Bem-Way-Bin-Ness v. Eshelby
| Decision Date | 11 July 1902 |
| Docket Number | 12,922 - (31) |
| Citation | 91 N.W. 291,87 Minn. 108 |
| Parties | BEM-WAY-BIN-NESS and Others v. EZRA ESHELBY and Others |
| Court | Minnesota Supreme Court |
Action of ejectment in the district court for Red Lake county by plaintiffs Bem-way-bin-ness and others, tribal Indians against Ezra Eshelby and others, defendants. The case being at issue, an alternative writ of prohibition was issued out of the supreme court on the petition of defendants restraining plaintiffs and Hon. William Watts, judge of said district court, from further proceeding in the action, also an order to show cause why the writ should not be made absolute. Writ and order to show cause discharged.
Indian -- Bringing Action.
A tribal Indian, whether he be a citizen or not, may maintain an action in the courts of this state to redress any wrong committed outside the limits of his reservation against his person or property.
Jurisdiction of District Court.
The plaintiffs are tribal Indians living on their reservation. They brought an action in the district court of the county of Red Lake to recover the possession of an undivided interest in a section of land lying outside of any Indian reservation, and which is in possession of citizens of this state. Held, that the district court has jurisdiction of the subject-matter of the action and of the parties thereto.
Davis, Kellogg & Severance, for petitioners.
Charles Loring, A. A. Miller and Halvor Steenerson, for respondents.
The United States, by article 9 of a treaty made October 2, 1863 (13 Stat. 669), between it and the Red Lake and Pembina bands of Chippewa Indians, set apart from the tract thereby ceded a reservation of six hundred forty acres near the mouth of Thief river for the chief Moose Dung. The land ceded was a large tract of country to the west of Thief river, including all of the valley of the Red River of the North in Minnesota and the then territory of Dakota. Moose Dung selected his land at the mouth of Thief river, and thereafter made his home thereon until his death in 1872, which was before the lands were surveyed. He was succeeded as chief by his eldest son, Mon-si-moh, known as "Moose Dung, the Younger." The land so selected was subsequently surveyed, and is the section of land here in controversy. It lies on the westerly side of Thief river, and within the limits of the ceded tract, and is not a part of any Indian reservation. The reservation to Moose Dung was a conveyance of the land in fee simple, without any restrictions on his or his heirs' right to convey it. Jones v. Meehan, 175 U.S. 1, 20 Sup. Ct. 1. The petitioners herein are now in possession of the land, claiming to be the sole owners thereof by virtue of a conveyance of it from Moose Dung, the younger. The respondents are full-blood lineal descendants, either children or grandchildren, of Moose Dung, the elder, and claim as his heirs an undivided five-sixths of the land.
For convenience we designate the respondents as "plaintiffs" and the petitioners as "defendants," according to their relative positions in the district court. The plaintiffs, in September, 1901, commenced an action in the district court of the county of Red Lake, Minnesota, against the defendants, alleging in their complaint that they were the owners in fee of an undivided five-sixths of the land here in controversy; that they and Moose Dung, the younger, are all of the heirs at law of Moose Dung, the elder, to whom the land was granted by the treaty of October 2, 1863; that prior to 1895 all of such heirs were in possession of the land as tenants in common, when Moose Dung, the younger, claiming to own the whole of the land, purported to convey it to the defendants or their grantors, who took possession thereof, and excluded the plaintiffs therefrom. Their demand for judgment was that they are the owners of the undivided five-sixths of the land, and that they recover possession thereof. The defendants removed the action to the circuit court of the United States for the district of Minnesota, but that court, on the ground that it had no jurisdiction of the action, remanded it to the state court. The defendants then answered, denying the plaintiffs' alleged title to the land, and alleging, in effect, that by the laws and customs of the tribe of which Moose Dung, the elder, was chief the land descended to his eldest son, Moose Dung, the younger, to the exclusion of all other persons, and that through him they had acquired title to the land.
The cause being at issue, and the district court about to try it, the defendants sued out of this court an alternative writ of prohibition, based upon their petition, which alleged that the district court had no jurisdiction in the premises, for the alleged reason that the plaintiffs were all tribal Indians living upon a reservation set apart for the use and occupation of the Red Lake band of Chippewa Indians, of which they are members, and under the control of an agent appointed by the general government; and, further, that the sole issue of fact involved in the action is as to the law or custom of inheritance of real property prevailing within and governing such tribe. The return and answer of the plaintiffs to the alternative writ of prohibition and order to show cause why it should not be made absolute denied that the plaintiffs were tribal Indians, but, on the contrary, alleged that they were citizens of the United States, and denied that the sole issue in the action was one relating to the Indian custom of inheriting real property, and denied the sufficiency of the facts alleged in the petition to justify the issuance of a writ of prohibition. The defendants' reply put these allegations of the answer in issue.
On the hearing upon the alternative writ the evidentiary facts as to the questions whether the plaintiffs were tribal Indians and whether they were citizens were stipulated by the parties, and are to the effect following: The plaintiffs were born on the Red Lake reservation, and have always, and still do, live thereon, and have never taken up their residence apart from their tribe, and are in charge of the government agent located on the reservation. Their names appear upon the rolls in his office, and they draw annuities from the government. They do not own any land in severalty, nor have they ever received any allotment of land in severalty, except that they claim to be heirs of Moose Dung, the elder, and the owners of an interest in the tract of land here in controversy. The plaintiffs reside separately from each other in log houses, with shingle roofs, and wear clothes similar to those worn by white lumbermen and white laboring men and white women of the poorer class of the vicinity. They use plain furniture, consisting of ordinary tables and chairs, and have cook stoves and ordinary cooking utensils. They cultivate gardens. The plaintiff Bem-way-bin-ness has a sewing machine, and owns three horses, and cultivates, and has cultivated for some time past, a tract of land, consisting of between fifteen and twenty acres, upon which he raises garden truck, and disposes of the same to lumbermen and other persons who come to buy. He has at various times worked in the lumber industry in the woods on the reservation and in driving logs on the river. The habits and customs and mode of life of the plaintiffs in general have never been, and are not now, different from the habits and customs and mode of life of the great majority of the other Indians residing in and upon the reservation, nor are their habits and customs different from those of many of the white settlers residing in the vicinity of the reservation. The plaintiffs are, and have been, members of the Roman Catholic Church, which holds services upon the reservation, but all of the Indians residing upon the reservation are and have been members or attendants upon either the Roman Catholic or the Episcopal Church.
While these facts show that the plaintiffs have reached a degree of civilization superior to that manifested by many white men, yet the facts warrant no other conclusion except that they are tribal Indians, and subject to the disabilities incident to their status as such. The plaintiffs, however, claim that they are citizens of the United States, notwithstanding their status as tribal Indians, by virtue of section 6 of the act of congress of February 8, 1887 (24 Stat. 390), known as the "Dawes Act," the here-material provisions of which are these:
"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 citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property."
It is clear that the father of the plaintiffs, Moose Dung, the elder, was not a citizen, for he died fifteen years before the enactment of the Dawes act. It is equally clear that the plaintiffs cannot, in any view of the case, be held to be citizens unless they inherited from their father title to an undivided portion of the land in controversy, and are to be regarded as allottees within the meaning of the act referred to. Whether they did so inherit any part of the land is the vital question to be determined...
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