Midway Company v. Eaton (183 U.S. 602)/Opinion of the Court
The decision of the controversies in this case depends upon the validity or invalidity of the scrip locations, either originally when the land was unsurveyed, or subsequently when the location was adjusted to the land as surveyed.

The act of Congress of July 17, 1854 (10 Stat. at L. 304, chap. 83), authorized the issue of scrip to the half-breeds of the Sioux Nation of Indians in exchange for certain lands, which scrip might be located (1) upon any land within the Sioux half-breed reservation; or (2) 'upon any other unoccupied lands subject to pre-emption or private sale;' or (3) 'upon any other unsurveyed lands not reserved by government, upon which they [the half-breeds] have respectively made improvements. It is provided in said act 'that no transfer or conveyance of any said certificates or scrip shall be valid.' On the latter provision of the act the plaintiff in error bases the contention that the scrip is not assignable, and that the power of location is strictly personal to the Indian, and must be made whether on surveyed or unsurveyed land either by him or for his benefit, and that the improvements on unsurveyed land must be made under his personal supervision and direction; that he must come in personal contact with the land. And it is hence asserted that the powers of attorney given to Eaton and Merritt were virtual assignments of the scrip, and frauds upon the act of Congress; that the improvements were made, not by Orillie Stram, the half-breed, or for her benefit, but by Eaton, and for his benefit; and that the subsequent adjustment of the locations of the land after its survey was made for him, not for her; for his benefit, not for hers. On the other hand, the defendants in error contend that the prohibition against the assignment of the scrip is strictly of the scrip as such, not of the rights or powers conferred by it. That the provision of the statute is not a prohibition upon the alienation of the land, but is intended to protect the government against controversies about the transfer of the scrip, and to require and secure all of the steps and proceedings to be in the name of the Indian, and the title to be issued in his name. It is claimed, therefore that the requirements of the statute have been observed; that the locations were made in the name of the Indian, and for her benefit. And it is also claimed that if there was any defect in the location upon the land when unsurveyed, by reason of the insufficiency of the improvements or by whom erected, that defect was supplied by the location of the scrip after the land was surveyed, and the acceptance of the location of the scrip by the local land office, there being then no adverse rights to the land. And further that the power of Eaton to make the location for the Indian was ratified by her (if it needed ratification), and all rights which inured to her were conveyed by her warranty deed to Eaton.

These contentions exhibit the controversy between the parties, and present the only questions upon which we think it is necessary to pass, and the questions are certainly close ones. The Interior Department has not always given the same answer to them, and the latest decision of that Department is opposed in the case at bar by the courts of Minnesota.

It is natural to respect the rulings of the Land Department upon any statute affecting the public domain, and if the rulings were contemporaneous with the enactment of the statute they afford a somewhat confident presumption of its meaning. One of the reasons is that the officers of the Land Department may have recommended the statute-indeed, may have written its words or, at any rate, were familiar with the circumstances which induced the legislation. We have not, however, in the case at bar, an exactly contemporaneous construction of the act of 1854 by the Land Department. The first circular of instructions was not issued until March 21, 1857. It is, however, not without value, and it tends to the support of the contentions of the defendants in error. The circular stated that the scrip 'must be located in the name of the party in whose favor the scrip is issued, and the location may be made by him or her in person, or by his or her guardian.' And further: 'You will observe that this scrip is not assignable, transfers of the same being held void; consequently, each certificate, as hereinbefore stated, can only be located in the name of the half-breed; and such certificate or scrip are not to be treated as money, but located acre for acre.'

In the circular issued February 22, 1864, those instructions were repeated, and the following added: 'When not located by the reservee in proper person the application to locate must be accompanied by the affidavit of the agent that the reservee is living, and that the location is made for the sole use and benefit of said reservee.' Prior to the issuance of the circular of February 22, 1864, to wit, in 1863, a contest came on appeal to the Land Department, between a location made by Sioux scrip which was issued to one Sophia Felix, and a claim under a pre-emption settlement. The Commissioner of the Land Department decided against the scrip location on two grounds, one of which was: 'That 'the location of the scrip, although made in her name, was not made by her in person, nor by her guardian or duly authorized agent, for her use and benefit, but by an unauthorized person, and for the use and benefit of a person having no legal interest therein."

