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local land office to make homestead en- tion issues, the application to be made try thereof,-Fleischer in the exercise of the act is not so obvious, and it beof his preferred right, and McLaren in comes necessary to inquire what is invirtue of his settlement. Fleischer's ap-tended. Does the act mean that the preplication was allowed and McLaren's ferred right to enter the land is lost if rejected, the local officers being of opin- not exercised within thirty days after ion that Fleischer had the prior and bet- the notice issues, even though the land ter right. McLaren appealed and the ac- is not open to entry during that period ? tion of the local [480] officers was sus Or does it mean that the contestant tained by the Commissioner of the Gen- shall have thirty days during which the eral Land Office and by the Secretary of land is open to entry within which to the Interior. In due course Fleischer re-exercise his preferred right, and thereceived a patent for the land, and Mc- fore that if the land is not open to enLaren then brought this suit to have try at the date of the notice, the time Fleischer declared a trustee for him of during which that situation continues the title, and to compel a conveyance in shall be eliminated in computing the execution of the trust. During the thirty-day period? In the practical adpendency of the suit McLaren died, and ministration of the act the officers of it was revived in the name of his per- the Land Department have adopted and sonal representative. Fleischer pre- given effect to [481] the latter view. vailed in the court of first instance and They adopted it before the present conagain in the supreme court of the state. troversy arose or was thought of; and, 181 Cal. 607, 185 Pac. 967. A writ of except for a departure soon reconsidered certiorari brings the case here. 253 U. and corrected, they have adhered to and S. 479, 64 L. ed. 1023, 40 Sup. Ct. Rep. followed it ever since.2

. Many outstand482.

ing titles are based upon it and much The sole question for decision is can be said in support of it. If not whether the officers of the Land Depart-the only reasonable construction of the ment erred in matter of law in holding act, it is at least an admissible one. It that, under the Act of May 14, 1880, therefore comes within the rule that the Fleischer was entitled to thirty days practical construction given to an act after the land was restored to entry of Congress fairly susceptible of differwithin which to exercise his preferred ent constructions, by those charged with right of entry. The words of the act the duty of executing it, is entitled to are: “Shall be allowed thirty days from great respect, and, if acted upon for a the date of such notice to enter said number of years, will not be disturbed lands.” Generally when an existing en- except for cogent reasons.3 try is canceled the land becomes at once The case of Edwards v. Bodkin, 161 open to entry and the act is easily ap-C. C. A. 488, 249 Fed. 562, and C. C. plied. But where, as here, an existing A. -,265 [482] Fed. 621, in which withdrawal prevents the land from be- there was a decree of affirmance by coming open to entry for more than this court, 255 U. S. 221, ante, 595, thirty days after the notice of cancela- | 41 Sup. Ct. Rep. 268, is cited as up

2 The instructions of June 6, 1905, 33, the contest the preferred right may prove Land. Dec. 607, contained the following: futile, for it cannot be exercised as long

"Seventh. When any entry for lands em- as the land remains so withdrawn, but braced within a withdrawal under the first should the lands involved be restored to the form is canceled by reason of contest, or public domain or a farm-unit plat be ap. for any other reason, such lands become proved for the lands and announcement subject immediately to such withdrawal made that water is ready to be delivered, and cannot, thereafter, so long as they re- the preference right may be exercised at main so withdrawn, be entered or other any time within thirty days from notice wise appropriated, either by a successful of the restoration or the establishment of contestant or any other person; but any farm units.” And see Wells v. Fisher, 47 contestant who gains a preferred right to Land Dec. 288, for a statement and disenter any such lands may exercise that cussion of the departmental rulings. right at any time within thirty days from 3 Brown v. United States, 113 U. S. 568, notice that the lands involved have been 571, 28 L. ed. 1079, 1080, 5 Sup. Ct. Rep. released from such withdrawal and made 648; Webster v. Luther, 163 U. S. 331, 342, subject to entry.”

