June 1, 1921.


N WRIT of Certiorari to the Supreme Court of the State of California to review a judgment which affirmed a judgment of the Superior Court of Riverside County, in that state, dismissing the bill in a suit to establish a trust in land patented under the Homestead Laws. Affirmed.

See same case below, 181 Cal. 788, 185 Pac. 971.

The facts are stated in the opinion. Mr. Samuel Herrick argued the cause, and, with Mr. Henry M. Willis, filed a brief for petitioner.

Mr. Patrick H. Loughran argued the cause and filed a brief for respondent.

Mr. Justice Van Devanter delivered the opinion of the court:

holding a different view of the act. Argued April 26 and 27, 1921. The opinions rendered by the circuit court of appeals do indicate that it was disposed to think the words "thirty days from the date of such notice" should be taken literally and strictly, but a careful reading of the opinion discloses that the decision was not put on that ground. As was rightly said by the supreme court of the state in the present case: "The decision there was not to the effect that the contestant was by mistake of law given the preference right." Indeed, that case did not call for any expression of opinion on the subject. The plaintiff there was the original homestead entryman, and was insisting that his entry had been unlawfully canceled. If that claim was well taken, as was held, the cancelation did not give rise to any preferred right. Besides, the defendant there was not claiming under an entry based on a preferred right, but under entries made after he had relinquished the entry which he claimed was based thereon. Thus, the observations of the circuit court of appeals respecting preferred rights were obiter dicta, and, as the decree of affirmance in this court was put on other grounds, those observations are neither authoritative nor persuasive. Here it is not questioned that the [484] UNITED STATES, Plff. in Err., original or first entry-that of Riderwas lawfully canceled. McLaren recognized that that entry had been lawfully eliminated when he sought to initiate a claim to the land. He should also have recognized that Fleischer, by his contest, had brought about its elimination, and was entitled, as a reward, to enter the land at any time within thirty days after it was restored to entry.

We conclude that the state courts rightly refused to disturb the construction which the officers of the Land Department had put on the act. Judgment affirmed.

This case is in all material respects like McLaren v. Fleischer, 256 U. S. 477, ante, 1052, 41 Sup. Ct. Rep. 577. It was decided in the same way by the state courts and was argued with that case here. Therefore the opinion in that will suffice to dispose of this. Judgment affirmed.



(See S. C. Reporter's ed. 484-490.) Indians heirs of deceased allottee determination by Secretary of In- trust or restricted allot



Restricted as well as trust allotments must be held to be comprehended by the provisions of the Act of June 25, 1910, $1, that "when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee-simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, un

[483] ROBERT L. CULPEPPER, Peti- der such rules as he may prescribe, shall




(See S. C. Reporter's ed. 483.) This case is governed by the decision in McLaren v. Fleischer, ante, 1052.

[No. 292.]

Note. On conclusiveness of decisions or findings of the Land Departmentsee note to Whitehill v. Vietorio Land & Cattle Co. L.R.A.1918D, 597.

ascertain the legal heirs of such decedent,
and his decision thereon shall be final and
conclusive," in view of the legislative and
departmental construction of that section
as authorizing a determination of the heirs
of both classes of deceased allottees.
[For other cases, see Indians, VIII. in Digest
Sup. Ct. 1908.]

[No. 295.]

Note.-On Federal control over Indians-see note to Worcester v. Georgia, 8 L. ed. U. S. 484.



Argued April 27, 1921. Decided June 1, the supervision and guardianship of the United States. The defendants, by their answer, admitted that the land had been allotted and patented to Wea and that they were in possession; denied all the other allegations in the petition, including the heirship [486] of those in whose interest the action was brought, and alleged that, at the time of answering, the defendants were rightfully in possession under conveyances executed by the real heirs after the restriction upon alienation expired.

IN ERROR to the United States Cir-
cuit Court of Appeals for the Eighth
Circuit to review a judgment which af-
firmed a judgment of the District Court
of the United States for the Eastern
District of Oklahoma in favor of de-
fendants in an action by the United
States to recover possession of land,
with damages for its detention and use.
Reversed and remanded for a new trial.
See same case below, · C. C. A.
261 Fed. 657.

The facts are stated in the opinion.
Special Assistant to the Attorney
General Garnett argued the cause and
filed a brief for plaintiff in error.

Mr. Halbert H. McCluer argued the cause, and, with Mr. Vern E. Thompson, filed a brief for defendants in error.

