6 Indian Terr. 223 | Ct. App. Ind. Terr. | 1906
(after stating the facts). The appellant has filed two specifications of error, as follows: “(1) The court erred in sustaining defendants’ demurrer to plaintiffs’ complaint (a) because the complaint does show that appellants, the plaintiffs below, have a right, .title, and interest in and to the lands in controversy; (b) because the court had and has jurisdiction to inquire into the matter of how much land should have been and was set apart by the officers and agents of the Interior Department for the townsite of Bixby, I. T.; (c) because the facts stated in the complaint entitle appellant-, plaintiffs below, to the relief prayed for, because they entitle them to equitable relief and because defendants’ third ground of demurrer is not a ground for demurrer under section 5028, Mansfield’s Digest of Arkansas Statutes, in force in Indian Territory; (d) because the complaint states facts sufficient to entitle plaintiffs to maintain this suit and to entitle them to equitable relief. (2) The court erred in dismissing plaintiffs’ bill at plaintiffs’ costs on sustaining the demurrer.”
The first specification appellant divides into three propositions as follows: “First proposition: Has the court
The first allegation that we care to notice is that the plaintiffs, as United States citizens, show that they purchased some 240 acres of land from an Indian woman, who, it is alleged, had been in possession of same for some years. Now nothing is better settled in this jurisdiction than that an Indian cannot convey lands to a United States citizen, nor can said citizen take title from an Indian. In Turner et al. vs Gilliland (Ind. Ter.) 76 S. W. 254, the court says: “W. H. Warner, the defendant Turner’s grantor, being a white man, took nothing by his purchase, because the law does not permit a white man to acquire the title to land which an Indian holds in the Choctaw ’or Chickasaw Nation, and therefore Turner acquired nothing by his deed from Warner; and the same is true as between the plaintiff and the defendant Gillen water, Turner’s lessee. Therefore they are both without title from that source, and their deeds would not be admissible as evidence in this case.” In Denton vs Capital Townsite Company (Ind. Ter.) 82 S. W. 854, the court says: “It is also true that this court has held that an Indian, being in possession of his approximate share of the lands in the nation to which he belongs, may plat the same into a townsite, and may lease the same. United States vs Lewis (Ind. Ter.) 76 S. W. 299. But this court never at any time has said nor is there any provision of law whereby a member of one of the tribes can sell to a United States citizen the possession or right of any of the tribal lands. The complaint in this action alleges directly a sale from a member of the Creek Nation to them of the lands sought to be covered in this action — something
It is our opinion that the judgment of the lower court in sustaining the demurrer and dismissing the complaint was correct, and it is therefore affirmed.