bers of the tribe shall have the control adult heirs of allottees, having certificates and use of said minors' lands, together of competency, and some from like alwith the proceeds of the same, until said lottees or heirs where no such certificate minors arrive at their majority: And has been issued. Others are obtained provided further, That all leases given from parents or legal guardians of minor on said lands for the benefit of the in- allottees or minor heirs, and still others dividual members of the tribe entitled from devisees holding under wills apthereto, or for their heirs, shall be subject proved by the [575] Secretary of the only to the approval of the Secretary of Interior. Many of the leases are for rethe Interior." stricted lands and yet are taken without conforming to the regulations and without obtaining the Secretary's approval. But, notwithstanding this, the defendants proceed to use the lands for grazing purposes, or to enable others to do so, as if the leases were properly obtained. The failure to conform to the statute and the regulations is not accidental, but intentional and persistent.

Besides several provisions indicating that the act is to be executed under the supervision of the Secretary of the Interior, there is a concluding section declaring:

"Sec. 12. That all things necessary to carry into effect the provisions of this act not otherwise herein specifically provided for shall be done under the authority and direction of the Secretary of the Interior." [574] An amendatory Act of April 18, 1912, chap. 83, 37 Stat. at L. 86, by its 3d section, subjects the property of deceased, orphan minor, insane, and some other allottees, to the jurisdiction of the county courts of Oklahoma in probate matters, but with the qualification, first, "that no guardian shall be appointed for a minor whose parents are living, unless the estate of said minor is being wasted or misused by such parents;" and, secondly, "that no land shall be sold or alienated under this section without the approval of the Secretary of the Interior." This amendatory act also contains a section dealing with disposals by will, of which we shall speak presently.

The

The right of the United States to maintain the suit, although challenged by the defendants, is not debatable. The Osages have not been fully emancipated, but are still wards of the United States. restrictions on the disposal and leasing of their allotments constitute an important part of the plan whereby they are being conducted from a state of tribal dependence to one of individual independence and responsibility; and outsiders, such as the defendants, are bound to respect the restrictions quite as much as are the allottees and their heirs. Authority to enforce them, like the power to impose them, is an incident of the guardianship of the United States. That relation and the obligations arising therefrom enable In virtue of §§ 7 and 12 of the Act of the United States to maintain the suit, 1906, the Secretary of the Interior adopt- notwithstanding it is without pecuniary ed and promulgated regulations designat-interest in the relief sought. Heckman ing the mode in which leases of restricted | v. United States, 224 U. S. 413, 437-442, lands for farming or grazing purposes 56 L. ed. 820, 829-831, 32 Sup. Ct. Rep. should be executed and brought to his 424; United States v. New Orleans P. R. attention, indicating the terms and conditions which should be embodied in the leases for the protection of the Indian lessors, and informing intending lessors and lessees that where the regulations were not complied with, the leases would not be approved.

Co. 248 U. S. 507, 518, 63 L. ed. 388, 398, 39 Sup. Ct. Rep. 175; United States v. Osage County, 251 U. S. 128, 133, 64 L. ed. 184, 187, 40 Sup. Ct. Rep. 100. And see Causey v. United States, 240 U. S. 399, 402, 60 L. ed. 711, 713, 36 Sup. Ct. Rep. 365.

The defendants (appellants here) are It is insistently urged that the reguengaged in procuring leases of Osage lations adopted and promulgated by the lands for farming and grazing purposes; Secretary of the Interior are void and of especially the latter. At times the leases no effect, and therefore that no right to are procured for their own benefit and at relief can be predicated upon the defendother times in the interest of cattlemen ants' disregard of them. The argument who desire and need large pastures. advanced is that the leasing provision says Where cattlemen are to be the beneficiaries, nothing about regulations; that the clause the defendants often take the leases in "subject only to the approval of the Secre their own names, and agree to protect the tary of the Interior" makes strongly cattlemen against claims for trespass or against any regulations; that what is indamage. Some of the leases are for home-tended is to leave the Indian free to lease steads, others for surplus lands. Some in his own way and on his [576] own are procured from adult allottees, or terms, subject to the Secretary's approval

or disapproval of the lease after it is] Without doubt the regulations pregiven; and that the regulations, as adopted scribed operate to restrain the Indian and promulgated, unwarrantably inter- from leasing in his own way and on his fere with this freedom of action. In our own terms, but this is not a valid objecopinion the insistence is not tenable, and tion. If there were no regulations, the for the following reasons: disapproval of a lease satisfactory to him would work a like restraint. Manifestly some restraint is intended, for the leasing provision does not permit the Indian to lease as he pleases, but only with the Secretary's approval.