Mr. Justice Van Devanter delivered the opinion of the court: This was


At the trial the United States, to establish the heirship of those in whose in evidence an exemplified copy of a deinterest the action was brought, offered cision by the Secretary of the Interior, dated October 21, 1914, during the period of restriction, finding and holding that they were the heirs, and the sole heirs, of Wea, and stating their respective shares. To this the defendants objected upon the ground that the law of Congress under which the decision was an action by the United given applied only where the deceased States to recover the possession of a allottee held under a trust patent. The tract of land in Oklahoma, with dam- court sustained the objection and no ages for its detention and use by the other evidence on the subject was predefendants for several years. The trial sented by either side. Whether the resulted in a judgment for the defend- court erred in excluding the Secretary's ants, which the circuit court of appeals determination is the only question reaffirmed. - C. C. A. 261 Fed. 657. served at the trial and now presented The land was allotted and patented for decision. It was not claimed that under the Act of March 2, 1889, chap. the Secretary proceeded without notice, 422, 25 Stat. at L. 1013, Comp. Stat. § or without according all who were in4207, 3 Fed. Stat. Anno. 2d ed. p. 836, terested a full hearing, but only that he to Pe-te-lon-o-zah, or William Wea, a had not been empowered to determine member of the confederated Wea, Peo- who were the heirs where the deceased ria, Kaskaskia, and Piankeshaw Tribes allottee held, as did Wea, under a patof Indians, as his distributive share of ent in fee, even though the land was the tribal lands. The patent was dated subject to a restriction upon alienation. April 8, 1890, conveyed a fee-simple Before coming to the acts under which title, and imposed a restriction upon the Secretary of the Interior proceeded, alienation for a period of twenty-five it will be helpful to refer to the modes, years from its date. Wea died intestate and seised of the land January 23, 1894. Shortly after his death persons claiming to be his heirs executed a conveyance of the land, and on May 4, 1914, this court affirmed a decree against two of the present defendants, canceling that conveyance as made in violation of the restriction. Bowling v. United States, 233 U. S. 528, 58 L. ed. 1080, 34 Sup. Ct. Rep. 659.

This action was commenced January 20, 1915, during the period of restriction, and, according to the petition, was brought in the interest of designated Indians who were alleged to be the heirs at law of Wea, to be entitled to the possession, and to be members of the confederated tribes, and still under 65 L. ed.

long in use, by which Indians are prevented from improvidently disposing of allotted lands. One is to issue to the allottee a written instrument or certificate, called a trust patent, declaring that the United States will hold the land for a designated period, usually twentyfive years, in trust for the sole use and benefit of the allottee, or, in case of his death, of his heirs, and at the expiration of that period will convey the same to him, or [487] his heirs, in fee, discharged of the trust and free of all charge or encumbrance. The other is to issue at once to the allottee a patent conveying to him the land in fee, and imposing a restriction upon its alienation for twenty-five years or some other stated period. While aliena


tion is effectually restricted by either mode, allotments under the first are commonly spoken of as trust allotments, and those under the second as restricted allotments. As respects both classes of allotments-one as much as the other the United States possesses a supervisory control over the land, and may take appropriate measures to make sure that it inures to the sole use and benefit of the allottee and his heirs throughout the original or any extended period of restriction. As an incident to this power Congress may authorize and require the Secretary of the Interior to determine the legal heirs of a deceased allottee, and may make that determination final and conclusive.2 It rests with Congress to say which of the two modes shall be followed in respect of the lands of a particular tribe, and this usually is done in the act directing that the lands be allotted. The Act of 1889, under which the lands of the confederated tribes were allotted, required that the second mode be followed,-that of issuing a patent in fee imposing a restriction upon alienation for a fixed period. By 1 of the Act of June 25, 1910, chap. 431, 36 Stat. at L. 855, Comp. Stat. § 4226, 3 Fed. Stat. Anno. 2d ed. p. 853, Congress provided:

"That when any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee-simple patent, without having [488] made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive."

The courts below concluded from the words of this provision that it was confined to trust allotments-those held un|


1 United States v. Rickert, 188 U. S. 432, 47 L. ed. 532, 23 Sup. Ct. Rep. 479; Marchie Tiger v. Western Invest. Co. 221 U. S. 286, 55 L. ed. 738, 31 Sup. Ct. Rep. 578; Heckv. United States, 224 U. S. 413, 56 L. ed. 820, 32 Sup. Ct. Rep. 424; Brader v. James, 246 U. S. 88, 62 L. ed. 591, 38 Sup. Ct. Rep. 285; Talley v. Burgess, 246 U. S. 104, 62 L. ed. 600, 38 Sup. Ct. Rep. 287; La Motte v. United States, 254 U. S. 570, ante, 410, 41 Sup. Ct. Rep. 204.

