H

Argument for Appellants.

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v. Moore, 154 Fed. Rep. 712; New York Indians v. United States, 170 U. S. 1.

The mere existence of restriction upon alienation imposed for the protection of the allottee vests no interest whatever in the United States in reversion or otherwise. A violation of the statute imposing restrictions upon alienation does not in any event redound to the interest of the United States or impair the title of the allottee. Libby v. Clark, 118 U. S. 250, 255; Schrimpscher v. Stockton, 183 U. S. 290, 299.

The whole estate having vested in the allottee, there can be no possible interest remaining in the United States. Not even a possibility of forfeiture or reversion.

The United States owns no property interest upon which to maintain this action, nor may the same be maintained for the protection of citizens, generally, against violations of law.

The sole authority of the Circuit Courts of the United States to exercise jurisdiction over causes where the United States is plaintiff or petitioner, is given by the act of August 13, 1888, 25 Stat. 434. For its construction see United States v. Sayward, 160 U. S. 493; United States v. Payne Lumber Company, 206 U. S. 467; United States v. Anger, 153 Fed. Rep. 671; United States v. Paine Lumber Company, 154 Fed. Rep. 263.

The former members of the Five Civilized Tribes are citizens of the United States and the State of Oklahoma, and not wards of either the state or the National Government. Mackey v. Cox, 18 How. 100; Mehlin v. Ice, 56 Fed. Rep. 12.

Allotment agreements were made by the various tribes and approval thereof given by Congress as follows:

Seminole Original Allotment Agreement (30 Stat. 567); Seminole Supplemental Allotment Agreement (31 Stat. 250); Choctaw and Chickasaw Allotment Agreement (30

224 U.S.

Argument for Appellants.

Stat. 495-505); Supplemental Allotment Agreement (32 Stat. 641); Creek Allotment Agreement (31 Stat. 861); Creek Supplemental Agreement (32 Stat. 500), and Cherokee Allotment Agreement (32 Stat. 716).

The policy of isolation from surrounding country applied to Indians on Indian Reservations was never, in fact, applied to the territory of the Five Civilized Tribes. In 1890 there were 180,182 persons residing in Indian Territory, of whom 51,279 were Indians. In 1900, the population of Indian Territory had increased to 392,000, of which 52,500 were Indians. In 1890 the Indian population, which included a few more Indians than those of the Five Civilized Tribes, constituted 25.5 per cent of the total population and in 1900, 13.4 per cent.

These conditions, and the progress made in securing of allotment agreements with the various tribes, caused Congress in 1901 to deem it advisable to confer the full rights of citizenship upon every Indian in the Indian Territory. See act of March 3, 1901, 31 Stat. 1447.

For effect of the General Allotment Act of 1887 as applied to conditions similar to those in Oklahoma with reference to citizenship, see United States v. Saunders, 96 Fed. Rep. 268; United States v. Kopp, 110 Fed. Rep. 161; Ex parte Viles, 139 Fed. Rep. 68; United States v. Dooley, 151 Fed. Rep. 697; United States v. Auger, 153 Fed. Rep. 671; Ex parte Savage, 158 Fed. Rep. 214; United States v. Boss, 160 Fed. Rep. 132.

No such public policy exists as that upon which the jurisdiction of the trial court was sustained by majority of the Circuit Court of Appeals.

The allottees are indispensable parties. They own the lands involved and have such an interest in the subjectmatter of the controversies that final decrees cannot be made without affecting their interest.

Every party to a contract of sale except one who has released his interest or an agent through whom the title

Argument for Appellants.

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has passed is a necessary party to set it aside. Shields v. Barrow, 17 How. 130; Coiron v. Millaudon, 19 How. 113; Gaylords v. Kelshaw, 1 Wall. 81; Ribbon v. Railroad Cos., 16 Wall. 446; Lawrence v. Wirtz, 1 Wash. C. C. 417; Tobin v. Walkinshaw, 1 McAll. 26; Bell v. Donohoe, 17 Fed. Rep. 710; Florence Machine Co. v. Singer Mfg. Co., 8 Blatchf. 113; Chadbourne v. Coe, 45 Fed. Rep. 822; Empire C. & T. Co. v. Empire C. & M. Co., 150 U. S. 159; New Orleans W. Co. v. New Orleans, 164 U. S. 471; S. C., in C. C. A., 51 Fed. Rep. 479; Clark v. Great Northern Ry. Co., 81 Fed. Rep. 282; but see French v. Shoemaker, 14 Wall. 314; West v. Duncan, 42 Fed. Rep. 430; Smith v. Lee, 77 Fed. Rep. 779.

In every case where the parties acted in good faith the court ought to decree a personal judgment against the allottees for the amount of the consideration, for it was paid by mistake and the consideration for the payment has failed. If the contracts were void, but in good faith, equity will impute a promise to repay. Wrought Iron Bridge Co. v. Utica, 17 Fed. Rep. 316; City of Louisiana v. Wood, 12 Otto, 294; Marsh v. Fulton County, 10 Wall. 676; Tate v. Gains (Okla.), 105 Pac. Rep. 193.