The decision was reversed by the Secretary of the Interior, who stated, through Otto, Assistant Secretary:

'As to your second objection, I remark that this kind of scrip is by the law declared to be not assignable. In this case Sophia Felix has signed the application to locate her own scrip. The signature must be treated by us as genuine, when there is no proof to the contrary; and when she has made no complaint against this use of her scrip. The fact that the scrip was carried to the land office and the business transacted by another person, does not affect the validity of her entry of the land.

'As the certificate of location issued in her name, and the patent will issue to her, neither the register's report nor the affidavits of third parties can be admitted to establish the interest of any other person in the location.

'We could not recognize such interest if an assignment in writing was produced and duly proven to have been executed by the half-breed-whether she could sell or did sell the land after the location of her scrip we need not inquire, and the validity and effect of any such sale or assignment must be left to the arbitrament of the courts of law. The location is valid on its face, and the owner of the scrip, so far as she is represented at all, demands the patent to issue in her name, and my decision is that she is entitled thereto.'

In 1872 a special circular was issued (1 C. L. L. 723) which contained the following direction:

'That the application must be accompanied with the affidavit of the Indian, or other evidence that the land contains improvements made by or under the personal supervision or direction of said Indian, giving a detailed description of said improvements, and that they are for his personal use and benefit; in other words, you should be satisfied that the Indian has a direct connection with the land and is claiming the same for his personal use. Unless such evidence is filed, you will reject the application.

'In 1878 a new circular was issued which repeated the provisions of the circulars of 1864 and 1872, above quoted. 2 C. L. L. 1355; 5 C. L. O. 126.'

Then came the decision of the Secretary of the Interior, Vilas, in Allen v. Merrill, 8 Land Dec. 207, and in Hyde v. Eaton [12 Land Dec. 157]. They were affirmed on review by Secretary Noble. Those cases laid down the propositions upon which plaintiff in error relies in the case at bar. Between the decision in those cases and that in the Felix Case there was an interval of thirty years, and pending that interval there were decisions of the courts which took the same view as Secretary Otto expressed in the Felix Case.

In Gilbert v. Thompson, 14 Minn. 544, Gil. 414, a conflict of titles was presented based upon deeds from one Amelia Monette, a Sioux half-breed. The action was ejectment, and the deed which plaintiff relied on was executed by Amelia in person May 29, 1867; the deed upon which defendant depended was executed by her attorney in fact, Benjamin Lawrence, July 18, 1857, under a power of attorney dated May 27, 1857. The power of attorney authorized Lawrence to act for Amelia as follows:

'For me and in my name to enter into and take possession of all the real estate belonging to me, or of which I may hereafter become seised, situated in the county of Wabasha, in the territory of Minnesota; and for me to lease, bargain, sell, grant, and confirm the whole or any part thereof; . . . and for me and in my name to make, execute, acknowledge, and deliver unto the purchaser or purchasers thereof good and sufficient conveyances.'

Affirming the judgment which passed for defendant, the supreme court of the state said by Chief Justice Gilfillan:

'The act of Congress of 1854, under which Sioux half-breed scrip was issued, provides 'that no transfer or conveyance of any of said certificates or scrip shall be valid.'

'It was the intention of Congress that the right to acquire public lands by means of this scrip should be a personal right in the one to whom the scrip issued, and not property, in the sense of being assignable; but no restraint is imposed upon the right of property in the land after it is acquired by location of the scrip. In the scrip itself the half-breed had nothing which he could transfer to another; but his title to the land, when perfected under it, was as absolute as though acquired in any other way. It follows that any attempt to transfer the scrip, directly or indirectly, would be of no effect as a transfer. The title to the scrip would remain in him, and the title to the land acquired by it would vest in him, just as though no such attempt had been made. Such attempt to transfer would not involve any moral turpitude nor the breach of any legal duty, as is the case with an attempt to transfer a pre-emptive right. It would be simply ineffectual, because the scrip is not transferable.

