Hicks v. Butrick

DILLON, Circuit Judge. The patent issued by the United States recites the treaty of January 31, 1855, that John Hicks was a member of the competent class, that the 257 acres of land were allotted, under the treaty, “to John Hicks, the head of a family consisting of (here naming his wife and five children, of whom the complainant is one),” and concluding as follows: “Now, know ye: [116] •That, the United' States of America * * by these presents do give and grant the tracts of land above described nnto the said John Hicks as the head of the family as aforesaid — to have and to hold the said tracts of land unto the said John Hicks, as the head of the family as aforesaid, and to his heirs and assigns forever.” See Gray v. Coffman [Case No. 5,714]; Mun-gosah v. Steinbrook [Id. 9,924.] In executing the treaty of 1855, the United States construed it as dividing the competent Indians into two classes, to-wit: 1st, individuals or persons without families. 2d, heads of families, the names of the members of each separate family being arranged together. The test of competency in the head of the family was, sufficient intelligence and prudence, on the part of the head, to control and manage the affairs and interest of the-family. Article 3. By the treaty lands were to be ■ assigned and distributed “among all the individuals and members of the Wyandot tribe, so that those (lands) assigned to or for each shall, as nearly as possible, be equal in quantity or value, irré-spective of improvements thereon; and the division and assignment of lands shall be so made as to include the houses, and, as far as practicable, the other improvements of each person or family * * and include those for each separate family all together.” The commissioners are required to make a plat and schedule “showing the lands assigned to each family or individual.” Taking all the provisions of the treaty together, it quite satisfactorily appears to my mind that it contemplates that the competent heads of families shall take the lands by patent directly from the United States, and that the commissioner of Indian affairs and the land department properly construed the treaty, in investing John Hicks as the head of the family with the legal title to the land. It can hardly be supposed that the father of the family in his life time had no more interest in the land and the improvements than his wife or any one of his children, however young; or, as applied to the present case, that John Hicks, the father, who made the improvements, had only an undivided one-seventh part of the property. Considering the known authority and power of the head of the family according to the laws, usages and customs of the Nation, and the injustice of such a division, putting an infant child upon an equal footing with the father, I am of opinion that the theory upon which this bill is exhibited is unsound. Certain it is that the construction of the treaty was against the view maintained by the complainant; that this construction was acquiesced in both by the government and the Wyandot Nation; that in 18C3 the precise question here made was decided by the supreme court of Kansas (Summers v. Spy-buck, 1 Kan. 394), against the principle on which the bill in this case is founded, and that this view has since that time been accepted ¿nd acted' upon by purchasers of these lands as sound and unquestioned law. The practical construction of the treaty and the co-incident judicial construction of it by the supreme court of Kansas, find much support in Wilson v. Wall, 6 Wall. [73 U. S.] 83. And see 9 Stat 203, as to payments to heads of Indian families. At all events my judgment is that the practical construction of the treaty, so long acquiesced in, and on the strength of which so much money has been invested in good faitl*, should not be overturned in favor of a new construction, which to say the least is attended with grave doubts and would result in unsettling so many titles. Bill dismissed.