Opinion · Supreme Court of the United States
United States v. First Nat. Bank of Detroit
234 U.S. 245
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1914-06-08
- Topic
- general
How later courts describe this case
- “The responsibility for the justice or wisdom of legislation rests with the Congress, and it is the province of the courts to enforce, not to make, the laws.”
- distinction between full blood and mixed blood of any quantum upheld
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UpLaw has not yet analyzed United States v. First Nat. Bank of Detroit. The absence of a flag is not a finding that it is good law.
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UNITED STATESv. FIRST NATIONAL BANK,234 U.S. 245(1914)
34 S.Ct. 846
UNITED STATESv. FIRST NATIONAL BANK OF DETROIT, MINNESOTA.
UNITED STATESv. NICHOLS-CHISHOLM LUMBER COMPANY.
UNITED STATESv. NICHOLS-CHISHOLM LUMBER COMPANY.
APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
Nos. 873, 874, 875.
Argued April 7, 1914.
Decided June 8, 1914.
THESE suits were brought by the United States in the Circuit
Court of the United States for the District of Minnesota against
the appellees to set aside certain conveyances under and through
which the appellees claimed title to lands, particularly
described, in the White Earth Indian Reservation in Minnesota.
The decree of the District Court (which had succeeded the Circuit
Court) in the first two cases in favor of the Government was
reversed by the Circuit Court of Appeals for the Eighth Circuit,
while the decree dismissing the bill in the last case was
affirmed (208 F. 988).
By the treaty of March 19, 1867,16 Stat. 719, creating the
White Earth Indian Reservation, the Chippewas of the Mississippi
ceded all their land in Minnesota, except certain described
tracts, to the United States and the Government set apart the
White Earth Reservation for their use, and provision was made for
the certification to each Indian of not to exceed 160 acres of
the land of such reservation in lots of forty acres each, upon
the cultivation of ten acres, provided, that the land should be
exempt from taxation and sale for debt and should not be
alienated
Page 247
except with the approval of the Secretary of the Interior and
then only to a Chippewa Indian. The act of February 8, 1887, c.
119,24 Stat. 388, provided for the allotment of land in the
Indian reservations in severalty to the Indians and that (§ 5)
upon the approval of the allotments patents should issue therefor
in the name of the allottees, which should be of the legal effect
and declare that the United States held the land for twenty-five
years, in trust for the sole use and benefit of the Indian to
whom the allotment was made, or, in case of his death, of his
heirs, according to the laws of the State or Territory where the
land was located, and that at the expiration of that time the
United States would convey the same to the Indian or his heirs in
fee, discharged of the trust and free of all charge or
incumbrance whatsoever, provided that the President of the United
States might in his discretion extend the period, and provided
that any conveyance or contract touching the lands before the
expiration of the trust period should be null and void. The
Nelson Act of January 14, 1889, c. 24,25 Stat. 642, provided for
the relinquishment to the United States of that part of the
reservation remaining after the allotment, subject to the act of
February 8, 1887,supra, in severalty, to the Chippewa Indians
in Minnesota, the act to become operative only upon the assent of
a certain number of Indians being obtained. By the act of
February 28, 1891, c. 383,26 Stat. 794, the allotments were
limited to eighty acres to each Indian, but by the Steenerson Act
of April 28, 1904, c. 1786,33 Stat. 539, the maximum allotments
of the White Earth Reservation were made 160 acres. The acts of
June 21, 1906, c. 3504,34 Stat. 325, 353, and March 1, 1907, c.
2285,34 Stat. 1015, 1034, in what is known as the Clapp
Amendment, removed the restrictions upon alienation as respects
mixed blood Indians, but left the matter, so far as full bloods
were concerned, to the Secretary of the Interior.
The Government relied, in the first case, upon its title
Page 248
to a certain parcel of land as a part of the public domain set
apart as the White Earth Reservation, and the fact that, although
under the various acts of Congress above mentioned authority was
given to segregate certain parcels of land from others in the
reservation and to allot them to members of the Band, and
O-bah-baum, an Indian woman of that tribe, had been given a trust
patent, as provided for by the act of February 8, 1887,supra,
and had given a mortgage to the defendant in that case upon such
land, she had no right or authority so to do. It prayed that the
mortgage be annulled, as being a cloud upon the Government's
title.
