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(Syllabus by the court.)
Appeal from the Circuit Court of the United States for the District of Minnesota.
Harvey S. Clapp (C. B. Miller, on the brief), for appellants.
Van Devanter, circuit judge. By their suit commenced and prosecuted under act February 6, 1901, c. 217, 31 Stat., 760, the appellants asserted that they were entitled to have allotted to them in severalty, under act January 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-fledged 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 Fort 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 Fort 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 tủis 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, an 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 ceded reservation may, in his discretion, take his allotment on such reservation; and that all money accruing from the disposal of the ceded lands, after deducting expenses, shall be placed in the Treasury of the United States to the credit of all the Chippewa Indians in Minnesota ” and be used for their benefit or paid out to them in the manner and at the times stated in the act. The cession and relinquishment so provided for were obtained in the manner prescribed and were approved by the President March 4, 1890., (House Ex. Doc. No. 247, 1st sess., 51st Cong.)
Originally, the test of the right of individual Indians to share in tribal lands, like the Chippewa Reservations in Minnesota, was existing membership in the tribe, and this was true of all tribal property. The question therefore arises : Is there any provision of law which broadens this original rule in a manner which is helpful to the appellants or any of them? If not, their effort to obtain allotments from tribal lands must fail, because it is a necessary conclusion from the facts before recited that Mrs. Oakes and Mrs. Jones, although once members of the Mississippi Chippewa Tribe long since ceased to be such, and that Mrs. Andrews and Mrs. Bent, although possessing some Mississippi Chippewa blood, never were members of the tribe; nd, if there be such a provision of law, it must be found elsewhere than in the act of 1889, for that act does not in itself alter the original rule in a manner which is helpful to any of the appellants, but contains provisions which, in the absence of some provision of law to the contrary, probably would require that the allotments mentioned therein be confined to tribal Indians.
For many years the treaties and legislation relating to the Indians proceeded largely upon the theory that the welfare of both the Indians and the whites required that the former be kept in tribal communities separated from the latter, and, while that policy prevailed, effect was given to the original rule respecting the right to share in tribal property ; but Congress later adopted the policy of encouraging individual Indians to abandon their tribal relations and to adopt the customs, habits, án: manners of civilized life, and, as an incident to this change in policy, statutes were enacted declaring that the right to share in tribal property should not be impaired or affected by such a severance of tribal relations, whether occurring theretofore or thereafter. One of the earlier acts upon the subject was that of March 3, 1865 (13 Stat., 562, c. 172, sec. 4), which gave to certain chiefs, warriors, and heads of families of the Stockbridge Munsee Tribe the right to become citizens of the United States, upon their dissolving all tribal relations, adopting the habits of civilized life, becoming self-supporting, and learning to real and speak the English language, and then declared that they should not be deprived thereby of the annuities to which they were or might be entitled. That act and others of its kind marked the beginning of the change and were followed by the act of March 3, 1875 (18 Stat., 42 c. 131, sec. 15 [U. S. Comp. St. 1901, p. 1419]), which extends the benefits of the homestead law to “any Indian born in the United States, who is the head of a family, or who has arrived at the age of 21 years, and who has abandoned, or may hereafter tbandon his tribal relations,” and then declares that:
Any such Indian shall be entitled to his distributive share of all annuities, tribal funds, lands, and other property, the same as though he had maintained his tribal relations."
And next came act February 8, 1887, c. 119, 24 Stat., 388, which, in its sixth section, provides :
“ And every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and
apart from any tribe of Indians therein, and has adopte:1 the habits of civilized life, is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limts of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.
Another cognaté provision is found in act August 9, 1888, c. 818, 25 Stat., 382, which declares that a tribal Indian woman hereafter ” marrying a citizen of the United States shall become thereby a citizen of the United States, with all the rights, privileges, and immunities of such a citizen, without impairing or in any way affecting her right to any tribal property or any interest therein.
