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In re BUDER et al.

(46 S. Ct.)

(Submitted on Motion for Leave to File March
1, 1926. Decided June 1, 1926.)

No.

1. Courts 379.

Original.

Supreme Court has power to issue writ of
mandamus to compel lower court to allow di-
rect appeal to Supreme Court.

2. Courts 379-Motion for leave to file peti-
tion for mandamus to compel lower court to
grant appeal to Supreme Court should be de
nied, where appeal will not lie, or relie"
sought cannot be granted.

Motion for leave to file petition for manda-
mus to compel lower court to allow an appeal
to Supreme Court should be denied, where it is
clear that appeal does not lie, or for other rea-
sons relief sought by petition cannot be granted.

3. Courts 394 (3)-National bank's action to
enjoin enforcement of tax levied on its stock-
holders under state statute held not to in-
volve constitutionality of state statute, but
question whether it was any longer in force,
and hence not one in which direct appeal
would lie to Supreme Court (Act Cong. March
4, 1923 [Comp. St. Supp. 1925, § 9784],
amending Rev. St. U. S. § 5219; Rev. St. Mo.
1919, § 12775; Judicial Code, §§ 238, 266, as
amended by Act Cong. Feb. 13, 1925,
[Comp. St. Supp. 1925, §§ 1215, 1243]).
National bank's action against taxing offi-
cers to enjoin enforcement of tax levied on its
stockholders under Rev. St. Mo. 1919, § 12775,
after adoption of Act Cong. March 4, 1923
(Comp. St. Supp. 1925, § 9784), amending Rev.
St. U. S. § 5219, held not to involve question of
constitutionality of state statute, but question
whether it was any longer in force, and hence
not one in which direct appeal to Supreme
Court would lie, under Judicial Code, § 266, as
amended by Act Cong. Feb. 13, 1925, § 1
(Comp. St. Supp. 1925, § 1243); there being
no right of direct appeal, under Judicial Code,
§ 238, as amended by Act Cong. Feb. 13, 1925,
§ 1 (Comp. St. Supp. 1925, § 1215).

4. Courts

394 (3).

To warrant direct appeal to Supreme Court under Judicial Code, § 266, as amended by Act Feb. 13, 1925, § 1 (Comp. St. Supp. 1925, $ 1243), question of constitutionality of statute must be substantial.

462

*Mr. Justice BRANDEIS delivered the opinion of the Court.

This is a motion by Buder and other taxing officers of the city of St. Louis for leave to file in this court a petition for a writ of mandamus against the federal District Judge of the Eastern Division of the Eastern Judicial District of Missouri, or, in the alternative, for a writ of certiorari to that court, and for a rule to show cause why such writs should not issue. The purpose of the petition is to compel the District Judge to allow a direct appeal to this court from a final decree entered by that court on December 7, 1925,

*463

against the taxing officers in a suit *brought
by the First National Bank in St. Louis for
a permanent injunction restraining the en-
forcement of a tax levied upon its stockhold-
ers. First National Bank v. Buder, 8 F.(2d)
883.

The decree was entered upon a hearing be-
fore a single judge. An interlocutory injunc-
tion had not been prayed for in the bill, or
otherwise sought. The taxing officers took an
appeal to the United States Circuit Court of
Appeals for the Eighth Circuit, which was
allowed and is now pending. Then they ap
plied to the District Judge for the allowance
also of a direct appeal to this court, because
they were uncertain whether the appeal lay
to it or to the Circuit Court of Appeals. The
District Judge refused the application, and
stated as his reasons that the appeal had
been properly taken to the Circuit Court of
Appeals, had been allowed, and was pending
there, and that this court did not have juris-
diction of the case on appeal. An applica-
tion for allowance of the appeal was then
presented to the Justice of this court assigned
to that circuit and was denied. Thereupon,
within three months after entry of the decree
in the District Court, this motion for leave
to file a petition for a writ of mandamus was
made.

