(45 S.Ct.) of citizens by blood of the Creek Nation, ap- | court of appeals was right in sustaining the proved by the Secretary of the Interior March jurisdiction of the trial court. Denny v. 28, 1902, opposite Nos. 8291 and 8292 respectively." Thereupon the Commissioner held that Cheparney Larney was entitled to be enrolled under the foregoing act of Congress, and the application for his enrollment was accordingly granted. The appellee, Larney, is the son of Jacob and Bettie Larney, and the evidence shows that the allotment deed was delivered to Jacob, the father, and that appellee went into possession of the land under the deed some time prior to the commencement of this suit. It appears from the evidence that Jacob and Bettie Larney are not the same persons as "Big Jack" and "Bettie," but that they are citizens of the Creek Tribe and actually enrolled, with the approval of the Secretary of the Interior, at the right time, under the numbers 7968 and 8631. *515 Pironi, 141 U. S. 121, 124-125, 11 S. Ct. 966, *516 [1] On behalf of appellants it was contended that "Big Jack" and "Bettie," his wife, had three children, the youngest of whom was known as Cheparney Larney, and that it is to this child the decision of the Commissioner relates. In support of this if this court should now reverse the decree contention appellants insisted, and still in- and remand the cause, that amendment sists, that the requirement of the statute- could still be allowed by the trial court. that children born to citizens of the Creek Continental Ins. Co. v. Rhoads, 119 U. S. 237, Tribe "whose enroll*ment has been approved 240, 7 S. Ct. 193, 30 L. Ed. 380; Menard v. by the Secretary of the Interior prior to the Goggan, 121 U. S. 253, 7 S. Ct. 874, 30 L. date of the approval of this act" should be Ed. 914; Robertson v. Cease, supra, pages enrolled and receive allotments-necessitat- 650, 651; Horne v. George H. Hammond Co., ed an identification of the parents of the 155 U. S. 393, 15 S. Ct. 167, 39 L. Ed 197; child and a finding that they were enrolled Stuart v. Easton, 156 U. S. 46, 15 S. Ct. 268, with the approval of the Secretary together 39 L. Ed. 341. True, the practice of this with the names and numbers under which court has been to remit the question of they appeared on the tribal roll. Thus con- amendment to the lower court unless the struing the statute, it was and is insisted parties consented to an amendment here. that the recital in the decision of the Com- Udall v. Steamship Ohio, 17 How. 17, 18, 19, missioner, that the names of the parents of 15 L. Ed. 42; Kennedy et al. v. Georgia Cheparney Larney appear as "Big Jack" and State Bank et al., 8 How. 586, 610, 611, 12 "Bettie" opposite Nos. 8291 and 8292, con- L. Ed. 1209. But under section 954, Rev. clusively establishes that the individual en- Stats. (Comp. St. § 1591) the power of this rolled was the child of the persons identi- court, in its discretion, to allow such amendfied by these aliases and numbers. On the ments (see Kennedy et al. v. Georgia State other hand, the contention of appellees is Bank et al., supra; Anon., 1 Fed. Cas. 996, that no finding of this character is required No. 444), and its duty to do so in appropriate by the statute and that the recital is, there- cases, cannot be doubted. And where, as fore, not conclusive, but open to explanation here, the jurisdictional facts appear upon and contradiction. It thus appears that the the face of the record; where the very conright set up by appellees would be defeated tention of the party interposing the challenge by the construction of the act, as appellants to the jurisdiction is such as to plainly escontend, but would be supported by the op-tablish it, beyond the possibility of successposite construction. The case, therefore, in ful dispute, thus eliminating any element of fact is one arising under a law of the United surprise; and where the amendment must States within the meaning of section 24, sub- necessarily be allowed by the trial court, it division 1, of the Judicial Code (Comp. St. would be mere ceremony to reverse the de§ 991). See Osborn v. Bank of United States, cree and remit the purely formal making of 9 Wheat. 738, 822, 6 L. Ed. 204; Macon Gro- the amendment to the lower court. We shall, cery Co. v. Atlantic C. L. R. Co., 215 U. S. therefore, consider the bill as amended to 501, 506, 30 S. Ct. 184, 54 L. Ed. 300. conform to the facts of record and sustain [2-4] Upon this state of facts appearing the jurisdiction of the district court. See of record, we are of opinion that the circuit | Shaw v. Railroad Co., 101 U. S. 557, 560, 567, 25 L. Ed. 892; Thayer v. Manley, 73 N. Y. error but, on the contrary, establishes the conclusion of the lower courts by a clear pre305, 309, 310. ponderance. *517 Decree affirmed. (266 U. S. 507) WEBSTER v. FALL, Secretary of the No. 149. 