'A power of attorney, so far as it intended to operate as a transfer, would be of no avail; the right of the half-breed in the scrip and land would remain the same; it could not be made irrevocable, nor create any interest in the attorney. Should the attorney sell under it, he would be accountable to his principal precisely as in the case of any power to sell; but a simple power to sell, executed by a half-breed, is good till revoked, and would extend to lands subsequently acquired by means of scrip, if such lands came within its terms. We think such a power could not be varied by parol proof that the parties had an intention not expressed in it, even to defeat the power, except on the same grounds as would admit such proof in other cases. The intent to transfer the scrip not being illegal, but only ineffectual, could not affect the power where not expressed in the same instrument, or in one equal in degree, as evidence. Whether the power to sell would be upheld in an instrument, upon its face a transfer, the former being only incidental, we do not decide.'

Gilbert v. Thompson was affirmed and applied in Thompson v. Myrick, 20 Minn. 205, Gil. 184. The latter case came to this court (99 U.S. 291, 25 L. ed. 324), and its doctrine was approved. The suit was for specific performance. Thompson, who was plaintiff in the court below, was in occupation of the land to which he was desirous of obtaining title. Myrick was 'attorney in fact (duly constituted) of Francis Longie and Joseph Longie, his son, then a minor under the age of fourteen years, and of Francis Roi and Henry Roi, his son, then a minor under the age of fourteen years, and was duly authorized to locate certain half-breed scrip issued to said Joseph and Henry in accordance with the provisions of the act of Congress approved July 17, 1854.'

With a view to the location of the scrip for the benefit of the beneficiaries, Myrick placed the same with powers of attorney in the hands of Thompson, and at the same time entered into a written agreement with Thompson, in which he agreed that upon the location of the scrip he would secure the title to the land located to be lawfully vested in Thompson. The consideration was $2,800, evidenced by a note payable in one year from its date, and to be secured upon the land as soon as Thompson should acquire title. Thompson located the scrip and demanded a conveyance of the title. Myrick refused, and conveyed the land to his wife, who was also a defendant in the suit. Specific performance was decreed by the trial court, and the decree was affirmed by the supreme court of the state. Among other defenses it was urged that the agreement between Myrick and Thompson was void as contravening the act of Congress of July 17, 1854. To the contention the supreme court of the state replied: 'As to the point that the real object of the contract was to accomplish a transfer of the scrip, we see nothing to distinguish this case in any important respect from Gilbert v. Thompson, 14 Minn. 544, Gil. 414.'

And further, in answer to the contention that the agreement was void on common-law grounds, by reason of the relations of Myrick to the grantees of the scrip, the court said: 'As the scrip was made nonassignable by the act of Congress (10 Stat. at L. 304, chap. 83), and therefore no valid transfer or conveyance of the same could be made, Myrick's relation to the scrippees was that of an attorney in fact, duly authorized to locate the scrip for them. . . . As this relation was to end upon such location, we can conceive of no reason why Myrick was not at liberty, either before or after the location was made, to enter into an agreement to secure the title (inuring from the location) to the plaintiff upon payment of an agreed consideration. Such an agreement did not, so far as this case shows, tend to produce a conflict between Myrick's private interest and his duty to locate the scrip to the best advantage of his principals.' These defenses were reviewed by this court, and, commenting on them, it was said by Mr. Justice Clifford:

'Attempt, it seems, was made in the argument of the case in the supreme court of the state, to show that the terms of the agreement were in conflict with the provisions of the act of Congress; but the answer which that court made to the proposition, though brief, is satisfactory and decisive.'

'Holders of such certificates or scrip were forbidden to transfer the same, and the defendants contended that the real object of the agreement was to effect a transfer of the same; but the state supreme court overruled the defense, and referred to one of their former decisions, assigning the reasons for their conclusion that the defense was not well founded. Gilbert v. Thompson, 14 Minn. 544, Gil. 414.

'Since the case was submitted, the opinion of the court in that case has been carefully examined, and the court here concurs with the state court that the case is applicable to the present case, and that the reasons given for the conclusion are satisfactory and conclusive. For these reasons the court is of the opinion that the Federal questions involved in the record, as set forth in the assignment of errors, were decided correctly by the state supreme court.'

