Under the Act of July 17, 1854, c. 83, 10 Stat. 304, Sioux
half-breed certificates were issued to Orillie Stram, a female
half-breed, authorizing her to select and take one hundred and
sixty acres of the public lands of the United States of the classes
mentioned in said act. In June, 1883, she, through Eaton, her
attorney in fact applied at the local land office to locate the
same on public lands of the United States in that district, then
unsurveyed, and filed a diagram of the desired lands sufficient to
designate them. Those lands were not reserved by the government.
Subsequently they were surveyed, and the scrip was located upon
them, and the locations were allowed, and certificates of entry
were issued. In 1886, Orillie Stram and her husband conveyed seven
ninths of the land to Eaton, the defendant in error. In 1889, an
opposing claim to the land having been set up, the Secretary of the
Interior held, for reasons stated in the opinion of this Court in
this case, that the opposing claimants had no valid claim to the
lands; that the improvements made upon the land when it was
unsurveyed, not having been made under the personal supervision of
Orillie Stram, she had not had the personal contact with the land
required by law; that the power given to Eaton to locate the land,
and the power given to sell it, as they operated as an assignment
of the scrip, were in violation of the Act of July 17, 1864, and
that it followed that the entry of the lands was not for the
benefit of Orillie Stram; that the location and adjustment of the
scrip to the lands were ineffectual; that Orillie Stram had no
power to alienate or contract for the alienation of the lands
before location of the scrip, and that the lands were still public
lands and open to entry. This was an action to quiet the title, the
plaintiff in error claiming adversely to Eaton. The scrip
locations
were adjudged by the district court and by the Supreme Court of
the State of Minnesota to be valid. This Court sustains that
judgment.
This is an action to quiet title, and was brought in the
District Court in the Eleventh Judicial District, County of St.
Louis, State of Minnesota.
The plaintiff in error claims title under a United States patent
issued to its grantor, one Frank Hicks, upon a homestead
settlement. The defendants in error claim under locations of what
is commonly known as "Sioux half-breed scrip," issued under
Page 183 U. S. 603
the Act of July 17, 1854. 10 Stat. 304, c. 83. These locations,
it is alleged, were prior in time and right to the claim of Hicks,
and therefore the patent was illegally issued to Hicks. It was
prayed that the title represented by the patent be adjudged to be
held in trust for the defendants in error, and that the plaintiff
in error be required to convey such title to them in proportion to
their interests set forth in their cross bill.
The controversy turns upon the validity of the scrip locations.
Their validity was adjudged by the district court and by the
supreme court of the state. 79 Minn. 442. This writ of error was
then sued out.
The facts as found by the court are that, under the Act of July
17, 1854, and in pursuance of said act, there were issued to
Orillie Moreau certificates commonly known as Sioux half-breed
scrip numbered 19E and 19D, which entitled her to select and take
160 acres of the public lands of the United States of the classes
mentioned in said act;
"that thereafter, and on the 16th day of June, A.D. 1883, the
said Orillie Moreau, then Orillie Stram, never having theretofore
made use of the said certificates of scrip, and the same never
having been in any manner extinguished or satisfied, through the
defendant Frank W. Eaton, who had theretofore been by her duly
empowered as her attorney in fact for that purpose, presented said
scrip at the local land office in Duluth, Minnesota, and then and
there made application to locate the same on certain then
unsurveyed lands of the United States in said district in which
said land office was located, and did then and there enter and file
upon by virtue of said scrip the lands for which said application
was made as aforesaid, and filed therewith a diagram or plat of
said land embracing a sufficient description thereof to properly
designate the same, which lands were in said application described
by metes and bounds,"
and that the same were "lands not reserved by the government of
the United States for any purpose whatsoever," and also that,
"prior to the location of said scrip upon said land as above
found, improvements had been made thereon, consisting of a house 14
by 16 feet, by and under the authority of the said Frank W.
Eaton."