1. Injunction 114 (3)-Secretary of Interior held necessary party to suit to compel disbursement of Indian funds under his control. [5-7] *We come then to the merits. The issues to be determined by the Commissioner are found in the act of Congress already quoted. A reading of that act demonstrates that the material facts to be found and, consequently, those alone which the findings of the Commissioner conclusively establish, are that the child was born between May 25, (Argued Dec. 11, 1924. Decided Jan. 5, 1925.) 1901, and March 4, 1905; that he was living on the latter date; and that his parents were citizens of the Creek Tribe of Indians whose enrollment had been approved by the Secretary of the Interior prior to the date of to Inquiry as the approval of the act. were whether the parents of the child known by other names, and, if so, what those names were, as well as the precise numbers under which they were enrolled, was incidental or collateral to the direct issue presented by the statute, which was, Were they enrolled with the approval of the Secretary of the Interior at the proper time? Recitals in respect of such matters or of other merely identifying circumstances such as the exact age of the child, its sex, etc. (Hegler v. Faulkner, 153 U. S. 109, 117, 118, 14 S. Ct. 779, 38 L. Ed. 653; Malone v. Alderdice, 212 F. 668, 129 C. C. A. 204; United States v. Lena (C. C. A.) 261 F. 144, 149, 150; Porter v. United States, 260 F. 1, 4, 171 C. C. A. 37) are not conclusive in subsequent proceedings about the same subject-matter. The principle of res judicata does not apply to points which come under consideration only collat erally or incidentally. Duchess of Kingston's Case, 2 Smith's Leading Cases (7th Am. Ed., Hare & Wallace) 609, 610 (*573); Hopkins v. Lee, 6 Wheat, 109, 114, 5 L. Ed. 218; Campbell v. Consalus, 25 N. Y. 613, 616, 617; People v. Johnson, 38 N. Y. 63, 64-66, 97 Am. Dec. 770. But apart from these considerations, parol evidence was admissible to resolve the latent ambiguity, disclosed by the record, arising from the use of names and aliases as though belonging to the same persons but, in fact, belonging to different per sons. [8] The evidence in respect of the identity of the child to whom the allotment was made #518 A suit for injunction to compel the Secretary of the Interior and an Indian agency superintendent acting under his direction to disburse funds under Act March 3, 1921, § 4, payment of which to complainant had been refused under Rev. Stats. § 2087, cannot be maintained where there has been no service on the Secretary and he has not appeared in the suit; he being a necessary party thereto. 2. Courts 107 Questions in record not passed on not decided as precedents. Questions which merely lurk in the record, and are not brought to attention of court nor ruled on, are not to be considered as decided, so as to constitute precedents. Appeal from the District Court of the United States for the Western District of Okla homa. Injunction by Nicholas Webster against Albert B. Fall, Secretary of the Interior, and others. From a decree of dismissal on the merits, plaintiff appeals. Reversed, with directions to dismiss for want of necessary party. *509 *Mr. Justice SUTHERLAND delivered the opinion of the Court. Appellant, an adult member of the Osage Tribe of Indians and without a certificate of competency, brought this suit against the Secretary of the Interior, Wright, the superintendent of the Osage Agency, and Wise, a special disbursing agent charged with the duty of paying and disbursing funds and moneys due individual Osage Indians, to se a mandatory injunction commanding and requiring that moneys and funds due appellant under the Act of March 3, 1921, § 4, c. 120, 41 Stat. 1249, 1250, be assigned and paid over to him, alleging that the same was is conflicting. Upon this *evidence both courts below found the fact to be that appellee, Larney, was the person to whom the Com-cure mission's decision related and to whom the allotment was made. The well-settled rule of this court is that where two courts have reached the same conclusion upon a question of fact it will be accepted here unless clear-being unlawfully withheld. The act requires ly erroneous. Bodkin v Edwards, 255 U. S. 221, 223, 41 S. Ct. 268, 65 L. Ed. 595; Baker v. Schofield, 243 U. S. 114, 118, 37 S. Ct. 333, 61 L. Ed. 626. An examination of the evidence not only fails to disclose such clear the Secretary to cause to be paid to each adult m mber of the Osage Tribe not having a certificate of competency one thousand dol lars quarterly, etc., payments to be made under the supervision of the superintendent of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (45 S.Ct.) the Osage Agency. But section 2087, Rev. Commissioner alone. We quote from the Stats. (Comp. St. § 4056), provides: opinion (pages 34, 35 [17 S. Ct. 228]): "No annuities, or moneys, or goods, shall be paid or distributed to Indians while they are under the influence of any description of intoxicating liquor, or while there are good and sufficient reasons leading the officers or agents, whose duty it may be to make such payments or distribution, to believe that there is any species of