The allegations of the complaints in the second and third
cases are the same, except that the allottee in the former is
named Bay-bah-mah-ge-wabe and in the latter Equay-zaince, and in
both cases that there are outstanding warranty deeds and
mortgages, that there were intermediate parties not made parties
of record, and that an accounting was asked for timber already
cut and an injunction from cutting standing timber.
The defendant in the first case, besides denying that the
reservation was a part of the public domain and alleging that the
property was that of the Indians and that after selection the
allottee acquired a fee simple title, notwithstanding the acts of
Congress, particularly set up the fact that O-bah-baum is a mixed
blood Chippewa Indian, and one of the class referred to in the
Clapp Amendment, and therefore emancipated from the pretended
supervision of the Government and able to transfer her property
as a citizen of the United States. The defendant also alleged
that under the facts, the Indians having made affidavit that they
were mixed bloods and the good faith of the defendant, the
Government should be required to place the defendantin statu
quobefore the relief asked could be granted. The Lumber
Company, defendant in the second case, and the defendants in the
third case, filed
Page 249
answers of similar purport, with the additional averment that
under the facts stated the matter relating to the timber was
immaterial, but if the court found against defendant's title they
would account for the timber cut by them.
By stipulation or introduction in evidence the following facts
were made to appear:
The three Indians here involved are adult Chippewa Indians,
residing upon the White Earth Reservation. O-bah-baum has some
white blood, derived from a remote ancestor, but not to exceed
one-thirty-second; Bay-bah-mah-ge-wabe has one-sixteenth of white
blood, and Equay-zaince has one-eighth of white blood.
A question having arisen with reference to the construction of
the term "mixed blood" as used in the treaty of September 30,
1854 (10 Stat. 1109), between the United States and the Chippewa
Indians of Lake Superior and the Mississippi, the Commissioner of
Indian Affairs in a letter to the Indian Agent at Detroit,
Michigan, said that "the term `mixed-bloods' has been construed
to mean all who are identified as having a mixture of Indian and
white blood. The particular proportion of each blood is,
therefore, immaterial, where the provision is so broad as that
stated in the treaty."
The Indian Agent at the White Earth Reservation after the
passage of the Clapp Amendment came to Washington to consult the
Commissioner of Indian Affairs, and was referred by him to the
Land Division, and, after discussing the situation with a man
represented to be in charge of such matters, it was agreed that
the act did not require a showing of any definite quantum of
foreign blood to constitute a mixed blood, and to his knowledge
this was the construction generally adopted by those who dealt
with the Indians on the White Earth Reservation. The Chief of the
Land Division at the time of the passage of the Clapp Amendment
testified that to his knowledge no question
Page 250
was raised as to the quantum of foreign blood. In a communication
dated October 6, 1910, to the Commissioner of Indian Affairs the
Special Assistant to the Attorney General and the Special Indian
Agent at Detroit, Minnesota, expressed the belief that the
attorneys for the Government were going to contend that the term
mixed blood should be interpreted to embrace only those of half
or less of Indian blood, and cited a certain act of the United
States (of February 6, 1909, c. 80,35 Stat. 600) in which the
term Indian was defined to include the aboriginal races
inhabiting Alaska when annexed to the United States and their
descendants of the whole or half blood, which act concerned the
sale of liquor or firearms to an Indian or half breed. They also
cited certain treaties with the Chippewas wherein it was shown
that half breeds are persons of less than half blood and not
regarded as Indians or members of the Chippewa nation: Article 3
of the treaty of July 29, 1837,7 Stat. 536; article 4 of the
treaty of October 4, 1842,7 Stat. 591; article 4 of the treaty
of August 2, 1847,9 Stat. 904; article 6 of the treaty of
February 22, 1855,10 Stat. 1165; and article 4 of the treaty of
March 19, 1867,16 Stat. 719, from which it was summarized that
in these treaties persons classed as half breeds or mixed bloods
or less than half blood were not recognized by the Government or
the Chippewas as Indians entitled to the rights and privileges of
Chippewa Indians unless by special provisions of treaties, as
theretofore shown. The Second Assistant Commissioner in his reply
of November 19, 1910, stated that the Office was inclined to give
the expressions "full bloods" and "mixed bloods" their ordinary
meaning which would be more reasonable than to hold that the term
full bloods included those of admitted pure blood and others
above the half blood. It was also said in his letter, however,
that a conference would be had with the Department of Justice,
and further advice given. The Commissioner of Indian Affairs
Page 251
said that he had never given an official construction to the term
mixed blood.
