(аfter stating the facts as above). The appellants contend, first, that neither Philomme Smith nor any other of the appellees was entitled to any allotment whatsoever upon the Umatilla Indian Reservation; and, second, that, conceding the existence of such a right, the deceased children of Philomme Smith were not at the time of their death рossessed of an interest capable of transmission by inheritance. As to the first of these contentions, it is to be observed, first, that it is conceded that the mother of Philomme Smith was a member of the Walla Walla tribe of Indians. Tt is contended, however, that she severed her tribal relations; that her daughter Philomme never resided upon the reservation, and is not a tribal Indian, and was therefore not one of those for whom the allotment of land on that reservation was authorized to be made. The testimony shows that the mother of Philomme married one Thomas Tawakawn, an Iroquois Indian who had probably come into the Oregon country from the east as a voyageur engaged in trapping for the Hudson Bay Compаny. After his marriage to Philomme’s mother, he lived in the Willamette Valley, but thence made occasional expeditions into California and elsewhere. The evidence is conflicting as to the place of Philomme’s birth. The trial court reached the conclusion, and the weight of the testimony, we think, sustains it, that she was bom within the region occupied by the Walla Wallas, and that while an infant she was brought by her parents into the Willamette Valley. While living in the Willamette Valley, when she was about six years of age, her mother married a Erench-Canаdian by the name of Sauvé. On the death of Sauvé, which occurred a short time thereafter, his widow, with Philomme, moved to The Dalles, in Oregon. At that time Philomme was about fourteen years of аge. There she married Smith,
The right of Philomme tо the land so selected by her for her individual use is not involved in the present suit. That was finally determined in the case of Hy-yu-tse-mil-kin v. Smith,
“If the individual were a member of the tribe or band, recognized as such by his -chiefs, it was not necessary that such person should be an actual resident of the reservation when the act was passed. The fact found is that the appellee' herein is a full-blooded Indian woman, and was at all the times mentioned a member of the Walla Walla band or tribe of Indians, and аt the time of the original allotment resided upon the reservation in the state of Oregon. When such a large percentage of allottees upon this reservation residеd, as did the appellee, elsewhere than actually upon the reservation at the date of the passage of the act of 1885, it cannot be that the act pаssed was intended to limit the right of an allotment to those actually residing on the reservation to the exclusion of the majority of the members of the different bands or tribes. The fact of such nonresidence is presumed to have been known to Congress, and the act should be construed with reference to that knowledge.”
It is contended on behalf of the aрpellants that the decision in that case recognized, at least by inference, that residence within the limits of the territory ceded by the Indians to the United States by the treaty of 1855 wаs a necessary condition precedent to allotment, and that inasmuch as Philomme was, at the date of the treaty, residing at The Dalles, outside of the lands ceded to the United States by "the treaty, and at a distance of 50 miles therefrom, she and her children were not entitled to allotments within the reservation. It is true that in the opinion of the court in that case the fact is more than once alluded to that the Indians of the confederated Indian bands were residing off the reservation, but within the country theretofore ceded tо the United States by the treaty of 1855 (Act June 9, 1855, 12 Stat. 945). The
The act of 1885 provides for an allotment to еach head of a family, each single person over the age of 18 years, each orphan child under the age of 18 years, and each child under 18 years of age not otherwise provided for. Philomme, although married to a white person, was herself the head of a family. Hy-yu-tse-mil-kin v. Smith,
But it is urged that the deceased children of Philomme had not at the time of their death an estate in the lands which could be inherited. They died after the lands had been seleсted for them, and while their rights to the allotments were being contested in the Department of the Interior. If the selections so made by Philomme were prior in right, to those of the aрpellants, and should have been allowed as made, equity will look upon that as done which ought to have been done, and will dispose of the rights of the parties as if the allоtments had been allowed when the selections were made.
In Dytle et al. v. State of Arkansas et al.,
“It is a well-established principle that where an individual, in the prosecution of a right, does everything which the law requirеs him to do, and he fails to attain his right by the misconduct or neglect of a public oflicer, the law will protect it.”
This was said in a case in which a pre-emption right to government land wаs asserted, and the pre-emptor had done all that the law required him to do, but the land officers awarded the land to another. Several years thereafter the cqurt, by a dеcree, awarded the land to
The decree is affirmed.