Kalyton v. Kalyton

Decision Date17 October 1904
Citation78 P. 332,45 Or. 116
PartiesKALYTON v. KALYTON et al.
CourtOregon Supreme Court

On petition for rehearing. Denied.

For former opinion, see 74 P. 491.

MOORE, C.J.

A petition for a rehearing having been filed, it is contended that this suit was instituted to determine, in effect, the title and right to the possession of public land, thereby necessarily rendering the United States a party; but that this cannot be done by a state court, and hence the decree rendered herein is coram non judice and void. The legal principle now insisted upon was not discussed by counsel at the trial in this court, but, as jurisdiction of subject-matter cannot be conferred by consent, is never waived (B. & C.Comp. § 72), and may be invoked for the first time on appeal ( Evarts v. Steger, 5 Or. 147), it becomes necessary to consider the question presented.

The act of Congress approved March 3, 1885, c. 319 (23 Stat. 340) providing for the allotment of lands in severalty to the Indians residing upon the Umatilla reservation, in this state, and prescribing the quantity to be distributed to each person of the various classes, contains the following clause "The President shall cause patents to issue to all persons to whom allotments of lands shall be made under the provisions of this act, which shall be of the legal effect and declare that the United States does and will hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made, or in case of his decease, of his heirs according to the laws of the state of Oregon, and that at the expiration of said period the United States will convey the same by patent to said Indian, or his heirs as aforesaid, in fee, discharged of said trust and free of all charge or incumbrance whatsoever: provided, that the law of alienation and descent in force in the state of Oregon shall apply thereto after patents have been executed, except as hereinotherwise provided." An examination of the language quoted will show that, though the issuance of two patents is contemplated, it is evident that the first specified in the act was intended to be nothing more than a certificate or written memorandum to evidence the selection of the land allotted and to declare the trust reserved. United States v. Rickert, 188 U.S. 432, 23 Sup.Ct. 478, 47 L.Ed. 532. In our opinion, the word "descent" in the clause stipulating "that the law of alienation and descent in force in the state of Oregon shall apply thereto after patents have been executed," etc., was intended to render the transmission of an estate by inheritance applicable to the land allotted to an Indian from the time such certificate was issued. The word "alienation" usually means the act by which the title to real property is voluntarily transferred by one person to and accepted by another, and such act is generally accomplished by the execution of a deed or of a will. Burbank v. Rockingham, etc., Ins. Co., 24 N.H. 550, 57 Am.Dec. 300. As an Indian cannot voluntarily transfer the title to the land allotted to him until the final patent is issued, it is evident that the word "alienation" was not used in the act under consideration in its technical sense.

It is quite probable, however, that until the title is transferred an Indian allottee has no estate in the premises, and that his heirs take as donees of the United States, and not by inheritance from him. The act having provided that after the expiration of 25 years from the time of the allotment "the United States will convey the premises by patent" to the allottee or his heirs "in fee," etc., the final patent, when issued, will invest the allottee with an estate in the land that he can "alienate" or "devise," and, as these quoted words were not necessary in the grant of a fee, they, in our opinion, are limited to the first patent issued. The law of descent of this state being applicable on the death of an Indian allottee after the primary patent or certificate is issued has a state court jurisdiction of the subject-matter, and is its decree determining the heirs in such cases valid? So long as the United States holds the lands in trust for Indian allottees, the title thereto remains...

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5 cases
  • Estate of Ducheneaux v. Ducheneaux
    • United States
    • South Dakota Supreme Court
    • March 11, 2015
    ...similar case over a century ago. In Kalyton v. Kalyton (Kalyton I ), 45 Or. 116, 74 P. 491 (1903), reh'g denied, Kalyton v. Kalyton (Kalyton II ), 45 Or. 116, 78 P. 332 (1904), rev'd, McKay v. Kalyton, 204 U.S. 458, 27 S.Ct. 346, 51 L.Ed. 566 (1907), the Oregon Supreme Court decided a case ......
  • Marriage of Red Fox, Matter of
    • United States
    • Oregon Court of Appeals
    • November 24, 1975
    ...U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196 (1916); Raymond v. Raymond, 83 F. 721 (8th Cir. 1897); Kalyton v. Kalyton, 45 Or. 116, 74 P. 491, 78 P. 332 (1903), Rev'd on other grounds McKay v. Kalyton, 204 U.S. 458, 27 S.Ct. 346, 51 L.Ed. 566 (1907). As enrolled members of the Confederated Tribes ......
  • Highrock v. Gavin
    • United States
    • South Dakota Supreme Court
    • August 25, 1920
    ...a careful review of the entire subject, now of the opinion, as indicated by the case of Kalyton v. Kalyton, 45 Or. 116, 129, 74 Pac. 491, 78 Pac. 332, that the heirs of Indian allottees take as donees of the United States and not by See, also, Beam v. United States, 162 Fed. 260, 89 CCA 240......
  • Caesar v. Krow
    • United States
    • Oklahoma Supreme Court
    • December 10, 1918
    ... ... United ... States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L.Ed ... 532; Wm. McKay v. Agnes Kalyton, 204 U.S. 458, 27 ... S.Ct. 346, 51 L.Ed. 566. And since the United States still ... retained the title to the land in trust for the heirs of the ... ...
  • Request a trial to view additional results

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