It was stipulated that in administering the Bureau of Indian
Affairs under the Clapp Amendment and especially in issuing
patents thereunder, the Department had not required any statement
as to the quantum of foreign blood, but had issued patents upon
the showing that the applicant was a mixed blood. Several
instances were shown by the records of allotments having been
made to allottees on the White Earth Reservation having but
one-sixteenth or one-thirty-second of Indian blood, while other
instances were shown where allotment had been denied because
applicant was of "doubtful blood."
A white man who had resided for a long time among the Chippewa
Indians stated that in the early period the terms mixed blood and
half breed were synonymous, applying to one of mixed white and
Indian blood, irrespective of the percentage, and that later the
term mixed blood was more commonly used, while the term half
breed was applied to one having nearly equal parts of white and
Indian blood. The general impression of business men in and about
the White Earth Reservation was that any Indian who had white
blood in his veins was a mixed blood.
Several very elderly Indians testified, however, that the
Indians regarded the term mixed blood as applying to those having
practically half white and half Indian blood.
The District Court, after stating that the question was one of
first impression, said that Congress intended competency to be
the test and came to the conclusion that an Indian having an
admixture of one-eight white blood might come within the term,
but that beyond that the white blood would not affect the
capacity of the Indian to manage his own affairs, and therefore
dismissed the bill in the third case and entered a decree in
favor of the complainants in the other two cases. The Circuit
Court of Appeals reached the conclusion that every Chippewa
Page 252
Indian having an identifiable mixture of other than Indian blood,
however small, is a mixed blood Indian and all others are full
blood Indians within the meaning of the Clapp Amendment, and
accordingly reversed the decree of the District Court in the
first two cases and affirmed the decree in the third case.
The history of the legislation involved shows the disastrous effects resulting from its improper application.
The term "mixed blood" is to be applied only to those Indians who possess a quantum of white blood amounting to one-half or more.
The act should be so construed as to subserve the well-defined and well-established policy of Congress.Holy Trinity Churchv.United States,143 U.S. 457;Durousseauv.United States, 6 Cranch, 307;Lionbergerv.Rouse, 9 Wall. 468, 475;UnitedStatesv.Freeman, 3 How, 556;United Statesv.Lacher,134 U.S. 624.
It has been the settled policy of Congress in dealing with the Indians to make competency alone the test for removing these restrictions.Smithv.Stevens, 10 Wall. 321, 326.
Congress having declared in plain and unmistakable language that lands allotted to these Indians would be held in trust for them for a period of twenty-five years, and the assent of the Indians to a cession of their reservation having been given in reliance upon that promise, no subsequent act of Congress should be construed to revoke this promise unless couched in language so plain and certain as to leave room for no other interpretation.Lone Wolfv.Hitchcock,187 U.S. 553.
Assuming the competency of the white man and the incompetency of the Indians, it is but reasonable in makingPage 253a classification based on blood to include in the competent class all who have more than one-half white blood and in the incompetent class all who have more than one-half Indian blood.Holy Trinity Churchv.United States,143 U.S. 457.
The act is to be interpreted according to the understanding of its terms among the Indians themselves.
Indian treaties and statutes modifying treaty rights will be construed as they are understood by the Indians and not necessarily in accordance with the technical terms employed by white men in framing them.Jonesv.Meehan,175 U.S. 1;Starrv.Long Jim,227 U.S. 613.
Provision for mixed bloods was made in treaties with the Chippewas by their request, and the identification of such mixed bloods was left to them.
That the Indians understood the words "mixed blood" in the sense for which the Government contends is clearly shown by uncontradicted testimony.
The meaning for which the Government contends is not foreclosed either by departmental construction or judicial decisions.
