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ed as in the nature of a partition among joint owners of realty, whereby there should be set apart to each owner a single portion in severalty as and for his joint interest or property in the whole. The United States in making the allotments was dealing with the fee, and yet conceding that the Indians were entitled to it, and providing that in due time they should have it. "Allot" is not a term of sale or grant, but of apportionment of that to which the parties are entitled as of right. The Honorable William H. Taft, Solicitor General, advising. as to the allotment of lands to individual Indians, asked: "What is the Indian right of occupancy?" To which he answered:
"It is the right to enjoy the land forever, with the right of alienation lim. ited to one alienee, the United States, or to such persons as the United States, in its capacity of guardian over the Indians, may permit."
And then, after stating the government's relation to the Indians as guardian, he makes this further observation:
"Allotments in severalty of Indian land are therefore naturally evolved from the Indian right of occupancy." 20 Opinions Attorney General, 42, 48.
Now, understanding the nature and the purpose of the allotment, we may determine as to the inheritancy. "The law governing the descent of lands and the distribution of the personal property of an intestate, wherein the tribal organization is still recognized by the government, is the law of the tribe.” 22 Cyc, 119; Jones v. Meehan, 175 U. S. 1, 20 Sup. Ct. 1, 44 L. Ed. 49. This pertains to tribal Indiants. To supplant this condition, while the government was pursuing its course of inducing the Indians to abandon their primitive habits and customs, it was deemed appropriate to enact that the laws of descent obtaining in the state of Oregon should apply to the allotments of land in severalty, and hence the act of 1885. The Supreme Court has spoken, in United States v. Rickert, 188 U. S. 432, 23 Sup. Ct. 478, 47 L. Ed. 532, in part interpretation of section 5 of the act of 1887, containing provisions of similar import with those of the act of 1885 now under consideration. Referring to the term “patents," as first used in the section, the court says it was merely designed to denote "a paper or writing, improperly called a patent, showing that at a particular time in the future, unless it was extended by the President, hie [the Indian] would be entitled to a regular patent conveying the fee.” This patent, so called, it is provided by the act shall be of legal effect and declare that:
"The United States does and will hold the land thus allotted the sole use and benefit of the Indian to whom such allotment shall have been made, or in case of his decease, of his heirs according to the laws of the state of Oregon, and that at the expiration of said period the United States will convey the same by patent to the said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever."
Another patent is therefore to follow which shall invest the Indian with title absolute, divested of all trust relationship with the government, and in final discharge of the government's guardianship as it pertains to the allotment. What, then, is made descendable or inheritable? Is it the fee, or is it merely the right of occupancy, or has the government carved out of this Indian title a trust estate for them,
whereby the Indian is accorded an equity only for the time being, and is that the estate which the law declares to be inheritable ?
Counsel for defendants insist that it is this latter equitable estate that is within the intendment of Congress; but with this contention I am unable to agree. As I have shown, Congress was dealing with the fee of those Indian lands with a purpose of investing that title ultimately in the Indians in severalty for their sole and exclusive ownership and management, as a citizen of the United States might own and manage property for his exclusive benefit. The scheme was by ažotment among the Indians of that to which they were entitled by treaty and by the long-continued policy of the general government. Hence the government adopted a procedure for setting aside or distributing to each Indian concerned that to which he was entitled. To accomplish that purpose in manner deemed by Congress to be to the best interests of the Indians, it was considered wise to withhold the bitimate title from them for awhile, but the scheme was for the allotment ultimately of that title; and so it was the fee with which Congress was dealing, and it was the fee concerning which the allotrents were to be and were made. Such being the case, it is the fee that Congress has made inheritable according to the laws of the state of Oregon. *The estate is therefore one of inheritance, and the right of curtesy attaches. The clause, providing "that the law of alienation and descent in force in the state of Oregon shall apply thereto after patents have been executed, except as herein otherwise provided,” is best construed as a general provision to apply both to the preliminary and final patents, and the exception mentioned has relation to the withholding of the title in fee during the probationary period. Of course, no alienation can take place in the meantime if the government is to convey the fee free of all charge or incumbrance whatsoever.