On the 20th of July, 1885, the lands having been duly
surveyed,
Page 183 U. S. 604
a plat and survey of the township in which the lands were
situated were
"duly filed in the local land office at the City of Duluth,
Minnesota, and thereupon, and on the 21st day of July, 1885, upon
application of the said Orillie Stram, acting by and through her
said attorney in fact, said certificate of Sioux half-breed scrip
number 19D was adjusted to and upon the lands in controversy"
(they were specifically described), and the scrip was then and
there duly located upon said lands as surveyed lands, and the
locations were allowed by the officers of the local land office at
Duluth, there not being at that time, nor at the time the scrip was
located upon the lands when unsurveyed, nor at any other time, any
valid adverse claim to said lands, and on the 21st of July, 1885,
receiver's final receipts and certificates of entry were duly and
regularly issued to said Orillie Stram, and duly and regularly
recorded in the counties of Lake and St. Louis, Minnesota, within a
few days thereafter.
The "rights and interests" of Orillie Stram, by sundry mesne
conveyances, were conveyed to the defendants in the proportions
respectively as follows:
"Frank W. Eaton, the undivided 13-36, Merrill M. Clark, the
undivided 9-36, Margaretha Lonstorf, the undivided 8-36, and
Richard H. Fagan, the undivided 6-36, and the said defendants are
still the owners of the said lands in said proportions."
That, on the 20th of July, 1885, one Thomas Hyde and one Angus
McDonald respectively made application to make preemption filings
on portions of the lands in controversy, which applications were
denied both on the ground of the prior locations of the scrip and
that the applications were not made in good faith, but in fraud and
in violation of the preemption laws. And it was determined by the
local land office and sustained by the Commissioner of the General
Land Office and by the Secretary of the Interior that neither Hyde
nor McDonald ever had or obtained any rights whatsoever by reason
of their application or any subsequent proceedings, but,
notwithstanding, said Hyde and said McDonald
"made an attack upon the said decisions of the Land Department
sometime in November, 1885, and upon the location of the said
certificates
Page 183 U. S. 605
of scrip and the entry of lands thereunder."
A hearing was had on the 6th of April, 1886, and the local land
officers sustained the scrip locations. An appeal was taken to the
Commissioner of the General Land Office, and he held "adversely to
the scrip locations." An appeal was then taken to the Secretary of
the Interior. A hearing was had before the Secretary February 18,
1889, and he held and determined that neither Hyde nor McDonald had
any interest or valid claim to the lands, but notwithstanding, also
held that the scrip locations were illegal and invalid, and that
neither Orillie Stram nor those claiming under her were entitled to
the lands for the following reasons: (1) that the improvements made
upon the land when it was unsurveyed were not made under the
personal supervision of Orillie Stram, and that she had not had
personal contact with the land; (2) that the power of attorney to
Eaton to locate the scrip, and the power of attorney executed at
the same time to Leonidas Merritt to sell the lands which should be
located, operated as an assignment of the scrip, and were in
violation of the Act of July 17, 1854, and the entry of the lands
therefore was not for the benefit of said Orillie Stram; (3) that
the subsequent location and adjustment of the scrip to the lands
after the latter were surveyed were ineffectual in view of the
previous attempt to locate the scrip, and in view of his (the
Secretary's) decision relative to the question of improvements; (4)
that Orillie Stram had no power to alienate the lands before
location of the scrip, or to contract for the sale of them, or to
grant a power of attorney to sell the same for her after they
should be located, but held that she had the right to sell
immediately after location of the scrip. As a deduction from these
conclusions, the Secretary held that the lands were still public
lands, and open to entry. The decision of the Secretary was
attached to the findings as an exhibit.
That on the 31st day of March, 1886, and prior to the hearing
had before the local land office at Duluth, the said Orillie Stram
and her husband Roman Stram made and executed a deed for seven
ninths of the land in controversy to Frank W. Eaton, with warranty
of title. The deed was subsequently recorded in St. Louis and Lake
Counties.
Page 183 U. S. 606
The deed recited the location of the scrip in the land office at
Duluth, June 16, 1883, by Eaton, as the constituted and appointed
attorney in fact of the Strams, and that the title thereby vested
in Orillie Stram. It also recited the survey of the lands and the
adjustment of the scrip and entry to such lands, and
"thereby the aforesaid scrip and entry were adjusted July 21,
A.D. 1885, thereby specifically and perfectly describing the land
filed upon for me, the said Orillie Stram, by the said Frank W.
