Retirement of Walter L. Fisher as Secretary of the Interior suggested, and Franklin K. Lane, his successor in office, substituted March 6, 1913, as the party defendant in error herein. [228 U.S. 6, 7] Messrs. Frederic D. McKenney, James M. Givens, James W. Zevely, Richard William Stoutz, John Spalding Flannery, William Hitz, and Edgar Smith for plaintiff in error.
Assistant Attorney General Cobb and Solicitor General Bullitt for defendant in error.
Mr. Justice Van Devanter delivered the opinion of the court:
This writ of error brings up for review a judgment of the court of appeals of the District of Columbia (35 App. D. C. 429), affirming a judgment of the supreme court of the District, refusing a writ of mandamus commanding the Secretary of the Interior to deliver to the relator a patent for a tract of land claimed by the latter as a Cherokee allotment. The facts upon which the decision must turn are these:
On August 21, 1907, a parcel of allottable land containing 50 acres, in the Cherokee Nation, was selected as an allotment for Eva Waters, a minor Cherokee child belonging to the class whose rights to participate in the distribution and allotment of the tribal funds and lands were sustained in the recent decision in Gritts v. Fisher, 224 U.S. 640 , 56 L. ed. 928, 32 Sup. Ct. Rep. 580. A week later William Twist and the relator Herman Knight, enrolled Cherokees, respectively selected the westerly 20 acres and the easterly 30 acres of the same [228 U.S. 6, 9] tract as allotments for themselves, and in furtherance of their selections instituted contests against that of Eva Waters. A hearing on Twist's contest resulted in a decision in his favor by the Commissioner to the Five Civilized Tribes. On an appeal to the Commissioner of Indian Affairs that decision was reversed, and a further appeal carried the contest before the Secretary of the Interior. Knight's contest was held in abeyance, before the Commissioner to the Five Civilized Tribes, awaiting the outcome of Twist's. In this situation negotiations were had between representatives of Twist and Knight and the parents of Eva Waters, acting in her behalf, looking to a withdrawal of her selection, subject to the approval of the Secretary of the Interior, in order that there might be no obstacle to the allowance of the later selections of Twist and Knight. The negotiations resulted in an application to the Secretary for permission to effect such an adjustment of the two contests on the payment, for the use of the minor, of an adequate consideration for her potential interest in the land. After a hearing on this application, the Secretary, on May 10, 1909, rendered a decision approving the proposed adjustment on condition that there be paid, for the use of the minor, $10,000 for her claim to the 20 acres in Twist's contest, and $15,000 for her claim to the 30 acres in Knight's. The Secretary then sent to the Commissioner to the Five Civilized Tribes the following telegram: 'Lands in Twist and Knight cases against Waters will be awarded to Twist and Knight, respectively, upon payment of $25,000 for use of minor Waters. Contestants given including 15th to make payment. . . . Prepare deeds to respective contestants and have them executed and forwarded here for approval. Report promptly by wire.' Within the time named the $25,000 was paid to the Commissioner, for the use of the minor, and thereupon patents to Twist and Knight were executed by the principal chief [228 U.S. 6, 10] of the Cherokee Nation and were forwarded by the Commissioner to the Secretary for his approval.
Under the regulations governing the institution and disposition of contests over allotments a party was accorded thirty days after a decision by the Secretary within which to apply for a rehearing. Within this period the parents of Eva Waters, acting in her behalf, applied to the Secretary for a rehearing of the matter covered by his decision of May 10, 1909, it being asserted in that connection that her potential interest was worth much more than the sum named in the decision, and that her parents' consent to the adjustment had been grounded on inaccurate and misleading information. The application was entertained, and, after a hearing thereon in which Twist and Knight participated, the Secretary rendered a further decision vacating the former one, and disapproving the proposed adjustment, on the ground that the consideration which the minor was to receive was not at all adequate. The Secretary also ruled that both contests should be considered and disposed of on their merits and that the $25,000 should be returned. The money was not actually repaid, but this may have been because those who paid it were as yet unwilling to take it back. In consequence of his later decision the Secretary declined to approve the patent executed by the principal chief, or to permit them to be recorded or delivered.