2 Hallowell v. Commons, 239 U. S. 506, 60 L. ed. 409, 36 Sup. Ct. Rep. 202. And see Lane v. United States, 241 U. S. 201, 60 L. ed. 956, 36 Sup. Ct. Rep. 599; Egan v. McDonald, 246 U. S. 227, 62 L. ed. 680, 38 Sup. Ct. Rep. 223.

3 Acts August 1, 1914, chap. 222, 38 Stat.

der trust patents. Separately considered, it hardly admits of any other view; and yet other provisions in the same section suggest that its words may not have been happily chosen, and that it may have been intended to be more comprehensive. To illustrate, a closely following proviso declares:

"That the Secretary of the Interior is hereby authorized in his discretion to issue a certificate of competency, upon application therefor, to any Indian, or in case of his death, to his heirs, to whom a patent in fee containing restrictions on alienation has been or may hereafter be issued, and such certificate shall have the effect of removing the restrictions on alienation contained in such patent."

But we need not dwell upon the internal proof of what was intended, for, by a series of appropriation acts, beginning August 1, 1914, and extending to the present time, Congress has treated and construed the provision as including both trust and restricted allotments.3 Each of the appropriation acts contains a paragraph appropriating $100,000 to meet the cost of "determining the heirs of deceased Indian allottees having any right, title, or interest, in any trust or restricted allotment, under regulations prescribed by the Secretary of the Interior," and they show affirmatively that they refer to a determination under § 1 of the Act of 1910. [489] Not only so, but they all contain a proviso that "this paragraph shall not apply to the Osage Indians, nor to the Five Civilized Tribes," which would be a needless provision if Congress had not intended that the power to determine heirships should extend to restricted as well as trust allotments; for the allotments to the Osages and to members of the Five Civilized Tribes were not trust but restricted allotments. The annual reports of the Indian Bureau show that the officers at L. 582, 586, Comp. Stat. § 4205e, 3 Fed. Stat. Anno. 2d ed. p. 803; May 18, 1916, chap. 125, 39 Stat. at L. 123, 127, Comp. Stat. § 4227; March 2, 1917, chap. 146, 39 Stat. at L. 969, 972, Fed. Stat. Anno. Supp. 1918, p. 260; May 25, 1918, chap. 86, 40 Stat. at L. 561, 567, Comp. Stat. § 4025, Fed. Stat. Supp. 1918, p. 264; June 30, 1919, chap. 4, 41 Stat. at L. 3, 8: February 14, 1920, chap. 75, 41 Stat. at L. 408, 413.

4 House Doc. No. 90, p. 38, 64th Cong. 1st Sess.; House Doc. No. 1899, p. 51, 64th Cong. 2d Sess.; House Doc. No. 915, p. 53, 65th Cong. 2d Sess.; House Doc. No. 1455, p. 53, 65th Cong. 3d Sess.; House Doc. No. 409, p. 51, 66th Cong. 2d Sess.; House Doc. No. 849, p. 45, 66th Cong. 2d Sess.

specifically conferred on the Federal Su-
preme Court.

[For other cases, see Prohibition, I. in Digest
Sup. Ct. 1908.]
Prohibition other remedy.

[For other cases, see Prohibition, II. in Digest

Sup. Ct. 1908.]

States immunity from suit.

of that bureau, including the Secretary of the Interior, have uniformly regarded $1 of the Act of 1910, in connection with these appropriation acts, as enabling them to determine the heirs of 2. The fact that the objection to the both classes of deceased allottees, and jurisdiction of the court below might be they further show that in each year raised by appeal from the final decree is since these appropriations began these not, in all cases, a valid objection to the officers have determined the heirs of issuance of a writ of prohibition by the hundreds of deceased allottees who held where a court of admiralty assumes to take Federal Supreme Court at the outset, under restricted, as distinguished from cognizance of matters over which it has no trust, allotments. In one year alone the lawful jurisdiction. number was 566, and of course the aggregate of the values involved was great. These reports were regularly laid before Congress, and, with the knowledge thus obtained, it repeated the appropriation each year. Of course this can be accounted for only upon the theory that, in the opinion of Congress, the officers were but exercising the power which it intended they should have and exercise. It was after the original provision had been so construed and supplemented by the first of the appropriation acts that Wea's heirs were determined by the Secretary. Apparently the appropriation acts and the reports of the Indian Bureau were not brought to the attention of the courts below.

