Opinion — United States v. First Nat. Bank of Detroit

UNITED STATES v. FIRST NATIONAL BANK. 245

234 U.S. Syllabus. 4

:

UNITED STATES v. FIRST NATIONAL BANK OF

DETROIT, MINNESOTA. ;

UNITED STATES v. NICHOLS-CHISHOLM LUM- i

BER COMPANY. t

UNITED STATES v. NICHOLS-CHISHOLM LUM-

BER COMPANY.

APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

Nos. 873, 874, 875. Argued April 7, 1914.—Decided June 8, 1914.

The natural and usual signification of plain terms is to be adopted as

the legislative meaning in the absence of clear showing that some-

thing else was meant.

The rule that werds in treaties with, and statutes affecting, Indians,

must be interpreted as the Indians understood them is not appli-

cable where the statute is not in the nature of a contract and does

not require the consent of the Indians to make it effectual.

The after facts have but little weight in determining the meaning of

legislation and cannot overcome the meaning of plain words used

in a statute; nor can the courts be influenced in administering a law

by the fact that its true interpretation may result in harsh conse-

quences.

The responsibility for the justice and wisdom of legislation rests with

Congress and it is the province of the courts to enforce, not to make,

the laws.

The policy of the Government in enacting legislation is often an un-

certain thing as to which opinions may vary and it affords an un-

stable ground of statutory construction.

Congress has on several occasions put full blood Indians in one class

and all others in another class.

If a given construction was intended by Congress, which it would have

been easy to have expressed in apt terms, other terms actually used

will not be given a forced interpretation to reach that result.

While the early administration of a statute showing the departmental

3

;

ae

ae

¥

e2

a

Bi

Por)

5&

Sa

4

"

4

ry

a

4

2

- “

af

oF

3

od

4

Se

Wie

ns 3 "

Sa SPSS see x PEPE OT feo 5-H ORT Sr Wen aS

had

Prey

Pn eee ae haa en epee ea OP

_——

42 sista is Pemet Oe eT

246 OCTOBER TERM, 1913.

Statement of the Case. 234 U.S.

construction thereof does not have the same weight which a long ob-

served departmental construction has, it is entitled to consideration

as showing the construction placed upon the statute by competent

men charged with its enforcement.

Courts may not supply words in a statute which Cong: >” has omitted;

nor can such course be induced by any consideration ot public policy

or the desire to promote justice in dealing with dependent people.

The Clapp Amendments of June 21, 1906, 34 Stat. 325, 353, and

March 1, 1907, Jd. 1015, 1034, removing restrictions imposed by the

act of February 8, 1887, upon alicnation of Chippewa allotments

as to mixed bloods apply to mixed bloods of all degrees and not only

to those of half or more than half white blood. Such was not the

congressional intent as expressed in the statute and this court can-

not interpret the statute except according to the import of its plain

terms.

208 Fed. Rep. 988, affirmed.

THESE suits were brought by the United States in the

Circuit Court of the United States for the District of

Minnesota against the appellees to set aside certain con-

veyances under and through which the appellees claimed

title to lands, particularly described, in the White Earth

Indian Reservation in Minnesota. The decree of the Dis-

trict Court (which had succeeded the Circuit Court) in the

first two cases in favor of the Government was reversed

by the Circuit Court of Appeals for the Eighth Circuit,

while the decree dismissing the bill in the last case was

affirmed (208 Fed. Rep. 988).

