Eells v. Ross

64 F. 417, 12 C.C.A. 205, 1894 U.S. App. LEXIS 2504

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 1894
• Docket: No. 143
• Status: Published

Opinion

McKEDfN’A, Circuit Judge

(after stating the facts as above). We do not consider it necessary to consider or decide all the propositions argued. If the land was an Indian reservation, the agents had a light to remove all persons found there contrary to law. Rev. St. g 2117. See, also, Rev. St. §§ 2118, 2149. It is not disputed that the lands are a part of those set apart as the Puyallup reservation, and that the reservation has not been directly revoked; but if is contended that the allotment of the lands in severally, and afterwards making the Indians citizens, necessarily had the effect to revoke the reservation. There is plausibility in the argument, and it needs to be carefully considered. It is clear that the allotment alone could not have this effect (The Kansas Indians, 5 Wall. 737), and citizenship can only have it if citizenship is inconsistent with the existence of a reservation. It is not necessarily so. Some of the restraints of a reservation may he inconsistent with the rights of citizens. The advantages of a reservation are not; and if, to secure the latter to the Indians, others not Indians are excluded, it is not clear what right they have to complain. The act of 1887, which confers citizenship, clearly does not emancipate the Indians from all control, or abolish the reservations. Section 3 provides for leasing lands under certain contingencies, under the regulations of the secretary of the interior, and the proviso of the section contemplates agents in charge of the reservations. Besides, the practice of the department has been and is to maintain them,-and this practice is respectable evidence of a correct interpretation of the statute by officers who may have suggested the policy and written the provisions of the statute. Railroad Co. v. Whitney, 132 U. S. 357, 366, 10 Sup. Ct. 112; Sturr v. Beck, 133 U. S. 548, 30 Sup. Ct. 350. That the abolition of reservations and of the guardianship of the Indians is the ultimate hope of the policy, there can be no doubt; but it will not be soonest realized by attributing fanciful qualities to the Indians, or by supposing that their natures can be changed by legislative enactment. But the appellees claim contracts with the Indians, and a right to occupy the land, and the circuit court held that the government, by making the Indian proprietors citizens, lost the power “to coerce such Indians into making or annulling contracts, or of molesting persons upon their premises by their license, when not interfering with the operations of the government, or violating any national law.” And the court further held that by the issuance of the patent “the government lost entirely the right to control the use of the land.” The patent has clear words of prohibition against alienation, and, even if it had omitted them, the treaties and law imposed them. Taylor v. Brown (Dak.) 40 N. W. 527.

The power of the government to impose the restraints is not questioned, and its purpose is certainly not ambiguous. The treaties with the Indians; the allotment of the land in severalty, — all had their purpose of fixing them in permanent homes. By article 6 of the treaty, the privilege of allotment can only be availed of by those who will “locate on the same as a permanent home,” and the purpose is so careful, insistent, and dominant that the president is given power to—

“Prescribe such rules and regulations as will insure to the family in the case of the death of the head thereof the possession and enjoyment of such permanent home and he may issue a patent only to such person or family who has made a location for a permanent home and if issued may cancel it if such person or family ‘rove from place to place,’ and the tract may be declared abandoned and thereafter assigned to some other person or family.”

Prom its relations to the title, and from the terms of the treaty, we think the government had the power to make such conditions, and that they were not destroyed by making the Indians citizens. Such effect cannot be deduced from the act of 1887, for, if congress could do so, congress did explicitly clog the title with a condition of nonalienation for 25 years, and absolutely nullified all contracts made, touching the same, before the expiration of such time.

In Smythe v. Henry, 41 Fed. 705, a statute which granted land to the Cherokee chief Jnnaluska, with restraint upon its alienation, and also made him a citizen of the United States, was considered, and it was held that a restraint against alienation was not inconsistent with the grant of citizenship. The court said:

“It is insisted that the restriction imposed upon the rights of alienation by the second section of the net is inconsistent with the spirit and purpose of the first section, which conferred upon .'Jnnaluska all the rights, privileges, and immunities of citizenship. When a state conveys land as a'bounty, .it can impose any restriction deemed proper upon the grantee. When wo consider the condition of that now citizen, we may well conclude that the restriction was not unreasonable, but was, rather, just, wise, and beneficent.”

And it was held in Re Coombs, 127 Mass. 278, that it was competent for the legislature to continue the guardianship of Indians by the state after they had been made citizens.

It follows, therefore, that the contracts of complainant with the Indians were void, and that he was properly removed from the reservation. We have not distinguished between the lease and the contract to convey, as we deem them parts of one transaction. If it is for the interest of the Indians or of commerce to remove the restraints on alienation, congress will no doubt do so, if applied to, and in the latter case it will he enabled to provide for the interests of the Indians better than they have seemed to have provided for themselves in the contract with appellee. Judgment reversed, and cause remanded, with directions to dismiss the bill.