The fact that the leasing provision says nothing about regulations is not important, for § 12 plainly enables the Secretary to employ any necessary means to carry that provision into effect. And, even without § 12, power to make regulations suitable to that end and consistent with the act would be implied. United States v. Bailey, 9 Pet. 238, 254, 255, 9 L. ed. 113, 119, 120.

The regulations appear to be consistent with the statute, appropriate to its execution, and in themselves reasonable.

negotiating or procuring other leases of the same class without conforming to the regulations prescribed.

Several questions relating to particular leases or lands remain to be noticed.

It follows from what has been said that in the main the action of both courts The need for some regulations is below was correct; that is to say, the deobvious. The Osages, among whom the fendants were properly enjoined from lands were divided, number about 2,000, asserting or exercising any right under and each member received an aggregate leases of restricted lands given by inof approximately 660 acres, often in scat- dividual Osages without the approval of tered tracts. All the lands were restricted the Secretary of the Interior, and from in the beginning, and most of them probably will remain so for several years. The leases are subjected to the Secretary's approval or disapproval, to the end that the allottees and their heirs may be protected from their own improvidence and The defendants have leases of restricted from overreaching by others. Both the lands, belonging to minor allottees or lands and the Indians are remote from minor heirs, which were given by guardians the seat of government, and without some with the sanction of the local courts in general and authoritative rules for the which the guardianships were pending, guidance of intending lessors and lessees but were not approved by the Secretary it is certain that improvident and ill- of the Interior. The district court ruled advised leases would be given and multi- that the Secretary's approval was not replied in a way which would confuse and quired, and the circuit court of appeals embarrass the Indians and greatly en-held to the contrary. We take the latter hance the difficulties attending the Secretary's supervision.

We find nothing in the leasing provision indicating that no regulations are intended. True, the concluding proviso declares that "all leases given on said lands for the benefit of individual members of the tribe entitled thereto, or for their heirs, shall be subject only to the approval of the Secretary of the Interior." But this means, as the context and other parts of the act show, that leases given on restricted lands for the benefit of individual allottees, or [577] their heirs, and not for the benefit of the tribe, shall be subject to the approval of the Secretary of the Interior, but need not have the sanction of the tribal council. The word "only," on which the defendants place much emphasis, merely aids in marking an intended distinction between leases given for the benefit of individuals and those given for the benefit of the tribe, the latter, as § 3 shows, needing the sanction of the tribal council as well as the approval of the Secretary of the Interior.

[578] view. It is supported by the comprehensive words of the concluding proviso of the leasing provision, and is strengthened by the second qualification found in § 3 of the amendatory Act of 1912, under which the local courts obtain probate jurisdiction over the property of such minors, and by the proviso in § 6 of that act, relating to the partition of inherited lands.

Some of the defendants' leases of restricted lands were given by parents on behalf of minor allottees or minor heirs, -one of the parents having a certificate of competency, and the other being of white blood, and not a member of the tribe. Both courts ruled that the Secretary's approval was essential, and rightly so, as we think. In giving such leases the parents act for the child, not for themselves, and approval by the Secretary is required by reason of the child's status, as would be true if the lease were given by a guardian.

One of the leases held by the defendants is for lands which, in the course of

the division, were selected and allotted, time of this suit. And that Congress inin the right of a member then deceased. tended it should have that meaning is at Under the statute the lands passed to the least inferable from a general act of the member's heirs, and the lease was procured from them. They are members, and without certificates of competency. The lease has not been approved by the Secretary. Both courts regarded the lands as restricted, and the lease as requiring the Secretary's approval. That view has since been sustained by us in Kenny v. Miles, 250 U. S. 58, 63 L. ed. 841, 39 Sup. Ct. Rep. 417.

next session respecting wills by Indian allottees and their approval by the Secre tary (February 14, 1913, chap. 55, 37 Stat. at L. 678, Comp. Stat. § 4228, 3 Fed. Stat. Anno. 2d ed. p. 855); for that act, while providing that "the approval of the will and the death of the testator shall not operate to terminate the trust or restrictive period," expressly excepted the Osages from its reach. These matters apparently were not brought to the attention of the courts below. We regard them as of sufficient [580] weight to put the question at rest. In one of the wills the testator attempted to impose an indefinite restraint on the devisee's right to alienate the land; but, whether the attempt be tested by the common law or by the local statutes, it plainly was of no effect. We modify the decree by excluding this class of leases from the injunetion.

