(250 U. S. 58) KENNY v. MILES et al. (39 Sup. Ct.) a relation. One, John Kenny, claimed to be a son and the sole heir; and the other, Laban Miles, claimed to be the surviving hus (Argued Jan. 24, 1919. Decided May 19, 1919.) band and an equal heir with Kenny. It was No. 179. conceded that Kenny was a son, but it was 1. INDIANS 15(2)—“RESTRICTED LANDS" disputed that Miles ever was the deceased's PARTITION OR SALE AFTER DEATH. ALLOTTEE'S STRICTION ON ALIENATION. Lands allotted in the name of an Osage Indian under Act June 28, 1906, whether allotted before or after her death, held, in view of sections 1, 2, 6, 7, and 8 thereof, restricted lands, so that, under Act April 18, 1912, § 6, they cannot be sold or partitioned after her death without approval of the Secretary of the Interior; neither she nor her heirs, who are of Osage blood and members of the tribe, having received a certificate of 'competency. husband. If he was such when she died, he and Kenny were equal heirs; otherwise Kenny was the sole heir. At the hearing in that proceeding Miles produced and relied on a judgment in a partition suit, which he had brought against Kenny in the district court of the same county, wherein it was found that he and the deceased were married about a year before her death, and that he remained her husband until she died. Over Kenny's protest, based on congressional enactments presently to be noticed, the county court treated that judg ment as a conclusive determination of the matters so found, and rejected evidence produced by Kenny to show that there had been no such marriage. It was accordingly adjudged that Miles and Kenny were equal heirs, and that decision was affirmed by the Supreme Court of the state. 162 Pac. 775. The case is here on writ of certiorari. Whether, consistently with the congressional enactments on which Kenny's protest was based, the judgment in the partition suit 3. INDIANS 15(2) - PARTITION OF INDIAN could be treated as conclusive of the matters LANDS-INOPERATIVE JUDGMENT. therein found is the ultimate federal question in the case. Lah-tah-sah was an Indian of the Osage Tribe, duly enrolled as such. This entitled her to share in the division and allotment of the lands and funds of the tribe under the Act of June 28, 1906, c. 3572, 34 Stat. 539. She died intestate August 19, 1908. Thereafter two tribal deeds naming her as grantee,1 and approved by the Secretary of the Inte rior, were issued under that act. The deeds were for lands allotted to her or in her right out of the tribal lands. One was for 160 acres designated as a homestead, and the other was for 500.12 acres designated as surplus lands. Both purported to pass a title in fee simple, subject to the conditions, limitations, and provisions of the act. It was to these lands that the judgment in the partilands as inherited from Lah-tah-sah, and tion suit related. That judgment treated the ordered that they be partitioned equally be not susceptible of partition in kind, that they tween Miles and Kenny as her heirs, or if be sold with a view to an equal division of the proceeds. By section 6 of the Act of April 18, 1912, c. 83, 37 Stat. 86, which is supplementary to As to the legal effect of the deeds issued to her after her death, see besides section 6 of the Act of 1906, Rev. Stat. § 2448 (Comp. St. § 5098); States v. Chase, 245 . S. 89, 101, 38 Sup. Ct. 24, 62 L. Ed. 168. v. Burcham, 1 Black, 352, 356, 17 L. Ed. 91; For other cases see same topic and KLY-NUMBER in all Key-Numbered Digests and Indexes Crews United "The lands of deceased Osage allottees, unless the heirs agree to partition the same, may be partitioned or sold upon proper order of any court of competent jurisdiction in accordance with the laws of the state of Oklahoma: Provided, that no partition or sale of the restricted lands of a deceased Osage allottee shall be valid until approved by the Secretary of the Interior." It was after this enactment that the partition suit was *begun, and there was here no approval by the Secretary of the Interior. and amendatory of the Act of 1906, it is pro-affairs the Secretary of the Interior may isvided thatsue to him a certificate of competency, authorizing him to sell and convey any of the lands deeded to him under the act other than his homestead, which where the certificate issues3 is to remain inalienable for twentyfive years, or during the life of the homestead allottee. Other sections reserve to the tribe for twenty-five years the oil, gas, coal and other minerals in the allotted lands and provide that the tribal funds and moneys, with specified exceptions, shall be placed to the credit of the several members "shown by the authorized roll" or their heirs, on the basis of a pro rata division and shall be held in trust by the United States for twenty-five years. The sixth section is as follows: Kenny's protest was based on the Acts of 1906 and 1912, and was to the effect that the lands to which the partition suit related were restricted lands, and that in consequence the judgment for their partition or sale was of no effect in the absence of the prescribed approval by the Secretary of the Interior. [1] The term "restricted lands" in section 6 of the Act of 1912 means lands the alienation of which is subject to restrictions imposed by Congress to protect the Indians from their own incompetency. This is shown by a later sentence in the same section and by various provisions in the Act of 1906. [2] To determine whether the lands ordered to be partitioned or sold were restricted requires some consideration of the Act of 1906, for it was under that act that they were allotted and the tribal deeds issued. By its first section the act makes the tribal roll as existing January 1, 1906, with eliminations and additions not material here, the authentic roll of the members for the purposes of the act. By its second section it