On July 16, 1909, Knight's contest was called for hearing before the Commissioner to the Five Civilized Tribes in pursuance of the Secretary's direction that it be considered and disposed of on its merits, and Knight then appeared and protested against any further steps therein, insisting that, in virtue of the matters here recited, he had acquired a fixed and absolute right to the patent, and that the administrative officers were without authority to proceed with the contest. The protest was disregarded, and on the same day he applied to the supreme [228 U.S. 6, 11] court of the District of Columbia for a writ of mandamus, as before indicated, to compel the Secretary of the Interior to deliver to him the patent for the 30 acres, and to perform any other acts necessary to clothe him with the full legal title.
The question for decision is whether, in the circumstances, the Secretary was without authority to reconsider and vacate his decision of May 10, 1909, approving the proposed adjustment of the relator's contest, whereby the minor, Eva Waters, was to withdraw her selection in consideration of the payment by the relator of $15,000 for her use. It is frankly conceded by counsel for the relator, and rightly so, that the adjustment could not have been made without the Secretary's approval, which means that he possessed a power of decision in the matter. The act of July 1, 1902 (32 Stat. at L. 716, chap. 1375), under which the Cherokee lands were being allotted in severalty, shows that Congress was solicitous not only that every member of the tribe should receive an allotment ( 11, 16), but that the rights of minors should be specially asserted and conserved ( 70). And that it was intended to clothe the Secretary with comprehensive powers is shown in the provisions that all matters relating to allotments should be determined under his direction ( 22), and that all things necessary to carry into effect the provisions of the act, not otherwise therein specifically provided for, should be done under his authority and direction ( 65). The question, therefore, is reduced to this: Was his power of decision exhausted when, on May 10, 1909, he approved the proposed adjustment? To this there can be only a negative answer. That decision was not final, but interlocutory. In terms it showed that the patent was not to be effective or delivered until he approved it, and the act of 1902 declared that it must have his approval ( 59). Not only so, but, no statutory provision opposing, effect was to be given to the regulation providing for rehearings, [228 U.S. 6, 12] and allowing thirty days within which to apply therefor. Thus, it was as if the decision itself had made provision for a rehearing. Proper regard must also be had for the fact that the act of April 26, 1906 (34 Stat. at L. 137, chap. 1876), 5, expressly contemplated that the title should not pass until the patent was recorded in the office of the Commissioner to the Five Civilized Tribes. In such a case we perceive no reason for departing from the rule applicable to kindred proceedings in the Land Department, which is well stated in the following excerpts from the opinion in Brown v. Hitchcock, 173 U.S. 473 , 476-478, 43 L. ed. 772-774, 19 Sup. Ct. Rep. 485:
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As entirely apposite, we repeat the statement in New Orleans v. Orleans v. Paine, 147 U.S. 261, 266 , 37 S. L. ed. 162, 163, 13 Sup. Ct. Rep. 303: 'Until the matter is closed by final action, the proceedings of an officer of a Department are as much open to review or reversal by himself or his successor as are the interlocutory decrees of a court open to review upon the final hearing.'
Inasmuch as the decision of the Secretary, revoking his prior approval of the proposed adjustment, was not arbitrary or capricious, but was given after a hearing, and in the exercise of a judgment and discretion confided to him by law, it cannot be reviewed, or he be compelled to retract it, by mandamus. United States ex rel. Ness v. Fisher, 223 U.S. 683 , 56 L. ed. 610, 32 Sup. Ct. Rep. 356.
The decisions in Garfield v. United States, 211 U.S. 249 , 53 L. ed. 168, 29 Sup. Ct. Rep. 62, and Ballinger v. United States, 216 U.S. 240 , 54 L. ed. 464, 30 Sup. Ct. Rep. 338, are not in conflict with the views here expressed. In the former the writ was awarded to compel the respondent to erase and disregard an entry which he arbitrarily and without notice had caused to be made upon a public record, thereby beclouding the relator's right to an Indian allotment. In the latter the writ was awarded to compel the delivery of a patent which was withheld solely through the unauthorized action of the Secretary in entertaining and sustaining a proceeding in the nature of a contest after the expiration of the time limited by statute for instituting such a proceeding.