57 Kan. 1 | Kan. | 1896
The opinion of the court was delivered by
Although we have before us a record covering 1,842 pages, and briefs containing nearly 300 pages, and although many errors are alleged by counsel for the plaintiff in error and discussed at great length, and although many defenses are insisted on by counsel for defendants in error, the view we take of the case and the conclusions reached reduce it to a comparatively small compass. A very great number of rulings of the court of which the plaintiff in error complains related to the admission and rejection of testimony. The case was tried mainly on depositions and other written evidence, and we think counsel for plaintiff in error are right in claiming that substantially all of the testimony bearing on the law governing the descent of lands belonging to members of the Shawnee tribe of Indians is contained in the depositions and writings, which this court is required to examine and consider as though the question were first submitted here — it must weigh conflicting evidence, and determine the disputed question of fact for itself. We shall therefore disregard all rulings of the district court as to the admissibility of testimony, and consider all that was offered that we deem competent and material, without reference to the rulings of the trial court.
Complaint is made of the refusal of the court to pass
“Resolution of the Council, first Monday, Decern*9 ber, 1868 : Resolved, that the property, personal as well as real estate, of a deceased member of the Shawnee tribe of Indians, shall descend to a member or members of said Shawnee tribe of Indians who is or are of the nearest of kin by blood to deceased, and none others; but if deceased have no relative or relatives by blood who is or are members of said Shawnee tribe of Indians, the property, personal as well as real estate, shall revert to the Shawnee tribe of Indians, and be disposed of, and proceeds applied for the benefit of said Shawnee tribe of Indians as the Shawnee Council may direct. Approved this first Monday, December, 1868. Graham Rogers.
“Attest: S. M. Cornatzbr, Council Clerk.”
The next action of the council appearing of record, affecting the law governing the descent of property, was on the 8th day of May, 1889, when an act was' passed, or adopted, declaratory of the Shawnee law governing the descent of lands, and also of the power of the chiefs in certifying to the heirship of lands. This act is favorable in all respects to the contention of the plaintiff. It denies that the chiefs ever had power to determine who were the heirs of a deceased Indian, or to issue any certificate which should have the effect to defeat the claim of the real heirs, and asserts that the law was, and always had been, that the descendants of a deceased brother took the same share of the estate of- a deceased brother, or half-brother, that a surviving brother would take. This act, or resolution, was adopted by a full council, and signed by both chiefs and all the councilmen. This meeting of the council, however, it will be noticed, was held after the execution and approval of the deed to the plaintiff, and after the commencement of this action, the petition in this case having been filed on the 19th day of November, 1888. On the 16th day of January, 1890, another meeting of the council was
Many persons who were or had been chiefs or members of the council were examined, and testified by -deposition with reference to the Shawnee laws and customs. They all stated that where an Indian died leaving neither widow or issue, nor father or mother, his lands would go to his nearest kin or nearest relation. But when, their attention is directed to particular cases they seem to recognize the right of inheritance by representation of those related in a more remote degree, and deny that the nearest of kin is entitled to inherit the whole to their exclusion. Their testimony indicates that grandchildren took by representation with children of a deceased person, and that nephews and nieces inherited the share which their deceased parents would have taken if living, although there were surviving brothers and sisters. The testimony of these witnesses is not very satisfactory. The able and adroit counsel who examined them succeeded in extracting contradictory answers. The counsel conducting the examination appears to have had little difficulty in obtaining the answer he sought. The witnesses were wholly unable to cope with the refinements invented by counsel in their in-
In determining who is an heir of a deceased person it is not only necessary to know what the law is, but it is also necessary to know the relationship of the parties.
We do not deem it necessary to comment at length on the proceedings of the Shawnee chiefs and council had after this action was commenced. Nor can it be claimed that the investigation made under the direction of the department of the interior for its own information, and to govern the action of the secretary with reference to approving the deed to the plaintiff, has any binding force upon us. The case must be decided under all of the testimony, and the important question to determine is, Who were the heirs of James Blacksnake under the Shawnee law as it stood
The judgment of the district court is affirmed.