Maynes v. Veale

The opinion of the court was delivered by Horton, C. J.: This was an action of ejectment, brought by the plaintiff in error, who was also plaintiff in the court below, to recover the possession of the west half of the northeast quarter of section 34, in township 10, of range 13, situate in Shawnee county. The second trial of the case was had by the court, without the intervention of a jury, and the court found as conclusions of fact, as follows: 1st. — The plaintiff’s maiden name was Susan Latranch. At the commencement of this action, plaintiff was a married woman, and of the age of eighteen years. 2d. — Under and in conformity with the second article of the treaty of November 15th 1861, between the United States and the Pottawatomie tribe of Indians, (proclaimed 19th April 1862,) the agent of said tribe took a census of the members of the tribe, classifying them in separate lists, showing the names, ages, and numbers of those desiring lands in severalty, and of those desiring lands in common, designating chiefs, and headmen, respectively. Said census, classification, and list showed that Susan Latranch, (now Susan Maynes, plaintiff,) then a minor, was a member of the tribe desiring lands in severalty, as chosen for her by Anthony F. Navarre, who was the head of the family of which said Susan was a member. 3d.-Thereupon there was assigned, under the direction of the Commissioner of Indian Affairs, to said Susan Latranch the land in controversy in this action, being eighty acres then .and before that time a portion of the Pottawatomie Indiau Reservation, and situate in the county of Shawnee, and described as follows: The west half of the northeast quarter of section 34, in township 10 south, of range 13 east of the sixth principal meridian in Kansas. 4th.-After such assignment was completed, and on the 12th — 384 — of April 1866, a certificate was issued by the then Commissioner of Indian Affairs, to the said Susan Latranch in words and figures as follows: INDIAN LAND CERTIFICATE. To ALL WHOM IT may concern: It is hereby certified, that Susan Latranch, a member of the Pottawatomie tribe of Indians, is entitled to eighty acres of land, under the provisions of the treaty of said Indians with the United States concluded on the fifteenth day of November 1861; and, being so entitled — It is further certified, that, in pursuance of said treaty, there has been assigned to the said Susan Latranch, the west half of the northeast quarter of section thirty-four, in township ten south, of range thirteen east of the sixth principal meridian in Kansas. It is also certified, that the said Susan Latranch and her heirs are entitled to the immediate and exclusive possession and use of said land. It is further certified, that this certificate is not transferable; and that any sale, lease, transfer, or incumbrance of the said land, or any part thereof, to any person or persons whomsoever, except it be to the United States, or to members of said tribe of Indian blood, with the consent of the President, and under such rules and regulations as may be prescribed by the Secretary of the Interior, or except upon the terms and in the manner provided by said treaty, is, and will continue to be, utterly void and of no effect. It is further certified, that the said land is exempt from levy, taxation, sale, or forfeiture, until otherwise provided by congress. In testimony whereof, I, Dennis N. Cooley, Commissioner of Indian Affairs, have hereunto set my hand, and caused the seal of the Department of the Interior to be hereto attached, at the city of Washington, this twelfth day of April 1866. [seal.] D. N. Cooley, Commissioner. 5th.-Said defendants were in possession of said land before the commencement of this action, and were in possession thereof at the commencement of this action, and withheld the same from the possession of the plaintiff, and kept her the said plaintiff out of the possession thereof. 6th. — On the 16th of May 1870, under the supposed power and authority conferred by the sixth section of the treaty of 27th February 1867, which, as amended 4th August 1868, was ratified and proclaimed 7th August 1868, a patent was-issued to Anthony F. Navarre, as the head of the family of which said Susan Latranch (now Susan Maynes) was a member, for the land in controversy, which patent is in words and figures as follows: The United States of America. To all to Whom these Presents shall Come, Greeting: Whereas, there has been deposited in the General Land Office an official return, certified under date of March 7th 1870, by the Commissioner of Indian Affairs, accompanied by List No. 1, “containing the names, age, and sex of persons, Pottawatomie Indians, belonging to families the heads of which have become citizens of the United States, or have-applied to become citizens under treaty provisions, with description of the lands allotted to said persons; the issue of patents for said lands, and the — 385 — payment of pro rata share of the moneys and credits of the tribe, belonging to said persons, it is desired to have made, in accordance with the provisions of the sixth article of the treaty of February 27th 1867, and the act of congress approved April 10th 1869.” And whereas, the said list is accompanied by the order, dated March 1st 1870, of the President, for the issuing of patents for the tracts