Eaton, and intended to be entered on June 15, A.D. 1883, in the
name of the said Orillie Stram, by our attorney in fact the said
Frank W. Eaton."
It also recited the power of attorney given to Leonidas Merritt,
acknowledged it, and ratified and confirmed the conveyance by him
to Eaton.
It was further found that, in pursuance of the decision of the
Secretary of the Interior, the lands were attempted to be thrown
open to public entry, and a patent was subsequently issued to Frank
Hicks, and that Frank Hicks and his wife conveyed the same to the
Midway Company, the plaintiff in error, "who now holds whatever
title thereto inured to the said Frank Hicks." That neither Orillie
Stram nor her husband, nor any of the defendants,
"were in any manner parties to the proceedings to the decision
of the Secretary of the Interior rendered on the 18th of February,
1889, and that said Hicks had at all times full knowledge of all
rights and claims of the defendants."
That the findings of fact of the Secretary of the Interior were
fully sustained by the evidence in the cause presented to him,
"except that it is found as a fact by this Court that the
improvements caused to be erected by Frank W. Eaton upon the said
premises consisted of a house about 14 by 16 feet in size, and it
is further found as a fact that from the evidence before the
Secretary of the Interior in said cause presented to him by the
record upon said appeal, it did not appear that the scrip referred
to in the decision of said Secretary had passed through many hands
or through any hands before coming into the hands of the said Frank
W. Eaton; nor did it appear that the powers of attorney to locate
said scrip and to convey the land located therewith had been
executed by the said Orillie Stram years before the location
thereof by the said Frank W. Eaton, but that,
Page 183 U. S. 607
on the contrary, it appeared from the evidence before the
Secretary that said powers of attorney were executed by the said
Orillie Stram about one week before the location of the said scrip
by the said Frank W. Eaton, and that the said powers did not
contain the names of the grantees. It is further found as a fact
that it did not appear from the evidence before the said Secretary
that the said Orillie Stram never saw the said lands; it did not
appear from the evidence before the said Secretary that she had
sold the said scrip long prior to the location thereof; it did not
appear from the evidence before the said Secretary that, for a long
time, she directly and positively repudiated Eaton and Merritt as
her attorneys in fact, denying that they acted for her in any
capacity whatsoever."
MR. JUSTICE McKENNA delivered the opinion of the Court.
The decision of the controversies in this case depends upon the
validity or invalidity of the scrip locations, either originally
when the land was unsurveyed or subsequently when the location was
adjusted to the land as surveyed.
The Act of Congress of July 17, 1854, 10 Stat. 304, c. 83,
authorized the issue of scrip to the half-breeds of the Sioux
Nation of Indians in exchange for certain lands, which scrip might
be located (1) upon any land within the Sioux half-breed
reservation, or (2) "upon any other unoccupied lands subject to
preemption or private sale," or (3) "upon any other unsurveyed
lands not reserved by government, upon which they [the half-breeds]
have respectively made improvements." It is provided in said act
"that no transfer or conveyance of any said certificates or scrip
shall be valid."
Page 183 U. S. 608
On the latter provision of the act the plaintiff in error bases
the contention that the scrip is not assignable, and that the power
of location is strictly personal to the Indian, and must be made
whether on surveyed or unsurveyed land either by him or for his
benefit, and that the improvements on unsurveyed land must be made
under his personal supervision and direction; that he must come in
personal contact with the land. And it is hence asserted that the
powers of attorney given to Eaton and Merritt were virtual
assignments of the scrip, and frauds upon the act of Congress; that
the improvements were made not by Orillie Stram, the half-breed, or
for her benefit, but by Eaton, and for his benefit, and that the
subsequent adjustment of the locations of the land after its survey
was made for him, not for her -- for his benefit, not for hers. On
the other hand, the defendants in error contend that the
prohibition against the assignment of the scrip is strictly of the
scrip as such, not of the rights or powers conferred by it. That
the provision of the statute is not a prohibition upon the
alienation of the land, but is intended to protect the government
against controversies about the transfer of the scrip, and to
require and secure all of the steps and proceedings to be in the
name of the Indian, and the title to be issued in his name. It is
claimed, therefore, that the requirements of the statute have been
observed; that the locations were made in the name of the Indian,
and for her benefit. And it is also claimed that if there was any
defect in the location upon the land when unsurveyed, by reason of
the insufficiency of the improvements or by whom erected, that
defect was supplied by the location of the scrip after the land was
surveyed and the acceptance of the location of the scrip by the
local land office, there being then no adverse rights to the land.
