claims entitled him to such a decree. The United States appeared in due time and moved to dismiss the bill, on the ground that its allegations were not sufficient to constitute a cause of action. This motion was sustained and, plaintiff declining to plead further, the bill was dismissed; and he now appeals, assigning for error that the court erred in dismissing the bill, and in not holding that on the facts stated plaintiff was entitled to the decree prayed for.

A summary of the facts alleged by him is as follows:

Plaintiff was born December 3, 1895, of parents both of whom were members of the Omaha Tribe, and afterwards caused to be selected and now claims an allotment of the W. I/2 of the N.W. 1/4 of section 25, township 25, range 9 east of the sixth principal meridian. In 1854, by a treaty then made between the United States and the Omaha Tribe (10 Stat. 1043), that tribe, for a valuable consideration paid to it, ceded to the United States the southern portion of a tract of land then occupied by them; the northern portion thereof being reserved and set apart to the Indians for their future home. Pursuant to the obligation of the treaty they soon vacated the land so ceded to the United States, and removed to that reserved and set apart to them. In this treaty, power was conferred upon the President to cause the land reserved to the Indians to be surveyed into lots, and to assign to individual Indians, who might desire to make for themselves a permanent home, certain quantities of land for that purpose, and to issue to them patents therefor, subject, however, to certain reasonable restrictions against alienation and to other prescribed conditions.

In 1865, by treaty then made (14 Stat. 667), the Omaha Tribe ceded to the United States, for a valuable consideration, a tract of land from the northern portion of their reservation; and the Indians expressing a desire of promoting settled habits of industry and enterprise amongst themselves by abolishing the tenure in common by which they had theretofore held their lands and of securing assignments of limited quantities thereof in severalty to the individual members of the tribe, it was by article IV agreed that the remaining portion of their reservation should be set apart for those purposes, and that out of the same there should be assigned to each head of a family not exceeding 160 acres, and to each male person, 18 years of age and upwards, without a family, not exceeding 40 acres of land, and that the whole of the land, assigned or unassigned in severalty, should constitute and be known as the Omaha reservation; that such assignments, when approved by the Secretary of the Interior, should be final and conclusive; and that certificates should be issued by the Commissioner of Indian Affairs for the tracts so assigned, specifying the names of the individuals to whom the same were assigned respectively.

On August 7, 1882, Congress passed an act (22 Stat. 341), section 5 thereof authorizing the Secretary of the Interior to allot the part of the reservation lying east of the Sioux City & Nebraska Railroad, in severalty, to the members of that tribe in quantities as follows: To each head of a family, a quarter section; to each single person over 18 years of age, one-eighth of a section; to each orphan child under 18 years of age, one-eighth of a section; and to each other person under 18 years of age, one-sixteenth of a section. These allotments to be in lieu of allotments or assignments provided for in the fourth article of the treaty of 1865. Section 6 of the act provided for the issuance of patents in the names of the allottees, declaring that the United States will hold the land thus allotted for the period of 25 years in trust for the sole use and benefit of the Indians to whom such allotment shall have been made. Section 8 provided that the residue of lands lying east of the railroad, after all allotments have been made, as in the fifth section provided, shall be patented to the Omaha Tribe of Indians, the patent to have the legal effect and declare that the United States does and will hold the land thus patented for the period of 25 years in trust for the sole use and benefit of the tribe, and at the expiration of that period the United States will convey the same by patent to the tribe in fee, discharged of the trust and free from all incumbrances whatsoever. Section 8 also provides, as will hereafter more fully appear, that from the residue of land thus patented to the tribe in common allotments should be made and patented to each Omaha child who may be born prior to the expiration of the time during which it is provided the land shall be held in trust by the United States.

Allotments under this act had been made prior to July 11, 1884, to 954 members of the tribe, and these were duly approved on that date and patents issued therefor. The trust period of 25 years for such allotments would therefore expire on July 10, 1909. The United States failed to issue the patent to the tribe, as provided in section 8 of the act of 1882; but this is conceded to have been an unimportant omission of a ministerial duty only, and that the rights of the members of the tribe therein are not affected by the omission.

The act of March 3, 1893 (27 Stat. 630, c. 209), authorized the Secretary of the Interior, with the consent of the Indians of the tribe, to allot in severalty ' * * * to each Indian woman and child of said tribe born since allotments of land were made in severalty to the members thereof under the provisions of said act (1882), and now living, one-eighth of a section of the residue lands held by that tribe in common, instead of one-sixteenth of a section, as therein provided, and to allot in severalty to each allottee under said act, now living, who received only one-sixteenth of a section thereunder, an additional one-sixteenth of a section of such residue lands. * * * '

The question for decision is whether, in view of the foregoing facts and statutes, the fact that plaintiff in this case was not born until after the act of 1893 was passed, disqualified him to the allotment selected by him.

While the provisions of the two acts of 1882 and 1893 furnish the main criteria by which this question must be answered, the treaties of 1854 and 1865 are relied on by plaintiff's counsel as having an important bearing on the question, their contention being that the cessions of lands to the United States by those treaties afforded a valuable and sufficient consideration for the stipulation in the first treaty empowering the President to survey the reservation, and to assign to such Indians as desired it certain specified areas of land for their permanent home, and to issue to them patents therefor, and for the stipulation in the second treaty abolishing tenure in common and providing for the assignment of the land in severalty to the members of the tribe, without limitation as to time. The contention is that the right of the individual members of the tribe, for whose benefit the treaties were made, to such allotments, was a contract right, made so by the terms of the treaty of 1865, and confirmed by the provisions of the act of 1882, of which they could not be deprived without their consent.

A critical reading and consideration of the treaties themselves fails to convince us of the merit of this contention. By the terms of the treaty of 1854 no obligation to make any assignments to individual members of the tribe was assumed or undertaken by the United States. The President was merely given discretionary power to do so, if, in his judgment, the best interests of the Indians and of all parties concerned would thereby be best promoted;...