The Nelson Act contained an equally solemn engagement that all the lands (save only those embraced in pending entries) should be sold for the benefit of the Indians, either as "pine lands" or "agricultural lands." The statutes of limitations apply only to public lands subject to disposition under the land laws, and not to Indian lands. Northern Pacific Ry. v. United States, 227 U.S. 355; La Roque v. United States, 239 U.S. 62. The defenses of stale claim and laches can not be set up against the Government. United States v. Dalles Military Road Co., 140 U.S. 599, citing United States v. Kirkpatrick, 9 Wheat. 720; United States v. Van Zandt, 11 Wheat. 184; United States v. Nicholl, 12 Wheat. 505; Dox v. Postmaster General, 1 Pet. 318; Lindsey v. Miller, 6 Pet. 666; Gibson v. Chouteau, 13 Wall. 92; Gaussen v. United States, 97 U.S. 584; Steele v. United States, 113 U.S. 128; United States v. Insley, 130 U.S. 263. And if laches were ever imputable to the United States, it certainly can not be recognized as a defense where the suit is to assert the rights of a people dependent upon it for protection and actually incapable of asserting their own rights against the State, even though they may be citizens thereof.
United States v. Nashville c. Ry. Co., 118 U.S. 120, 125; United States v. Insley, 130 U.S. 263, 265-266; United States v. American Bell Telephone Co., 159 U.S. 548, 554. Examples of restrictive interpretation of this statute are not lacking. Northern Pacific Ry. Co. v. United States, 227 U.S. 355, 367; La Roque v. United States, 239 U.S. 62, 68; Louisiana v. Garfield, 211 U.S. 70, 77. The situation which called for this statute discloses its singleness of purpose.
It contains no mandatory language, and it has been correctly construed by the Department of the Interior as granting where and when in the Secretary's discretion to make new allotments. United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588; Logan v. Davis, 233 U.S. 613, 627, 34 S.Ct. 685, 58 L.Ed. 1121; LaRoque v. United States, 239 U.S. 62, 64, 36 S.Ct. 22, 60 L.Ed. 147; United States v. Leslie Salt Co., 350 U.S. 383, 396, 76 S.Ct. 416, 100 L.Ed. 441. Before this Act could be said to vest unallotted land on the reservation in appellant, or anyone else in a similar situation, all of the preliminary administrative procedures heretofore fully discussed would have to be complied with. Lemieux v. United States (CCA 8, 1926), 15 F.2d 518, cert. den., 273 U.S. 749, 47 S.Ct. 458, 71 L.Ed. 872; Woodbury v. United States (CCA 8, 1909), 170 F. 302, 95 CCA 498; United States v. Reynolds (1919), 250 U.S. 104, 39 S.Ct. 409, 63 L.Ed. 873; LaRoque v. United States, 239 U.S. 62, 36 S.Ct. 22 (supra). That has not been done and the provisions of the Act are not available to sustain the claim.
The Nelson Act of January 14, 1889 ( 25 Stat. 642), is one of great importance. The Supreme Court in La Roque v. United States, 239 U.S. 62, 65, 36 S. Ct. 22, 24, 60 L. Ed. 147, speaks of this act as follows: "The Nelson act embodied a plan for securing a cession by the several bands of Chippewa Indians in Minnesota of all reservations occupied by them except portions of the White Earth and Red Lake reservations required to make allotments, for removing to the White Earth Reservation all the bands save those on the Red Lake Reservation, for making allotments in severalty in the unceded lands, and for disposing of the ceded lands, placing the net proceeds at interest and distributing them in severalty at the end of fifty years." In Fairbanks v. United States, 223 U.S. 215, 217, 32 S. Ct. 292, 294, 56 L. Ed. 409, the court said: "It is known as the Nelson act, and provided for the appointment by the President of three commissioners to negotiate with the different bands of Chippewas for the cession of all their lands except so much of the White Earth and Red Lake Reservations as the commissioner should deem necessary for allotments to be made to the Indians. It
Does the right of a deceased Indian to an allotment certificate and a trust patent descend to his heirs at law and next of kin? Statutes providing for allotment do not ordinarily permit allotment and patent in the name of a deceased Indian. La-Roque v. United States, 239 U.S. 621, 36 S.Ct. 22, 60 L.Ed. 147, affirming 8 Cir., 198 F. 645, 117 C.C.A. 349. Statutes which provide for the contingency of the death of an Indian allottee before his deed become effective, and that in such case the land shall inure to and vest in his heirs (Perryman v. Woodward, 238 U.S. 148, 35 S.Ct. 830, 59 L.Ed. 1242, the effect of the Act of June 25, 1910, 36 Stat. 863, c. 431, Sec. 32, 25 U.S.C.A. § 353), assume the existence of a legal allottee and have no application where there never was such an allottee in existence (Iowa Land, etc. Co. v. United States, 8 Cir., 217 F. 11, 133 C.C.A. 121). Section 5 of the Act of February 8, 1887, 24 Stat. 388, 25 U.S.C.A. § 348, under which Secretary Lane had wished to and did proceed, as well as section 5 of the Act of January 12, 1891, 26 Stat. 712, both provide that upon the decease of an Indian to whom allotments have been made the land shall descend to his heirs.
