Bird v. Terry

HANFORD, District Judge. It is my opinion that the patent issued by the United States government to the plaintiff, George Bird, is not a meaningless or deceitful document, which conveys no estate to-the grantee, and I hold that it must be regarded and construed as a. 477 bona fide and valid instrument, effective to fulfill the promise made to the grantee named therein as one of the Indians concerned in the treaty made by Gov. Stevens in the year 1854. By the treaty, Bird, as the head of a family, was entitled to have the quantity of land which the patent conveys allotted to him in severalty as a permanent home for himself and family, upon condition that he and the family, should occupy and cultivate the same; and by the treaty he was promised not only the right to occupy and cultivate the land, but that the right should be exclusive, and inheritable by his heirs. The estate which the government promised to convey was not an absolute fee-simple estate, but was limited, so that he could not alienate the same without the consent of the state Legislature and of Congress, and the estate was defeasible in this: that it was subject to forfeiture if the allottee became a rover, and failed to occupy the land as a home. The patent by plain and positive words conveys to Bird the rights and the title which the treaty promised, and the grantee has in good faith accepted the land and the patent, and by erecting a dwelling upon the land and preparing a part of it for tillage, and by making his home thereon, and actual occupancy and cultivation of the land, he has fulfilled the conditions which entitle him to all the rights and benefits which the patent purports to convey to him. George Bird, although an Indian, has also, by adopting and practicing the habits of civilized life, and residing upon and cultivating the land allotted to him, fulfilled the conditions which, under laws enacted by Congress, entitle him to all the rights, privileges, and immunities of citizenship. He is a citizen of the United States, and entitled, equally with other citizens, to make a lawful use of his own property, and to prosecute and defend in the courts of this state and in the courts of the United States actions affecting his legal rights with respect to property, and to make contracts, not prohibited by law, including leases of the land in question for terms not exceeding two years. Having a complete vested estate in the land, and being endowed with the rights of citizenship, George Bird is under the protection of the guaranties of the Constitution of the United States, so that neither Congress nor the executive branch of the government can divest him of his property, nor deny to him the equal protection of the laws in a manner which would violate the constitutional rigiits of any other citizen. He cannot be prohibited from submitting for adjudication to the courts of this state disputed questions with respect to his ownership of the land conveyed by the patent, nor required to abide by the decision of any commission or agent of the executive branch of the government not authorized by law to exercise the judicial powers of the government, which takes from him- and gives to others a part of the land which he and his family alone are entitled to possess, nor be subjected to the control of government functionaries in the matter of leasing his lands for a term not exceeding the time limit specified in his patent. The several propositions above stated lead me to the conclusion that the heirs of Mary Bird, the deceased wife of George Bird, who are not his heirs, nor members of his family, have no right to nor interest in any part of the land conveyed by the patent, and that the agents of 478 the Interior Department cannot rightfully exercise any authority or control in the matter of leasing the land or receiving the rent, and that the decision of the Supreme Court of the state of Washington in the case of Bird v. Winyer, 24 Wash. 269, 64 Pac. 178, was a lawful adjudication by a court of competent jurisdiction of the questions which were at issue in that case between Bird and the heirs of his deceased wife. Pet a decree be entered in favor of the complainant, declaring him to be entitled to the exclusive possession of the 160 acres of land described in his complaint, and every part of it, and that the heirs of his deceased wife have no interest therein, nor right to possession of any part of it, and let an injunction issue against the defendant, Terry, forbidding him from molesting the plaintiff or his tenants in their occupation and use of the land, and from receiving any part of the rent for the same.