BARTLETT et al. v. UNITED STATES.

March 3, 1913.)

(Circuit Court of Appeals, Eighth Circuit.

No. 3,839.

INDIANS (§ 15*)-LANDS-RESTRICTIONS ON ALIENATION-POWER OF CONGRESS. It is not within the power of Congress to impose restrictions on the alienation of land allotted to an Indian after the restrictions imposed by prior laws have expired and both the equitable and legal title has become vested in the allottee, and acts general in their terms should not be construed as intended to apply to such cases.

[Ed. Note. For other cases, see Indians, Cent. Dig. §§ 17, 29, 37-44; Dec. Dig. § 15.*]

Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.

Suit in equity by the United States against H. U. Bartlett and Theo. G. Lashley. Decree for the United States, and defendants appeal. Reversed.

George S. Ramsey and C. L. Thomas, both of Muskogee, Okl., for appellants.

John B. Meserve, Asst. U. S. Atty., of Muskogee, Okl. (William J. Gregg, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before SANBORN, Circuit Judge, and WM. H. MUNGER and TRIEBER, District Judges.

WM. H. MUNGER, District Judge. From the facts in this case it appears that one Moses Wiley, a duly enrolled three-quarters blood Indian, was, on the 30th day of June, 1902, allotted 160 acres of land, 40 acres of which was selected as a homestead. The remaining 120 acres of said allotment, not being a part of his homestead, is the land involved in this case. The patent to the land was issued to Wiley on March 10, 1903. On January 26, 1912, nearly nine years after the patent, Wiley and his wife conveyed the 120 acres, being his allotment other than the homestead, to one H. U. Bartlett, which deed was filed for record in the office of the register of deeds of Creek county, in the state of Oklahoma, on the 30th day of January, 1912, and duly recorded. On the 29th day of January, 1912, H. Ú. Bartlett and wife conveyed said lands by quitclaim deed to Theo. G. Lashley, which deed was, on the 30th day of January, 1912, filed for record in the office of the register of deeds of Creek county, Okl., and duly recorded.

On August 10, 1912, the United States filed its bill in equity in the United States District Court for the Eastern District of Oklahoma, seeking to have the said deeds from Moses Wiley and wife to H. U. Bartlett, and from H. U. Bartlett and wife to Theo. G. Lashley, canceled, annulled, and set aside, and the title quieted to said lands in Moses Wiley. Appellants filed a demurrer to the bill, which was overruled, and, appellants electing to stand upon their demurrer, a de

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

cree was entered as prayed in the bill, from which appellants prosecute this appeal.

Counsel for the government, in their brief, concede that under the terms of the act of Congress, under which the allotment was made to said Moses Wiley, the lands in question were impressed with a fiveyear period of restriction against alienation; that said five-year restricted period expired by limitation on the 8th day of August, 1907; that these lands were free from restrictions for the period of time intervening between the 8th day of August, 1907, and the 27th day of July, 1908. They claim that on the 27th day of May, 1908, Congress passed an act reimposing restrictions against the alienation of this land by said Moses Wiley, and they say:

"The single issue presented by this appeal, and the sole question before the court for its determination, is as to whether or no the surplus allotment of a Creek Indian of the three-quarter blood was alienable by the allottee on and after the 27th day of July, 1908."

The lands in question were allotted to Moses Wiley under an act of Congress of June 30, 1902 (32 Stat. 500, c. 1323). So much of that act as is applicable to the consideration of the question before us is found in section 16 of the act, and the applicable portion reads as follows:

"Sec. 16. Lands allotted to citizens shall not in any manner whatever or at any time be incumbered, taken, or sold to secure or satisfy any debt or obligation, nor be alienated by the allottee or his heirs before the expiration of five years from the date of the approval of this supplemental agreement, except with the approval of the Secretary of the Interior. Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any incumbrance whatever for twenty-one years from the date of the deed therefor, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear."

From this it clearly appears that the restriction upon the lands in question were limited to the period of five years from the date of the approval of the supplemental agreement. It is claimed by the government under act of May 27, 1908, a restriction against alienation was reimposed. So much of Act May 27, 1908, c. 199, found in 35 Stat. 312, as is applicable here, is found in the first section, as follows:

"That from and after sixty days from the date of this act the status of the lands allotted heretofore or hereafter to allottees of the Five Civilized Tribes shall, as regards restrictions on alienation or incumbrance, be as follows: * * * and enrolled mixed-bloods of three-quarters or more Indian blood, including minors of such degrees of blood, shall not be subject to alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-sixth, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe. The Secretary of the Interior shall not be prohibited by this act from continuing to remove restrictions as heretofore, and nothing herein shall be construed to impose restrictions removed from land by or under any law prior to the passage of this act.

