Little Bill v. Swanson

• Decision Date: 25 August 1911
• Citation: 117 P. 481,64 Wash. 650
• Parties: LITTLE BILL v. SWANSON et al.
• Court: Washington Supreme Court

117 P. 481

64 Wash. 650

LITTLE BILL v. SWANSON et al.

Supreme Court of Washington

August 25, 1911

Department 2. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by Little Bill, or Maquiqui, against John Swanson and others. Judgment for defendants, and plaintiff appeals. Affirmed.

E. D Wilcox and Wesley Lloyd, for appellant.

Bates Peer & Peterson, for respondents.

CROW J.

This action was originally commenced by Little Bill, or Maquiqui, against John Swanson, Hilma Swanson, his wife, Anton Nelson, Bertha Nelson, his wife, Gustaf Peterson, Anna Peterson, his wife, Elizabeth Spott Sahms, Willie Sahms, her husband, George Spott, and Edwin Eells, as guardian of George Spott, a minor, to recover 20 acres of land in Pierce county. From a judgment in favor of the defendants Swanson, Nelson, and Peterson, the plaintiff has appealed.

There is no material dispute as to the facts. On the evidence we conclude the findings made and entered by the trial judge must be sustained. From the evidence the following facts appear: The appellant, Little Bill, whose Indian name is Maquiqui, is of Indian birth. Since the year 1887 he has maintained no tribal relations, but has been a citizen of the United States. By virtue of a written treaty between the United States and certain bands of Indians, including the Puyallup Tribe, made on December 26, 1854, the land here involved, together with other lands, was allotted to George Jacobs, a member of the Puyallup Tribe, whose Indian name was Slowitson, but who was commonly known as George Jake. He took possession, and on January 30, 1886, the President of the United States issued to him under the name of George Jacobs a patent which contained restrictions on alienation. George Jake, who was a bachelor, died intestate on July 10, 1888, and left surviving him as his next of kin Little Bill, or Maquiqui, appellant herein, who was a brother of Betsy or Betholitza, the deceased mother of George Jake, and also left surviving him one Peter Spott, an Indian, his first cousin, who was the only son of a deceased sister of the deceased father of George Jake. At the time of his death George Jake was in peaceful possession of the land, holding under his patent. In March, 1890, Peter Spott, claiming to be sole heir at law of George Jake, caused a petition for administration upon his estate to be filed in the superior court of Pierce county. One Joseph Winyer was duly appointed and qualified as administrator. Due and regular administration was had by which it was adjudged that Peter Spott as next of kin and heir at law was entitled to the entire estate. Immediately after the death of George Jake, Peter Spott entered into the open, notorious, and adverse possession of the land, cleared the same, and erected buildings and made other improvements thereon. While he thus held and claimed the land, he was frequently visited by the appellant, Little Bill, who was aware of his possession and claim as sole heir at law of George Jake. On March 3, 1893, an act of Congress was approved (Act March 3, 1893, c. 209, 27 Stat. 633), providing for the appointment of three Puyallup Indian commissioners, and defining their duties, which, in part, were: 'To select and appraise such portions of the allotted land as are not required for homes for the Indian allottees, * * * and if the Secretary of the Interior shall approve the selections and appraisements made by said commission, the allotted land so selected shall be sold for the benefit of the allottees after due notice at public auction, at not less than the appraised value for cash, or one-third cash and the remainder on such time as the Secretary of the Interior may determine, to be secured by a vendor's lien on the property sold; * * * to superintend the sale of said lands, ascertain who are the true owners of the allotted lands, have guardians duly appointed for the minor heirs of any deceased allottees, make deed for the lands to the purchasers thereof, subject to the approval of the Secretary of the Interior, which deed shall operate as a complete conveyance of the land upon the full payment of the purchase money, and the whole amount received for the allotted land shall be placed in the treasury to the credit of the Indian entitled thereto, and the same shall be paid to him in such sums and at such times as the commissioner of Indian affairs, with the approval of the Secretary of the Interior, shall direct. * * * That the Indian allottees shall not have power of alienation of the allotted lands not selected for sale by said commission, for a period of ten years from the date of the passage of this act, and no part of the allotted land shall be offered for sale until the Indian or Indians entitled to the same shall have signed a written agreement consenting to the sale thereof, and appointing said commissioners, or a majority of them, trustees to sell said land and make a deed to the purchaser thereof. * * * The deeds executed by said commission shall not be valid until approved by the Secretary of the Interior, who is hereby directed to make all necessary regulations to carry out the purposes of the foregoing provisions. * * *' Under date of November 6, 1893, the Department of the Interior of the United States sent written instructions to the commissioners: 'To select and appraise such portions of the allotted lands as are not required for homes for the Indian allottees; then to obtain from the Indian or Indians entitled to the same, a written agreement signed and executed in the proper manner, consenting to the sale thereof at a sum not less than the appraiser's value and appointing and constituting you as commissioners, or a majority of you, trustees to sell said lands and make deed to the purchasers of the same. If Indian allottees or heads of families have died since the issuance of patents for lands selected and appraised for sale, you will determine the legal heirs of such allottee or head of family in accordance with the laws of the state of Washington; or, in other words, the true owners of the allotted lands; and have guardians duly appointed for the minor heirs of any deceased allottees, and obtain the consent of the heirs of twenty-one years and such guardians.' In 1895 the commissioners received further instructions, to the effect: 'That the commissioners were not required to go into the state courts in order to determine who are the heirs of these allottees. But to themselves apply the rule prescribed in their instructions, and when the 'heir' or 'true owner' is so ascertained, to obtain his consent to the sale of his allotment in the manner provided by the act that the President would have the right to prescribe rules for the descent of these lands. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.'