provides that the tribal lands, with stated exceptions, shall be divided among the members in such way as to give each a fair share in acres; that every member "shown by the roll" shall be permitted to select three tracts of 160 acres each; that after all have made the three selections the remaining lands, with some exceptions, shall be divided as equally as practicable by a designated commission, and that "Fourth. Each member of said tribe shall be permitted to designate which of his three selections shall be a homestead,2 and his certificate of allotment and deed shall designate the same as a homestead, and the same *shall be inalienable and nontaxable until otherwise provided by Act of Congress. The other two selections of each member, together with his share of the remaining lands allotted to the member, shall be known as surplus land, and shall be inalienable for twenty-five years, except as hereinafter provided." "Sec. 6. That the lands, moneys, and mineral interests, herein provided for, of any deceased member of the Osage Tribe shall descend to his or her legal heirs, according to the laws of the territory of Oklahoma, or of the state in which said reservation may be hereafter incorporated, except where the decedent leaves no issue, nor husband nor wife, in which case said lands, moneys, and mineral interests must go to the mother and father equally." The seventh section shows that the allotted lands are for the sole use of the individual members, or their heirs, and that the same may be leased, subject to the restriction that to be effective "all leases," whether for the benefit of the individual members or their heirs, must have the approval of the Secretary of the Interior; and the eighth section provides that the deeds to allottees shall be executed by the principal chief of the tribe, but shall not be valid until the Secretary of the Interior approves them. The Act of 1912, in its sixth section, treats the restraints applicable to living allottees as also applicable to such of the heirs of deceased allottees as are members of the tribe, and expressly provides that— "When the heirs of such deceased allottees have certificates of competency * strictions on alienation are hereby removed." the re Lah-tah-sah died without receiving a certificate of competency. Kenny and Miles, who claim to be her heirs, are of Osage blood and members of the tribe, and neither has received such a certificate. Thus the case differs materially from Levindale Lead, etc., Co. v. Coleman, 241 U. S. 432, 36 Sup. Ct. 644, 60 L. Ed. 1080, where it was held to be obvious from an examination of the entire Act of 1906 that the restrictions on alienation were imposed to secure the welfare of In The second section further provides (para-dians-wards of the United States-and graph 7) that when any adult member is found fully competent to care for his own 2 A subsequent joint resolution permitted the homestead to be designated from lands in any one or more of the three selections. No. 19, 35 Stat. 1167. were not intended to apply to lands, or undivided interests therein inherited by white men who were not members of the tribe. There a white man, who as heir of a de See Aaron v. United States, 204 Fed. 943, 945, 946, 123 C. C. A. 265. (39 Sup.Ct.) ceased Osage wife and child took an un-[leases" on the part of heirs shall have the divided interest in lands allotted in their be- approval of the Secretary of the Interior. half after their death, was held to have an unrestricted right to alienate his interest; but the court was careful to indicate that it was not dealing with the interests of Indian heirs. We, therefore, are of opinion that the lands allotted in the Lah-tah-sah's name were restricted lands, whether allotted before or after her death. The Act of 1906 is quite unlike the earlier The Act of 1906 makes it plain that all acts considered in the cases of Mullen v. whose names were on the authentic roll were United States, 224 U. S. 448, 32 Sup. Ct. 494, to share in the division of the tribal property. 56 L. Ed. 834, and Skelton v. Dill, 235 U. S. They were the "members" among whom the 206, 35 Sup. Ct. 60, 59 L. Ed. 198, which are lands were to be allotted in stated portions. cited *in support of the conclusion below. Lah-tah-sah, being one of them, was entitled Those acts, as was pointed out in our opinto such an allotment. It was made in her ions, contained separate provisions for two name, but whether before or after her death classes of allotments-one to members living is left uncertain by the record. The court at the time, and the other in the right of debelow treated it as made after her death and ceased members. In the provisions dealing held that the lands were not restricted, its with the first class there were express redecision being put *on the ground that the re-strictions on the right of alienation, and in strictions on alienation are not applicable to those dealing with the second class there lands allotted in the right of deceased mem- was an entire absence of such restrictions. bers, but only to such as are allotted to mem- Because of this difference in terms, we held bers living at that time. We cannot assent that Congress intended that allotments of to that conclusion. the second class should be unrestricted. The Under the Act of 1906 the death of a mem- differences between those earlier acts and that ber entitled to an allotment does not extin- of 1906 are pronounced and reasonably can guish his right. According to the implication be explained on no other theory than that of the act and the administrative rulings, the Congress intended that all allotments under allotment still may be made in his name. the Act of 1906 should be restricted, subject Where this is done he is regarded as the al- of course to the issue of certificates of lottee and his heirs as taking by descent from competency. And