Two leases, not approved by the Secretary, are for lands which passed to devisees under wills approved by that officer and duly admitted to probate. Both testators were adult members of the tribe, not mentally incompetent. One was an allottee and the other the sole heir of a deceased allottee. In their hands the lands were restricted. The defendants insist that, under the approved wills, the lands passed to the devisees freed from the restrictions. If so, the leases did not require the Secretary's approval. Both [579] Some of the leases are for lands which courts held that the lands continued to be were purchased by the lessors after the restricted. The question is not free from lands in regular course had become undifficulty, but we think it must be ruled restricted. Because the lessors were memthe other way. Strictly speaking, a dev-bers of the tribe, and without certificates isee takes under the will as an instru- of competency, the circuit court of apment of conveyance, and not by descent as an heir. This form of alienation was within the restriction imposed by the Act of 1906 (Taylor v. Parker, 235 U. S. 42, 59 L. ed. 121, 35 Sup. Ct. Rep. 22), but the amendatory Act of 1912 relaxed the restriction by declaring:

"Sec. 8. That any adult member of the Osage Tribe of Indians not mentally incompetent may dispose of any or all of his estate, real, personal, or mixed, including trust funds, from which restrictions as to alienation have not been removed, by will, in accordance with the laws of the state of Oklahoma: Provided, That no such will shall be admitted to probate or have any validity unless approved before or after the death of the testator by the Secretary of the Interior." This provision is broadly written, is in terms applicable to restricted lands and funds, and enables the Indian to dispose of all or any part of his estate by will, in accordance with the state law, if his will be approved by the Secretary. True, it does not say that a disposal by an approved will shall put an end to existing restrictions, but that is an admissible, if not the necessary, conclusion from its words. After its enactment the Secretary of the Interior construed it as having that meaning, and it was administered accordingly in that Department up to the

peals held that the leases were subject to the Secretary's approyal. The district court had held the other way. We think the district court was right. There is no provision in the Act of 1906 or that of 1912 which reimposes restrictions after they have been removed, or which subjects to restrictions all lands, however acquired, which a member without a certificate of competency may own. See MeCurdy v. United States, 246 U. S. 263, 62 L. ed. 706, 38 Sup. Ct. Rep. 289. The restrictions reach such lands only as were allotted to the member, or were inherited by him from another in whose hands they were restricted. Many members who are without certificates of competency have incomes and property which they are free to deal with as they choose. Some have purchased from white men having full title and an undoubted right to sell. See Levindale Lead & Zine Min. Co. v. Coleman, 241 U. S. 432, 60 L. ed. 1080, 36 Sup. Ct. Rep. 644. As to this class of leases, we so modify the decree that the injunction shall not include them.

Through purchases or leases from heirs who have certificates of competency, or are white men, and not members of the tribe, the defendants have come lawfully to own, or have leases of, undivided interests in particular lands the remaining interests in which continue to be restrict

amount in dispute.

2. The amount claimed in a petition in the court of claims is the amount in controversy for the purpose of testing the right to appeal to the Federal Supreme Court, although there may be a defense to a part that does not extend to the entire claim, where there is nothing in the nature of the case to prevent a recovery of the entire amount should claimant's view of [For other cases, see Appeal and Error, I. f, 4,

the law be sustained.

ed; and the defendants are using or exert- Appeal from court of claims ing control over these lands to the exclusion of the Indian owners of the restricted interests. This use or control is colorably based on unapproved leases and other forms of consent given by [581] the other owners which are without legal sanction. Both courts rightly condemned these acts, and portions of the injunction are directed against them. But, as to some of the lands, the injunction is open to an objection which the defendants urge against it, in that it prohibits them from "in any manner dealing with said lands, or any part thereof, without the consent of the Secretary of the Interior." This prohibition would prevent them from selling their unrestricted interests, although that may not have been intended. It should be confined to the restricted undivided interests of the Indian owners; and we modify the decree accordingly.

