28 Neb. 438 | Neb. | 1890
The attorney general having declined to appear for the state, the relator brought his original petition in quo warranto against Kelley W. Frazer, of Dakota county, alleging that he is a citizen of the United States, and of the state of Nebraska, and a duly qualified elector and resident of the county of Dakota, in said state, and was such on the 6th day of November, 1888, and at that time possessed all the qualifications required by law to enable him to hold the office of county attorney in and for said county.
He further alleges that the election was held on the 6th day of November, 1888, in said county of Dakota, and in accordance with the provisions of law, at which election relator was a candidate for said office in said county, and within the proper and legal limits and boundaries of said
Further alleges that lying south of and contiguous to the said county of Dakota there is a certain territory and tract of country comprising about seven townships of land, known as and called Omaha and Winnebago reservation; that said tract of country was set apart and ceded to the said tribes or nations of Indians by an act of congress and by treaty with said tribes of Indians, which treaty and act was ratified and confirmed on the 21st day of June, 1854; that said tribes or nations of Indians since said date have owned, occupied, and possessed said tract of country, and still own and possess the same as their reservation and permanent home; that said tribes are in charge of and under the custody, care, and control of an agent, appointed by the president of the United States, who is in charge of the agency on said reservations, established and maintained under the laws of the United States.
Further alleges that the Winnebago tribe or nation of Indians has not abandoned its tribal relations, but still keeps up and maintains the same; that they have not adopted the habits of civilized life, and taken their lands in severalty, nor received patents therefor; that they had not done so prior to the said 6th day of November, 1888, as provided by the act of congress known as the Dawes bill, passed and approved February 8, 1887; that none of said Winnebago tribe or nation of Indians were citizens of the United States, and none of the members of said tribe were citizens of the state of Nebraska, and are not and were not electors of the county of Dakota on the 6th of November, aforesaid, and were not entitled to vote in the
Plaintiff further alleges that the legislature of the state of Nebraska, held during the year 1879, passed an act pretending, or attempting, to attach said reservation to the said county of Dakota for election, revenue, and judicial purposes, and claims that said act is unconstitutional and void.
Plaintiff further alleges that twelve days preceding the day of election there was presented to the board of commissioners of Dakota county a petition asking and praying the board to establish a voting precinct or polling place at the government agency, aforesaid, to be known as arid called Winnebago precinct, which petition was signed by only twenty-one persons, eight of whom were government employes, temporarily staying on said agency, in the employ of the United States; that the board of commissioners established the precinct or voting place, as prayed for, under the name of Winnebago precinct; that no precinct officers were appointed or elected for said precinct previous to November 6, 1888; that the county clerk of the county of Dakota — said county not being under township organization — did not make out and deliver, twenty days prior to the holding of said election, nor at any other time, a notice of said election, to be posted in said precinct; that no notice of such election was ever posted by the sheriff in said precinct, and that said precinct was not formed in time to have notices of election posted ten days prior to the time of holding said election, as provided by law; and claims that all the proceedings in relation to the establishing of said precinct were illegal and void, and conferred no right
Further alleges that J. F. Warner, the agent in charge of said Indians, his son, M. M. Warner, one William Hedges, A. H. Baker, McCuin, Fitzpatrick, and other government employes amounting to twelve persons, temporarily residing at and having charge of said agency, wrongfully and fraudulently voted at said polling place for the defendant, and their votes were canvassed and returned for the defendant without any authority of law.
Further alleges that at St. John’s precinct, at said election, ten illegal votes were cast and counted for defendant.
Further alleges that the relator, at the election aforesaid, received a majority of all the legal votes east at said election, and was duly and legally elected to the office of county attorney, of said county, for the period of two years from the 3d day of January, 1889 ; that the relator duly tendered his official bond to the proper authority, and demanded possession of said office from defendant, and defendant refused and still refuses to deliver possession of the office to relator.
Prays judgment that the defendant be declared not elected to said office; that he be ousted therefrom and the relator be declared entitled to the same and installed therein.
First — That he was not at the commencement of this action a resident of, nor within the county of Lancaster, nor was a service of summons had on him therein.
