Denton v. Capital Town Site Co.

Gill, J. The first assignment of error mentioned by appellant, is the action of the court in overruling the demurrer [402] interposed to the complaint in this action. The ground of the demurrer to the complaint is that ir fails to state a cause of action, for the reason that plaintiffs’ allegations show that they were disqualified from taking or holding the lands in controversy; they being United States citizens, and the lands sought to be conveyed by Mrs. Baysinger being Creek lands situated in the Creek Nation; defendant’s argument being that, if they were disqualified from taking or holding such lands, they could give nothing to defendant, and consequently could recover nothing from the defendant. From this contention, if it be well taken, it will be unnecessary to examine the other assignments of error in the case. Section 2118 of the Revised Statutes of the United States is as follows: “Every person who makes a settlement on any lands belonging, secured or granted by treaty with the United States to any Indian tribe, or 'surveys or attempts to survey such lands, or to designate any of the boundaries by marking trees or otherwise is liable to a penalty of one thousand dollars. The President may moreover take such measures or employ such military force as he may judge necessary to remove any such person from the lands.” Section 17 of the act of Congress approved June 28, 1898, c. 517, 30 Stat. 501, reads as follows: “ That it shall be unlawful for any citizen of any one of said tribes to inclose or in any manner by himself or through another, directly or indirectly, to hold possession of any greater amount of lands or other property belonging to any such nation or tribe than that which would be his approximate share qf the lands belonging to such nation or tribe, and that of his wife and minor children as per allotment herein provided, and any person found in such possession of lands or other property in excess of his share and that of his family, or have the same in any manner enclosed after the expiration of nine months from the passage of this act shall be deemed guilty of a misdemeanor.” It is nowhere alleged in the complaint that Eliza M. Baysinger was holding this land as part of her approximate share of the lands of the Creek Nation, or for any of her minor [403] children. Plaintiffs’ allegations are that they obtained their right of possession to these lands through a deed from Mrs. Baysinger. It is true, they allege further that, before the conveyance of the land, Mrs. Baysinger, a Creek citizen, had segregated the land from the Creek Nation for town site purposes. It is also true that this court has held that an Indian, being in possession of his approximate share of the lands in the nation to which he belongs, may plat the same into a town site, and may lease the same. United States vs Lewis 5 Ind. Ter. (76 S. W. 299). But this court never at any time has said, nor is there any provision of law whereby a member of one of the tribes can sell to a United States citizen the possession or right of any of the tribal lands. The complaint in this action alleges directly a sale from a member of the Creek Nation to them of the lands sought to be covered in this action — something that is positively inhibited by the Statutes; Turner et al vs Gilliland 4 Ind. Ter. (76 S. W. 253). The Indian could not sell these lands, or the right to these lands, and could not convey the same, nor contract to do so. In this case the allegations of the complaint do not show that Mrs. Baysinger held these lands as a part of her allottable portion in the Creek Nation. If these lands at the date of this conveyance were not in her possession as her allottable portion thereof, she would be unable to transfer them even to another Creek citizen. If she could not transfer them to another Creek citizen, she certainly could not transfer them to a United States citizen, nor .could she put another United States citizen in legal possession of them. To hold that a United States citizen could go to any part of the Creek Nation, make a contract with a .Creek citizen for the sale of lands in the Creek Nation, plat such lands into a town, and sell parcel of land in such town to other individuals, and make contracts enforceable in law, when the law positively inhibits such action, is to ask the court to do something that it cannot do. Holford vs James, 4 Ind. Ter. Rep. 633 (76 S. W. 263). [404] .We must hold in this case that this demurrer was well taken, and should have been sustained by the court below, and the action dismissed; and the case is therefore reversed and remanded, with directions to the court below to sustain the demurrer and proceed in accordance with law. Townsend and Clayton, JJ., concur.