Subject to the modifications here made

the decree is affirmed.

Decree modified and affirmed.

in Digest Sup. Ct. 1908.] Assumpsit

recovery back of money paid under mistake compensation for carrying mail.

3. Moneys paid by a newspaper corcannot be recovered back as having been poration for papers transported in the mails paid under a mistake of fact merely because some bundles of papers labeled "Express," which the corporation intended to be transported by express, were carried in the mails, where the only mistake seems to have been that of agents of the corporation in causing or permitting the papers to go by mail instead of express.

[For other cases, see Assumpsit, II. c, 2; Postoffice, 84-88, in Digest Sup. Ct. 1908.] Claims jurisdiction

officers or agents.

torts of Federal

4. The United States has not consented to be sued in the court of claims for the

JOURNAL & TRIBUNE COMPANY, Appt., torts of its officers or agents.

-

Note. As to amount necessary to give United States Supreme Court jurisdiction -see notes to Commercial Bank v. Buckingham, 12 L. ed. U. S. 169, and Schunk v. Moline, M. & S. Co. 37 L. ed. U. S. 256. As to when payments voluntarily made may be recovered back-see note to Little v. Bowers, 33 L. ed. U. S. 1016.

As to when money paid by mistake may be recovered back-see note to United States v. Barlow, 33 L. ed. U. S. 346.

On suits against United States-see note to Beers v. Arkansas, 15 L. ed. U. S.

991.

On suit against Federal officers or agents as suit against United States-see notes to Louisiana v. Garfield, 53 L. ed. U. S. 92, and Wells v. Roper, 62 L. ed. U.S. 756.

[For other cases, see Claims, 128-131, in Digest Sup. Ct. 1908.]

[No. 86.]

Argued November 10 and 11, 1920. Decided
January 24, 1921.

APPEAL from the Court of Claims to

review the dismissal of a petition for the recovery back of moneys paid for transportation of newspapers in the mails upon the ground that they were paid under a mistake of facts. Affirmed.

See same case below, 53 Ct. Cl. 612. The facts are stated in the opinion. Mr. Benjamin Carter argued the cause and filed a brief for appellant:

When one pays money by reason of the supposition that something is true, which would entitle the other party to the money, but which is untrue, and the money would not have been paid if the payer had known that such fact did not exist, he may recover the money by any action not forbidden or barred by law.

United States v. Barlow, 132 U. S. 271, 33 L. ed. 346, 10 Sup. Ct. Rep. 77; Wisconsin C. R. Co. v. United States, 164 U. S. 190, 41 L. ed. 399, 17 Sup. Ct. Rep. 45; Mayer v. New York, 63 N. Y. 435; Union Nat. Bank v. Sixth Nat. Bank, 43 N. Y. 451, 3 Am. Rep. 718; Louisville & N. R. Co. v. Com. 97 Ky. 208, 30 S. W. 616;

Pool v. Allen, 29 N. C. (7 Ired. L.) 120; Baltimore & S. R. Co. v. Faunce, 6 Gill, 68, 46 Am. Dec. 655; 16 Cyc. 744.

If money, having been taken by an officer of the government without warrant of law, is in the government's treasury, the court of claims has jurisdiction of a suit for its recovery.

Knote v. United States, 95 U. S. 149, 24 L. ed. 442; Ittner v. United States, 43 Ct. Cl. 336; Cartas v. United States, 48 Ct. Cl. 163; Pharis's Case, 16 Ct. Cl. 501; Delvin's Case, 12 Ct. Cl. 266.

No action lies against one person for anything done, assumed to be of value to such person, by another who had no reason to believe the supposed beneficiary desired that the thing should be done by him.

Clary v. Wolf, 34 R. I. 263, 83 Atl. 115; Hunt v. Cates, 61 Colo. 365, 157 Pac. 1162; Belknap v. Hayden, 1 Ky. L. Rep. 119; Boyer v. Joyal, 164 Mich. 662, 130 N. W. 326; Johnson v. Boston & M. R. Co. 69 Vt. 521, 38 Atl. 267; Whitsell v. United States, 34 Ct. Cl. 5; Day v. Caton, 119 Mass. 513, 515, 20 Am. Rep. 347; Keener, Quasi Contr. § 341.

