United States v. Ickes, 7666.

• Decision Date: 30 December 1940
• Docket Number: No. 7666.,7666.
• Citation: 73 App. DC 141,117 F.2d 769
• Parties: UNITED STATES ex rel. JUMP et al. v. ICKES, Secretary of Interior of United States.
• Court: U.S. Court of Appeals — District of Columbia Circuit

73 App. DC 141, 117 F.2d 769 (1940)

UNITED STATES ex rel. JUMP et al. v. ICKES, Secretary of Interior of United States.

No. 7666.

United States Court of Appeals for the District of Columbia.

Argued November 15, 1940.

Decided December 30, 1940.

Petition for Rehearing Denied February 15, 1941.

Seth Richardson, of Washington, D. C., and Neal E. McNeill, of Tulsa, Okl., for appellants.

Nathan R. Margold, Solicitor, Department of Interior, Frederic L. Kirgis, First

Asst. Solicitor, and H. Byron Mock, Asst. Solicitor, Department of Interior, all of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and VINSON and EDGERTON, Associate Justices.

GRONER, C. J.

Appellants, Josephine Jump and James Strikeaxe, are the children of Bennie Strikeaxe, a deceased Osage Indian. They instituted this mandamus proceeding against the Secretary of the Interior to establish, as sole heirs of their father, a claim to an allotment of the tribal lands and funds, as provided in the Osage Allotment Act of June 28, 1906,¹ and which they assert was unlawfully withheld. Prior to the passage of the Act, title to the lands of the Osages was held by the United States in trust for the tribe as a whole. No right or incident of tribal membership was inheritable or alienable, for the membership of each individual and the right to share in the tribal community property arose by birth and terminated by death.² The purpose of the 1906 Act was to change the rule and to allot the surface absolutely to the individual members and to make like distributions of certain accumulated funds. Title to the minerals was to be retained by the United States in trust for the tribe. Congress provided in the first section of the Act "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" (together with some additions or eliminations not material here) should be the roll of the tribe and constitute the legal membership thereof, and that the roll so constituted should determine the persons entitled to share in the distribution. The petition alleges that on January 1, 1906, the name of Bennie Strikeaxe appeared upon this roll, and on this allegation appellants ask that a redistribution be ordered. The petition states that in 1908 the Secretary, in order to carry out the provisions of the 1906 Act directed the Osage Indian Agent to prepare the tribal roll as it existed in his office on the 1st day of January, 1906; that the Agent incorrectly transcribed the names and without authority of law omitted the name of Bennie Strikeaxe; that the Secretary adopted the roll as prepared by the Agent so that Bennie Strikeaxe was denied the right to a distributive share of the tribal property. Appellants prayed for a rule directing the Secretary to show cause why mandamus should not issue requiring him to restore the name of Bennie Strikeaxe to the final roll and, if necessary to that end, to recompile the roll accordingly and then to pay to appellants as the lawful heirs of their deceased father an amount equal to a per capita share of the annuity and other payments accruing to them under the Act, and for general relief.

Enough has been said to show that the Act of June 28, 1906, fixed the previous January 1st as the time when each member of the tribe obtained the individual, alienable, descendible interest in the property of the tribe to which he was entitled under the statutory scheme of distribution. The members of the tribe whose names appeared on the December, 1905, roll — which was the latest record in existence on January 1st — but who had died between the making of that roll and January 1st, were for reasons which we shall set out more fully hereafter not intended to be included as allottees, and the agency roll, if kept current, would have shown only the names of those members living on January 1st. In this view, the question we have to decide is whether the fact that Bennie Strikeaxe's name was on the roll is of itself, without more, sufficient to warrant the granting of appellants' prayer.

The Secretary appeared and moved to dismiss the petition on the grounds (1) that the Act of June 28, 1906, made the roll approved by the Secretary final and deprived the court of jurisdiction to change it; (2) that the petition is bad because it fails to allege that Bennie Strikeaxe was in fact alive on January 1, 1906, or that any records show that he was alive on that date; (3) that the petition is bad because of failure to join all members of the Osage tribe as parties defendant; and (4) that the petition is without equity in that the tribal roll which it seeks to open and reform has been held final ever since 1908 and has been the basis on which the tribal lands have been allotted and many millions of tribal funds have been distributed over a period of 29 years. The trial court dismissed.

To sustain the dismissal, the Secretary relies principally upon our holding in Ickes v. Pattison,³ a case in many respects like this, in which we said that the concluding paragraph of Section 1 of the Act of 1906⁴ deprived us of jurisdiction to grant any relief. But upon further consideration, we think we may have overstated the law in this respect. Congress undoubtedly did repeal, as to the Osage Indians, the provision of the Act of 1894⁵ which conferred jurisdiction upon Federal courts to hear and determine suits arising within their respective jurisdictions involving the right of any Indian to an allotment of land under any law or treaty of the United States. But the jurisdiction thus created and later repealed was a special jurisdiction conferred upon Federal courts over controversies arising within their territorial jurisdictions. Its passage obviously was intended to furnish a local forum for the settlement of disputes involving Indian allotments. Its repeal in the 1906 Act left the law as it had previously been. In the instant case appellants are not invoking the special jurisdiction created by the 1894 Act, but are asking the remedial writ of mandamus on the ground that the Secretary's action was arbitrary, and assert that jurisdiction to grant relief existed before and after the passage of the 1894 appeals Act and without regard to its terms. Garfield v. U. S. ex rel. Goldsby, 211 U.S. 249, 261, 29 S.Ct. 62, 53 L.Ed. 168. That case sustains the principle that, in circumstances similar to those alleged here, mandamus may issue wherever it is shown that the Secretary has acted wholly without authority of law, and in this case the complaint alleges, and the motion to dismiss admits, that Congress established the tribal roll as it existed on January 1, 1906, and declared the persons whose names appeared thereon to be the persons entitled to share in the distribution of the lands, and likewise alleges that, notwithstanding Bennie Strikeaxe's name was there, the Secretary two years later, in compiling the final roll required by the Act, arbitrarily removed his name therefrom, with the result of depriving his heirs of property he was entitled to receive. Considered in this view, relief in the nature of mandamus is proper. See Federal Rule of Civil Procedure 81(b), 28 U.S.C.A. following section 723c.

But such relief is not granted as of right, and may be refused for reasons comparable to those which would lead a court of equity, in the exercise of a sound discretion, to withhold its protection of an undoubted legal right. United States v. Dern, 289 U.S. 352, 359, 53...