See alsoDeweesev.Smith, 106 F. 438;Jeffriesv.Ankeny,11 Ohio 372;Lanev.Baker,12 Ohio 237;LoneWolfv.Hitchcock,187 U.S. 553;Merrillv.Cameron,137 U.S. 542;Nor. Pac. Ry. Co. v.United States,227 U.S. 355;Thackerv.Hawk,11 Ohio 376;United Statesv.Kagama,118 U.S. 375.Mr. Ransom J. Powell, with whomMr. George T. SimpsonandMr. Ernest C. Carmanwere on the brief, for appellees:
The Clapp act was obviously designed to create an arbitrary classification.
The language is clear and explicit, and the term "mixed blood" had acquired a definite and well-understood meaning.Page 254
See 2 Kappler, Indian Laws and Treaties, pp. 147, 148, 173, 175, 207, 211, 218, 223, 269, 298, 301, 307, 338, 452, 464, 474, 492, 493, 499, 543, 568, 573, 649, 689, 692, 766, 774, 779, 798, 802, 841, 855, 862, 864, 881, 959, 975; Debates in Congress, 40 Cong. Record, pp. 1260et seq., 5738, 5739, 5784, 6041, 6044, 6046; vol. 41, p. 2337.
For definitions and use of "mixed blood" in decided cases, see Standard Dictionary; Century Dictionary; 14 Encyc. Britannica, 467; Hodge's Hand Book of American Indians, 1907, pp. 365, 850, and 913; 5 Words and Phrases, 4546; 27 Cyc. 811;Hamiltonv.Railway Co.,21 Mo. App. 152;Danielv.Guy,19 Ark. 121;Thurmanv.State,18 Ala. 276;Johnsonv.Norwich,29 Conn. 407;Van Campv.Board ofEducation,9 Ohio St. 407;Gentryv.McMannis, 3 Dana (Ky.), 382;Scottv.Raub,88 Va. 721,727;Jonesv.Commonwealth,80 Va. 538; North Carolina Statutes, § 5, c. 71; § 81, c. 31, act of 1836;Statev.Dempsey,31 N.C. 384;Statev.Chavers,50 N.C. 11;Hopkinsv.Bowers,111 N.C. 175;Statev.Davis, 2 Bailey (S. Car.), 558;Thackerv.Hawk,11 Ohio 77.
The tendency at that time was toward the removal of restrictions by arbitrary act of Congress. Ann. Rep. Indian Comm. 1905, p. 3.
For the act of May 27, 1908,35 Stat. 312, its history and the debate thereon, see 42 Cong. Record, pp. 5074-5078, 5425.
The interpretation of the term "mixed blood" necessitates the interpretation of the term "full blood." Congress made two classes, not three.
In seeking the intent of the legislature the first consideration is the natural, ordinary, and generally understood meaning of the terms used.United Statesv.Fisher, 2 Cr. 358;Lake Countyv.Rollins,130 U.S. 662;Sloanv.UnitedStates, 118 F. 285;United Statesv.Temple,105 U.S. 97;Maillardv.Lawrence, 16 How. 250;United Statesv.Pacific Ry. Co.,91 U.S. 72;Parsonsv.Hunter,Page 2552 Sumn. (U.S.) 422;Levyv.McCartee, 6 Pet. 102, 110;United Statesv.Goldenberg,168 U.S. 95,102;The CherokeeTobacco, 11 Wall. 616;Edison c. Co. v.U.S. Elect. Co., 35 F. 138.
A dispute over the meaning of a statute does not of itself show an ambiguity in the act.Nor. Pac. Ry. Co. v.Sanders, 47 F. 610;Shrevev.Cheesman, 69 F. 789;Webberv.St. Paul City Ry. Co., 97 F. 140;Swartzv.Siegel, 117 F. 13.
Subsequent experience is no guide to interpretation.UnitedStatesv.Un. Pac. Ry. Co.,91 U.S. 72;Plattv.Un.Pacific Ry. Co.,99 U.S. 48.