There can be no estoppel of one party in a suit by reason of any action taken by him which did not mislead the other party in the determining of his own course.

Leggett v. Standard Oil Co. 149 U. S. 287, 294, 37 L. ed. 737, 741, 13 Sup. Ct. Rep. 902; Louisville & N. R. Co. v. Com. 97 Ky. 208, 30 S. W. 616; Weller v. Harrison Land Co. 195 Mich. 624, 161 N. W. 894; Kretz v. Fireproof Storage Co. 133 Minn. 285, 158 N. W. 397; Plummer v. Mold, 22 Minn. 15; Stoddard v. Johnson, 75 Ind. 20; Himrod v. Ft. Pitt Min. & Mill. Co. 135 C. C. A. 648, 220 Fed. 80; Columbus, S. & H. R. Co.'s Appeal, 48 C. C. A. 275, 109 Fed. 177; Atkison v. Plum, 50 W. Va. 104, 58 L.R.A. 788, 40 S. E. 587; Lash v. Rendell, 72 Ind. 475; Lawrence v. American Nat. Bank, 54 N. Y. 432; Edward v. McEnhill, 51 Mich. 160.

He who claims an estoppel of his adversary assumes the burden of proving every element thereof.

Perkins v. Missouri P. R. Co. 76 Neb. 252, 107 N. W. 260; Beaufort Lumber Co. v. Price, 144 N. C. 50, 56 S. E. 684; Cooper v. Order of Railway Conductors, 156 Iowa, 481, 137 N. W. 472; Petring v. Chrisler, 90 Mo. 649, 657, 3 S. W. 405; Elliott v. Keith, 102 Ga. 117, 29 S. E. 155; Blanck v. Pioneer Min. Co. 93 Wash. 26, 159 Pac. 1077; Sawyer v. Metters, 133 Wis. 350, 358, 113 N. W. 682.

|

gued the cause and filed a brief for appellee:

Viewing the claim in the most favorable light, and assuming that an actual mistake was made, of a kind that would predicate recovery, the amount that could be recovered could not exceed the difference between the amount paid as postage and the amount which would have been paid had the newspapers been sent by express. Concededly, the claimant received a benefit; in fact, it obtained the object it desired, the transportation of its newspapers. Something was due the government, it could not be less than the express rate, and this much it would be entitled to retain in any event.

Woodward, Quasi Contr. § 20, p. 30; Keener, Quasi Contr. p. 41; Merchants' Nat. Bank v. National Bank, 139 Mass. 513, 2 N. E. 89.

The amendment amounts simply to a statement in the prayer of the petition that an amount is in controversy which would give the right to appeal to this court. The petition on its face, and the facts as found by the court of claims, show that if claimant is entitled to recover recover more than at all it cannot $1,792.21, and that therefore this is the amount in controversy. The appeal should accordingly be dismissed.

Vance v. W. A. Vandercook Co. 170 U. S. 438, 472, 42 L. ed. 1100, 1112, 18 Sup. Ct. Rep. 645; Barry v. Edmunds, 116 U. S. 550, 560, 29 L. ed. 729, 732. 6 Sup. Ct. Rep. 501; Wilson v. Daniel, 3 Dall. 401, 407, 1 L. ed. 655, 657; Grand Trunk Western R. Co. v. United States, 246 U. S. 652, 62 L. ed. 922, 38 Sup. Ct. Rep. 335.

The facts found establish no enforceable contractual obligation on the part of the United States.

United States v. Berwer, 139 U. S. 278, 281, 282, 35 L. ed. 190, 191, 11 Sup. Ct. Rep. 538; Claflin v. Godfrey. 21 Pick. 1; Keener, Quasi Contr. pp. 34, 67, 71, et seq.; Woodward, Contr. §§ 10, 31.

Mr. Justice Pitney delivered the opinion of the court:

This suit was brought to recover moneys paid for the transportation of newspapers in the mails, upon the ground that they were paid under mistake of fact. The court of claims dismissed the petition.

53 Ct. Cl. 612.

The facts are as follows: Claimant was engaged in publishing at Knoxville, Tennessee, a daily morning newspaper having a circulation in eastern Tennessee and adjacent parts of Virginia and North Assistant Attorney General Davis ar- Carolina. It sent out a considerable part