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FLEMING v. MCCURTAIN.

decided: November 8, 1909.

FLEMING
v.
MCCURTAIN.



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF OKLAHOMA.

Author: Holmes

[ 215 U.S. Page 56]

 MR. JUSTICE HOLMES delivered the opinion of the court.

This is a bill in equity purporting to be brought by and on

[ 215 U.S. Page 57]

     behalf of some thirteen thousand persons "all persons of Choctaw or Chickasaw Indian blood and descent and members of a designated class of persons for whose exclusive use and benefit a special grant was made" of certain property in Oklahoma. The principal defendants are, the Secretary of the Interior; McCurtain, Chief of the Choctaws; Johnston, Governor of the Chickasaws, and all persons whose names appear with theirs on the rolls of "Citizens" of the Choctaw and Chickasaw Nations respectively, and all persons whose names appear upon the "freedmen" rolls of those Nations, as approved by the Secretary of the Interior on or before March 4, 1907, these being the persons to whom the Secretary of the Interior is proceeding to allot the above-mentioned property, being all the property of the tribe. The main object of the bill is to restrain the allotment to the defendants and to undo it so far as it has taken place, to establish the title of the plaintiffs for the purpose of allotment, and to have a new distribution decreed. A firm of lawyers is joined, on the allegation that they have received a portion of the property under a fraudulent arrangement. The bill was demurred to for want of equity and for want of jurisdiction in the court.

The Circuit Court examined the treaty and conveyance under which the plaintiffs claim and held that they did not confer the rights alleged in the bill; that the right to share in the distribution depended on membership in one of the two tribes, except in the case of freedmen, specially provided for; that who were members of the respective tribes, and entitled to enrollment as such, was a matter for Congress to determine; that Congress had adopted certain rolls when finally approved by the Secretary of the Interior; that the Secretary had acted and the plaintiffs had been excluded; that his action was final, and that the court had no jurisdiction in the case. The demurrer to the jurisdiction was sustained, the bill was dismissed, and the plaintiffs appealed to this court.

The plaintiffs found their claim upon the Choctaw treaty of Dancing Rabbit Creek, September 27, 1830, Article 2, 7 Stat.

[ 215 U.S. Page 58333]

     , and letters patent of March 23, 1842, coupled with a treaty between the Choctaws and Chickasaws of January 17, 1837, ratified by the Senate March 24, 1837, 11 Stat. 573. By Article 2 of the treaty of 1830 "The United States under a grant specially to be made by the President of the U.S. shall cause to be conveyed to the Choctaw Nation a tract of country west of the Mississippi River, in fee simple to them and their descendants, to inure to them while they shall exist as a nation and live on it;" with the boundaries. The letters patent recite this article, and, 'in execution of the agreement,' grant the described tract, to have and to hold the same "as intended to be conveyed by the aforesaid article 'in fee simple to them and their descendants to inure to them while they shall exist as a nation and live on it,' liable to no transfer or alienation except to the United States or with their consent." The treaty with the Choctaws gave the Chickasaws a district within the limits of the Choctaws' country, "to be held on the same terms that the Choctaws now hold it, except the right of disposing of it, which is held in common with the Choctaws and Chickasaws, to be called the Chickasaw district of the Choctaw Nation." The plaintiffs say that the patent conveyed the legal title to the Choctaw Nation in trust for such persons as were members of the tribe at the date of the treaty, or of the Chickasaw tribe at the date of the treaty with them, and their respective descendants, and that upon the dissolution of the nation the legal title merged with the equitable title, and the designated class became the absolute owners of the property as tenants in common.

The plaintiffs, in aid of their view, refer to various indications that the policy of the United States already was looking toward the distintegration of the Indian tribes, point out that the words on which they rely were interlined in the Government draft at the instance of the Indians, and from these and other circumstances argue that their construction is confirmed. They say that the dominant phrase is "in fee simple to them and their descendants," and that the use of the plural 'them'

[ 215 U.S. Page 59]

     shows a transition from the Nation as formal grantee to the members as beneficiaries. They say that 'descendants' was used instead of 'heirs' or 'children' to avoid questions of legitimacy, or giving an absolute title to living members and their children, and to establish a principle of devolution suitable to the mode of life and unions in those Indian tribes. They conclude that the words "inure to them while they shall exist as a nation and live on it," only mark the duration of the legal title and do not cut down the equitable right conferred by the earlier words.

As we cannot agree with this construction it will be unnecessary to consider many of the further allegations of the bill. The foundation of the plaintiffs' case is upon the words of the treaty and the patent that we have set forth. Those words seem to us to convey a different meaning on their face, a meaning that would not be changed but rather confirmed if we were to refer at length to the earlier and later dealings with the tribes, which we shall not need to do. We should mention, however, that the United States already had ceded this tract to the Choctaw Nation, with no qualifying words, by the treaty of October 18, 1820, Article 2, 7 Stat. 210. Choctaw Nation v. United States, 119 U.S. 1, 38. The treaty of 1830 only varied the description a little and provided for a special patent. But it would not better the plaintiffs' case if the treaty of 1830 were the single root of their grant. In a grant to the Choctaw Nation as a nation it was natural, as in other cases, to use some words of perpetuity. Of course the United States could use what words it saw fit to manifest its purpose, but the habit derived from private conveyances would be likely to prevail, and as in such instruments the gift of a fee is expressed by adding to the name of the ...


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