KEUSCH v. LANE

KEUSCH v. LANE. Indian Lands; Homestead Entry; Residence and Cultivation; Cancelation of Entry; Injunction. 1. A decision of the Secretary of the Interior construing the provision of sec. i> of tlie Act of Congress of April 27, 1904 (33 Stat. at L. 3Ó2, chap. 1624) for the disposal of lands ceded by the Indians of the Crow Reservation in Montana, to the effect that the provisions of the Homestead Laws with respect to residence and cultivation are applicable to an entry of such lands, is within the discretionary powers of the Secretary, and a cancelation of the entry in accordance therewith will not he prevented by an injunction. 2. The intention of Congress to make the provisions of the Homestead Law applicable to homestead entries under the Act of April 27, 1904, of lands ceded by the Crow Indians in Montana, is not disproved by the Act of February 20, 1917 (39 Stat. at L. 926, chap. 10.1), which provides that any person ‘’who has heretofore entered under tlie Homestead Laws, and paid a price equivalent to or greater than $4 per acre, lands embraced in a ceded Indian Reservation, shall, upon proof of such fact, if otherwise qualified, be entitled to the benefits of the Homestead Law as though such former entry had not been made.” No. 3115. Submitted March 8, 1918. Decided April 1, 1918. Hearing ou an appeal from a decree of tlie Supreme Court of the District of Columbia dismissing a bill to enjoin tlie Secretary of tlie Interior from cancelation of a homestead entry. Affirmed. The facts are stated in the opinion. Mr. James I. Parker and Mr. Samuel V. Jlayden, for the appellant: Defendants are without jurisdiction to cancel appellant’s homestead entry. At tbe time appellant añade homestead entry of it, the. tract here involved was a part of those lands belonging to the Crow Indian Reservation that had been taken over by the United States as trustee, for the purpose, of disposing of them uaider the Act of April 27, 1904 (33 Stat. at L. 352), and timiing the proceeds over to those Indians. The status of those lands is defined by section 8 of that act, as follows: “That nothing in this act contained shall in any manner bind the United States to purchase any portion of the land herein described, except sections .16 and 36 or the equivalent in each township, or to dispose of said land except as provided herein, or to guarantee to find purchasers for said lands or any portion thereof; it beiaig the intention of this act that the United States shall act as trustee for said Indians to dispose of said lands and to expeaad and pay over the proceeds received from the sale thereof, only as received, as herein provided.” The lands of which the tract involved was a part, at the time of appellant’s entry, did not belong to the United States and hence were not public lands. United States v. Ash Sheep Co. 221 Red. 582. Since the land involved was aaot and is not public land, the jurisdiction of the Secretary of the Interior with reference to it must be found in the Act of April 27, 1904. lie Warren, 43 Land Dec. 181; Frost v. Wenie, 157 U. S. 46, 58, and United Stales v. Healey, 160 U. S. 136, 147. Since the said Act of April 27, 1904, makes special provision and furnishes a complete system for the disposal of those lands, it impliedly prohibits their disposal in any other manner. 35 Land Dec. 279, and lie Miller, 35 Land Dec. 411. Right of court to review the action of the Secretary of the Interior in the premises. “Unless the writ of mandamus is to become practically valueless, and is to be refused even where a public officer is commanded to do a particular aet by virtue of a particular statute, this writ should be granted.” Lane v. Iloglund, 244 U. S. 174, affirming 44 App. D. C. 310. Mr. Charles I). Mahafjie and Mr. G. Edward Wright for tlio appellees. [MAJORITY — Mr. Justice Robb] Mr. Justice Robb delivered tlio opinion of the Court: This appeal is from a decree in the supreme court of the District dismissing appellant’s bill to enjoin the cancelation of her homestead entry, the action of the Department having been based upon a finding that appellant, Meta Xeusch, had failed to comply with the requirements of the law relating to residence and cultiva! ion. The Act of April 27, 1904 (33 Stat. at L. 352, chap. 1624), “To Ratify and Amend an Agreement with the Indians of the Crow Reservation, in Montana,” contains the amended agreement with those Indians, article 2 of which providing (page 357) “that in consideration of the land coded, granted, relinquished and conveyed by article 1 of this agreement the United States stipulates and agrees to dispose of the same as hereinafter provided under the provisions of the Reclamation Act approved June 17th, 3902, the Homestead, Town-site, and M ineral-land Laws,” etc. Section 5 of the act provides for the carrying out of the agreement with reference to the disposition of this land. In that section (p. 360), it is specified “that before any of the lands by this agreement ceded are opened to settlement or