1. Children of Omaha Indians born

during the trust period acquired no vested

right to an allotment by virtue of the Treaties of March 16, 1854, and March 6, 1865, with the Omaha Tribe, or the Acts of August 7, 1882, and March 3, 1893, enacted in execution of the treaty purposes, so as to preclude Congress from changing, as it did in the Act of May 11, 1912, the mode of disposition of the unallotted lands in the Omaha Indian Reservation. [For other cases, see Constitutional Law, IV. e, in Digest Sup. Ct. 1908.] Indians

of statute.

allotment

implied repeal

may entertain a defense not made on the first trial.

[For other cases, see Appeal and Error, IX. 1, in Digest Sup. Ct. 1908.]

[No. 242.]

Argued March 21 and 22, 1921. April 11, 1921.

Decided

Mr. John Lee Webster argued the cause, and, with Mr. Hiram Chase, filed a brief for appellant:

Appellant was born into the right to allotment under the Act of 1882, as amended by the Act of 1893.

Chase v. United States, 152 C. C. A. 21, 238 Fed. 887.

Having relied at the first trial and on the first appeal, upon the single proposition that the Act of 1893 repealed the Act of 1882, and thereby cut off the right of these Indian claimants to allotments, and having failed in that defense, the United States cannot, upon the second trial, abandon that defense, and insist that the Act of May 11, 1912, repealed the Act of 1882.

Rep. 555; Oakland Sugar Mill Co. v. Fred W. Wolf Co. 55 C. C. A. 93, 118 Fed. 239; Ohio & M. R. Co. v. McCarthy, 96 U. S. 258, 24 L. ed. 693; Smith v. Boston Elev. R. Co. 37 L.R.A.| (N.S.) 429, 106 C. C. A. 497, 184 Fed. 387; Southern Cotton Oil Co. v. Shelton, 136 C. C. A. 509, 220 Fed. 247; Werlein v. New Orleans, 177 U. S. 390, 44 L. ed. 817, 20 Sup. Ct. Rep. 682.

This doctrine of estoppel against changing the grounds of defense or shifting positions applies to the United States as well as to individuals.

Northern P. R. Co. v. Slaght, 205 U. S. 122, 51 L. ed. 738, 27 Sup. Ct. Rep. 446; United States v. California & 0. Land Co. 192 U. S. 355, 48 L. ed. 476, 24 Sup. Ct. Rep. 266.

The ruling of the circuit court of appeals, in Chase v. United States, 238 Fed. 887, was the law of the case, and the district court was without jurisdiction to depart therefrom.

Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co. 19 C. C. A. 25, 43 U. S. App. 47, 72 Fed. 545; Sibbald v. United States, 12 Pet. 488, 492, 9 L. ed. 1167, 1169; Re Sanford Fork & Tool Co. 160 U. S. 247, 255, 40 L. ed. 414, 416, 16 Sup. Ct. Rep. 291; Texas & P. R. Co. v. Anderson, 149 U. S. 237, 241, 37 L. ed. 717. 718, 13 Sup. Ct. Rep. 843.

The Act of May 11, 1912, did not repeal the Act of 1882, or the amendatory Act of 1893. In any event, the Acts of 1882 and 1893, providing for allotments to members of the tribe, remain in full force, and continue to be operative until there shall be an actual sale of the lands.

Chase v. United States, 152 C. C. A. 21, 238 Fed. 893; Frost v. Wenie, 157 U. S. 46, 39 L. ed. 614, 15 Sup. Ct. Rep. 532; Hemmer v. United States, 123 C. C. A. 194, 204 Fed. 898, 241 U. S. 379, 60 L. ed. 1055, 36 Sup. Ct. Rep. 659.

Equity will treat that which ought to have been done as having been done.

Cropley v. Cooper, 19 Wall. 167, 174, 22 L. ed. 109, 113; Martin v. Martin, 250 Mo. 550, 157 S. W. 575; Re Imperial Textile Co. 239 Fed. 777; Pilok v. Bednarski, 230 Mass. 58, 119 N. E. 360; Walker v. Brown, 165 U. S. 654, 665, 41 L. ed. 865, 872, 17 Sup. Ct. Rep. 453, 1 Pom. Eq. Jur. §§ 363, 364.

Assistant Attorney General Garnett argued the cause, and, with Special Assistant to the Attorney General Underwood, filed a brief for appellee:

The rule of "the law of the case" has no application here.

Messenger v. Anderson, 225 U. S. 436, 444, 56 L. ed. 1152, 1156, 32 Sup. Ct. Rep. 739; Re Sanford Fork & Tool Co. 160 U. S. 247, 255, 256, 40 L. ed. 414, 416, 417, 16 Sup. Ct. Rep. 291; Ex parte Union S. B. Co. 178 U. S. 317, 319, 44 L. ed. 1084, 1085, 20 Sup. Ct. Rep. 904; Mutual L. Ins. Co. v. Hill, 193 U. S. 551, 553, 554, 48 L. ed. 788, 792, 24 Sup. Ct. Rep. 538; Re Potts, 166 U. S. 263, 265, 266, 41 L. ed. 994, 995, 17 Sup. Ct. Rep. 520; Alerding v. Allison, 170 Ind. 252, 127 Am. St. Rep. 363, 83 N. E. 1006.

Congress had plenary power to enact the Statute of May 11, 1912, providing for the sale of unallotted tribal lands, and that statute bars any right which appellant might assert to an allotment.

Gritts v. Fisher, 224 U. S. 640, 647, 648, 56 L. ed. 928, 933, 934, 32 Sup. Ct. Rep. 580; Choate v. Trapp, 224 U. S. 665, 670, 671, 56 L. ed. 941, 944, 945, 32 Sup. Ct. Rep. 565; Cherokee Nation v. Hitchcock, 187 U. S. 294, 307, 47 L. ed. 183, 190, 23 Sup. Ct. Rep. 115; Sizemore v. Brady, 235 U. S. 441, 59 L. ed. 308, 35 Sup. Ct. Rep. 135.

Mr. Oscar C. Anderson, by special leave, argued the cause, and, with Mr. Omaha Tribe of Indians: Charles J. Kappler, filed a brief for the

Plaintiffs in these suits cannot prediand March 16, 1865. cate any right under the Treaties of 1854

United States v. Chase, 245 U. S. 89, 62 L. ed. 168, 38 Sup. Ct. Rep. 24.

The title of the Omaha Tribe of Indians and the individual members thereof in the unallotted lands mentioned in § 8 of the Act of Congress of August 7, 1882, was merely one of occupancy and possession.

Nadeau v. Union P. R. Co. 253 U. S. 442, 64 L. ed. 1002, 40 Sup. Ct. Rep. 570; United States v. Rowell, 243 U. S. 464, 61 L. ed. 848, 37 Sup. Ct. Rep.

425.

Congress had authority at any time before the trust patent was issued to the Omaha Tribe of Indians for their tribal lands mentioned in § 8 of the Act of 1882, or even after the same was issued, to make other and different disposition of said unallotted lands, with or without the consent of the Omaha Tribe of Indians; and it subsequently did so under and by virtue of the Acts of Congress of March 3, 1893, and of May 11, 1912.

Brown v. United States, 32 Ct. Cl. 432; Lone Wolf v. Hitchcock, 187 U. S. 553,