ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF OKLAHOMA
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
MR. JUSTICE VAN DEVANTER delivered the opinion of the court.
This is an action in ejectment brought by the United States against James F. Rowell and two others. The land in controversy is a quarter-section -- one hundred sixty acres -- in an Indian school reserve in Comanche County, Oklahoma.
Three statutes, all enacted in the same year, must be noticed. The first of these is a provision in the Act of April 4, 1910, c. 140, 36 Stat. 269, 280, authorizing and directing the Secretary of the Interior "to enroll and allot" James F. Rowell as an adopted member of the Kiowa tribe of Indians. The second is the following provision in the Act of June 17, 1910, c. 299, § 3, 36 Stat. 533: "That the Secretary of the Interior is hereby authorized and directed to issue a patent in fee for" the tract in controversy "to James F. Rowell a full member of the Kiowa, Comanche and Apache Tribes of Indians of Oklahoma, who has heretofore received no allotment of land from any
source; this to be in lieu of all claims to any allotment of land or money settlement in lieu of an allotment." And the third is the express repeal of the provision just quoted by the Act of December 19, 1910, c. 3, 36 Stat. 887. The controversy turns chiefly upon the true construction and effect of the provision of June 17 and the constitutional validity of the repealing provision of December 19. These questions are to be solved in the light of the following facts:
A patent was not issued to Rowell. He asked for one, but, at the suggestion of the chairmen of the Committees on Indian Affairs in the Senate and House of Representatives, the President, in whose name such patents are issued, withheld his signature from the patent and directed that nothing be done until Congress could further consider the matter. Congress was not then in session and when it reconvened the matter was again considered, with the result that the provision in the Act of June 17 was repealed.
The tract in controversy was part of a large reservation established by treaties in 1868 as a permanent home for the Kiowa, Comanche and Apache Indians. 15 Stat. 581, 589. In 1901 the members of these tribes were given allotments in severalty in this reservation and the greater part of the remaining lands was disposed of by the United States, -- what was deemed to be their fair value being credited to the Indians as a trust fund. 31 Stat. 676, c. 813, § 6. At that time a portion of the reservation, embracing the tract in controversy, was set apart for school purposes for these Indians, and this school reserve is still maintained and used for their benefit. The tribal relation of these Indians has not been terminated. They are still in a state of pupilage and under the control of the United States. It retains the title to their allotments and administers their tribal affairs and property.
James F. Rowell is a white man who went to the large
reservation as an Indian trader in 1899 and has since lived with these Indians. He is a physician and has practiced among them. In 1903 he married a Kiowa woman and in 1909 was adopted as a member of the tribe. His wife received an allotment from the tribal lands in 1900 and some of their children received allotments in 1906 or 1908. 34 Stat. 214, c. 2580, § 6; 35 Stat. 456, c. 216, § 24. But no allotment had been made to him when the provision of June 17, 1910, was enacted. It was enacted at his solicitation, and the Committees on Indian Affairs in the Senate and House of Representatives, in recommending its repeal, reported that it was enacted in the belief that the tract described was of no greater value than the average of those allotted to other members of the tribe, or than other tracts still subject to allotment, when in truth it was of vastly greater value; and that misrepresentation and deception were practiced by Rowell in securing the legislation. Senate Report No. 924 and House Report No. 1741, 61st Cong., 3rd sess. About two years before, the south half of the same section -- three hundred and twenty acres -- had been sold for townsite purposes under the Act of March 27, 1908, c. 106, 35 Stat. 49, for upwards of $250,000.
In June, 1911, six months after the date of the repealing act, Rowell entered upon the tract in controversy and since then has remained in possession, although promptly notified, through the Indian Agent, that he was a trespasser and must vacate the premises. One of the defendants is Rowell's wife and another is the wife of a lawyer who assisted him in securing the passage of the provision which Congress felt called upon to repeal. She holds a deed from Rowell made after the date of the repealing act and purporting to convey to her an undivided one-half interest in the ...