[227 U.S. 613, 614] Mr. R. W. Starr, pro se, and Mr. Frank Reeves for plaintiff in error.
Messrs. A. G. Avery and F. T. Post for defendants in error.
Mr. Justice Pitney delivered the opinion of the court:
The plaintiff in error brought this action against the defendants in error in the superior court of the state of Washington in and for the county of Chelan to establish and quiet his title to certain lands in that county. The answer showed that the plaintiff claimed his title under a deed made by the defendants, and attacked the validity of this instrument on the ground of fraud in its procurement, and on the further ground that, at the time of its execution, [227 U.S. 613, 615] the title to the lands therein described was in the United States, and the defendants were without power to convey them. The trial court made findings of fact negativing the charges of fraud, and concluded as matter of law that the conveyance made by the defendants to plaintiff was valid, and that the plaintiff was entitled to recover. From the resulting judgment the defendants appealed to the supreme court of the state, which reversed the judgment and remanded the cause, with directions to enter a judgment in favor of the defendants upon terms that they should repay the consideration paid by the plaintiff to them, with certain additional charges. 52 Wash. 138, 100 Pac. 194. After the cause was remanded, a further hearing was had and a second and final judgment entered in accordance with the mandate. From this judgment the plaintiff appealed, and the supreme court of the state affirmed the judgment (59 Wash. 190, 109 Pac. 810) and the case comes here by writ of error.
The facts are as follows:-The defendants are husband and wife and full-blooded Indians, and the lands in question are a part of what was the Columbia Indian Reservation. On July 7th, 1883, in the city of Washington, the Secretary of the Interior and the Commissioner of Indian Affairs, on the part of the United States, and Chief Moses and other Indians of the Columbia and Colville Reservations in the then territory of Washington, entered into a certain agreement, subject to the approval of Congress, the material parts of which are as follows:
This agreement was ratified and confirmed by act of Congress of July 4, 1884, chap. 180, 23 Stat. at L. 79, which reads as follows:
In the above agreement of July 7, 1883 (commonly called the Moses agreement), the following clause is especially pertinent to the present controversy, viz.: 'All other Indians now living on the Columbia Reservation shall be entitled to 640 acres, or 1 square mile, of land to each head of family or male adult, in the possession and ownership of which they shall be guaranteed and protected.'
In the confirmatory act the following proviso is to be noted: 'That in case said Indians so elect to remain on said Columbia Reservation, the Secretary of the Interior shall cause the quantity of land therein stipulated to be allowed them to be selected in as compact form as possible, the same when so selected to be held for the exclusive use [227 U.S. 613, 619] and occupation of said Indians, and the remainder of said reservation to be thereupon restored to the public domain, and shall be disposed of to actual settlers,' etc.
By an executive order made by President Cleveland under date May 1, 1886 (Executive Orders, Indian Reserves, 1890, p. 75), the land in question was restored to the public domain, subject to the limitations as to disposition imposed by the act of July 4, 1884; it being, however, at the same time ordered that certain tracts of land surveyed for and allotted to Sar-sarp-kin and other Indians in accordance with the provisions of that act, and particularly described in the order, should be and the same were thereby set apart for the exclusive use and occupation of said Indians by name. Long Jim was not included.