[1-3] That this court has power to issue a writ of mandamus to compel a lower federal court to allow an appeal to this court has long been settled. Ex parte Crane, 5 Pet. 190, 8 L. Ed. 92; United States v. Gomez, 3 Wall. 752, 766, 18 L. Ed. 212. In a few instances the writ of mandamus has issued for that purpose. Vigo's Case, 21 Wall. 648,

Motion for Leave to File Petition for Man- 22 L. Ed. 690; Ex parte Jordan, 94 U. S.

damus.

William Buder and others move for leave
to file petition for mandamus to compel the
District Court to allow an appeal direct to
the Supreme Court from its judgment in
action by the First National Bank of St. Lou-
is against movants. 8 F.(2d) 883. Motion de-
nied.

Messrs. North T. Gentry, of Jefferson City,
Mo., and Oliver Senti, James T. Blair, and
Charles P. Williams, all of St. Louis, Mo., for
petitioners.

248, 24 L. Ed. 123; Ex parte Railroad Co.,
95 U. S. 221, 24 L. Ed. 355. In other cases,
where there was reason to believe that an
appeal was wrongly denied by the lower
court, and no other remedy appeared to be
available, this court granted the motion for
leave to file the petition and issued a rule
to show cause. Mussina v. Cavazos, 20 How.
281, 15 L. Ed. 878; Ex parte Cutting, 94
U. S. 14, 24 L. Ed. 49. Where it was clear

* 464

that the petitioner *had another remedy, the
motion for leave to file the petition was de-

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nied. Ex parte Virginia Commissioners, 112 | taken to the Circuit Court of Appeals, with U. S. 177, 5 S. Ct. 421, 28 L. Ed. 691. The ultimate review in this court if the case was motion should likewise be denied where it is of the class within its jurisdiction. Lemke clear that the appeal does not lie, or for v. Farmers' Grain Co., 258 U. S. 50, 53, 42 other reasons the relief sought by the peti- S. Ct. 244, 66 L. Ed. 458. To remove the tion cannot be granted. Ex parte Brown, 271 existing anomaly, and to prevent that which U. S. 645, 46 S. Ct. 489, 70 L. Ed. decided would otherwise have resulted from the reMay 10, 1926. Compare In re Green, 141 pealing provisions of the Act of February 13, U. S. 325, 12 S. Ct. 11, 35 L. Ed. 765; Iowa 1925, that act further amended section 266, v. Slimmer, 248 U. S. 115, 39 S. Ct. 33, 63 L. as amended by Act of March 4, 1913, c. 160, Ed. 158. In the case at bar we deem it clear 37 Stat. 1013, being Comp. St. § 1243, by that there was no right to a direct appeal adding at the end thereof: to this court. We therefore deny the motion for leave to file the petition.

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In support of the claim to a direct appeal, it is contended that the injunction complained of was granted on the ground that the state taxing statute violates the federal Constitution. The assignment of errors, which accompanied the petition for allowance of the appeal, alleged that the District Court erred, also, in not holding unconstitutional a recent federal statute involved. These con

"The requirement respecting the presence of three judges shall also apply to the final hearing in such suit in the District Court; and a direct appeal to the Supreme Court may be taken from a final decree granting or denying a permanent injunction in such suit." Comp. St. Supp. 1925, § 1243.

As so amended, section 266 also permits a direct appeal to this court from the final decree in those suits in which the hearing on an application for an interlocutory injunction is required to be before three judges.

tentions, if substantial, would have supplied the basis for a direct appeal under section 238 of the Judicial Code (Comp. St. § 1215), First National Bank v. Buder, supra, is not before that section was amended by Act Feb. a case of that character, because no state 13, 1925, c. 229, 43 Stat. 936, 938 (Comp. St. statute is assailed as being repugnant to the federal Constitution. The tax upon the Supp. 1925, § 1215). But section 238 was so far changed by that act that now there is shares in the bank was assessed as of June no right to such a direct appeal on constitu- 1, 1923, for the year 1924. It was assessed tional grounds, unless the case arises under pursuant to a statute in force ever since 1889, section 266 of the Judicial Code as amended which had been incorporated as section 12775 by that act (Comp. St. Supp. 1925, § 1243). in the Revised Statutes of Missouri of 1919. Otherwise it must go in the first instance to Prior to the Act of Congress of March 4, 1923, the Circuit Court of Appeals, and may come c. 267, 42 Stat. 1499 (Comp. St. Supp. 1925, § here only for the review of that court's ac- 9784), *amending section 5219 of the Revised Statutes of the United States (Comp. St. § 9784), that statute was confessedly valid and operative. It was then the only method of taxation permitted by the federal law. The act of 1923 enlarged the scope of the state's power to tax national banks. It authorized the state either to tax the shares of a na

tion.

