Woodbury v. United States

• Decision Date: 03 May 1909
• Docket Number: 2,798.
• Citation: 170 F. 302
• Parties: WOODBURY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

170 F. 302

WOODBURY v. UNITED STATES.

No. 2,798.

United States Court of Appeals, Eighth Circuit.

May 3, 1909

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

Charles C. Houpt, for the United States.

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

AMIDON District Judge.

The complainant here and below claims that she has been unlawfully denied an allotment of land on the White Earth Indian reservation, and brings this suit under the act of February 6, 1901, c. 217, 31 Stat. 760, to have her right established and enforced. The facts out of which the controversy arises are as follows:

By treaty with the Chippewa Indians, bearing date March 19, 1867 (16 Stat. 719), the White Earth Indian reservation was set apart for their exclusive occupancy, and provision was also made that, whenever any member of the tribe should have 10 acres of land under cultivation, he should be entitled to a certificate granting to him the 40 acres of which the tract under cultivation was a part; and that, for each additional 10 acres so cultivated, an additional tract of 40 acres should be granted until he should have received in all 160 acres. January 14, 1889, a statute was passed commonly known as the 'Nelson Act' (25 Stat. 642, c. 24), providing for the allotment of lands of the White Earth reservation to the Chippewa Indians in severalty. Every head of a family was to receive 160 acres. Others were to receive various quantities, either 40 or 80 acres. Under the treaty and this statute, title to numerous tracts was acquired. April 28 1904, an act was passed commonly known as the 'Steenerson Act' (33 Stat. 539, c. 1785 (U.S. Comp. St. Supp. 1907 p. 579)), which authorized the President to allot 160 acres of land to each Chippewa Indian residing on the White Earth reservation. It directed that, where any allotment of less than 160 acres had theretofore been made, the allottee should be allowed to take an additional allotment, which, together with the land already allotted, should not exceed 160 acres.

It was further provided 'that if there is not sufficient land in said White Earth diminished reservation subject to allotment, each Indian entitled to allotment under the provisions of this act, shall receive a pro rata allotment. ' The President was authorized to make needful rules and regulations for the just execution of the act.

It is manifest that, for the making of allotments under the Steenerson act, considerable preliminary work was required. It was necessary for the agent first to ascertain the number of Indians entitled to its benefits, and then to compute the amount of unappropriated lands remaining on the reservation, and learn whether there was sufficient to make full allotments, or whether the land would need to be divided pro rata. Under date of June 7, 1904, the Secretary of the Interior gave direction to the Indian agent in charge of the White Earth reservation to proceed with the work of making allotments under the statute. In his letter of instructions he specified several bands of Indians residing, some of them on the reservation, and some of them in other parts of the state, who would be entitled to allotments, and directed that no member should receive an allotment unless he removed to, and took up his actual residence upon, the reservation. Under the previous statutes, rolls of the members of the tribe had already been made, and it was supposed that from these rolls it would be possible, in the main, for the agent to ascertain the Indians who were entitled to share in the benefits of the act. The direction contained also the following specific rule for the guidance of the agent:

'But in making these additional allotments, the usual rule and practice of this office must be observed, namely, the Indian must be in being at the time the allotment is made or assigned to him; in other words, no allotment can be made to a dead Indian.'

The instructions further stated:

'It will be necessary for you to first determine so far as you can, by computation, whether there will be land enough on the diminished reservation to give each Indian entitled thereto an allotment of 160 acres.'

Directions were then given for the making up of separate rolls for the additional allotments, and the letter closed with the following language:

'Should you need additional instructions upon any feature of the work, you should make request for the same.'

The agent promptly entered upon the preliminary work necessary for carrying out the instructions. Within a few days, however, June 27, 1904, he received a letter from the Indian Department stating that the Otter Tail band of the Chippewa Indians had made a claim of right to allotments under the Steenerson act, and the agent was directed to submit the question of their right to a council of the Chippewa Indians. This he did, and reported the result, when the whole subject was referred to the Attorney General for his advice. In November or December following, this matter was settled by the department, and the agent then renewed the work of preparing the rolls and computing the lands for the execution of the act.

During all this time it is manifest that no application could be entertained from any member of the tribe for his selection of any specific tract, for two reasons: (1) Such a practice would have given the applicant an unjust advantage over the other members of the tribe, and would have been contrary to the established custom of the department in such cases. (2) Until the rights of the Otter Tail Band were determined, neither the number of Indians who were entitled to participate in the allotment, nor the amount of the individual allotments, could be known.

Turning now to the facts upon which the complainant bases her...