MacDougal, 162 Fed. 331, 95 C. C. A. 615, 170 Fed. 529.

The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be annulled without cogent reasons. The officers concerned are usually able men and masters of the subject. Not infrequently they are the draftsmen of the laws they are afterwards called upon to interpret. In the present case the record shows, and it is a fact of which this court will take notice, that the Act of March 3, 1893, was drafted by the officials of the Department of the Interior.

United States v. Winona & St. P. R. Co. 15 C. C. A. 96, 32 U. S. App. 274, 67 Fed. 948; United States v. Cerecedo Hermanos y Compañia, 209 U. S. 337, 52 L. ed. 821, 28 Sup. Ct. Rep. 532; United States v. Hammers, 221 U. S. 220, 55 L. ed. 710, 31 Sup. Ct. Rep. 593; United States v. Healey, 160 U. S. 136, 40 L. ed. 369, 16 Sup. Ct. Rep. 247; Robertson v. Downing, 127 U. S. 607, 32 L. ed. 269, 8 Sup. Ct. Rep. 1328; Brown v. United States, 113 U. S. 568, 571, 28 L. ed. 1079, 1080, 5 Sup. Ct. Rep. 648; United States v. Burlington & M. River R. Co. 98 U. S. 334, 25 L. ed. 198; Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 112 U. S. 418, 28 L. ed. 794, 5 Sup. Ct. Rep. 208; United States v. Barber, 20 C. C. A. 616, 41 U. S. App. 424. 74 Fed. 483; Grossett v. Townsend, 30 C. C. A. 457, 56 U. S. App. 713, 86 Fed. 908; United States v. Alabama G. S. R. Co. 142 U. S. 615, 35 L. ed. 1134, 12 Sup. Ct. Rep. 306; Schell v. Fauché, 138 U. S. 562, 34 L. ed. 1040, 11 Sup. Ct. Rep. 376; United States v. Johnston, 124 U. S. 236, 31 L. ed. 389, 8 Sup. Ct. Rep. 446; United States v. Philbrick, 120 U. S. 52, 30 L. ed. 559, 7 Sup. Ct. Rep. 413; United States v. Hill, 120 U. S. 169, 30 L. ed. 627, 7 Sup. Ct. Rep. 510; Peabody v. Stark (Peabody v. Draughn) 16 Wall. 240, 21 L. ed. 311; Five Per Cent Cases, 110 U. S. 471, 28 L. ed. 198, 4 Sup. Ct. Rep. 210; Hahn v. United States, 107 U. S. 402, 27 L. ed. 527, 2 Sup. Ct. Rep. 494; United States v. Pugh, 99 U. S. 265, 25 L. ed. 322; Hastings & D. R. Co. v. Whitney, 132 U. S. 357-366, 33 L. ed. 363-367, 10 Sup. Ct. Rep. 112; United States v. Moore, 95 U. S. 760-763, 24 L. ed. 588, 589.

The Act of Congress of May 11, 1912, repeals all parts of the Acts of Congress of August 7, 1882, and March 3, 1893,

| so far as said acts relate to the allotment of the unallotted tribal lands, and said act provides a comprehensive and complete plan fully and completely to dispose of all of the unallotted lands of the Omaha Tribe of Indians, which is entirely different from the provisions for allotment of these lands under the Acts of 1882 and 1893.

United States v. Tynen, 11 Wall. 88, 20 L. ed. 153; King v. Cornell, 106 U. S. 395, 27 L. ed. 60, 1 Sup. Ct. Rep. 313; Murphy v. Utter, 186 U. S. 95, 105, 46 L. ed. 1070, 1076, 22 Sup. Ct. Rep. 776; The Habana, 175 U. S. 677, 685, 44 L. ed. 320, 323, 20 Sup. Ct. Rep. 290; 11 Enc. U. S. Sup. Ct. Rep. 98; 36 Cye. 1082; Minnesota & M. Land & Improv. Co. v. Billings, 50 C. C. A. 70, 111 Fed. 972.

The Act of Congress of May 11, 1912, is mandatory and peremptory upon the Secretary of the Interior to sell the unallotted lands and to carry out the provisions of the act, and said act took effect on May 11, 1912, the day of its approval, and needed no promulgation to give it operation.

