The opinion
BELL, Special J.
(concurring). I concur in the opinion of the majority of the members of the court, by reason of the result, although I am not in complete accord with the manner of the statement of the law therein declared. I deem the original decision of this court on appeal erroneous, and am convinced that the plaintiffs should not be permitted to acquire and retain title to this land. The doctrine of “law of the case” is somewhat disturbing, and is not to be lightly regarded; yet it presents no insurmountable barrier, when a court has been lead into grave error. The legal question involved is a difficult one, and as I read the respective briefs, and recall the trend of the oral argument, I am convinced that both sides are in serious doubt as to the correctness of their position as to the law. I do not regard the action of the Supreme Court' of the United States in declining to review the former opinion of this court as tantamount to an affirmance thereof, and I fully realize the importance of termination of litigation when each party has had his day in court. But the same parties appearing in the former appeal are again before us. and such being the case, we are confronted with the duty of overruling and reversing the former opinion; and, such would be our moral duty, even though the United States Supreme Court might be said to have affirmed the decision we now overrule.
Such action may to many seem drastic, and to a degree presumptuous, but courts arc instituted for the promotion of justice between litigants, rather than for the purpose of establishing and enhancing the reputation for their members for legal and judicial acumen; and this court is by no means the first court, nor will it be the last court, to adopt similar views. Wm. H. Seward, Secretary of State in President Lincoln’s Cabinet, once said, “There is a higher law than the Constitution”; in other words, it is the true policy of all courts, this one included, to mete out justice in a particular case, where at all possible, be the consequences what they may.
When confronted with a situation such as presents itself here, where plaintiffs have so carefully mapped out and chartered their course, and fortified themselves with “adjective law” in a manner bidding defiance to the “substantive law,” and in conflict with all true conception of equity, a court should remember the God to whom its official oath is addressed, and his eternal commandments, and measure out justice according to its conception of Divine command, which is always superior to any secular authority :
“For this commandment, which I command thee this day, It is not hidden from thee: Neither is it far off. It is not in heaven, that thou shouldest say, — Who shall go up to heaven for us and bring it unto us, that we may hear it and do it? Neither is it beyond the sea, that thou shouldest say. —Who shall go over the sea for us and bring it unto us that we may hear it and do it? But the word is very nigh unto thee, in thy mouth and in thy heart, that thou mayest do it.” Deut. 30: 11-14, inc.
And Sir William Blaekstone, in his Commentaries, defines (municipal) law as “a rule of civil conduct, prescribed by the supreme power of a state, commanding what is right, and prohibiting what is wrong.”
In his dissenting opinion, Justice Young comments on the tendency of the white man to overreach the Indian. Unfortunately, this comment is amply justified by history. However, the Indians have been manipulated out of this ease by plaintiff; and the trial court has enjoined them from any further complaint; and so we must conclude that
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the sentiment of the plaintiff toward the Indians is expressed in this brief nursery rhyme:
‘ There lay on the banks of the River Nile, A very considerate crocodile,
His face took on a look of woe,
And his tears fell fast in the stream below. Tm mourning,’ he said, ‘the untimely fate, 'Of the dear little fish, which I just now ate’.”
And were we to adhere to the former opinion of this court, the Indians would be in no better position than they now are.
From its inception, the action and purpose of plaintiffs has not been at all commendable, and equity forbids that they should prevail. The prospect of equally dividing some $300,000 is most alluring, and failure of realization is naturally disappointing; and again we find a passage from Holy Writ, applicable, but hardly consoling to plaintiff, in Jer.
13:22:
“And if thou sayest in thine heart, wherefore eometh these things upon me? For the greatness of thine iniquity are thy skirts discovered, and thy heels made bare.”
For the reasons above given. I concur in the opinion of the majority.