APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
MR. JUSTICE McKENNA delivered the opinion of the court.
Suit to adjudge Hiram Chase, Jr., a member of the Omaha Tribe of Indians and to have a right to select eighty acres for an allotment out of the lands of the Omaha Reservation, the selection having been denied by the Secretary of the Interior.
The right of selection depends upon the effect of certain treaties between the Omaha Tribe and the United States and certain acts of Congress.
The treaties were made in 1854 and in 1865, 10 Stat. 1043, 14 Stat. 667, and by them the Indians ceded certain lands to the United States and certain other lands were retained constituting the Reservation with which this suit is concerned and of which the lands sought to be allotted are a part.
It was expressed in the treaty of 1865 to be the desire of the Indians to abolish the tenure in common by which they held their lands and to acquire tracts in severalty of 160 acres to heads of families and 40 acres to each male person of 18 years and upwards; and it was provided that the whole of the lands so assigned or unassigned should constitute and be known as the Omaha Reservation.
The assignments were to be approved by the Secretary of the Interior, be evidenced by certificates, and be final and conclusive.
In execution of the purposes of the treaty, Congress passed an act in 1882 (22 Stat. 341) by which the Secretary was authorized to allot the portion of the reservation lying east of the Sioux City and Nebraska Railroad in severalty, to each head of a family a quarter section (160 acres); to each single person over 18, one-eighth of a section; to each orphan child under 18, one-eighth of a section; and to each other person under that age, one-sixteenth of a section. The issue of patents was provided for, the lands to be held in trust for 25 years for the sole use and benefit of the respective allottees. And it was provided (§ 8) that the residue of the lands should be patented to the tribe but held in trust for 25 years, and then to be conveyed in fee discharged of the trust. From these lands, however, it was provided that allotments should be made and patented to each Omaha child who might be born prior to the expiration of the 25-year trust period.
Under the act and prior to July 11, 1884, allotments were made to 954 members of the tribe and patents issued therefor. No patent was issued to the tribe as provided.
By the Indian Appropriation Act passed March 3, 1893, c. 209, 27 Stat. 630, and expressing itself to be an amendment to the Act of 1882, the Secretary of the Interior was authorized with consent of the Indian tribe to allot in severalty ". . . to each Indian ...