Dixon v. Cox

• Decision Date: 02 October 1920
• Docket Number: 5468.
• Citation: 268 F. 285
• Parties: DIXON et al. v. COX et al.
• Court: U.S. Court of Appeals — Eighth Circuit

268 F. 285

DIXON et al. v. COX et al.

No. 5468.

United States Court of Appeals, Eighth Circuit.

October 2, 1920

Thomas L. Sloan, of Walthill, Neb., for appellants.

Karl J Knoepfler, of Walthill, Neb. (Harry L. Keefe, of Walthill Neb., Albert W. Jefferis and George M. Tunison, both of Omaha, Neb., T. S. Allen, U.S. Atty., of Lincoln, Neb., and B. H. Dunham and Herman Aye, both of Omaha, Neb., on the briefs), for appellees.

Before SANBORN and CARLAND, Circuit Judges, and VAN VALKENBURG District Judge.

SANBORN Circuit Judge.

This appeal challenges a decree of dismissal of the complaint by the plaintiffs, Roth Dixon and Frank Dick, to avoid an adjudication of the Secretary of the Interior under the Act of Congress of June 25, 1910, 36 Stat. 855; that the allotment of the 160 acres in controversy to Joseph Cox, an Indian of the Omaha Tribe, under the Act of August 7, 1882 22 Stat. 341, descended, subject to the dower of Dora Cline Cox, to Jesse H. Cox; and to obtain a decree that the defendants, who claim under that decision and under a patent founded thereon, issued February 2, 1918, to Jesse H. Cox, hold the legal title under that patent in trust for the plaintiffs, who claim that this allotment descended to them through William P. Cox, a son of Joseph. The issue whether this land descended to Jesse H. Cox or to the plaintiffs was heard, considered, and decided by the Secretary of the Interior after full argument upon a mass of evidence taken by and in the presence of counsel for the respective parties in interest. The history of the case is interesting, but the details of that history are not material to its disposition. The right answers to these two questions necessarily determine the decision that this court must render, and therefore other matters discussed by counsel are laid aside. Did the Secretary of the Interior have jurisdiction to hear, consider, and conclusively determine the issue between these contestants, whether the title to this land descended to Jesse H. Cox or to the plaintiff, and, if he had such jurisdiction, did the complaint or proof in this suit set forth a cause of action in equity to avoid the Secretary's adjudication for fraud, error of law, or absence of substantial evidence to sustain his conclusion?

The material provisions of the Act of August 7, 1882, 22 Stat. 342, relative to these questions are:

Section 5. That the Secretary of the Interior should make an allotment of 160 acres of land out of the tract described in the act to each Indian of the Omaha Tribe who was the head of a family.

Section 6. That he should 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: * * * 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.'

Section 7. 'That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of said tribe of Indians shall have the benefit of and be subject to the laws, both civil and criminal, of the state of Nebraska.'

The allotment and patenting of the lands under this act was completed on December 29, 1884, and such a trust patent as is described therein was issued to Joseph Cox on that day. On December 27, 1886, he died intestate. By the Act of June 25, 1910, 36 Stat. 855 (Comp. St. Sec. 4226), Congress provided:

'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.'

After notice and hearing and in strict accordance with the terms of this act the Secretary of the Interior finally ascertained and decided that, subject to the dower of Dora Cline Cox, the allotment of Joseph Cox, an Indian of the Omaha Tribe, who died intestate before the expiration of his trust period and before the issuance of a fee-simple patent, descended to Jesse H. Cox, and pursuant to that decision he issued on February 2, 1918, to Jesse H. Cox, as heir of Joseph Cox, the fee-simple patent of the United States to this land, subject to the dower interest of Dora Cline Cox.

Counsel for the plaintiffs concedes that the United States, during all the time between the allotment of the land in 1884 and the issue of the fee-simple patent in 1918, held it in trust for the benefit of Joseph Cox and his heirs, and that the Secretary of the Interior had jurisdiction of the administration of the land and of the execution of this trust. He argues, however, that immediately upon the death of Joseph Cox the right to the use thereof and to the ultimate title thereto immediately vested in the plaintiffs, or in William P. Cox, under whom they claim as his heir or heirs, and that neither the Congress nor the Secretary could lawfully deprive them of that right. He insists that the proceeding before the Secretary, by virtue of which the title to and the use of the land were adjudged to Jesse H. Cox, deprived the plaintiffs of their right to the land and its use, and this without due process of law. He does not rest these claims on the ground that the plaintiffs did not have notice of the claim of Jesse H. Cox that was to be adjudged by the Secretary, or that they did not have notice of the time or place of the hearing; but he rests it upon the ground that the Secretary, the tribunal which heard and decided the issue of heirship, had no lawful authority so to do.

A careful consideration of the brief and the argument has led to the conclusion that these and all the other contentions presented by counsel for the plaintiffs rest upon the single proposition that the Act of Congress of June 25, 1910, which...