5 Indian Terr. 1 | Ct. App. Ind. Terr. | 1903
Lead Opinion
The only question presented for our consideration in this case is, is it lawful for a Chickasaw Indian, in the Chickasaw Nation, to lay off a town and rent lots on his prospective allotment? The latid upon which this town was being built was agricultural land, and was occupied by the defendant Taliaferro as his prospective allotment, and was not more than he and his family were entitled to hold. Section 16 of the Curtis bill (Act June 28, 1898, c. 517, 30 Stat. 501), provides: “That it shall be unlawful for any person, after the passage of this act, except as hereinafter provided, to claim/ demand or receive, for his own use or for the use of any one else, any royalty on oil, coal, asphalt or other mineral, or on any timber or lumber, or any other kind of property, or any rents on any lands or property belonging to any one of said tribes or nations in said territory, or for any one to pay to any individual any such royalty or rents, or any consideration therefor whatever; and all royalties and rents hereafter payable to the tribe shall be paid under such rules and regulations as may be prescribed by the Secretary of the Interior, into the Treasury of the United States to the credit of the tribe to which they belong. Provided, that where any citizen shall be in possession of only such amount of agricultural or grazing lands as would be his just and reasonable share of the lands of -his nation or tribe and that to which his wife and. minor children are entitled, he may continue to use the same, or receive the rents thereon until allotment has been made to him. Provided, that nothing herein contained shall impair the rights of any member of a tribe to dispose of any timber contained on his, her or their allotment." Section 23 of the same act (30 Stat. 504) provides: “That all leases of agricultural or grazing land belonging to any tribe made after
The judgment of the court below is affirmed.
Dissenting Opinion
(dissenting). I am compelled to differ with the majority of the court upon the question involved in this case.
Section 2118 of the Revised Statutes of the United States reads: “Every person who makes a settlement on any lands belonging, secured, or granted by treaty with the United States, to any Indian tribe, or surveys or attempts to survey such lands, or to designate any of the boundaries by marking trees, or otherwise, is liable to a penalty of one thousand dollars. The President may, moreover, take such measures and employ such military force as may judge necessary to remove any such person from the lands.” Section 23 of the Curtis bill (Act June 28, 1898, c. 517, 30 Stat. 504), is as follows: “Sec. 23. That all •leases of agricultural or grazing land belonging to any tribe made after the first day of January, eighteen hundred and ninety-eight, by the tribe or any member thereof shall be absolutely void, and all such grazing leases made prior to said date shall
This feature of the case being disposed of, I will inquire whether the court erred in refusing to grant the permanent injunction and restraining order asked for in plaintiffs' complaint. The court below seemed to be of the opinion that under section 16 of the Curtis bill a citizen of the nation, in the possession of his approximate share of the grazing and agricultural lands of the tribe, might rent the same for town-site purposes. After careful reading of said section, I am unable to agree with the learned trial judge. As has been held in Myers vs Mathis, 2 Ind. Ter. 3 (46 S. W. 178), the title to the lands of the Chickasaw and Choctaw Nations is in the nation, and not in its citizens. A review of the legislation of Congress with respect to these Indian lands seems_to me to indicate that it is the intention of the government not to permit any such use of the said lands pending allotment as will embarrass the government in equitably and fairly allotting and apportioning them among the members of the tribe. I think it was the intention of Congress to prohibit such a use or development of the lands of the tribe as would render the allotment difficult, and make an equitable distribution of the same next to impossible. Congress seems not to ha\re intended that the town sites in existence at the time of the passage of the Curtis bill should be included in the lands to be allotted. Section 11 of the Curtis bill (Act June 28, 1898, c. 517, 30 Stat. 497) expressly states “all town sites shall also be reserved to the several tribes, and shall be set apart by the commission heretofore mentioned as incapable of allotment.” Under the head of