Second — That the action was brought against defendant by a private individual, and not by the attorney general of the state; that in actions of quo warranto brought on the relation of a private individual the district court of the county in which defendant resides has exclusive jurisdiction ; that the defendant is a citizen of and resides within Dakota county; that no service of summons has been made within Lancaster county, nor has said defendant accepted service within said Lancaster county, for reason of which this court has no jurisdiction to try the case.
Further alleges that plaintiff has a full, complete, and speedy remedy, at law. Further answering, admits that plaintiff, is an elector and resident of Dakota county, and has the qualifications necessary to hold the office of county attorney.
Answering to the second count, admits that the election was held on the 6th of November, 1888, and that plaintiff and defendant were opposing candidates for the office of county attorney. Denies each and every other allegation in said count contained.
Answering third count, denies each and every allegation therein contained, and further answering to said count alleges that by an act of congress approved February 21, 1863, it became the duty of the secretary of the interior to allot to said Indians in severalty lands which they may respectively cultivate and improve, not exceeding eighty acres, to each head of a family other than chiefs, to whom larger amounts may be made, which lands when so allotted shall be vested in said Indians and their heirs without the right of alienation, and shall be evidenced by patent; said act further provided said Indians should be subject
Answering fourth count, admits that the legislature of the state of Nebraska, at the session held during the year 1879, passed an act attaching said territory to the county of Dakota for election, judicial, and revenue purposes; admits that the same became a law on the 27th of February, 1879; denies that the said act was unconstitutional and void, and avers the fact to be that said act is and was at the time of holding the election aforesaid a valid and subsisting law.
Answering fifth count, denies each and every allegation therein contained, except as hereinafter expressly admitted; avers the facts to be that the action of said board was based on three different petitions presented to them praying that they set off said territory as a voting precinct; that said petitions were signed by some 247 of the residents and voters of the territory in said petitions described, as is fully shown by copies of said petitions attached to the answer; that on the 23d of October, 1888, in pursuance of said petition, the commissioners created a precinct by the name of Winnebago precinct and the votes complained of were cast in said precinct for said office of county attorney, and other officers voted for at the general election, and said election was held in all respects in conformity to the laws governing elections. Further answering said count, defendant says that said precinct was formed from the territory attached to the county of Dakota by the act of the legislature passed and approved February 27, 1879, and that since the passage of said act, and up to the time of the
Answering sixth count, denies that J. E. Warner and other parties therein mentioned were temporarily residing on said reservation; denies that said persons fraudulently and wrongfully voted; denies that said votes were wrongfully and unlawfully canvassed for defendant; avers the facts to be that said parties had resided on said reservation and made their permanent home on the same for a long period previous to the time of their voting, and had been residents of the state of Nebraska for more than six months, and had resided in the county of Dakota for more than sixty days, and in said precinct for more than ten days preceding the said election, and had full right as citizens .of Nebraska and residents of said county and precinct for the requisite time to vote at said election.
Answering eighth count, denies each and every allegation therein. For further answer to the information of the relator, alleges that at the election held in Dakota county, Nebraska, on the 6th of November, 1888, for the office of county attorney of said county, defendant received 820 votes, and the relator received 771 votes; that defendant was duly declared elected to the office of county attorney, and received a certificate of election, duly qualified; filed the bond required by law, and entered upon the duties of said office at the time required by law, and has ever since, and now is performing the duties of said office, and is lawfully and legally entitled to said office for the term of two years; denies that the relator was elected to said office of county attorney of Dakota county, or has any right or claim thereto. Defendant prays that said office and its privileges and franchises may be adjudged to him and for his costs.