By the treaty of March 19, 1867, 16 Stat. 719, creating

the White Earth Indian Reservation, the Chippewas of

the Mississippi ceded all their land in Minnesota, except

certain described tracts, to the United States and the

Government set apart the White Earth Reservation for

their use, and provision was made for the certification to

each Indian of not to exceed 160 acres of the land of such

reservation in lots of forty acres each, upon the cultivation

of ten acres, provided, that the land should be exempt

from taxation and sale for debt and should not be alienated

ils ITS

LAAN REE

aA

ee

UNITED STATES v. FIRST NATIONAL BANK. 247

234 U.S. Statement of the Case.

except with the approval of the Secretary of the Interior

and then only to a Chippewa Indian. The act of Feb-

ruary 8, 1887, c. 119, 24 Stat. 388, provided for the allot-

ment of land in the Indian reservations in severalty to the

Indians and that (§ 5) upon the approval of the allotments

patents should issue therefor in the name of the allottees,

which should be of the legal effect and declare that the

United States held the land for twenty-five years, in trust

for the sole use and benefit of the Indian to whom the

allotment was made, or, in case of his death, of his heirs,

according to the laws of the State or Territory where the

land was located, and that at the expiration of that time

the United States would convey the same to the Indian or

his heirs in fee, discharged of the trust and free of all charge

or incumbrance whatsoever, provided that the President

of the United States might in his discretion extend the

period, and provided that any conveyance or contract

touching the lands before the expiration of the trust period

should be null and void. The Nelson Act of January 14,

1889, c. 24, 25 Stat. 642, provided for the relinquishment

to the United States of that part of the reservation remain-

ing after the allotment, subject to the act of February 8,

1887, supra, in severalty, to the Chippewa Indians in Min-

nesota, the act to become operative only upon the assent

of a certain number of Indians being obtained. By the

act of February 28, 1891, c. 383, 26 Stat. 794, the allot-

ments were limited to eighty acres to each Indian, but by

the Steenerson Act of April 28, 1904, c. 1786, 33 Stat. 539,

the maximum allotments of the White Earth Reservation

were made 160 acres. The acts of June 21, 1906, c. 3504,

34 Stat. 325, 353, and March 1, 1907, c. 2285, 34 Stat.

1015, 1034, in what is known as the Clapp Amendment,

removed the restrictions upon alienation as respects mixed

blood Indians, but left the matter, so far as full bloods were

concerned, to the Secretary of the Interior.

The Government relied, in the first case, upon its title

* PHU IG ee!

Wp’ IRDA

248 OCTOBER TERM, 1013.

Statement of the Case. 234 U.S,

to a certain parcel of land as a part of the public domain

set apart as the White Earth Reservation, and the fact

that, although under the various acts of Congress above

mentioned authority was given to segregate certain parcels

of land from others in the reservation and to allot them to

members of the Band, and O-bah-baum, an Indian woman

of that tribe, had been given a trust patent, as provided

for by the act of February 8, 1887, supra, and had given

a mortgage to the defendant in that case upon such land,

she had no right or authority so to do. It prayed that the

mortgage be annulled, as being a cloud upon the Govern-

ment's title.

The allegations of the complaints in the second and

third cases are the same, except that the allottee in the

former is named Bay-bah-mah-ge-wabe and in the latter

Equay-zaince, and in both cases that there are outstanding

warranty deeds and mortgages, that there were inter-

mediate parties not made parties of record, and that an

accounting was asked for timber already cut and an in-

junction from cutting standing timber.

The defendant in the first case, besides denying that

the reservation was a part of the public domain and alleg-

ing that the property was that of the Indians and that

after selection the allottee acquired a fee simple title, not-

withstanding the acts of Congress, particularly set up the

fact that O-bah-baum is a mixed blood Chippewa Indian,

and one of the class referred to in the Clapp Amendment,

and therefore emancipated from the pretended supervision

of the Government and able to transfer her property as a

citizen of the United States. The defendant also alleged

that under the facts, the Indians having made affidavit

that they were mixed bloods and the good faith of the

defendant, the Government should be required to place

the defendant in statu quo before the relief asked could

be granted. The Lumber Company, defendant in the

second case, and the defendants in the third case, filed

UNITED STATES vr. FIRST NATIONAL BANK. 249

234 U. 8. Statement. of the Case,

answers of similar purport, with the additional averment

that under the facts stated the matter relating to the tim-

her was immaterial, but if the court found against de-

fendant’s title they would account for the timber cut. by

them. .

By stipulation or introduction in evidence the following

facts were made to appear:

The three Indians here involved are adult Chippewa

Indians, residing upon the White Earth Reservation.

O-bah-baum has some white blood, derived from a remote

ancestor, but not to exceed one-thirty-second; Bay-bah-

mah-ge-wabe has one-sixteenth of white blood, and Equay-

zaince has one-eighth of white blood.

A question having arisen with reference to the construc-

tion of the term ‘mixed blood”’ as used in the treaty of

September 30, 1854 (10 Stat. 1109), between the United

States and the Chippewa Indians of Lake Superior and

the Mississippi, the Commissioner of Indian Affairs in a

letter to the Indian Agent at Detroit, Michigan, said that

“the term ‘mixed-bloods’ has been construed to mean all

who are identified as having a mixture of Indian and white

blood. The particular proportion of each blood is, there-

fore, immaterial, where the provision is so broad as that

stated in the treaty.”