36 Cyc. 1159; Reiche v. Smythe, 13 Wall. 162, 20 L. ed. 566; Moore v. American Transp. Co. 24 How. 1, 16 L. ed. 674; United States v. Saunders, 22 Wall. 492, 22 L. ed. 736; Brewer v. Blougher, 14 Pet. 178, 10 L. ed. 408; Rock Island County v. United States, 4 Wall. 435, 18 L. ed. 419; Galena v. Amy (Galena v. United States) 5 Wall. 705, 18 L. ed. 560; Boswell v. Big Vein Pocahontas Coal Co. 217 Fed. 822; 8 Ops. Atty. Gen. 546; Floyd's Case, 2 Ct. Cl. 429; Ralston v. Crittenden, 3 McCrary, 332, 10 Fed. 254, 13 Fed. 508; New York v. Furze, 3 Hill, 615; Minor v. Mechanics Bank, 1 Pet. 46, 64, 7 L. ed. 47, 55, and note; Mason v. Fearson, 9 How. 248, 13 L. ed. 125; Livingston v. Tanner, 14 N. Y. 64; Knowlton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747; International R. Co. v. United States, 151 C. C. A. 333, 238 Fed. 317; Hills v. F. D. McKinniss Co. 188 Fed. 1012; Merchants' Nat. Bank v. United States, 130 C. C. A. 548, 214 Fed. 200; Harper

Victor, 129 C. C. A. 423, 212 Fed. 903; United States v. Missouri P. R. Co. 130 C. C. A. 5, 213 Fed. 169; United States v. 99 Diamonds, 2 L.R.A. (N.S.) 185, 72 C. C. A. 9, 139 Fed. 961; Matthews v. Zane, 7 Wheat. 164, 5 L. ed. 425; Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522.

The United States is not estopped by


its conduct from urging that the Act of May 11, 1912, operated to repeal the Acts of 1882 and 1893.

Mutual L. Ins. Co. v. Hill, 193 U. S. 551, 48 L. ed. 788, 24 Sup. Ct. Rep. 538; Balch v. Haas, 20 C. C. A. 151, 36 Ú. S. App. 693, 73 Fed. 974; Thompson v. Maxwell Land Grant & R. Co. 168 U. S. 451, 42 L. ed. 539, 18 Sup. Ct. Rep. 121; Hastings v. Foxworthy, 45 Neb. 676, 34 L.R.A. 321, 63 N. W. 955; Iowa C. R. Co. v. Walker, 167 C. C. A. 24, 255 Fed. 648; Messenger v. Anderson, 255 U. S. 436, 414, 56 L. ed. 1152, 1156, 32 Sup. Ct. Rep. 739; Lewers & Cooke v. Atcherly, 222 U. S. 285, 295, 56 L. ed. 202, 205, 32 Sup. Ct. Rep. 94; Hertz v. Woodman, 218 U. S. 205, 54 L. ed. 1001, 30 Sup. Ct. Rep. 621; Jones v. Peebles, 130 Ala. 269, 30 So. 564; Thomas v. Blair, 196 U. S. 637, 49 L. ed. 630, 25 Sup. Ct. Rep. 797; Ransom v. Stanberry, 22 Iowa, 334; McQueen v. Bank of Edgemont, 20 S. D. 378, 107 N. W. 208; Jasper County Electric R. Co. v. Curtis, 154 Mo. 10, 55 S. W. 222; McClanahan v. Payne, 86 Mo. App. 284; Carnahan v. Brewster, 2 Neb. (Unof.) 366, 96 N. W. 590; United States v. La Chappelle, 81 Fed. 152.

The assignments were to be approved by the Secretary of the Interior, be evidenced by certificates, and be final and conclusive.

In execution of the purposes of the treaty, Congress passed an act August 7, 1882 (22 Stat. at L. 341, chap. 434), by which the Secretary was authorized to allot the portion of the Reservation lying east of the Sioux City & Nebraska Railroad in severalty, to a head of a family a quarter section (160 acres); to each single person over eighteen of a section; to each orphan child under eighteen

of a section; and to each other person under that age of a section. The issue of patents was provided for, the lands to be held in trust for twenty-five years for the sole use and benefit of the respective allottees. And it was provided that the residue of the lands should be patented to the tribe, but held in trust for twenty-five years, then to be conveyed in fee, discharged of the trust. From these lands, however, it was provided that allotments should bo made and patented to each Omaha child who might be born prior to the expiration of the twenty-five-year trust period.

Under the act, and prior to July 11, Mr. Justice McKenna delivered the 1884, allotments were made to 954 memopinion of the court:

Suit to adjudge Hiram Chase, Jr., a member of the Omaha Tribe of Indians, and to have a right to select 80 acres for an allotment out of the lands of the Omaha Reservation, the selection having been denied by the Secretary of the Interior.

The right of selection depends upon the effect of certain treaties between the Omaha Tribe and the United States, and certain acts of Congress.