The suits to which section 266 relates are

those in which the relief sought is an "in-
terlocutory injunction suspending or restrain-
ing the enforcement, operation, or execution
of any statute of a state by restraining the
action of any officer of such state in the en-
forcement or execution of such statute, or
in the enforcement or execution of an order
made by an administrative board or com-
mission acting under and pursuant to the
statutes of such state
ground of the unconstitutionality of such
statute." In any such suit the application

*465

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upon the

*for an interlocutory injunction was required to be heard before three judges, and from their decree a direct appeal lay to this court; but, prior to the Act of February 13, 1925, a final hearing in the suit was had before a single judge. Compare Patterson v. Mobile Gas Co., 271 U. S. 131, 46 S. Ct. 445, 70 L. Ed. 870, No. 225, decided April 26, 1926. From his decree a direct appeal to this court could be founded only upon the provisions of section 238 as originally enacted. Shaffer v. Carter, 252 U. S. 37, 44, 40 S. Ct. 221, 64 L. Ed. 445. Where the jurisdiction of the District Court was invoked upon other federal grounds, as well as the one attacking the constitutionality of the state statute, an appeal might be

*466

tional bank, or to include dividends derived therefrom in taxable income of the holder thereof, or to tax the income of the bank, and provided that the "imposition by said state of any one of the above three forms of taxation shall be in lieu of the others." In 1917 Missouri enacted a law (Laws 1917, p. 524) taxing income which, so far as here material, has remained in force without change. After the 1923 act of Congress, the state might, in the exercise of the option which that act conferred, have elected to tax national banks by taxing the income, instead of by taxing the shares as had theret➤ fore been done. The state did not by any new legislation signify its election among the three permissible modes of taxation. Because it had not done so, the District Court held the assessment void and enjoined the taxing officials. Whether it erred in so hold

1 Section 5219 of the Revised Statutes has been further amended by Act of March 25, 1926, c. 8, 44 Stat. 223.

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(46 S. Ct.)

ing is the question for decision on the appeal. [clusive jurisdiction to the United States for
[4] The claim that the tax is void rests, punishment therefor.
not upon a contention that the state statute

In Error to the District Court of the Unit

homa.

A

under which it was laid is unconstitutional, ed States for the Western District of Okla-
but upon a contention that the statute is
no longer in force. The state confessedly has
the same power to tax the shares that it had
before Congress enacted the 1923 amendment.
The argument is that, as the state after 1923
had the option to tax either the shares or
the income, it must manifest its election and
has not done so. Whether, in order to do

so, it must enact new legislation depends up-
on the construction of the act of Congress.
Whether, if this is not necessary, it has man-
ifested its election by the existing legislation,

*467

depends upon the construction of the state
statutes. But in neither of these questions is
the constitutionality of the state statutes in-
volved, and a substantial claim of unconstitu-
tionality is necessary for the application of
section 266. See Louisville & Nashville R. R.

Co. v. Garrett, 231 U. S. 298, 304, 34 S. Ct. 48,
58 L. Ed. 229. The decree is thus not one
from which a direct appeal lies to this court.
Additional objections to granting the mo-
tion for leave to file the petition are sug-
gested, but need not be considered.
Motion denied.

(271 U. S. 467)

UNITED STATES v. RAMSEY et al.
(Argued April 22, 1926. Decided June 1, 1926.)

1. Indians

No. 1061.

United

of
38 (2)-Authority
States to punish crimes committed by or
against Indians continued after admission of
Oklahoma as state, though authority to pun-
ish other crimes therein was ended (Rev. St.
§ 2145 [Comp. St. § 4148]).