41 L. ed. 179, 182, 16 Sup. Ct. Rep. 963; The regulations of May 18, 1916, § 29, United States v. Hammers, 221 U. S. 220, 45 Land Dec. 385, 391, contained the follow- 228, 55 L. ed. 710, 715, 31 Sup. Ct. Rep. ing:

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 l 60 L. ed. 147, 150, 36 Sup. Ct. Rep. 22.

case:

a

holding a different view of the act. Argued April 26 and 27, 1921. Decided The opinions rendered by the circuit

June 1, 1921. court of appeals do indicate that it was disposed to think the words "thirty ON WRIT of Certiorari to the Su

preme Court of the State of Calidays from the date of such notice" fornia to review a judgment which af. should be taken literally and strictly, firmed a judgment of the Superior Court but a careful reading of the opinion of Riverside County, in that state, disdiscloses that the decision was not put missing the bill in a suit to establish a on that ground. As was rightly said trust in land patented under the Homeby the supreme court of the state stead Laws. Affirmed. in the present

“The decision

See same case below, 181 Cal. 788, 185 there was not to the effect that the con- Pac. 971. testant was by mistake of law given the The facts are stated in the opinion. preference right.” Indeed, that case did not call for any expression of opinion on

Mr. Samuel Herrick argued the cause, the subject. The plaintiff there was the and, with Mr. Henry M. Willis, filed a original homestead entryman, and was brief for petitioner. insisting that his entry had been un- Mr. Patrick H. Loughran argued the lawfully canceled. If that claim was cause and filed a brief for respondent. well taken, as was held, the cancelation did not give rise to any preferred right. Mr. Justice Van Devanter delivered Besides, the defendant there was not the opinion of the court: claiming under an entry based on 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 Judgment affirmed. on other grounds, those observations are neither authoritative nor persuasive.

Here it is not questioned that the [484] UNITED STATES, Piff. in Err., original or first entry—that of Riderwas lawfully canceled. McLaren rec

GEORGE E. BOWLING et al. ognized that that entry had been lawfully eliminated when he sought to ini

(See S. C. Reporter's ed. 484-490.) tiate a claim to the land. He should

Indians heirs of deceased allottee also have recognized that Fleischer, by determination by Secretary of Inhis conte had brought about its elimi- terior

or restricted allotnation, and was entitled, as a reward, ments. to enter the land at any time within Restricted as well as trust allotthirty days after it was restored to ments must be held to be comprehended by entry.

the provisions of the Act of June 25, 1910, We conclude that the 'state courts $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 ispartment had put on the act.

suance of a fee-simple patent, without hav. Judgment affirmed.

ing made a will disposing of said allotment as hereinafter provided, the Secretary of

the Interior, upon notice and hearing, un. [483] ROBERT L. CU'LPEPPER, Peti- der such rules as he may prescribe, shall tioner,

ascertain the legal heirs of such decedent, and his decision thereon shall be final and

conclusive,” in view of the legislative and JAMES M. OCHELTREE,

departmental construction of that section (See S. C. Reporter's ed. 483.) as authorizing a determination of the heirs

of both classes of deceased allottees. This case is governed by the decision in [For other cases, see Indians, vill. in Digest McLaren v. Fleischer, ante, 1052.

Sup. Ct. 1908.) [No. 292.]

[No. 295.] Note.-On conclusiveness of decisions Note.-On Federal control over Indior findings of the Land Department--ans-see note to Worcester v. Georgia, 8 see note to Whitehill v. Victorio Land L. ed. U. S. 484. & Cattle Co. L.R.A.1918D, 597.

v.

trust

V.

Argued April 27, 1921. Decided June 1, | the supervision and guardianship of the 1921.

United States. The defendants, by IN N ERROR to the United States Cir- their answer, admitted that the land had

cuit Court of Appeals for the Eighth been allotted and patented to Wea and Circuit to review a judgment which af- that they were in possession; denied all firmed a judgment of the District Court the other allegations in the petition, inof the United States for the Eastern cluding the heirship [486] of those in District of Oklahoma in favor of de and alleged that, at the time of answer

whose interest the action was brought, fendants in an action by the United States to recover possession of land, ing, the defendants were rightfully in with damages for its detention and use.

possession under conveyances executed Reversed and remanded for a new trial. by the real heirs after the restriction upSee same case below,

- C. C. A. —,

on alienation expired. 261 Fed. 657.

