Lynch v. Harris
| Decision Date | 14 May 1912 |
| Docket Number | Case Number: 1503 |
| Citation | 124 P. 50,33 Okla. 23,1912 OK 383 |
| Parties | LYNCH v. HARRIS. |
| Court | Oklahoma Supreme Court |
¶0 INDIANS- -Indian Lands--Allotment. By reason of section 22 of an act of Congress, approved July 1, 1902 (chapter 1375, 32 U.S. St. at L. p. 716; 1 Kappler's Indian Affairs, Laws and Treaties, p. 789), the Commissioner to the Five Civilized Tribes, upon motion made before him, and the Secretary of the Interior, on appeal from an order of said Commissioner, have power at any time before the issuance of patent to an allottee of the Cherokee tribe of Indians, upon notice to such allottee and after hearing, to cancel and set aside a judgment of the Commissioner in a contest awarding to the allottee as contestant the lands allotted to him, when such judgment was procured without service of notice of contest upon the contestee, and without an opportunity given to the contestee to be heard, but upon a false and fraudulent affidavit made by the contestant or one acting for him, showing that such service had been made.
Error from District Court, Rogers County; T. L. Brown, Judge.
Action by John F. Harris, a minor, by J. B. Rutherford, guardian, against Elzira Lynch, a minor, by guardian. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions.
This case originated in the district court of Rogers county. The original plaintiff was John F. Harris, a minor, by John B. Rutherford, his guardian, who is now the defendant in error, but will hereafter be called plaintiff. The original defendant was Elzira Lynch, a minor, who is now the plaintiff in error, but will hereafter be called defendant. Plaintiff sought by his petition in the court below to have the allotment of certain lands theretofore made to defendant as a member of the Cherokee tribe of Indians declared a nullity, and that whatever title defendant may have in and to the lands described in her petition be decreed to be held by defendant in trust for plaintiff, and that a conveyance of the legal title thereto be decreed to plaintiff. The trial in the court below was to the court without the intervention of a jury. After the introduction of evidence by plaintiff, the court overruled defendant's demurrer to plaintiff's evidence, and defendant elected to stand upon her demurrer, and judgment was accordingly rendered for plaintiff as prayed for in his petition. Plaintiff is a duly enrolled citizen by blood of the Cherokee tribe of Indians, and defendant is an enrolled citizen of the Cherokee Nation as a Cherokee freedman. The land in controversy is located in Rogers county, and formerly constituted a part of the tribal lands of the Cherokee tribe of Indians. On March 28, 1905, defendant, by her mother and natural guardian, Martha Martin, who is also an enrolled citizen of the Creek Nation, selected the land in controversy as a portion of defendant's allotment, to which she was entitled as a member of the Cherokee tribe of Indians. On April 22, 1905, plaintiff, by his mother and natural guardian, instituted contest proceedings against Elzira Lynch for the land in controversy. This proceeding was instituted before the Commissioner to the Five Civilized Tribes on the ground that plaintiff was the owner of the improvements and in possession of the land at the time the same was selected by defendant as a part of her allotment. On September 19, 1905, that contest was first tried before the Commissioner to the Five Civilized Tribes. The evidence taken at that trial is in the record, and constitutes one of the exhibits to plaintiff's evidence. At the trial, the record shows that defendant, who was contestee in the proceeding before the Commissioner, appeared by her stepfather, Fred Martin, and an attorney by the name of J. D. Cox. The stepfather, Fred Martin, is not a citizen of the Cherokee Nation. The Commissioner to the Five Civilized Tribes, upon the evidence introduced at the first trial, awarded to plaintiff the land in controversy. Notice of this decree of the Commissioner was mailed by registered letter to the mother of defendant by the Commissioner. Neither defendant nor any One acting for her within thirty days after the rendition of the decree in the contest took an appeal therefrom to the Commissioner of the Land Office, but on January 10, 1907, defendant filed a motion with the Commissioner to the Five Civilized Tribes, asking that his decision awarding the land to plaintiff be set aside. This motion was not introduced in evidence in the court below, and the record does not contain the evidence introduced at the hearing on said motion; but the record does disclose that said motion was duly served upon plaintiff, and he had full notice of the hearing thereon. We are advised in part of the contents of said motion by the findings of the Commissioner to the Five Civilized Tribes in his order setting aside his first judgment, which was rendered on July 13, 1907. By this order the judgment in favor of