It will be noted that this act of 1885 does not provide for citizenship of the allottees. That was left for the act of 1887; so that the law of inheritance applying to citizens generally would not govern the Indian respecting the inheritance of realty, unless specially provided, and such was, perhaps, the intendment of Congress by inserting the clause. This gives meaning and significance to all the language emploved, and renders none of it superfluous. The general statute of 1887 provides specifically that any conveyance of the allotted land prior to the final patent shall be null and void, and that the law of descent and partition (not alienation) in force in the states or territories in which the lands lie shall apply after patents therefor, etc., which was there intended probably to limit the operation of descent and partition to the time intervening prior to the issuance of the final patent conveying the fee, for by this act the Indian was made a citizen by reason of the fact of allotment (In matter of Heff, 197 U. S. 488, 25 Sup. Ct. 506, 49 L. Ed. 848), and no provision was necessary to make the law of alienation and descent apply to him after he had been invested with the fee. Nor am I, after a careful review of the entire subject, now of the opinion, as indicated by the case of Kalyton v. Kalyton, 45 Or. 116, 129, 74 Pac. 491; 78 Pac. 332, that the heirs of Indian allottees "take as donees of the United States and not by inheritance." My reasons are apparent from previous discussions herein. The leading case for the doctrine supposed to apply in the case of Kalyton v. Kalyton is Hall v. Russell, 101 U. S. 503, 25 L. Ed. 829, and is predicated of the donation act; but there the court says it was not the land that it was contemplated should descend to the heirs, but the "settler's rights only." And, again, the court says specifically: "We attach no importance to the word 'descend' as used in this section.” By the death of the entryman he could not comply with the conditions as to residence and cultivation so as to entitle him to his patent; so the law provided that upon the death of such entryman his rights should descend to his heirs at law, including his widow, and that proof of compliance with the statutory conditions on their part would entitle them to patent; and so the court held that they took as donees of the government, as they very well might. This case was followed, and the doctrine thereof applied, in Quinn v. Ladd, 37 Or. 261, 59 Pac. 157. So it was said of the homestead act, in Bernier v. Bernier, 147 U. S. 212, 246, 13 Sup. Ct. 244, 245, 37 L. Ed. 152, that the object of the sections of the statute involved was "to provide the method of completing the homestead claim and obtaining a patent therefor, and not to establish a line of descent or rules of distribution of the deceased entryman's estate.” And such is the case under the timber culture act. See, Kelsay v. Eaton, 45 Or. 70, 76 Pac. 770, 106 Am. St. Rep. 662, and Cooper v. Wilder, 111 Cal. 191, 43 Pac. 591, 52 Am. St. Rep. 163.
But not so with the present act. The purpose there was to give scope and effect to the laws of descent in Oregon, which were made applicable to the allotment. I have not overlooked the case of Patawa v. United States (C. C.) 132 Fed. 893. While the distinguished jurist in that case used language which would imply that dower would not attach as it relates to the allotment, and this because it was contended for the demurrer that the right of the widow to dower involved the construction of the laws of the state, and was the exercise of a jurisdiction probate in its character, yet he says distinctly:
“The right of dower in this case depends upon the allotting act. The right exists if it can be implied from the act that the allottee's interest is with respert to dower subject to the rule that obtains in the case of estates of inheritance in general. And so the right to dower involves the construction of a federal statute. There is no question involving a construction of the laws of Oregon in the case.”
And thus was the question left for determination by a construction of the allotting statute, without attempting to render the interpretation. The case is therefore not controlling.
The interpretation I have given to the act, construed in connection with the treaty, seems more in consonance with the intendment of Congress and the expectations and anticipations of the Indians. It secures, as was stipulated in the treaty of 1855, to the family, in case of the death of the head thereof, the possession and enjoyment of the permanent home and the improvements thereon. Otherwise, it might happen that the wife of a deceased allottee, or the husband of such an allottee, would be left without any estate whatsoever in any of the Indian lands upon the reservation. The allotments are made to the heads of families, being Indians or of mixed Indian blood and of the
coniederated tribes settled upon the Umatilla reservation. Ordinarily, ie husband is the head of the family, and the allotment is to him; none is to the wife, though the children are entitled to their allotments. So that at the death of the husband the wife is left without the benefit of any allotment, unless she is to have her dower, which will secure to her the measurable possession and enjoyment of the permanent honie. Otherwise, she is left homeless and remediless, dependent wholly upon the charity of relatives and friends, with the government discharged of its guardianship. True, it may and does happen that Indian women marry white men, or Indians not of the confederated tribes, and the allotment is then to the wife as the head of the family. Hy-yu-tse-milkin v. Smith, 194 U. S. 401, 24 Sup. Ct. 676, 48 L. Ed. 1039. In such cases, under the rule here adopted, the husband becomes entitled to the curtesy. But these are exceptions, for the general rule is that intermarriage is with members of the confederated tribes, and it was the latter condition that was in view in casting the treaty and in the adoption of the legislation relative to the allotment of these Indian lands upon the Umatilla reservation to the members of the confederated tribes in severalty.
