8 Kan. 545 | Kan. | 1871
The opinion of the court was delivered by
Four errors are assigned to which attention will be given in their order. The court excluded a copy of a letter written by commissioner "Wilson to Hon. W. E. Niblack as to the status of the land in controversy. This was right. The letter was to a private individual. Its contents «did not tend to prove any facts; they only showed the opinion of an officer of the government as to the title to certain lands. The act of congress referred to only makes an exemplified copy of a paper evidence where the paper itself would be evidence; and the commissioner’s letter would not be evidence in this case.
II. The witness Abbott was asked the question, “Did Graham Rogers, one of the acting chiefs of the Shawnees, in Washington City, before the adoption of the fifth modified rule, execute a deed to you of the land in controversy?” Hie
III. The court refused to permit Mr. Eoberts, the agent, to testily whether he knew that the defendants were in possession and occupancy of the land at the time of the sale, and whether he promised them the land should not be sold till he had given them notice and a preference. Answered either way the testimony would have had no bearing upon the case under the issues on trial. Again, the questions were not proper cross-examination of the witness: and if considered as in chief, were not in proper form. The record is silent as to the grounds of objection, or the reason of the court. In any view the questions were immaterial and irrelevant.
IY. The only other error alleged is that the judgment was for the plaintiff when it should have been for the defendants. The cause was tried by the court without the intervention of a jury, and a judgment rendered for the plaintiff, to which defendants excepted. The questions presented to this court are purely questions of law, the counsel upon either side in then-arguments conceding the facts as they appear of record. The action was for the recovery of four hundi-ed acres of land in Johnson county. The plaintiff below (defendant in error in this court) claiming by a deed from Graham Eodgers and Charles Tucker, chiefs of the Shawnee Nation, to him. . The consideration of the deed is $2,000. It is attested by James E. Abbott and E. S. Eoberts, and acknowledged before Eoberts the U. S. Indian agent for the Shawnees. On the 5th of January, 1870, the acting Commissioner of Indian Affairs submitted this deed to the Secretary of Interior for his approval, and on the 6th of January, 1870, the deed was approved by the Secretary of the Interior. It is claimed that this deed when so made and acknowledged vested the legal title to the land in
It is admitted by both parties that the land in controversy is a part of the two hundred thousand acres ceded to the Shawnee Indians by the second article of the treaty of 1854, between the government of the United States and the Shawnee tribe of Indians. (10 U. S. Stat. at Large, 1053.) "We are first to determine what is the status of this land, and this demands careful consideration of the whole treaty; but we think the grounds of our decision may be briefly stated so as to be understood. It appears from the record, and is conceded in argument, that the land in controversy was double allotment land made to Lewis Hayes and George Sylcambus, and that they have since received other lands. The plaintiffs in error contend that these lands have now become a part of the surplus land set apart for the
The question remains, had the chiefs of the Shawnee nation acting for the nation, the right to dispose of these lands, with the consent of the Secretary of the Interior? At an early day the principle was adopted that the Indians could not dispose of their lands without the consent of the government. This consent may be given by treaty or by act of congress, and we know of no other way. Undoubtedly the consent may be given by the executive, in the execution of the terms of a treaty, or in carrying out the provisions of a statute, when this power is
We have not been able to find where the executive has been authorized by law to give his consent to the disposal by the Shawnee chiefs of the land belonging to the nation. We are referred to several provisions of laws and treaties which wo will notice briefly. The act of congress of July 9th, 1832, 1 Brightley’s Digest, 421, is referred to; but surely it needs no argument to show that the power to direct and manage Indian affairs, and all matters arising out of Indian relations, does not authorize the sale or consent .to the sale of the Indian lands. In all the years that it has been in force, no such construction has been given it. The ninth article of the treaty of May 10th, 1854, provides for issuing patents to such Shawnees as may have made separate selections, but nowhere makes any provision for the lands of the Shawnees except for such as are absolutely taken by individual members of the tribe, and held in severalty, and none others. The act of congress of March 3, 1859, (11 U. S. Stat. at Large, 431,) authorizes the Secretary of the Interior to cause patents to issue to such Indians as have made selections, such patents to be under such