The treaties were made March 16, 1854, and March 6, 1865, 10 Stat. at L. 1043, 14 Stat. at L. 667, and by them the Indians ceded certain lands to the United States and certain other lands were retained, constituting the Reservation with which this suit is concerned, and of which the lands sought to be allotted are a part.

[5] It was expressed in the Treaty of 1865 to be the desire of the Indians to abolish the tenure in common by which they held their lands, and to acquire tracts in severalty of 160 acres to heads of families and 40 acres to each male person of eighteen years and upwards. And it was provided that the whole of the lands so assigned or unassigned should constitute and be known as the Omaha Reservation.

bers of the tribe, and patents issued therefor. No patent was issued to the tribe as provided.

By the Indian Appropriation Act passed March 3, 1893 (27 Stat. at L. 630, chap. 209), and expressing itself to be an amendment to the Act of 1882, the Secretary of the Interior was authorized, with consent of the Indian tribe, to allot in severalty ". to each Indian woman and child of said tribe born since allotments of land were [6] made in severalty to the members thereof under the provisions of said act [1882], and now living, one eighth of a section of the residue lands held by that tribe in common, instead of one sixteenth of a section, as therein provided, and to allot in severalty to each allottee under said act, now living, who received only one sixteenth of a section thereunder, an additional one sixteenth of a section

of such residue lands. . . ."

Hiram Chase was not born until after

the Act of 1893 was passed, and the question is whether he is entitled to an allotment under it. The government contends to the negative, basing the contention upon an act passed May 11, 1912 (37 Stat. at L. 111, chap. 121), which, it is the further contention, re

The district court yielded to the contention and dismissed the bill, and its decree was affirmed by the circuit court of appeals. C. C. A. —, 261 Fed.


Against this action of the courts appellant asserts error, and insists that it and the contention of the government are based on an underestimate of his rights, and upon a wrong construction of the Act of 1893.

pealed the Act of 1893, and cut off the, Cherokee Nation v. Hitchcock, 187 U. S. right of allotment. 294, 47 L. ed. 183, 23 Sup. Ct. Rep. 115. In those cases the relation of the individual Indian to the tribal property is explained, and also the power of Congress over that property and the tribes. In the recent case of United States v. Chase, 245 U. S. 89, 62 L. ed. 168, 38 Sup. Ct. Rep. 24, we had occasion to consider the Reservation here involved and the effect of article 4 of the Treaty of 1865, relied on by the appellant, and decided that its purpose was to do no "more than individualize the existing tribal right of occupancy," and that it left "the fee in the United States," and left "the United States and the tribe free to take such measures for the ultimate and permanent disposal of the lands, including the fee, as might become essential or appropriate in view of changing conditions, the welfare of the Indians, and the public interests."

First as to his rights. The contention is that appellant had a vested right to an allotment "under the treaties and acts of Congress as they existed at the time when" the allotment was "selected and claimed," and this whether the Act of 1912 repealed the Act of 1893, or was subordinate to or complementary of its provisions. In support of the contention appellant recites the various provisions of the Treaty of 1865 and the Acts of 1882 and 1893, and insists that they are clear and direct investments of irrevocable rights in pursuance of "a contractual obligation based upon ample consideration." In specification the Treaty of 1854 is adduced as having "ceded to the United States a portion of the Reservation described in article 1," and "by article 6 individual Indians were to receive allotments [7] of land." This purpose, is the further contention, was executed by the Treaty of 1865, by which the Indians "did cede, sell, and convey to the United States' a part of their Reservation, and among other provisions there was one, expressed in article 4 of the treaty, for allotments to be "for the exclusive use of themselves [the Indians] their heirs and descend ants."

Of the obligations thus incurred, it is the insistence, § 8 of the Act of 1882 was the fulfilment, and at the expiration of the trust period the Reservation (residue) was to be conveyed to the tribe "in fee, discharged of the trust, and free of all charges or encumbrances whatsoever," and that, therefore, the Act of 1912 which directed the sale of the unallotted lands of the Reservation was in contravention of the treaties and the rights to allotments thereunder, and under the Acts of Congress of 1882 and 1893, supra.

The contention is one that has often been made in this court and rejected as often as made. Gritts v. Fisher, 224 U. S. 640, 56 L. ed. 928, 32 Sup. Ct. Rep. 580; Choate v. Trapp, 224 U. S. 665, 56 L. ed. 941, 32 Sup. Ct. Rep. 565;


The case dealt with assignments under article 4, but [8] its principle necessarily applies to a mere right under the Act of 1882. Lone Wolf v. Hitchcock, 187 U. S. 557, 47 L. ed. 301, 23 Sup. Ct. Rep. 216; Sizemore v. Brady, 235 U. S. 441, 59 L. ed. 308, 35 Sup. Ct. Rep. 135; Cherokee Intermarriage Cases, 203 U. S. 76, 51 L. ed. 96, 27 Sup. Ct. Rep. 29; Wallace v. Adams, 204 U. S. 415, 51 L. ed. 547, 27 Sup. Ct. Rep. 363; Stephens v. Cherokee Nation, 174 U. S. 445, 43 L. ed. 1041, 19 Sup. Ct. Rep. 722.