These acts disclose a settled and persistent purpose on the part of Congress so to broaden the original rule respecting the right to share in tribal property 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 that regard, as though they had maintained their tribal relations. Not only this, but these acts, omitting that of 1865, are general and continuing in their nature, and therefore are as applicable to the Chippewas in Minnesota as to other Indians, unless the act of 1889 discloses, either expressly or by necessary implication, that Congress intended otherwise. In our opinion that act does not thus disclose such an intention. True, it speaks of the Indians concerned as “bands or tribes," provides that all, save those on the Red Lake Reservation, shall
be removed” to the White Earth Reservation, and is entitled “An act for the relief and civilization of the Chippewa Indians in the State of Minnesota ”; but the inference sought to be drawn therefrom, namely, that only tribal and uncivilized Indians are to have the benefits of the act, is materially weakened when we turn to other provisions, such as those directing that enough lands be withheld from the contemplated cession “ to make and fill the allotments required by this and existing acts,” and that the allotments be made in conformity with” the act of February 8, 1887, which expressly recognizes the right of individual Indians, who have abandoned their tribal relations and have adopted the customs, habits, and manners of civilized life, to share in tribal property. An inference of such uncertain strength is not enough to overcome the general aversion to repeals by implication, especially where a settled policy in legislation is involved and no reason for disturbing it is apparent. (United States v. Gear, 3 How., 120, 130, 11 L. Ed., 523 ; Frost v. Wenie, 157 U. S., 46, 58, 15 Sup. Ct., 532, 39 L. Ed., 614; United States v. Healey, 160 U. S., 136, 146, 16 Sup. Ct., 247, 40 L. Ed., 369; United States v. Greathouse, 166 U. S., 601, 605, 17 Sup. Ct., 701, 41 L. Ed., 1130; McChoral v. Louisville, etc., Co., 183 U. S., 483, 500, 22 Sup. Ct., 165, 46 L. Ed., 289.; Great Northern Ry. Co. v. United States, 84 C. Č. A., 93, 109, 155, Fed., 945, 961.)
We conclude that Mrs. Oakes and Mrs. Jones, who formerly were members of the tribe, are within the saving provisions of the acts of March 3, 1875, and February 8, 1887, and so are entitled to share in the allotment and distribution of the tribal property, the same as though they had maintained their tribal relations, but that Mrs. Andrews and Mrs. Bent. who never were members of the tribe, can not derive any benefit from any of the acts mentioned; and we reach this conclusion with greater satisfaction, because it is in accord with rulings of the Secretary of the Interior in cases which are not distinguishable from this. (William Banks, 26 Land Dec., Dep. Int., 71; Minnie H. Sparks, 36 Land Dec., Dep. Int., 234.)
In support of the claims of Mrs. Andrews and Mrs. Bent, our attention is invited to the still later act of June 7, 1897 (30 Stat., 90, c. 3, sec. 1), which reads as follows:
* All children born of a marriage heretofore soleninized be veen a white man and an Indian woman, by blood and not by adoption, where said Indian woman is at this time, or was at the time of her death, recognized by the tribe, shall have the same rights and privileges to the property of the tribe to which the mother belongs, or belonged at the time of her death, by blood, as any other member of the tribe, and no prior act of Congress shall be construed as to debar such child of such right.”
But of this act it is enough to say that its terms are such that it does not embrace the children of a mother, such as Mrs. Jones, who was living at the time of its passage and was not then recognized by the tribe as one of its members.
As a defense to the claims of Mrs. Oakes and Mrs. Jones, it is alleged that all of the land selected by the former and a part of that selected by the latter has been duly allotted” to other Indians; but, as this defense was not passed upon by the circuit court, and as the record indicates that the evidence bearing thereon is not as full and clear as it might be, we deem it the better course to leave the matter open to further consideration in the circuit court. And it is suggested, without indicating any conclusion thereon, that a uestion has arisen as to whether a decree displacing or annulling the existing allotments to other Indians lawfully can be rendered unless the allotees be made parties and be given an opportunity to defend. (United States v. Fairbanks (decided by this court June 3, 1909), 171 Fed., 337; Minnesota v. Hitchcock, 185 U. S., 373, 387, 22 Sup. Ct., 650, 46 L. Ed., 954.)
In the answer it is also alleged that part of the land selected by Mrs. Jones has been specially set apart for allotment to Indians who may be removed from the Mile Lac Reservation; but no proof of any such setting apart or of any authority therefor is contained in the record, and no mention thereof is made in the Government's brief, so this defense must be regarded as abandoned.
Following what has been said, the decree of the Circuit Court is affirmed in so far as it dismisses the bill as to Mrs. Andrews and Mrs. Bent, and in other respects it is reversed, with directions for further proceedings not inconsistent with the views expressed herein.
Mr. STEENERSON. May I ask a question there as to the effect of this decision? The CHAIRMAN, Ask your question, so that it will go in the record.
Mr. STEENERSON. What was the effect of this decision? Was the effect simply to increase the amount to be paid to certain members of the Chippewa Indians and correspondingly less than the amount to be paid to the others?
Mr. MERITT. It in effect decided that certain Indian children, who were born apart from the tribe and were living off the reservation, were entitled to participate in the distribution of the Chippewa Indian funds. By that decision it lessened the amount of money that would be paid to the other members on the roll.
Mr. STEENERSON. So it would really be a matter of justice that those who lost that money, that those whose portion was diminished, should not pay for the services of a lawyer, which resulted in diminishing their own funds? It was really a service in the interest of those children who gained by it?
Mr. MERITT. That is a reasonable conclusion.