intoxicating liquor within convenient reach of the Indians," etc. In virtue of this provision payments to appellant were refused. This refusal is attacked by the bill of complaint upon the ground that section 2087 and all orders, rules, or regulations issued thereunder by the Secretary of the Interior, in so far as appellant is concerned, are unconstitutional. The facts upon which it was determined that appellant came within the statutory prohibition are not in question. [1] There has been no service upon the Secretary, and he has not appeared in the suit. The other defendants were served, the case went to trial, and the bill, after a hear *510 [2] Counsel for appellant directs our attention to other cases, where this court pro ceeded to determine the merits notwithstand ing the suits were brought against inferior or subordinate officials without joining the superior. We do not stop to inquire whether all or any of them can be differentiated from the case now under consideration, since in none of them was the point here at issue suggested or decided. The most that can be said is that the point was in the cases if any one had seen fit to raise it. Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents. See New v. Oklahoma, 195 U. S. 252, 256, 25 S. Ct. 68, 49 L. Ed. 182; Tefft, Weller & Co. v. Munsuri, 222 U. S. 114, 119, 32 S. Ct. 67, 56 L. Ed. 118; United States v. More, 3 Cranch, 159, 172, 2 L. Ed. 397; The Edward, 1 Wheat. 261, 275, 276, 4 L. Ed. 86. In any event, this case falls within the principles definitely established by the Gnerich and Smith Cases. *ing, was dismissed for want of equity and on the merits. But the suit was one which required the presence of the Secretary, and the bill should have been dismissed for want of a necessary party. Gnerich v. Rutter, 265 U. S. 388, 44 S. Ct. 532, 68 L. Ed. 1068; Warner Valley Stock Co. v. Smith, 165 U. S. 28, 34, 17 S. Ct. 225, 41 L. Ed. 621. The statutory direction to cause quarterly payments to be made (subject to section 2087) is addressed to the Secretary. The power and responsibility are his. Neither Wright nor Wise have any primary authority in the matter. They can act only under, and in virtue of, the Secretary's general or special direction. In the absence of it no payments or disbursements properly can be made. Authority in the superintendent to supervise such payments is not authority to cause them to be made. The statement of this court in the Gnerich Case (page 391 [44 S. (Argued Oct. 24, 1924. Decided Jan. 5, 1925.) Ct. 533]) is pertinent here: "They act under his direction and perform such acts only as he commits to them by the regulations. They are responsible to him and must abide by his direction. What they do is as if done by him. He is the public's real representative in the matter, and, if the injunction were granted, his are the hands which would be tied." In the Smith Case, suit was brought against the Secretary of the Interior and the Commissioner of the General Land Office to enjoin them from exercising further jurisdiction with respect to the disposition of certain public lands, from further trespassing upon complainant's right of quiet possession, and to command the issue of patents to plaintiff. The suit abated as to the Secretary because of his resignation, and it was held that it could not be continued against the Decree reversed, with directions to dismiss the bill for want of a necessary party. (266 U. S. 481) MORRISON v. WORK, Secretary of Interior, et al. No. 112. 1. Indians 3-United States acts as guardian for Indians and as trustee in possession, with respect to land ceded to government for sale and deposit of proceeds to Indians' credit. The United States, with respect to land ceded by Indians to the government under Act thereto providing for sale of lands and deposit Jan. 14, 1889, and agreements made pursuant of proceeds in treasury of the United States to the credit of Indians acts as a guardian for the Indians and as a trustee in possession. 2. United States 135-United States indispensable party to suit seeking interference with government's management and disposition of lands ceded to it by Indians for sale and deposit of proceeds to Indians' credit. Court will not interfere with government's management of lands ceded to it by Indians For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Mr. Justice BRANDEIS delivered the opinion of the Court. under Act Jan. 14, 1889, and agreements made] Underwood, of Washington, D. C., for appursuant thereto, providing for sale by govern- pellees. ment and deposit of proceeds in treasury of United States to credit of Indians, or with dis. position of lands or funds, on theory that such property under such act and agreements ceased to be tribal property, in action against government officials in which the United States itself is not a party, since the claim of the United States that such property is tribal is substantial claim, making the United States an indispensable party to the suit. [1] By the Act of January 14, 1889, c. 24, 25 Stat. 642, and agreements made pursuant thereto approved by the President March 4, 1890, the Chippewa Indians of Minnesota ceded to the United States their title to all lands constituting their reservations in that *483 3. United States 125-Cannot be sued with- state, except a *small portion of the White out consent of Congress. Earth and Red Lake reservations. The The United States government cannot be ceded lands were to be surveyed and classisued without consent of Congress. 