Ickes v. Pattison

• Decision Date: 02 December 1935
• Docket Number: No. 6406.,6406.
• Citation: 65 App. DC 116,80 F.2d 708
• Parties: ICKES, Secretary of Department of Interior, v. PATTISON et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 116, 80 F.2d 708 (1935)

ICKES, Secretary of Department of Interior, v. PATTISON et al.^*

No. 6406.

United States Court of Appeals for the District of Columbia.

Argued October 15, 1935.

Decided December 2, 1935.

Nathan R. Margold and William H. Hastie, both of Washington, D. C., for appellant.

Webster Ballinger, of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

VAN ORSDEL, Associate Justice.

Amos and Marie Hamilton, Osage Indians, filed their petition in the Supreme Court of the District of Columbia as heirs of their son, Timothy Hamilton, deceased, praying that a writ of mandamus issue requiring defendant, Harold L. Ickes, Secretary of the Interior of the United States, to recognize Timothy Hamilton as a duly enrolled member of the Osage Tribe of Indians, under the Osage Allotment Act of June 28, 1906, 34 Stat. 539. During the pendency of this proceeding Amos Hamilton died, and the administrator of his estate, A. B. Pattison, has been substituted for him as a party plaintiff.

From a final order granting the writ, this appeal was taken.

The Allotment Act, among other things, provides: "That the roll of the Osage tribe of Indians, as shown by the records of the United States in the office of the United States Indian agent at the Osage Agency, Oklahoma Territory, as it existed on the first day of January, nineteen hundred and six, and all children born between January first, nineteen hundred and six, and July first, nineteen hundred and seven, to persons whose names are on said roll on January first, nineteen hundred and six, and all children whose names are not now on said roll, but who were born to members of the tribe whose names were on the said roll on January first, nineteen hundred and six, including the children of members of the tribe who have, or have had, white husbands, is hereby declared to be the role of said tribe and to constitute the legal membership thereof." Section 1.

Plaintiffs in their petition allege, in support of their claim for a writ, that Timothy Hamilton was born on November 20, 1905, and that "on December 12, 1905, the duly authorized agents of the United States, acting in their official capacity, completed a roll of the members of the Osage tribe of Indians, upon which said roll the name of their said son, Timothy, was duly and lawfully inscribed on page 39 opposite number 1967 as a member of said Osage tribe of Indians, and their said son, by reason thereof, became a duly enrolled member of said tribe."

It is further alleged that the infant, Timothy, died on January 1, 1906, and that his being alive on that date entitled him to a place on the roll as a member of the Osage Indian Tribe, and entitled his parents, as his lawful heirs, to all of the benefits accruing to an enrolled member of the tribe under the provisions of the act of Congress.

The petitioners prayed that a rule issue requiring the Secretary of the Interior to show cause "why a writ of mandamus should not issue commanding him (a) to recognize the name of petitioner's son, Timothy Hamilton, on the final roll of the Osage tribe of Indians, and to pay to petitioners as the lawful heirs of their said deceased son, the share in all future payments made the Osage Indians to which their said son would have been entitled if alive; and (b) to pay to petitioners an amount equal to a per capita share of all annuity and other payments made to the members of the Osage tribe of Indians since the quarterly annuity payment of December 12, 1905, or in lieu of payment to them, to place said amount to their credit out of any funds standing to the credit of the Osage tribe of Indians applicable to such purposes, to be held and expended for their benefit as other restricted Indian moneys."

Defendant Secretary answered, challenging the jurisdiction of the court to direct a change in the final roll approved April 11, 1908, or to grant the rights prayed for in the petition; alleging that the action of the former Secretary of the Interior in denying enrollment of Timothy Hamilton was based upon determinations of law and fact requiring an interpretation of the act of June 28, 1906, and the determination of an issue of fact as to the date of the death of Timothy Hamilton.

Defendant denied the allegations of the petition respecting the dates of the birth and death of Timothy Hamilton, alleging as an affirmative defense that Timothy Hamilton died in November, 1905; and as a further defense averred that "the name of Timothy Hamilton appears upon the annuity pay roll for December as one entitled to that quarterly payment by reason of the practice then established in the administration of Indian affairs that one quarterly payment be made to the head of a household on account of a deceased member thereof to cover expenses of burial." Plaintiffs demurred to the answer. Their demurrer was sustained and defendant electing to stand upon his answer, the court rendered a final judgment that "the respondent, Harold L. Ickes, be, and he is hereby, commanded within twenty days after this date to recognize the name of relator's son, Timothy Hamilton, as now, and at all times heretofore, on the final roll of the Osage tribe of Indians confirmed by the act of June 28, 1906."

It will be observed that the case was disposed of in the court below upon the pleadings after demurrer by plaintiff to the defendant's answer. It follows that the affirmative allegations of the answer, well pleaded, are admitted by the plaintiffs. This greatly simplifies the consideration of the case.

The act of Congress, after providing for the compilation of a final roll, provides that "the revision and approval of the Secretary of the Interior, as herein provided, shall constitute the approved roll of said tribe; and the action of the Secretary of the Interior in the revision of the roll as herein provided shall be final, and the provisions of the Act of Congress of August fifteenth, eighteen hundred and ninety-four, Twenty-eighth Statutes at Large, page three hundred and five, granting persons of Indian blood who have been denied allotments the right to appeal to the courts, are hereby repealed as far as the same relate to the Osage Indians." Section 1. It thus appears that the act of Congress not only makes the final decision of the Secretary conclusive, but closes the doors of the courts to any right of appeal.

The former Secretary, in compiling the roll, before approval, submitted to his proper legal adviser, the Assistant Attorney General for the Interior Department, the question of who, under the act, were entitled to enrollment. The Assistant Attorney General, under date of August 10, 1906, rendered an opinion in which, among other things, he said: "January 1, 1906, is the important date in this legislation. It is clearly intended that all members of the tribe in being on that day shall share in the distribution of the tribal property. The lands and funds of the tribe were communal property in which no individual held a separate interest...