At the trial the United States, to esThe facts are stated in the opinion.

tablish the heirship of those in whose

interest the action was brought, offered Special Assistant to the Attorney in evidence an exemplified copy of a deGeneral Garnett argued the cause and cision by the Secretary of the Interior, filed a brief for plaintiff in error. dated October 21, 1914, during the peri

Mr. Halbert H. McCluer argued the od of restriction, finding and holding cause, and, with Mr. Vern E. Thompson, that they were the heirs, and the sole filed a brief for defendants in error.

heirs, of Wea, and stating their respec

tive shares. To this the defendants obMr. Justice Van Devanter delivered jected upon the ground that the law of the opinion of the court:

Congress under which the decision was This was

an action by the United given applied only where the deceased States to recover the possession of a allottee held under a trust patent. The tract of land in Oklahoma, with dam-court sustained the objection and no ages for its detention and use by the other evidence on the subject was predefendants for several years. The trial sented by either side. Whether the resulted in a judgment for the defend court erred in excluding the Secretary's ants, which the circuit court of appeals determination is the only question reaffirmed. - C. C. A. –, 261 Fed. 657. served at the trial and now presented

The land was allotted and patented for decision. It was not claimed that under the Act of March 2, 1889, chap. the Secretary proceeded without notice, 422, 25 Stat. at L. 1013, Comp. Stat. $ or without according all who were in4207, 3 Fed. Stat. Anno. 2d ed. p. 836, terested a full hearing, but only that he to Pe-te-lon-o-zah, or William Wea, á had not been empowered to determine member of the confederated Wea, Peo- who were the heirs where the deceased ria, Kaskaskia, and Piankeshaw Tribes allottee held, as did Wea, under a patof Indians, as his distributive share of ent in fee, even though the land was the tribal lands. The patent was dated subject to a restriction upon alienation. April 8, 1890, conveyed a fee-simple Before coming to the acts under which title, and imposed a restriction upon the Secretary of the Interior proceeded, alienation for a period of twenty-five it will be helpful to refer to the modes, years from its date. Wea died intestate long in use, by which Indians are preand seised of the land January 23, 1894. vented from improvidently disposing of Shortly after his death persons claiming allotted lands. One is to issue to the to be his heirs executed a conveyance of allottee a written instrument or the land, and on May 4, 1914, this court tificate, called a trust patent, declaring affirmed a decree against two of the that the United States will hold the land present defendants, canceling that con- for a designated period, usually twentyveyance as made in violation of the re- five years, in trust for the sole use and striction. Bowling v. United States, benefit of the allottee, or, in case of his 233 U. S. 528, 58 L. ed. 1080, 34 Sup. Ct. death, of his heirs, and at the expiration Rep. 659.

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

to the allottee 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 aliena65 L. ed.

1055

cer

once

a

tion is effectually restricted by either der trust patents. Separately considmode, allotments under the first are ered, it hardly admits of any other view; commonly spoken of as trust allot- and yet other provisions in the same ments, and those under the second as section suggest that its words may not restricted allotments. As respects both have been happily chosen, and that it classes of allotments-one as much as may have been intended to be more comthe other—the United States possesses a prehensive. To illustrate, a closely folsupervisory control over the land, and lowing proviso declares: may take appropriate measures to make “That the Secretary of the Interior is sure that it inures to the sole use and hereby authorized in his discretion to benefit of the allottee and his heirs issue a certificate of competency, upon throughout the original or any extended application therefor, to any Indian, or period of restriction. As an incident to in case of his death, to his heirs, to this power Congress may authorize and whom a patent in fee containing restricrequire the Secretary of the Interior to tions on alienation has been or may determine the legal heirs of a deceased hereafter be issued, and such certificate allottee, and may make that determina- shall have the effect of removing the tion final and conclusive.2 It rests with restrictions on alienation contained in Congress to say which of the two modes such patent." shall be followed in respect of the lands But we need not dwell upon the inof a particular tribe, and this usually is ternal proof of what was intended, for, done in the act directing that the lands by a series of appropriation acts, beginbe allotted. The Act of 1889, under ning August 1, 1914, and extending to which the lands of the confederated the present time, Congress has treated tribes were allotted, required that the and construed the provision as including second mode be followed,—that of issu- both trust and restricted allotments.3 ing a patent in fee imposing a restric- Each of the appropriation acts contains tion upon alienation for a fixed period. a paragraph appropriating $100,000 to