But by a decision of the General Land Office rendered July 9, 1892, affirmed by the Secretary of the Interior January 6, 1893 (Long Jim v. Robinson, 16 Land Dec. 15), it was held that Long Jim, although not a party to the Moses agreement, was entitled to its benefits by the terms of the act of July 4, 1884, and, because he and other members of a band of which he was the chief were in actual occupancy of the land in question, having lived upon it for many years, cultivated a part of it, raised stock thereon, etc., it was also held, following Mission Indians v. Walsh, 13 Land Dec. 269, that the Executive order of May 1, 1886, did not confer upon white men claiming under the pre-emption and homestead laws any right to settle on, file upon, or enter lands that were in the occupation of the Indians. It was also held that Long Jim was not deprived of his rights under the act of July 4, 1884, by reason of not having elected within one year from its passage whether he would remain upon the Columbia Reservation on the terms therein stipulated, or remove to the Colville Reservation; that limitation in the act being construed to apply only to Sar-sarp-kin and the Indians who were [227 U.S. 613, 620] directly represented by him in the making of the Moses agreement. The conclusion of the matter was that Long Jim and certain other Indian applicants were held entitled to have allotments made to them in severalty, in quantities and manner provided in the agreement of July 7, 1883, and the right of certain white claimants to the same land was held to be subordinate and subject to the prior and superior right of the Indians.
In accordance with this decision and in pursuance of the Moses agreement and the act of Congress ratifying it, the Secretary of the Interior, in the year 1894, set apart for the exclusive use and occupation of Long Jim a certain allotment on the Columbia Reservation, included in which are the lands involved in the present action.
On March 29, 1900, Long Jim and his wife, by warranty deed, in consideration of the sum of $2,000, assumed to convey the lands in question to the plaintiff. Up to this time no patent had been issued by the government.
In April, 1904, the Secretary of the Interior held (Re Long Jim, 32 Land Dec. 568) that the act of July 4, 1884, had made no provision for issuing a patent; that if the Moses agreement contemplated that patents should be issued, the act of ratification limited it in this respect; and that since there was no general authority of law for issuing patents to Indian allottees, none could be issued to cover Long Jim's allotment. Thereafter Congress, by act of March 3, 1905, chap. 1479, 33 Stat. at L. 1064, 1065, authorized the issuance of such a patent, in the following terms:
And on August 2, 1905, pursuant to this authority, a patent was issued to Long Jim for the lands that had been allotted to him, including those that were included in his deed to the plaintiff.
By the act of March 8, 1906, chap. 629, 34 Stat. at L. 55, a general provision was made for the issuance of patents for the lands allotted to Indians under the Moses agreement and the act ratifying it, the patents to 'be of legal effect and declare that the United States does and will hold the lands thus allotted for the period of ten years from the date of the approval of this act, in trust for the sole use and benefit of the Indian to whom such allotment was made, or, in case of his decease either prior or subsequent to the issuance of such patent, of his heirs, according to the laws of the state of Washington, and that at the expiration of said period the United States will convey the [227 U.S. 613, 622] same by patent to the said Indian, or his heirs, as aforesaid, in fee, discharged of said trust, and free of all charge or encumbrance whatsoever.' The same act provided that an allottee holding such a trust patent might sell the lands covered thereby, except 80 acres, under rules and regulations prescribed by the Secretary of the Interior; and provided that any conveyance or contract of sale made within the trust period, except as provided by the act, should be absolutely null and void.
The plaintiff in error contends (1) that the land allotted to Long Jim in the year 1894 passed to him in fee under the terms of the Moses agreement and the act of ratification, and therefore passed to the plaintiff under the deed of 1900; and, failing this, (2) that the deed, having contained covenants of warranty, operated by way of estoppel to pass to the plaintiff the title afterwards acquired by Long Jim by virtue of the patent of August 2, 1905
In United States v. Moore, 154 Fed. 712, it was held by the United States circuit court for the eastern district of Washington that lands allotted to Indians in severalty under the Moses agreement and the act of confirmation, and the Executive order of May 1, 1886, became vested in the allottees in fee simple. The circuit court of appeals reversed this decision. 88 C. C. A. 455, 161 Fed. 513. The supreme court of Washington, in the present case (52 Wash. 138, 100 Pac. 194), followed the reasoning and opinion of the court of appeals. We concur in the result reached, and have little to add.
