United States v. Bowling

• Decision Date: 02 December 1919
• Docket Number: 5288.
• Parties: UNITED STATES v. BOWLING et al.
• Court: U.S. Court of Appeals — Eighth Circuit

261 F. 657

UNITED STATES v. BOWLING et al.

No. 5288.

United States Court of Appeals, Eighth Circuit.

December 2, 1919

Cliff V. Peery, Asst. U.S. Atty., of Muskogee, Okl. (W. P McGinnis, U.S. Atty., of Muskogee, Okl., and J. C. Wilhoit Sp. Asst. U.S. Atty., of Okemah, Okl., on the brief), for the United States.

Halbert H. McCluer and Roland Hughes, both of Kansas City, Mo. (Vern E. Thompson, of Miami, Okl., on the brief), for defendants in error.

Before SANBORN, Circuit Judge, and MUNGER and YOUMANS, District judges.

MUNGER District Judge.

From a judgment in favor of the defendants in a suit in ejectment the plaintiff has prosecuted this error proceeding. The parties waived a jury and tried the case to the court. There was a general finding in favor of the defendants and a judgment of dismissal. The land in controversy was patented on April 8, 1890, to Pe-te-lon-o-zah, also known as William Wea, a member of the Confederated Wea, Peoria, Kaskaskia, and Piankeshaw Tribes of Indians. The patent contained a restrictive provision that the lands should not be alienated, nor subject to levy, sale taxation, or forfeiture, for 25 years. The effect of this provision in restraining alienation of this tract of land was stated by the Supreme Court in Bowling v. United States, 233 U.S. 528, 34 Sup.Ct. 659, 58 L.Ed. 1080. The act of Congress of February 8, 1887 (24 Stat. 388, c. 119), provided generally for allotments of land in severalty to the Indians, but contained an express exception that it did not apply to the lands of this confederated tribe. On March 2, 1889, an act of Congress (25 Stat. 1013, c. 422) was passed extending the provisions of the act of 1887 to this tribe, but subject to some exceptions. The act of 1887 had provided for the issuance of patents to the allottees, and that the patents should be of the legal effect and should declare that the United States would hold the allotted land in trust for the allottee for 25 years, and that at the expiration of that time the United States would convey the land by patent, to the Indian or his heirs, in fee. The act of 1889 authorized allotments to members of this confederated tribe, and also provided as follows:

'The land so allotted shall not be subject to alienation for twenty-five years from the date of the issuance of patent therefor, and said lands so allotted and patented shall be exempt from levy, sale, taxation, or forfeiture for a like period of years. As soon as all the allotments or selections shall have been made as herein provided, the Secretary of the Interior shall cause a patent to issue to each and every person so entitled, for his or her allotment, and such patent shall recite in the body thereof that the land therein described and conveyed shall not be alienated for twenty-five years from the date of said patent, and shall also recite that such land so allotted and patented is not subject to levy, sale, taxation, or forfeiture for a like period of years, and that any contract or agreement to sell or convey such land or allotments so patented entered into before the expiration of said term of years shall be absolutely null and void.'

The act also contained a provision that any act or part of an act of Congress theretofore passed that conflicted with the later act, either as to land or money, was thereby repealed.

William Wea, after receiving his patent under the act of 1889, died on January 23, 1894. The petition in this case alleged that the action was brought on behalf of the United States and of the heirs of William Wea, and that certain persons, named in Exhibit B attached to the petition, were duly declared to be the heirs at law of William Wea by the Secretary of the Interior on October 19, 1914, pursuant to the acts of Congress with reference thereto. This statement of the finding of heirship by the Secretary of the Interior was stricken from the petition, on defendants' objection, and an exception was saved. At the trial the plaintiff offered in evidence a copy of a departmental record in the office of the Secretary of the Interior, showing that the Secretary had found the heirs of William Wea to be the same persons as those who had been named in Exhibit B attached to plaintiff's petition. On objection, this was excluded as immaterial, and plaintiff excepted to the ruling.

By assignments of error based upon these rulings the question is presented whether the Secretary of the Interior had authority to make a finding of the rightful heirs of William Wea, controlling the court in the trial of this case. The authority of the Secretary is asserted because of the language of the act of Congress of June 25, 1910 (36 Stat. 855, c. 431 (Comp. St. Sec. 4226)), as follows:

'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.'

This statute did not authorize the finding of the Secretary of the Interior in this case, because, before its enactment, a fee-simple patent had been issued to William Wea (Libby v. Clark, 118 U.S. 250, 6 Sup.Ct. 1045, 30 L.Ed. 133) although it was subject to the restrictions on alienation therein contained. The statute, by its terms as quoted and as appears from its context, applied only to cases where allotments were made and the titles were withheld in trust, to...