James J. Anderson, John W. Renfroe, and Ross J. Alexander, duly appointed and qualified in the year 1893 as Puyallup commissioners, proceeded with the discharge of their duties found and reported that George Jake died intestate in the year 1888; that he left Peter Spott, his first cousin, surviving him as his next of kin and heir at law, who under the laws of Washington became owner of the allotted and patented land of the decedent. This finding was later approved by the Secretary of the Interior. On January 1, 1899, Peter Spott, while in the exclusive possession of the land, died intestate, leaving surviving him a minor child named George Spott, and a widow named Elizabeth Spott, both Puyallup Indians, as his heirs at law, who continued in the occupation, possession, and exclusive use of the land until April 5, 1899, when it was sold to respondents herein as hereinafter stated. Elizabeth Spott later intermarried with one Willie Sahms, and has since been known as Elizabeth Spott Sahms. On July 2, 1897, Clinton A. Snowdon was appointed sole commissioner of the lands of the Puyallup Indian reservation under Act June 7, 1897, c. 3, 30 Stat. 87. In the year 1898 and prior to his death, Peter Spott, as heir at law of George Jake, pursuant to Act Cong. March 3, 1893, c. 209, 27 Stat. 633, and Act June 7, 1897, c. 3, 30 Stat. 87, supra, signed, executed, and acknowledged an instrument in writing whereby he consented to the sale of the land and appointed Clinton A. Snowdon, then sole commissioner of the lands of the Puyallup Indian reservation, the trustee to sell the land at its appraised value and make deeds to the purchases, all subject to the approval of the Secretary of the Interior. Such written consent was thereafter approved by the Secretary of the Interior. On January 18, 1901, the Secretary of the Interior, in answer to an inquiry from Clinton A. Snowdon, instructed him as follows: 'Where allottees and true owners of Puyallup lands have executed their consents of sale, the same having been approved by the Secretary, it has been the practice of the department to continue the sale of the lands covered thereby in the case of the death of an allottee or true owner and to distribute the funds arising from such sale to his or her heirs. The office and the department have regarded these written consents as remaining in full force and effect upon the decease of the Indian executing the same, and, further, that they are, as above indicated, in the nature of an agreement or contract to be carried out for the sole benefit of his heirs in case of his decease. * * * These lands are sold under the provisions of Act Cong. March 3, 1893, and not under the laws of the state of Washington. * * * It is for the department to pass upon the sufficiency of consents, and not the courts of the state of Washington.' In pursuance of the written consent executed by Peter...