Hitchcock v. United States ex rel. Bigboy , 22 App. D.C. 275 ( 1903 )

Mr. Justice Morris

delivered the opinion of the Court:

We are unable to see what part the fact of the citizenship of' the relator performs in the present case. He might well be a citizen, with all the rights and privileges of citizens, and yet be disqualified from the exercise of absolute ownership over certain specified property. If it be conceded that among the rights of citizenship is that of freely acquiring, holding, and disposing of property, yet it does not follow that the grantor of property may not place restrictions upon its use by the grantee or person for whose benefit is is granted. It is of daily experience that in the matter of wills, marriage settlements, deeds of trust, andi other similar arrangements, property is tied up and the right of alienation and disposal of it is restricted; and yet it has never been supposed that thereby the right of citizenship of the grantee or beneficiary is impaired. The provision made in the present and other similar cases for those who are or have been wards of the government of the United States are analogous to ordinary trusts wherein it is sought, by restricting the right of disposition, to guard the beneficiaries against the results of their own improvidence; and we fail to find in either any impairment of the xight of citizenship. If the emancipated Indian chooses to save his money, and therewith to buy land or other property, and ■freely to sell it again after he has purchased it, we presume that the law does not prevent him now from so doing. But when the United States, as guardian of the Indians, collectively and individually, seeks to secure any specified property to them in such manner as that they shall not improvidently squander it, we see no reason why the United States may not limit their own grant as they see proper. We see no reason why they might not have done this with white settlers on the national domain, if they had deemed it expedient to do so. The matter of citizenship is an entirely extraneous thing, and has nothing whatever to do with the case. The question is whether the United States have restricted, and how far they have restricted, the use of the property which they have themselves granted. Bor, of course, under our theory of the respective rights of the United States and of the Indians, the lands allotted to the latter either as tribal reservations or in severalty are the property of the United States, and the latter may restrict the use of them hy the Indians and the proceeds of sale thereof to any extent to which it is feasible to go.

This case, therefore, must be disposed of under its own facts and circumstances, without reference to the citizenship of the relator. Now, with reference to these facts and circumstances, we are compelled to conclude that there is not here presented a case of plain ministerial duty which the respondents refuse to perform, and such as it is proper .to' enforce by the- writ of mandamus. The very structure of the petition in the case implies that the action sought to be controlled is one of administrative propriety, involving judicial discretion, rather than a merely ministerial duty. If there is any plain ministerial duty to be performed, it would seem to be rather that of the local Indian agent in countersigning the relator’s check, than that of the Secretary of the Interior and of the Commissioner of Indian Affairs in their general control of all matters relating to the Indians. The regulations, under which the relator entered into contract and procured the money in question to be realized, imposed the duty upon the local Indian agent of countersigning the relator’s check when such money or any part thereof is. sought to be withdrawn from the bank in which it is deposited. If this is a purely ministerial duty, which the Indian agent is. actually required to perform when requested so to do, and which, therefore, he could be compelled by mandamus to perform, it cannot fall within the scope of the authority either of the Commissioner of Indian Affairs or of the Secretary of the Interior to. interfere with it. in the course of their administration of the Bureau of Indian Affairs; and no order given either by the Commissioner or by the Secretary could be a justification for refusal on the part of the local Indian agent If, on the other hand, the action sought to be had is one of administrative character which the Secretary and the Commissioner may control, it is very plain that the relator has no case; for the action can no longer be regarded as purely ministerial. The relator’s proceeding would seem to contemplate that the whole administrative machinery of the Bureau of Indian Affairs can be set in motion and controlled by the courts for the performance of a merely ministerial duty on the part of a subordinate local agent.

But if we take the Bureau of Indian Affairs in its entirety, and regard the act to be performed as that of the Secretary or Commissioner, by the local Indian agent as their clerk or employee, yet we are unable to see that the act- is of that purely ministerial character which can be enforced by the writ of mandamus. It is not controverted that under the treaty of 1854 the President had power to place restrictions upon the alienation of the lands alloted in severalty. He exercised that power by providing that the Indian owners should not sell without his consent. It seems, also, not to be controverted that the restriction extended to the sale of the timber on the land as well as to the land itself; and this restriction was sought to some extent to be carried over to the proceeds of the sale of the timber, when it was provided that these proceeds could not be disposed of by the Indian owner Avithout the concurrent action of the Indian agent.

"Whether in fact and in law the restriction upon the right of alienation, when once removed by the authority given to the Indian owner to enter into contract in regard to the timber, was intended to extend to the proceeds of sale, and did in fact under the terms of the regulations extend to such proceeds, may be an open question. It is the contention of the respondents that it did so extend; it is the contention of the relator that it did not. Certainly there was more or less of restriction in the provision that the proceeds of the sale could not be withdraAvn from the bank by the action of the relator alone, without having his check countersigned by the local Indian agent. This provision means something. It is claimed on behalf of the relator that its purpose is merely to identify him at the bank. On the part of the respondents it is claimed that the intention Avas, in harmony with all the preceding action, to place a check upon the notorious improvidence of the Indian. In the absence of all testimony hoAV are we to judge of this? Are we to disregard the interpretation placed by the department upon its OAvn regulation, or rather the regulation made by the President through the department ? In any event, there is serious controversy as to the meaning of the regulation; and for that reason alone, if for no other, the act sought to be performed is taken out of the category of plain ministerial actions subject to be enforced by the Avrit of mandamus. Eawu if we were of opinion that the construction claimed by the relator is the true construction of the regulation and of the contract made in pursuance of it, the courts should hesitate before they required an executive department of the government to abandon its oavu construction and its administratiAe action thereunder. It was within the power of that executive department, or of the President, as its final chief and head, and as chief and head of all the executive departments, to make the regulation express in specific terms that which the department now claims that it was intended to mean. And if the President could do that, as beyond question he could, why should the courts repudiate, the construction which the Secretary and Commissioner, acting under his authority, place upon the regulation and the contract ?

If injustice and hardship result from this construction, as it has been ably argued that they would result, and that the money of the Indian would be frittered away by being paid to him merely in driblets, with which he could accomplish nothing substantial, that is an argument to be addressed to those who have the administration of Indian affairs, and who must be presumed to be open, as much as the courts, and indeed more so, to such argument, and to solicitude for the general welfare of the Indian; and there is always the right of appeal to the President, and ultimately also the right of appeal to the Congress of the United States. But the courts, by the writ of mandamus, cannot remedy all cases of hardship and injustice. Their jurisdiction in that regard is exceedingly limited and well defined, and it is wholly unnecessary to recur to the repeated enunciations of our tribunal of last resort on the subject.

We are of opinion, therefore, that by the petition and the return in this case there is not shown a plain ministerial duty to be performed by the respondents and which they are required by law to perform for the relator; that the matter of citizenship of the relator has nothing whatever to do with the case; and that the result of the writ of mandamus here would be to control the administrative action of the Bureau of Indian Affairs and the Department of the Interior, which it is not competent for the courts to do.

We must, therefore, reverse the order appealed from, with costs; and remand the cause to the Supreme Court of the District of Columbia, with directions to discharge the rule to show cause and to dismiss the petition.

And it is so ordered.

'Reversed.