To this answer plaintiff for reply alleges that the supreme court of the state of Nebraska has original jurisdiction of the subject-matter of this action and the parties thereto, and the district court of Dakota county has not exclusive jurisdiction of this matter; that defendant accepted service of the summons of this court in this cause, and has duly appeared and answered to the merits of this action; that the relator had not at the time of the com
Further replying, relator' admits the provisions of the act of congress, approved February 8, 1887, as in said answer alleged, but denies that the Winnebago Indians who voted in said precinct had taken their lands in severalty, and received patents therefor; denies that said Indians had severed their tribal relations and adopted the habits of civilized life; denies that they are dependent upon their own labor for a livelihood and receive no aid from the government except the annuities derived from the sale of their lands in Minnesota; denies that said Indians became citizens by virtue of the act approved February 8, 1887; denies that they were legal voters on the 6th
For further reply to said answer, denies that said precinct was established upon three petitions, but alleges the fact to be that the petition marked Exhibit A and the petition marked Exhibit C were filed at or near the same time they were fraudulently joined together, and were rejected by the board of county commissioners on the 21st day of October, 1888 ; that on the 16th of October a petition, marked Exhibit B, was filed in the office of the clerk of said county, and on the 23d day of October, 1888, the precinct was established as prayed for in said petition. that_J. F. Warner, M. M. Warner, Wm. Hedges, Fitzpatrick, McCuin, A. H. Baker, and John W. Nunn were government employes, and are not, and were not at the time they signed said petition, bona fide electors and rcsi
Further replying, denies that the defendant received a majority of the legal votes cast at said election for the office of county attorney, or that he received 820 legal votes. Alleges that the votes so counted and canvassed for the defendant included the 193 votes of the said Winnebago Indians and the government agents and employes in said precinct, and that this relator received a majority of eighty-seven of all the legal votes that were cast at said election; that lie was duly and legally elected to the office of county attorney of Dakota county, for a term of two years from the 3d day of January, 1889.
Article 6 of the constitution of the state is devoted to the judicial department, and section 2 thereof to the supreme court, and provides as follows: “ It shall have original jurisdiction in cases relating to the revenue, civil cases in which the state shall be a party, mandamus, quo warranto, habeas corpus, and such appellate jurisdiction as may be provided by law.”
Section 1 of chapter 71 of the Compiled Statutes provides that “When any citizen of this state shall claim any office which is usurped, invaded, or unlawfully held and exercised by another, the person so claiming such office shall have the right to file in the district court an information in the nature of a quo warranto upon his own relation, and with or without the consent of the prosecuting attorney, and such person shall have the right to prosecute said information to final judgment; Provided, He shall have first applied to the prosecuting attorney to file the information, and the prosecuting attorney shall have refused or neglected to file the same.”
Section 4 of said chapter provides that “ Proceedings in the supreme court in applications for mandamus shall be regulated by chapter 3 of title 18 of the Code of Civil Procedure, in applications by quo warranto by title 23 of said Code, and in application for habeas corpus by chapter 25 of the Criminal Code ; and all other provisions of law relating to those remedies shall be applicable to said proceedings when had in said court exercising its original jurisdiction.”
Section 5 provides that “ The several district courts shall have and exercise concurrent jurisdiction with the supreme
Title 23 of the Code of Civil Procedure provides as follows:
“ Sec. 704. An information may be filed against any person unlawfully holding or exercising any public office or franchise within this state, or any office in any corporation created by the laws of this state, or when any public officer has done or suffered any act which works a forfeiture of his office, or when any persons act as a corporation within this state without being authorized by law, or if, being incorporated, they do or omit acts which amount to a surrender or forfeiture of their rights and privileges as a corporation, or when they exercise powers not conferred by law.
“ Sec. 705. Such information may be filed by the prosecuting attorney of the proper county whenever he deems it his duty so to do.
“ Sec. 706. He must file such information when directed to do so by the governor, the legislative assembly, or the district court.”
The remaining sections are devoted to matters of detail.
When these provisions of law are grouped and considered- together, it is clear that the supreme court has jurisdiction of the case at bar, a jurisdiction derived from the constitution which no statute could take away, and of which no statute has sought to deprive it. It is equally clear that the relator, having applied to the attorney general to file said information and that officer having refused, had the right to file it himself. That the respondent, being a citizen and resident of Dakota county, cannot he be sued in the supreme court which holds its sessions and keeps its records in Lancaster county, and can
Counsel for respondent cite section 60 of the Code of Civil Procedure, which reads as follows: “ Every other action must be brought in the county in which the defendant, or some of the defendants, resides, or may be summoned.” This section is part of title IV of the Code, which is entitled “ The county in which actions are to be brought.” The nine sections of said title occurring before the section now under consideration are devoted to actions of which the district courts have exclusive original jurisdiction, and the three that follow are devoted to provisions for a change of venue in causes in the district courts, and the transfer of such causes from the district court of one county to that of another. These provisions, including those of section 60, must be held to apply exclusively to proceedings in the district courts, except where, by other provisions of law, proceedings in other courts are made applicable to them. It would be contrary to the spirit of our laws to accord to the supreme court a jurisdiction in one county denied to it in all the
The next point raised by the respondent and discussed in the brief of counsel is to the effect that the relator should be denied his remedy by quo warranto, for the reason that he has an adequate remedy at law.