Where Congress has by apt terms created a class or drawn distinctions between classes of persons or objects it is not competent for the courts, under the guise of interpretation, to extend or limit the operation of the statute.United Statesv.Colorado Co., 157 F. 321;Brunv.Mann, 151 F. 145;United Statesv.Temple,105 U.S. 97;Minorv.Bank, 1 Pet. 44;Folsomv.United States,160 U.S. 121United Statesv.Choctaw Nation,179 U.S. 494;Piriev.Chicago,182 U.S. 438,451;The Paulina, 7 Cr. 52, 61;Barintzv.Casey, 7 Cr. 456, 468;United Statesv.Goldenberg,168 U.S. 95,102;Maxwellv.Moore, 22 How. 185, 191;Tigerv.Western Inv. Co.,221 U.S. 286;Thurmanv.State,18 Ala. 276.
The court is not at liberty to amend the statute or read words into it to make it conform to what the court may believe to be the spirit of the act or to escape injustice of the law.Maxwellv.Moore. 22 How. 185;United Statesv.Goldenberg,168 U.S. 95;Hobbsv.McLean,117 U.S. 567;Inre Conway and Gibbons,17 Wis. 526; 17 Op. Att'y Gen. 65;St. Louis Co. v.Taylor,210 U.S. 281;Haddenv.Barney, 5 Wall. 107;Gardnerv.Collins, 2 Pet. 92.
The practical construction by the Department of the Government and the dealings of the citizens with the subject in reliance upon that construction is entitled to considerationPage 256in cases of doubt.United Statesv.Un. Pac. Ry. Co., 37 F. 551;S.C.,148 U.S. 562;Le Marchalv.Tegarden, 175 F. 682;Pennoyerv.McConnaughy,140 U.S. 1;Malonnyv.Mahar,1 Mich. 26;Westbrookv.Miller,56 Mich. 148;United Statesv.Alabama Ry. Co.,142 U.S. 615;Kellyv.Multnomah County,18 Or. 356;Schellv.Fauche,138 U.S. 562;United Statesv.Moore,95 U.S. 760,763;Johnsonv.Ballow,28 Mich. 378;Kirkmanv.McClaughry, 160 F. 436;United Statesv.Bank of North Carolina, 6 Pet. 29; 2 Op. Att'y Gen. 558;In re State Lands,18 Colo. 359;Hillv.United States,120 U.S. 169,182;Blaxhamv.Light Co.,36 Fla. 519;Harrisonv.Commonwealth,83 Ky. 162;Statev.Holliday, 42 L.R.A. 826;Iowav.Carr, 191 F. 257;Heckmanv.United States,224 U.S. 413;United Statesv.Chandler-Dunbar Co., 152 F. 25;United Statesv.Walker, 139 F. 409;Railway Co. v.First Division c.,26 Minn. 31;Menardv.Massey, 8 How 292;Mageev.Hallett,22 Ala. 699,718.
Congress was familiar with apt terms to create a classification based upon a given quantum of Indian and other than Indian blood. If it had intended to make the classification urged by the Government, it could easily have said so. Indian treaties (previously cited); act of May 27, 1908,35 Stat. 312;Pennockv.Commissioners,103 U.S. 44;Smithv.Bonifer, 154 F. 883;Farringtonv.Tennessee,95 U.S. 679,689;Bankv.Mathews,98 U.S. 621,627;United Statesv.Koch, 40 F. 250;In re Drake, 114 F. 229;Moorev.U.S. Trans. Co., 24 How. 1, 32;Shawv.Railroad Co.,101 U.S. 557;Harringtonv.Herrick, 64 F. 469;Austinv.United States,155 U.S. 417;In re Downing, 54 F. 470, 474; 21 Op. Atty. Gen. 418;Louisville Trust Co. v.Cincinnati, 73 F. 726;Parkerv.United States, 22 Ct. Cl. 104;Gracev.Collector of Customs, 79 F. 319;Strodev.Stafford Justices, 1 Brock. (U.S.) 162;Ryanv.Carter,Page 25793 U.S. 83;Tompkinsv.Little Rock,125 U.S. 127;UnitedStatesv.Ryder,110 U.S. 739;Leavenworthv.UnitedStates,92 U.S. 744;Butzv.Muscatine, 8 Wall. 580;Jamesv.Milwaukee, 16 Wall. 161;United Statesv.Anderson, 9 Wall. 66;Lawrencev.Allen, 7 How. 796;Nor. Pac. Ry. Co. v.Dudley, 85 F. 86;In re Baker, 96 F. 957;In re Bauman, 96 F. 948;Steelev.Buell, 104 F. 970;United Statesv.Slazengerm, 113 F. 525;Exparte Byers, 32 F. 409;Ulmanv.Meyer, 10 F. 243;Hall's Case, 17 Ct. Cl. 46;The Cherokee Tobacco, 11 Wall. 616;Gardnerv.Collins, 2 Pet. 87.
