MITCHELL et al. v. UNITED STATES, 22 F.2d 771

HUNT, Circuit Judge (after stating the facts as above). It is recognized that a person may- be adopted as a member of an Indian tribe according to the customs of the Indians, and that such adoption, if approved by the Interior Department, vests in the person adopted a right to an allotment of land that may be subject to be allotted to the Indians of the tribe. But to make the adoption into the tribe effective, so as to entitle the one adopted to obtain an allotment, there must be something more than the vote of the tribe or of its council of head men in favor of adoption.

The statute under which allotments are generally made provides that allotments to Indians may be made by the superintendent or agent under such rules and regulations as' the Secretary of the Interior may from time to time prescribe. Act Feb. 8, 1887, as amended 1891 June 25, 1910, Comp. St. § 4195 et seq. (25 USCA § 331 et seq.). Pursuant to the authority so given, the Secretary made a regulation that adoptions must be approved by the Indian Commissioner and the Secretary before becoming effective.

Such regulation is entirely consistent with the statute and the general policy of the United States to exercise a supervision by which the interests of the goverúment, as well as of the Indians will be protected against possible fraud. Sunderland v. United States, 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259. In United States ex rel. West v. Hitchcock, 205 U. S. 80, 27 S. Ct. 423, 51 L.

Ed. 718, it was contended that the validity of the adoption of an Indian by a tribe was a matter purely of Indian law or custom, and that the Department of the Interior could not take it under control, but the court said that under the statutes (sections 441, 463, R. S. U. S. [5 USCA § 485 and 25 USCA § 2]), the Indians having been treated as wards of the nation, supervision by way of regulation of the Interior Department requiring approval of an adoption was a necessity. Plaintiffs rely largely upon La Clair v. United States (C. C.) 184 F. 128.

In that ease patents issued, the adopted Indians had been allowed to go upon and improve the lands, and the record and patents disclosed that recommendation for allotment's was approved by the Secretary of the Interior. It is readily conceded that no particular form of approval of adoption is necessary, and that circumstances and acts may be evidence of implied approval. But in the present matter the only conclusion that we can draw from the record is that the tribal adoption of plaintiffs was never directly or inferentially approved by the Secretary of the Interior. We must therefore affirm the decree. Affirmed.