And further that the power of Eaton to make the location for the
Indian was ratified by her (if it needed ratification), and all
rights which inured to her were conveyed by her warranty deed to
Eaton.
These contentions exhibit the controversy between the parties,
and present the only questions upon which we think it is necessary
to pass, and the questions are certainly close ones. The Interior
Department has not always given the same answer to
Page 183 U. S. 609
them, and the latest decision of that Department is opposed in
the case at bar by the courts of Minnesota.
It is natural to respect the rulings of the Land Department upon
any statute affecting the public domain, and if the rulings were
contemporaneous with the enactment of the statute they afford a
somewhat confident presumption of its meaning. One of the reasons
is that the officers of the Land Department may have recommended
the statute -- indeed, may have written its words -- or, at any
rate, were familiar with the circumstances which induced the
legislation. We have not, however, in the case at bar, an exactly
contemporaneous construction of the act of 1854 by the Land
Department. The first circular of instructions was not issued until
March 21, 1857. It is, however, not without value, and it tends to
the support of the contentions of the defendants in error. The
circular stated that the scrip
"must be located in the name of the party in whose favor the
scrip is issued, and the location may be made by him or her in
person, or by his or her guardian."
And further:
"You will observe that this scrip is not assignable, transfers
of the same being held void; consequently each certificate, as
hereinbefore stated, can only be located in the name of the
half-breed, and such certificate or scrip are not to be treated as
money, but located acre for acre."
In the circular issued February 22, 1864, those instructions
were repeated, and the following added:
"When not located by the reservee in proper person, the
application to locate must be accompanied by the affidavit of the
agent that the reservee is living, and that the location is made
for the sole use and benefit of said reservee."
Prior to the issuance of the circular of February 22, 1864,
to-wit, in 1863, a contest came on appeal to the Land Department,
between a location made by Sioux scrip which was issued to one
Sophia Felix and a claim under a preemption settlement. The
Commissioner of the Land Department decided against the scrip
location on two grounds, one of which was
"That the location of the scrip, although made in her name, was
not made by her in person, nor by her guardian or duly authorized
agent, for her use and benefit, but by
Page 183 U. S. 610
an unauthorized person, and for the use and benefit of a person
having no legal interest therein."
The decision was reversed by the Secretary of the Interior, who
stated, through Otto, Assistant Secretary:
"As to your second objection, I remark that this kind of scrip
is by the law declared to be not assignable. In this case, Sophia
Felix has signed the application to locate her own scrip. The
signature must be treated by us as genuine when there is no proof
to the contrary and when she has made no complaint against this use
of her scrip. The fact that the scrip was carried to the land
office and the business transacted by another person does not
affect the validity of her entry of the land."
"As the certificate of location issued in her name, and the
patent will issue to her, neither the register's report nor the
affidavits of third parties can be admitted to establish the
interest of any other person in the location."
"We could not recognize such interest if an assignment in
writing was produced and duly proven to have been executed by the
half-breed -- whether she could sell or did sell the land after the
location of her scrip we need not inquire, and the validity and
effect of any such sale or assignment must be left to the
arbitrament of the courts of law. The location is valid on its
face, and the owner of the scrip, so far as she is represented at
all, demands the patent to issue in her name, and my decision is
that she is entitled thereto."