We conclude that the District Court erred in sustaining [490] the defendants' objection to the introduction in evidence of the Secretary's determination, and therefore that the judgment must be reversed and the case remanded for a new trial.

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(See S. C. Reporter's ed. 490-503.) Prohibition to district court.

1. Power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime juris diction is, by the Judicial Code, § 234, Note. On suits against state officers as suits against a state-see notes to Sanders v. Saxton, 1 L.R.A. (N.S.) 727; Ex parte Young, 13 L.R.A. (N.S.) 932; Louisville & N. R. Co. v. Burr, 44 L.R.A. (N.S.) 189, and Beers v. Arkansas, 15 L. ed. U. S. 991.

3. The entire judicial power granted by the Constitution does not embrace au

thority to entertain a suit brought by private parties against a state, without consent given, nor one brought by citizens of another state, or by citizens or subjects of a foreign state, because of the 11th Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an [For other cases, see States, IX. b, 2, in Digest exemplification.

Sup. Ct. 1908.]

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States immunity from suit admiralty suits.

4. The admiralty and maritime jurisdiction is not exempt from the operation of the rule that a state may not be sued uals, whether its own citizens or not. in personam without its consent by individ[For other cases, see States, IX. b, 2, in Digest

Sup. Ct. 1908.]

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5. The immunity of a state from suit without its consent prevents a court of admiralty, in which libels have been filed against certain tugs for damages received by their tows upon the Erie canal, from proceeding against the superintendent of public works of the state of New York, who was operating the tugs when the disaster occurred, under charter parties authorized by the state laws, where, the charters having since expired, at no time has any res belonging to the state or to such officer, or tached or brought under the jurisdiction of in which they claim any interest, been atsuch officer individually, the proceedings the court, nor is any relief asked against against him being strictly in his capacity as a public officer.

[For other cases, see States, IX. c, 2, in
Digest Sup. Ct. 1908.]


of state from suit.

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6. The symmetry and uniformity characteristic of the rules of maritime law are not defeated by according to the several Generally, on suits against a state-states an exemption in the courts of marisee notes to Murdock Parlor Grate Co. time and admiralty jurisdiction from litiv. Com. 8 L.R.A. 399; Carr v. State, 11gation against them at the suit of individ L.R.A. 370; Beers v. Arkansas, 15 L. (For other cases, see Admiralty, I. b, 2, in ed. U. S. 991, and Hans v. Louisiana, Digest Sup. Ct. 1908.]

33 L. ed. U. S. 842.


[No. 25, Original.]

Argued December 13 and 14, 1920. Decided


June 1, 1921.

N PETITION for a Writ of Prohibition and/or a Writ of Mandamus to prevent a court, of admiralty from assuming jurisdiction over a state officer. Rule for Writ of Prohibition made absolute.

The facts are stated in the opinion. Mr. Edward G. Griffin argued the cause, and, with Mr. Charles D. Newton, Attorney General of New York, filed a brief for petitioners:

The judicial power established by the Constitution did not comprehend cases at that time unknown to the law or forbidden by the law; consequently the right of a citizen to sue his own state is not to be implied even under the very general terms conferring admiralty and maritime jurisdiction upon the Federal


Gibbons v. Ogden, 9 Wheat. 1, 187, 6 L. ed. 23, 68; Foster, Const. § 41; 17 Fed. 188, note; Beers v. Arkansas, 20 How. 527, 15 L. ed. 991; United States v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240; Hans v. Louisiana, 134 U. S. 1, 33 L. ed. 842, 10 Sup. Ct. Rep. 504; Duhne v. New Jersey, 251 U. S. 311, 64 L. ed. 280, 40 Sup. Ct. Rep. 154; Illinois C. R. Co. v. Adams, 180 U. S. 28, 38, 45 L. ed. 410, 413, 21 Sup. Ct. Rep. 251; Bell v. Mississippi, 177 U. S. 693, 44 L. ed. 945, 20 Sup. Ct. Rep. 1031; Ex parte Madrazzo, 7 Pet. 627, 8 L. ed. 808; Sundry African Slaves v. Madrazo, 1 Pet. 110, 7 L. ed. 73; 3 Story, Const. § 1683.

The Koerber and Charlotte causes are suits against the state of New York.

