local land office to make homestead entry thereof,-Fleischer in the exercise of his preferred right, and McLaren in virtue of his settlement. Fleischer's application was allowed and McLaren's rejected, the local officers being of opinion that Fleischer had the prior and better right. McLaren appealed and the action of the local [480] officers was sustained by the Commissioner of the General Land Office and by the Secretary of the Interior. In due course Fleischer received a patent for the land, and McLaren then brought this suit to have Fleischer declared a trustee for him of the title, and to compel a conveyance in execution of the trust. During the pendency of the suit McLaren died, and it was revived in the name of his personal representative. Fleischer prevailed in the court of first instance and again in the supreme court of the state. 181 Cal. 607, 185 Pac. 967. A writ of certiorari brings the case here. 253 U. S. 479, 64 L. ed. 1023, 40 Sup. Ct. Rep.


The sole question for decision is whether the officers of the Land Department erred in matter of law in holding that, under the Act of May 14, 1880, Fleischer was entitled to thirty days after the land was restored to entry within which to exercise his preferred right of entry. The words of the act are: "Shall be allowed thirty days from the date of such notice to enter said lands." Generally when an existing entry is canceled the land becomes at once open to entry and the act is easily applied. But where, as here, an existing withdrawal prevents the land from becoming open to entry for more than thirty days after the notice of cancela

2 The instructions of June 6, 1905, 33, Land. Dec. 607, contained the following: "Seventh. When any entry for lands embraced within a withdrawal under the first form is canceled by reason of contest, or for any other reason, such lands become subject immediately to such withdrawal and cannot, thereafter, so long as they remain so withdrawn, be entered or other wise appropriated, either by a successful contestant or any other person; but any contestant who gains a preferred right to enter any such lands may exercise that right at any time within thirty days from notice that the lands involved have been released from such withdrawal and made subject to entry."

tion issues, the application to be made of the act is not so obvious, and it becomes necessary to inquire what is intended. Does the act mean that the preferred right to enter the land is lost if not exercised within thirty days after the notice issues, even though the land is not open to entry during that period? Or does it mean that the contestant shall have thirty days during which the land is open to entry within which to exercise his preferred right, and therefore that if the land is not open to entry at the date of the notice, the time during which that situation continues shall be eliminated in computing the thirty-day period? In the practical administration of the act the officers of the Land Department have adopted and given effect to [481] the latter view. They adopted it before the present controversy arose or was thought of; and, except for a departure soon reconsidered and corrected, they have adhered to and followed it ever since.2 Many outstanding titles are based upon it and much can be said in support of it. If not the only reasonable construction of the act, it is at least an admissible one. It therefore comes within the rule that the practical construction given to an act of Congress fairly susceptible of different constructions, by those charged with the duty of executing it, is entitled to great respect, and, if acted upon for a number of years, will not be disturbed except for cogent reasons.3

The case of Edwards v. Bodkin, 161 C. C. A. 488, 249 Fed. 562, and C. C. A. 265 [482] Fed. 621, in which there was a decree of affirmance by this court, 255 U. S. 221, ante, 595, 41 Sup. Ct. Rep. 268, is cited as upthe contest the preferred right may prove futile, for it cannot be exercised as long as the land remains so withdrawn, but should the lands involved be restored to the public domain or a farm-unit plat be approved for the lands and announcement made that water is ready to be delivered, the preference right may be exercised at any time within thirty days from notice of the restoration or the establishment of farm units." And see Wells v. Fisher, 47 Land Dec. 288, for a statement and discussion of the departmental rulings.

3 Brown v. United States, 113 U. S. 568, 571, 28 L. ed. 1079, 1080, 5 Sup. Ct. Rep. 648; Webster v. Luther, 163 U. S. 331, 342, 41 L. ed. 179, 182, 16 Sup. Ct. Rep. 963; United States v. Hammers, 221 U. S. 220, 228, 55 L. ed. 710, 715, 31 Sup. Ct. Rep. 593; Logan v. Davis, 233 U. S. 613, 627, "Should the land embraced in the con- 58 L. ed. 1121, 1128, 34 Sup. Ct. Rep. 685; tested entry be within a first-form with- LeRoque v. United States, 239 U. S. 62, 64, drawal at time of successful termination of | 60 L. ed. 147, 150, 36 Sup. Ct. Rep. 22.

The regulations of May 18, 1916, § 29, 45 Land Dec. 385, 391, contained the following:

June 1, 1921.

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


ON WRIT of Certiorari to the Supreme Court of the State of California to review a judgment which af firmed 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.

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 the opinion of the court: claiming under an entry based on a This case is in all material respects preferred right, but under entries made like McLaren v. Fleischer, 256 U. S. 477, after he had relinquished the entry ante, 1052, 41 Sup. Ct. Rep. 577. It was which he claimed was based thereon. decided in the same way by the state Thus, the observations of the circuit courts and was argued with that case court of appeals respecting preferred here. Therefore the opinion in that will rights were obiter dicta, and, as the de- suffice to dispose of this.

cree of affirmance in this court was put on other grounds, those observations are neither authoritative nor persuasive.