In 1872, a special circular was issued (1 C.L.L. 723) which
contained the following direction:
"That the application must be accompanied with the affidavit of
the Indian, or other evidence that the land contains improvements
made by or under the personal supervision or direction of said
Indian, giving a detailed description of said improvements, and
that they are for his personal use and benefit; in other words, you
should be satisfied that the Indian has a direct connection with
the land and is claiming the same for his personal use. Unless such
evidence is filed, you will reject the application."
In 1878, a new circular was issued which repeated the
provisions
Page 183 U. S. 611
of the circulars of 1864 and 1872, above quoted. (2 C.L.L. 1355;
5 C.L.O. 126.)
Then came the decision of the Secretary of the Interior, Vilas,
in Allen v. Merrill, 8 L.D. 207, and in Hyde and McDonald and Eaton
and Stram. They were affirmed on review by Secretary Noble. Those
cases laid down the propositions upon which plaintiff in error
relies in the case at bar. Between the decision in those cases and
that in the Felix case there was an interval of thirty years, and
pending that interval there were decisions of the courts which took
the same view as Secretary Otto expressed in the Felix case.
In
Gilbert v. Thompson, 14 Minn. 544, a conflict of
titles was presented based upon deeds from one Amelia Monette, a
Sioux half-breed. The action was ejectment, and the deed which
plaintiff relied on was executed by Amelia in person May 29, 1867;
the deed upon which defendant depended was executed by her attorney
in fact Benjamin Lawrence, July 18, 1857, under a power of attorney
dated May 27, 1857. The power of attorney authorized Lawrence to
act for Amelia as follows:
"For me and in my name to enter into and take possession of all
the real estate belonging to me or of which I may hereafter become
seised situated in the County of Wabasha, in the Territory of
Minnesota, and for me to lease, bargain, sell, grant, and confirm
the whole or any part thereof . . . and for me and in my name to
make, execute, acknowledge, and deliver unto the purchaser or
purchasers thereof good and sufficient conveyances."
Affirming the judgment which passed for defendant, the supreme
court of the state said, by Chief Justice Gilfillan:
"The act of Congress of 1854, under which Sioux half-breed scrip
was issued, provides 'that no transfer or conveyance of any of said
certificates or scrip shall be valid.'"
"It was the intention of Congress that the right to acquire
public lands by means of this scrip should be a personal right in
the one to whom the scrip issued, and not property, in the sense of
being assignable, but no restraint is imposed upon the right of
property in the land after it is acquired by location of the scrip.
In the scrip itself, the half-breed had nothing which
Page 183 U. S. 612
he could transfer to another, but his title to the land, when
perfected under it, was as absolute as though acquired in any other
way. It follows that any attempt to transfer the scrip, directly or
indirectly, would be of no effect as a transfer. The title to the
scrip would remain in him, and the title to the land acquired by it
would vest in him, just as though no such attempt had been made.
Such attempt to transfer would not involve any moral turpitude, nor
the breach of any legal duty, as is the case with an attempt to
transfer a preemptive right. It would be simply ineffectual,
because the scrip is not transferable."
"A power of attorney, so far as it intended to operate as a
transfer, would be of no avail; the right of the half-breed in the
scrip and land would remain the same; it could not be made
irrevocable, nor create any interest in the attorney. Should the
attorney sell under it, he would be accountable to his principal
precisely as in the case of any power to sell; but a simple power
to sell, executed by a half-breed, is good till revoked, and would
extend to lands subsequently acquired by means of scrip, if such
lands came within its terms. We think such a power could not be
varied by parol proof that the parties had an intention not
expressed in it, even to defeat the power, except on the same
grounds as would admit such proof in other cases. The intent to
transfer the scrip not being illegal, but only ineffectual, could
not affect the power where not expressed in the same instrument, or
in one equal in degree, as evidence. Whether the power to sell
would be upheld in an instrument, upon its face a transfer, the
former being only incidental, we do not decide."
Gilbert v. Thompson was affirmed and applied in
Thompson v. Myrick, 20 Minn. 205. The latter case came to
this Court (
99 U. S. 99 U.S.
291), and its doctrine was approved. The suit was for specific
performance. Thompson, who was plaintiff in the court below, was in
occupation of the land to which he was desirous of obtaining title.
