Appeals from the Circuit Court of the United States for the Eastern District of Oklahoma.

These were seventeen suits in equity by the United States against James P. Allen and others, N. E. Patterson and others, Charles E. McPherren and others, F. B. Severs and others, Wilson Bruton and others, Norman Pruitt and others, James Jefferson and others, J. J. Creamer and others, Felix R. Phillips and others, J. M. Dickenson and others, James P. Allen and others, Walter F. Nichols and others, John F. McClellan and others, Alfred F. Goat and others, George C. Crump and others, C. J. Benson and others, and J. O. Davis and others. Decrees for defendants (171 Fed. 907), and complainant appeals. Reversed.

Charles W. Russell, Asst. Atty. Gen., for the United States.

S. T. Bledsoe, George S. Ramsey, B. B. Blakeney, James E. Humphrey, Joseph C. Stone, and Robert L. Owen, pro se (A. W. Clapp, O. L. Rider, Kenneth S. Muchison, Wm. M. Matthews, C. L. Thomas, N. A. Gibson, Robert J. Boone, George C. Butte, Garfield Johnson, T. S. Cobb, Crump, Rogers & Harris, Willmott & Wilhoit, W. L. McCann, Thomas H. Owen, W. B. Crossan, and Davis & Davis, on the briefs), for appellees.

Before HOOK and ADAMS, Circuit Judges, and AMIDON, District Judge.

AMIDON, District Judge. The lands of the Five Civilized Tribes were allotted in severalty to their members, subject to express restrictions against their alienation for specified periods of time. The bills in these suits charge that many thousand conveyances have been made in violation of those restrictions, and the suits have been brought by the United States to have some 4,000 of these conveyances declared to be void and canceled of record. The restrictions against alienation arise out of numerous statutes and treaties, and vary according to such matters as the amount of Indian blood of the allottee, whether the land was a homestead, and whether it was held as an original allotment or by inheritance. The grantees under the conveyances are classified according to some distinct feature of the restriction upon alienation, and all grantees coming under each class are combined as defendants in a single suit. The allottees are not made parties either as plaintiff or defendant, and it is not charged in the bills that the conveyances were obtained by fraud, misrepresentation, or for an inadequate consideration. They are assailed solely upon the ground that they were made in violation of the restriction which Congress imposed upon the alienation of the allotments.

These bills were demurred to upon numerous grounds. The demurrers were sustained by the trial court for the reason (1) that the complainant has not such an interest in the matters involved as entitles it to maintain the action; (2) that the allottees are necessary parties, and that there is therefore a defect of parties; (3) that the bills are multifarious. A decree was entered in each case dismissing the bill upon the merits, to review which is the object of this appeal.

The consideration of the case will be simplified if it is understood

at the outset that the plan of the government, in dissolving the five civilized nations and distributing their lands in severalty, was not simply a real estate transaction. It was a great governmental project, having for its object the social and industrial elevation of the Indians. For the accomplishment of that result there were two main reliances: (1) The added incentive which comes from the individual ownership of property as distinguished from its joint or tribal ownership; (2) the continuance of that ownership for such a period as should bring the Indian into a state where he could safely be trusted to protect his interests in the sharp competition with members of the white race. During all the years that this scheme was in process of execution, the Indian lands, like the Indians themselves, were subject to the supreme authority of the national government. The United States proceeded, in so far as it could, with the consent of the Indians. That, however, it did as a matter of wise governmental policy, and not in obedience to any constitutional restriction. Whenever it encountered the obstinate opposition of the Indians to its plans, it did not hesitate to set aside their will and substitute its own authority. The title to these lands was in the Indian tribes, and the formal conveyances to the individual members were made by tribal officers. All this, however, was done in obedience to the regulations of the national government. To attempt to cramp these large governmental measures to the narrow limits of a real estate transaction is to deprive them of their distinctive character. And yet much of the argument contained in the briefs, as well as the opinion of the trial court, treats these measures as a matter between grantor and grantee, and, wherever they do not fit the private law of real property, they are declared to be ineffective.

The same observations may be made as to the statement of the relation between the national government and the Indians being that of guardian and ward. These are familiar terms in decisions dealing with Indian matters. They are, however, words of illustration, and not of definition, and to attempt to reason from the private law of guardian and ward to the measures of the federal government in dealing with the Five Civilized Tribes leads only to confusion and the subversion of the real scheme of government.

