132 F. 889 | U.S. Circuit Court for the District of Oregon | 1904
Under the act of Congress of March 3, 1886, 23 Stat. 341, providing for allotment of lands of the Umatilla Indian reservation to Indians residing thereon, the plaintiff Philomme Smith, a full-blooded Indian woman, and a member of the Walla Walla tribe of Indians, residing on such reservation with her family, made, as the head of such family, selections of lands subject to allotment for her children as follows: For George Smith, the N. E. % of N. W. Ya of section 29; for Sophia Smith, the S. E. Y °f N. W. Y of section 29; for Maggie Smith, the N. W. Ya of N. E. Ya of section 29; for Lura Smith, the S. W. % of N. E. Y of section 29; for Charles Smith, the N. E. Ya of N. E. Y of section 29; for Janie Smith, the S. E. Ya °f N. E. Ya °f section 29. James Smith, a son of said Philomme Smith, over 18 years of age at said time, selected for himself the W. ¿4 of the N. W. Y °f section 29. It is alleged that the land so selected for George, Sophia, Maggie, Lura, Charles, and Janie, and that selected by James, was at the time and had been long occupied by said Philomme and her family, who had taken possession of, settled upon, inclosed, and extensively improved the same, with the consent of the head men of the tribe; that notwitstanding such settlement, occupancy, and improvements, and the selections so made, the allotting commissioners disregarded such selections, and wrongfully allotted said lands to others, as follows: The lands selected for said Charles, Maggie, Janie, and Lura were allotted to Martha Herbert, now Martha Bonifer,
Upon these facts it is clear that at least as to Charles, Maggie, and Janie Smith, for whom Philomme brings this suit, the court has jurisdiction to grant the relief prayed for. There is question as to whether the plaintiff F. A. Smith has succeeded to the interests of the deceased children. The act in question (the special act for allotments to Indians on the Umatilla reservation) provides that:
“The President shall cause patents to Issue to all persons to whom allotments of lands shall be made under the provisions of this act, which shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or in case of his decease, of his heirs according to the laws of the state of Oregon, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: provided, that the law of alienation and descent in force in the state of. Oregop shall apply thereto after patents have been executed, except as herein otherwise provided.”
The intention of the act, that the allottee’s interest, when ascertained, shall descend upon his death to his heirs, is without reference to the proviso that the law of alienation and descent shall apply after patents issue (referring, presumably, to the patent to be issued at the expiration of the 25 years during which the trust continues, although it is not apparent why it should have been thought necessary to provide specially for the descent and alienation of these lands after the expiration of the trust, and when the title of the allottee who is made a citizen becomes absolute). The right of succession in the heir is not created by the patent. The patent is a mere declaration of trust, in which
The demurrer is overruled.