Eells v. Ross

• Decision Date: 10 October 1894
• Docket Number: 143.
• Citation: Eells v. Ross, 64 F. 417 (9th Cir. 1894)
• Parties: EELLS et al. v. ROSS.
• Court: U.S. Court of Appeals — Ninth Circuit

64 F. 417

EELLS et al. v. ROSS.

No. 143.

United States Court of Appeals, Ninth Circuit.

October 10, 1894

This is an appeal from a judgment and decree of the circuit court of the United States for the district of Washington, Northern division, granting a perpetual injunction against the defendants to prevent them from restraining plaintiffs from grading and building a railroad over certain lands claimed to be within the limits of the Puyallup Indian reservation, and allotted in severalty to certain Indians named in the bill.

The case is presented for our consideration upon the pleadings and an agreed statement of facts.The facts as agreed to are as follows:

(1) That John Cook and Susie Cook, who are named in the bill of complaint, and each of them, are of Indian birth, and were formerly of the Puyallup tribe of Indians, living in the Puyallup valley and neighborhood, which is now embraced within the boundaries of the state of Washington.

(2) That they are the same John Cook and Susie Cook named in a patent dated the 30th day of January, 1886, signed by Grover Cleveland, president of the United States, a copy of which patent, marked 'Exhibit A,' is attached to and made a part of this stipulation, and were, at and prior to the date of said patent, husband and wife.

(3) That under and by virtue of the sixth section of an act of congress entitled, 'An act to provide for the allotment of lands in severalty to Indians of the various reservations and to extend equal protection of the laws of the United States and the territories over the Indians, and for other purposes,' approved February 8, 1887, being chapter 119 of volume 24 of the Statutes at Large, the said John Cook and Susie Cook, his wife, were made citizens of the United States, and are now citizens thereof.

(4) That said John Cook and Susie Cook executed and delivered to the plaintiff, Frank C. Ross, prior to the filing of the complaint in this cause, an instrument in writing in words and figures following, to wit:

'Permission is hereby given to Frank C. Ross to go upon and occupy any portion of lot one in section 21, township 21 north, range east W.M., King county, state of Washington, with his tents, camps, etc., for the period of six months from the date hereof, in consideration of the sum of one dollar per month.

'(Signed)

his John X Cook. mark. her 'Susie X. Cook. mark.

'Dated April 15, 1893.

'Witness:

'P. C. Stanup.

'A. Kautz.'

(5) That at and prior to the filing of said complaint, and prior to the time it is therein averred that defendants ordered the plaintiff to vacate the premises described in said writing, and threatened to compel him so to do if he refused, the said plaintiff, under the permission therein contained, had gone upon said premises, and was occupying the same with tents, camps, etc., thereon.

(6) That on the 4th day of March, 1893, the plaintiff and the said John Cook and Susie Cook, his wife, entered into the written and printed contract, a copy whereof is hereunto attached, marked 'Exhibit B,' and made a part of this stipulation.

(7) That thereafter, and prior to the filing of the complaint in this action, and prior to the orders and threats made by the defendants as in the complaint stated, the plaintiff had, under claims of right so to do as granted in said contract, Exhibit B, gone upon said premises, and was by the aid of his engineers and divers laborers, the latter being of Indian birth, and former members of said Puyallup tribe, engaged in locating and clearing the right of way for a railroad upon, over, and across said premises.

(8) That on the 15th day of May, 1893, and prior to the hour at which the restraining order in this cause was granted, and prior to the filing of the complaint in said cause, the defendantsEdwin Eells and G. A. Carpenter, with a force of armed men, went upon said premises described in the said contract for right of way, to wit, lot 1 in section 21, township 21 N., range 3 E. W.M., in King county, state of Washington, and by force and arms endeavored to compel the said laborers and engineers to quit said premises, and to desist from establishing and preparing said right of way for grading and the grade of said line of railroad.

(9) That the defendantEdwin Eells is an agent of the United States in charge of certain Indian reservations in the state of Washington; but whether he has any rights to act as such in reference to the Indians constituting what was formerly the Puyallup tribe is not conceded or denied by this stipulation, but is left to be decided by the court, upon the facts that may be proved in relation thereto, and the law applicable thereto, as the same shall be found by the court.

(10) That the other defendants are commissioned officers in the United States army, and the men who were under their control and constituted the force heretofore stated are noncommissioned officers and privates of the United States army, and all were acting under orders of the president of the United States.

(Section 11 erased.)

(12) That the said Indians, including the said John Cook, are assessed and taxed as other citizens of the state on all property owned by them, except their said lands, which as yet have never been assessed for taxation.

(13) By act of congress approved March 3, 1893, the congress has undertaken to provide a method for the sale of these lands.

William H. Brinker, for appellants.

F. Campbell, for appellee.

Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge.

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

We do not...