Since, therefore, the motion to strike out includes relevant and material matter with other that is impertinent, it must be overruled, and such will be the order of the court.
WHEELER V. PETITE et al.
The widow of an Indian to whom an allotment of lands in severalty had been made from the Grande Ronde Indian reservation, as authorized by the treaty of January 22, 1835, and Act Cong. 1887, c. 119, 24 Stat. 388,
is entitled to dower in such lands. On Demurrer to Complaint.
The complainant, who is an Indian woman, brings this suit to determine ber right to dower in certain lands situate upon the Grand Ronde Indian reservation, in the state and district of Oregon, formerly allotted to Henry Winslow, a full-blood Indian. From the allegations of the bill of complaint, it appears that the complainant intermarried with Henry Winslow in the year 1881. Subsequently, under and by virtue of the provisions of the act of Congress entitled "An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the territories over the Indians, and for other purposes," approved February 8, 1887 (24 Stat. 388, c. 119), there were allotted to Winslow the lands alluded to. Two daughters were born to Henry Winslow and the complainant, the issue of their said marriage, who are now living. and known as Tillie Quenel, née Winslow, and Rosa Winslow. Some time during the year 1890, Winslow, without being separated or divorced from the complainant, mar th defendant Annie Petite, and the issue of this marriage is one son, namely, Augustus Winslow. Winslow died in the year 1896, leaving the defendant Annie Petite and their son Augustus Winslow in possession of the allotment. Annie Petite acquired her present name, subsequently to the decease of Winslow, by intermarriage with one Petite, with wbom she is now living. The complainant claims a right of dower in the said premises, as the lawful widow of Henry Winslow, and the right to pos
sess the same jointly with the children of Winslow, namely, Tillie Quenel, née Winslow, Rosa Winslow, and Augustus Winslow, and prays that her rights in the premises be so determined and adjudicated. The defendant Annie Pe tite challenges the sufficiency of the complaint by demurrer, and the question presented is whether the complainant is entitled to the right of dower in and to the allotted lands.
James Cole, Asst. U. S. Atty., for plaintiff.
WOLVERTON, District Judge (after stating the facts). On January 22, 1855, the Calapooia, Yamhill, Clackamas, and other tribes and bands of the Indians entered into a treaty with the United States, whereby they ceded all their title to lands comprising the entire Willamette Valley to the government, with a provision that they “be permitted to remain within the limits of the country ceded, and on such tempo ary reserves as may be made for them by the superintendent of Indian affairs, until a suitable district of country shall be designated for their permanent home, and proper improvements made thereon.” The Indians stipulated to vacate the country ceded when directed by the superintendent of Indian affairs, "and remove to the district which shall be designated for their permanent occupancy." By the fourth article it was agreed that the President might, from time to time at his discretion, cause the whole or such portion as he might think proper, of the tract that should be set apart as a permanent home of the Indians, to be surveyed into lots, and assign them to such Indians of the confederated bands as might wish to enjoy the privilege and locate thereon permanently: To a single person, over 21 years of age, 20 acres; to a family of two persons, 40 acres; to a family of three persons, and not exceeding five, 50 acres; to a family of six persons, and not exceeding ten, 80 acres; and to each family over ten in number, 20 acres for each additional three members. The President was also authorized to make rules and regulations such as would secure to the family, in case of the death of the head thereof, the possession and enjoyment of such permanent home and the improvements thereon. Other provisions are inserted, with a view to induce the Indians to remain permanently upon the land thus allotted to them, and it was designed that they should finally be entitled to the lands absolutely, without right or title in the government. The act of 1887 (24. Stat. 388, c. 119) provides:
"That in all cases where any tribe or band of Indians has been, or shall hereafter be, located upon any reservation created for their use, either by treaty stipulation or by virtue of an act of Congress or executive order setting apart the same for their use, the President of the United States be, and he hereby is, authorized, whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes, to cause said reservation, or any part thereof, to be surveyed, or resurveyed if necessary, and to allot the lands in said reservation in severalty to any Indian located thereon in quantities as follows: To each head of a family, onequarter of a section; to each single person over eighteen years of age, one eighth of a section; to each orphan child under eighteen years of age, one eighth of a section; and to each other single person under eighteen years now living, or who may be born prior to the date of the order of the President directing an allotment of the lands embraced in any reservation, one-sixteenth of a section: Provided, that in case there is not sufficient land in any of said