Chase v. United States

• Decision Date: 21 November 1919
• Docket Number: 5283.
• Citation: 261 F. 833
• Parties: CHASE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

261 F. 833

CHASE v. UNITED STATES.

No. 5283.

United States Court of Appeals, Eighth Circuit.

November 21, 1919

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

T. S Allen, U.S. Atty., of Lincoln, Neb., and O. C. Anderson Attorney for Omaha Tribe of Indians, of West Point, Neb (Frank A. Peterson, Asst. U.S. Atty., of Omaha, Neb., on the brief), for the United States.

Before CARLAND and STONE, Circuit Judges, and ELLIOTT, District Judge.

CARLAND Circuit Judge.

May 19 1910, this action was instituted under the provisions of the act of Congress approved February 6, 1901 (31 Stat. 760, c. 217), by Hiram Chase, Jr., a member of the Omaha Tribe of Indians, by his next friend, Hiram Chase, Sr., 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. The case was before this court at a former term, and, as stated in the opinion of the court, on appeal from a decree dismissing the amended complaint for the reason that it did not state facts sufficient to constitute a cause of action. We then decided that the amended complaint did state a cause of action under the act of Congress of August 7, 1882 (22 Stat. 341, c. 434). 238 F. 887, 152 C.C.A. 21. When the case went back to the trial court, the appellee answered, alleging among other things the acts of Congress of March 3, 1893 (27 Stat. 630, c. 209), and May 11, 1912 (37 Stat. 111, c. 121), as repealing the act of 1882, so far as the right of Chase, Jr., to an allotment was concerned. After a trial on the merits, a decree of dismissal of the action was entered, and appellant appealed.

As our former decision gave Chase, Jr., no right to an allotment under the act of March 3, 1893, but expressly decided that he was not entitled to an allotment under said act, and that it did not repeal the act of 1882, it need not be mentioned, except perhaps in a historical way. We also decided that Hiram Chase, Jr., was entitled to an allotment of 40 acres under the act of 1882, supra. The question, therefore, before us is as to whether the act of May 11, 1912, supra, took away the right of Chase, Jr., to an allotment under the act of 1882. The act of 1882 provided for the sale of that portion of the Omaha reservation lying west of the Sioux City & Nebraska Railway and the allotment in severalty to the Indians of that portion of the reservation lying east of said railway in quantity as follows: To each head of a family one quarter of a 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. The act further provided that the Secretary of the Interior should cause patents to be issued for said allotments in the names of the allottees, which patents should be of the legal effect and declare that the United States held the land thus allotted for the period of 25 years in trust for the sole use and benefit of the Indians to whom such allotments had been made. These allotments were made in 1884. Section 8 of the act of 1882 reads as follows:

'That the residue of lands lying east of the said right of way of the Sioux City & Nebraska Railroad, after all allotments have been made, as in the fifth section of this act provided, shall be patented to the said Omaha Tribe of Indians, which patent shall be of the legal effect and declare that the United States does and will hold the land thus patented for the period of twenty-five years in trust for the sole use and benefit of the said Omaha Tribe of Indians, and that at the expiration of said period the United States will convey the same by patent to said Omaha Tribe of Indians, in fee discharged of said trust and free of all * * * incumbrance whatsoever: Provided, that from the residue of lands thus patented to the tribe in common, allotments shall be made and patented to each Omaha child who may be born prior to the expiration of the time during which it is provided that said lands shall be held in trust by the United States, in quantity and upon the same conditions, restrictions, and limitations as are provided in section 6 of this act, touching patents to allottees therein mentioned. But such conditions, restrictions, and limitations shall not extend beyond the expiration of the time expressed in the patent herein authorized to be issued to the tribe in common: And provided further, that these patents, when issued, shall override the patent authorized to be issued to the tribe as aforesaid, and shall separate the individual allotment from the lands held in common, which proviso shall be incorporated in the patent issued to the tribe.'

