14 Kan. 151 | Kan. | 1875
The opinion of the court was delivered by
“Resolved, by the Senate and Souse of Representatives of the United States of America in congress assembled, That any bona fide settler residing on any portion of the lands sold to the United States, by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September 29th 1865, and proclaimed January January 21st 1867, who is a citizen of the United States, or shall have declared his intention to become a citizen of the United States, shall be and hereby is entitled to purchase the same in quantity not exceeding 160 acres, at the price of $1.25 per acre, within two years from the passage of this act, under such rules and regulations as may be prescribed by the Secretary of the Interior: Provided however, That both the odd and even-numbered sections of said lands shall be subject to settlement and sale as above provided: And provided further, That the sixteenth and thirty-sixth sections in each township of said lands shall be reserved for state school purposes in accordance with the provisions of the act of admission of the state of Kansas: Provided however, That nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties.”
In September 1867the twenty-five half-breeds were “designated by the chiefs and head-men,” and the “ lands selected by the parties,” as provided in said 14th article. William
“Should you therefore find from the evidence that on the 29th day of September 1865, (that being the date of said treaty,) the said William Tinker had no improvement, as hereinbefore defined, on the land in controversy, and that long prior to the issuing of said patent to William Tinker for the land in controversy the defendant Rakestraw had a lawful and bona fide settlement upon said land, as defendant has in his answer averred, the issuing of the patent to Tinker in itself would not operate to divest defendant of any rights he may have acquired before the issuing of said patent by virtue of settlement and improvements.”
The court also refused this instruction:
“If the jury find from the evidence that the chiefs and head-men of the tribe, before the 10th day of April 1869, designated William Tinker as one of the half-breeds of the Osage tribe of Indians who should have a patent for eighty acres of land under the provisions of the 14th article of the*157 treaty of Sept. 29, 1865, and that the said Tinker selected the land in controversy before the 10th of April 1869, and his selection was afterward approved by the Secretary of the Interior, then the said Tinker had on the 10th of April 1869 a vested right in the land in controversy, and the defendant could obtain no title to the same as against Tinker or his grantees by purchase under the joint-resolution of congress approved April 10th 1869.”
The same rulings appear elsewhere in instructions given and refused. In their brief, counsel say:
“The fact that said Tinker was designated as one of the twenty-five of the Osage tribe of Indians entitled to patents is not questioned by defendant in error, as the case now stands; but the two vital points we rely on in opposition to his right to rightfully receive a patent for the land in controversy are, 1st, that he never had any improvements on said land; and 2d, that he never selected said land as his head-right.”
Again, it provided for a selection subject to the approval of the Secretary of the Interior. Such approval was conclusive as against any rights which did not exist at the time of the selection. The approval related back to the selection, and confirmed it. The title thus acquired was good as against any one who did not then have a better claim. The only parties who at the time had any interest or rights in this land were the Osage Indians, the government, and Tinker. No one else could question the validity of the selection. So that, whether Tinker had any improvements on the land at the time he made his selection, or not, is a matter into which Rakestraw, holding by a subsequently-acquired title, cannot be permitted to inquire. This ruling compels a reversal of the judgment, and the remanding of the case for a new trial. It will also have the effect of excluding on such subsequent trial much of the evidence offered on this trial.
The judgment will be reversed, and the case remanded for a new trial.