261 F. 657 | 8th Cir. | 1919
From a judgment in favor of .the defendants in a suit in ejectment the plaintiff has prosecuted this error proceeding. The parties waived a jury and tried the case to the court. There was a general finding in favor of the defendants and a judgment of dismissal. The land in controversy was patented on April 8, 1890, to Pe-te-lon-o-zah, also known as William Wea, a member of the Confederated Wea, Peoria, Kaskaskia, and Piankeshaw Tribes of Indians. The patent contained a restrictive provision that
“The land so allotted shall not be subject to alienation for twenty-five years from the date of the issuance of patent therefor, and said lands so allotted and patented shall be exempt from levy, sale, taxation, or forfeiture for a like period of years. As soon as all the allotments or selections shall have been made as herein provided, the Secretary of the Interior shall cause a patent to issue to each and every person so entitled, for his or her allotment, and such patent shall recite in the body thereof that the land therein described and conveyed shall not be alienated for twenty-five years from the date of said patent, and shall also recite that such land so allotted and patented is not subject to' levy, sale, taxation, or forfeiture for a like period of years, and that any contract or agreement to sell or convey such land or allotments so patented entered into before the expiration of said term of years shall be absolutely null and void.”
The act also contained a provision that any act or part of an act of Congress theretofore passed that conflicted with the later act, either as to land or money, was thereby repealed.
William Wea, after receiving his patent under the act of 1889, died on January 23, 1894. The petition in this case alleged that the action was brought on behalf of the United States -and of the heirs of William Wea, and that certain persons, named in Exhibit B attached to the petition, .were duly declared to be the heirs at law of William Wea by the Secretary of the Interior on October 19, 1914, pursuant to the acts of Congress with reference thereto. This statement of the finding of heirship by the Secretary of the Interior was stricken from the petition, on defendants’ objection, and an exception was saved. At the trial the plaintiff offered in evidence a copy of a departmental record in the office of the Secretary of the Interior, showing that the Secretary had found the heirs of William Wea to be the same persons as those who had been named in Exhibit B attached to plaintiff’s petition. On objection, this was excluded as immaterial, and plaintiff excepted to the ruling.
“When any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary^ of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive.”
This statute did not authorize the finding of the Secretary of the Interior in this case, because, before its enactment, a fee-simple patent had been issued to William Wea (Libby v. Clark, 118 U. S. 250, 6 Sup. Ct. 1045, 30 L. Ed. 133), although it was subject to the restrictions on alienation therein contained. The statute, by its terms as quoted and as appears from its context, applied only to cases where allotments were made and the titles were withheld in trust, to be followed by the issuance of a fee-simple patent at the end of the trust period. In other clauses of the same section, the Secretary was given discretion to issue a patent in fee to the heirs of the allottee, if he decided them competent to manage their own affairs, or to issue patents in fee upon partition of the lands between the heirs, and by the language of the following section an allottee was given the right to dispose of the allotment by will, prior to the expiration of the trust period, and prior to the issue of a fee-simple patent.
It must be conceded that the Secretary has the power to ascertain the heirs of a deceased Indian, when such action is essential to an execution of his powers, such as the issuance of a final patent to the heirs, or the approval of a conveyance by the heirs, as required by statute. Egan v. McDonald, 246 U. S. 227, 38 Sup. Ct. 223, 62 L. Ed. 680; Hallowell v. Commons, 239 U. S. 506, 36 Sup. Ct. 202, 60 L. Ed. 409: Tiger v. Western Investment Co., 221 U. S. 286, 31 Sup. Ct. 578, 55 L. Ed. 738; Oregon v. Hitchcock, 202 U. S. 60, 26 Sup. Ct. 568, 50 L. Ed. 935. But in this case the land had been patented to William Wea, and under the provisions of section 5 of the act of February 8, 1887 (Comp. St. ,§ 4201), the laws of the state of Kansas regulating the descent and partition of land were made applicable. Wea had died in 1894, and the descent of these lands Lad been fixed at that time. The title of the heirs was not dependent upon any action of the Secretary of the Interior, because Congress had released its control over the descent or partition of these lands. The ordinary judicial processes of declaring the heirs or of partitioning the land amongst them thereafter applied. Beam v. United States, 162 Fed. 260, 89 C. C. A. 240; United States v. Park Land Co.
The judgment of the trial couxt is affirmed.