Myrick was
"attorney in fact (duly constituted) of Francis Longie and
Joseph Longie, his son, then a minor under the age of fourteen
Page 183 U. S. 613
years, and of Francis Roi and Henry Roi, his son, then a minor
under the age of fourteen years, and was duly authorized to locate
certain half-breed scrip issued to said Joseph and Henry in
accordance with the provisions of the act of Congress approved July
17, 1854."
With a view to the location of the scrip for the benefit of the
beneficiaries, Myrick placed the same with powers of attorney in
the hands of Thompson, and at the same time entered into a written
agreement with Thompson in which he agreed that, upon the location
of the scrip, he would secure the title to the land located to be
lawfully vested in Thompson. The consideration was $2,800,
evidenced by a note payable in one year from its date, and to be
secured upon the land as soon as Thompson should acquire title.
Thompson located the scrip and demanded a conveyance of the title.
Myrick refused, and conveyed the land to his wife, who was also a
defendant in the suit. Specific performance was decreed by the
trial court, and the decree was affirmed by the supreme court of
the state. Among other defenses, it was urged that the agreement
between Myrick and Thompson was void as contravening the Act of
Congress of July 17, 1854. To the contention. the supreme court of
the state replied:
"As to the point that the real object of the contract was to
accomplish a transfer of the scrip, we see nothing to distinguish
this case in any important respect from
Gilbert v.
Thompson, 14 Minn. 544."
And further, in answer to the contention that the agreement was
void on common law grounds by reason of the relations of Myrick to
the grantees of the scrip, the court said:
"As the scrip was made nonassignable by the act of Congress (10
Stat. 304), and therefore no valid transfer or conveyance of the
same could be made, Myrick's relation to the scrippees was that of
an attorney in fact duly authorized to locate the scrip for them. .
. . As this relation was to end upon such location, we can conceive
of no reason why Myrick was not at liberty, either before or after
the location was made, to enter into an agreement to secure the
title (inuring from the location) to the plaintiff upon payment of
an agreed consideration. Such an agreement did not, so far as this
case shows, tend to produce a conflict between Myrick's private
interest and his duty to
locate the scrip to the best
advantage of his principals. "
Page 183 U. S. 614
These defenses were reviewed by this Court, and, commenting on
them, it was said by Mr. Justice Clifford:
"Attempt, it seems, was made in the argument of the case in the
supreme court of the state, to show that the terms of the agreement
were in conflict with the provisions of the act of Congress; but
the answer which that court made to the proposition, though brief,
is satisfactory and decisive."
And further:
"Holders of such certificates or scrip were forbidden to
transfer the same, and the defendants contended that the real
object of the agreement was to effect a transfer of the same; but
the state supreme court overruled the defense, and referred to one
of their former decisions, assigning the reasons for their
conclusion that the defense was not well founded.
Gilbert v.
Thompson, 14 Minn. 544."
"Since the case was submitted, the opinion of the court in that
case has been carefully examined, and the Court here concurs with
the state court that the case is applicable to the present case,
and that the reasons given for the conclusion are satisfactory and
conclusive. For these reasons, the Court is of the opinion that the
federal questions involved in the record, as set forth in the
assignment of errors, were decided correctly by the state supreme
court."
Secretary Vilas, in passing on the validity of the location in
the present litigation, in effect disagreed with the decision in
Gilbert v. Thompson, and expressed the view that
"all the documents,
besides any parol additions [the
italics are ours], are to be taken together to ascertain what in
effect the agreement was, and it will be judged according to its
nature as so ascertained,"
and applying this rule, he considered that the transaction
between Stram and Eaton was tantamount to a direct sale and
transfer of the scrip, accompanied by the declaration that, "to
circumvent the statutory prohibition," two letters of attorney have
been executed in blank, the one to locate the scrip and the other
to convey the land when the scrip shall be located, and an
agreement that, by whomsoever the letters of attorney may be
executed, no claim will be made by the Indian to the scrip or land.
