[216 U.S. 240, 241] Assistant Attorneys General Harr and Lawler for plaintiff in error.
[216 U.S. 240, 243] Messrs. Charles H. Merillat, Charles J. Kappler, H. C. Potterf, and E. A. Walker for defendant in error.
Mr. Justice Brewer delivered the opinion of the court:
The defendant in error, a citizen and resident of the Choctaw Nation in the Indian territory, whose enrolment had been approved by the Secretary of the Interior, and who was entitled to an allotment under the acts of Congress, on December 20, 1906, filed her petition in the supreme court of the District of Columbia for a mandamus compelling the Secretary of the Interior to deliver, or cause to be delivered, to her a patent to a tract of land consisting of 40 acres, located in the Choctaw Nation in the Indian territory, and which she had selected in accordance with law. The then Secretary of the Interior, Ethan A. Hitchcock, filed an answer, giving his reasons for declining to issue that patent. Subsequently, James R. Garfield, becoming Secretary of the Interior, was substituted as defendant, and filed an amended answer. A demurrer to the amended answer having been sustained, [216 U.S. 240, 245] judgment was entered as prayed for, which was affirmed by the court of appeals of the District, and thereupon the case was brought to this court. After the record had been filed in this court, and during the present term, Richard A. Ballinger, the successor of Secretary Garfield, was substituted for him as plaintiff in error.
The facts essential to a decision are briefly these: By treaty between the Choctaw Nation and the United States, dated September 27, 1830 ( 7 Stat. at L. 333), and the proclamation of the President of the United States of February 24, 1831, the United States caused '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.' By subsequent treaties and agreements the Choctaw and Chickasaw Nations were consolidated. The nations have not become extinct, and are still resident on the lands. The act of June 28, 1898 (30 Stat. at L. 495, chap. 517), authorized the allotment of the land to the Choctaws and Chickasaws in fair and equal proportions, and provided that this should be done under the direction of the Secretary of the Interior; also, that as soon as practicable after the completion of the said allotment, the principal chief of the Choctaw Nation and the governor of the Chickasaw Nation should jointly execute, under their hands and the seals of their respective nations, and deliver to their allottees, patents conveying to them all the right, title, and interest of the Indians in and to the lands allotted. The act of May 31, 1900 (31 Stat. at L. 221, chap. 598), also authorized the Secretary of the Interior to lay out, survey, and plat the sites of such towns as then had a population of two hundred or more, and that he might, upon the recommendation of the Commission to the Five Civilized Tribes, at any time before the allotment, set aside and reserve, not exceeding 160 acres in any one tract, at such stations as were or should be established on the line of any railway which should be constructed or be in process of construction in or through either of said nations [216 U.S. 240, 246] prior to the allotment of the lands therein. These town-site provisions were incorporated into the act of March 1, 1901 (31 Stat. at L. 848, 851, chap. 675).
On October 26, 1900, the town site of Mill Creek, containing 155.45 acres, on which there was a railway station, was designated and laid out. The land in controversy is adjacent to that town site. Section 45 of the act of July 1, 1902 (32 Stat. at L. 641, chap. 1362), authorized an addition to such town sites on the recommendation of the Commission to the Five Civilized Tribes, not exceeding 640 acres, and the appropriation act of March 3, 1903 (32 Stat. at L. 982, 996, chap. 994), appropriated $25, 000 to pay the town-site expenses, with this proviso:
On February 17, 1903, the Commission to the Five Civilized Tribes made recommendation that this adjacent land be scgregated as an addition to Mill Creek, under the provisions of the act of July 1, 1902, supra. This recommendation, having been approved by the Commissioner of Indian Affairs, was by him transmitted to the Secretary of the Interior, who, on March 18, 1903, addressed a letter to the Commission, reciting the segregation of Mill Creek town site on October 26, 1900, and the recommendation of the Commission, approved by the Commissioner of Indian Affairs, and said: 'The Department does not deem it advisable to make the recommendation, in view of the act of March 3, 1903.' On July 23, 1903, the relator selected as her allotment the land in controversy, upon [216 U.S. 240, 247] which were her buildings and improvements. This was received by the Commission, and nine months thereafter, the time prescribed by statute for contest (act of July 1, 1902, supra) having elapsed, and no contest of her right to the designated allotment having been made, a certificate of allotment was issued and delivered to her. Thereafter the principal chief of the Choctaw Nation and the governor of the Chickasaw Nation jointly executed a patent under the seals of their respective nations, conveying to her the title of said nations in and to said 40 acres of land. Sections 23 and 24 of the act of July 1, 1902, supra, read as follows:
The Secretary alleged in his answer that after the issue of the allotment to relator, and on or about March 11, 1905, his predecessor in office was advised that the land had then, and prior to its selection by petitioner, been under urban occupancy, and on June 19, 1905, he ordered an investigation, and finding such to be the fact, and that the inhabitants had expended large sums in building upon and improving their tracts, and were entitled to be protected, he did, on October 23, 1905, by virtue of the powers in him vested, segregate the lands for townsite purposes, and cancel petitioner's allotment thereof, with leave to select other lands to fill her right to tribal lands in severalty. The patent that had previously been exe- [216 U.S. 240, 248] cuted for delivery to her was returned, and remained on file in the office of the Commissioner of Indian Affairs, to be canceled.