The Indian Agent at the White Earth Reservation after

the passage of the Clapp Amendment came to Washington

to consult’ the Commissioner of Indian Affairs, and was

referred by him to the Land Division, and, after discussing

the situation with a man represented to be in charge of

such matters, it was agreed that the act did not require a

showing of any definite quantum of foreign blood to con-

stitute a mixed blood, and to his knowledge this was the

construction generally adopted by those who dealt with

the Indians on the White Earth Reservation. The Chief

of the Land Division at the time of the passage of the

Clapp Amendment testified that to his knowledge no ques-

PA TAF OE MYLAR RSL

a acti Ae

RO ee ee

bly ti ee iat

ae

POUT

fee ee Ee ee eee

yn es

py Bip nite eB Sl

i Samia

heer

250 OCTOBER TERM, 1913.

Statement of the Case. 234 U.S.

tion was raised as to the quantum of foreign blood. In a

communication dated October 6, 1910, to the Commis-

sioner of Indian Affairs the Special Assistant to the Attor-

ney General and the Special Indian Agent at Detroit,

Minnesota, expressed the belief that the attorneys for the

Government were going to contend that the term mixed

blood should be interpreted to embrace only those of half

or less of Indian blood, and cited a certain act of the

United States (of February 6, 1909, c. 80, 35 Stat. 600)

in which the term Indian was defined to include the

aboriginal races inhabiting Alaska when annexed to the

United States and their descendants of the whole or half

blood, which act concerned the sale of liquor or firearms

to an Indian or half breed. They also cited certain treaties

with the Chippewas wherein it was shown that half breeds

are persons of less than half blood and not regarded as

Indians or members of the Chippewa nation: Article 3 of

the treaty of July 29, 1837, 7 Stat. 536; article 4 of the

treaty of October 4, 1842, 7 Stat. 591; article 4 of the treaty

of August 2, 1847, 9 Stat. 904; article 6 of the treaty of

February 22, 1855, 10 Stat. 1165; and article 4 of the treaty

of March 19, 1867, 16 Stat. 719, from which it was sum-

marized that in these treaties persons classed as half

breeds or mixed bloods or less than half blood were not

recognized by the Government or the Chippewas as In-

dians entitled to the rights and privileges of Chippewa

Indians unless by special provisions of treaties, as there-

tofore shown. The Second Assistant Commissioner in his

reply of November 19, 1910, stated that the Office was

inclined to give the expressions “full bloods” and ‘‘mixed

bloods” their ordinary meaning which would be more

reasonable than to hold that the term full bloods included

those of admitted pure blood and others above the half

blood. It was also said in his letter, however, that a con-

ference would be had with the Department of Justice, and

further advice given. The Commissioner of Indian Affairs

UNITED STATES v. FIRST NATIONAL BANK. 251

232 U.S. Statement of the Case.

said that he had never given an official construction to the

term mixed blood.

It was stipulated that in administering the Bureau of

Indian Affairs under the Clapp Amendment and especially

in issuing patents thereunder, the Department had not

required any statement as to the quantum of foreign blood,

but had issued patents upon the showing that the applicant

was a mixed blood. Several instances were shown by the

records of allotments having been made to allottees on the

White Earth Reservation having but one-sixteenth or one-

thirty-second of Indian blood, while other instances were

shown where allotment had been denied because applicant

was of ‘“‘doubtful blood.”

A white man who had resided for a long time among the

Chippewa Indians stated that in the early period the terms

mixed blood and half breed were synonymous, applying

to one of mixed white and Indian blood, irrespective of

the percentage, and that later the term mixed blood was

more commonly used, while the term half breed was ap-

plied to one having nearly equal parts of white and Indian

blood. The general impression of business men in and

about the White Earth Reservation was that any Indian

who had white blood in his veins was a mixed blood.

Several very elderly Indians testified, however, that the

Indians regarded the term mixed blood as applying to

those having practically half white and half Indian blood.

The District Court, after stating that the question

was one of first impression, said that Congress intended

competency to be the test and came to the conclusion

that an Indian having an admixture of one-eighth white

blood might come within the term, but that beyond that

the white blood would not affect the capacity of the Indian

to manage his own affairs, and therefore dismissed the

bill in the third case and entered a decree in favor of the

complainants in the other two cases. The Circuit Court

of Appeals reached the conclusion that every Chippewa

4

”

¥

a

2

¥

£

RT me

TES ERT AAR SRT AND

eee ee etn et 2 ee

ree wk

1A ys

PENI LE ATL FLL RO TINY PTI IP EY,

ay Ons ae ae ee

252 OCTOBER TERM, 1913.

Argument for the United States. 234 U.S.