It is contended on the part of appellants that the foregoing act of May, 1908, is inapplicable, as it expressly provided that the act should

not be construed as imposing restrictions removed from land by or under any law prior to the passage of that act; that, as the restrictions in this case had expired prior to the passage of the act, they came within the exception, for, as is argued, the restriction being imposed by an act of Congress, and limited to a period of five years, when that period expired the restriction was removed by the law which imposed it. It is unnecessary for us to pass upon the correctness of this statement, however, for we are of the opinion that it was not the intent, nor within the power, of Congress, to reimpose a restriction upon the alienation of lands, against which none at the time existed. True it is that the Supreme Court, in Tiger v. Western Investment Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738, held that it was within the power of Congress to continue or extend the period of restriction against alienation during the period of an existing restriction against alienation. The Supreme Court, however, in that case, expressly referred to the fact that the title to the allotment was still held by the United States in trust for the Indian; that, while the land was held by the United States in trust for the Indian allottee, it was competent for Congress to extend the trust period, and prohibit alienation during such extended period. We find nothing in that case holding that, after the trust period had expired and both the legal and equitable title had fully vested in the allottee, such allottee being a citizen of the United States, Congress could thereafter reach out and withdraw the land from alienation and taxation by the state and local municipalities. As soon as the title, both legal and equitable, to the land in question became vested in Moses Wiley, it was subject to taxation by the state and county authorities, and Moses Wiley had full dominion over the same, notwithstanding in many respects the government still retained a guardianship over him.

Suppose, for instance, Moses Wiley had received title to land by inheritance from a white ancestor? Could it be said that, because of the guardianship of the United States over him, Congress could deprive him of his full property rights in and to such land, and also withdraw the same from state or municipal taxation? It seems clear to us that it could not; and, if not, we fail to see upon what principle it can be said it can draw to itself control over the alienation of land, the title to which, both legal and equitable, it has conveyed to the Indian. In Mullen v. United States, 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834, it was held that the United States, though retaining its guardianship over the Choctaw Indians, could not maintain an action to set aside conveyances made by Choctaw Indians to lands against the alienation of which no restriction was imposed.

The only case brought to our attention wherein it has been held that the government, by virtue of its guardianship alone, could lawfully restrain an Indian from alienating lands to which he had the full title in fee, and in which the United States had no legal or equitable interest, is the case of United States v. Allen, 179 Fed. 13, 103 C. C. A. 1, in the opinion of which there is an expression to the effect that the government may impose such restriction. The question, however, was not involved in that case, and the expression to that ef

fect is mere obiter. The opinion in that case covered a number of cases, and was reviewed by the Supreme Court in 224 U. S. 415, 32 Sup. Ct. 425, 56 L. Ed. 820, under the title of Heckman v. United States, in 224 U. S. 448, 32 Sup. Ct. 494, 56 L. Ed. 834, under the title of Mullen v. United States, in 224 U. S. 458, 32 Sup. Ct. 544, 56 L. Ed. 841, under the title of Goat v. United States, and in 224 U. S. 471, 32 Sup. Ct. 549, 56 L. Ed. 847, under the title of Deming Investment Co. v. United States; and the judgment was reversed, in so far as it held that the United States could maintain an action to set aside conveyances made to lands after the restriction had terminated.

We are of opinion that, as the restriction against alienation of the lands in question expired, and the full title in fee vested in Moses Wiley, prior to the passage of the act of May 27, 1908, the United States has no such interest in the lands as entitles it to maintain this action.

The judgment is therefore reversed, and the cause remanded to the court below, with directions to sustain the demurrer and dismiss the bill.

ROUX V. COMMISSIONER OF IMMIGRATION AT PORT OF
SAN FRANCISCO.

(Circuit Court of Appeals, Ninth Circuit. February 24, 1913.)

No. 2,164.