therein described, the said list designating Saw-na-ne-qua as allottee of allotment No. 598, being the lot numbered two, of section eight, in township eleven south, of range thirteen east, and the southeast quarter of the northwest quarter of section thirty-four, in township ten south, of range thirteen east, containing eighty-one acres and fifty-three one-hundredths of an acre, reserving from the described allotment the Government shops and buildings, and the use of five acres of ground for agency purposes; and Susan Latrauch, as an állottee of allotment No. 600, being the west half of the northeast quarter of section thirty-four, in township ten south, of range thirteen east, containing eighty acres, said tracts being east of the sixth principal meridian, and situated in the district of lands subject to sale at Topeka, Kansas, and the said list designating Anthony F. Navarre as the head of the family of said allottees to whom the patents for said allotment shall issue. Now, know ye, that the United States of America, in consideration of the premises, and pursuant to the treaties, act of congress, and President’s order aforesaid, have given and granted, and by these presents do give and grant, unto the said Anthony F. Navarre, and to his heirs, the tracts of land above described; to have and to hold the said tracts or parcels, with the appurtenances, unto the said Anthony F. Navarre, and to his heirs and assigns forever. In testimony whereof, I, Ulysses S. Grant, President of the United States, have caused these letters to be made patent, and the seal of the General Land Office to be hereunto affixed. Given under my hand, at the City of Washington, this sixteenth day of May, in the year of our Lord one thousand eight hundred and [seal.] seventy, and of the Independence of the United States the ninety-fourth. By the President: U. S. Grant, By Charles White, Secretary, J. N. Granger, Recorder of the General Land Office. Recorded, Pottawatomies, Treaty of 1867, vol. 1, page 116. 7th. — All of the said defendants in this action claim title by deed through said Anthony E. jNavarre. And the court finds as conclusions of law: lst.-Said treaty of November 15th 1861, and the action had thereunder, including the issuance of the said certificate by the Commissioner of Indian Affairs, operated as and constituted a grant of the land in controversy to said Susan Latranch, (now Susan Maynes, plaintiff.) 2d. — Said treaty of 15th February 1867 did not authorize the issuance of the patent to said Anthony F. Navarre. 3d.-Said patent so issued on the 16th of May 1870, to said Anthony F. Navarre, is null and void. 4th.-The plaintiff, at the time of the commencement of this action was, and now is, the owner of said land and premises — 386 — in her petition described, and entitled to the immediate and exclusive possession thereof. It is therefore considered, ordered, and adjudged, that the said Susan Maynes, plaintiff, do recover against the said defendants the premises in her said petition described, and also her costs in and about her suit in this behalf expended. Judgment of eviction having been thus rendered against the defendants, they invoked the benefits of the occupying-claimant act. The district court held that the defendants were entitled thereto, and “ordered that further proceedings be had in the premises agreeably” to said act. The plaintiff excepted to this order, and now in this court assigns said order as error. As no cross-petition has been filed, and no effort made to question the correctness of the judgment rendered in favor of the plaintiff, except in the brief of the defendants in error, (and there only indirectly,) we must treat such judgment as final, and satisfactory to all the parties; and the conclusion follows, that we cannot'review, in this action, the decision of the district court as to the allotment and grant of land to the plaintiff under the provisions of the Pottawatomie treaty of 1862, nor the question of the validity of the patent issued to Anthony F. Navarre under the treaty of 1868. (Waterson v. Devoe, 18 Kas. 223.) Assuming then, that in accordance with the ruling of the district court, the patent to Navarre, of 16th May 1870, was absolutely void, and that the plaintiff is the owner of the premises under the treaty of 1862 and the certificate issued by the Commissioner of Indian Affairs on 12th April 1866, the question presented is, whether the defendants are entitled to any of the benefits of the occupying-claimant act ? The said certificate of April 12th provides, that it “is not transferable, and that any sale, lease, transfer, or incumbrance of the said land, or any part thereof, to any person or persons whomsoever, except it be to the United States, or to members of said tribe of Indian blood, with consent of the president, and under such rules and regulations as may be — 387 — prescribed by the Secretary of the Interior, or except upon the terms and in the manner provided by said treaty, is, and will continue to be, utterly void and of no effect.” This certificate was based upon that provision of the treaty which states, “when such assignments shall have been completed, certificates shall be issued by the Commissioner of Indian Affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned respectively, and that said tracts are set' apart for the purpose and