Indian having an identifiable mixture of other than Indian

blood, however small, is a mixed blood Indian and all

others are full blood Indians within the meaning of the

Clapp Amendment, and accordingly reversed the decree

of the District Court in the first two cases and affirmed

the decree in the third case.

The Solicitor General, with whom Mr. C. C. Daniels

and Mr. W. A. Norton, Special Assistant to the Attorney

General, were on the brief, for the United States:

The history of the legislation involved shows the dis-

astrous effects resulting from its improper application.

The term “‘mixed blood”’ is to be applied only to those

Indians who possess a quantum of white blood amounting

to one-half or more.

The act should be so construed as to subserve the well-

defined and well-estabiished policy of Congress. Holy

Trinity Church v. United States, 143 U. S. 457; Durousseau

v. United States, 6 Cranch, 307; Lionberger v. Rouse,

9 Wall. 468, 475; United States y Freeman, 3 How. 556;

United States-v. Lacher, 134 U.S. 624.

It has been the settled policy of Congress in dealing

with the Indians to make competency alone the test for

removing these restrictions. Smith v. Stevens, 10 Wall.

321, 326.

Congress having declared in plain and unmistakable

language that lands allotted to these Indians would be

held in trust for them for-a period of twenty-five years,

and the assent of the Indians to a cession of their reserva-

tion having been given in reliance upon that promise,

no subsequent act of Congress should be construed to

revoke this promise unless couched in language so plain

and certain as to leave room for no other interpretation.

Lone Wolf v. Hitchcock, 187 U.S. 553.

Assuming the competency of the white man and the

incompetency of the Indians, it is but reasonable in mak-

UNITED STATES v. FIRST NATIONAL BANK. 253

234 U.S. Argument for Appellees.

ing a classification based on blood to include in the com-

petent class all who have more than one-half white blood

and in the incompetent class all who have more than one-

Half Indian blood. Holy Trinity Church v. United States,

143 U.S. 457.

The act is to be interpreted according to the understand-

ing of its terms among the Indians themselves.

Indian treaties and statutes modifying treaty rights

will be construed as they are understood by the Indians

and not necessarily in accordance with the technical terms

employed by white men in framing them. Jones v.

Meehan, 175 U.S. 1; Starr v. Long Jim, 227 U.S. 613.

Provision for mixed bloods was made in treaties with

the Chippewas by their request, and the identification

of such mixed bloods was left to them.

That the Indians understood the words “mixed blood”

in the sense for which the Government contends is clearly

shown by uncontradicted testimony.

‘The meaning for which the Government contends is

not foreclosed either by departmental construction or

judicial decisions.

See also Deweese v. Smith, 106 Fed. Rep. 438; Jeffries

v. Ankeny, 11 Ohio, 372; Lane v. Baker, 12 Ohio, 237;

Lone Wolf v. Hitchcock, 187 U.S. 553; Merritt v. Cameron,

137 U.S. 542; Nor. Pac. Ry. Co. v. United States, 227 U.S.

355; Thacker v. Hawk, 11 Ohio, 376; United States v.

Kagama, 118 U.S. 375.

Mr. Ransom J. Powell, with whom Mr. George T. Simp-

son and Mr. Ernest C. Carman were on the brief, for ap-

pellees:

The Clapp act was obviously designed to create an arbi-

trary classification.

The language is clear and explicit, and the term “‘mixed

blood” had acquired a definite and well-understood

dost Nie Dh ai heh sas ae

EP OER Be MT oN Mee

fae id alt Saeko a

Seta te ok

ee

254 OCTOBER TERM, 1913.

Argument for Appellees. 234 U.S.

See 2 Kappler, Indian Laws and Treaties, pp. 147, 148,

173, 175, 207, 211, 218, 223, 269, 298, 301, 307, 338, 452,

464, 474, 492, 493, 499, 543, 568, 573, 649, 689, 692, 766,

774, 779, 798, 802, 841, 855, 862, 864, 881, 959, 975; De-

bates in Congress, 40 Cong. Record, pp. 1260 et seq., 5738,

5739, 5784, 6041, 6044, 6046; vol. 41, p. 2337.

For definitions and use of “mixed blood” in decided

cases, see Standard Dictionary; Century Dictionary; 14

Encyc. Britannica, 467; Hodge’s Hand Book of American

Indians, 1907, pp. 365, 850, and 913; 5 Words and Phrases,

4546; 27 Cyc. 811; Hamilton v. Railway Co., 21 Mo. App.