4. Injunction 75-Court will not interfere with government's sale of land ceded by Indians and disposition of proceeds. Courts have no power to interfere by injunction with performance of functions committed to Department of Interior, under Act Jan. 14, 1889, and agreements made pursuant thereto, providing for sale by government of lands ceded to it by Indians and for deposit of proceeds in treasury of United States to credit of Indians, since in such case the government is not acting without authority and the right of the Indians is merely the right to a proper administration of the trust assumed by the government. 6. Injunction 5-Mandatory injunction issued to remedy and not to promote wrong. Mandatory injunction is issued to remedy wrong, and not to promote one. 7. Injunction 5-Mandatory injunction will not be issued to compel Secretary of Interior to permit Indians to receive allotments from reservation. Court will not by mandatory injunction compel Secretary of Interior to permit Indians to receive allotment from reservation under General Allotment Act Feb. 8, 1887, § 2 (Comp. St. § 4196), in view of Act Feb. 6. 1901 (Comp. St. §§ 4214, 4215), entitling any Indian who claims right to an allotment to bring suit therefor, and Indians' long acquiescence in course pursued by Secretary of Interior. fied into pine and agricultural lands, and were to be sold at a price not less than that fixed by the act; the proceeds were to be deposited in the treasury of the United States to the credit of the Chippewa Indians of Minnesota, and interest thereon was to be paid by the government at the rate of 5 per cent. Part of this interest was to be distributed annually in cash to heads of families and guardians of minor orphans, part thereof to other classes of Indians, and the remainder was to be applied, under the direction of the Secretary of the Interior, for the establishment and maintenance of free schools for the Indians. At the end of 50 years the so-called permanent fund was to be divided in equal shares and paid to the Indians then entitled thereto. The United States has exercised and is now exercising, in respect to the property dealt with in said act and agreement, the powers of a guardian for these Indians and of a trustee in posses Appeal from the Court of Appeals of the were considered in Minnesota v. Hitchcock, 185 U. District of Columbia. 1 The provisions of this act and later legislation S. 373, 385, 22 S. Ct. 650, 46 L. Ed. 954; Naganab v. Hitchcock, 202 U. S. 473, 26 S. Ct. 667, 50 L. Ed. 1113; Al-Fairbanks v. United States, 223 U. S. 215, 32 S. Ct. of Chippewas, 229 U. S. 498, 33 S. Ct. 811, 57 L. Ed. 1299; Johnson v. Gearlds, 234 U. S. 422, 34 S. Ct. 794, 58 L. Ed. 1383; La Roque v. United States, 239 U. Waller, 243 U. S. 452, 37 S. Ct. 430, 61 L. Ed. 843; S. 62, 36 S. Ct. 22, 60 L. Ed. 147; United States v. Lane v. Morrison, 246 U. S. 214, 38 S. Ct. 252, 62 L. 292, 56 L. Ed. 409; United States v. Mille Lac Band Bill by John G. Morrison, Jr., against bert Bacon Fall, Secretary of the Interior, for whom Hubert Work, Secretary of the Interior, was substituted, and others. Decree of dismissal was affirmed by the Court of Ap peals of the District of Columbia (290 F. 306), and plaintiff appeals. Affirmed. *482 Ed. 674. 2 Act June 27, 1902, c. 1157, 32 Stat. 400; Act Feb. *Mr. Webster Ballinger, of Washington, D. 20, 1904, c. 161, 33 Stat. 46; Act May 23, 1908, c. 193, C., for appellant. 35 Stat. 268; Act May 18, 1916, c. 125, 39 Stat. 123, 137; Act March 3, 1921, c. 119, 41 Stat. 1225, 1235; Act May The Attorney General and Mr. Harry L. 24, 1922, c. 199, 42 Stat. 552, 569. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (45 S.Ct.) necessary to promote their welfare. The United States is now exercising, under the claim that the property is tribal, the powers of a guardian and of a trustee in possession. Morrison's contention is that, by virtue of the act of 1889 and the agreements made thereunder, the ceded lands ceased to be tribal property and the rights of the Indians in the lands and in the fund to be formed became fixed as individual property. The Court of Appeals held this contention to be unfounded. We have no occasion to determine whether it erred in so ruling. The claim of the United States is at least a substantial one. To interfere with its management and disposition of the lands or the dertook to modify or to ignore rights of the the management and disposition as it deems Chippewas which had become fixed by the agreements approved March 4, 1890; that by carrying