United States v. Chase
| Decision Date | 05 November 1917 |
| Docket Number | No. 146,146 |
| Citation | 38 S.Ct. 24,62 L.Ed. 168,245 U.S. 89 |
| Parties | UNITED STATES v. CHASE |
| Court | U.S. Supreme Court |
[Syllabus from pages 89-91 intentionally omitted] Mr. Solicitor General Davis, of Washington, D. C., for petitioner.
Mr. Hiram Chase, of Pender, Neb., and Mr. Thomas L. Sloan, of Washington, D. C., for respondent.
This is an action to recover for the wrongful use and occupancy of 40 acres of land in Nebraska to which two Omaha Indians assert conflicting claims. The land is within the Omaha Indian reservation, was assigned in 1871 under the treaty of March 6, 1865, 14 Stat. 667, to Clarissa Chase, a member of the Omaha tribe, and was allotted in 1899 under the Act of August 7, 1882, c. 434, 22 Stat. 341, to Reuben Setter, another member of the tribe. The defendant, who has been using and occupying the land for some time, claims as the sole heir of Clarissa Chase, and the other claimant—for whom the United States sues as trustee and guardian—claims as the sole heir of Reuben Setter. In the District Court judgment went against the defendant, but he prevailed in the Cir- cuit Court of Appeals. 222 Fed. 593, 138 C. C. A. 117. Whether the assignment to Clarissa Chase under the treaty passed the full title in fee or only the Indian right of occupancy, and whether all right under the assignment was extinguished prior to the allotment to Reuben Setter under the act of 1882, are the controlling questions.
The reservation was established and maintained under early treaties as the tribal home. The Indian right of possession was in the tribe and the fee in the United States. The possessory right was enjoyed by all the members in common, none having a several right in any part of the reservation. While this was so the treaty of 1865 was negotiated. By it the tribe ceded a portion of the reservation to the United States and the latter, in consideration of the cession, engaged to make certain payments to the Indians and to take certain measures, not material here, for their benefit. The treaty then proceeded:
'Article IV. The Omaha Indians being desirous of promoting settled habits of industry and enterprise amongst themselves by abolishing the tenure in common by which they now hold their lands, and by assigning limited quantities thereof in severalty to the members of the tribe, including their half or mixed blood relatives now residing with them, to be cultivated and improved for their own individual use and benefit, it is hereby agreed and stipulated that the remaining maining portion of their present reservation shall be set apart for said purposes; and that out of the same there shall be assigned to each head of a family not exceeding one hundred and sixty acres, and to each male person, eighteen years of age and upwards, without family, not exceeding forty acres of land—to include in every case, as far as practicable, a reasonable proportion of timber; six hundred and forty acres of said lands, embracing, and surrounding the present agency improvements, shall also be set apart and appropriated to the occupancy and use of the agency for said Indians.
The lands to be so assigned, including those for the use of the agency, shall be in as regular and compact a body as possible, and so as to admit of a distinct and well-defined exterior boundary. The whole of the lands, assigned or unassigned, in severalty, shall constitute and be known as the Omaha reservation, within and over which all laws passed or which may be passed by Congress regulating trade and intercourse with the Indian tribes shall have full force and effect, and no white person, except such as shall be in the employ of the United States, shall be allowed to reside or go upon any portion of said reservation without the written permission of the superintendent of Indian affairs or the agent for the tribe. Said division and assignment of lands to the Omahas in severalty shall be made under the direction of the Secretary of the Interior, and when approved by him, shall be final and conclusive. Certificates shall be issued by the Commissioner of Indian Affairs for the tracts so assigned, specifying the names of the individuals to whom they have been assigned respectively, and that they are for the exclusive use and benefit of themselves, their heirs, and descendants; and said tracts shall not be alienated in fee, leased, or otherwise disposed of except to the United States or to other members of the tribe, under such rules and regulations as may be prescribed by the Secretary of the Interior, and they shall be exempt from taxation, levy, sale, or forfeiture, until otherwise provided for by Congress.'
Some of the Omahas sought and received assignments under this article, while others, although having the requisite status, neither sought nor received anything under it. Clarissa Chase was among those who obtained an assignment of 160 acres as the head of a family, and in 1871 a certificate evidencing dencing her assignment was issued to her by the Commissioner of Indian Affairs. The 160 acres included the 40 acres now in question.
Without any doubt the fourth article contains provisions which, in other situations, would suggest a purpose to pass the full title in fee. This is true of the provisions that the assignments, when approved by the Secretary of the Interior, 'shall be final and conclusive,' that the certificates to be issued by the Commissioner of Indian Affairs shall specify that the tracts assigned are for the exclusive use and benefit of the assignees, 'their heirs and descendants,' and that the tracts shall not be 'alienated in fee, leased, or otherwise disposed of except to the United States or to other members of the tribe.' But as applied to the situation then in hand these provisions are consistent with a purpose to apportion the Indian possessory right, leaving the fee in the United States as before. The assignments, when approved, could well operate as a final and conclusive apportionment of that right without affecting the fee; and the right of each assignee to occupy and use the tract assigned to him, to the exclusion of other members, could well pass to his heirs and descendants, upon his death, without his being invested with the fee. If not invested with it, he, of course, could not alienate it, and a cautious provision intended to prevent him from attempting to do so hardly would enlarge his right. True, the provision vision says, 'except to the United States or to other members of the tribe,' but, as the restriction is also directed against leasing or other disposal, it is not improbable that the real purpose of the excepting clause is to qualify this part of the restriction. In any event, the implication attributed to the provision is too uncertain to afford a substantial basis for thinking the assignee was to take the fee.
Other provisions and considerations suggest that an apportionment of the tribal possessory right is all that was intended. The article directly provides for a change in tenture—an 'assignment or division' in severalty of communal property. Nothing is said about passing the fee held by the United States, and there is no provision for patents. The assignees are neither relieved from federal guardianship nor subjected to state laws. And there is no dissolution of the tribal organization, nor any abridgment of the accustomed customed power of the tribe, as such, to speak and act for its members. But there is express provision that all the lands, assigned and unassigned, shall remain an Indian reservation over which the Indian trade and intercourse laws of Congress shall be in force, and upon which no white person, not in the employ of the United States, shall be allowed to reside or go without written permission from the Indian agent or a superior officer. All this persuasively points to the absence of any purpose to do more than to individualize the existing tribal right of occupancy.
A like question was presented and considered in Veale v. Maynes, 23 Kan. 1, a case arising out of the treaties of 1861 (12 Stat. 1191) and 1867 (15 Stat. 531) with the Pottawatomie Indians. The earlier treaty provided in language similar to that now under consideration for the assignment of portions of the tribal reservation to individual members in severalty and for the issue by the Commissioner of Indian Affairs of certificates for the assigned tracts, 'specifying the names of the individuals to whom they have been assigned respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of such assignees and their heirs.' Assignments were made and certificates issued under that treaty and thereafter the treaty of 1867 was negotiated. Following its provisions a tract assigned under the earlier treaty to one member...
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