"While not conclusive, this construction given to the [allotment] act in the course of its actual execution is entitled to great respect." La Roque v. United States, 239 U.S. 62, 64 (1915). See United States v. Jackson, 280 U.S. 183, 193 (1930); Assiniboine Sioux Tribes v. Nordwick, 378 F.2d 426, 432 (CA9 1967), cert. denied, 389 U.S. 1046 (1968).
But where the woman remains in the tribal environment and continues the tribal affiliation the membership is not affected. If the husband be a citizen of the United States, the woman by the marriage becomes also a citizen, but there is no incompatibility between tribal membership and United States citizenship. Cherokee Nation v. Hitchcock, 187 U.S. 294, 307; Gritts v. Fisher, 224 U.S. 640, 642; Sizemore v. Brady, 235 U.S. 441, 446; La Roque v. United States, 237 U.S. 62, 66; Oakes v. United States 172 F. 304, 307.Act August 9, 1888, c. 818, 25 Stat. 392.
"Cherokee Nation v. Hitchcock, 187 U.S. 294, 307; Gritts v. Fisher, 224 U.S. 640, 642; Sizemore v. Brady, 235 U.S. 441, 446; La Roque v. United States, 239 U.S. 62, 66; Oakes v. United States, 172 F. 304, 307. In the present petition the relators assert that the decision of the Secretary of the Interior in 1927, although given after notice and hearing, is void in that the then Secretary was without power to reconsider and revoke the decision of his predecessor in 1919 on the same matter; and they further assert that the decision in 1927 is otherwise wrong in that it rests upon untenable rulings to the effect that the fund established under section 7 is a tribal fund and is held and being administered as such by the United States, that the tribe has not been dissolved, and that the right to share in the annuities from the fund is confined to members of the tribe, save in exceptional instances which do not include the relators.
The United States has exercised and is now exercising, in respect to the property dealt with in said act and agreement, the powers of a guardian for these Indians and of a trustee in possession. The provisions of this act and later legislation were considered in Minnesota v. Hitchcock, 185 U.S. 373; Naganab v. Hitchcock, 202 U.S. 473; Fairbanks v. United States, 223 U.S. 215; United States v. Mille Lac Band of Chippewas, 229 U.S. 498; Johnson v. Gearlds, 234 U.S. 422; La Roque v. United States, 239 U.S. 62; United States v. Waller, 243 U.S. 452; Lane v. Morrison, 246 U.S. 214. This suit was brought in the Supreme Court of the District of Columbia by Morrison, who alleges that he is a member of the class of persons described as "all the Chippewa Indians in the State of Minnesota," and sues on behalf of himself and others similarly situated.
After the lapse of the statutory period, the patent becomes conclusive against the Government but not as against claims and rights of others, merely because the relation of the Government to them is such as to justify or require its affirmative intervention. See Northern Pacific Ry. Co. v. United States, 227 U.S. 355, 367; La Roque v. United States, 239 U.S. 62, 68. 5. Neither is the Government estopped from maintaining this suit by reason of any act or declaration of its officers or agents.