152; Daniel v. Guy, 19 Arkansas, 121; Thurman v. State, 18

Alabama, 276; Johnson v. Norwich, 29 Connecticut, 407;

Van Camp v. Board of Education, 9 Oh. St. 407; Gentry

v. McMannis, 3 Dana (Ky.), 382; Scott v. Raub, 88 Vir-

ginia, 721, 727; Jones v. Commonwealth, 80 Virginia, 538;

North Carolina Statutes, § 5, c. 71; § 81, c. 31, act of 1836;

State v. Dempsey, 31 N. Car. 384; State v. Chavers, 50

N. Car. 11; Hopkins v. Bowers, 111 N. Car. 175; State v.

Davis, 2 Bailey (S. Car.), 558; Thacker v. Hawk, 11 Ohio, 77.

The tendency at that time was toward the removal of

restrictions by arbitrary act of Congress. Ann. Rep.

Indian Comm. 1905, p. 3.

For the act of May 27, 1908, 35 Stat. 312, its history

and the debate thereon, see 42 Cong. Record, pp. 5074-

5078, 5425.

The interpretation of the term “‘mixed blood” necessi-

tates the interpretation of the term ‘‘full blood.”” Con-

gress made two classes, not three.

In seeking the intent of the legislature the first consider-

ation is the natural, ordinary, and generally understood

meaning of the terms used. United States v. Fisher, 2 Cr.

358; Lake County v. Rollins, 130 U.S. 662; Sloan v. Uniied

States, 118 Fed. Rep. 285; United States v. Temple, 105

U. S. 97; Maillard v. Lawrence, 16 How. 250; United

States v. Pacific Ry. Co., 91 U. S. 72; Parsons v. Hunter,

UNITED STATES v. FIRST NATIONAL BANK. 255

234 U.S. Argument for Appellees.

2 Sumn. (U. 8.) 422; Levy v. McCartee, 6 Pet. 102, 110;

United States v. Goldenberg, 168 U.S. 95, 102; The Cherokee

Tobacco, 11 Wall. 616; Edison &c. Co. v. U. S. Elect. Co.,

35 Fed. Rep. 138.

A dispute over the meaning of a statute does not of

itself show an ambiguity in the act. Nor. Pac. Ry. Co.

v. Sanders, 47 Fed. Rep. 610; Shreve v. Cheesman, 69

Fed. Rep. 789; Webber v. St. Paul City Ry. Co., 97 Fed.

Rep. 140; Swartz v. Siegel, 117 Fed. Rep. 13.

Subsequent experience is no guide te interpretation.

United States vy. Un. Pac. Ry. Co., 91 U. S. 72; Plait v.

Un. Pacific Ry. Co., 99 U.S. 48.

Where Congress has by apt terms created a class or

drawn distinctions between classes of persons or objects

it is not competent for the courts, under the guise of in-

terpretation, to extend or limit the operation of the stat-

ute. United States v. Colorado Co., 157 Fed. Rep. 321;

Brun v. Mann, 151 Fed. Rep. 145; United States v. Tem-

ple, 105 U. 8. 97; Minor v. Bank, 1 Pet. 44; Folsom v.

United States, 160 U. S. 121; United States v. Choctaw Na-

tion, 179 U. S. 494; Pirie v. Chicago, 182 U. 8. 438, 451;

The Paulina, 7 Cr. 52, 61; Barintz v. Casey, 7 Cr. 456,

468; United States v. Goldenberg, 168 U.S. 95, 102; Maz-

well v. Moore, 22 How. 185, 191; Tiger v. Western Inv.

Co., 221 U. S. 286; Thurman v. State, 18 Alabama, 276.

The court is not at liberty to amend the statute or read

words into it to make it conform to what the court may

believe to be the spirit of the act or to escape injustice of

the law. Maxwell v. Moore, 22 How. 185; United States v.

Goldenberg, 168 U. S. 95; Hobbs v. McLean, 117 U.S. 567;

In re Conway and Gibbons, 17 Wisconsin, 526; 17 Op.

Att’y Gen. 65; St. Louis Co. v. Taylor, 210 U. 8. 281; Had-

den v. Barney, 5 Wall. 107; Gardner v. Collins, 2 Pet. 92.

The practical construction by the Departments of the

Government and the dealings of the citizens with the sub-

ject in reliance upon that construction is entitled to con-

256 OCTOBER TERM, 1913.

Argument for Appellees. 234 U.S.

sideration in cases of doubt. United States v. Un. Pac. Ry.

Co., 37 Fed. Rep. 551; S. C., 148 U. S. 562; Le Marchal v.