that this is what was inhim. Such allotments and all others are tended becomes even more manifest when it made under one comprehensive provision, in is considered that in the meantime Congress which there is no distinctive mention of ei- had imposed other restrictions in respect of ther living or deceased members. The re- allotments under the earlier acts and in dostrictions are imposed by another provision ing so had discarded the distinction before equally comprehensive, and it makes no dis- made between the two classes of allotments tinction between lands allotted to living memso far as full-blood Indian heirs were conbers and those allotted in the right of de- cerned. Talley v. Burgess, supra. ceased members. Nor is any such distinction made in the section dealing with descent. The heirs are generally Indians, and seldom white men. When they are Indians they are equally within the occasion for the restrictions, whether the allotment be to a living member or in the right of one deceased, Talley v. Burgess, 246 U. S. 104, 108, 38 Sup. Ct. 287, 62 L. Ed. 600; and in either case some may be without any allotment of their own, because born after the time for closing the roll. Thus those who take under allotments made in the right of deceased members are no less within the letter and spirit of the restrictions than are other heirs. That all are intended to be protected is shown by the leasing provision, which requires that "all [3] We have seen that the provision in the act of 1912 under which the partition suit was brought and entertained declares that where the lands are restricted, as was the case here, no partition or sale shall be valid until approved by the Secretary of the Interior. No approval was given in this instance. In consequence the judgment ordering a partition or sale it had no other purpose—was inoperative. It could not be executed and was not binding on any one. The findings were part of it and were of no force apart from it. It results that Kenny's protest against the use made of that judgment was well grounded. Judgment reversed. who were first impleaded in the cause. These values it is not necessary to give nor to designate the properties to which they were attached, for the reason that the ownership of the properties, part before and part after the rendition of the commissioners' report, had become vested in the Tayabas Land Company. In accordance with the report judgment was rendered in favor of the land company for P81,412.75 with interest at the rate of 6 per cent. from the date of taking possession of the land. Motions for new trials were denied, and the case was taken to the Supreme Court of the Islands by the railroad company, and that court modified the judgment by reducing the award for one of the parcels, containing 16,094 square meters, to the sum of P6,500 In Error to the Supreme Court of the Phil- and the damages for the remaining parcels ippine Islands. were fixed at the same proportionate amount. Condemnation proceedings by the Manila *Messrs. David A. Baer, of Washington, D. C., and C. W. O'Brien, of Manila, P. I., for plaintiff in error. Messrs. Edward S. Bailey, of Washington, D. C., and C. A. De Witt, of New York City, for defendant in error. Mr. Justice MCKENNA delivered the opin ion of the Court. A case of eminent domain exercised by the railroad company to condemn twelve small parcels of land in Lucena, Province of Tayabas, Philippine Islands, in accordance with the petition of the railroad company. In accordance with the statutory provisions three commissioners were appointed to hear the parties and inspect the properties. They subsequently reported that the parties had been heard and that they, the commissioners, had inspected the properties and examined the same "inch by inch." That, indeed, is the ultimate inquiry but it depends, according to other contentions, upon the power of the Supreme Court over the report of the commissioners and to re view and consider the evidence. In other words, the weight that was to be given to the report of the commissioners as a matter of fact and law under section 246 of the Code of Civil Procedure of the Islands and to the findings of the Court of First Instance under sections 273 and 497 of the same Code. Section 273 describes the elements that must be considered in determining in a case where "the preponderance or superior weight of the evidence on the issues involved lies," and section 497 provides for the extent of the power of the Supreme Court to review and dispose of the case on ap*peal, and it is contended that the Supreme Court was bound, as the Court of First Instance was, to decide by the preponderance of the evidence determined in the same way. This may be conceded, and to what extent the Supreme Court satisfied the requirement of the section we shall presently consider after we have given attention to the more insistent contention based on section 246, which reads as follows: They made further detail of their proceedings, set forth certain causes for the increase in value of the properties in the four or five years preceding the hearing, even before the coming of the railroad to the town "so that the value of land near Cotta was quoted at P2.00 up per square meter, accord- "Upon the filing of such report in court, the ing to the importance and situation of the court shall, upon hearing, accept the same and land," but that the railroad had "undoubted-render judgment in accordance therewith; or, ly greatly influenced the rise in the prices of for cause shown, it may recommit the report to the commissioners for further report of the same lands." They reported, however, facts; or it may set aside the report and apthat, taking into consideration all the circum-point new commissioners; or it may accept the stances, benefits to the railroad and others, report in part and reject it in part, and may they