The case of Kane v. The People, 4 Neb., 509, would seem to be decisive of this point in favor of the relator. But counsel for the respondent contends that the force of this opinion is weakened, if not broken, by the fact that in the constitution of 1875 there is no express grant of common law and chancery jurisdiction to the supreme court. It is true that a part of the argument of the learned judge, who delivered the opinion of the court in that case, was based upon the provision of the constitution of 1867, giving to the supreme and district courts both chancery and common law jurisdiction. Yet it is observed that his conclusion was foreshadowed and manifest from his argument before he reached that part of the decision.
Section 64 et seq. of chapter 26 of the Comp. Stats, entitled •“Elections” provides for contesting elections; section 70 gives the district courts of the respective counties power to hear and determine contests of the election of county judge and in regard to the removal of county seats, etc., and section 71 provides that “ The county courts shall hear and determine contests of all other county, township, and precinct officers,” etc. This embraces county attorneys. The statute, nowhere, in terms, makes these provisions exclusive of all other remedies. So that if they are to be so considered, it must be by force of that general proposition so often invoked, and laid down with more or less accuracy, that neither injunction in equity, nor mandamus at law, can be resorted to where the party aggrieved can obtain full and adequate relief in the usual course of proceedings at law, or by the ordinary forms of civil action. Mr.
I am therefore of the opinion that the remedy by contest under the provisions of the statute above cited, in cases like the one at bar, is a cumulative and not an exclusive one, and that the objections to the procedure by quo warranto and to the jurisdiction of this court to hear and determine it must*be overruled.
I will pass over, at least for the present, the consideration of the act of the legislature by which it was sought “ To attach a portion of what is known as the Winnebago and Omaha reservations in the state of Nebraska to the county of Dakota for election, judicial, and revenue purposes,” also the question of the legality of the organization of Winnebago precinct in said county, and proceed to the consideration of what is conceded to be the main question in the case — the right of the Winnebago Indians to
By the constitution of this state, article 7, section 1, “ Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector: First, citizens of the United States. Second, persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization, at least thirty days prior to an election.”
Section 3, of chapter 26, of the Compiled Statutes provides that “Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who have resided in the state six months, in the county forty days, and in the precinct, township, or ward, ten days, shall be an elector : First, citizens of the United States. Second, persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization, at least thirty days prior to an election.”
It is not contended, nor can it be, that the Indians, or any of them who voted for the respondent, belong to the second class. The sole question, then, presented by this branch of the case is, Do they belong to the first class; are they citizens of the United States?
An act of congress entitled “An act for the removal of the Winnebago Indians and for the sale of their reservation in Minnesota for their benefit,” approved February 21, 1863, after making various provisions, not deemed necessary to seb out here, proceeds as follows: “And it shall be the duty of the secretary of the interior to allot to said Indians in severalty, lands which they may respectively cultivate and improve, not exceeding eighty acres to each' head of a family other than to the chiefs, to whom
On the 8th day of February, 1887, there was approved an act of congress entitled “An act to provide for the allotment of lands in severalty to Indians on the various reservations, and to extend the protection of the laws of the United States and the territories over the Indians, and for other purposes.” Section 6 provides “That upon the. completion of said allotments and the patenting of the lands to said, allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made, shall have the benefit of and be subject to the laws, both civil and criminal, of the state or territoi’y in which they may reside; and no territory shall pass or enforce any law denying any such Indian, within its jurisdiction, the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made, under the provisions of this act, or under any law or treaty * * * is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizen. * *”
Without entering the indubitable field of discussion against this attempt of the federal legislature to establish a special rule of naturalization applicable alone to certain individual members of certain Indian tribes, let us see whether the Indians who voted at the said election are shown to be within the provisions of said act.
It appears from the record that “it was stipulated and agreed by and between the parties at the taking of the testimony, that in Winnebago precinct, of the two hundred and fifty votes cast at the election on November 6, 1888, the plaintiff received fifty-seven votes for the office of county attorney of Dakota county, Nebraska, and the defendant received one hundred and ninety-three votes for
Jesse F. Warner, Indian agent at the Winnebago and Omaha agency, was sworn and examined as a witness first on behalf of the plaintiff. After the preliminary questions he was asked by plaintiff’s counsel as follows: ■
Q. I will get you to examine this book and state what it is.
A. Yes, sir; it is what is known as the allotment book; of the allotment of the Winnebagos of land- in severalty.
Q,. To the Winnebago Indians?