Tegarden, 175 Fed. Rep. 682; Pennoyer v. McConnaughy,

140 U. S. 1; Malonny v. Mahar, 1 Michigan, 26; Westbrook

v. Miller, 56 Michigan, 148; United States v. Alabama Ry.

Co., 142 U.S. 615; Kelly v. Multnomah County, 18 Oregon,

356 ; Schell v. Fauche, 138 U.S. 562; United States v. Moore,

95 U. S. 760, 763; Johnson v. Ballow, 28 Michigan, 378;

Kirkman v. McClaughry, 160 Fed. Rep. 436; United States

v. Bank of North Carolina, 6 Pet. 29; 2 Op. Att’y Gen. 558;

In re State Lands, 18 Colorado, 359; Hill v. United States,

120 U. S. 169, 182; Blarham v. Light Co., 36 Florida, 519;

Harrison v. Commonwealth, 83 Kentucky, 162; Stale v.

Holliday, 42 L. R. A. 826; Iowa v. Carr, 191 Fed. Rep.

257 ; Heckman v. United States, 224 U.S. 413; United States

v. Chandler-Dunbar Co., 152 Fed. Rep. 25; United States

v. Walker, 139 Fed. Rep. 409; Railway Co. v. First Divi-

ston &c., 26 Minnesota, 31; Menard v. Massey, 8 How.

292; Magee v. Hallett, 22 Alabama, 699, 718.

Congress was familiar with apt terms to create a classi-

fication based upon a given quantum of Indian and other

than Indian blood. If it had intended to make the classi-

fication urged by the Government, it could easily have said

so. Indian treaties (previously cited); act of May 27,

1908, 35 Stat. 312; Pennock v. Commissioners, 103 U. S.

44; Smith v. Bonifer, 154 Fed. Rep. 883; Farrington v.

Tennessee, 95 U. 8S. 679, 689; Bank v. Mathews, 98 U. S.

621, 627; United States v. Koch, 40 Fed. Rep. 250; In re

Drake, 114 Fed. Rep. 229; Moore v. U. S. Trans. Co., 24

How. 1, 32; Shaw v. Railroad Co., 101 U. S. 557; Harring-

ton v. Herrick, 64 Fed. Rep. 469; Austin v. United States,

155 U. S. 417; In re Downing, 54 Fed. Rep. 470, 474; 21

Op. Atty. Gen. 418; Louisville Trust Co. v. Cincinnati, 73

Fed. Rep. 726; Parker v. United States, 22 Ct. Cl. 104;

Grace v. Collector of Customs, 79 Fed. Rep. 319; Strode v.

Stafford Justices, 1 Brock. (U. S.) 162; Ryan v. Carter, 93

- a so +, oh? ea ok. OER SS RS

GSS Oey ie ate ba oe $< SSFP Se pa oe FNS Ww .

UNITED STATES v. FIRST NATIONAL BANK. 257

234 U.S. Opinion of the Court.

U. S. 83; Tompkins v. Little Rock, 125 U. S. 127; United

States v. Ryder, 110 U.S. 739; Leavenworth v. United States,

92 U. S. 744; Butz v. Muscatine, 8 Wall. 580; James v.

Milwaukee, 16 Wall. 161; United States vy. Anderson, 9

Wall. 66; Lawrence v. Allen, 7 How. 796; Nor. Pac. Ry.

Co. v. Dudley, 85 Fed. Rep. 86; In re*Baker, 96 Fed. Rep.

957; In re Bauman, 96 Fed. Rep. 948; Steele v. Buell, 104

Fed. Rep. 970; United States v. Slazengerm, 113 Fed. Rep.

525; Ex parte Byers, 32 Fed. Rep. 409; Ulman v. Meyer, 10

Fed. Rep. 243; Hall’s Case, 17 Ct. Cl. 46; The Cherokee

Tobacco, 11 Wall. 616; Gardner v. Collins, 2 Pet. 87.

Mr. Justice Day, after making the foregoing state-

ment, delivered the opinion of the court.

Before the transfers here complained of and while the

lands were held in trust, subject to the provisions of the

act of February 8, 1887, supra, the Clapp Amendment

was passed, having the purpose of removing the restric-

tions upon alienation in certain cases. This act provides,

(34 Stat., p. 1034):

“That all restrictions as to sale, incumbrance, or taxa-

tion for allotments within the White Earth Reservation

in the State of Minnesota, heretofore [amended March 1,

1907, the word ‘heretofore’ being substituted for the word

‘now’] or hereafter held by adult mixed-blood Indians,

are hereby removed, and the trust deeds heretofore or

hereafter executed by the Department for such allotments

are hereby declared to pass the title in fee simple, or such

mixed bloods upon application shall be entitled to receive

a patent in fee simple for such allotments; and as to full

bloods, said restrictions shall be removed when the Secre-

tary of the Interior is satisfied that said adult full-blood

Indians are competent to handle their own affairs, and in

such case the Secretary of the Interior shall issue to such

Indian allottee a patent in fee simple upon application.”’