Turning now to the objections which were made and sustained by the trial court, has the federal government such an interest as entitles it to maintain these suits? It will be conceded at the outset that it has no legal or equitable estate in the allotments; and if such an estate is necessary, it has no standing in court. It is, however, too plain for controversy, that the federal government imposed restrictions upon the alienation of these allotments. That restriction was its main reliance for the social and industrial elevation of the Indians. Has it a standing in court for the enforcement of its policy? To say that it has not is to make the restraints upon alienation a mere brutum fulmen. Shall the Indians who are intended. to be restrained, be made the sole agency for the enforcement of the restraint? If so, the act of Congress is nothing more than a benevolent admonition. If they are unable to resist the allurements by which they are enticed into making the conveyances, will they be expected to undertake the difficult and protracted litigation necessary to set aside their own acts?

To ask these questions is to answer them. Congress intended that both the Indians and the members of the white race should obey its limitations. A transfer of the allotments is not simply a violation of the proprietary rights of the Indian. It violates the governmental rights of the United States. If these Indians may be divested of their lands, they will be thrown back upon the nation a pauperized, discontented, and, possibly, belligerent people. To prevent such results the United States may invoke the aid of its courts. That question was put to rest in the decision of In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092. When a suit in equity is an appropriate method for the enforcement of a governmental policy, the national government may maintain such a suit. The present case presents a right of the nation which has been violated and cannot be redressed in any other way than by a suit in equity. If its interest in its measures does not give it a standing in court, then the violation of those measures must go wholly without redress. Governmental action cannot be thus paralyzed. If the aid of the court is an appropriate remedy, the government has the same right to proceed in that manner that it has to use executive power where that power is an appropriate agency for the accomplishment of its purposes.

The Supreme Court of the United States in the case which carried the emancipation of the Indians and their property to the fullest extent, expressly recognizes the right of the government to enforce, by appropriate action in court, the restraints which it imposed upon the alienation of Indian allotments. The court says in the Heff Case, 197 U. S. 489, 509, 25 Sup. Ct. 512, 49 L. Ed. 848:

"Undoubtedly an allottee can enforce his right to an interest in the tribal or other property (for that right is expressly granted), and equally clear is it that Congress may enforce and protect any condition which it attaches to any of its grants. This it may do by appropriate proceedings in either a national or state court. * Many a tract of land is conveyed with conditions subsequent. A minor may not alienate his lands; and the proper tribunal may at the instance of the rightful party enforce all restraints upon alienation."

Under the general allotment act of 1887, a provisional patent was issued to the allottee, and the naked legal title retained in the government for the period of 25 years. In the case of the Five Civilized Tribes, this plan was modified to the extent of granting the legal title to the Indian, but imposing upon it a restraint against alienation. These plans present simply differences of method. The object sought in each case was the same, namely, to clothe the Indian with such title to the property as seemed best calculated to encourage his industrial development, and yet accompany this grant with such a restriction as would prevent the main reliance of the government for the industrial betterment of the Indian from being defeated by the alienation of the property. The right of the government to invoke the aid of its court to prevent the defeat of its object is the same under the one statute as the other. Its right to maintain a suit to prevent the defeat of its allotment scheme under the general law of 1887, is fully sustained in United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. Ed. 532. It is contended, however, in the present case, that that decision 179 F.-2

is not controlling because there the government held the legal title to the property for a period of 25 years in trust for the Indian, whereas here the legal title has been conveyed to the Indian, but subject to a restraint upon alienation. The decision in the Rickert Case does not rest upon a principle of the law of real property, but upon the power of the nation to enforce its own measures. At page 444 of the opinion 188 U. S., at page 478 of 23 Sup. Ct. (47 L. Ed. 532), the right of the government to maintain the suit is declared to rest, not upon the fact that it held the title to the property, but, to use the language of the court, upon "the injurious effect of the assessment and taxation complained of upon the plans of the government with reference to the Indians." In either case it is not a right of property which is enforced, but a plan of government. The Supreme Court there declares the right of the nation to maintain a suit for the enforcement of its policy in regard to Indian allotments to be too plain for argument. 188 U. S. 444, 23 Sup. Ct. 478, 47 L. Ed. 532. This statement is approved in McKay v. Kalyton, 204 U. S. 458, 467, 27 Sup. Ct. 346, 51 L. Ed. 566.