A. Yes, sir.
*********
Q,. Does that book contain the entry of the allotments of land to the Winnebago tribe or nation of Indians in severalty in Nebraska on there?
A. No, not the allotment in severalty, not the whole of it, not under the law as it now is.
Q,. No, I mean under the previous law up to the law known as the Dawes bill.
A. Yes, sir; up to the former law I presume it contained the names; it was sixteen years ago. It was the allotment then, and that allotment was, to a certain extent, continuous from that time on. I delivered some patents since I have been here, to the Indians, that are recorded in that book. There should be none that are not in this book.
Q. Now you may state if you have any record in your office of any allotments made under what is known as the Dawes bill.
A. Not yet.
Q,. Has there been any such allotments made?
A. Why the land is selected, and the certificates giving patents have not yet issued. The allotments are not yet complete.
Q,. That is under the Dawes bill of February, 1887?
Q,. Have these allotments been confirmed, and certificates issued by the department?
A. There are none issued yet, as far as I know.
Q. As far as you know the allotments are not complete?
A. Yes, sir. As far as I know we have no office record of any patents having come here yet.
Q. Now, was that the situation of affairs that you have just testified to, at the time of the holding of the election on the 6th day of November, the last general election, the county election, was that the situation of affairs?
A. The land was not all selected at all under the Dawes bill under the new allotment, under the bill or act of congress of February. 1887.
^ ^
Hereupon the counsel for the plaintiff offers in evidence all of the above identified book, beginning with the first entry on page 35 thereof to the note of page 94, as identified by the reporter, showing what patents were issued and that all of the patents were issued and dated October 22, 1872. There being no objection the same was received in evidence and marked Exhibit “ A.”
Q. You may state whether or not there has been any collection 'of all the patents that has been issued prior to the passage of the Dawes bill, under the laws prior to that bill, whether any collection of these patents has been made?
A. Since that time?
Q,. Yes, sir; since the patents were issued.
A. Under these second allotments, all of these patents that could be got hold of were collected.
Q,. By whom?
A. A special agent appointed for the purpose.
Q,. What was her name?
A. Alice C. Fletcher.
Q,. When was that done — since you have been agent ?
Q. She collected these patents and identified the patentees as far as she could?
A. Yes, sir.
Q,. How many did she collect, if you know?
A. That I cannot answer; I don’t know.
* * * * ’ * * * *
Q,. Where are all the patents that have been issued ?
A. They have been delivered to the patentees. Do you mean the old patents ?
Q,. Yes, sir.
A. No, there was quite a number that I found in the office when I came here, that were made out to persons of white names, as we term it, not Indian names, and they could not tell what Indian was meant by the name. The person making the allotments called them in and gave them papers and said to them, now your name is so and so, and the Indian conld not remember the name, and the Indian name was not mentioned in the patent.
Q. There was a number that could not be identified because they were in names that way ?
A. Yes, sir.
Q,. Do you know how many Miss Fletcher identified as having received patents?
A. I don’t.
Q,. You say there are still quite a number that were not delivered in your office?
A. No, there is not now.
Q,. What became of them ?
A. Under instructions from the Indian department they were returned to the government.
Q. Do you know how many you returned ?
A. I don’t. I returned them through Miss Fletcher; she managed that; I would suppose, at a ;’ough guess, that there was not less than twenty-five.
■ Q. Whatever there were she took charge of?
Upon cross-examination the witness testified that he had been Indian agent there for about three years; that he had resided at the agency, with his family, since within a month of the time of his appointment as such agent.. I further quote his testimony:
Q,. Now in regard to these patents. You have testified that you are familiar with that book. I will ask you if you know whether or not there were patents issued at the time you speak of in 1872, to all the Omaha Indians, over twenty-one years, at that time residing here, or dwelling here, and all the Winnebago tribe of Indians?
A. It has always been recognized that there was; they were all entitled to their allotments, and it was understood they all secured their allotments — the heads of families.
Q. That were over twenty-one years?
A, Yes, sir.