As to the principles to be kept in view in construing an agreement with the Indians, we adhere to what was said in Jones v. Meehan, 175 U.S. 1, 10 , 11 S., 44 L. ed. 49, 53, 54, 20 Sup. Ct. Rep. 1:
The Moses agreement is quite informal, and it has been and should be construed in such manner as to confer upon the Indians the full measure of benefit that it was intended to secure to them. But it hardly follows that they would be more benefited by having the lands in fee than by having them held in trust for them by the government. That part of the agreement now in question provided that each head of family or male adult on the Columbia Reservation should be entitled to 1 square mile of land-'in the possession and ownership of which they shall be guaranteed and protected.' This is, at least, as consistent with a beneficial ownership, leaving the title in the government, as with the vesting of a fee-simple title in the Indian.
But whatever may have been the intent of the framers of the agreement , 2079, Rev. Stat., prohibited the making of any contract with the Indians by treaty; and the Moses agreement was expressly made 'upon the condition that Congress will make an appropriation of funds necessary to accomplish the foregoing, and confirm this agreement.' The act of confirmation (23 Stat. at L. 80, chap. 180) was subject to the proviso that the Secretary of the Interior should cause the quantity of land stipulated to be selected in as compact [227 U.S. 613, 624] form as possible, 'the same, when so selected, to be held for the exclusive use and occupation of said Indians, and the remainder of said reservation to be thereupon restored to the public domain, and shall be disposed of to actual settlers under the homestead laws,' etc. Irrespective of the general recognition of the guardianship of the government over the Indians, the clear antithesis in this proviso between the disposition of other lands to settlers and the retention of the lands in question for the use and occupation of the Indians admits of but one construction.
The Executive order of August 1, 1886, is consistent with this. So are the decisions of the General Land Office and the Secretary of the Interior, already referred to (16 Land Dec. 15; 32 Land Dec. 568).
And the act of March 3, 1905 (33 Stat. at L. 1064, chap. 1479), above quoted, expressly authorizing and directing the Secretary of the Interior to issue a patent to Long Jim for the lands that had been allotted to him, is a recognition by Congress that without the act he had no right to the land in fee. Further corroboration is to be found in the act of March 8, 1906 (34 Stat. at L. 55, chap. 629), above quoted, which requires patents to be issued, with a restriction against alienation, to the other beneficiaries of the Moses agreement.
The contention of the appellant that Long Jim had a title in fee at the time of the making of the warranty deed in the year 1900 must therefore receive a negative response.
As to the effect of the warranty upon the after-acquired title, while the general rule is that a conveyance with warranty estops the grantor, when he afterwards becomes the owner of the land assumed to be granted, to deny the grantee's title (Bigelow, Estoppel, 2d ed. p. 324, etc.), it is well settled that the doctrine does not apply to the case of a conveyance made by one non sui juris, or that is contrary to public policy or statutory prohibition. Bank of [227 U.S. 613, 625] America v. Banks, 101 U.S. 240, 247 , 25 S. L. ed. 850, 853; Doe ex dem. Chandler v. Ford, 3 Ad. & El. 649, 5 Nev. & M. 209, 1 H. & W. 378, 5 L. J. K. B. N. S. 25; Den ex dem. Wooden v. Shotwell, 24 N. J. L. 789; Connor v. McMurray, 2 Allen, 202, 204; Doyle v. Coburn, 6 Allen, 71, 72; Merriam v. Boston, C. & F. R. Co. 117 Mass. 241, 244; Brick v. Campbell, 122 N. Y. 337, 346, 10 L.R.A. 259, 25 N. E. 493; Kennedy v. M'Cartney, 4 Port. (Ala.) 141, 158.
Since it is entirely plain, in the case before us, that the title to the lands in question was retained by the United States for reasons of public policy, and in order to protect the Indians against their own improvidence, it follows as matter of course that a conveyance made by one of them, before the title was vested in him pursuant to the act of 1905, was in the very teeth of the policy of the law, and could not operate as a conveyance, either by its primary force or by way of estoppel.