Ne-kah-wah-she-tun-kah v. Fall

• Decision Date: 04 June 1923
• Docket Number: 3871.
• Citation: 290 F. 303
• Parties: NE-KAH-WAH-SHE-TUN-KAH et al. v. FALL, Secretary of the Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

290 F. 303

NE-KAH-WAH-SHE-TUN-KAH et al. v. FALL, Secretary of the Interior, et al.

No. 3871.

United States Court of Appeals, District of Columbia.

June 4, 1923

Submitted February 14, 1923.

Appeal from the Supreme Court of the District of Columbia.

S. C Peelle and C. F. R. Ogilby, both of Washington, D.C., and Preston A. Shinn, of Pawhuska, Okl., for appellants.

Peyton Gordon, C. E. Wright, and E. S. Booth, all of Washington D.C., for appellees.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and BARBER Judge of the United States Court of Customs Appeals.

ROBB Associate Justice.

Appeal from a decree in the Supreme Court of the District dismissing appellants' bill, in which was sought an injunction restraining appellees from carrying out certain provisions of the Act of March 3, 1921 (41 Stat. 1249); the contention of appellants being that these provisions amount to an unconstitutional invasion of their rights as full-blood incompetent members of the Osage Tribe of Indians. The bill was disposed of on motion to dismiss, and the real question for determination is whether Congress, by the Act of June 28, 1906 (34 Stat. 539), as amended by the Act of April 18, 1912 (37 Stat. 86), had exhausted its power to control the payment of income to such incompetent Indians.

Section 4 of the act of 1906 in part provides:

'That all the funds of the Osage Tribe of Indians, and all the moneys now due or that may hereafter be found to be due to the said Osage Tribe of Indians, and all the moneys that may be received from the sale of their lands in Kansas under existing laws, and all moneys found to be due to said Osage Tribe of Indians on claims against the United States, after all proper expenses are paid, shall be segregated as soon after January first, nineteen hundred and seven, as is practicable and placed to the credit of the individual members of the said Osage Tribe on a basis of a pro rata division among the members of said tribe, as shown by the authorized roll of membership as herein provided for, or to their heirs as hereinafter provided. * * * '

It thus appears that the funds to which this section refers are tribal funds, and that in 1906 it was the will of Congress that these funds should be paid in a certain way to the individual members of the tribe. Between 1906 and 1921 the volume of the funds in question had materially increased (see Payne v. U.S., 50 App.D.C. 219, 269 F. 871; Work v. U.S., 43 Sup.Ct. 389, 67 L.Ed. . . .; decided by the Supreme Court of the United States March 19, 1923), and this fact probably accounts for the enactment of the act of 1921, under section 4 of which it is provided:

'That from and after the passage of this act the Secretary of the Interior shall cause to be paid at the end of each fiscal quarter to each adult member of the Osage Tribe having a certificate of competency his or her pro rata share, either as a member of the tribe or heir of a deceased member, of the interest on trust funds, the bonus received from the sale of leases, and the royalties received during the previous fiscal quarter, and so long as the income is sufficient to pay to the adult members of said tribe not having a certificate of competency $1,000 quarterly except where incompetent adult members have legal guardians, in which case the income of such incompetents shall be paid to their legal guardians, * * * and to invest the remainder after paying all the taxes of such members either in United States bonds or in Oklahoma state, county, or school bonds,

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