Q,. I will ask you, if you know whether or not at this late election, all parties voting there all belonged to the Winnebago tribes who were parties to whom allotments were made, or rather children of them ?
This question, being objected to as being incompetent, no foundation laid, nor the best evidence, and not being proper cross-examination, was not answered.
The witness was then made witness for the respondent, and examined in chief by defendant’s counsel, and the last above question being again put to him, he answered over a like objection on the part of the plaintiff:
A. I know of no one voting but who was an original patentee, or the child of an original patentee.
Q. That had become of age since the issuance of these patents ?
A. Yes, sir.
A. Yes, sir. I have been quite familiar with them.
This witness was again recalled by the plaintiff, and, inter alia, testified as follows:
Q. Did you know how many of these original patentees to land held their patents at the time of the election, and how many had. surrendered their original patents under the old act for the purpose of taking new allotments?
A. I do not.
Q. You have no means of knowing that?
A. I have no means of knowing that. That was entirely in the hands of Miss Fletcher; they brought in their patents to find out whether they would take the land under the new allotment, or whether they would retain it under the old patents.
Q,. How many were brought in that were afterwards returned.?
A. I cannot tell; there were somewhere over — I don’t know exactly, but somewhere over fifty, from fifty to sixty, of these old allotments that' were not surrendered at all.
Q. The balance were returned for the purpose of taking • out new allotments?
A. Taking allotments under the ngw law.
A stipulation signed by counsel for the plaintiff and respondent is filed with the record “ that at the election held in Dakota county on the 6th day of November, 1888, there was cast in said county for the office of county attorney a total of 1,591 votes, of which number plaintiff received 771 votes, and defendant received 820 votes. That in Winnebago precinct, in said county, there was cast a total of 250 votes the same being a part of the above total number of 1,591, and of these votes cast at Winnebago, plaintiff received 57 votes and defendant 193 votes, said Winnebago precinct being a part of the Omaha and Winnebago Indian reservations; that the canvassing board of
From the evidence, it appears that all of those voting at said election, at Winnebago precinct, with the exception of six government employes, were Winnebago and Omaha Indians, making 244 votes cast by Indians. There is some attempt made by plaintiff in the examination of witnesses to distinguish between the Winnebago and Omaha Indians, but nothing intelligible was accomplished in that behalf. Deducting the 57 votes cast for the plaintiff in the said precinct from the 244 votes cast by the Indians leaves 187 votes cast by Indians for the respondent. If we deduct this number from the 820 total votes cast for him in the county as returned by the board of canvassers, it would reduce his vote to 633, being 138 votes less than the 771 cast for the plaintiff as returned by the board of canvassers.
There was no attempt made on the part of the respondent to identify the names on the poll list of Winnebago precinct with the names contained in the book of allotments. This was indispensably necessary, in order to establish the legality of the votes. I use the word establish advisedly ; because in- any view of the case the members of these tribes of Indians are prima fade non-voters. Even under the act of congress of 1887, to constitute an Indian, except one who has voluntarily taken up his residence * * * separate and apart from any tribe of Indians * * * and has adopted the habits of civilized life,” a citizen, and so, a voter, that identical Indian must be one
There was a large amount of evidence taken and reported by the referee, chiefly directed to the inquiry as to whether these Indians had or had not abolished their tribal relations with each other and adopted the habits of •civilized life. This testimony is Utterly irrelevant except upon the theory that it was claimed by the respondent that these Indians were citizens, and hence voters under the second clause of the sixth section of the act of February 8, 1887, popularly known as the Dawes bill, and if so, it were only necessary to show that said Indians continue to live together on an Indian reservation and that the individual Indian has not “ taken up * * * his residence separate and apart from any tribe of Indians.” As to other Indians it is the allotment to them of lands in severalty by the general government which alone is claimed to make them citizens, and no amount of education, civilization, or cultivation, without such allotment, can do so.
I come to the conclusion, therefore, that none of the Indians who voted at the said election in Winnebago precinct are shown to have been citizens, of the United States, or entitled to vote, under the laws of this state. It follows, therefore, that plaintiff was duly elected county attorney for Dakota county at the general election of 1888, for the term of two years from and after the first Thursday after the first Tuesday in January, 1889, and that defendant has unlawfully usurped the said office and now is in the en
Writ allowed.