And he concluded that, if letters of attorney
Page 183 U. S. 615
accompanying such a document would be invalid, the powers of
attorney to Eaton and Merrill constituted "a part of a transaction
which cannot be supported in law." Secretary Noble considered the
case more at length, and said:
"The controlling points in the case, as decided by the court,
plainly were (1) that a simple power to sell, executed by a
half-breed, such as the one there considered, would extend to lands
subsequently acquired by means of scrip, if within its terms, and
(2) that parol proof of an intent coincident with the creation of
the power to transfer the scrip could not be received to defeat the
power."
The first point was not controverted, and of the second it was
said that, as a rule of evidence, it might properly be enforced in
controversies between individual claimants, but that it did not
apply "against the government, whose interest it is, before it
parts with its title, to see that the law has been faithfully
complied with."
The learned Secretary regarded
Gilbert v. Thompson as
turning upon a rule of evidence, and that the court did not pass
upon the question which he was considering, and this, he said,
was
"clearly shown by their statement that 'we do not decide'
whether a power to sell contained in an instrument, on its face a
transfer, the power being merely incidental to the transfer, would
be upheld. That is the question here -- the only difference being
the manner of its presentation. It properly arises here on the
record; in
Gilbert v. Thompson, it did not, the evidence
of the transfer being excluded on technical grounds, and therefore
was not decided."
And he observed that
Thompson v. Myrick went no
farther, and was "in fact ruled on
Gilbert v. Thompson by
the state court, and that rule was affirmed by the Supreme Court
[this Court] on appeal."
We do not think those cases were as confined as represented. It
is very evident that the courts did not think that "parol
additions" could unite and make single the documents, or, when thus
united, they constituted a violation of the statute. And it is a
deduction from the opinions that it was not the manner of proof,
but the substance of what was proved or to be proved, that was
passed upon. If evidence was excluded in
Gilbert v.
Thompson, it was admitted and considered in
Thompson
v.
Page 183 U. S. 616
Myrick, and in both cases the delivery of scrip and its
location under letters of attorney were decided to be valid,
forming in one case a good title, and in the other constituting a
ground for a compulsory conveyance from the half-breed. The moral
and legal effect of the transfer of scrip was declared by the court
in
Gilbert v. Thompson. The first involved, the court
said, no "turpitude nor the breach of any legal duty, as in the
case of an attempt to transfer a preemption right;" of the second,
it was said it would be of no effect as a transfer; that
"the title to the scrip would remain in him [the half-breed],
and the title to the land covered by it would vest in him [the
half-breed] just as though no such attempt had been made."
The power of attorney, however, was given full legal effect as
authority to sell the land located. It is true the court excluded
parol evidence of an intention to transfer the scrip. But why?
Manifestly because the transactions did not constitute a transfer
of the scrip as such, and their legal character could not be
destroyed by parol proof that they were intended to be something
else. In other words, the court decided that the transactions were
intended as a conveyance of the land, and represented that
intention, and could not be shown to be a transfer of the scrip.
And in
Thompson v. Myrick, the court observed:
"We can conceive of no reason why Myrick was not at liberty,
either before or after location was made, to enter into an
agreement to secure the title [inuring from the location] to the
plaintiff upon the payment of an agreed consideration."
The reasoning and the conclusions of the Supreme Court of
Minnesota were approved by this Court, as we have seen.
The consideration of the location of scrip under the act of 1854
came before this Court again in
Felix v. Patrick,
145 U. S. 317. It
is a good complement to the other cases. It recognized, as they
did, the difference between the transfer of the scrip itself and
its location by or in the name of the half-breed, as a means of
conveying the land located upon. There are expressions in the
opinion that seem to go further, but they must be considered in
reference to the facts. It was said:
"The device of a blank power of attorney and quitclaim deed was
doubtless resorted to for the purpose of evading the provision
Page 183 U. S. 617
of the act of Congress that no transfer or conveyance of the
scrip issued under such act should be valid. This rendered it
necessary that the scrip should be located in the name and for the
benefit of the person to whom it was issued, but from the moment
the scrip was located and the title in the land vested in Sophia
Felix, it became subject to her disposition precisely as any other
land would be. In order, therefore, for the purchaser of this scrip
from Sophia Felix to make the same available, it became necessary
to secure a power of attorney or a deed of the land, and as the
scrip had not then been located, and the person who should locate
it was unknown, the name of the grantee and the description of the
land must necessarily be left blank."