Secretary Vilas, in passing on the validity of the location in the present litigation, in effect disagreed with the decision in Gilbert v. Thompson, and expressed the view that 'all the documents, besides any parol additions [the italics are ours], are to be taken together to ascertain what in effect the agreement was, and it will be judged according to its nature as so ascertained;' and applying this rule, he considered that the transaction between Stram and Eaton was tantamount to a direct sale and transfer of the scrip, accompanied by the declaration that 'to circumvent the statutory prohibition' two letters of attorney have been executed in blank, the one to locate the scrip, and the other to convey the land when the scrip shall be located, and an agreement that by whomsoever the letters of attorney may be executed no claim will be made by the Indian to the scrip or land. And he concluded that if letters of attorney accompanying such a document would be invalid, the powers of attorney to Eaton and Merrill constituted 'a part of a transaction which cannot be supported in law.' Secretary Noble considered the case more at length [12 Land Dec. 152], and said: 'The controlling points in the case, as decided by the court, plainly were (1) that a simple power to sell, executed by a half-breed, such as the one there considered, would extend to lands subsequently acquired by means of scrip, if within its terms; and (2) that parol proof of an intent coincident with the creation of the power to transfer the scrip could not be received to defeat the power.'

The first point was not controverted, and of the second it was said that, as a rule of evidence, it might properly be enforced in controversies between individual claimants, but that it did not apply 'against the government, whose interest it is, before it parts with its title, to see that the law has been faithfully complied with.'

The learned Secretary regarded Gilbert v. Thompson as turning upon a rule of evidence, and that the court did not pass upon the question which he was considering; and this, he said, was 'clearly shown by their statement that 'we do not decide' whether a power to sell contained in an instrument, on its face a transfer, the power being merely incidental to the transfer, would be upheld. That is the question here-the only difference being the manner of its presentation. It properly arises here on the record; in Gilbert v. Thompson it did not, the evidence of the transfer being excluded on technical grounds, and therefore was not decided.' And he observed that Thompson v. Myrick went no farther, and was 'in fact ruled on Gilbert v. Thompson by the state court, and that rule was affirmed by the supreme court [this court] on appeal.'

We do not think those cases were as confined as represented. It is very evident that the courts did not think that 'parol additions' could unite and make single the documents, or, when thus united, they constituted a violation of the statute. And it is a deduction from the opinions that it was not the manner of proof, but the substance of what was proved or to be proved, that was passed upon. If evidence was excluded in Gilbert v. Thompson, it was admitted and considered in Thompson v. Myrick; and in both cases the delivery of scrip and its location under letters of attorney were decided to be valid, forming in one case a good title, and in the other constituting a ground for a compulsory conveyance from the half-breed. The moral and legal effect of the transfer of scrip was declared by the court in Gilbert v. Thompson. The first involved, the court said, no 'turpitude nor the breach of any legal duty, as in the case of an attempt to transfer a pre-emption right; of the second, it was said, it would be of no effect as a transfer; that 'the title to the scrip would remain in him (the half-breed), and the title to the land covered by it would vest in him (the half-breed) just as though no such attempt had been made.' The power of attorney, however, was given full legal effect as authority to sell the land located. It is true the court excluded parol evidence of an intention to transfer the scrip. But why? Manifestly because the transactions did not constitute a transfer of the scrip as such, and their legal character could not be destroyed by parol proof that they were intended to be something else. In other words, the court decided that the transactions were intended as a conveyance of the land, and represented that intention, and could not be shown to be a transfer of the scrip. And in Thompson v. Myrick the court observed: 'We can conceive of no reason why Myrick was not at liberty, either before or after location was made, to enter into an agreement to secure the title (inuring from the location) to the plaintiff upon the payment of an agreed consideration.' The reasoning and the conclusions of the supreme court of Minnesota were approved by this court, as we have seen.