VOL, CCXXXIV—17

Rita ee : 2M SEDER SE OT WEE Se EEO

258 OCTOBER TERM, 1913.

Opinion of the Court. 234 U.S.

It is at once apparent from reading this act that it deals

with two classes, adult mixed blood Indians, concerning

whom all restrictions as to sale, incumbrance or taxation

are removed, and full blood Indians, whose right to be

free from restrictions shall rest with the Secretary of the

Interior, who may remove the same upon being satisfied

that such full blood Indians are competent to handle

their own affairs.

This case turns upon the construction of the words

“‘mixed blood Indians.” It is the contention of the Gov-

ernment that mixed blood means those of half white or

more than half white blood, while the appellees insist,

and this was the view adopted by the Circuit Court of Ap-

peals, that the term mixed blood includes all who have an

identifiable mixture of white blood. If the Government’s

contention be correct, it follows that for the purposes of

this suit all of less than half white blood must be regarded

as full blood Indians, all others as mixed bloods. Upon

the appellees’ contention the line is drawn between full

bloods as one class and all having an identifiable admixture

of white blood as the other.

If we apply the general rule of statutory construction

that words are to be given their usual and ordinary mean-

ing, it would seem clear that the appellees’ construction

is right, for a full blood is obviously one of pure blood,

thoroughbred, having no admixture of foreign blood.

That this natural and usual signification of plain terms

is to be adopted as the legislative meaning in the absence

of clear showing that something else was meant, is an

elementary rule of construction frequently recognized and

followed in this court. United States v. Fisher, 2 Cranch,

358, 399; Lake County v. Rollins, 130 U. S. 662, 670; Dewey

v. United States, 178 U.S. 510, 521. Interpreted according

to the plain import of the words the persons intended

to be reached by the clause are divided into two and only

two well-defined classes, full blood Indians and mixed

oti

UNITED STATES v. FIRST NATIONAL BANK. 259

234 U.S. Opinion of the Court.

bloods. There is no suggestion of a third class, having

more than half of white blood or any other proportion

than is indicated in the term mixed blood, as contrasted

with full blood. If the Government’s contention is correct,

the Indians of full blood must necessarily include half

bloods, and mixed bloods must mean all having less than

half white blood and none others. Such construction is

an obvious wresting of terms of plain import from their

usual and well-understood signification.

But the Government insists that to effect the legislative

purpose the words must be interpreted as the Indians

understood them, and cases from this court (Jones v.

Meehan, 175 U. 8S. 1; Starr v. Long Jim, 227 U. S. 613)

are cited to the effect that Indian treaties and acts to which

the Indians must give consent before they become opera-

tive must be interpreted so as to conform to the under-

standing of the Indians as to the meaning of the terms

used. The justice and propriety of this method of inter-

pretation is obvious and essential to the protection of

an unlettered race, dealing with those of better education

and skill, themselves framing contracts which the Indians

are induced to sign. But the legislation here in question

is not in the nature of contract and contains no provision

that makes it effectual only upon consent of the Indians

whose rights and privileges are to be affected. Evidently

this legislation contemplated in some measure the rights

of others who might deal with the Indians, and obviously

was intended to enlarge the right to acquire as well as to

part with lands held in trust for the Indians.

The Government refers, in support of its contention, to

reports of Congressional committees, showing after effects

of this legislation, which was followed, as the reports

tend to show, by improvident sales and incumbrances

of Indian lands and wasteful extravagance in the disposi-

tion of the proceeds of sales, resulting in suffering to the

former proprietors of the lands soid and mortgaged. But

ci alt Hi i a we

PL ae

FT I REY Ee

260 OCTOBER TERM, 1913.

Opinion of the Court. 234 U.S.

these after facts can have little weight in determining

the meaning of the legislation and certainly cannot over-

come the meaning of plain words used in legislative enact-

ments. If the effect of the legislation has been disastrous

to the Indians, that fact will not justify the courts in de-

parting from the terms of the act as written. If the true

construction has been followed with harsh consequences,

it cannot influence the courts in administering the law.

The responsibility for the justice or wisdom of legislation

rests with the Congress, and it is the province of the courts

to enforce, not to make, the laws. St. Louis, Iron Mt.

