Quigley v. Stephens

Clayton, C. J. Powers of S. Indian agent. u, The principal question for our determination in this case is, had the Indian agent, under the laws of the United States, jurisdiction to try and determine this case, and execute his order therein? The Indian agent is an executive officer of the United States, and as such, if he undertakes to excercise judicial powers, as he did in this case, his judicial or quasi judicial authority must be expressed in some statute of the general government. The general powers of an Indian agent as set forth in section 2058, Rev. St. U. S. (section 4268, Ind. T. Ann. St. 1899), and read as follows: “Each Indian agent shall, within his agency, manage and superintend the intercourse with the Indians, agreeably to law; and execute and perform such regulations and duties, not inconsistent with law, as may be prescribed by'the president, the secretary of the interior, the commissioner of Indian affairs, or the superintendent of [271] Indian affairs.” In title 28, (“Indians”) Rev. St. U. S. (sections 2039-2157, Ind. T. Ann. St. 1899), there are many special duties of an Indian agent set forth. It is only necessary, however, for the purposes of this case, to refer to the following: Section 2064, Rev. St. U. S. (section 4274, Ind. T. An. St. 1899)': “Indian agents are authorized to take the acknowledgment of deeds and other instruments of writing, and administer oaths in investigations submitted to them in Indian country, pursuant to such rules and regulations as may be prescribed for that purpose by the secretary of the interior.” Section 2147 (4357): “The superintendent of Indian affairs, and the Indian agents and subagents shall have authority to remove from the Indian country all persons found therein contrary to law.” Under these provisions of law, if the Indian agent were investigating this case with a view of enforcing the law against intruders, he would unquestionably have the power, not only to investigate, but to formulate his judgment in the shape of an order, and to execute it by removing the party beyond the limits of the Indian Territory, if he should find him to be there contrary to law. But the order of the Indian agent heretofore set out clearly shows that his investigation was for no such purpose. It is true that in the order he says, “And that white men who enter into them [contracts of this kind] ought to be held as intruders, and put out of the country,” and that he will enforce the law against white men as indicated, but in this particular case he does not do it. His order is: “I therefore declare said contract as of no force and validity whatever, and I further decree that the said Hiram Quigley shall vacate said premises on or before the 15th day of December next; otherwise he will be forcibly dispossessed by a policeman from this agency. But, it further appearing that the said Hiram Quigley has made certain improvements on said place, and that he has an equitable claim therefor in the courts, he [272] can collect the value of said improvements through the courts; and the said Quigley shall account to the said Green Stephens and Georgia Stephens, his wife, for the use and occupation of said place in controversy until the 15th day of December, 1897, at which date he' shall vacate the same.” This order was made August 7, 1897. On the 21st day of December, 1897, the following order was made directed -to one David A. Lee, United States Indian police: “You are hereby directed to notify Mr. Hiram Quigley to vacate the place he now occupies, and which is the property of Green and Georgia Stephens, which place is bounded on the north by John Harrison, on the east by Harvey Sells, on the south and on the west by David Colbert, and situated on Coal creek, Creek Nation, Ind. Ter. Direct him to vacate the place within ten days after date of service of this notice; and if he fails to do so within that time, theD you are directed to remove him, with his effects, off of said place, and you will do so with as little friction and as much humanity as possible, consistent with the due execution of this order. This order is issued in pursuance of the decision of this agency of August 7, 1897, in which it was decreed that said Quigley should vacate said place by the 15th day of the present month (December, 1897,) it appearing to this agency that Quigley has failed to obey said decision. Very respectfully, D. M. Wisdom, U. S. Indian Agent. ’ ’ And this was the order that was executed by forciby ejecting Quigley from the premises. The record fails to show how far he was removed from the premises., but he was not removed from the Creek Nation. It is quite clear that the Indian agent in this case was not investigating it with a view of determining whether or not the appellant was an intruder, but was. passing judicially upon the rights of the parties. Construing and annulling contracts, finding equities between parties to the contract, and ejecting persons from premises upon which they had [273] entered under written agreement, and upon which they-had expended large sums of money, are powers which, do not belong to an Indian agent in this territory. They are vested solely and exclusively in the courts; The lease, on its face, purports to be for one year, which, under the law of the Creek Nation was a lawful one, and not in violation of any law of the United States. Section 2116, Rev. St.. U. S. (section 4326, Ind. T. Ann. St. 1899), referred to by the agent in his order, does not apply to leases of this kind. It applies only to conveyances and leases executed by the tribes or nations. By the last clause of section 29 of the act of congress of May 2, 1890 (section 29, Ind. T. Ann. St. 1899), an act, among other things “to enlarge the jurisdiction of the United States courts in the Indian Territory,” the courts were given jurisdiction ‘ ‘in all civil cases except cases over which the , tribal courts have exclusive jurisdiction,” and “in all cases on contracts entered into by citizens of any tribe or nation with citizens of the United States in good faith, and for valuable consideration, and in accordance with the laws of such tribe or nation and such contracts shall be deemed valid and enforced by such courts.” But-because of the fact that by the terms of the lease, if the valuable improvements which were to be put on the place-should not be paid for at the end of the year, the lessee, .as security for its payment, was to retain possession until he should be paid, the Indian agent, at the suit of the lessor held that the lease was for a term of years, and therefore void, and proceed to give possession to the lessor, notwithstanding he had not paid, nor did he offer to pay, for the benefits which he had received under the contract. The lessee was in possession. He had complied with his contract, and, in accordance with its terms, at a large expense to himself, had erected on .the premises valuable . and lasting improvements; and, whether the lease was void or valid, it did not lay in the mouth of the lessor, until he .had [274] paid for the benefits he had derived under it, to say that it was void, and ask for possession without payment.' The law permits no such injustice, either before the Indian agent or any other tribunal exercising judicial functions. But whether the deed was void or valid, the rights of the parties to it, its construction, the disposition of the properties acquired under it, and the law and the equities of the case, cannot be passed upon or enforced by an Indian agent. The courts alone possess these powers. The Indian agent complains in his decree “that, if this rule were to prevail, noncitizens could take possesion of the country, and practically control the tribes by connivance with their citizens. ” Whether this be issue or not, the fact is — and it is one of common knowledge — that nine-tenths of the farms of the Indian Territory have been opened up and made valuable by contracts substantially like this, and the Indian owners have been the direct beneficiaries. . The courts here, without passing upon the validity of such contracts, have universally held that, until the improvements provided for in the contract were paid for, the Indian «lessor was estopped to set up the invalidity of the lease; and recently, in harmony with these decisions, by act of congress (the Curtis bill, — Ind. T. Ann. St. 1899, §§ 57q-57z91) it is provided that the lessee shall not be ejected until he shall have been paid for his improvements. We hold that the Indian agent had no jurisdiction to try this case, and, therefore, when, at the instance of the appellee, he, using his police for that purpose, forcibly ejected the appellant from the premises, and put the appellee in possession, all the parties to the transaction — the appellees as well as the Indian police, who is made a party to this suit-were guilty of an act of forcible entry, and that, therefore, the court below erred in instructing the jury to find their verdict for the appellees. The judgment of the court below is reversed, and the cause remanded. Thomas, Townsend, and Gild, JJ., concur.