plaintiff in the contest was set aside, and a new trial ordered upon the ground that plaintiff, contestant in that proceeding, by his mother had made a false return of service, and that no notice of a contest upon defendant or her mother and natural guardian, who selected the allotment for her, as prescribed by the rules of the department in contest matters, had ever been served; and it was found that the appearance by Fred Martin, the stepfather, and by the attorney, appearing at the contest in her behalf, was without authority or knowledge of defendant or her mother. Due notice was given to plaintiff, contestant before the Commissioner, of defendant's motion to set aside the judgment of the Commissioner, but no reply was ever filed to said motion, and the same was not resisted. After this motion to vacate and set aside the first judgment of the Commissioner had been granted and after due notice to both parties, a second rehearing in the contest was had before the Commissioner to the Five Civilized Tribes on January 21, 1908, at which time both parties appeared either both in person and by counsel, or by counsel. Upon the evidence introduced at this hearing, which is also made part of plaintiff's evidence in the court below, and a part of the record in this court, the Commissioner to the Five Civilized Tribes rendered his decision in favor of the contestee, and awarded to her the land she had theretofore allotted. After a motion for rehearing had been filed, plaintiff appealed to the Commissioner of Indian Affairs, who, on September 2, 1908, rendered a decision affirming the decision of the Commissioner to the Five Civilized Tribes. From this decision an appeal was taken by plaintiff to the Secretary of the Interior, who likewise rendered a decision affirming the decision of the Commissioner of Indian Affairs and of the Commissioner to the Five Civilized Tribes, and awarded the land in controversy to the contestee, defendant here; and it is agreed that a patent, issued by the Tribal authorities and approved by the Secretary of the Interior, has been delivered to defendant.
The foregoing is an epitome of the most important facts in the record. Such other facts as are at all material to a decision of the question presented here will be stated in the opinion.
Starr & Patten, for plaintiff in error.
J. B. Rutherford and Parker, Rider & Brown, for defendant in error.
¶1 Provision was made by act of Congress approved July 1, 1902 (32 U.S. St. at L. p. 716; 1 Kappler's Indian Affairs, Laws & Treaties, p. 787), for the allotment in severalty of the lands of the Cherokee Nation or tribe of Indians to the enrolled members thereof. Section 9 of this act provides for an appraisement of all the lands belonging to the tribe. Section 11 provides that there shall be allotted to each enrolled citizen of the tribe lands equal in value to 110 acres of the average allottable lands of the nation, and in making the allotments each Indian is entitled to select lands which will include his improvements. Section 69 provides that there shall be no contest instituted against the selection of any allotment after the expiration of nine months after the date of the original selection of such allotment by or for any citizen of the tribe.
¶2 Section 21 directs that:
"Allotment certificates issued by the Dawes Commission shall be conclusive evidence of the right of an allottee to the tract of land described therein, and the United States Indian agency shall, under the direction of the Secretary of the Interior, upon the application of the allottee, place him in possession of his allotment. * * *"
¶3 Section 22 reads:
"Exclusive jurisdiction is hereby conferred upon the Commission to the Five Civilized Tribes, under the direction of the Secretary of the Interior, to determine all matters relative to the appraisement and the allotment of lands."
And it is further provided by section 65 that:
"All things necessary to carry into effect the provisions of this act, not otherwise herein specifically provided for, shall be done under the authority and direction of the Secretary of the Interior."
¶4 Although more than nine months had expired after the date of the original selection of this allotment by defendant before the motion to vacate the first judgment rendered by the Commissioner to the Five Civilized Tribes was filed, there is an absence of any evidence to show that a certificate of allotment had been issued to plaintiff, except that the United States Indian agent, prior to filing the motion to vacate, had under the direction of the Secretary of the Interior placed plaintiff in possession of the allotment. But we do not regard it material, in so far as it affects the only question presented by this proceeding, whether the allotment certificate had been issued or not to plaintiff before the motion to vacate was filed, for, if nine months had expired from the original selection of the allotment, the time within which to file a...
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