But we are not left to inference from the general scheme of the national government in its dealings with the Five Civilized Tribes, to find authority for the maintenance of these suits. They are authorized by express act of Congress. The last paragraph of section 6 of the act of May 27, 1908, c. 199, 35 Stat. 312, is a saving clause. Viewed solely in that light it declares the belief and intent of Congress that the rights which it saves, exist. It does not, however, stop with the language which saves the rights specified, but proceeds to declare the conditions upon which those rights shall be exercised by stating that the suits shall be brought upon the recommendation of the Secretary of the Interior, and without cost to the allottees. It thus passes beyond the scope of a saving clause, and uses language which is consistent only with the grant of the power to institute the suits. When this language is read in connection with the earlier part of the section appropriating $50,000 to cover the expenses incurred by the Attorney General in this litigation, the intent of Congress, that the power to maintain the suits is granted, and its purpose that such suits should be instituted in proper cases, is clearly manifest. It is incredible that the purpose of Congress was simply to provide for the institution of suits to obtain a judicial determination as to whether the power of the government to maintain such suits existed. Congress by its own declaration could have placed that question beyond controversy, and the courts ought not to give a meaning to its acts which would make of them a mere squandering of public funds. That which is implied is as much a part of a statute as that which is expressed. City of Little Rock v. U. S., 103 Fed. 418, 43 C. C. A. 261; United States v. Babbit, 1 Black, 55, 17 L. Ed. 94. Implications, far less clear than the power to maintain these suits, have been enforced by the courts. Gelpcke v. City of Dubuque, 1 Wall. 220, 17 L. Ed. 530; Postmaster General v. Early, 12 Wheat. 136, 146, 6 L. Ed. 577; Telegraph Company v. Eyser, 19 Wall. 419, 22 L. Ed. 43; Great Northern Railway Co. v. United States, 155 Fed. 945, 84 C. C. A. 93. The trial court held that because a statute conferring the jurisdiction here in question by more direct language was not enacted, though brought to the

attention of the committee having the present act in charge, that this amounted to an expression of the legislative intent that the right itself either did not exist or was so doubtful that the only proper procedure was to make provision for a judicial determination of its existence. Courts can find the intent of the Legislature only in the acts which are in fact passed, and not in those which are never voted upon in Congress, but which are simply proposed in committee. It is not contended that the bill referred to was ever brought to a vote in Congress and rejected. It was simply one of the measures which was under consideration at the time the act of May 27, 1908, was passed. To hold that such facts can be looked to for the purpose of narrowing the effect of a statute actually passed, would be to invent a new and dangerous canon of statutory interpretation.

Much of the briefs is devoted to arguments deduced solely from the fact that Congress has conferred national citizenship upon the Indians. These arguments have been frequently presented to the courts, but so far as we are aware, they have never defeated the exercise of national authority over the Indian except in the Heff Case, 197 U. S. 488, 25 Sup. Ct. 506, 49 L. Ed. 848. That decision, however, as now explained by the Supreme Court in United States v. Celestine, 215 U. S. 278, 30 Sup. Ct. 93, 54 L. Ed. —, lends no support to the defendants. The case arose under the general allotment act of 1887. That statute provides that, upon the completion of the allotments, the Indians "shall have the benefit of, and be subject to the laws, both civil and criminal, of the state." Mr. Justice Brewer carries this feature of the statute through his opinion at every step as the basis of the decision of the court. He has now removed all possible doubt on the subject by his opinion in the Celestine Case, where he expressly states that the Heff opinion rests upon the fact that under the general allotment act Congress has, by direct provision, entirely renounced its own authority over the Indians, and subjected them to the laws of the state, both civil and criminal. The decision of the Heff Case simply gives effect to this positive declaration of the legislative intent. In its dealings with the Five Civilized Nations, Congress has been at great pains to indicate a different purpose. Here it has from time to time, down to the organic act admitting Oklahoma and the provisions which it insisted should be embodied in the Constitution of that state, reserved to itself express authority to pass such laws with respect both to the Indians and their lands, as shall in its judgment seem wise. In the present case, though it conferred citizenship upon the Indians, it accompanied its grant of the allotments to them with an express provision against their alienation. The difference between the present case and the Heff Case is this: In the former case Congress expressly renounced its own authority over the Indians, and subjected them to the laws, both civil and criminal, of the state. Here Congress, with equal explicitness, has imposed a restraint upon the alienation of allotments. It is as much the duty of the courts to give effect to the legislative intent in the present case as in the former. See, also, U. S. v. Sutton, 215 U. S. 291, 30 Sup. Ct. 116, 54 L. Ed.

The grant of citizenship to the members of the Five Nations was intended for their protection, and not to strip them of the protection of