Capital Townsite Co. v. Fox

Townsend, J. (after stating the facts). The appellant has filed two specifications of error, as follows: “(1) The court erred in sustaining defendants’ demurrer to plaintiffs’ complaint (a) because the complaint does show that appellants, the plaintiffs below, have a right, .title, and interest in and to the lands in controversy; (b) because the court had and has jurisdiction to inquire into the matter of how much land should have been and was set apart by the officers and agents of the Interior Department for the townsite of Bixby, I. T.; (c) because the facts stated in the complaint entitle appellant-, plaintiffs below, to the relief prayed for, because they entitle them to equitable relief and because defendants’ third ground of demurrer is not a ground for demurrer under section 5028, Mansfield’s Digest of Arkansas Statutes, in force in Indian Territory; (d) because the complaint states facts sufficient to entitle plaintiffs to maintain this suit and to entitle them to equitable relief. (2) The court erred in dismissing plaintiffs’ bill at plaintiffs’ costs on sustaining the demurrer.” The first specification appellant divides into three propositions as follows: “First proposition: Has the court [230] jurisdiction to inquire into the matter of how much land should have been set aside, platted, and sold under the Creek agreement, approved March 1, 1901, and of the acts of the Department of the Interior in regard thereto? Second proposition: Could a United States citizen in possession of lands as town property adjoining to a recognized town.and held by him as a part of said townsite object to being left outside of the exterior limits on the ground that the ninth paragraph of section 10 of Creek agreement had not been complied with, to his injury, and, if so, what kind of a right or title would he have to have to be in a position to object? Third proposition: Could a property owner in said unincorporated town object on the ground that the area of the .townsite was made so small as to injure the value of his property therein?” We have examined with some care the provisions of the Creek agreement, approved March 1, 1901, and we find that the Secretary of the Interior is clothed with the sole power of directing and controlling the allotment of lands and the designating of townsites, and the execution of all and singular the provisions of said agreement, so far as the Congress of the United States deemed necessary for the government of the United States to act; and, for fear that some question might be raised by some one as to the Secretary’s power and authority, they added section 45 of said agreement (chapter 676, 31 Stat. p. 872), which is as follows: “All things necessary to carrying into effect the provisions of this agreement, not otherwise herein specifically provided for, sha-ll be done under authority and direction of the Secretary of the Interior.” It is undoubtedly true that the courts have jurisdiction to pass upon the acts of the administrative officers of the government, but before they undertake to exercise such jurisdiction it must clearly appear that the officer is violating the laws in the discharge of his duties; and, when an individual complains of the action of such an officer, it should appear that some right of said individual had been denied or trespassed upon by the [231] action of said officer. Without going through the authorities furnished by appellants, we' are confident that the principle here stated will be found substantially to exist in all of them. That brings us to the consideration of the allegations of plaintiffs’ complaint, as the demurrer admits all the material allegations of the same. The first allegation that we care to notice is that the plaintiffs, as United States citizens, show that they purchased some 240 acres of land from an Indian woman, who, it is alleged, had been in possession of same for some years. Now nothing is better settled in this jurisdiction than that an Indian cannot convey lands to a United States citizen, nor can said citizen take title from an Indian. In Turner et al. vs Gilliland (Ind. Ter.) 76 S. W. 254, the court says: “W. H. Warner, the defendant Turner’s grantor, being a white man, took nothing by his purchase, because the law does not permit a white man to acquire the title to land which an Indian holds in the Choctaw ’or Chickasaw Nation, and therefore Turner acquired nothing by his deed from Warner; and the same is true as between the plaintiff and the defendant Gillen water, Turner’s lessee. Therefore they are both without title from that source, and their deeds would not be admissible as evidence in this case.” In Denton vs Capital Townsite Company (Ind. Ter.) 82 S. W. 854, the court says: “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 townsite, and may lease the same. United States vs Lewis (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 [232] that is positively inhibited by the statutes.” It thus appears from the complaint that the appellants have no interest in the land, and consequently do not occupy a position to complain of the action of the Secretary of the Interior, or any other officer mentioned in said complaint; and until they secure some property interests or rights, and can show that they have been denied their rights, or their property interests have been interfered with or trespassed upon, they have no cause of action. It is our opinion that the judgment of the lower court in sustaining the demurrer and dismissing the complaint was correct, and it is therefore affirmed. Clayton and Gill, JJ., concur. Raymond, C. J., not participating.