The consideration of the location of scrip under the act of 1854 came before this court again in Felix v. Patrick, 145 U.S. 317, 36 L. ed. 719, 12 Sup. Ct. Rep. 862. It is a good complement to the other cases. It recognized, as they did, the difference between the transfer of the scrip itself and its location by or in the name of the half-breed, as a means of conveying the land located upon. There are expressions in the opinion that seem to go further, but they must be considered in reference to the facts. It was said: 'The device of a blank power of attorney and quitclaim deed was doubtless resorted to for the purpose of evading the provision of the act of Congress that no transfer or conveyance of the scrip issued under such act should be valid. This rendered it necessary that the scrip should be located in the name and for the benefit of the person to whom it was issued, but from the moment the scrip was located and the title in the land vested in Sophia Felix, it became subject to her disposition precisely as any other land would be. In order, therefore, for the purchaser of this scrip from Sophia Felix to make the same available, it became necessary to secure a power of attorney or a deed of the land, and as the scrip had not then been located, and the person who should locate it was unknown, the name of the grantee and the description of the land must necessarily be left blank.'

And again: 'As the bill alleges that Patrick obtained possession of these instruments while still in blank, he is clearly chargeable with notice that they were intended as a device to evade the law against the assignment of scrip.'

Felix was a half-breed to whom scrip had been regularly issued. It was obtained from her by some person unknown, 'by wicked devices and fraudulent means;' the power of attorney omitted the name of the attorney, the number of the scrip, and the description of the land. The quitclaim deed also omitted the name of the grantee and the description of the land; otherwise the instruments were in legal form. The transaction was held to be a fraud upon Felix, and Patrick was adjudged to hold the title he obtained by the location of her scrip and the deed to him, as trustee for her. The court made no question of the validity of the location. Indeed it was necessarily assumed, and the half-breed given the benefit of it. It may be said that neither of the litigants was concerned to dispute the location, or to assert the provision of the act of Congress prohibiting the transfer of the scrip. If so, that provision, from the point of view of the case at bar, was not in judgment, and the expression in regard to it must therefore be strictly confined to the facts and the issue which was presented.

This brings us to the consideration of the amount and kind of improvements required by the act of 1854 to be erected upon unsurveyed land. The act is not explicit. It does not define the extent or kind of improvements. It permits a location to be made upon 'unoccupied land . . . upon which they (half-breeds) have respectively made improvements.' Residence is not required, either initial or subsequent, temporary or continuous. The purpose of the provision of the statute would seem, therefore, necessarily to be identification, notice of appropriation, and the kind and extent of improvements only to be necessary for that. But we may concede, as held by Secretary Noble, 'that the requirement of improvements must have some substantial significance,' and 'it is not satisfied by doing something which is a betterment of the land but of too slight a character to mark anything more than a pretext of compliance.' The improvements erected on the land in controversy satisfied the rule whether they were as it is claimed Secretary Vilas found, or were as the trial court found in the present case.

It is further urged that the improvements were not erected for the benefit of the Indian, nor did she have 'a direct connection with the land;' and that those requirements are made conditions precedent to a valid location by the circulars of the land office issued in 1872 and subsequently.

1. It was decided in Thompson v. Myrick, 20 Minn. 205, Gil. 184, that a valid location could be made by an attorney in fact of the Indian, and that he could, 'either before or after the location was made,' enter into an agreement to secure or convey the title. That case was affirmed by this court, and the facts of the case at bar bring it within the ruling.

2. To consider the act of 1854 as requiring its beneficiaries to have 'a direct connection with the land and claim the same for his personal use' would lead to great embarrassment, if not to discrimination, between the beneficiaries. The effect of that construction was expressed by the supreme court of the state as follows:

'Under this law the President was authorized to do what was actually done,-issue to each person entitled several pieces of scrip of different sizes or acreage. Was it expected that each of these persons should be personally connected with the several and separate improvements required to bemade if all of the pieces were located on unsurveyed lands, and would have to claim the same for personal use? Surely not. This law contemplated, and there were actually issued, several pieces of scrip to each of a large number of minors. Babes in arms were held to be entitled, and to them scrip was issued, and in many cases located before the minors reached majority, as might reasonably be expected. With these facts before us, can it be urged that Congress thought or intended that these minors would be required by a construction of the law personally to supervise the selection of from three to five tracts of land on which to locate their pieces of scrip, or that they would have to be directly connected with each of these locations, or in case unsurveyed lands were desired they would have to claim the necessary improvements as their own?'

It is impossible to escape the force of these observations and to accept a construction of the statute which has the consequences expressed. Upon the other points discussed by counsel we do not consider it necessary to pass.

Judgment affirmed. 

Notes