& S. Ry. Co. v. Taylor, 210 U. S. 281, 294: Texas Cement

Co. v. McCord, 233 U.S. 157, 163.

The Government further insists that its interpretation

of the act is consistent with its policy to make competency

the test of the right to alienate, and that the legislation in

question proceeds upon the theory that those of half or

more white blood are more likely to be able to take care

of themselves in making contracts and disposing of their

lands than those of lesser admixture of such blood. But

the policy of the Government in passing legislation is

often an uncertain thing, as to which varying opinions

may be formed, and may, as is the fact in this case, afford

an unstable ground of statutory interpretation. Hadden

v. The Collector, 5 Wall. 107, 111. And again Congress

has in other legislation not hesitated to place full blood

Indians in one class and all others in another. Tiger v.

Western Investment Co., 221 U. S. 286. In that case this

court had occasion to deal with certain sections of the act

of April 26, 1906, c. 1876, 34 Stat. 137, providing that no

full blood Indian of certain tribes should have power to

alienate or incumber allotted lands for a period of twenty-

five years, unless restrictions were removed by act of

Congress. By section 22 of the act all adult heirs of de-

ceased Indians were given the right to convey their lands,

but for the last sentence of the section which kept full

ee

UNITED STATES v. FIRST NATIONAL BANK. 261

234 U. S. Opinion of the Court.

blood Indians to their right to convey under the super-

vision of the Secretary of the Interior. Therefore all adult

heirs of any deceased Indian other than a full blood might

convey, but the full blood only with the approval of the

Secretary of the Interior. In this important provision the

restrictions were removed as to all classes of Indians other

than full bloods. In other words, there as here, the Indians

were divided into two classes, full bloods in one class and

all others in the second class.

Furthermore, the appellees’ construction accords with

the departmental construction, as shown by the facts

stipulated. Such was the construction given by the In-

dian Commissioner to the treaty of September 30, 1854,

supra, wherein provision was made for mixed blood In-

dians among the Chippewas, and the Indian agent at

Detroit, Michigan, was instructed by the Indian Com-

missioner that the term mixed blood had been construed

to mean all who are identified as having a mixture of

Indian and white blood. Such was the interpretation

of the Department of Interior, in the first place at least,

in administering the matter under the Clapp Amendment.

It is true that the Government representatives at Detroit,

Minnesota, were of the opposite opinion, for the reasons

we have stated above, and that the Second Assistant

Commissioner in his reply, while reaching the conclusion

we have, stated that he would confer with the Department

of Justice.

While departmental construction of the Clapp Amend-

ment does not have the weight which such constructions

sometimes have in long continued observance, neverthe-

less it is entitled to consideration,—the early administra-

tion of that amendment showing the interpretation placed

upon it by competent men having to do with its enforce-

ment. The conviction is very strong that if Congress in-

tended to remove restrictions only from those who had

half white blood or more, it would have inserted in the

Ae erin mm

i

i

i

i

;

} ]

i

262 OCTOBER TERM, 1913.

Opinion of the Court. 234 U.S.

act the words necessary to make that intention clear, that

is, we deem this a case for the application of the often ex-

pressed consideration, aiding interpretation, that if a

given construction was intended it would have been easy

for the legislative body to have expressed it in apt terms.

Farrington v. Tennessee, 95 U. 8. 679, 689; Bank v. Mat-

thews, 98 U. S. 621, 627; Tompkins v. Little Rock & Ft. S.

R. Co., 125 U. S. 109, 127; United States y. Lexington

Mill Co., 232 U. 8. 399, 410.

Congress was very familiar with the situation, the sub-

ject having been before it in many debates and discussions

concerning Indian affairs. This was a reservation in-

habited by Indians of full blood and others of all degrees

of mixed blood, some with a preponderance of white blood,

others with less and many with very little. If Congress,

having competency in mind and that alone, had intended

to emancipate from the prevailing restriction on alienation

only those who were half white or more, by a few simple

words it could have effected that purpose. We cannot be-

lieve that such was the congressional intent, and we are

clearly of opinion that the courts may not supply the words

which Congress omitted. Nor can such course be induced

by any consideration of public policy or the desire to pro-

mote justice, if such would be its effect, in dealing with

dependent people.

We reach the conclusion that the Circuit Court of Ap-

peals rightly construed this statute, and its decrees are

Affirmed.

WARE MES FEB PRN TRITON EF MEO BAYS MAL AE LAI TN EES SIT CNT IEG IES I