The Interior Department has general control over the affairs of the Indians,-wards of the government. In addition, the Secretary of the Interior was by these several acts specially charged with the duty of supervising the action of the Commission to the Five Civilized Tribes in making the allotments authorized by those acts. On both of these grounds he claims authority to have done what he did, and that his acts in that respect are not subject to review by the courts. We have no disposition to minimize the authority or control of the Secretary of the Interior, and the court should be reluctant to interfere with his action. But, as said by Mr. Justice Field in Cornelius v. Kessel, 128 U.S. 456, 461 , 32 S. L. ed. 482, 483, 9 Sup. Ct. Rep. 122, 124:
See also Orchard v. Alexander, 157 U.S. 372, 383 , 39 S. L. ed. 737, 741, 15 Sup. Ct. Rep. 635, 639, in which it was declared:
Whenever, in pursuance of the legislation of Congress, rights have become vested, it becomes the duty of the courts to see that those rights are not disturbed by any action of an executive officer, even the Secretary of the Interior, the head of a department. However laudable may be the motives of the Secretary, he, as all others, is bound by the provisions of congressional legislation. It must be borne in mind that this allotment provided by Congress contemplated a distribution among the Choctaw and Chickasaw Indians of the lands that belonged to them to common. They were the principal beneficiaries, and their titles to the lands they selected should be protected against the efforts of outsiders to secure them. White men settling on town sites were not the principal beneficiaries. Congress, it is true, authorized town sites, and the town of Mill Creek was established in compliance with the statute. It further provided for an enlargement of any town site upon the recommendation of the Commission to the Five Civilized Tribes. That recommendation was made in respect to the town of Mill Creek, but disapproved by the Secretary of the Interior. Thereafter the relator selected the land in controversy, a tract of 40 acres, on which were her improvements. Notice was given, as required, and the time in which contest could be made-nine months-elapsed. Thereupon, as provided by the statute, the title of the allottee to the land selected became fixed and absolute, and the chief authorities of the Choctaw and Chickasaw Nations executed to her a patent, as required, of the land selected. The fact that there may have been persons on the land is immaterial. They were given nine months to contest the right of the applicant. They failed to make contest, and her rights became fixed. Thereafter the Secretary of the Interior, had nothing but the ministerial duty of seeing that a patent was duly executed and delivered.
That the performance of a ministerial duty can be com- [216 U.S. 240, 250] pelled by mandamus has been often adjudged. As said by Mr. Justice Peckham, in Roberts v. United States, 176 U.S. 221, 229 , 44 S. L. ed. 443, 446, 20 Sup. Ct. Rep. 376, 379:
See also Noble v. Union River Logging Co. 147 U.S. 165 , 37 L. ed. 123, 13 Sup. Ct. Rep. 271, in which Mr. Justice Brown cites many cases and draws distinctions between them.
But the authorities come more closely to the facts in this case. In Barney v. Dolph, 97 U.S. 652, 656 , 24 S. L. ed. 1063, 1064, Mr. Chief Justice Waite said:
In Simmons v. Wagner, 101 U.S. 260, 261 , 25 S. L. ed. 910, 911, the same chief justice repeated the proposition in these words:
Where the right to a patent has once become vested in a purchaser of public lands, it is equivalent, so far as the government is concerned, to a patent actually issued. The execution and delivery of the patent after the right to it has become complete are the mere ministerial acts of the officers charged with that duty. Barney v. Dolph, 97 U.S. 652 , 24 L. ed. 1063; Stark v. Starr, 6 Wall. 402, 18 L. ed. 925.'
In United States v. Schurz, 102 U.S. 378, 403 , 26 S. L. ed. 167, 174, Mr. Justice Miller, delivering the opinion of the court, said:
We think the judgment of the Court of Appeals of the District of Columbia, affirming the judgment of the Supreme Court of the District, was right, and it is affirmed.