"That all restrictions as to sale, incumbrance, or taxation for allotments within the White Earth Reservation in the State of Minnesota, heretofore [amended March 1, 1907, the word `heretofore' being substituted for the word `now'] or hereafter held by adult mixed-blood Indians, are hereby removed, and the trust deeds heretofore or hereafter executed by the Department for such allotments are hereby declared to pass the title in fee simple, or such mixed bloods upon application shall be entitled to receive a patent in fee simple for such allotments; and as to full bloods, said restrictions shall be removed when the Secretary of the Interior is satisfied that said adult full-blood Indians are competent to handle their own affairs, and in such case the Secretary of the Interior shall issue to such Indian allottee a patent in fee simple upon application."Page 258
It is at once apparent from reading this act that it deals with two classes, adult mixed blood Indians, concerning whom all restrictions as to sale, incumbrance or taxation are removed, and full blood Indians, whose right to be free from restrictions shall rest with the Secretary of the Interior, who may remove the same upon being satisfied that such full blood Indians are competent to handle their own affairs.
This case turns upon the construction of the words "mixed blood Indians." It is the contention of the Government that mixed blood means those of half white or more than half white blood, while the appellees insist, and this was the view adopted by the Circuit Court of Appeals, that the term mixed blood includes all who have an identifiable mixture of white blood. If the Government's contention be correct, it follows that for the purposes of this suit all of less than half white blood must be regarded as full blood Indians, all others as mixed bloods. Upon the appellees' contention the line is drawn between full bloods as one class and all having an identifiable admixture of white blood as the other.
If we apply the general rule of statutory construction that words are to be given their usual and ordinary meaning, it would seem clear that the appellees' construction is right, for a full blood is obviously one of pure blood, thoroughbred, having no admixture of foreign blood. That this natural and usual signification of plain terms is to be adopted as the legislative meaning in the absence of clear showing that something else was meant, is an elementary rule of construction frequently recognized and followed in this court.United Statesv.Fisher, 2 Cranch, 358, 399;Lake Countyv.Rollins,130 U.S. 662,670;Deweyv.United States,178 U.S. 510,521. Interpreted according to the plain import of the words the persons intended to be reached by the clause are divided into two and only two well-defined classes, full blood Indians and mixedPage 259bloods. There is no suggestion of a third class, having more than half of white blood or any other proportion than is indicated in the term mixed blood, as contrasted with full blood. If the Government's contention is correct, the Indians of full blood must necessarily include half bloods, and mixed bloods must mean all having less than half white blood and none others. Such construction is an obvious wresting of terms of plain import from their usual and well-understood signification.
But the Government insists that to effect the legislative purpose the words must be interpreted as the Indians understood them, and cases from this court (Jonesv.Meehan,175 U.S. 1;Starrv.Long Jim,227 U.S. 613) are cited to the effect that Indian treaties and acts to which the Indians must give consent before they become operative must be interpreted so as to conform to the understanding of the Indians as to the meaning of the terms used. The justice and propriety of this method of interpretation is obvious and essential to the protection of an unlettered race, dealing with those of better education and skill, themselves framing contracts which the Indians are induced to sign. But the legislation here in question is not in the nature of contract and contains no provision that makes it effectual only upon consent of the Indians whose rights and privileges are to be affected. Evidently this legislation contemplated in some measure the rights of others who might deal with the Indians, and obviously was intended to enlarge the right to acquire as well as to part with lands held in trust for the Indians.
