Bonifer v. Smith

• Decision Date: 01 February 1909
• Docket Number: 1,588.
• Citation: 166 F. 846
• Parties: BONIFER et al. v. SMITH et al.
• Court: U.S. Court of Appeals — Ninth Circuit

166 F. 846

BONIFER et al. v. SMITH et al.

No. 1,588.

United States Court of Appeals, Ninth Circuit.

February 1, 1909

This is an appeal from a final decree rendered in a suit in which the bill, in substance, alleged that Philomme Smith is a full-blooded Indian woman, a member of the Walla Walla band of Indians, residing upon the Umatilla Indian reservation that F. A. Smith, a white man, is her husband; that Charles Smith, Maggie Smith, and Janie Smith are their children and members of the Walla Walla band of Indians residing upon the said reservation; that Elizabeth Smith is their granddaughter, being a daughter of James Smith, deceased, who was their son; that George Smith, Sophia Smith, and Lura Smith were their children who had died leaving no lineal descendants, nor wife nor husbands, surviving, and that F. A Smith is the sole heir of said deceased children according to the laws of Oregon; that about April 1, 1891, under authority of the act of Congress approved March 3, 1885 (Act March 3 1885, c. 319, 23 Stat. 340), the President of the United States caused lands upon the Umatilla Indian reservation to be allotted in severalty to the Indians residing thereon, and for that purpose appointed commissioners to make the allotment; that, at the time when the commissioners entered upon the discharge of their duties, said Philomme Smith, as the head of her family, consisting of her husband and her said children, was, and for a long time prior thereto had been, settled upon and in the actual possession of, and had valuable improvements upon, certain described lands in the reservation, by and with the consent of the head men of said tribe or band of Indians, and that said Philomme Smith, as the head of her family, went to said commissioners and made selections of land for herself and her children, who were then minors; that said commissioners refused to allot said lands to the said children, as requested, but proceeded to allot the same to Margaret Bourner and to Martha Herbert, now Martha Bonifer, which allotments were thereafter approved by the Honorable Secretary of the Interior, and thereafter trust patents were issued to said allottees, which provide that the United States does and will hold said lands in trust for said allottees for 25 years; that, at the time when said allotments were made, the said Margaret Bourner and Martha Bonifer knew that the appellees were in the actual possession of said lands; that the Secretary of the Interior thereafter wrongfully caused the said patentees or their heirs to be put in possession of the said lands. The bill prayed for a decree awarding to the appellees the lands so selected for the said children of F.A. and Philomme Smith. A demurrer was interposed for want of equity in the bill, and for want of jurisdiction of the subject-matter of the suit. The demurrer was overruled. Smith et al. v. Bonifer et al. (C.C.) 132 F. 889. The defendants in the bill then answered denying all the material allegations thereof, and praying for a dismissal of the same. Upon the evidence taken the court found for the appellees, and awarded them the relief prayed for.

Chamberlain & Thomas, for appellants.

R. J. Slater and J. T. Hinkle, for appellees.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge (after stating the facts as above).

The appellants contend, first, that neither Philomme Smith nor any other of the appellees was entitled to any allotment whatsoever upon the Umatilla Indian Reservation; and, second, that, conceding the existence of such a right, the deceased children of Philomme Smith were not at the time of their death possessed of an interest capable of transmission by inheritance. As to the first of these contentions, it is to be observed, first, that it is conceded that the mother of Philomme Smith was a member of the Walla Walla tribe of Indians. It is contended, however, that she severed her tribal relations; that her daughter Philomme never resided upon the reservation, and is not a tribal Indian, and was therefore not one of those for whom the allotment of land on that reservation was authorized to be made. The testimony shows that the mother of Philomme married one Thomas Tawakawn, an Iroquois Indian who had probably come into the Oregon country from the east as a voyageur engaged in trapping for the Hudson Bay Company. After his marriage to Philomme's mother, he lived in the Willamette Valley, but thence made occasional expeditions into California and elsewhere. The evidence is conflicting as to the place of Philomme's birth. The trial court reached the conclusion, and the weight of the testimony, we think, sustains it, that she was born within the region occupied by the Walla Wallas, and that while an infant she was brought by her parents into the Willamette Valley. While living in the Willamette Valley, when she was about six years of age, her mother married a French-Canadian by the name of Sauve. On the death of Sauve, which occurred a short time thereafter, his widow, with Philomme, moved to The Dalles, in Oregon. At that time Philomme was about fourteen years of age. There she married Smith, her present husband, and there she resided with her family until they removed to the reservation, in 1888.

The evidence indicates that, at the time when the treaty between the United States and the...