The next contention of appellant is that he acquired a vested right under the Acts of 1882 and 1893, assuming the latter act did not repeal the other, and we are brought to the Act of 1912. By the act the Secretary is "authorized to cause to be surveyed, if necessary, and appraised, in such manner as he may direct, in tracts of 40 acres each, or as nearly as to the Secretary may seem practicable, and, after such survey and appraisement, to sell and convey, in quantities not to exceed 160 acres to any one purchaser, all the unallotted lands on the Omaha Indian Reservation, in the state of Nebraska, except such tracts as are hereinafter specifically reserved; Provided, that the said land shall be sold to the highest bidder under such regulations as the Secretary of the Interior may prescribe, but no part of said land shall be sold at less than the appraised value thereof . . ." There is provision for the reservation from sale of certain tracts with which this case is not otherwise concerned except as it shows complete delegation of administration to the Secretary. Appel

lant's contention is that the act is neither directory nor mandatory; it is permissive only, and has been, it is said, so construed by the Secretary. There are cases, however, that decide that an officer "authorized" is an officer commanded in a matter of public concern. Besides, there are words of direction in the act, and they are necessary to its purposes. But if it [9] may be assumed there is a discretion in the Secretary, he has exercised it against the appellant by denying his right to an allotment, presumably in reservation of the land for sale, as provided in the act. And a sale is provided for,-a sale of the unallotted lands mentioned in § 8 of the Act of 1882, and all of them. We agree, therefore, with the circuit court of appeals, that it (the Act of 1912) "covers so completely the subject of the disposition" of those lands "that it must be held to have repealed that portion of the Act of 1882 which authorized allotments to Omaha children during the trust period." And, again quoting the court of appeals, "the Secretary of the Interior, of course, could not allot the unallotted lands under the Act of 1882, and also sell them under the Act of 1912; nor could he allot the unallotted lands and at the same time make the reservations which he is commanded to make by $ 2 of the latter act. It is so plain that both acts cannot be carried out that it is unnecessary to dis


that question." It supersedes, therefore, that act, though it contains no repealing words. United States v. Tynen, 11 Wall. 88, 20 L. ed. 153; King v. Cornell, 106 U. S. 395, 27 L. ed. 60, 1 Sup. Ct. Rep. 313; The Habana, 175 U. S. 677, 685, 44 L. ed. 320, 323, 20 Sup. Ct. Rep. 290.

Upon the return of the case the United States set up as a defense the Act of 1912, presenting the questions here involved.

Appellant contends that the United States "having relied at the first trial 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 [10] having failed in that defense, cannot, upon the second trial, abandon that defense and insist that the Act of May 11, 1912, repealed the Act of 1882."

The proposition has a relevant and conclusive application when a judgment of a former action is pleaded, but limited application when urged in the same suit; it expresses a practice only, and useful as such, but not a limitation of power. Messenger v. Anderson, 225 U. S. 436, 56 L. ed. 1152, 32 Sup. Ct. Rep. 739.

The District Court and the Circuit Court of Appeals, having the power and exercising it, entertained the defense of the Act of 1912, estimated it, and decided it conclusive against appellant's right to an allotment. As we have seen, there was no error in that ruling, and the decree of the Circuit Court of Appeals is affirmed.

MARY GILPIN, a Minor, by Her Next Friend, Samuel Gilpin, Appt.,



(See S. C. Reporter's ed. 10, 11.)

This case is governed by the decision in Chase v. United States, ante, 801.

[No. 243.]

11, 1921.

This appeal is a review of the second trial of the case. In the first trial the Argued March 21, 22, 1921. Decided April district court, on motion of the United States, dismissed the bill. Upon appeal the circuit court of appeals reversed the district court, and remanded the case to that court "with instructions to permit the defendant (United States) to answer, if so advised." 152 C. C. A. 21,

238 Fed. 888.

1 Anne Arundel County v. Duckett, 20 Md. 468, 83 Am. Dec. 557; Flynn v. Canton Co. 40 Md. 312, 319, 17 Am. Rep. 603; Magaha v. Hagerstown, 95 Md. 62, 51 Atl. 832: Rankin v. Buckman, 9 Or. 253, 262; Rock Island County v. United States, 4 Wall. 435, 18 L. ed. 419; Maryland use of Pryor v. Miller, 114 C. C. A. 495, 194 Fed. 775; United States v. Cornell S. B. Co. 69 C. C. A. 603, 137 Fed. 455.