ALIENS (54*)-PROCEEDINGS FOR DEPORTATION-FAIRNESS OF HEARING. Under the rules of the Department of Commerce and Labor, of November 30, 1911, governing hearings in case of aliens arrested for deportation as being unlawfully in the United States, which carefully provide that the alien shall be advised of his right to have counsel and his reply entered on the record, that if he selects counsel the latter shall have the right to be present, and to introduce evidence, and that any written argument filed by him shall be forwarded with the record to the Department, a woman so arrested, who did not speak English, and whose friends, although she was told of her right to have counsel, were advised by the inspector that it was not necessary, and led to believe that the case was not serious, in consequence of which she did not employ counsel, and as a result of the hearing was ordered deported, was not accorded the full and fair hearing intended by the rules; and the order based thereon is invalid.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. § 54.*]

Appeal from the District Court of the United States for the First Division of the Northern District of California.

Petition by Alexandrine Roux against the Commissioner of Immigration at the Port of San Francisco for a writ of habeas corpus. Writ denied, and petitioner appeals. Reversed.

This case comes here on appeal prosecuted by Alexandrine Roux from a judgment denying her release upon writ of habeas corpus; she being held by appellee for deportation as being an alien unlawfully within the United States, in that she has been "found employed by, in, or in connection with, a house of prostitution, or resort habitually frequented by prostitutes or where prostitutes gather."

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

The petition for the writ shows, among other things, that petitioner has for more than three years last past continuously next preceding the filing of the petition and the date of her arrest been an actual resident and denizen of and in the city and county of San Francisco, state of California, and has not within said time changed her said residence or domicile; that petitioner lawfully came into the United States from the republic of France about ten years ago, landing at New York about January 2, 1902, and thereafter came to San Francisco, which was more than three years ago; that about October 1, 1911, the Commissioner of Immigration at San Francisco unlawfully and by force arrested and imprisoned petitioner and now holds her in custody, and threatens to and will deport her, unless stayed by an order and judgment of this court; that petitioner is not a prostitute, but is a reputable woman, but is accused on the ground that she is employed by, in, and in connection. with, a house of prostitution solely and exclusively as a cook, in alleged violation of section 2 of the act of Congress of March 26, 1910 (Act March 26, 1910, c. 128, 36 Stat. 264 [U. S. Comp. St. Supp. 1911, p. 502]); "that at the hearing held by said Commissioner of Immigration your petitioner was denied the right to have an attorney or legal counsel to represent her at every or any stage of the proceedings; that she was advised that it was not necessary to have the services of an attorney or legal adviser to defend her; that, on the contrary, your petitioner by and through said Immigration Commissioner, his subordinate officers and employés, was forced to submit to an inquisition and compelled to answer the interrogatories of said officers, without being allowed the right of counsel, or any attorney to represent her;" that said charge was and is untrue, and that petitioner was ready to prove that she had resided within the United States, at San Francisco, for the period of time claimed by her; that she did not come within the provisions of the law invoked for her deportation; and that the provisions of said act of March 26, 1910, in so far as they apply to petitioner, are unconstitutional and void. Petitioner further alleges that she was not given a full or fair or any legal hearing before the Commissioner of Immigration, was denied the right of appeal to the Secretary of Commerce and Labor, and that such hearings as were had were merely private investigations made without petitioner's consent, and without her presence or her being represented by counsel. Wherefore she prayed that a writ of habeas corpus issue.

On October 24, 1911, the petitioner was brought before Inspector F. Watts on a warrant of arrest and made a statement under oath, P. Lohse acting as interpreter, from which it appears that her name is Alexandrine Roux, a widow; that she has two daughters, one being with her in San Francisco, and the other in France; that she lives in San Francisco, 1842 Mason street, with her daughter; that she first came to the United States about ten years ago; that she has been back to France, departing therefor April 13th, but returned again to the United States, arriving in New York August 29, 1911; that she has always worked for a living, her occupation being a cook, and has "always worked in houses of prostitution, because the wages there are a good deal higher than in other places," and she needed the money, but that she has never practiced prostitution, and did not know that the law prohibited aliens from working in or around houses of prostitution; that she had been working in Madam Nana's house only three weeks as cook and chambermaid.

At the end of the statement petitioner was informed by the inspector as follows: "By order of the Secretary of Commerce and Labor, in a telegram dated October 21, 1911, you have been arrested on the charge that you are an alien employed by, in, or in connection with, a house of prostitution. You have the right to be represented by counsel and to see all the evidence against you. You will also be enlarged upon furnishing satisfactory bond in the sum of one thousand dollars. Do you desire to avail yourself of the right of counsel?" To which she replied: "As soon as my friends come, I will be able to decide."

A continuation of the hearing was had at Angel Island, October 30th, before Inspector Ainsworth. The petitioner produced two witnesses in her behalf, namely, A. Esmiol and William M. Pellan. Esmiol had known petitioner