By § 1 of the Act of June 25, 1910, meet the cost of "determining the heirs chap. 431, 36 Stat. at L. 855, Comp. Stat. of deceased Indian allottees having any § 4226, 3 Fed. Stat. Anno. 2d ed. p. 853, right, title, or interest, in any trust or Congress provided :

restricted allotment, under regulations "That when any Indian to whom an prescribed by the Secretary of the Inallotment of land has been made, or terior," and they show affirmatively that may hereafter be made, dies before the they refer to a determination under $ 1 expiration of the trust period and be- of the Act of 1910. [489] Not only so, fore the issuance of a fee-simple patent, but they all contain a proviso that "this without having (488] made a will dis- paragraph shall not apply to the Osage posing of said allotment as hereinafter Indians, nor to the Five Civilized provided, the Secretary of the Interior, Tribes," which would be a needless proupon notice and hearing, under such vision if Congress had not intended that rules as he may prescribe, shall ascer- the power to determine heirships should tain the legal heirs of such decedent, extend to restricted as well as trust aland his decision thereon shall be final lotments; for the allotments to the and conclusive."

Osages and to members of the Five Civi. The courts below concluded from the lized Tribes were not trust but restricted words of this provision that it was con- allotments. The annual reports of the fined to trust allotments—those held un-1 Indian Bureauo show that the officers

1 United States v. Rickert, 188 U, S. 432, \ at L. 582, 586, Comp. Stat. § 4205e, 3 47 L. ed. 532, 23 Sup. Ct. Rep. 479; Marchie Fed. Stat. Anno. 2d ed. p. 803; May 18, Tiger v. Western Invest. Co. 221 U. S. 286, 1916, chap. 125, 39 Stat. at L. 123, 127, 55 L. ed. 738, 31 Sup. Ct. Rep. 578; Heck-Comp. Stat. § 4227; March_2, 1917, chap. man v. United States, 224 Ü. S. 413, 56 146, 39 Stat. at L. 969, 972, Fed. Stat. Anno. L. ed. 820, 32 Sup. Ct. Rep. 424; Brader Supp. 1918, p. 260; May 25, 1918, chap. v. James, 246 U. S. 88, 62 L. ed. 591, 38 86, 40 Stat. at L. 561, 567, Comp. Stat. $ Sup. Ct. Rep. 285; Talley v. Burgess, 246 4025, Fed. Stat. Supp. 1918, p. 264; June U. S. 104, 62 L. ed. 600, 38 Sup. Ct. Rep. 30, 1919, chap. 4, 41 Stat. at L. 3, 8: 287; La Motte v. United States, 254 U. S. February 14, 1920, chap. 75, 41 Stat. at 570, ante, 410, 41 Sup. Ct. Rep. 204. L. 408, 413.

2 Hallowell v. Commons, 239 U. S. 506, 4 House Doc. No. 90, p. 38, 64th Cong. 60 L. ed. 409, 36 Sup. Ct. Rep. 202. And 1st Sess.; House Doc. No. 1899, p. 51, 64th see Lane v. United States, 241 U. S. 201, Cong. 2d Sess.; House Doc. No. 915, p. 53, 60 L. ed. 956, 36 Sup. Ct. Rep. 599; Egan 65th Cong. 2d Sess.; House Doc. No. 1455, v. McDonald, 246 U. S. 227, 62 L. ed. 680, p. 53, 65th Cong. 3d Sess.; House Doc. No. 38 Sup. Ct. Rep. 223.