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

Mr. Justice Van Devanter delivered

Judgment affirmed.



(See S. C. Reporter's ed. 484-490.)


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.

heirs of deceased allottee determination by Secretary of Intrust 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, We conclude that the state courts 8.1, that "when any Indian to whom an allotment of land has been made, or may rightly refused to disturb the construc-hereafter be made, dies before the expiration which the officers of the Land De- tion of the trust period and before the is partment had put on the act. Judgment affirmed.

suance 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.)

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

This case is governed by the decision in of both classes of deceased allottees. McLaren v. Fleischer, ante, 1052.

[No. 292.]

Note.-On conclusiveness of decisions

[For other cases, see Indians, VIII. in Digest Sup. Ct. 1908.]

[No. 295.]

Note.-On Federal control over Indi

or findings of the Land Department-ans-see note to Worcester v. Georgia, 8 see note to Whitehill v. Vietorio Land L. ed. U. S. 484.

& Cattle Co. L.R.A.1918D, 597.

256 U. S.

Argued April 27, 1921. Decided June 1,



IN ERROR to the United States Circuit Court of Appeals for the Eighth Circuit to review a judgment which affirmed a judgment of the District Court of the United States for the Eastern District of Oklahoma in favor of defendants 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, 261 Fed. 657.


C. C. A.

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 an action by the United States to recover the possession of a tract of land in Oklahoma, with damages for its detention and use by the defendants for several years. The trial resulted in a judgment for the defendants, which the circuit court of appeals affirmed. C. C. A. 261 Fed. 657. The land was allotted and patented under the Act of March 2, 1889, chap. 422, 25 Stat. at L. 1013, Comp. Stat. § 4207, 3 Fed. Stat. Anno. 2d ed. p. 836, to Pe-te-lon-o-zah, or William Wea, a member of the confederated Wea, Peoria, Kaskaskia, and Piankeshaw Tribes of Indians, as his distributive share of the tribal lands. The patent was dated April 8, 1890, conveyed a fee-simple. title, and imposed a restriction upon alienation for a period of twenty-five 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.

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.

At the trial the United States, to establish the heirship of those in whose interest the action was brought, offered in evidence an exemplified copy of a decision 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 given applied only where the deceased allottee held under a trust patent. The court sustained the objection and no other evidence on the subject was presented by either side. Whether the court erred in excluding the Secretary's determination is the only question reserved at the trial and now presented for decision. It was not claimed that the Secretary proceeded without notice, or without according all who were interested a full hearing, but only that he had not been empowered to determine who were the heirs where the deceased allottee held, as did Wea, under a patent in fee, even though the land was subject to a restriction upon alienation.

Before coming to the acts under which the Secretary of the Interior proceeded, it will be helpful to refer to the modes, 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 This action was commenced January him, or [487] his heirs, in fee, dis20, 1915, during the period of restriction, charged of the trust and free of all and, according to the petition, was charge or encumbrance. The other is brought in the interest of designated In- to issue at once to the allottee a dians who were alleged to be the heirs patent conveying to him the land in at law of Wea, to be entitled to the fee, and imposing a restriction upon possession, and to be members of the its alienation for twenty-five years or confederated tribes, and still under 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.1 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; Heckman v. 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.

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 both classes of deceased allottees, and they further show that in each year since these appropriations began these officers have determined the heirs of hundreds of deceased allottees who held under restricted, as distinguished from trust, allotments. In one year alone the 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.

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2. The fact that the objection to the jurisdiction of the court below might be raised by appeal from the final decree is not, in all cases, a valid objection to the issuance of a writ of prohibition by the Federal Supreme Court at the outset, where a court of admiralty assumes to take lawful jurisdiction. cognizance of matters over which it has no [For other cases, see Prohibition, II. in Digest Sup. Ct. 1908.] States

immunity from suit.

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

thority to entertain a suit brought by priOf course this can be ac-vate 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.

counted 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 appropria-States
tion acts and the reports of the Indian
Bureau were not brought to the atten-
tion 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.

Judgment reversed.

Walsh, Superintendent, etc., et al., Peti-

(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 jurisdiction 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.

Sup. Ct. 1908.]

immunity from suit

ralty 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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immunity from suit admiralty suit against officer.

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 atthe court, nor is any relief asked against such officer individually, the proceedings against him being strictly in his capacity as a public officer.

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

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of state from suit.


gation against them at the suit of individtime and admiralty jurisdiction from liti

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. v. Com. 8 L.R.A. 399; Carr v. State, 11 L.R.A. 370; Beers v. Arkansas, 15 L. ed. U. S. 991, and Hans v. Louisiana, 33 L. ed. U. S. 842.


(For other cases, see Admiralty, I. b, 2, in

Digest Sup. Ct. 1908.]

[No. 25, Original.]

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