The Government refers, in support of its contention, to reports of Congressional committees, showing after effects of this legislation, which was followed, as the reports tend to show, by improvident sales and incumbrances of Indian lands and wasteful extravagance in the disposition of the proceeds of sales, resulting in suffering to the former proprietors of the lands sold and mortgaged. ButPage 260these after facts can have little weight in determining the meaning of the legislation and certainly cannot overcome the meaning of plain words used in legislative enactments. If the effect of the legislation has been disastrous to the Indians, that fact will not justify the courts in departing from the terms of the act as written. If the true construction has been followed with harsh consequences, it cannot influence the courts in administering the law. The responsibility for the justice or wisdom of legislation rests with the Congress, and it is the province of the courts to enforce, not to make, the laws.St.Louis, Iron Mt. S. Ry. Co. v.Taylor,210 U.S. 281,294;Texas Cement Co. v.McCord,233 U.S. 157,163.
The Government further insists that its interpretation of the act is consistent with its policy to make competency the test of the right to alienate, and that the legislation in question proceeds upon the theory that those of half or more white blood are more likely to be able to take care of themselves in making contracts and disposing of their lands than those of lesser admixture of such blood. But the policy of the Government in passing legislation is often an uncertain thing, as to which varying opinions may be formed, and may, as is the fact in this case, afford an unstable ground of statutory interpretation.Haddenv.The Collector, 5 Wall. 107, 111. And again Congress has in other legislation not hesitated to place full blood Indians in one class and all others in another.Tigerv.Western Investment Co.,221 U.S. 286. In that case this court had occasion to deal with certain sections of the act of April 26, 1906, c. 1876,34 Stat. 137, providing that no full blood Indian of certain tribes should have power to alienate or incumber allotted lands for a period of twenty-five years, unless restrictions were removed by act of Congress. By section 22 of the act all adult heirs of deceased Indians were given the right to convey their lands, but for the last sentence of the section which kept fullPage 261blood Indians to their right to convey under the supervision of the Secretary of the Interior. Therefore all adult heirs of any deceased Indian other than a full blood might convey, but the full blood only with the approval of the Secretary of the Interior. In this important provision the restrictions were removed as to all classes of Indians other than full bloods. In other words, there as here, the Indians were divided into two classes, full bloods in one class and all others in the second class.
Furthermore, the appellees' construction accords with the departmental construction, as shown by the facts stipulated. Such was the construction given by the Indian Commissioner to the treaty of September 30, 1854,supra, wherein provision was made for mixed blood Indians among the Chippewas, and the Indian agent at Detroit, Michigan, was instructed by the Indian Commissioner that the term mixed blood had been construed to mean all who are identified as having a mixture of Indian and white blood. Such was the interpretation of the Department of Interior, in the first place at least, in administering the matter under the Clapp Amendment. It is true that the Government representatives at Detroit, Minnesota, were of the opposite opinion, for the reasons we have stated above, and that the Second Assistant Commissioner in his reply, while reaching the conclusion we have, stated that he would confer with the Department of Justice.
While departmental construction of the Clapp Amendment does not have the weight which such constructions sometimes have in long continued observance, nevertheless it is entitled to consideration, — the early administration of that amendment showing the interpretation placed upon it by competent men having to do with its enforcement. The conviction is very strong that if Congress intended to remove restrictions only from those who had half white blood or more, it would have inserted in thePage 262act the words necessary to make that intention clear, that is, we deem this a case for the application of the often expressed consideration, aiding interpretation, that if a given construction was intended it would have been easy for the legislative body to have expressed it in apt terms.Farringtonv.Tennessee,95 U.S. 679,689;Bankv.Matthews,98 U.S. 621,627;Tompkinsv.Little Rock Ft. S.R. Co.,125 U.S. 109,127;United Statesv.Lexington Mill Co.,232 U.S. 399,410.
Congress was very familiar with the situation, the subject having been before it in many debates and discussions concerning Indian affairs. This was a reservation inhabited by Indians of full blood and others of all degrees of mixed blood, some with a preponderance of white blood, others with less and many with very little. If Congress, having competency in mind and that alone, had intended to emancipate from the prevailing restriction on alienation only those who were half white or more, by a few simple words it could have effected that purpose. We cannot believe that such was the congressional intent, and we are clearly of opinion that the courts may not supply the words which Congress omitted. Nor can such course be induced by any consideration of public policy or the desire to promote justice, if such would be its effect, in dealing with dependent people.
We reach the conclusion that the Circuit Court of Appeals rightly construed this statute, and its decrees areAffirmed.Page 263