Though authority of United States, under
Rev. St. § 2145 (Comp. St. § 4148), to punish
crimes occurring within state of Oklahoma, not
committed by or against Indians, was ended by
grant of statehood, authority in respect of
crimes committed by or against Indians con-
tinued after admission of state.

2. Indians 2.

Guardianship of United States over Osage
Indians has not been abandoned, and they are
still wards of the nation.

3. Indians 36-Murder of Osage Indian by
white men, on Indian allotment conveyed in
fee with restriction against alienation, held
committed in Indian country, within meaning
of law giving United States exclusive juris-
diction of punishment therefor (Rev. St.
§ 2145 [Comp. St. § 4148]).

Prosecution by the United States against John Ramsey and another for murder. demurrer to the indictment was sustained and the United States brings error, under Criminal Appeals Act March 2, 1907, c. 2564, 34 Stat. 1246.

Reversed.

Mr. William D. Mitchell, Sol. Gen., of Washington, D. C., for the United States.

Messrs. Wm. S. Hamilton, of Pawhuska, Okl., and S. P. Freeling, of Oklahoma City, Okl., for defendants in error.

*468

*Mr. Justice SUTHERLAND delivered the opinion of the Court..

The defendants in error, two white men, were charged, by an indictment returned in the court below, with the murder of one Henry Roan, a full-blood Osage Indian and a legal member of the Osage Tribe, commitIndian country, and in and upon the reservated "in Osage county, in said district, in the tion theretofore and then established by law of the United States for the Osage Tribe of Indians, on and in a certain tract of land therein which was then and there under the exclusive jurisdiction of the United States and comprised a restricted surplus allotment, *469

theretofore made under and according to *the Act of Congress approved June 28, 1906, * the title to which said allotment

*

*

was held in trust by the United States and was inalienable" by the allottee, who had never had issued to her a certificate of competency authorizing her to sell the allotment. The indictment is drawn under section 2145, Rev. St. (Comp. St. § 4148), which extends the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, to the Indian country, with certain exceptions not material here. The court below sustained a demurrer to this indictment upon the ground that the allotment described in the indictment as the locus of the crime was not Indian country within the meaning of section 2145. Thereupon, the construction of the statute upon which the indictment is drawn being involved, the case was brought here on writ of error under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246 [Comp. St. § 1704].

[1, 2] The authority of the United States under section 2145 to punish crimes occurring within the state of Oklahoma, not commit

The murder of an Osage Indian by white men, on an Indian allotment in Osage Indian Reservation conveyed in fee to allottee, sub-ted by or against Indians, was ended by the ject to restriction against alienation, was com- grant of statehood. United States v. Mcmitted in Indian country, within meaning of Bratney, 104 U. S. 621, 624, 26 L. Ed. 869; Rev. St. § 2145 (Comp. St. § 4148), giving ex-Draper v. United States, 164 U. S. 240, 17 S.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"Indian country" as used in section 2145. But the opinion makes it clear that the difference between a trust allotment and a restricted allotment, so far as that difference may affect the status of the allotment as Indian country, was not regarded as important. The court said:

471

Ct. 107, 41 L. Ed. 419. But authority in respect of crimes committed by or against Indians continued after the admission of the state as it was before (Donnelly v. United States, 228 U. S. 243, 271, 33 S. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710), in virtue of the long-settled rule that such Indians are wards of the nation, in respect of whom there "The explicit provision in the act of 1897, as is devolved upon the federal government "the to allotments, we do not regard as pointing a duty of protection and with the power" distinction but rather as emphasizing the in-. (United States v. Kagama, 118 U. S. 375, 384, tent of Congress in carrying out its policy with 6 S. Ct. 1109, 30 L. Ed. 228). The guardian-respect to allotments in severalty, where these ship of the United States over the Osage have been accompanied with restrictions upon Indians has not been abandoned; they are alienation or provision for trusteeship on the The allottees still the wards of the nation (United States part of the government. were permitted to enjoy a more secure tenure, v. Osage County, 251 U. S. 128, 133, 40 S. Ct. and provision was made for their ultimate own100, 64 L. Ed. 184; United States v. Nice, ership without restrictions. But, meanwhile, 241 U. S. 591, 598, 36 S. Ct. 696, 60 L. Ed. the lands remained Indian lands, set apart for 1192); and it rests with Congress alone to Indians under governmental care, and we are determine when that relationship shall cease unable to find ground for the conclusion that they became other than Indian country through the distribution into separate holdings, the government retaining control."