exclusive use and benefit of such assignees and their heirs. Until otherwise provided by law, such tracts shall be exempt from levy, taxation, or sale, and shall be alienable in fee, or leased, or otherwise disposed of, only to the United States, or to persons then being members of the Pottawatomie tribe and of Indian blood, and under such regulations as the Secretary of the Interior shall provide, except as may be hereinafter provided.” To relieve themselves from the effect of these conditions, the defendants assert that the restrictions upon the plaintiff’s right of alienation were afterward removed; that by article 3 of the treaty of 1862, such restrictions to adults, being males and heads of families, were removable upon certain conditions; that in 1866, by a supplemental article, this privilege was extended to all adults of the tribe, without distinction of sex, whether the person was the head of a family, or not; that by the treaty of 1868, when any member of the tribe should become a citizen, under the provisions of the treaty of 1862, the families of said parties should be considered as citizens; and that as a patent in this instance was issued to Anthony F. Navarre, the head of the family of which the plaintiff was a member, the plaintiff thereby became a citizen, and her land alienable, taxable, etc., as the property of other citizens. But the defendants are crippled at once in their claim, because, upon this record, it is conceded by all parties, that the' patent issued to Navarre was void. As no other evidence was introduced upon the application of the occupying claimants than the findings of fact of the court, the citizenship of the head of the family is not at — 388 — tempted to be established except by the recitals of a patent issued without any authority of law. Waiving the question of what may or may not be proven by the recitals of a void patent, and anticipating this testimony may be supplied on a new hearing, it seems to us evident that it was not the intention by the several provisions of the treaties of 1862, 1866, and 1868, to have the lands of allottees, situated as the plaintiff was at the date of such patent, subject to levy, taxation and sale by the mere act of a member of the same family becoming a citizen. (Art. 2 and 3, treaty 1862, 12 Stat. at Large, 1191; art. 1, treaty 1866, 14 Stat. at Large, 763; art. 6, treaty 1868, 15 Stat. at Large, 531.) There is nothing in the powers conferred by citizenship, independent of the treaty, which of themselves release the restrictions on alienation; and if these restrictions are discharged, when the allottees become citizens, such discharge or release must be found in some one of these treaties. Article 4 of the treaty of 1868 provides that the provisions of article 3 of the treaty of 1862, relative to Pottawatomies who desire to become citizens, shall continue in force; and sections 2 and 3 of the treaty of 1862, the supplemental article of 1866, and section 6 of the treaty of 1867, must be construed and reconciled together, if possible; and thus construed, the power of alienation is withheld from the allottee, until she, being an adult, shall have satisfied the president that she is sufficiently intelligent and prudent to control her affairs and interests, and until the president, at her request, shall cause the land to be conveyed to her by patent, “ and thereafter the land so patented to her shall be subject to. levy, taxation, and sale, in like manner with the property of other citizens.” No patent to her has yet been issued, and none applied for. The void patent to Navarre cannot be counted. Admitting that Navarre became a citizen, and thereby the plaintiff, a member of his family, became a citizen also,, neither of these acts relieved or emancipated the land of the plaintiff from the restrictions on its alienation as provided in the treaty of 1862; the title to the same, for aught that appears in this record, is still inalienable. — 389 — With this conclusion obtained, th,e defendants have no right to the benefit of the occupying-claimant act. It is immaterial whether section 610 of the civil code permits the successful claimant to elect to receive the value of the land without improvements, upon tendering a general warranty deed, or whether section 608, as amended by sec. 2 of ch. 102, Laws of 1873, requires the payment by the claimant of the value of the improvements; because, in either view, the enforcement of these provisions, or either of them, would in effect defeat the'operation of the treaty of 1862, and violate a paramount federal law. A continued hostile possession would virtually deny title to the plaintiff; and a temporary hostile possession would embarrass the exercise of that title. In a conflict between the law of the state, and a treaty of the United States in regard to Indian lands in the state, the former must give way. Neither the title, nor possession of the Indian owner, secured by treaty with the United States government, can be disturbed by state legislation; and the occupying-claimant act has no application in this case. Krause v. Means, 12 Kas. 335; The Kansas Indians, 5 Wall. 737; Farrington v. Wilson, 29 Wis. 383. The order of the district court granting to the defendants the benefit of the occupying-claimant act will be reversed, and the case remanded. All the Justices concurring.