Clark v. Lord

The opinion of the court was delivered by Horton, C. J.: The main questions involved in this case are — First, Did Eliza Richardson, a member of the Ottawa tribe of Indians, who if she had lived till the 1st of December 1865 would have been entitled to a patent from the United States for the land in controversy, have, at the time of her death, in the fall of 1862, an inheritable estate in such land? Second, Do the restrictions upon alienation contained in the seventh article of the Ottawa treaty of 1862, apply to the heirs of said Eliza Richardson, if she had such an inheritable interest ? Eliza Richardson was included in that class, who, under the denomination of “all other members of the tribe,” was to receive eighty acres of land each, under article 3 of said treaty. This article is as follows: “It being the wish of said tribe of Ottawas to remunerate several of the chiefs, councilmen, and headmen of the tribe, for their services to them many years without pay, it is hereby stipulated that five sections of land are reserved and set apart for that purpose, to be apportioned among the said chiefs, councilmen, and headmen, as the members of the tribes shall in full council determine; and it shall be the duty .of the Secretary of the Interior to issue patents in fee simple of said lands, wben located and apportioned, to said' Indians. In addition thereto, said last-named persons, and each and every head of a family in said tribe, shall receive 160 acres of land, which shall include his or her house, and all improvements, so far as practicable; and all other members of the tribe shall receive eighty acres of land each; and all the locations for the heads of families, made in accordance with this treaty, shall be made adjoining, and in as regular and [394] compact form as possible, and with due regard to the rights of each individual and of the whole tribe.” The treaty was proclaimed 28th July 1863. Eliza Richardson died in the fall of 1862. The patent was issued to-her heirs on the 1st of December 1865, for the eighty acres in suit. Within the authorities the absolute right to eighty acres of land in the reserve passed immediately to Eliza Richardson upon the ratification of the treaty, and the title to the specific eighty acres in controversy, when selected and approved in the manner provided in the treaty, became absolute and perfect in her heirs, upon her decease. Doe v. Wilson, 28 How. 457; Forsyth v. Ballance, 6 McLean, 562. The case of the reserve, in Doe v. Wilson, supra, is so similar to the case of Eliza Richardson, that it is unnecessary to recite the reasons and arguments upon which this conclusion is based. In regard to the question, whether the restrictions on alienation apply to the heirs, it is necessary to refer to the article in which they are contained. This article (7) is as follows: “* * * And all the above-mentioned selections of lands shall be made by the agent of the tribe, under the direction of the Secretary of the Interior. And plats and records of all the selections and locations shall be'made, and upon their, completion and approval proper patents by the United States shall be issued to each individual member of the tribe and person entitled for the lands selected and allotted to them, in which it shall be stipulated that no Indian, except as herein provided, to whom the same may be issued, shall alienate or incumber the land allotted to him or her in any manner, until they shall, by the terms of this treaty, become a citizen of the United States; and any conveyance or incumbrance of said lands, done or suffered, except as aforesaid, by any Ottawa Indian, of the lands allotted to him or her, made before they shall become a citizen, shall be null and void. And forty acres, including the houses and improvements of the allottee, shall be inalienable during the natural lifetime of the party receiving the title; provided, that such of said Indians as are not under legal disabilities by the local laws may sell to each other such portions of their lands as are subject to sale, with the consent of the Secretary of the Interior, at any time.” [395] The letter of this article limits these restrictions to the individual members of the tribe entitled under the treaty to the lands selected and allotted to them, and to whom patents are issued, or to be issued. The reservation, as to the conveyance, is personal, from the language used, and was not intended to bind the heirs of allottees. While by the terms of the treaty, the lands reserved in article 3 are inalienable in the hands of the original patentee, except as otherwise provided, on the death of such patentee they descend under the laws of the state to the heirs, and in their hands there are no restrictions on the conveyance of the lands- so inherited, and they can be disposed of in the same manner and under like circumstances as the lands of other owners may be conveyed. Farrington v. Wilson, 29 Wis. 383. In this light, the plaintiff has no title, and no right of possession to the premises, as the restrictions did not apply to the heirs of Eliza Richardson. Plaintiff seems to concede that if the patent had been issued to Eliza Richardson in her lifetime, the restrictions would have died with her, but claims this rule has no application in this case, because, he assumes, that Eleanor Richardson received the title to the land direct from the United States by a patent. The patent was not issued to Eleanor Richardson, but to “ the heirs of Eliza Richardson,” and said Eleanor Richardson obtained her interest, not as an allottee, nor as the patentee, but by virtue of the laws of the state of Kansas, which authorized her, as an heir of Eliza Richardson, to inherit the estate of her sister. If Eliza had lived, the lands would have been allotted and patented to her. After her death, they were patented to her heirs, without naming them; and the law of the state determined who these were. Eleanor simply inherited the lands granted to Eliza during her life; and the patent is- evidence of the partition of the lands, and the division made in pursuance of the treaty. The death of Eliza Richardson did not change the terms and conditions of the treaty, nor annul the grant to her; but as the patent could not issue to a dead person, it was necessarily issued to the heirs of Eliza; but such heirs [396] were not controlled by the restrictions applicable to the allottees and patentees. If the patent had issued to Eliza in -her lifetime, her death would have abrogated the restrictions on the alienation of the land; and having issued after her decease, it placed the heirs in the same condition, as to their rights in the property, as if issued before. These restrictions should have been omitted from the patent-, as they could not apply to the heirs of the allottee; and being unauthorized and unwarranted, they were void, and constitute no restraint on the conveyance of the premises. The issuance of the patent is a ministerial act; and a clause inserted therein not authorized by law, is void. As affecting the proceedings on the trial, it is alleged as error, that the court admitted, as evidence, a certified copy of the deed of the premises from Eleanor Richardson to ¥m. Hurr, of date 19th March 1866, from the register of deeds of Franklin county. This deed was-recorded 8th May 1868. As the plaintiff admitted in court that the original deed was not within the control of the defendants, the court committed no error. Sec. 28, ch. 22, Gen. Stat., makes duly-authenticated copies of such instruments competent evidence. The word “now,” contained in the first line of said section, refers to the time fixed for the taking effect of the act regulating conveyances of real estate. This was October 31st 1868. The deed offered and received in evidence was copied in the books in the office of the register of -deeds of Franklin county prior to that date. The objection to it was properly overruled. The judgment of the district court will be affirmed. All the Justices concurring.