Re Ayers, 123 U. S. 443, 31 L. ed. 216, 8 Sup. Ct. Rep. 164; Walsh v. Preston, 109 U. S. 297, 27 L. ed. 940, 3 Sup. Ct. Rep. 169, 245; Hagood v. Southern, 117 U. S. 52, 29 L. ed. 805, 6 Sup. Ct. Rep. 608; Christian v. Atlantic & N. C. R. Co. 133 U. S. 233, 33 L. ed. 589, 10 Sup. Ct. Rep. 260; North Carolina v. Temple, 134 U. S. 22, 33 L. ed. 849, 10 Sup. Ct. Rep. 509; Pennoyer v. McConnaughy, 140 U. S. 1, 35 L. ed. 363, 11 Sup. Ct. Rep. 699; Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4 Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047; Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140, 20 Sup. Ct. Rep. 919; Murray v. Wilson Distilling Co. 213 U. S. 151, 53 L. ed. 742, 29 Sup. Ct. Rep. 458; Lankford v. Platte Iron Works Co. 235 U. S. 461, 59 L. ed. 316, 35 Sup. Ct. Rep. 173.

The Queen City is exempt under rules of comity.

Moitez v. South Carolina, Bee, 422, Fed. Cas. No. 9,697; L'Invincible, 1 Wheat. 238, 4 L. ed. 80; The Exchange v. M'Faddon, 7 Cranch, 116, 3 L. ed. 287; Long v. The Tampico, 16 Fed. 491; Tucker v. Alexandroff, 183 U. S. 424, 46 L. ed. 264, 22 Sup. Ct. Rep. 195; The Parlement Belge, L. R. 5 Prob. Div. 197, 42 L. T. N. S. 273, 28 Week. Rep. 642, 4 Asp. Mar. L. Cas. 234; The Siren, 7 Wall. 152, 19 L. ed. 129; The Publie Bath No. 13, 61 Fed. 693; Workman v. New York City, 179 U. S. 552, 45 L. ed. 314, 21 Sup. Ct. Rep. 212; The John McCraken, 145 Fed. 705; The Protector, 20 Fed. 207; The F. C. Latrobe, 28 Fed. 377; The Fidelity, 9 Ben. 333, 16 Blatehf. 569, Fed. Cas. Nos. 4,757, 4,758; The Seneca, 8 Ben. 509, Fed. Cas. No. 12,668; Rogers v. Rajendro Dutt, 13 Moore, P. C. C. 209, 15 Eng. Reprint, 78, 3 L. T. N. S. 160, 9 Week. Rep. 149; The Inflexible, Swabey, Adm. 32; The Swallow, Swabey, Adm. 30.

Mr. Ellis H. Gidley argued the cause and filed a brief for respondent:

This court has not granted writs of prohibition when petitioner possessed another remedy.

Ke Cooper, 143 U. S. 472, 36 L. ed. 232, 12 Sup. Ct. Rep. 453; Ex parte Gordon, 104 U. S. 515, 26 L. ed. 814; Re New York & P. R. S. S. Co. 155 U. S. 523, 39 L. ed. 246, 15 Sup. Ct. Rep. 183; Morrison v. District Ct. 147 U. S. 14, 26, 37 L. ed. 60, 65, 13 Sup. Ct. Rep. 246; United States v. Jahn, 155 U. S. 109, 115, 39 L. ed. 87, 90, 15 Sup. Ct. Rep. 39; Re Fassett, 142 U. S. 479, 484, 35 L. ed. 1086, 1088, 12 Sup. Ct. Rep. 295; Moran v. Sturges, 154 U. S. 256, 286, 38 L. ed. 981, 991, 14 Sup. Ct. Rep. 1019; Ex parte Detroit River Ferry Co. 104 U. S. 519, 26 L. ed. 815; Ex parte Hagar, 104 U. S. 520, 26 L. ed. 816; Re Rice, 155 U. S. 396, 39 L. ed. 198, 15 Sup. Ct. Rep. 149; Re Huguley Mfg. Co. 184 U. S. 297, 46 L. ed. 549, 22 Sup. Ct. Rep. 455; Alexander v. Crollott, 199 U. S. 580, 50 L. ed. 317, 26 Sup. Ct. Rep. 161; Re Oklahoma, 220 U. S. 191, 208, 209, 55 L. ed. 431, 435, 31 Sup. Ct. Rep. 426.

This court has not granted writs of mandamus where petitioner had other remedy.

Re Oklahoma, 220 U. S. 191, 209, 55 L. ed. 431, 435, 31 Sup. Ct. Rep. 426; Ex parte Harding, 219 U. S. 363, 369, 55 L. ed. 252, 254, 37 L.R.A. (N.S.) 392, 31 Sup. Ct. Rep. 324; Morrison v. District

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