out the provisions of these later acts the defendants, in their official capacities, have subjected these Chippewas to great loss, and threaten further injury; and that each of the six acts is void, because it deprives them of property in violation of the Constitution. Three grounds of complaint rest upon charges that the defendants, acting officially, have, through mistaken and hence unauthorized exercise of powers granted by the act of 1889, inflicted, and threaten, further injury.3 The eighth ground of complaint is that loss has been inflicted and is threatened through failure to perform duties imposed by that act. The specific funds by enjoining its officials, would interprayers are for an injunction to restrain fere with the performance of governmental each of the threatened wrongs. There is also a prayer for general relief. The defendants moved to dismiss the bill. The motions were sustained, and leave was granted to amend. An amended bill was filed, defendants again moved to dismiss, a final decree of dismissal was entered by the trial court, and it was affirmed by the Court of Appeals of the District. 290 F. 306. The case is here on ap peal under section 250 of the Judicial Code. The objections presented by the motions to dismiss include lack of jurisdiction of the court over the subject-matter, lack of neces *485 *486 functions *and vitally affect interests of the United States. It is therefore an indispensable party to this suit.4 It was not joined as defendant. Nor could it have been, as Congress has not consented that it be sued." The bill so far as it complains of acts done pursuant to the later legislation, was properly dismissed for this reason, among others. [4] Second. The three grounds of complaint which rest upon charges that the defendants, acting under color of authority granted by the act of 1889, have inflicted and threaten injury by the exercise of powsary parties plaintiff and defendant, *and ers not conferred, have this in common. lack of merits. Every objection made involves Each complaint involves the charge that the the determination of the nature of the title officials have erred either in construing or of the Indians to the property in suit and in applying that act and the agreements apthe nature of the interest of Morrison there-proved March 4, 1890. The Court of Apin. The differences in character of the three peals held all of these charges to be unfoundclasses of complaint included in the bill re-ed. We need not consider the correctness of quire that each class be considered separate- the rulings. Nor need we consider whether ly. But it is not necessary either to state in detail the facts concerning each of the eight grounds of complaint, or to pass upon their merits. the errors complained of were decisions by a head of an executive department of the Government of the character not subject to judicial review. The bill was properly dismissed, so far as concerns these three The case at bar is unlike those in which relief by injunction has been granted against the head of an executive department, or other officer, of the government to enjoin an official act on the ground that it was not [2, 3] First. The four grounds of complaint which rest upon the charge that the defend-charges, because the plaintiff is not in a poants are depriving these Chippewas of their sition to litigate in this proceeding the legalproperty by carrying out the provisions of ity of the acts complained of. the six later acts of Congress, have this in common. Each complaint relates to some change made either in the method of managing and disposing of the ceded lands or in the disposition of the proceeds thereof. As to each, it is claimed that the defendants' acts are unlawful because Congress was powerless to make the change without the consent of the Chippewas. It is admitted that, as regards tribal property subject to the control of the United States as guardian of Indians, Congress may make such changes in Another ground of complaint relating to action of the government in recognizing the claim of Minnesota under the swamp land grant to a large area of the ceded lands has been withdrawn because of what is alleged to be a change in the policy of the Secretary of the Interior as indicated by the commencement of a suit in this court. Naganab v. Hitchcock, 202 U. S. 473, 26 S. Ct. 667, 50 L. Ed. 1113; Louisiana v. Garfield, 211 U. S. 70, 29 S. Ct. 31, 53 L. Ed. 92; New Mexico v. Lane, 243 U. S. 52, 37 S. Ct. 348, 61 L. Ed. 588. Compare Goldberg v. Daniels, 231 U. S. 218, 34 S. Ct. 84, 58 L. Ed. 191; Wells v. Roper, 246 U. S. 335, 337, 38 S. Ct. 317, 62 L. Ed. 755; Lambert Run Coal Co. v. Balti more & Ohio R. R. Co., 258 U. S. 377, 383, 42 S. Ct. 349, 66 L. Ed. 671. Turner v. United States, 248 U. S. 354, 359, 39 S. Ct. 109, 63 L. Ed. 291; United States v. Babcock, 250 U. S. 328, 331, 39 S. Ct. 464, 63 L. Ed. 1011. Compare Minnesota v. Hitchcock, 185 U. S. 373, 385, 22 S. Ct. 650, 46 L. Ed. 954. Ness v. Fisher, 223 U. S. 683, 32 S. Ct. 356, 56 L. Ed. 610. |