Chase, Jr., was born December 3, 1895. Hiram Chase, Sr., testified that he transmitted to the Secretary of the Interior an application for an allotment for the land described in the complaint; that said application was denied; that witness was not able to produce said application nor the letter written him in reply thereto; that said papers had been lost or mislaid. The trust period mentioned in the act of 1882 expired in 1909. In the absence of other legislation it therefore appears that Chase, Jr., was within the terms of the act of 1882 allowing allotments to Omaha children born during the trust period. We proceed, therefore, to consider the question heretofore stated as being the question for decision. The act of 1912, supra, reads as follows:

'Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the Secretary of the Interior be, and he is hereby, authorized to cause to be surveyed, if necessary, and appraised, in such manner as he may direct, in tracts of forty acres each, or as nearly as to the Secretary may seem practicable, and after such survey and appraisement, to sell and convey, in quantities not to exceed one hundred and sixty acres to any one purchaser, all the unallotted lands on the Omaha Indian reservation, in the state of Nebraska, except such tracts as are hereinafter specifically reserved; Provided, that the said land shall be sold to the highest bidder under such regulations as the Secretary of the Interior may prescribe, but no part of said land shall be sold at less than the appraised value thereof: And provided further, that prior to such appraisement and sale any member of the Omaha Tribe whose allotment is subject to erosion by the Missouri river shall be permitted to relinquish such allotment and select lieu lands of equal area from the unallotted lands, the lands so relinquished to become a part of the unallotted tribal lands and subject to appraisement and sale under the terms of this act.

'Sec. 2. That the Secretary of the Interior is hereby directed to reserve from sale, under the terms of this act, the following tracts of land for the purposes designated: Forty-nine acres of the land now used for agency purposes to be reserved for agency and school purposes for so long as the need thereof exists; ten acres to be selected by the tribe for use as a tribal cemetery; ten acres of the land now reserved for the use of the Presbyterian Church to be selected by the officials of said church for the use of the church so long as needed for religious or educational purposes; two acres of the land on which is standing what is known as the old Presbyterian mission building, and the Secretary of the Interior is hereby authorized to cause a patent in fee simple to issue therefor in the name of the State Historical Society of Nebraska: Provided, that of the land now reserved for agency purposes the Secretary of the Interior is directed to reserve and set aside for town-site purposes one hundred and sixty-four acres other than the forty-nine acres hereinbefore reserved, and shall cause the same to be surveyed and platted into town lots, streets, alleys, and parks, the lots to be appraised and sold under the terms of this act, and the streets, alleys, and parks are hereby dedicated to public use: Provided further, that the lands allotted, those retained or reserved, and the surplus lands sold, set aside for town-site purposes, or otherwise disposed of, shall be subject for a period of twenty-five years to all of the laws of the United States prohibiting the introduction of intoxicants into the Indian country.

'Sec. 3. That the proceeds of such sale, after paying all the expenses incident to and necessary for carrying out the provisions of this act, and after reimbursing the general trust fund of the tribe for any assessment paid therefrom for protecting the unallotted tribal lands from overflow, shall be divided pro rata among the children of the Omaha Tribe living on the date of the passage and approval of this act who have not received allotments of land under the acts of August seventh, eighteen hundred and eighty-two (twenty-second United States Statutes at Large, page three hundred and forty-one) and March third, eighteen hundred and ninety-three (twenty-third United States Statutes at Large, page six hundred and thirty), and shall be expended for the benefit of said Indians when and in such manner as in the opinion of the Secretary of the Interior shall be to their best interests, and pending such expenditure by the said Secretary the sums due the respective Indians shall be placed to the credit of the said Indians in the treasury of the United States, and shall bear interest at the rate of five per centum per annum, but in the event of the death of any such Indian while there remains in the treasury to his credit any part of the sum so deposited the said sum shall be paid at once to his heirs, who shall be determined by the Secretary of the

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