*470

*(Matter of Heff, 197 U. S. 488, 499, 25 S. Ct. 506, 49 L. Ed. 848; United States v. Celestine, 215 U. S. 278, 290, 30 S. Ct. 93, 54 L. Ed. 195).

*

rec

The essential identity of the two kinds of allotments-so far as the question here under [3] The sole question for our determina- consideration may be affected-was tion, therefore, is whether the place of the ognized in the Bowling Case, where it was crime is Indian country within the meaning said (page 487 [41 S. Ct. 562]) that in one class of section 2145. The place is a tract of land as much as the other "the United States posconstituting an Indian allotment, carved out sesses a supervisory control over the land of the Osage Indian reservation and con- and may take appropriate measures to make veyed in fee to the allottee named in the insure that it inures to the sole use and benefit dictment, subject to a restriction against of the allottee and his heirs throughout the alienation for a period of 25 years. That original or any extended period of restricperiod has not elapsed, nor has the allottee tion." In practical effect, the control of Conever received a certificate of competency au- gress, until the expiration of the trust or the thorizing her to sell. As pointed out in Unit-restricted period, is the same. ed States v. Bowling, 256 U. S. 484, 486, 41 Since Congress possesses the broad power S. Ct. 561, 65 L. Ed. 1054, there are two modes by which Indians are prevented from improvidently disposing of their allotments. One is by means of a certificate, called a trust patent, by the terms of which the government holds the land for a period of years in trust for the allottee with an agreement to convey at the end of the trust period. The other mode is to issue a patent conveying to the allottee the land in fee, but prohibiting its alienation for a stated period. Both have the same effect, so far as the power of alienation is concerned, but one is commonly called a trust allotment, and the other a restricted allotment. The judgment of the court below turns upon this narrow difference.

In United States v. Pelican, 232 U. S. 442, 34 S. Ct. 396, 58 L. Ed. 676, a case involving the murder of an Indian upon a trust allotment, this court held (page 449 [34 S. Ct. 399]) that trust allotments retain "during the trust period a distinctively Indian character, being devoted to Indian occupancy under the limitations imposed by federal legislation," and that they are embraced within the term

of legislating for the protection of the Indians wherever they may be within the territory of the United States, the question presented is not one of power but wholly one of statutory construction. Viewed from that

*472

premise, it would be *quite unreasonable to attribute to Congress an intention to extend the protection of the criminal law to an Indian upon a trust allotment and withhold it from one upon a restricted allotment, and we find nothing in the nature of the subject-matter or in the words of the statute which would justify us in applying the term "Indian country" to one and not to the other.

It follows that the judgment sustaining the demurrer to the indictment is erroneous, and must be reversed.

1 This refers to chapter 109, 29 Stat. 506 (Comp. St.

§ 4137), an act to prohibit the sale of intoxicating drinks to Indians. It provides that the term "Indian country" shall "include any Indian allotment while the title to the same shall be held in trust by the government, or while the same shall remain inalienable by the allottee without the consent of the United States.

(271 U. S. 432)

(46 S. Ct.)

UNITED STATES v. CANDELARIA et al. (Argued Nov. 18, 19, 1925. Decided June 1,

1. Indians

1926.)

No. 208.

2-Pueblo Indians and their

lands are subject to legislation of Congress, enacted in exercise of government's guardianship over Indian tribes and their property (30 Stat. 594; 33 Stat. 1069; 36 Stat. 560; 42 Stat. 1194).

In view of congressional legislation relative to Indian affairs in 30 Stat. 594, 33 Stat. 1069, 36 Stat. 560, and 42 Stat. 1194, the Pueblo Indians and their lands, are subject to legislation of Congress, enacted in exercise of the government's guardianship over the Indian tribes and their property.