And again:
"As the bill alleges that Patrick obtained possession of these
instruments while still in blank, he is clearly chargeable with
notice that they were intended as a device to evade the law against
the assignment of scrip."
Felix was a half-breed to whom scrip had been regularly issued.
It was obtained from her by some person unknown, "by wicked devices
and fraudulent means;" the power of attorney omitted the name of
the attorney, the number of the scrip, and the description of the
land. The quitclaim deed also omitted the name of the grantee and
the description of the land; otherwise, the instruments were in
legal form. The transaction was held to be a fraud upon Felix, and
Patrick was adjudged to hold the title he obtained by the location
of her scrip and the deed to him, as trustee for her. The court
made no question of the validity of the location. Indeed, it was
necessarily assumed, and the half-breed given the benefit of it. It
may be said that neither of the litigants was concerned to dispute
the location, or to assert the provision of the act of Congress
prohibiting the transfer of the scrip. If so, that provision, from
the point of view of the case at bar, was not in judgment, and the
expression in regard to it must therefore be strictly confined to
the facts and the issue which was presented.
This brings us to the consideration of the amount and kind of
improvements required by the act of 1854 to be erected upon
Page 183 U. S. 618
unsurveyed land. The act is not explicit. It does not define the
extent or kind of improvements. It permits a location to be made
upon "unoccupied land . . . upon which they [half-breeds] have
respectively made improvements." Residence is not required, either
initial or subsequent, temporary or continuous. The purpose of the
provision of the statute would seem therefore necessarily to be
identification, notice of appropriation, and the kind and extent of
improvements only to be necessary for that. But we may concede, as
held by Secretary Noble, "that the requirement of improvements must
have some substantial significance," and
"it is not satisfied by doing something which is a betterment of
the land but of too slight a character to mark anything more than a
pretext of compliance."
The improvements erected on the land in controversy satisfied
the rule whether they were as it is claimed Secretary Vilas found,
or were as the trial court found in the present case.
It is further urged that the improvements were not erected for
the benefit of the Indian, nor did she have "a direct connection
with the land;" and that those requirements are made conditions
precedent to a valid location by the circulars of the land office
issued in 1872 and subsequently.
1. It was decided in
Thompson v. Myrick, 20 Minn. 205,
that a valid location could be made by an attorney in fact of the
Indian, and that he could, "either before or after the location was
made," enter into an agreement to secure or convey the title. That
case was affirmed by this Court, and the facts of the case at bar
bring it within the ruling.
2. To consider the act of 1854 as requiring its beneficiaries to
have "a direct connection with the land and claim the same for his
personal use" would lead to great embarrassment, if not to
discrimination, between the beneficiaries. The effect of that
construction was expressed by the supreme court of the state as
follows:
"Under this law, the President was authorized to do what was
actually done -- issue to each person entitled several pieces of
scrip of different sizes or acreage. Was it expected that each of
these persons should be personally connected with the several
Page 183 U. S. 619
and separate improvements required to be made if all of the
pieces were located on unsurveyed lands, and would have to claim
the same for personal use? Surely not. This law contemplated, and
there were actually issued, several pieces of scrip to each of a
large number of minors. Babes in arms were held to be entitled, and
to them scrip was issued, and in many cases located before the
minors reached majority, as might reasonably be expected. With
these facts before us, can it be urged that Congress thought or
intended that these minors would be required by a construction of
the law personally to supervise the selection of from three to five
tracts of land on which to locate their pieces of scrip, or that
they would have to be directly connected with each of these
locations, or in case unsurveyed lands were desired they would have
to claim the necessary improvements as their own?"
It is impossible to escape the force of these observations and
to accept a construction of the statute which has the consequences
expressed. Upon the other points discussed by counsel we do not
consider it necessary to pass.
Judgment affirmed.
