Oakes v. United States

• Decision Date: 02 August 1909
• Docket Number: 2,797.
• Citation: 172 F. 305
• Parties: OAKES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

172 F. 305

OAKES et al. v. UNITED STATES.

No. 2,797.

United States Court of Appeals, Eighth Circuit.

August 2, 1909

(Syllabus by the Court.)

Originally the test of the right of individual Indians to share in tribal lands and other tribal property was existing membership in the tribe; but this rule has been so broadened by Act March 3, 1875, c. 131, Sec. 15, 18 Stat. 420 (U.S Comp. St. 1901, p. 1419), and Act Feb. 8, 1887, c. 119, Sec 6, 24 Stat. 390, and other acts, as to place individual Indians who have abandoned tribal relations, once existing and have adopted the customs, habits, and manners of civilized life, upon the same footing in respect of this right as though they had maintained their tribal relations.

Act Jan. 14, 1889, c. 24, 25 Stat. 642, relating to the cession of part of the Chippewa reservations in Minnesota and to the allotment in severalty of the remainder, does not expressly or by necessary implication displace the saving provisions of the acts of 1875 and 1887, above named, whereby individual Indians who have abandoned tribal relations, once existing and have adopted the customs, habits, and manners of civilized life, are accorded the same right to share in tribal property as though they had maintained their tribal relations; nor does it render those provisions less applicable to the Chippewas in Minnesota than to other Indians.

Act June 7, 1897, c. 3, 30 Stat. 62, relating to the rights of children of a white man and an Indian woman in tribal property, does not embrace the children of a mother who was living at the time of its passage and was not then recognized by the tribe as one of its members.

Quaere: Whether in a suit against the United States under Act Feb. 6, 1901, c. 217, 31 Stat. 760, to enforce a right to an allotment of specified land, which has been allotted to another Indian, a decree displacing or annulling the existing allotment lawfully can be rendered without making the allottee a party and giving him an opportunity to defend.

Harvey S. Clapp (C. B. Miller, on the brief), for appellants.

Charles C. Houpt, U.S. Atty.

Before SANBORN and VAN DEVANTER, Circuit Judges, and AMIDON, District judge.

VAN DEVANTER, Circuit Judge.

By their suit commenced and prosecuted under Act Feb. 6, 1901 c. 217, 31 Stat. 760, the appellants asserted that they were entitled to have allotted to them in severalty, under Act Jan. 14, 1889, c. 24, 25 Stat. 642, certain specified lands in the White Earth Indian reservation in Minnesota, that their applications for such allotments had been unlawfully denied by the officers charged with the allotment of the lands in that reservation, and therefore that they were entitled to a decree recognizing and enforcing their rights to such allotments.

Upon the final hearing the Circuit Court, being of opinion that none of the appellants came within the terms of the act of 1889, entered a decree dismissing the bill, and an appeal has brought the case here. The facts established by the proofs are as follows:

The appellants are descendants of Margaret Beaulieu, a full-blood Mississippi Chippewa, who was enrolled and recognized during all her life as a member of that tribe and was living upon the tribal reservation at White Earth at the time of her death in 1877. Jane B. Oakes, one of the appellants, is a daughter of Margaret Beaulieu, was by birth a member of the same tribe, and was enrolled and recognized as such from the time of her birth until 1849. In 1829, while she was attending a mission school, she married a Mr. Oakes, a white man, and they lived at a trading post in the Chippewa country until 1849. In that year they moved to Ft. Ripley on the Mississippi, and the next year to St. Paul, where Mr. Oakes engaged in the banking business until the time of his death in 1879. Jane B. Jones, another of the appellants, is a daughter of Mrs. Oakes, was born in the Chippewa country in 1841, and was enrolled and recognized as a member of the Mississippi Chippewa tribe until 1849, when her parents took her to Ft. Ripley and then to St. Paul. She grew to womanhood in the latter place and has been married twice, each time to a white man. Jane Andrews and Cornelia Van Etten Bent, the remaining appellants, are daughters of Mrs. Jones by her first husband. They were born and reared in St. Paul, never were enrolled or recognized as members of the tribe, and are married to white men. After the Oakes family moved to St. Paul, Mrs. Oakes and Mrs. Jones abandoned their former tribal relations, adopted the customs, habits, and manners of civilized life, and ceased to be recognized as members of the tribe. Sometimes they exchanged visits with members of the tribe; but these visits did not occur often, and were confined to relatives. The appellants were all residents of St. Paul when the act of 1889 was passed, and shortly thereafter they asserted that they were entitled to allotments thereunder. In 1894 the names of Mrs. Oakes and Mrs. Jones were placed upon a supplemental census of White Earth Mississippi Chippewas by the chairman of the commission charged with making a census and allotments under the act of 1889, and the next year their names were dropped from the census; but the circumstances in which these acts were done are not disclosed. In 1905, before applying for allotments of specific lands, Mrs. Oakes and Mrs. Jones removed to and took up their residence upon the White Earth Reservation. Whether or not Mrs. Andrews and Mrs. Bent did likewise may be left undetermined, because, if they did, it would not help them, as will be seen presently.

The White Earth reservation was set apart as a tribal reservation for the use and occupancy of the Mississippi Chippewas under the treaty of March 19, 1867 (16 Stat. 719), and was being allotted in severalty under the act of 1889 when the appellants applied for allotments therein and when this suit was commenced.

That act is entitled 'An act for the relief and civilization of the Chippewa Indians in the state of Minnesota,' and provides for obtaining a cession and relinquishment by 'all the different bands or tribes of Chippewa Indians in the state of Minnesota,' of all their tribal reservations in that state, excepting so much of the Red Lake reservation and of the White Earth reservation as shall be deemed necessary 'to make and fill the allotments required by this and existing acts. ' It further provides: That the cession and relinquishment shall be deemed sufficient as to each reservation, other than the Red Lake reservation, if made and assented to in writing by a designated portion of 'the band or tribe of Indians occupying and belonging to' such reservation, and shall be sufficient as to the Red Lake reservation if made and assented to in like manner by a like portion of 'all the Chippewa Indians in Minnesota'; that, for the purpose of determining whether the requisite number of Indians participate in the cession and relinquishment and of making the allotments and payments mentioned in the act, accurate census of 'each tribe or band' shall be made; that as soon as the census shall be taken, and the cession and relinquishment shall be obtained and be approved by the President, 'all of said Chippewa Indians in the state of Minnesota, except those on the Red Lake reservation, shall * * * be removed to and take up their residence on the White Earth reservation,' and thereupon allotments in severalty shall be made to the Red Lake Indians from the unceded part of the Red Lake reservation and to 'all the other of said Indians' from the lands in the unceded part of the White Earth reservation, such allotments to be made 'in conformity with' the general allotment act of February 8, 1887 (24 Stat. 388, c. 119); that any of said Indians 'residing on' any of said...