409, p. 51, 66th Cong. 2d Sess.; House Doc. 3 Acts August 1, 1914, chap. 222, 38 Stat. I No. 849, p. 45, 66th Cong. 2d Sess.

of that bureau, including the Secretary, specifically conferred on the Federal Suof the Interior, have uniformly regarded preme Court. $1 of the Act of 1910, in connection [For other cases, see Prohibition, I. in Digest

Sup. Ct. 1908.) with these appropriation acts, as en-Prohibition other remedy. abling them to determine the heirs of 2. The fact that the objection to the both classes of deceased allottees, and jurisdiction of the court below might be they further show that in each year raised by appeal from the final decree is since these appropriations began these not, in all cases, a valid objection to the officers have determined the heirs of issuance of a writ of prohibition by the hundreds of deceased allottees who held where a court of admiralty assumes to take

Federal Supreme Court at the outset, under restricted, as distinguished from

cognizance of matters over which it has no trust, allotments. In one year alone the lawful jurisdiction. number was 566, and of course the ag- [For other cases, see Prohibition, II. in Digest gregate of the values involved was great.

Sup. Ct. 1908.)
These reports were regularly laid before States immunity from suit.

3. The entire judicial power granted Congress, and, with the knowledge thus obtained, it repeated the appropriation thority to entertain a suit brought by pri

by the Constitution does not embrace aueach year.

Of course this can be acvate parties against a state, without concounted for only upon the theory that, sent given, nor one brought by citizens of in the opinion of Congress, the officers another state, or by citizens or subjects of were but exercising the power which it a foreign state, because of the 11th Amendintended they should have and exercise. ment; and not even one brought by its It was after the original provision had own citizens, because of the fundamental been

so construed and supplemented rule of which the Amendment is but an by the first of the appropriation acts [For other cases, see States, 18. b, 2, in Digest

exemplification. that Wea's heirs were determined by the Sup. Ct. 1908.) Secretary. Apparently the appropria- States immunity from suit admition acts and the reports of the Indian

ralty suits. Bureau were not brought to the atten

4. The admiralty and maritime juris. tion of the courts below.

diction is not exempt from the operation We conclude that the District Court of the rule that a state may not be sued erred in sustaining [490] the defend- uals, whether its own citizens or not.

in personam without its consent by individants' objection to the introduction in [For other cases, see States, IX. b, 2, in Digest evidence of the Secretary's determina- Sup. Ct. 1908.] tion, and therefore that the judgment States immunity from suit admimust be reversed and the case remanded

ralty suit against officer. for a new trial.

5. The immunity of a state from suit Judgment reversed.

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 EX PARTE: IN THE MATTER OF THE proceeding against the superintendent of

STATE OF NEW YORK, Edward S. public works of the state of New York, who Walsh, Superintendent, etc., et al., Peti- was operating the tugs when the disaster tioners.

occurred, under charter parties authorized

by the state laws, where, the charters hav(See S. c. Reporter’s ed. 490-503.)

ing since expired, at no time has any res

belonging to the state or to such officer, or Prolvibition to district court. 1. Power to issue writs of prohibition tached or brought under the jurisdiction of

in which they claim any interest, been atto the district courts when proceeding as courts of admiralty and maritime juris such officer individually, the proceedings

the court, nor is any relief asked against diction is, by the Judicial Code, $ 234,

against him being trictly in his capacity Note.—On suits against state officers as a public officer.

[For other cases, see States, IX.

c, 2, in as suits against a state-see notes to Digest Sup. Ct. 1908.) Sanders v. Saxton, 1 L.R.A.(N.S.) 727; Admiralty uniformity exemption Ex parte Young, 13 L.R.A.(N.S.) 932; of state from suit. Louisville & N. R. Co. v. Burr, 14 L.R.A. 6. The symmetry and uniformity char(N.S.) 189, and Beers v. Arkansas, 15 acteristic of the rules of maritime law are L. ed. U. S. 991.

not defeated by according to the several Generally, on suits against a state--states an exemption in the courts of mari

time and admiralty jurisdiction from litisee notes to Murdock Parlor Grate Co. v. Com. 8 L.R.A. 399; Carr v. State, li gation against them at the suit of individ

. L.R.A. 370; Beers v. Arkansas, 15 L. (For other cases, see Admiralty, I. b, 2, in ed. U. S. 991, and Hans v. Louisiana,

Digest Sup. Ct. 1908.] 33 L. ed. U. S. 842.

[No. 25, Original.]

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