Now, as to the compensation that has been received by Mr. Ballinger for this work, I have a statement here showing that he has received as attorney fees from the appropriation that has been made for the council, $9,330.23, and for traveling and other expenses, $821.20, making a total of $10,151.43. This covers a period from July 24, 1917, down to December 4, 1920.
The committee may be interested to know why this money was paid to Mr. Ballinger, in the face of the fact that there was no attorney's contract made with him by the department.
Mr. MCCORMICK. May I interpose a question here, Mr. Chairman?
Mr. MERITT. The department transmitted these bills to the auditor with adverse recommendations, but in view of the wording of the law passed by Congress, making the appropriation for this tribal council, amounting to $10,000 a year, we were powerless to prevent this money being paid to Mr. Ballinger by the auditor. The item for the council, as passed by Congress and contained in the Indian appropriations act, a sample of which is found in the appropriation act of February 14, 1920, reads as follows:
“That the sum of $10,000, or so much thereof as may be necessary, of the tribal funds of the Chippewa Indians of the State of Minnesota is hereby appropriated to pay the expenses of the general council said be, to be held at Bemidji, Minn., beginning the second Tuesday in July, 1920, pursuant to the constitution of the general council of said Chippewa Indians of Minnesota, organized in May, 1913, and to pay the expenses of said general council in looking after the affairs of said tribe, including the actual and necessary expenses of its legislative committee in visiting Washington during the second session of the Sixty-sixth Congress; said sum to be immediately available, and said expenses to be approved by the president and secretary of the general council and certified to the Secretary of the Interior, and as so approved and certified to be paid.”
We were left with no discretion whatever under that language, and the council had it in its power to pay as much as it desired out of this appropriation for attorney fees to Mr. Ballinger.
The CHAIRMAN. Now, Mr. McCormick?
Mr. McCORMICK. I would like to ask Mr. Meritt, if the rule requiring' approval by the Secretary of the Interior of the contract between an attorney and tribai council follows positive law of Congress on the subject, or is it a regulation of the department?
Mr. MERITT. It follows a positive law on the subject, and I was going to place in the record the law covering attorney contracts, and for the information of the committee, I will read one section and include the other sections in my statement.
The law is found in sections 2103, 2104, 2105, and 2106 of the Revised Statutes, and reads as follows:
SEC. 2103. No agreement shall be made by any person with any tribe of Indians, or individual Indians not citizens of the United States, for the payment or delivery of any money or other thing of value, in present or in prospective, or for the granting or procuring any privilege to him, or any other persons in consideration of services for said Indians relative to their lands, or to any claims growing out of, or in reference to, annuities, installments, or other moneys, claims, demands, or thing, under laws or treaties with the United States, or official acts of any officers thereof, or in any way connected with or due from the United States, unless such contract or agreement be executed and approved as follows:
“First. Such agreement shall be in writing and a duplicate of it delivered to each party.
“ Second. It shall be executed before a judge of a court of record and bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs indorsed upon it.
“ Third. It shall contain the names of all parties in interest, their residence and occupation; and if made with a tribe, by their tribal authorities, the scope of authority and the reason for exercising that authority, shall be given specifically.
“Fourth. It shall state the time when and place where made, the particular purpose for which made, the special thing or things to be done under it, and, if for the collection of money, the basis of the claim, the source from which it is to be collected, the disposition to be made of it when collected, the amount or rate per cent of the fee in all cases; and if any contingent matter or condition constitutes a part of the contract or agreement it shall be specifically set forth.
“Fifth. It shall have a fixed limited time to run, which shall be distinctly stated.
“ Sixth. The judge before whom such contract or agreement is executed shall certify officially the time when and place where such contract or agreement was executed and that it was in his presence and who are the interested parties thereto, as stated to him at the time; the parties present making the same; the source and extent of authority claimed at the time by the contracting parties to make the contract or agreement, and whether made in person or by agent or attorney of either party or parties.
"All contracts or agreements made in violation of this section shall be null and void, and all money or other thing of value paid to any person by any Indian or tribe, or anyone else, for or on his or their behalf, on account of such services, in excess of the amount approved by the commissioner and Secretary for such services, may be recovered by suit in the name of the United States in any court of the United States regardless of the amount in controversy; and one half thereof shall be paid to the person suing for the same and the other half shall be aid into the Treasury for the use of the Indian or tribe by or for whom it was so paid.
“ SEC. 2104. No money shall be paid to any agent or attorney by an officer of the United States under any such contract or agreement, other than the fees due him for services rendered thereunder; but the moneys due the tribe, Indian, or Indians, as the case may be, shall be paid by the United States, through its own officers or agents, to the party or parties entitled thereto; and no money or thing shall be paid to any person for services under such contract or agreement until such person shall have first filed with the Commissioner of Indian Affairs a sworn statement showing each particular act of service under the contract, giving date and fact in detail, and the Secretary of the Interior and Commissioner of Indian Affairs shall determine therefrom