Keith v. United States

•Opinion of the court by McAtee, J.: The law of the United States under which the plaintiff asserts his rights here, and which wras ■enacted on February 8, 1887, and is to be found in 1 Supp. Rev. St. U. S. p. 534, sec. 4, reads as follows: “Where any Indian not residing upon a reservation * * shall make settlement upon any surveyed or unsurveyed lands of the United States not otherwise appropriated, 'he or ,sbe shall be entitled, upon application to the local land office for the district in which the lands are located, to have the same allotted to him or her, and to his or her •children, in quantities and measures as provided in this act for Indians residing upon reservation®; and when ■such settlement is made upon unsurveyed lands, the grant to such Indian shall be adjusted upon the survey of the lands so as to conform thereto; and patents shall be issued to them for such lands in the manner and with the restrictions as herein provided;” The question raised upon the demurrer is whether or not the plaintiff as an Indian, is entitled to the benefit of the provisions of ■this act. While it is averred that he was a.member of the Arapahoe tribe, and enjoyed all the rights of a member of such tribe, yet these averments will be controlled by the several special statements of fact made in the peti *449 tion, that he was horn “from a marriage between a. white father adopted into the tribe when a child -and' a half-breed Indian woman.” The question was presented in Ex parte Reynolds, 5 Dill. 394, Fed. Cas. No. 11,719, and it was there concluded that, the Indians being free persons, the commbn-law rule that the offspring of free persons follow® the condition of the father prevails in determining the status of the offspring of a white man, a citizen of the United States, and an Indian woman. This case wais cited in the opinion of Assistant Attorney G-enera.1 Shields to the secretary of the interior, November 27, 1891 (13 Land Dec. 685,) and the rule reannounced in the declaration that “children of such parents are therefore by birth not Indians, but citizens of the United States, and consequently not entitled to allotments under the act of March 2, 1889,” which provided for. allotments to' the members'of the tribe to which this -woman belonged. The ruling made in Ex parte Reynolds was also cited and followed in the case of U. S. v. Ward, 42 Fed. 320, and will be followed here. The judgment is affirmed. Burford, C. J., having presided in the court below, .not sitting; all of the other Justices concurring.