Tomkins v. Campbell, 129 Wis. 93

Tomkins v. Campbell

129 Wis. 93 | Wis. | 1906

WiNsnow, J.

Tbe simple question presented is whether-Sailor has absolute control and power of disposition over tbe money received by tbe Indian agent in payment for tbe timber cut from Sailor’s allotment of land, or whether bis power of disposition is limited and subject to tbe approval of the-Indian agent. Tbe plaintiff’s claim is that, because by tbe terms of tbe so-called Dawes act of Congress of February 8,. 1887 (24 U. S. Stats, .at Large, 388, cb. 119), Sailor bad become a citizen of tbe United States and was emancipated from federal control (In re Heff, 197 U. S. 488, 25 Sup. Ct. 506),. be is necessarily entitled to tbe full management and control of tbe proceeds of tbe timber cut from bis lands. Being so-emancipated, tbe argument is that tbe provision of tbe rules-which requires that tbe proceeds of tbe timber be deposited in a bank subject to bis check countersigned by tbe Indian agent means that be has absolute control of tbe deposit; that tbe signature of tbe Indian agent is only required as a means of identification and must be. appended by tbe agent whenever a proper check is presented. While it must be admitted that tbe Indian allottee under tbe circumstances stated has become a citizen, it does not follow therefrom that tbe government lias thereby thrown aside all tbe barriers and restrictions which it bad so carefully erected to protect him from bis natural improvidence. Notwithstanding be was .a citizen, tbe government in dealing with him and granting him. *97rights of property could, if it cbose, surround those rights with safeguards or limitations intended for his own welfare and to prevent his squandering his property. The treaty of IS54 clearly contemplates that his ownership of land shall bo subject to substantial restrictions upon the right of alienation, and these restrictions were carried into the patent issued long after the passage of the Dawes act, by provisions which deprived him of the power of alienation in any manner without the consent of the President. These restrictions upon alienation of the land, so industriously inserted in the patent, must be borne in mind when considering the intent of the government in its regulations as to the sale of the timber and the disposition of the proceeds. So, also, the pre-existing relations of guardianship which the government has always maintained toward the Indian must be kept in view.

In view of these considerations, what is the natural meaning of the provisions of the contract, that the money for the timber is to be paid to the Indian agent in trust for the Indian, and that it is to be deposited in bank by him subject to the check of the Indian countersigned by the agent ? To our minds these provisions cannot be construed as meaning that, the government intended to abolish the safeguards which it erected to guard against the Indian’s improvidence, but rather that it intended to place the proceeds of the land practically in the same position as the land itself, namely, subject to disposition only by the Indian when such disposition is approved by the government acting through its Indian • agent, instead of through the President. There is clearly no reason why the Indian should be prevented from selling or alienating his land, and should be given free disposal of the moneys arising from the sale of the timber thereon, which doubtless-constituted the principal part of its value. On the contrary,, there is every reason why there should be substantially the' same restrictions upon the disposal of his money as upon the-disposal of his land. In view of these considerations we find *98no difficulty in construing tbe provisions of tbe contract and rules above referred to as moaning that tbe Indian’s power of disposition of tbe money received from tbe sale of bis timber is subject to tbe approval of tbe agent, and bence tbat tbe plaintiff cannot recover. Tbe question seems to be a new one, •and one not yet presented to tbe United States courts. So far as tbe subject bas been approached, tbe decisions favor tbe construction we bave adopted. Hitchcock v. U. S. 22 App. D. C. 275; U. S. v. Thurston Co. 143 Fed. 287.

By the Court. — Order reversed, and action remanded witb directions to sustain tbe demurrer to tbe complaint.