entry ” certain things shall he done by the Commissioner of Indian Affairs. It is further specified that the lands not withdrawn for irrigation under said Reclamation Act, “which lands shall be determined under the direction of the Secretary of the Interior at the earliest practical date, shall be disposed of under the Homestead, Town-site, and Mineral-land Law's of the United States, and shall he opened to settlement and entry by proclamation of the President, which proclamation shall prescribe the manner in which these lands may be settled upon, occupied, and entered by persons entitled to make entry thei*eof; * * * And provided, further, that tbe price of said lands shall be $4 per acre, when entered under tbe Homestead Law's.” Appellant’s entry, according to the averments of her bill, was a homestead eniry, and in due time she “submitted her final five-year proof on her said homestead entry, upon which proof final certificate was and still is withheld.” One Erickson inaugurated a contest, alleging that appellant had failed to establish and maintain a residence on the land she had entered. Proof was taken, and, upon hearing before the register and receiver, the decision was in favor of the contestee. The commissioner, however, reversed the decision, and his action was affirmed by the Assistant Secretary. It is not denied that the final decision would defeat an ordinary homestead entry and require its cancelation. But appellant contends that she was not required, under the provisions of the Act of April 27, 1904, to do more than make the payments therein specified; in other words, that the provisions of the Homestead Law are not applicable to this entry. Under the agreement with the Indians the Hnited States undertook to dispose of these lands “under the provisions of the Reclamation Act approved June 17, 1902, the Homestead, Town-site, and Mineral-land Laws,” and by sec. 5 of the act Congress undertook to provide for the fulfilment of that agreement, for by that section it is specified that lands open to settlement or entry “shall be disposed of under the Homestead, Town-site, and Mineral-land Laws of the United States.” The Secretary of the Interior construed this provision as bringing within the scope of the act the laws relating to homestead entries. Not only was appellant’s entry made in harmony with that construction, hut her attitude, until she met with an adverse ruling by the commissioner, was consistent with the view of the Department. Certainly that view is reasonable, and docs not involve a forced construction of the act before us. The case, therefore, falls within the rule laid down in United States ex rel. Ness v. Fisher, 223 U. S. 683, 56 L. ed. 610, 32 Sup. Ct. Rep. 356. Appellant relies upon Lane v. Hoglund, 244 U. S. 174, 61 L. ed. 1066, 37 Sup. Ct. Rep. 558, but there the duty of the Secretary was so plain that the court found it was ministerial. “If the law,” said the court, “direct him to perform an act in regard to which no discretion is committed to him, and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute -which requires, in some degree, a construction of its language by the officer.” Here, on the contrary, avg harm a statute Avhich requires construction, and the construction placed upon it by the officer primarily charged Avith that duty is reasonable. We may not say, therefore, that he was required to perforen nothing more than a ministerial duty in carrying out the provisions of this act. On the contrary, avo think it quite apparent that it Aras the intent of 0ongress to clothe him Avith the same discretionary powers Avhicli he exercises in the disposition of lands “under the Homestead, TWn-site, and Mineral-land Laws of the United States.” Our attention has been directed to the Act of February 20, 1917 (.‘59 Stat. at L. 926, chap. 101), providing that any person “who has heretofore entered under the Homestead Laws, and paid a price equivalent to or greater than $4 per acre, lands embraced in a ceded Indian Reservation, shall, upon proof of such fact, if otherwise qualified, be entitled to the benefits of the homestead law as though such former entry had not been made.” Rut avo see nothing in this act inconsistent with the inter])rotation placed by the Secretary upon the Act of 1904. For reasons satisfactory to Congress, a homestead entry made under the Act of 1904 ivas not to exhaust the homestead rights of the entrvman. 'Phis, however, falls far short of sustaining appellant's vícav that it Avas not intended by (’ongress to make the provisions of the Homestead Law applicable to homestead entries under the Act of 1904. On the contrary, Ave think it Avas the view of Congress that further legislation was necessary to prevent the exhaustion of the homestead rights of an entry-man under the early act, and by this additional legislation an exception was made in favor of such an entryinan. The decree must he affirmed, with costs. Affirmed. An appeal to the Supreme Court of the United States granted April 22, 1918. was