unanimously fixed the values of the make such final order and judgment as shall pieces of property belonging to the parties secure to the plaintiff the property essential For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (39 Sup.Ct.) to the exercise of his rights under the law, and gation, that is, in determining upon the to the defendant just compensation for the land weight of the evidence, its estimate of the so taken; and the judgment shall require pay-values of the properties taken by the railroad ment of the sum awarded as provided in the next section, before the plaintiff can enter upon the ground and appropriate it to the public use." It will be observed that an alternative power is presented, either to accept the report and render judgment in accordance therewith or to make other dispositions of it or upon it; the latter, however, in a very general way. And the absence of detail encourages and gives some plausibility to controversy, but it is resolved, we think, against the contention of the land company by the analysis of the Supreme Court of the section. The court points out, quoting the section, that "it may accept the report in part and reject it in part;" and it observed that that situation alone might limit its, the court's, power if it were not "also empowered to make such final order as shall secure to the plaintiff the property essential to the exercise of his rights under the law, and *to the defendant just compensation for the land so taken." A comprehensive power, we may instantly say, and one required to be exercised and adequate when exercised to pass upon and finally adjudge the designated rights. And it gives facility to the statute, substitutes for circumlocution and delay di- | rectness and expedition, qualities that a statute of eminent domain should possess. The court further pointed out that the "final 'order and judgment' were reviewable by it by means of a bill of exceptions in the same way as any other 'action,'" and decided besides that section 496 of the Code was applicable. That section gives power in the exercise of appellate discretion to "affirm, reverse, or modify any final judgment, order, or decree of the Court of First Instance." And this discretion, the Supreme Court in the present case decided, extends to cases of eminent domain, and, where section 497 of the Code providing for motions for new trial had been complied with, it, the court, might "examine the testimony and decide the case by a preponderance of the evidence; or, in other words, retry the case on the merits and render such order or judgment as justice and equity may require." The final conclusion of the court was, rejecting the contention of appellants, that it had power "to change or modify the report of the commissioners by increasing or decreasing the amount of the award" if the facts of the case justified. And it was the conclusion of the court that the facts so justified; and, after a review of prior cases, it rejected the contention that its conclusion was in conflict with them. It will be observed, therefore, that the court considered that it was under the same obligation to determine the case by the preponderance of the evidence as was the Court of First Instance, and discharging its obli was different from that of the Court of First Instance. We are brought back, therefore, to the consideration of section 246 and the contention of appellants that under it the Supreme Court had transcended its powers in reducing the values found and reported by the commissioners, and "erred in holding as a matter of law that appellants were not entitled to recover the amount fixed by the commissioners," they being the tribunal to hear the evidence and view the premises, and that under section 246, their report being filed, the court was required "upon hearing to accept the same and render judgment in accordance therewith," there being no cause shown, it is contended, for recommitting the report or exercising any of the other alternatives permitted by the section. [1, 2] But, as we have seen, as to its power of action upon the report of the commissioners the court differed radically with the land company, and if we should, in deference to the land company's contention, admit there is ambiguity in section 246, we should be unable nevertheless to reverse the ruling of the Supreme Court of the Islands upon the local statutes, and we must assume the court gave consideration to all of the testimony and estimated the weight to be assigned to the report and to the declaration of the commissioners that they had examined "inch by inch" the properties involved. We say this only in passing. The case is here on writ of error, and we cannot examine questions of fact. Santos v. Roman Catholic Church, 212 U. S. 463, 29 Sup. Ct. 338, 53 L. Ed. 599; Ling Su Fan v. United States, 218 U. S. 302, 308, 31 Sup. Ct. 21, 54 L. Ed. 1049, 30 L. R. A. (N. S.) 1176; Harty v. Victoria, 226 U. S. 12, 33 Sup. Ct. 4, 57 L. Ed. 103; Gauzon v. Campania General, etc., 245 U. S. 86, 38 Sup. Ct. 46, 62 L. Ed. 165. Errors of law besides those stated above are asserted. For instance the company contends that the court used the evidence that had been introduced to prove title as evidence of value, and, further, assigned too much strength to it. Both propositions are too intimately associated with and dependent upon the whole case to be estimated in separation. The court's consideration, there fore, or its *judgment upon them, we cannot disturb. Indeed, the contention of the land company is but an instance of its broader contention of want of power in the Supreme Court to review the findings of the Court of First Instance or to disregard the report of the commissioners. Accepting the decision of the court upon those propositions, we necessarily affirm its judgment. Judgment affirmed. Mr. Justice BRANDEIS concurs in the result. |