2. Indians 15(1)-Law limiting alienation of Indian lands, except by treaty or convention, held to include Pueblo Indians, though not expressly referring thereto, since "Indian tribe," used therein, means body of Indians of same or similar race, united in community under one leadership or government, and inhabiting particular though sometimes ill-defined, territory (Rev. St. § 2116 [Comp. St. § 4100; 4 Stat. 730, § 12; 9 Stat. 587, § 7). Although Rev. St. § 2116 (Comp. St. § 4100), limiting alienation of Indian lands, except by treaty or convention, pursuant to Constitution originally adopted in 1834 in 4 Stat. 730, § 12, and extended over Indian tribes of New Mexico in 1851 (9 Stat. 587, § 7), does not expressly refer to Pueblo Indians, it nevertheless includes them within its provisions, since term "Indian tribe,' as used therein, is used in the sense of a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting particular, though sometimes ill-defined, territory.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Indian Tribe.]

3. Judgment 707-United States is not barred by judgment in suit involving title to lands of Pueblo Indians entered in state court, nor by judgment in similar action in federal court, where United States was not party and attorney representing Indians was not authorized by United States.

ployed and paid by United States, under au-
thority of 30 Stat. 594, and 42 Stat. 1194, the
United States is as effectually concluded there-
by as if it were a party to the suit.
5. Indians 27 (2).

State courts have jurisdiction to entertain suits involving title to lands of Pueblo Indians

and proceed to judgment or decree therein.

On Certificate from the United States Cir

cuit Court of Appeals for the Eighth Circuit. Suit by the United States against Jose Candelaria and others. From a decree of dismissal, the United States appealed to the Circuit Court of Appeals, which certified questions to the Supreme Court. Questions answered.

*434

*Mr. H. L. Underwood, of Washington, D. C., for the United States.

*435

*Mr. Frank W. Clancy, of Santa Fé, N. M., for Candelaria and others.

*437

*Mr. Justice VAN DEVANTER delivered the opinion of the Court.

In 1922 the United States brought a suit in the federal District Court for New Mexico against Jose Candelaria and others to quiet in the Indian pueblo of Laguma the title to certain lands alleged to belong to the pueblo in virtue of a grant from Spain, its recognition by Mexico, and a confirmation and patent by the United States. The suit was brought on the theory that these Indians are wards of the United States, and that it therefore has authority and is under a duty to protect them in the ownership and enjoyment of their lands. The defendants were alleged to be asserting a false claim to the lands, and *438

to be occupying *and fencing the same to the exclusion of the Indians. In their answer the defendants denied the wardship of the United States, and also set up in bar two decrees rendered in prior suits brought against them by the pueblo to quiet the title One suit was described as to the same lands. begun in 1910 in the territorial court, and transferred when New Mexico became a The United States is not barred by judg- state to the succeeding state court, where on ment in a suit involving title to lands of Pueb-final hearing a decree was given for the delo Indians in New Mexico entered in a state fendants on the merits. The other was decourt, or by judgment in a similar action in scribed as brought in 1916 in the federal DisUnited States District Court, where United trict Court, and resulting in a decree of disStates was not a party and attorney represent-missal on the grounds that the complaint dising Indians therein was not authorized so to do by the United States.

4. Judgment 675(2)-If decree rendered in suit involving title to land of Pueblo Indians was rendered in state court in suit prosecuted by attorney employed by United States, United States is as effectually concluded as if it were party to suit (30 Stat. 594; 42 Stat. 1194).

If decree involving title to lands of Pueblo Indians was rendered in a suit in state court begun and prosecuted by special attorney em46 S.CT.-36

closed that the matters presented “were res judicata and that there was no federal question in the case." In the replication the United States alleged that it was not a party to either of the prior suits; that it neither authorized the bringing of them, nor was represented by the attorney who appeared for the pueblo, and therefore that it was not bound by the decrees.

On the case thus presented the court held that the decrees operated to bar the prosecu

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