APPEAL from the United States Cir

Court of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the District Court for the District of Nebraska, dismissing the bill in a suit to secure an allotment of land in the Omaha Indian Reservation. Affirmed.

Note. As to rights and status of Indians-see note to Worcester v. Georgia, 8 L. ed. U. S. 484.

On repeal of statutes by implication, generally-see notes to State v. Massey, 4 L.R.A. 309, and United States Henderson, 20 L. ed. U. S. 235.


See same case below, C. C. A. 261 Fed. 841.

The facts are stated in the opinion. Mr. John Lee Webster argued the cause, and, with Mr. Hiram Chase, filed a brief for appellant.

Assistant Attorney General Garnett
argued the cause, and, with Special
Assistant to the Attorney General Under-
wood, filed a brief for appellee.

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

For contentions of counsel, see their
briefs as reported in Chase v. United
States, ante, 801.

pressly required in writing, no claim shall be made therefor, such contractors may recover from the government for the extra work (including the loss to them while waiting for the government engineer to locate such work) of excavating limestone rock and limestone bedrock in such channel, pursuant to the order of the govern ment engineer who, over the contractors' protest that such materials were not included in the contract, and in opposition to their request for the fixing of an extra price, insisted upon the removal of such materials, stating that if the contractors did not remove the same they would be declared in default, that the work would be taken from them, be done and charged to them, and be paid for from the retained percentages for the work already performed, and if the percentages were not sufficient for that purpose they and their

Mr. Justice McKenna delivered the bondsmen would be proceeded against, opinion of the court:

since the conduct of such officer was repellent of appeal or of any alternative but submission to his orders, with its conse[For other cases, see United States, VI. b, in Digest Sup. Ct. 1908.]


This case was argued and submitted with the Chase Case, No. 242 [256 U. S. 1, ante, 801, 41 Sup. Ct. Rep. 417]. It is a suit by Mary Gilpin, by her next friend, to have adjudged to her a right to an allotment of lands in the Omaha Reservation, she being an Omaha In- Argued March 22 and 23, 1921. Decided dian. The right is based on the same treaties and acts of Congress as those

passed upon in the Chase Case, and the

effect of the Act of May 11, 1912 [37
Stat. at L. 111, chap. 121], repealing
the acts that of August 7, 1882 [22
Stat. at L. 341, chap. 434], and that of
March 3, 1893 [27 Stat. at L. 630, chap.

[No. 253.]

April 11, 1921.

APPEAL from the Court of Claims to

review a judgment against the United States for extra work under a government contract. Affirmed. See same case below, 54 Ct. Cl. 119. The facts are stated in the opinion. Assistant Attorney General Davis arThe decree of the district court was adverse to her right, and this decree gued the cause, and, with Special Assistwas affirmed by the circuit court of ap-ant to the Attorney General Hearn, filed peals. C. C. A. —, 261 Fed. 841.

For the reasons stated in the opinion in the Chase Case, the decree of the Circuit Court of Appeals is affirmed.



L. P. & J. A. SMITH.

(See S. C. Reporter's ed. 11-17.)

United States contracts extra work.
Despite provisions in a contract
with the United States for excavating
"sand, gravel, and boulders, all in unknown
quantities," from a ship channel, which
make final the decision of the government
engineer officer in charge as to quality
and quantity of work, require the contrac-
tors to observe his instructions, and pro-

vide that modifications of the work in
character and quality, whether of labor or
materials, are to be agreed upon in writ-
ing, and, unless so agreed upon or ex-

a brief for appellant:

Whenever the contract covering the improvement to be made contains provisions relating to change of project and claims for extra work which are, in effect, the same as the provisions in the contract between the parties here, then, in the event such provisions have not been complied with, payment for extra work performed can be secured only in the following cases:

(a) When such provisions have been waived by an agent having the power to waive the same.

Barlow v. United States, 184 U. S. 123; 46 L. ed. 463, 22 Sup. Ct. Rep. 468.

(b) When there has been a breach of warranty by the government relating to a matter necessary to be done in the performance of the contract, by reason of which breach the extra work is required to be performed.

Christie v. United States, 237 U. S. 231, 59 L. ed. 933, 35 Sup. Ct. Rep. 565. 256 U. S.


« ForrigeFortsett »