Though the void deeds will be treated as nullities, the law will imply just such an obligation to pay for the enhanced value to the premises on account of the improvements as the Secretary of the Interior would have permitted the allottees to contract upon proper application to him. Where the lands had no rental value, and, on account of the improvements so made in good faith, now have a great rental value, it should be decreed that the rentals or a part thereof be set aside each year until compensation shall have been made for the same. Muskogee Development Co. v. Green (Okla.), 97 Pac. Rep. 619; White v. Brown (Ind. T.), 38 S. W. Rep. 335; Poplin v. Clausen, 38 S. W. Rep. 974; Shumate v. Harbin, 15 S. E. Rep. 270; Brockway v. Thomas, 36 Arkansas, 518; Beard v. Dansby,

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Argument for the United States.

48 Arkansas, 182; 2 S. W. Rep. 701; Potts v. Cullum, 68 Illinois, 217.

The United States cannot maintain this bill. It is wholly devoid of equity. The United States has not offered to return the consideration; it is out of possession, and if the facts alleged are true, it has an adequate remedy at law. Frost v. Spittley, 121 U. S, 552; Orton v. Smith, 18 How. 263; Dick v. Foraker, 155 U. S. 404, 414; United States v. Wilson, 118 U. S. 86.

If the conveyances referred to are void they constitute no cloud upon the title of the owner thereof, and a bill will not lie to cancel the same, even though the other grounds of equitable jurisdiction are present. United States v. Saunders, 96 Fed. Rep. 268; Piersol v. Elliott, 6 Pet. 96, 101; Rich v. Braxton, 158 U. S. 375, 407; Kennedy v. Hazelton, 128 U. S. 667, 672; Town of Venice v. Woodruff, 62 N. Y. 462, 467; March, Executrix, v. The City of Brooklyn, 59 N. Y. 280.

The bill of complaint is multifarious.

The Solicitor General and Mr. A. N. Frost and Mr. Harlow A. Leekley, Special Assistants to the Attorney General, for the United States:

The United States may by suit in equity enforce the restrictions imposed by it upon the alienation of allotted tribal lands by members of the Indian tribes. Marchie Tiger v. Western Investment Co., 221 U. S. 286; United States v. Allen, 179 Fed. Rep. 13; Conley v. Ballinger, 216 U. S. 84; United States v. Kagama, 118 U. S. 375; Worcester v. Georgia, 6 Pet. 515; In re Debs, 158 U. S. 564; United States v. Am. Bell Tel. Co., 128 U. S. 315; United States v. San Jacinto Tin Co., 125 U. S. 273; United States v. Rickert, 188 U. S. 432; In the Matter of Heff, 197 U. S. 488; Beck v. Flournoy Live Stock Co., 65 Fed. Rep. 30; United States v. Flournoy Live Stock &c. Co., 69 Fed. Rep. 886; Pilgrim v. Beck, 69 Fed. Rep. 895; United States v. Flour

noy &c. Co., 71 Fed. Rep. 576; Rainbow v. Young, 161 Fed. Rep. 835.

The Indian allottees are not necessary parties to such a suit, as the United States has rights and interests of its own to conserve and is, moreover, under obligation to protect the Indians in those restrictions. United States v. Allen, 179 Fed. Rep. 13; United States v. Am. Bell Tel. Co., 128 U. S. 315; United States v. San Jacinto Tin Co., 125 U. S. 273; United States v. Hammers, 221 U. S. 220; Marchie Tiger v. Western Investment Co., 221 U. S. 286; United States v. Trinidad Coal Co., 137 U. S. 160; Pilgrim v. Beck, 69 Fed. Rep. 895.

The bill is not multifarious for it joins only such transactions as depend for their validity or invalidity upon the same state of facts and the same propositions of law. Story on Equity Pleading, 14th ed., § 539; Jennison's Chancery Practice, 26; Hale v. Allinson, 188 U. S. 56; Ill. Cent. R. R. Co. v. Caffrey, 128 Fed. Rep. 770; Bitterman v. L. & N. R. R. Co., 207 U. S. 205.

MR. JUSTICE HUGHES, after making the above statement, delivered the opinion of the court.

The conveyances, which this suit was brought to cancel, were executed by members of the Cherokee tribe of Indians, of the full-blood, of lands allotted to them in severalty. The statute under which the allotments were made (act of July 1, 1902, c. 1375, 32 Stat. 716), accepted by the Cherokee nation on August 7, 1902, provided that the lands should be inalienable for a period specified. Sections 11-15 (Id., p. 717). The lands in question were “surplus" lands, that is, those other than homesteads. While the restrictions, applicable to lands of this character, were still in force, Congress extended the period of inalienability by the act of April 26, 1906. 34 Stat. 137, c. 1876. Section 19 of this act (Id., p. 144) is as follows:

"SEC. 19. That no full-blood Indian of the Choctaw,